12th Ministerial Conference

The WTO’s 12th Ministerial Conference starts in three days – will modest results yet be possible?

· June 9, 2022 · 12th Ministerial Conference, Fisheries Subsidies negotiations, food security, Waiver of TRIPS Obligations · · No Comments

Looking at WTO press releases over the last week, the WTO’s Director-General has been urging Members to find a path forward on a handful of issues — a response to the pandemic (including IP flexibilities), concluding the fisheries subsidies negotiations that have been dragging on for more than twenty years, obtaining some movement on agriculture (food security, no restrictions on sales to the World Food Programme) and an outline of a possible work program going forward including on WTO reform. Various press articles have suggested modest progress at best has been achieved in recent weeks and flag challenges to achieving any meaningful results at next week’s Ministerial Conference. See, e.g., Inside U.S. Trade’s World Trade Online, MC12: A preview, As ministers head to Geneva for MC12, success remains on a knife’s edge, June 9, 2022, https://insidetrade.com/daily-news/ministers-head-geneva-mc12-success-remains-knife’s-edge. The ongoing Russian war in Ukraine has created even further challenges to achieving any meaningful outcomes next week.

Yesterday’s article in The Globe and Mail had Director-General Ngozi Okonjo-Iweala talking about it still being possible to bring in the first two issues listed above without commenting on other items before the Members. See The Globe and Mail, Global agreement on COVID-19 vaccine rights waiver within reach, WTO chief says, June 8, 2022, https://www.theglobeandmail.com/world/article-global-agreement-on-covid-19-vaccine-rights-waiver-within-reach-WTO/ (“An international agreement on waiving intellectual property rights for COVID-19 vaccines is within reach ahead of a global trade meeting next week, the head of the World Trade Organization said on Wednesday. In a telephone interview, Director-General Ngozi Okonjo-Iweala also said an agreement could be reached on fishing subsidies in time for the meeting, when 120 trade ministers from around the world gather at the body’s Geneva headquarters.”).

As reviewed in prior posts, there are a range of matters that have been discussed including a number of joint statement initiatives (at least one of which is concluded among willing Members). See May 11, 2022:  Less than five weeks to the WTO’s 12th Ministerial Conference — what are likely deliverables?, https://currentthoughtsontrade.com/2022/05/11/less-than-five-weeks-to-the-wtos-12th-ministerial-conference-what-are-likely-deliverables/. How many of the issues that have been being worked on will result in actual outcomes or simply be included in a future work program is the question heading into next week. Most bets would say the Ministerial Conference will be lucky to achieve even modest success.

There are a host of documents that are posted on the WTO webcite as documents for the Ministerial. See WTO, MINISTERIAL CONFERENCES: TWELFTH WTO MINISTERIAL CONFERENCE, https://www.wto.org/english/thewto_e/minist_e/mc12_e/documents_e.htm (accessed on June 9, 2022). There is a draft text and revision for fisheries subsidies (but not the current iteration). There is no draft text for the pandemic response as yet although both the IP flexibility draft forwarded to the membership in recent weeks and the broader package of provisions have been in the public domain, but don’t reflect recent negotiations. The agricultural negotiating group chair’s draft of a text from November 2021 is on the webcite but again doesn’t reflect developments from 2022. There are lists of issues various developing country groups and least developed countries would like to see as well as a Brazilian paper proposing having ministerial meetings every year versus the current every two years (which has twice slipped to only once in four years). While all these documents provide some background on issues of interest to at least some of the Members, the core documents will likely be those added by Sunday reflecting hoped for outcomes.

The world needs the WTO to be successful next week. Fisheries subsidies are a major problem and fish stocks globally have paid the price of the inaction by WTO Members. The pandemic has raised important issues for trade playing a more important role in minimizing negative effects and improving equitable access to vaccines. And the food insecurity issues which have been grossly worsened by the ongoing Russian war in Ukraine are critical for tens of millions of the world’s population, with trade being an important element to addressing the current issue. And the WTO is in need of fundamental reform if it is to be able to address changing global needs in a timely manner, something it has been unable to do in its first twenty 27 years.

The divisions among WTO Members on the path forward for the WTO and the opposition of many to working with the Russian Federation argue for a minimalist package in fact at next week’s Ministerial Conference. Even a minimalist package may prove illusive in today’s world. Let’s hope for a meaningful success next week.

WTO Fisheries Subsidies Negotiations — a second revised text from November 8 holds out hope for a deal by MC12; how realistic is the hope?

· November 9, 2021 · Fisheries Subsidies negotiations · , , , , , · No Comments

After twenty years of negotiations on fisheries subsidies, WTO Members are just weeks away from another “hard” deadline for concluding the talks — the twelfth WTO Ministerial Conference being held in Geneva November 30-December 3. On November 8, the Chair of the Negotiating Group on Rules released a second revision to the draft text of a fisheries subsidies agreement along with a detailed explanatory note on the changes made from the first revision and the road ahead. See Negotiating Group on Rules – Fisheries Subsidies, Revised Draft Text, 8 November 2021, TN/RL/W/276/Rev. 2 and Fisheries Subsidies, Revised Draft Text, Chair’s Explanatory Note Accompanying TN/RL/W276/Rev.2, 8 November 2021, TN/RL/W/26/Rev.2/Add.1.

Ambassador Santiago Wills of Colombia, the Chair of the negotiations, gave a summary of next steps in his conclusion. Paragraph 148 provides the challenge ahead:

“148. Regarding next steps, where we need to go from here is simple: we have to genuinely negotiate. We have only three weeks left until MC12 and only two weeks before we need to send something to Ministers through the General Council. Our objective before then is to collectively evolve this draft text ideally into a completely clean text, or at least as clean as possible with only
one or two issues left for our Ministers to decide. As I communicated to you in my e-mail of 4 November, and as has been the plan since we resumed our work following the summer break, we now will need to meet very frequently – essentially every day – starting tomorrow, to review everything together clause-by-clause.”

The WTO Members have a lot at stake in terms of whether an agreement can finally be achieved. In the WTO press release about the release of the revised text, the importance of getting to the finish line is alluded to by the Director-General. The agreement is in fulfilment of one of the UN Sustainable Development Goal subitems, 14.6, although the WTO already missed the completion date of 2020. See WTO News, Revised fisheries subsidies text kicks off intensified negotiations ahead of MC12, 8 November 2021, https://www.wto.org/english/news_e/news21_e/fish_08nov21_e.htm.

“The Director-General told members she has been engaging with political leaders, including at the highest levels, to get their support for a successful conclusion to the 21-year-long negotiations.

“‘The eyes of the world are really on us,’ she said. ‘Time is short and I believe that this text reflects a very important step toward a final outcome. I really see a significant rebalancing of the provisions, including those pertaining to special and differential treatment, while, at the same time, maintaining the level of ambition.’

“Members are scheduled to hold daily meetings on the basis of the latest draft text, with the goal of providing ministers a clean draft before MC12.

“Under the mandate from the WTO’s 11th Ministerial Conference held in Buenos Aires in 2017 and the UN Sustainable Development Goal Target 14.6, negotiators have been given the task of securing agreement on disciplines to eliminate subsidies for illegal, unreported and unregulated fishing and to prohibit certain forms of fisheries subsidies that contribute to overcapacity and overfishing, with special and differential treatment being an integral part of the negotiations.”

A review of the revised draft and the Chair’s explanatory text show a large number of issues where strong differences remain, many provisions still in brackets, some alternative texts provided and other challenges all of which need to be largely resolved within two weeks. See, e.g., Art. 3.3, alternatives for type of proof and process needed for a finding that a vessel or operator has engaged in “illegal, unreported and unregulated fishing”; Art. 3.8, period that developing countries can provide subsidies and distance from shore for the fishing activities; Art. 4.4, similar bracketed provisions for subsidies for developing countries regarding overfished stocks; Art. 5.1(i), prohibited subsidies contingent upon or tied to fishing and related activities beyond the subsidizing Member’s jurisdiction; Art. 5.3, alternatives for disciplines on subsidies to vessels not flying the flag of the subsidizing Member; Art. 5.4, exceptions for developing countries including duration of exception and area from shore to which it applies; Art. 6.2, exceptions for LDC Members; Article 7, technical assistance and capacity building; Art. 8.2(b), whether to include notification requirements by Members of “any vessels and operators for which the Member has information that reasonably indicates the use of forced labour, along with relevant information to the extent possible”; Art. 8.5, notification requirements of any regional fisheries management organization or arrangement (RFMO/A); Art. 9.1, institutional arrangements; Art. 9 and 10 (dispute settlement) more broadly; Art. 11.1 and 11.5 from final provisions.

The detailed description from the Chair of the changes made and major differences that remain confirms that the effort to get to a final agreement will be daunting. The Chair’s proposed path forward includes using several Friends of the Chair to help address a range of open issues. But it also includes daily meetings including in different configurations and the inclusion of officials from capital remotely.

Challenges facing Members include some of the broader reform issues raised by the U.S. and others. Various special and differential treatment provisions (“S&D provisions) apply to “developing countries” as well as LDCs. “Developing Country is a matter of self-selection, meaning many WTO Members claim such status despite not needing S&D to be competitive. The U.S., EU and others have raised concerns with the need to refocus S&D on those actually needing assistance. Are the qualifiers on the S&D provisions sufficient to see that major subsidizers like China and others are not eligible to avoid disciplines? Similarly, can the effort of some “developing countries” to seek S&D for decades possibly make sense if the Agreement is to achieve sustainability of wild caught fish and if there are few restrictions on who is a developing country?

The U.S. has had deep concerns about the use of forced labor on fishing vessels. See The Use of Forced Labor on Fishing Vessels, Submission of the United States, 27 May 2021, TN/RL/GEN/205. The revised draft text agreement contains only one of three proposed modifications to the draft text proposed by the U.S. to better address concerns about forced labor, and that provision (Art. 8.2(b)) is opposed by some Members, presumably those whose fleets are known or suspected of using forced labor. More broadly, will a final text result in meaningful reforms on fisheries subsidies or be so compromised that the agreement offers at best partial disciplines.

With the world watching and with the opportunity to restore at least partially the relevance of the WTO as a forum for trade negotiations, WTO Members have two weeks to get a near finished text agreed, with less than two weeks after that for Members to agree to a meaningful final text to ensure a successful 12th WTO Ministerial Conference. Let’s hope that the WTO Membership can rise to the occasion.

World Trade Organization — possible deliverables for the 12th Ministerial Conference to be held in Geneva November 30-December 3, 2021

· May 10, 2021 · TRIPS waiver proposal from India and South Africa, WTO Trade Negotiations Committee · , , , , , , , , · No Comments

On May 3, 2021, the WTO held a Trade Negotiations Committee (“TNC”) session combined with an informal session of the Heads of Delegation in Geneva. Because the WTO over time has eliminated the immediate release of statements of the Chair of the TNC and the Chairs of different negotiating groups who provide updates on the status of negotiations, there is very limited public information on the meeting at the present time. The WTO released a news release on the meeting entitled “Members discuss contours of potential MC12 deliverables”. See TNC and Heads of Delegation Meeting, Members discuss contours of potential MC12 deliverables, May 3, 2021, https://www.wto.org/english/news_e/news21_e/hod_03may21_e.htm. A review of WTO documents listed on the WTO website reveals that Director-General Ngozi Okonjo-Iweala provided a seven page Chair’s statement at the meeting, although the document is not publicly available. See JOB/TNC/91. There was at least one other statement made by chairs of negotiating groups, though the statement is not publicly available. See Council for Trade in Services – Special Session – Report by Ambassador Zhanar Altzhanova, Chair of the CTS Special Session, to the informal TNC and HODs meeting – 3 May 2021, JOB/SERV/307, May 4, 2021. One would assume there were reports on the fisheries subsidies negotiations, on agriculture and on various Joint Statement Initiatives though there is no listing of any such statements.

Copied below is the May 3 WTO news release.

“Heads of WTO member delegations today exchanged views about issues on which they can realistically reach agreements in the run-up to the 12th Ministerial Conference (MC12) later this year, and what needs to happen to make such deals possible. Fisheries subsidies, agriculture and the COVID-19 pandemic featured prominently in the discussions, with several members stressing that delivering concrete negotiated results was critical for the WTO’s credibility. The 3 May gathering was both a formal session of the Trade Negotiations Committee and an informal meeting of Heads of Delegation.

“Summing up members’ interventions at the end of the day, WTO Director-General Ngozi Okonjo-Iweala said what she had heard matched what she had been told in her own consultations: ‘Views are coalescing around the most feasible priorities for delivery between now and MC12 — although of course there are gaps on how we get there and on the content of prospective results.’

“She said three concrete deliverables stood out: an agreement to curb harmful fisheries subsidies; outcomes on agriculture, with a focus on food security; and a framework that would better equip the WTO to support efforts against the COVID-19 pandemic and future health crises.

“Looking to the weeks and months ahead, the Director-General expressed hope that by July members would be able to finalize an agreement on fisheries subsidies and achieve clarity about what can be delivered by MC12, scheduled to run from 30 November to 3 December in Geneva.

“On fisheries subsidies, she urged members to exercise the necessary flexibility to overcome the remaining hurdles. With ministerial involvement likely required to finalize an agreement in July, she called on delegations to work with the chair of the negotiations, Ambassador Santiago Wills of Colombia, to prepare a draft negotiating text with a minimal number of outstanding issues for ministers to resolve. ‘We are almost there, we can see the light at the end of the tunnel,’ she said, stressing she stood ready to help members and the chair translate increased flexibility into an agreement.

“Noting that for many members, meaningful outcomes on agriculture were necessary to make MC12 a success, DG Okonjo-Iweala said that the pandemic, and rising hunger around the world, made a strong case for a WTO ‘food security package’. Elements for a prospective package included public stockholding, the proposed exemption from export restrictions of World Food Programme humanitarian purchases, domestic support and transparency, with some delegations also raising cotton and the special safeguard mechanism.

“The Director-General welcomed the view expressed by many delegations that MC12 can deliver concrete responses on trade and health. The WTO’s spotlight on export restrictions and the need to increase vaccine production volumes was gaining attention and engagement from leaders, she said.

“Reporting on a 14 April event where vaccine manufacturers, international organizations, civil society and members looked at how the WTO could contribute to efforts to combat the global scarcity of COVID-19 vaccines, she said it was clear that underused manufacturing capacity existed in several developing countries.

“DG Okonjo-Iweala praised members’ support to India amid the upsurge in COVID-19 cases there, which followed India’s own exports of a large number of vaccines. ‘That is what the WTO membership should be about — working together, supporting each other,’ she said. She asked members to bring the same sense of common purpose to bear on engaging in text-based negotiations on the TRIPS waiver proposal aimed at finding a pragmatic compromise that works for all.

“With regard to dispute settlement, where many members called for resolution to the impasse over the Appellate Body, the Director-General expressed hope that by MC12 members ‘can reach a shared understanding on the types of reforms needed’.

“The General Council chair, Ambassador Dacio Castillo of Honduras, is consulting on proposals about issues specific to least-developed countries such as the G-90 proposals on special and differential treatment as well as on small economies and areas such as the e-commerce Work Programme, she said.

“She noted that groups of members had signalled a desire to move ahead in areas such as services domestic regulation, e-commerce, investment facilitation, women’s economic empowerment, micro, small, and medium-sized enterprises as well as issues related to trade and climate change.

“For issues not in a position to be concluded this year, the Director-General said members had called for post-MC12 work programmes on multilateral issues relating to agriculture, services, and special and differential treatment as well as in joint statement initiatives in areas including plastics pollution and environmental sustainability.

“DG Okonjo-Iweala said that in the coming days, she would intensify her own outreach with heads of delegation, organizing meetings “in various configurations large and small” to support the chairs of negotiating groups in their efforts to broker compromise among members. She reiterated her commitment to ensuring adequate representation and transparency in these meetings ‘Nothing will be done behind closed doors that people don’t know about,’ she emphasised. She indicated that she would work closely with the General Council chair and the chairs of the negotiating bodies as well as MC12 chair Kazakhstan to conduct these meetings.

“Emphasising the tight timeframe for members to resolve their outstanding differences, the Director-General said the ‘path to July’ would involve a large number of intensive meetings aimed at narrowing gaps. ‘Week in, week out, this is what we will do now.’”

It is often the case that the U.S., European Union and China release their statements at events like the May 3 TNC session. Reviewing the webpages for the three Members’ WTO operations shows a statement only for the EU. See EU Statement at the Trade Negotiations Committee/Heads of Delegation meeting, 3 May 2021, Statement delivered by Ambassador João Aguiar Machado, https://eeas.europa.eu/delegations/world-trade-organization-wto/97682/eu-statement-trade-negotiations-committeeheads-delegation-meeting-3-may-2021_en.

The EU seeks a number of specific outcomes for the 12th Ministerial Conference and emphasizes the need to keep the agenda limited to permit success. The EU’s list starts with the conclusion of the fisheries subsidies agreement negotiations and secondly achieving agreement on trade and health including increasing COVID-19 vaccine production.

“Firstly, on fisheries subsidies; the EU supports the Chair’s efforts to move the negotiations forward and the
Director-General’s involvement and intent to achieve an outcome already in July. With this in mind, we need to
consider how best to use the short time ahead. These negotiations are a test case of the ability of the WTO to
deliver on the Sustainable Development Goals, in this case SDG 14.6. We are already late, well passed the
deadline that Heads of State and Government instructed us, here at the WTO, to deliver. We have full
confidence that Ambassador Wills will find the best way forward for these negotiations.

“Secondly, on trade and health, we must work towards a Ministerial Declaration that brings together key
elements of the Ottawa Group proposal on Trade & Health (export restrictions, transparency, trade facilitation)
as well as progress on the expansion of production capacities through voluntary licensing and, where necessary,
supporting the use of the available TRIPs flexibilities.”

Beyond these two deliverables, the EU looks for an agreed work program for reform of the WTO’s three core functions — negotiations, transparency/monitoring, and dispute settlement. Restoring a functioning two-tier dispute settlement system is the top priority in this area followed by improved notification practices.

The EU supports the various Joint Statement Initiatives and intends to propose additional ones on industrial subsidies, state-owned enterprises, and trade and environment topics.

The EU’s proposal on agriculture differs in part from the summary of views presented by DG Okonjo-Iweala as addressing export restraints, particularly for World Food Programme purchases is a priority while other issues including public stockholding (and other forms of domestic support) is viewed as more appropriate for a work program outcome from the 12th Ministerial.

Developments in the last week

The WTO held a two day General Council meeting on May 5-6 with the big news being the United States’ indication that because of the extraordinary circumstances of the global COVID-19 pandemic, the United States would support the proposed waiver of certain TRIPS obligations on medical goods for the duration of the pandemic, more specifically being willing to enter into text negotiations in the TRIPS Council. See May 6, 2021, COVID-19 vaccines — role of WTO and developments at May 5-6, 2021 General Council meeting on TRIPS Waiver, https://currentthoughtsontrade.com/2021/05/06/covid-19-vaccines-role-of-wto-and-developments-at-may-5-6-2021-general-council-on-trips-waiver/.

The major countries within the EU have come out opposing the U.S. change of position on the waiver proposal and have urged the United States to remove export restrictions on vaccines and raw materials and other inputs, See The Hill, EU leaders criticize Biden push to waive COVID-19 vaccine patents: Not a ‘magic bullet’, May 8, 2021, https://thehill.com/policy/international/europe/552459-eu-leaders-criticize-biden-push-to-waive-covid-19-patents-not-a; Euronews, EU leaders urge US to end COVID-19 vaccine export limits amid patents controversy, 8 May 2021, https://www.euronews.com/2021/05/07/european-leaders-urge-u-s-britain-to-match-eu-generosity-on-vaccine-exports. Not surprisingly, the move was also criticized by the pharmaceutical and biotech industries. See, e.g., McDonnell Boehnen Hulbert & Berghoff LLP – JDSupra, BIO & IPO Issue Statements on Biden Administration’s Support for Proposed WTO Waiver, May 7, 2021, https://www.jdsupra.com/legalnews/bio-ipo-issue-statements-on-biden-3271048/.

There have been additional announcements by the WHO on vaccines receiving emergency use authorization (first of two Chinese vaccines was approved on May 7, 2021; a second is pending), additional vaccine producers have reached agreements with COVAX for supplying vaccines once their vaccines are approved by the WHO (Moderna, Novavax), and increased production targets by major COVID-19 producers (e.g., Pfizer raised its target for 2021 to 3 billion doses from 2.5 billion and increased 2022 from 3 billion doses to 4 billion doses; Moderna increases production forecast for 2021 to 800 million to 1 billion and is making investments to increase production in 2022 to 3 billion doses). See, e.g., World Health Organization, WHO lists additional COVID-19 vaccine for emergency use and issues interim policy recommendations, 7 May 2021, https://www.who.int/news/item/07-05-2021-who-lists-additional-covid-19-vaccine-for-emergency-use-and-issues-interim-policy-recommendations; Gavi, Gavi signs agreement with Moderna to secure doses on behalf of COVAX Facility, 3 May 2021, https://www.gavi.org/news/media-room/gavi-signs-agreement-moderna-secure-doses-behalf-covax-facility; Gavi, Gavi signs agreement with Novavax to secure doses on behalf of COVAX Facility, 6 May 2021,https://www.gavi.org/news/media-room/gavi-signs-agreement-novavax-secure-doses-behalf-covax-facility; Wall Street Journal, Pfizer Lifts Covid-19 Vaccine Production Targets for 2021, 2022, May 7, 2021, https://www.wsj.com/articles/pfizer-lifts-covid-19-vaccine-production-targets-for-2021-2022-11620425904; Moderna, Moderna Reports First Quarter Fiscal Year 2021 Financial Results and Provides Business Updates, May 6, 2021, https://investors.modernatx.com/news-releases/news-release-details/moderna-reports-first-quarter-fiscal-year-2021-financial-results

What is clear is that the increased attention that will be paid by WTO Members on the waiver proposal within the TRIPS Council will likely suck a lot of oxygen out of the WTO in the coming months for other negotiating issues, many of which remain controversial in their own right. Any text based agreement on a TRIPS waiver is unlikely until close to the 12th Ministerial (and unlikely then if EU opposition remains or the U.S. is unable to achieve acceptable text). Thus, the remaining months before the 12th Ministerial Conference will present some major challenges to the WTO Members in their efforts to come up with achievements to keep the WTO relevant going forward. The U.S. move also creates a division with European allies and appears to have been taken without consultation with those allies ahead of last week’s announcement — a departure from the Biden Administration’s approach to date.

WTO Fisheries Subsidies Negotiations — a push to complete negotiations by July

· April 24, 2021 · Fisheries Subsidies negotiations · , , · No Comments

Following a series of “informal” Heads of Delegation meetings over the last two weeks on the fisheries subsidies negotiations, the Chair of Negotiating Group on Rules, Amb. Santiago Wills of Colombia, and the WTO’s Director-General Ngozi Okonjo-Iweala are pushing WTO Members to conclude the negotiations by July with an anticipated virtual Ministerial meeting in July to hopefully resolve remaining issues. See WTO press release, Ministerial meeting eyed for July as fisheries subsidies negotiations enter final phase, 21 April 2021, https://www.wto.org/english/news_e/news21_e/fish_21apr21_e.htm; Speeches — DG Ngozi Okonjo-Iweala, Negotiating Group on Rules — fisheries subsidies: Informal open-ended meeting at heads of delegation level, 21 April 2021, https://www.wto.org/english/news_e/spno_e/spno8_e.htm; Negotiations on Fisheries Subsidies, Summary of statement of Ambassador Santiago Wills of Colombia, Negotiating Group on Rules chair, at meeting on fisheries subsidies, 21 April 2021, https://www.wto.org/english/news_e/news21_e/fish_21apr21a_e.htm.

The Fisheries Subsidies negotiations have dragged on for twenty years and typify the breakdown in the WTO’s negotiating function. The Director-General and many commentators have emphasized the critical need to conclude a fisheries subsidies agreement to show the WTO can still perform and address important trade issues. Stopping the overfishing that is threatening the sustainability of fishing around the globe is also an important UN Sustainable Development Goal (14.6).

The challenge for the WTO Members is actually achieving a meaningful agreement. While there is “progress” identified by the Chair’s summary statement on April 21st, his description of open issues in just three areas suggests the talks remain mired in division among those wanting meaningful reform and those seeking to largely escape modification to existing practices. The summary of Amb. WIlls statement is copied below.

“As you know, at the start of last week’s meetings at the level of heads of delegations, Dr Ngozi had called on members to engage intensively with a view to close the fisheries subsidies negotiations by July. I found the week-long meetings, which amounted to nine sessions totalling 27 hours, to be constructive overall. At this high level of discussions, we saw flexibility and genuine attempts to compromise. And as we enter the final phase of the negotiations, we will need members’ political will to make tough calls, first at the heads of delegation level here in Geneva, and then at a Ministerial engagement which we envisage for some point before the summer break, in virtual format.

“Turning first to the meetings that we held last week: I organized the discussions at the level of heads of delegations on three key issues where we seem to have exhausted the technical discussions and needed higher-level attention to make progress on finding convergence. These issues were:

“- A possible exemption for subsidies to subsistence, artisanal, or small-scale fishing;

“- Due process requirements for illegal, unreported and unregulated fishing determinations; and

“- The approach to the overcapacity and overfishing prohibition.

“In many ways, the approach to the overcapacity and overfishing disciplines — the third issue I mentioned — is at the heart of our negotiations. I think last week’s discussions brought us a step closer to reaching convergence on this pillar.

“Let me be more specific. The discussions on overfishing and overcapacity focused on the structure that is now found in the draft consolidated document, what we call the ‘hybrid’ approach. In doing so, views were exchanged on the list of subsidies that would be presumptively prohibited under this pillar.

“In addition, members discussed a paragraph that provides for a sustainability-based flexibility, so a member may grant or maintain subsidies under the overfishing pillar if it demonstrates implementation of measures for the sustainability of fish stocks. Some members suggested notification procedures to deal with this required demonstration. There were additional suggestions to make this article more acceptable such as limiting this provision to a geographical area, for a particular period and/or  designing a technical assistance and capacity building mechanism to help developing members build enough data to apply the sustainability standards proposed in the draft text.

“Delegations’ views on how to advance our textual work on this key element of the disciplines still differ in certain respects. However, some members showed flexibility to consider outcomes they could live with, not necessarily the one they prefer. Most importantly, I am very happy that instead of only pointing to perceived shortfalls in the current text or in the views of other members, some constructive suggestions for bridging the gaps were made.

“As for discussions on a possible exemption for subsidies to subsistence, artisanal, or small-scale fishing: I detected a genuine step forward in the willingness of some members to consider a formulation different to that of their own preference. However, there are still some difficult and interlinked issues under the topic of subsistence, artisanal or small-scale fishing; and all of them have to be weighed carefully as we further explore possibilities for an outcome on this issue that could be agreed by members.

“On due process requirements for illegal, unreported and unregulated fishing determinations: My own take-away from these exchanges was that members seem to have common concerns but with different views on how we approach them, and in fact ultimately there were some new suggestions made in the room that attracted a certain amount of interest. So that was a positive dynamic.

“In addition, an April 8 meeting on the prohibition of subsidies to overfished stocks made it clear that we will all need to reflect more on how to coherently address the issue of overfished stocks in the overall context of the disciplines.

“Turning now to the process going forward: I have briefed Dr Ngozi on the outcome of last week’s cluster and we have been brainstorming on next steps to achieve a conclusion of the fisheries subsidies negotiations by July.

“For one, reaching an outcome this summer means that we will need higher-level, capital-based decision-making soon. In particular, we envisage Ministerial engagement at some point before the summer break, which starts three months from now. Dr Ngozi, in her statement to members this morning, elaborated that this means that we will be asking Ministers to meet virtually in July with a focus on fisheries subsidies and possibly one or two other topics. The aim of that meeting will be for Ministers to review a very advanced, hopefully final, text.

“It will be important, in the near future, to capture in a new, or revised text the progress that we have made since our current text was issued (that we should recall was December last year), and aiming at possible middle-ground points on outstanding issues. I have been hearing this call from many members. This next text will be important, as it will cover five months of our work and as it will form the basis of our work toward the cleaner text for Ministers to consider.

“I also plan to engage with heads of delegations in various configurations and groupings soon and non-stop until the finish line.

“Dr Ngozi told members that final hurdles now need to be dealt with at the political level, including by heads of delegations in Geneva. ‘Our job is to protect the fish and to protect the many millions of fisher men and women who directly depend on the fish,’ she said.

“I could not agree more that time is running out and we must make our work count and make concrete progress.”

During the first twenty-five years of the WTO’s existence, a lesson repeatedly learned is that bringing ministers together prematurely does not advance resolution of negotiations. Amb. Wills statement and the statement of the Director-General understand the need to get to a near final text with a minimum of brackets before the virtual meeting of Ministers. The understood risk is that the snail’s pace of progress in the negotiations will leave ministers with too many issues to resolve. While DG Okonjo-Iweala is doing outreach to ministers and hearing support for concluding the talks, the limited progress in Geneva to date suggests major challenges in the coming months. Should there be a failure to make sufficient progress, it would be better to postpone the virtual meeting. The Director-General’s statement is copied below.

“Thank you, Santiago, and good morning excellencies and colleagues. That was a very informative report and I am glad to hear that there was constructive engagement by all of you Heads of Delegation at last week’s meetings. I had promised last week that you would see me again soon, and now that you have finished your cluster of meetings, I thought it would be a good idea to join you today and share some further reflections on how I see this process unfolding over the next months. For now, I would like to emphasize three key points.

“1. First, when Santiago says “Ministerial engagement” this means that we will be asking Ministers to meet virtually in July with a focus on fisheries subsidies and possibly one or two other topics. The aim of that meeting will be for Ministers to review a very advanced, hopefully final, text.

‘2. This brings me to my second point, the text. We have to present to Ministers a text that is complete and clean enough for them to constructively engage and take decisions. Thus, options and brackets will need to be very few. We must have closure in July.

“That means that our work here in Geneva over the next three months is truly critical. While clusters of meetings have served their purpose at the technical level, now we really need to pick up the pace, and engage in text-based negotiations that get us to compromise landing zones on all of the outstanding issues. To achieve this result, consultations will be convened frequently and in whatever configuration is necessary depending on the topic. I have told Santiago that I’ve rolled up my sleeves and I am ready to work any time whenever he thinks he needs my involvement. So I will be joining some of these meetings and possibly convening some of my own. The aim of such meetings and consultations will be to deepen the clarity on key issues and views, as we continue to work through issues and seek to identify possible landing zones. Please be assured that the principles of transparency and inclusiveness will be respected, and that no decisions will be taken behind closed doors, as Santiago has said, and I want to repeat it again because this is how we’ll build that trust that we need to get us through the finish line. While no delegation would be invited to every meeting, all voices will be consulted and heard, and Santiago will continue to report on all of these activities. My message here is that to succeed, we must all remain flexible, and continue to support the Chair as he guides the work toward an outcome. I also want to use this opportunity to thank Clarisse and the team from the Secretariat for their continued and able support to the Chair. We must also prioritize these negotiations over these few months, including late nights and weekends if needed. As you know, this is what it usually takes in the final stage of negotiations and I’m really strongly appealing that we prepare to roll up our sleeves to get there.

“3. And that brings me to my final point — your engagement as heads of delegations. It’s really time for you to take the reins. Last week showed that you are ready to take the lead in the negotiations. Your delegates have been working hard on these negotiations for many years, and collectively have brought us to this final phase. This is really a major achievement that needs to be recognized and we are very very grateful and thankful to your delegates for the way that they have brought us so far. It is, however, only natural that the final hurdles now need to be dealt with at the political level, and that’s by you. Therefore, all Heads of Delegation — I can’t say it often enough — should be ready to roll up your sleeves to work. If your delegates have not yet fully briefed you on all of the issues, please make sure that they do so. I can tell you that Santiago and I meet constantly to see how we can advance this. And please also maintain contact with your capitals to continually refresh your instructions as we move toward what all Members can live with. So many Ministers that I have talked with, literally two or three ministers practically every week either in person physically with proper social distancing or by Zoom, and all of them are really keen. I noticed a new spirit and I’m really happy they are keen to get this done. Yesterday, I was with the Trade Minister of Spain and we spent a lot of time on fisheries and I think it was a very good conversation. So that’s why I want to say reiterating well-known positions in lengthy statements will not serve. Please just leave your scripts outside the room and come in with open ears to listen to each other and then to exchange concrete ideas about how you could bridge your differences. This is the only way we can have an outcome by July.

“So those are the three specific points I wanted to make. Before I hand the floor back to Santiago, I would like to emphasize one more thing. Wherever I go and whoever I interact with, I recall the preamble to the WTO Agreement, and the mandate of these negotiations. People, jobs, sustainability, livelihoods — these are the words that jump out at me from the preamble every time. To me, our job is to protect the fish and to protect the many millions of fisher men and women who directly depend on the fish. These two are not mutually exclusive — protecting one does not necessarily compete with protecting the other. In fact, fishing sustainably makes socio-economic sense. If there are no more fish in the sea, then the source of food security and livelihood, that was so talked about in the Marrakesh preamble, of those who depend on the fish also will be gone. I say all of this to remind us, as we engage over these next few months, of why we are here, doing this particular work. If we present to Ministers a text that meets that overall objective, then we will have done our job. On the other hand, if the focus over the next few months is to find ways to exclude ourselves from these responsibilities, then we will not be able to deliver on our mandate. And that is not really an option. Ladies and gentlemen, it is not.

“With that, I would like to thank Santiago for inviting me to join you today. I would like to thank you and your delegates for the wonderful work that you are doing and for listening. I remain committed to reaching a meaningful outcome soon and I am sure that if we all put in the hard work needed, we will get there in July. I really want to end on this optimistic note. I believe we can do it. I just see light at the end of this tunnel. So let’s just push a little bit more. Thank you.

“I will leave you now and come back to you, and I wish you continued progress in the coming days. We’ll talk soon.”

Extraordinary lack of transparency for the public in the fisheries negotiations

In prior posts I have reviewed progress in the fisheries negotiations and the extraordinary lack of transparency in terms of proposals from parties and in the draft text and various revisions. See, e.g., December 16, 2020, The fisheries subsidies negotiations – U.S. comments from December 2 meeting add clarity to the inability to achieve an agreement and the lack of “like-mindedness” among Members, https://currentthoughtsontrade.com/2020/12/16/the-fisheries-subsidies-negotiations-u-s-comments-from-december-2-meeting-add-clarity-to-the-inability-to-achieve-an-agreement-and-the-lack-of-like-mindedness-among-members/; December 15, 2020, The fisheries subsidies negotiations – failure by WTO Members to deliver an agreement by the end of 2020, https://currentthoughtsontrade.com/2020/12/15/the-fisheries-subsidies-negotiations-failure-by-wto-members-to-deliver-an-agreement-by-the-end-of-2020/; November 5, 2020, Revision to draft fisheries subsidies text presented by Chair of the Negotiating Group on Rules at November 2 informal open-ended meeting, https://currentthoughtsontrade.com/2020/11/05/revision-to-draft-fisheries-subsidies-text-presented-by-chair-of-the-negotiating-group-on-rules-at-november-2-informal-open-ended-meeting/; June 29, 2020, Update on fisheries subsidies draft consolidated text from June 25, https://currentthoughtsontrade.com/2020/06/29/update-on-fisheries-subsidies-draft-consolidated-text-from-june-25/; June 27, 2020, Chair of Rules Negotiating Group releases draft consolidated fisheries subsidies text at informal meeting on June 25, https://currentthoughtsontrade.com/2020/06/27/chair-of-rules-negotiating-group-releases-draft-consolidated-fisheries-subsidies-text-at-informal-meeting-on-june-25/. While the draft texts have been circulated as room documents (and hence not released publicly), to date the drafts have been leaked by various sources, so over time one can find the draft texts if one spends the effort. However, my analysis of the retreat from transparency is troubling and is being replicated in many other areas at the WTO. Here is what I wrote in June 2020 in the June 27 post relevant to the lack of transparency:

“However, with the restrictions on travel in many parts of the world and with restrictions on in-person meetings at the WTO beginning in March of this year because of the efforts to limit the spread of COVID-19, there has been a lack of forward movement on the fisheries subsidies negotiations. Specifically, the 12th WTO Ministerial was postponed from June 2020 to an unspecified time in 2021, and WTO Members could not agree to conduct negotiations without face-to-face meetings. While this inability to negotiate affected all areas of WTO work and negotiations, it called into question whether the WTO Members would be able to deliver the one aspect of the UN Sustainable Development Goals that was in the WTO’s area of competence and expertise.

“Now that face-to-face meetings can occur at the WTO and as Members are gaining experience with virtual meetings, the Chair of the Negotiating Group on Rules (fisheries subsidies), Amb. Santiago Wills of Colombia, held an informal meeting of the heads of delegations and presented both a draft consolidated text and provided extensive introductory remarks. While there is a short press release from the WTO on the meeting, the two documents shared with Members are not publicly available as they were labeled as room documents, despite similar statements and draft text having routinely been released publicly both in the fisheries subsidies negotiations previously but also generally in all multilateral negotiations at the WTO over the last 25 years The press release is titled “Fisheries subsidies negotiations chair introduces draft consolidated text to WTO members,” is dated June 25 (date of the meeting) and can be found here, https://www.wto.org/english/news_e/news20_e/fish_25jun20_e.htm. The draft consolidated text is apparently six pages in length and is in a document coded RD/TN/RL126. The lengthy introductory remarks by the Chair are supposedly twelve pages in length and are in a document coded RD/TN/RL/126/Add.1 (Chair’s Introductory Remarks at HoD Meeting on June 25, 2020). The listing of some of the room documents in the Rules negotiating area that include the two documents from June 25, 2020 is embedded below.

RD-TN-RL-docs-part-1

“It is obviously excellent news that a new draft consolidated text has been finally circulated to Members and that the Chair is attempting to see if Members can fulfill the objective of reaching a meaningful agreement on fisheries subsidies by the end of 2020. One meeting is scheduled for July 21 (10 a.m., open-ended Negotiating Group on Rules (Fisheries Subsidies). Presumably other meetings will be scheduled for the remainder of the year. While the WTO is typically in recess during August, Members may decide to have some meetings at least on the topic of selecting a new Director-General and arguably could decide to pursue fisheries subsidies as well in August. If not, I would expect a fairly aggressive program of meetings on fisheries subsidies in the fall and into December to achieve an agreement if possible.

“The lack of public access to the draft text and the introductory remarks obviously limits the ability of many stakeholders to understand the level of ambition and the areas of concern that remain in the text. To show the departure from what I would describe as normal WTO procedures, I embed below three documents. The first two are parts of TN/RL/W/232 (the cover letter entitled “Working Document from the Chairman”) and Annex C dealing with Fisheries Subsidies (the Chair’s draft text, along with comments from Members). The third is JOB/RL/6 from 1 December 2016 (WTO document is dated 6 December) and is entitled “CHAIR’S REPORT TO THE INFORMAL MEETING OF HEADS OF DELEGATIONS ON THE RULES NEGOTIATIONS”. Obviously, the draft consolidated text in RD/TN/RL/126 is not substantively different in type of document than the chair’s draft text in TN/RL/W/232 (Annex C). Similarly, the introductory remarks to the HoD meeting on June 25 contained in RD/TN/RL/126/Add.1 would appear to be the same type of information as was contained in JOB/RL/6. The retreat from transparency is worrisome to members of the public and should be to WTO Members.”

There have been 192 documents submitted as room documents in the fisheries subsidies negotiations (the vast majority since 2019) under the RD/TN/RL/ series that deal with draft text, proposals by Members, background information, etc. There are other series designed to largely hide the workings of the WTO, such as JOB documents. JOB/RL/ has only 12 documents shown of which 10 are not available publicly. By contrast to the large volume of room documents in the fisheries negotiations, there are only 16 documents in the TN/RL series (all are publicly available) since the beginning of 2019 (proposals, minutes, etc.) as the negotiations have largely gone dark to the public.

This is a sharp departure from negotiations during the Doha Development Agenda where draft texts and most proposals were public when distributed to Members (Dispute Settlement was an outlier where the Chairman late in the process started to make text public).

The WTO Members and the Secretariat need a much more uniform approach to transparency, but there is little indication that Members care or that the Secretariat puts any focus on uniformity of approach. The WTO needs to restart releasing proposals and draft texts to the public. The current approach is unacceptable and should be opposed by those with an interest in the operation of the WTO.

Conclusion

While WTO Members profess to understand the critical need to achieve an agreement on fisheries subsidies this year, progress is painfully slow and the level of ambition unclear despite 20 years of effort. The push for a breakthrough by July is in keeping with what Members have suggested is needed and the WTO’s Director-General’s desire for deliverables by the 12th Ministerial Conference being held in late November 2021 in Geneva. The WTO has no track record of achieving breakthroughs in negotiations through virtual meetings (and last year had push back from some Members who did not want to conduct any negotiations that way). Moreover, the WTO has a long history of scheduling Ministerials to close negotiations when there has not been sufficient progress to reduce open issues to a manageable number. Both DG Okonjo-Iweala and Ambassador Wills understand the need to get the text close before the proposed virtual Ministerial. Time will tell whether the Members will come together and produce a meaningful agreement or simply continue to talk past each other.