WTO members convened last week for the third cluster of meetings since the summer to advance discussions on new disciplines to curb harmful fisheries subsidies. In an attempt to capture some progress and further focus the negotiations, the Chair of the WTO negotiating group in charge of fisheries talks, Ambassador Wills of Colombia, introduced a revised version of the draft consolidated text he had initially circulated to WTO Members in July. The text, however, was not discussed in detail by negotiators.

Delegations also considered a range of pending issues to narrow down differences, including: the duration of a possible subsidy prohibition for actors engaged in illegal, unreported, and unregulated (IUU) fishing; unassessed stocks; dispute settlement and remedies; and special and differential treatment for developing countries. Gaps between WTO members’ positions, however, remain significant on a number of key topics.

A number of new proposals were also presented last week. These include a proposal from the Philippines on dispute settlement in cases where territoriality is disputed; a “discussion text” from Chinese Taipei on dispute settlement procedures; and a proposal from four landlocked developing countries (LLDCs) – Afghanistan, Mongolia, Nepal, and Paraguay – concerning transit transportation of fish and technical assistance. A new proposal by Brazil proposing quantitative limits to the total amounts of subsides WTO member would be allowed to disburse was discussed intersessionally between the two last meeting clusters.

While progress has been achieved in negotiations in recent months, delegates and observers alike warn that clinching a deal by the talks’ 2020 deadline enshrined in SDG target 14.6 will require a quick and significant intensification of negotiations. Last week, a group of non-governmental organizations (NGOs) launched a global campaign titled, ‘Stop Funding Overfishing,’ to support the conclusion of a meaningful WTO agreement by the end of the year. The campaign’s policy statement, which has been signed by 169 organizations from around the world, including leading environmental NGOs, such as WWF, Greenpeace, Oceana, and the International Union for the Conservation of Nature (IUCN), calls on governments around the world to “fulfil their commitment to curb the public money that supports overfishing and degrades our ocean.”

The last meeting cluster of 2020 is planned for the week starting on 30 November.

A Step Forward

The revised draft consolidated text presented last week updates the first version of the draft consolidated text presented by the negotiations’ Chair on 25 June 2020. All WTO members accepted this text as a basis for further discussion, a step that was widely perceived as a significant sign of progress. For the first time in more than a decade, negotiators are focusing on one single negotiating document and proposing amendments to it based on common concepts.

Most key delegations have also reportedly started to think in terms of possible options for compromise and flexibilities. While this has not led to tangible headway in terms of substance yet, this change of dynamics is perceived as a necessary step towards concluding a deal.

The revised draft consolidated text presented by the Chair last week is an attempt to move in that direction. It contains a number of revisions of varying degrees of importance as well as a number of additions, in particular to replace some of the placeholders that were included in the first version of the text.

“I am confident that all delegations will find things to like in the changes that I am proposing, and that this revision thus will represent a step forward in the evolution of our work toward that full consensus,” the Chair said when introducing the document, according to the WTO Secretariat.

What’s in the Revised Draft Consolidated Text?

In essence, WTO negotiators are currently considering new subsidy disciplines in three substantive areas: (1) subsides to IUU fishing; (2) subsidies to the fishing of stocks that are already in an overfished condition; and (3) subsidies that contribute to overfishing and overcapacity more broadly.

No major changes were introduced in the new text regarding the rules related to IUU fishing and overfished stocks. In the case of IUU fishing, the most notable revision is simplification of the language that describes the conditions a determination of IUU fishing would have to meet in order to trigger a prohibition to subsidise a vessel or operator. The revised text states that an IUU finding would need to be based on positive evidence and follow due process, without specifying the steps required.

The most significant modification concerns the possible qualitative prohibition of subsidies that contribute to overfishing and overcapacity. The previous version of the text stated that subsidies that reduce the operating costs and capital costs of fishing would be prohibited in specific situations where fishing capacity or effort is excessive. The revised text simply lists a number of subsidy types that would be prohibited, including subsidies for fuel, boat construction and modernization, or price support.

This simplification increases the potential reach of the prohibition, but is closely linked to another change made to an exception to this rule. To benefit from this revised exception and continue to provide subsidies, WTO members would need to show that they implement measures to maintain relevant stocks at sustainable levels. The revised exception drops the requirement that such fisheries management measures be effective, meaning that it would likely be easier for members to invoke the exception to continue to subsidize fishing.

In order to clarify which marine species the proposed agreement would apply to, the revised text also introduces a definition of “fish,” which, like other key definitions, has been taken from the Food and Agriculture Organization of the UN (FAO) Agreement on Port State Measures. This constitutes an attempt by the Chair to move forward on an issue some members feel required a disproportionate amount of time during the previous meeting cluster in October.

The Chair also proposed new text to replace three placeholders relating to: transparency and notification requirements, with specific information to be notified still to be defined; institutional arrangements; and dispute settlement.

Finally, the revised Chair’s text includes a new exception for subsidies for disaster relief – a general idea around which there seemed to be convergence during the October meeting cluster – under certain conditions.

Quick Intensification Needed to Meet 2020 Deadline

Despite positive signs in the dynamics of fisheries talks in recent months, significant efforts will be needed from delegations to overcome their differences on various parts of the disciplines. Recent work by IISD highlights that a number of important decisions will need to be made by WTO members in order to successfully reach an agreement.

One of the key questions for negotiators relates to the issue of special and differential treatment (S&D) for developing countries, a notoriously sensitive topic in the context of WTO negotiations. The topic is underlined in the negotiations’ mandate and in SDG target 14.6, which specifies that “appropriate and effective special and differential treatment for developing and least developed countries should be an integral part of the World Trade Organization fisheries subsidies negotiation.”

Last week’s cluster of meetings highlighted the divergence of views on this topic. Ambassador Didier Chambovey of Switzerland, recently appointed “Friend of the Chair” to facilitate S&D discussions, said members’ positions remain “quite far apart.”

While some members would like S&D provisions to exempt developing countries from parts of the main subsidy prohibitions, others think that new disciplines should instead provide only for transition periods and technical assistance for implementation. Ambassador Chambovey called on delegations to be pragmatic, creative, and flexible to find acceptable solutions that could gather consensus.

With only weeks before the start of the last meeting cluster on fisheries subsidies in 2020, S&D is only one of the numerous questions still outstanding in WTO fisheries talks. To be able to clinch a deal by the 2020 deadline, WTO members will need to intensify efforts in the coming weeks and to demonstrate they have the political will to reach compromise on these various issues.

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This article was written by Tristan Irschlinger, Policy Advisor, Fisheries Subsidies, IISD.