Additional Provisions ON FISHERIES SUBSIDIES

draft text

Explanatory note from the chair

Addendum

Dear colleagues,

Today, under my responsibility as Chair of the Negotiating Group on Rules, I am circulating a revised draft of the Additional Provisions on Fisheries Subsidies in document _TN/RL/W/279 (document 279). This text is an amended version of document _TN/RL/W/278 (document 278), which was based on the document informally circulated by Minister Facilitator H.E. Martin Eyjólfsson at MC13 in Abu Dhabi.

I recall the strong encouragement from Members expressed publicly in the two General Council meetings held since MC13 and in the vast majority of my consultations with Members to attempt to bring the fisheries subsidies negotiations to a conclusion at the July General Council. Furthermore, you will recall that in my video transparency report last Friday, 5 July, I indicated my intention to circulate as a Chair's text a new version of document 278, considering amongst other things certain changes that appear to enjoy widespread support.

In my video message, I identified most of the changes that I anticipated introducing in the new draft. I also indicated that before circulating a new text and further to my earlier consultations with Members, I intended to engage with a range of Members regarding the transition periods – the "X"s – in Articles B.1 and B.3 in document 278.

To this end, on 9 July I held two small group consultations, on the transition periods in Articles B.1 and B.3, respectively. The delegations of Australia, Brazil, Canada, Chile, the European Union, India, Indonesia, Japan, Morocco, the United Kingdom, and the United States were invited to the Article B.3 consultations. The delegations of Bangladesh, Canada, Djibouti, New Zealand, Senegal, and the United States were invited to the Article B.1 consultations. I asked these Members to meet with me because they represent a wide divergence of views on these topics. Although we did not come up with a common approach on the numbers in either meeting, both were very helpful in elucidating the underlying concerns behind some of the negotiating positions.

After carefully considering all of the above, I am now sending you a revised version of the Additional Provisions on Fisheries Subsidies in document 279. Let me stress that this is a Chair's text. Individual elements have different levels of support from Members without that being indicated in the text. There is only one highlighted provision, namely Article C.2(a), and one empty bracket in footnote 25, which are still the subject of active engagement between Members, and which will require further action before the final conclusion.

In document 279, the following specific changes have been made compared to document 278:

a)_        In footnote 6 to Article A.1.1(b)(ii), the threshold for a Member to be considered as significantly engaged in far distant water fishing has been increased from 2 to 4 per cent. This change is essentially technical, as it has been introduced to ensure that the operation of this provision captures the intended Members and does not cause unintended consequences;  

b)_        In Article A.1.1(b)(ii) and footnote 8, the term "territorial sea" has been replaced with the term "coast" for greater clarity. Consequently, the second sentence of footnote 8 in document 278 has become redundant and has been deleted;

c)_         In Article B.1, for the number of years of transition period for Members graduating from the LDC category, the "X" has been replaced with the number "four". This is a proposal from me as your Chair while recognizing that strong and divergent negotiating positions remain on this issue. In addition, the second sentence of Article B.1 has been modified to reflect a clarification provided to me by the LDC Group as to the steps in the LDC graduation process at the United Nations;

d)_        In Article B.3, for the number of years of transition period, the "X" has been replaced with the number "10". As above, this is a proposal from me as your Chair while recognizing that strong and divergent negotiating positions remain on this issue; 

e)_        In Article B.5, the reference to "Developing country Members with competent fisheries management capabilities" has been modified to refer to "Subsidizing developing country Members", recognizing broad support for such a change expressed by many Members during my consultations;

f)_         In footnote 23 of Article B.4, the term "significantly commercial" has been replaced with the term "industrialised", recognizing broad support for such a change expressed by many Members during my consultations;

g)_        Article C.2(b)(iii) in document 278, requiring the notification, to the extent possible, of the full text of foreign access agreements or arrangements, has been deleted, acknowledging the lack of convergence for retaining or further developing this provision, and recognizing broad support for such a change expressed by many Members during my consultations;

h)_        Article C.3 in document 278, on transparency in respect of non-specific fuel subsidies, has been deleted, acknowledging the lack of convergence for retaining or further developing this provision, and recognizing broad support for such a change expressed by many Members during my consultations;

i)_          In the second sentence of former Article C.4, now Article C.3, regarding the timeline for the first notification of the annual aggregate level of fisheries subsidies, "120 days" has been changed to "240 days" to reduce the burden of notification as requested by many Members, while still preserving sufficient time for the Secretariat to circulate the list referred to in former Article C.5, now Article C.4;

j)_         Article C.6 in document 278, linking notifications under the SCM Agreement and the AFS to the flexibilities in Article A.1.1 and Article B.4, has been deleted, recognizing broad support for such a change expressed by many Members during my consultations; and

k)_        in the penultimate sentence of Article D.1(a), the phrase "shall recommend" was changed to "may recommend", recognizing broad support for such a change expressed by many Members during my consultations.

I acknowledge that I have been approached by some Members with proposals and suggestions not reflected in document 279. In some cases, these would entail substantial modifications going beyond the scope of this revision being a Chair's text, while in other cases they might rather be looked at in the context of a necessary final quality control before conclusion.

As I explained in my consultations and in my video message, circulating the text in document 279 now preserves the opportunity to inscribe it on the agenda of the July meeting of the General Council. If inscribed on the agenda, Members will have to continue to engage to assess whether they can join consensus on the text as it is or potentially with some further adjustments.

Let me emphasize furthermore that the possible inclusion on the agenda of the General Council should not be construed as implying consensus on the text. To the contrary, in that case I anticipate that in the period between now and 22 July we will need to engage in an intensive, continuous negotiating process in a variety of configurations, to consider whether we can find consensus to adopt the Additional Provisions on Fisheries Subsidies. Central to such engagement would be assessing whether some further adjustments to the text could increase the level of convergence. If needed, written revisions could be introduced and circulated to Members up to 12 hours before the commencement of the General Council meeting on 22 July, and in addition, final oral revisions could be made during the meeting if necessary.

I urge Members to consider document 279 holistically – in terms of its effects - to see whether the Additional Provisions as a whole can address your most important concerns, even if their structure and formulation may differ from your preferred drafting. The meeting of the Trade Negotiations Committee on 15 July should assist Members in that process of reflection and assessment.

In addition to the revised Additional Provisions contained in document 279, I have today also circulated two draft General Council decisions in documents _TN/RL/W/280 (document 280) and _TN/RL/W/281 (document 281). These documents are based on the drafts that the Minister Facilitator informally circulated to Members in the morning of 1 March at MC13.

Document 280 contains a draft General Council decision to adopt a Protocol amending the WTO Agreement by inserting the Additional Provisions on Fisheries Subsidies into Annex 1A of the Marrakesh Agreement. Apart from reformulation as a General Council decision, this is the same text as informally distributed at MC13.

Document 281 contains a draft General Council decision encouraging Members to notify the annual aggregate level of fisheries subsidies referred to in Article C.3 in document 279 as soon as possible after the entry into force of the 2022 Protocol (the Agreement on Fisheries Subsidies) and in any case no later than in accordance with the deadline set in Article C.3. This draft decision also encourages the use of the WTO Fisheries Funding Mechanism to support developing country and LDC Members in implementing these obligations. I have made some adjustments in document 281 compared to the informal draft distributed by the Minister Facilitator at MC13. This draft decision has not been the subject of active engagement by Members and would require special attention before final decision making.

Finally, in parallel with your substantive evaluation of the revised draft text, I invite all Members to review the text in any or all of our three working languages from a technical and linguistic perspective – what I call quality control. I myself will be conducting the same kind of review at the same time. Any suggestions for technical or linguistic corrections or clarifications should be shared with the Secretariat by close of business on 19 July so that they could be considered in time for any written revision of the text before potential adoption.

Ambassador Einar Gunnarsson

Chair of the Negotiating Group on Rules