Experts look beyond WTO setback as time runs out to roll back harmful fishing subsidies

19 December 2017

After MC11, UNCTAD Secretary-General says negotiations to tackle overfishing could move to new United Nations platforms.

Despite the inability of World Trade Organization (WTO) members to agree on special disciplines ending harmful fisheries subsidies at its Eleventh Ministerial Conference (MC11) in Buenos Aires, Argentina, a solution to this critical issue remains within reach, experts said this week.

All eyes are now turning to the Second Oceans Forum, to be held in Geneva 16-17 July 2018, where countries could explore new and fresh formulae for action that consider the conservation of fish stocks and value chains in sea products.

Negotiations remain alive with seven proposals from WTO members on the table providing grounds to go forward, despite the political setback in Buenos Aires.

"Urgent and diligent follow-up is necessary," UNCTAD Secretary-General Mukhisa Kituyi said. "We must find other platforms within the United Nations to continue the discussions to ensure a solution is found."

Governments must act within months, not years, experts said, because fishing subsidies directly contribute to overfishing while the share of fish stocks within biologically sustainable levels continues to decline precipitously. More than 85% of global fish stocks are now fully exploited or overexploited.

2020 vision

The impasse exposed in Buenos Aires was felt sharply because heads of state and government had already shown the will to act by adopting in 2015 the Sustainable Development Goals (SDGs), including a goal and specific targets to manage fisheries more sustainably and to prohibit certain forms of fisheries subsidies.

The international community said that, by 2020, there will be a clear agreement to:

  • Prohibit certain forms of fisheries subsidies which contribute to overcapacity and overfishing

  • Eliminate subsidies that contribute to illegal, unreported and unregulated fishing

  • Refrain from introducing new such subsidies

When this goal was set, countries also recognized that "appropriate and effective special and differential treatment for developing and least developed countries" would be given as "an integral part of the WTO fisheries subsidies negotiation".

"At the United Nations, heads of state and government had agreed to eliminate harmful fisheries subsidies by 2020 (Sustainable Development Goal 14, target 6)," Varda Group Director Rémi Parmentier said in a press release issued with non-governmental organization Bloom. "At the WTO, where decisions are legally binding, their trade ministers ignored this clear mandate."

While a ground-breaking deal failed to emerge, observers said that a close reading of the ministerial decision issued at the close of at the WTO meeting offered a way forward.

"As delegates to MC11 proved unable deliver even a partial, regulatory solution regarding a prohibition to certain forms of fish subsidies under the Doha, Hong Kong and SDG 14 (target 6) mandates, a minimal ministerial decision was adopted," said David Vivas Eugui, legal officer at the Trade, Environment, Climate Change and Sustainable Development Branch of UNCTAD.

WTO obligations

The decision makes explicit the will of WTO members "to continue to engage constructively in the fisheries subsidies negotiations, with a view to adopting, by the ministerial conference in 2019, an agreement on comprehensive and effective disciplines".

"The important aspect of this decision is that it sets the final deadline for an agreement on disciplines by 2019 - just before the 2020 time limit of goal 14, target 6 - and that it points to the objective of comprehensive (meaning widely encompassing) and effective (meaning potentially enforceable under the dispute settlement understanding of the WTO) disciplines," Mr. Vivas Eugui said.

"It also repeats almost verbatim the content of SDG 14, target 6, which makes evident the imperative that such a target has placed on WTO members," he added.

The decision calls on members to recommit to existing notification obligations under Article 25.3 of WTO Subsidies and Countervailing Duties Agreements - in other words, the obligation to notify the WTO of subsidies programmes in a precise manner, responding to a minimum set of information, so that the trade effects of measures in place and their operation can be understood.

"While this obligation is not new, good faith, accurate and truthful notifications can improve the understanding of the level and nature of current subsidization for fishing activities by WTO members," Mr. Vivas Eugui said.

Now with time - and fish - running out, experts said several solutions were being touted to move beyond the Buenos Aires stalemate.

Stormy seas

The first possibility sees the completion of a binding multilateral agreement by or before 2019. For that purpose, it would be necessary to convene a WTO "mini-ministerial" meeting by late 2018 and ahead of the next scheduled full ministerial meeting in 2019, specifically to address this issue.

The second possibility could be to fast-track a plurilateral agreement inside or outside the WTO.

A third possibility looks toward the negotiation of a treaty under the United Nations Convention on the Law of the Sea with the support of UNCTAD, the Food and Agriculture Organization of the United Nations (FAO), and UN Environment.

The impossibility of agreeing to phase out harmful fisheries subsidies in Buenos Aires was mainly attributed to a lack of engagement by key developed countries and to concerns from developing countries that other parts of the Doha Development Round, begun in 2001, had yet not been finalized. Under the principle "that nothing can be agreed until everything is agreed", a special agreement on fisheries could not proceed.

In addition, some observers indicated that certain large developing countries sought to carve out exceptions for their own fisheries which - since developing-country fisheries now make up 75% of global fisheries - would possibly undermine the effectiveness of a potential agreement.

WTO Director-General Roberto Azevedo told Reuters that WTO members needed to do some "real soul searching" about the way forward and realize they cannot get everything they want.

"Progress was going to require a leap in members' positions," Mr. Azevedo said at the event's closing ceremony on 13 December. "We didn't see that."

The Second Oceans Forum, organized by UNCTAD, FAO, UN Environment and The Commonwealth, will explore trade-related aspects of Sustainable Development Goal 14, which aims to conserve and sustainably use the oceans, seas and marine resources for sustainable development.