On November 8, 2021, a revised draft text and explanatory note on the WTO fisheries subsidies negotiations was released by the Chair of the talks, Ambassador Santiago Wills of Colombia. Some changes were simply editorial, others substantive, and some adjustments reflected areas for which more discussion was still needed. Taken as a whole, the updated fisheries text presents a fine balance of compromises, and could get WTO Members closer to finalizing the deal. While there could be significant movement over the next two weeks that could tweak the text further, there is one issue worth highlighting now, particularly as it relates to US concerns—forced labor.
The United States made a proposal in May 2021 to include provisions on forced labor. According to the press release from USTR:
The proposal urges WTO Members to help address this global problem in the ongoing negotiations to curb harmful subsidies to fishing activities that may be associated with the use of forced labor, such as illegal, unreported, and unregulated (IUU) fishing….
The U.S. proposal also calls for WTO Members’ explicit recognition of the forced labor problem and the need to address it, and proposes additional transparency with respect to those vessels or operators that use forced labor.
Some Members considered the proposal to come late in the negotiating process, but with a change in administration in the United States, such an intervention was entirely possible. While the US proposal did not make it into the last versionof the draft text that was released in June 30, 2021, due to the fact that there was little time to substantively discuss it, elements of that proposal now appear in the latest draft.
For those of you who are acquainted with my research on the WTO committees, you have likely guessed that the first provisions I would jump to are those on notification and transparency, currently found in Article 8 of the draft fisheries text. Article 8.2 now includes a transparency requirement for Members to submit notifications of:
(b) [any vessels and operators for which the Member has information that reasonably indicated the use of forced labour, along with relevant information to the extent possible; …]
The Chair’s explanatory note suggests that this is still an issue up for consideration given the “different views” of Members on its inclusion. As Simon has noted earlier, much of the differences reflects disagreement between the United States and China, although other Members certainly have their own opinions on the matter. But this is not an issue that can’t be overcome, especially on transparency. The removal of brackets on Article 8.1 (b) around “to the extent possible” and its repetition in 8.2(b) reflect, in my view, a balance of understanding that this transparency requirement is no more onerous than other notification requirements, and in fact, recognizes the particular challenge of monitoring and notification in the area of fisheries specifically.
Another change to the text that may have useful flow-on effects for addressing forced labor is Article 3.1, which now includes, in brackets, the US proposal:
3.1 No Member shall grant or maintain any subsidy to a vessel or operator4 engaged in illegal, unreported and unregulated (IUU) fishing [or fishing related activities in support of such fishing].
As the Chair’s explanatory note details, some Members are opposed to this change because “they said it would be incompatible with the mandate or with the current structure of Article 3 which is based on IUU fishing determinations” but that other Members see this as bringing “Article 3.1 into line with the scope of disciplines in Article 1.1, as well as with other disciplines that apply to both fishing and fishing related activities.” Reading through it, I could see a case to be made for both arguments, but the latter appears to be stronger given that language in Article 1.1 “has been generally acceptable to the Members thus far,” according to the Chair.
The addition to Article 3.1 is useful in that it ensures that vessels that support IUU fishing are also captured in the subsidy prohibition. These could be vessels that supply fuel, crew, provisions to IUU vessels and those that may transship the catch of IUU vessels. As those familiar with RFMOs have explained it to me, this is similar to how RFMOs seek to control IUU fishing, and would therefore be consistent with existing approaches. Of particular consequence may be those vessels that supply crew to fishing vessels, where the crew may be victims of forced labor. We do know that vessels and operators engaged in IUU fishing tend to be more likely to have poor labor standards and also engage in forced labor practices. So while the addition to the text does not directly relate to forced labor, it may still provide important language to help address the issue nevertheless.
If these changes stay in the final deal, this does look to be enough to address US concerns over forced labor in fisheries. Beyond this, there really does not seem to be a need to include additional language, such as a chapeau to Article 3 as detailed in the US proposal, which reads:
Members recognize that the use of forced labor on fishing vessels is often associated with IUU fishing, and therefore that effective disciplines on subsidies to vessels and operators engaged in IUU fishing or fishing related activities in support of such fishing can contribute to Members’ efforts to eradicate forced labor on fishing vessels.
The inclusion and revision of the above two provisions (Articles 8.2(b) and 3.1) is enough to suggest that Members recognize forced labor on fishing vessels as an issue that should be addressed, and any additional language would not likely advance efforts to tackle this problem, or enhance the instruments already offered up in the current draft text. It also risks abandoning the real achievement that could be secured with the current draft. Including language in the preamble on forced labor is equally not necessary, and risks elevating perceptions of imbalance that will make it difficult to conclude the deal. Preambular language is also not required to address disagreements over the mandate, described in the Chair’s note at para. 129 in reference to Article 8.2(b) that “some other Members have expressed opposition on the basis that this issue is outside of the WTO’s competence.”
The US has raised important concerns regarding forced labor, and the fisheries negotiations provide an opportunity to generate an ongoing dialogue on this topic through committee work. As Erik Wijkström has observed in the context of the TBT Committee, this “regular work” can help develop “consensual understandings” and offer a forum for Members to share best practices and raise concerns about actions in an effort to resolve disputes before they arise. The transparency provision that now appears in the draft text could go a long way to embedding discussions on trade-related labor issues at the WTO in the long-run. It also provides an opportunity for WTO Members to submit counternotifications where they may be concerned about the forced labor practices of another Member.
It’s important to keep in mind that this issue is but one of many components that will be part of concluding the fisheries talks. The text must be approached holistically to comprehend the full balance of objectives to be achieved. On special and differential treatment, for instance, there are critical interlinkages that would impact the level of ambition the agreement can achieve (I have a lot more to say on this point, but will save it for more detailed observations I will share later this month). That said, the current draft brings the fisheries deal within reach. But we could risk getting hung up on the smaller points of disagreement—if the United States pushes for more references on forced labor that are not required— and lose sight of the broader goals that can be achieved.
