   
  
TN/RL/W/276/Rev.1/Add.1  
 
30 June  2021 
(21-5250) Page: 1/17 
Negotiating Group on Rules  Original: English  
 
 
FISHERIES SUBSIDIES  
REVISED DRAFT CONSOLIDATED CHAIR  TEXT  
CHAIR'S EXPLANATORY NOTE ACCOMPANYING TN/RL/W/276 /REV.1  
Addendum  
The attached document is the Chair's explanatory note accompanying the revised fisheries subsidies 
draft negotiating text circulated in TN/RL/W/276 /Rev.1 . The content of the explanatory note was 
delivered orally by the Chair when he presented the text at t he 30 June 2021 meeting of the 
Negotiating Group on Rules at the level of Heads of Delegation.  
_______________  
  TN/RL/W/276/Rev.1/Add.1  
 
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INTRODUCTION  
1. Good morning colleagues, thank you for joining us this morning. Let me also welcome 
Director -General Dr.  Ngozi. As you know, Dr.  Ngozi, in her capacity as the Chair of the Trade 
Negotiations Committee  (TNC) , has convened the TNC meeting at the Ministerial level on 15  July. 
As I indicated in my e -mail of 25  June, the purpose of today's meeting is for me to present the 
revised draft text in advance of that Ministerial TNC, and explain the revisions.  
2. Given that you would no doubt need some time to go over the revised text and my 
explanations, in accordance with our past practices I do not plan to open the floor for comments at  
this meeting.  
3. As you know, everything in the previous version of the text circulated on 11  May in document 
TN/RL/W/276, as well as in the earlier texts in RD/TN/RL/126 and its revisions was based on the 
collective work of the Negotiating Group on Rules ( NGR), including Members' proposals, discussions 
and the work of the facilitators. The sources and the rationale of the text were explained in detail in 
addenda to each draft text.  
4. The revised text in W/276/Rev.1 that I will share with you today is also a r eflection of our 
collective work. As you all know, we have been engaging almost non -stop since 11  May when the 
draft text in W/276 was circulated, including some weekends, early mornings and evenings, in 
various configurations.  
5. Let me first thank you for the commitment and flexibility you have shown in this phase of the 
work. With your support, we have discussed almost all of the main provisions of the draft text in the 
span of several weeks, and we were able to deepen our engagement on most of the stickin g points. 
This revised draft text is the reflection of this work, and I am sure that everything contained in here 
will be familiar to you.  
6. That said, as you also know, the purpose of this draft text is to serve as a basis for the 
Ministerial level meeting on 15  July. This means that it is meant to be a genuine reflection of the 
whole Group, one that is conducive to attracting convergence, and not necessarily a reflection of the 
positions of one side or another.  
7. Thus, the draft text is not a simple copy -and-paste compilation of everything we have 
discussed. Of course, what is not reflected in the draft text has not been disregarded or put aside. 
For example, we had fruitful discussions on several new proposals when we met a couple of weeks 
ago. These were on  capping from Brazil, on dispute settlement from Chinese Taipei, on Articles 1, 
3, 5 and 9 from Cameroon, on Article 5.1.1 from Morocco, on special and differential treatment 
(SDT) from the ACP and Africa Group, and on forced labour from the United States.  Since these 
proposals were discussed, the NGR also has received many more written proposals from India, Sri 
Lanka, and Chinese Taipei , and textual suggestions made during meetings, including a draft 
Ministerial Declaration, which were circulated in the aide memoire . Obviously, they cannot all be just 
copied and pasted into the revised text, and we have yet to complete our discussions or crystallize 
our thinking on these proposals and the issues they raise, so we will need to continue these 
discussions as w e move forward.  
8. This also brings me to the point that this revised text is without prejudice to any Member's 
positions or views. This means that , like all of the earlier texts, the entire document should be 
treated as being in square brackets; nothing bein g agreed until everything is. This of course applies 
to what is not reflected in the revised text as I noted just now, as well as where language and square 
brackets have been modified.  
9. Based on all of this, I would like to encourage all of you and your de legations to read and 
approach this text from a common perspective, that is from the perspective of finding in it a possible 
compromise.  TN/RL/W/276/Rev.1/Add.1  
 
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  ARTICLE  1 
Article  1.1 
10. With this, let me now turn to the revised text. Let me first walk you through Article  1 on scope.  
11. Article  1.1, which defines the scope of the disciplines, and footnotes 1 and 2 which refer to 
aquaculture and fisheries access agreements, are unchanged from  the language in W/276. Members 
have generally supported these texts.   
Article  1.2 
12. The text of Article  1.2 remains unchanged for a different reason, which is that Members' views 
on it remain apart. As you know, this provision would bring non -specific fuel subsidies into the scope 
of the disciplines. During the recent dedicated discussion on this topic, as well as in many of my 
consultations, it was clear that Members hold different views on this provision:  
• For some Members, the concept of specificity in the  SCM Agreement is related to economic 
concerns, and not to the sustainability objective of the fisheries subsidies negotiations. They 
argue that from the perspective of sustainability,  fuel subsidies are the most harmful subsidies 
and thus, whether specifi c or not, should be subject to the disciplines.  
• Some other Members agree that specificity may not be relevant for the sustainability objective, 
and consider that fuel subsidies should not be singled out in this regard.  
• At the same time, some other Member s see specificity as a relevant concept as it is part of 
the broader system of subsidies disciplines under the WTO and the SCM  Agreement. These 
Members do not find it appropriate to subject generally available fisheries subsidies to the 
disciplines.  
As a particular concern in this area, a number of Members pointed to fuel detaxation or fuel 
tax relief schemes, which in their view should not be subject to the disciplines on the basis 
that they are not subsidies or are not focused on the fisheries sector.  
13. Depending on which of these views they hold, some Members argue for removing Article 1.2 
entirely, and others advocate maintaining the text and removing the square brackets around it. 
Some others could accept the text in Article 1.2 so long as there was an e xception for fuel detaxation 
or fuel tax relief schemes.  
14. Given this spectrum of views and proposed solutions to reflect them, my assessment is that 
keeping Article 1.2 in the text in brackets without modification is the best way to reflect the opposing 
views as to deleting this provision entirely versus maintain ing it and removing the brackets. This is 
an important issue, so we will need to return to it at an appropriate moment.  
ARTICLE  2 
15. Article  2 sets out the definitions for five terms that apply throughout the disciplines. As 
explained earlier, the definition s of the first four terms in (a) through (d) for "fish", "fishing", "fishing 
related activities" and "vessel" were taken directly from the Agreement on Port State Measures  
(PSMA). The definition of the term "operator" in (e) was based on the facilitator's work.  
16. Members have generally supported these definitions in the previous texts and they remain 
unchanged in the current text.  
ARTICLE  3 
17. Turning now to Article  3, which contains disciplines on subsidies to IUU fishing. Thanks to your 
intensive work again, we have made some important progress on this pillar, which is reflected in a 
few but important changes to this Article. Let me first address these changes.  TN/RL/W/276/Rev.1/Add.1  
 
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  Footnote  3 
18. First, let me draw your attention to footnote  3 to the heading of Article  3. This footnot e defines 
the term "illegal, unreported and unregulated fishing" in reference to the International Plan of Action 
to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing (IPOA -IUU).  
19. In the previous text, this definition was qualified b y the phrase "where applicable, as 
implemented under national fisheries laws and regulations, or under relevant RFMO/A management 
and conservation rules and procedures" appearing at the end of the footnote, in square brackets. 
This bracketed text was delet ed in the revised draft.  
20. This is because, during our work so far, there has been a generalized view that we should 
focus only on the subsidies, not IUU fishing per se. As I see it, the deleted text was not consistent 
with this principle as it would have t he effect of directly bringing national fisheries laws and 
regulations – as well as the internal rules and procedures of RFMO/As – squarely into the disciplines. 
In effect, this text would have made it possible for the WTO to scrutinize Members' domestic f isheries 
regimes as such.  
21. Given that all Members agree that we should avoid this, the bracketed text has been deleted.  
"Operator"  
22. Next is the term "operator", which appeared in square brackets in the earlier text. While this 
term appears in various places  under Article  3, the crux of the question is whether the subsidy 
prohibition under the IUU fishing pillar should apply to subsidies to a vessel only, or also to subsidies 
to an operator.  
23. During our discussion on this issue, most Members supported includi ng the term "operator". 
Among other things, they noted that subsidies may not be granted to vessels per se, but to persons, 
such as the operators of the vessels. In addition, some supported the idea of including the "operator" 
in the disciplines on the bas is that limiting the prohibition to the vessels could lead to circumvention 
through creative business structures.  
24. On the other hand, for Members expressing discomfort with including the "operator", it was 
clear from our work that the main underlying concer n was that covering the operator might end up 
prohibiting subsidies to vessels of a given operator that are not engaged in IUU fishing.  
25. In response it was noted that this concern might not arise in the current structure of Article  3, 
in which the IUU fish ing determination is the trigger for the subsidy prohibition. In this view, the 
scope of the subsidy prohibition would depend on the IUU fishing determination; or in other words, 
if the IUU fishing determination is made against a vessel, it would be the su bsidies to that vessel 
which would be prohibited, whereas if the determination were in respect of an operator, the subsidies 
to the operator would be prohibited.  
26. What this work has clarified for me is that Members have this shared understanding of the 
scope of the subsidy prohibition being commensurate with the scope of the IUU fishing 
determination. So, to reflect this widely shared view, the square brackets around the term "operator" 
have been removed.  
27. To be clear, I do not mean to suggest that our work  is complete. Obviously, some Members 
have different views on whether the current text is enough to address the concern. But this is an 
issue that we can address in a text -based discussion, with the removal of the square brackets 
indicating our substantive  progress.  
Footnote  4 
28. Since the brackets around the term "operator" have been removed, so have the brackets 
around the definition of the term "operator" in footnote  4.  
29. In addition, some Members questioned whether the definition of the term "operator" in 
footnote  4 is related to the definition of the same term in Article  2(e). As you would recall, the source TN/RL/W/276/Rev.1/Add.1  
 
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  of both pieces of the definition of the term "operator" was the work of the facilitator. There , the two 
pieces were contained in a single definition of the term "operator" in the IUU fishing pillar. However, 
as the term "operator" is used in other Articles, the general definition was moved to Article  2(e), 
while only t he part specific to IUU fishing was maintained in footnote  4.  
30. As such, breaking out the definition of the term "operator" in Article  2(e) and footnote 4 was 
not meant to create two definitions of the term "operator". Instead, footnote 4 was meant to be a 
further elaboration of the term "operator" as contained in Article 2(e), in the specific context of IUU 
fishing. This relationship has been clarified in footnote  4, through a cross reference to the definition 
in Article  2(e). 
Article  3.8 
31. The last revision in Article  3 appears in Article  3.8. As you would recall, in the previous draft 
text this was a SDT provision, which provided a timebound exemption from the prohibition for 
subsidies for low income, resource -poor or livelihood fishing within 12 nautical mi les. 
32. During the dedicated discussion on this provision, as well as in our work on SDT more 
generally, some specific issues were raised on this text:  
• First, as a purely technical matter, some Members recalled that their territorial sea may be 
less than 12  nautical miles, and suggested saying "up to" 12  nautical miles, instead of "within" 
12 nautical miles. This is now reflected in the current text.  
• Second, many Members were concerned that the characteristics of fishing, such as low 
income, resource -poor or l ivelihood fishing could become a self -judging standard, and are 
thus too broad.  
However, it was also made clear that no one seeks to use this flexibility to intentionally 
subsidize IUU fishing. Instead, the characteristics, together with the geographical limit, were 
meant to identify a narrowly -defined sector consisting of subsistence, artisanal or small -scale 
fishers, which constitute the most vulnerable sector.  
In this regard, it was suggested that the three characteristics – low income, resource -poor 
and livelihood fishing – should apply cumulatively in order to capture this intention. This is 
now reflected in the current text, which refers to "low income, resource -poor and livelihood" 
fishing.  
• Finally, many Members, including many developing Members, o bjected to any flexibility for 
any Member or type of fishing in the IUU fishing pillar. Some developing Members, however, 
were concerned about implementation of the disciplines and how this would affect their 
subsistence, artisanal and small -scale fishers.   
Based on this discussion, one idea that was suggested was to convert this provision into a 
peace clause rather than an exemption. In this way, there would be a period of time during 
which disputes could not be brought against developing Members, includin g least-developed 
country (LDC) Members , with respect to their subsistence, artisanal and small -scale fishers. 
This is now reflected in the current text, which was formulated based on a similar peace clause 
provision in Article  13 of the Agreement on Agric ulture .  
Because there would be no exception, the corresponding notification requirement referred to 
in Article  8.4(a), which was linked to the previous formulation of an exception, has been 
removed.  
33. Having said all of this, the whole provision remains in square b rackets as further discussion is 
needed.  TN/RL/W/276/Rev.1/Add.1  
 
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  Other p rovisions  under Article  3 
34. Beyond these, other provisions of Article  3 remain unchanged. This does not mean that we 
have not worked on them . As you know, the Group had a number of dedicated discussions on vari ous 
other topics in one configuration or another, and I held many consultations in between as well. 
However, revisions were either not necessary, not ripe or not feasible for different reasons.  
35. For example, Members were generally comfortable with the curr ent text of Articles  3.1, 3.5, 
3.6 and 3.7 in substance. There were of course some suggestions and proposals to improve one part 
of the text or another , or to change the placement of certain provisions, but our discussion on each 
such suggestion or proposa l was quite limited. These suggestions have been very helpful and I took 
careful notes of them. I think they will be relevant when we review the draft text on a line -by-line 
basis.  
36. Article  3.2 is also generally supported by Members, but some Members have r aised a specific 
concern on a particular issue. Specifically, the concern is that an IUU fishing determination made by 
a flag State Member under subparagraph  (b) could inadvertently undermine an IUU fishing 
determination of a coastal Member. As explained i n W/276/Add.1, this concern was raised earlier 
and several changes were made to the text in order to address it. Some but not all Members consider 
these changes sufficient to alleviate this concern.  
37. Articles  3.3 and 3.4 remain unchanged as there are oppos ing views on what should be done 
with these provisions. On Articles  3.3(b) and (c), views remain divided between those who oppose 
any requirements on IUU fishing determinations made by competent authorities before triggering 
the subsidy prohibition, and th ose who want a more stringent standard than the "positive evidence" 
and "due process" currently reflected in the draft text. In addition, seeing these opposite views, 
some Members who had different preferred views now consider the current text to represent  the 
middle ground and a possible landing zone.  
38. A similar dynamic is evident in respect of Article  3.4, which sets the minimum duration of the 
subsidy prohibition. Some Members consider that the subsidizing Member should have the discretion 
not to apply t he prohibition at all if it finds that the IUU fishing infraction was minor. Other Members, 
however, see such discretion as creating a major loophole, and consider that an IUU fishing 
determination made by a competent authority should always trigger the su bsidy prohibition and for 
a minimum duration at least. In between, some Members think that the current text strikes the right 
balance by setting the minimum duration on the one hand, while allowing the subsidizing Member 
some room to consider proportionali ty over and beyond this period.  
ARTICLE  4 
Article 4.1  
39. Turning to Article 4.  
40. Article 4 contains disciplines on subsidies regarding overfished stocks. The first provision, 
Article  4.1, contains the main discipline of the overfished stocks pillar. This is a single -sentence, 
straightforward prohibition without conditionalities, and it  remains unchanged in the revised draft 
text.  
Article  4.2 
41. Article 4.2 provides that a fish stock is considered overfished if it is recognized as such by a 
coastal Member with jurisdiction over the area where the fishing is taking place, or by a relevant 
RFMO/A, based on the best scientific evidence available to it.  
42. Here, one technical change has been made in the revised text for consistency. This is the 
clarification that the referenced determinations by relevant RFMO/As are those "in areas and for 
species  under their competence". Identical language on RFMO/As' competence is already contained 
in Article 3.2 (c) and footnotes 9 and 10. Thus the change in Article  4.2 is simply to make all the 
references to the competence of RFMO/As consistent throughout the d raft text.  TN/RL/W/276/Rev.1/Add.1  
 
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  Article  4.3 
43. As you know, Article 4.3 is an exception from the prohibition, for subsidies that are 
implemented in a manner that promotes the rebuilding of stocks to a biologically sustainable level.  
44. Thus, in W/276, this exception is limited to s ubsidies that themselves are implemented to 
promote rebuilding of a stock to a biologically sustainable level. Many Members favour continuing to 
link this exception only to the nature of the subsidies themselves. Others, however, consider this 
approach to be overly restrictive, and have suggested expanding the exception to situations where 
there are other, non -subsidy, measures in place to promote rebuilding of the stock. This suggestion 
would mean reverting back to the previous formulation in the 126/Rev.2  text that referred to "other 
appropriate measures". To highlight that substantive discussion is still needed on this point, the 
bracketed language "and/or measures" has been inserted after the word "subsidies" on the second 
line.  
45. In this regard, I would remind Members that in the overcapacity and overfishing pillar, 
pursuant to Article 5.1.1, a Member would be able to provide a subsidy that otherwise would be 
prohibited under Article 5.1 if it could show that other (non -subsidy) measures are being 
impleme nted to maintain the stock or stocks at a biologically sustainable level. Thus reinserting a 
reference to measures in Article 4.3 would somewhat blur the distinction between Articles 4 and 5, 
which are aimed at different situations; with Article 4 addressi ng stocks that are in the worst and 
most vulnerable condition.  
46. Again, inserting the bracketed reference to measures is meant to provide a basis to continue 
discussing these issues and to find an acceptable middle ground.  
47. Finally, you may note some revisi ons in footnote 9 that defines the term "biologically 
sustainable level". This footnote is the same as the footnote 10, defining the same term in the 
overcapacity and overfishing pillar, and I will explain those changes in that context.  
Article  4.4 
48. Coming  now to Article 4.4, you will recall that this provision was identical to Article 3.8 in 
W/276, creating a two -year SDT exemption for low income, resource -poor or livelihood fishing. This 
text has been modified in the same way as Article  3.8, to become a p eace clause rather than an 
exemption, for the same reasons as in respect of Article 3.8.  
ARTICLE  5  
Article 5.1  
49. Now we come to Article 5, containing the disciplines on subsidies contributing to overcapacity 
and overfishing.  
50. As you all well know, the core disciplines in this pillar are based on the compromise, "hybrid" 
approach based on a list of presumptively prohibited subsidies qualified by sustainability -based 
elements .  
51. Article 5.1 contains the main prohibition in this pillar. Its chapeau contains a si mple, 
straightforward prohibition of all subsides contributing to overcapacity or overfishing, followed by an 
illustrative list of subsidies that presumptively contribute to overcapacity or overfishing. This drafting 
has not been changed in the revised dra ft text , although I do note that some Members have 
expressed concerns on this provision. For example, some continue to prefer moving the sustainability 
elements into the prohibition in Article 5.1, while other Members have reiterated their preference for 
a list of strictly prohibited subsidies, in respect of all or some of the subsidies listed under Article 
5.1. TN/RL/W/276/Rev.1/Add.1  
 
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  Article 5.1.1  
52. Moving to the qualifier of the provision. As you know, the prohibition in Article 5.1 is qualified 
by Article 5.1.1, which provides t hat a subsidy is not inconsistent with Article 5.1 if the subsidizing 
Member demonstrates that measures are implemented to maintain the fish stocks at a biologically 
sustainable level, which is defined in footnote 10.  
53. From our discussions and my consultat ions in the past weeks, it is clear that this provision 
remains one of the main areas of interest for many delegations. However, Members continue to have 
different views: some see it as too lenient, some others see it as too strict, and some think it is 
balanced even though it is not their preferred solution.  
54. However, based on our discussions and the linkages brought to my attention by some 
Members, any revisions to Article 5.1.1 at this point risk disturbing the balance of the entire text, as 
tweaking the  sustainability -based qualifier in the prohibition would have an impact on other elements 
in the text, particularly the SDT provision in Article 5.5. Hence, this provision remains unchanged.  
55. You will note, however, that footnotes 10 and 9, defining the "biologically sustainable level" 
of a stock in Articles 5 and 4 respectively, have been revised.  
56. As we have heard frequently in our discussions, one reason why some Members have seen 
Article 5. 1.1 as too strict is that in their view the definition in footnote 10 was too rigid or narrow, 
and might not cater for all situations, such as stock assessments that are not based on maximum 
sustainable yield  (MSY) . These could be, for example, stock asses sments for small -scale or multi -
species fisheries, or stock assessments that due to other socio -economic reasons  are not conducted 
using MSY. While it was never the intention of these footnotes to create a hierarchy or presumption 
in favour of MSY, some Me mbers nevertheless saw them in this light.  
57. To alleviate these concerns, footnotes 10 and 9 have been revised to clarify the absence of a 
presumptive preference for MSY.  
58. The insertion of the language "reference points such as" before the term "MSY" highli ghts that 
"MSY" is only one of the possible reference points that might be used to determine a biologically 
sustainable level. Furthermore, the term "alternative reference points" has been changed to "other 
reference points", to underline that the referenc e points based on different indicators are a distinct 
category of reference points, independent of the concept of MSY.  
59. The objective of these changes is to make clear that Members whose fisheries management 
systems are not MSY -based will be able to implem ent this prohibition, including its qualifier in Article 
5.1.1. I believe that this change can help to reduce gaps and increase convergence in this important 
area of the text.  
60. Finally, I do recall that some Members have expressed concerns over whether indi cators based 
on "traditional knowledge" would be captured by the term "other reference points". My 
understanding is, in short : yes, they would be. While we cannot possibly list all potential reference 
points or indicators in this footnote, I understand bas ed on the FAO's Code of Conduct for 
Responsible Fisheries  that traditional knowledge could be the basis for reference points for 
determining the biologically sustainable level, as the Code clearly recognizes the role that traditional 
knowledge can have in fisheries management. In particular, Article 6.4 of the Code, on General 
Principles, reads that "Conservation and management decisions for fisheries should be based on the 
best scientific evidence available, also taking into account traditional knowledge o f the resources 
and their habitat ."  
61. In closing on Article 5.1, I should note that very recently a number of ideas and suggestions 
were made in respect of Article 5.1.1 and footnote 10, and these generated productive discussions 
which may help us to move f orward as our work continues. The number and recent arrival of these 
ideas has meant that we have not yet fully discussed them so we will need to continue this work 
before we have clarity on what further adjustments to the provisions of Article 5.1 includi ng 
Article  5.1.1 and foo tnote 10 will help us to increase convergence.  TN/RL/W/276/Rev.1/Add.1  
 
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  Articles 5.2 and 5.3  
62. As you know, Articles 5.2 and 5.3 are intended to complement the main prohibition in Article 
5.1 on subsidies that contribute to overcapacity and overfishing. Spec ifically:  
• Article 5.2(a) is an additional prohibition on subsidies contingent upon, or tied to, fishing 
outside the subsidizing Member's jurisdiction;  
• Article 5.2(b) provides for an exception from this prohibition for the non -collection of 
government -to-government payments under access agreements, provided that the 
requirements in Article 5.1.1 are met; and  
• Article 5.3 is a prohibition on all subsidies to fishing in the high seas – that is, outside of any 
Member's jurisdiction and outside the competence of any RFMO /A. 
63. These provisions were discussed extensively in the last several weeks, and Members' views 
continue to diverge on these issues. On Articles 5.2(a) and 5.3, a number of Members support 
keeping both in the text, as -is, while for others the priority is on Arti cle 5.3. Other Members want 
either to delete both or to limit them to what in their view are the most harmful subsidies, such as 
fuel subsidies, whether specific or not. Given this wide divergence of views, I found no basis for 
proposing changes that would  increase convergence. We will need to continue discussing these 
provisions.  
64. This brings us to Article 5.2(b), an exemption from the prohibition in Article 5.2(a) for the 
non-collection of government -to-government payments under access agreements.  
65. While t he proponents of this text portray the current text of Article 5.2(b) as a narrow 
exception for a specific type of subsidy in this context, many other Members expressed negative 
views on this provision for different reasons:  
• Some consider it too extensive since it would exempt from the prohibition the majority of fuel 
subsidies;  
• Some consider it inconsistent with the underlying premise that subsidies that are contingent 
upon or tied to distant water fishing are harmful;  
• Some consider that the notion of sust ainability contained in this provision is relevant for 
Article  5.1 instead, and that a sustainability -related qualifier  – whether under access 
agreements or otherwise – is already provided for in Article 5.1.1; and  
• Some are of the view that fishing license s and quota allocations are intrinsic tools of fisheries 
management and thus should be excluded from all of the disciplines, not just from 
Article  5.2(a).  
66. To reflect the fact that numerous Members have proposed deleting Article 5.2(b) for various 
reasons,  square brackets have been placed around this provision.  In addition, as you know, the 
issue of fee collection or non -collection under access agreements is related also to the broader issue 
of fishing licenses and quota allocations that I just noted now. I n all, the brackets are meant to be 
a marker to note that we need to continue discussing all of these issues in order to find an acceptable 
landing zone.  
Article 5.4  
67. Concerning Article 5.4 on subsidies for a vessel not flying the flag of the subsidizing Member, 
this Article remains unchanged.  
68. While some Members consider this provision to be necessary, and have expressed concern s 
over the fact that it remains in square brackets, others reject the presumption underlying this 
proposed prohibition  and are pressing strongly for its deletion.  TN/RL/W/276/Rev.1/Add.1  
 
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  69. I am aware that there have been discussions between some concerned delegations. I also 
note that a proposal was recently received on this topic. I can only encourage this engagement 
between delegations to conti nue. 
Article 5.5  
70. Turning to Article 5.5, concerning the SDT in the overcapacity and overfishing pillar. This is 
by far the most commonly identified area of concern for many delegations and a number of Members 
consider the SDT provisions in Article 5 to be problematic. In particular, the text in ALT  1 has not 
attracted convergence, and that in ALT  2, while having a certain support, is considered imbalanced 
by a range of Members, for opposite reasons – some considering it too narrow and rigid and, at the 
opposite end of the spectrum, others considering it too broad and permissive.  
71. This divergence seems to reflect a fundamental difference in views on the purpose of SDT. 
Some Members see SDT as a means to achieve implementation of the overall sustainability mand ate, 
while others see it as a basis to be definitively shielded from the disciplines for developmental 
reasons.  
72. In this debate, it has become increasingly clear that the area of subsistence, artisanal and 
small -scale fisheries is a top priority for many de veloping Members and where most of the concerns 
lie. The concerns raised over the treatment of these fisheries in Article 5.5 ALT2 of W/276 focus on 
both the conditions for accessing the relevant SDT in Article  5.5(b) and its time -bound nature. A 
broad ran ge of developing Members have said that these conditions would not be feasible for them 
to meet in respect of these fisheries, that time would not resolve these issues, and that these 
fisheries being small, they and any subsidies to them would have a limit ed impact compared with 
subsidies to industrial fisheries. For these reasons, many developing Members have argued that 
subsidies to these types of fisheries should be given a permanent exemption from the disciplines.  
73. Over the past weeks, I have noticed th at the debate over subsistence, artisanal and small -
scale fisheries and the other SDT provisions pertaining to other fisheries, that is, industrial fisheries, 
have at times become blended together in a way that has made discussions hard to follow and 
imped ed progress. I also have detected an increased willingness on the part of non -demandeurs to 
consider more flexible treatment for subsistence, artisanal and small -scale fisheries than was 
contained in W/276. That said, concerns remain over the descriptive c haracteristics that we have 
been using to refer to these fisheries, namely as "low income, resource -poor or livelihood" fisheries. 
In particular, some Members consider these terms to be too loose to establish meaningful limits on 
the fisheries to which sub sidies potentially could be provided on the basis of these flexibilities.  
74. On the basis of all of this, I have made certain changes to Article  5.5(b) aimed at making it 
more flexible. My reading of the situation is that providing for more flexibility for t his fisheries sector 
will help us to make progress on the rest of the SDT provisions, where the discussion has not really 
moved.  
75. To be specific, time limited duration has been removed from Article 5.5(b). This would allow 
all kinds of subsidies, including  those listed in Article 5.1 to these types of fishing to be maintained 
indefinitely. As such, the language in the extension mechanism in Article 5.5(d) was modified to only 
refer to Article 5.5(c) and no longer to Article 5.5(b). To address the concern ov er the openness of 
the descriptive language, as in Articles 3.8 and  4.4, the phrase now refers to low income, resource -
poor and livelihood fishing, making these cumulative and not alternative. The 12 nautical mile limit 
has been retained, with the replacem ent of "within" by "up to". Thus, while the duration of the 
exemption is indefinite, the scope is intentionally narrow. There were no other changes to Article  5.5 
ALT 2 compared to what was in W/276.  
76. The changes to Article 5.5(b) are intended to see if, by  addressing a deep concern expressed 
by many developing Members about their artisanal fisheries sectors, this can help Members engage 
in a more convergence -oriented way on the rest of the text, including on the remaining SDT 
provisions.  TN/RL/W/276/Rev.1/Add.1  
 
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  ARTICLE  6 
77. Article 6 contains two paragraphs specific to LDC Members. As a purely technical point, square 
brackets around the title of the provision have been removed since only Article 6.1 is bracketed and 
Article 6.2 does not have brackets around it. No other changes have been made to this Article, 
acknowledging in any case that it needs further discussion.  
ARTICLE 7  
78. Article 7 deals with technical assistance and capacity building. I would recall that until now, 
Article 7 has contained text taken from a proposal and that th at text has not been discussed recently, 
nor has it changed at all since the first consolidated document in RD/TN/RL/126.  
79. Concerning the drafting suggestions that have been introduced in this Article, I would like to 
ask the DG, Dr. Ngozi, if she would lik e to explain this new language to you.  
80. [DG takes the floor  – See Annex I]  
81. Thank you, DG.  
ARTICLE  8 
82. Turning to Article  8 on notification and transparency  
83. During our work on notification and transparency in the past few weeks, as well as before 
that, Members  have highlighted the critical importance of transparency for the fisheries subsidies 
disciplines.  
84. Members generally support the idea that the notification and transparency requirements for 
the disciplines should be in addition to the existing rules under  the SCM Agreement. In the revised 
text, this has been further clarified by the insertion of the language "Without prejudice to Article 25 
of the SCM Agreement" at the beginning of Article 8.1.  
85. An issue that has been raised frequently and also is addressed in changes in the new text is 
the concern of many developing country members that the transparency and notification 
requirements in Article 8 are overly burdensome to them and that these Members might find it 
difficult to provide additional infor mation under Articles 8.1(a) and 8.1(b) as a part of the regular 
biennial notification cycle under Article 25 of the SCM Agreement.  
86. To respond to these concerns, the identical footnotes 16 and 17 attached to Article 8.1(a) and 
Article 8.1(b), respectively,  have been included to clarify that developing country Members, including 
LDC Members, may notify this additional information every four years, instead of every two years 
as is the practice under Article 25 of the SCM Agreement.  
87. Another change to Article 8  is the addition of new Article 8.5, which aims to ensure 
transparen cy of RFMO/As in the draft text. The language included has been suggested by several 
Members during our discussions on this provision. These Members have expressed concerns 
regarding trans parency, best practices, and activities and decisions of RFMO/As.  
88. The new suggested language provides that Members shall provide annual notifications of 
RFMO/As to which they are parties. The information to be notified for each would be:  
• The text of the l egal instrument instituting that RFMO/A;  
• The area and species under its competence;  
• The information on the status of the managed fish stocks;  
• A description of the conservation and management measures;  
• The regime governing the adoption of IUU fishing determinations; and  TN/RL/W/276/Rev.1/Add.1  
 
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  • The updated lists of vessels and/or operators that it has determined as having been engaged 
in IUU fishing.  
89. And finally, the text provides that the Secretariat to the Committee shall mai ntain a list of 
RFMO/As notified pursuant to Article 8.5.  
90. Of course, this provision is placed in square backets as it can benefit from further discussion.  
91. These are the only changes compared to Article 8 of W/276. The remaining provisions are the 
same as t hey were in that document.  
ARTICLE  9: INSTITUTIONAL ARRANGEMENTS  
92. Coming to Article 9, as you know, the need, as well as the specific text, for the institutional 
arrangements in this Article depend on whether the disciplines will be a standalone agreement or an 
annex to the SCM  Agreement. While this issue remains outstanding, the current text of this Article 
was developed on the working basis of the disciplines taking the form of a standalone agreement, 
and on this basis, we were able to engage on the subst ance of this text.  
93. Of course, this does not prejudge in any way our decision on the form of the disciplines, but 
our work was aimed at making progress on the substance so as to allow us to move quickly once 
that decision is made.  
94. Overall, I sensed that Me mbers were generally supportive of the current text in substance. Of 
course, Members had different views on one particular text or another. These include:  
• Whether Article  9.2, which requires Members to inform the relevant WTO body of the 
measures the Membe r has taken to implement the disciplines, and Article  9.3, which requires 
Members to inform their fisheries regime s, are adequate;  
• Whether the content of Articles  9.2 and/or 9.3 is already covered under the requirements 
under Articles  3.6 and 3.7; and  
• Whether the frequency of the biennial review of the notifications under Article  9.4 is 
appropriate.  
95. These are of course not an exhaustive list of all the comments we heard, and we will need to 
keep them in mind as we finalize this text once the form of the dis ciplines is decided.  
96. In addition, one concern that we heard from more than a few Members was on Article  9.5, 
which requires the relevant WTO body to maintain close contact with other relevant international 
organizations. Some Members found this formulatio n to be too open -ended and sought to further 
clarify the purpose of the cooperation envisaged under Article  9.5, similar to Article  12.3 of the 
SPS Agreement.  
97. To this end, one suggestion was aimed at using this provision to allow the relevant WTO body 
to engage in cooperation with the FAO and RFMO/As, such that their work that is relevant to the 
fisheries subsidies disciplines could be better understood. This suggestion has been incorporated in 
the revised text. However, while the idea of clarifying the pu rpose Article  9.5 had some support, we 
would need more specific discussion about the text that was added. As such, the added text is in 
square brackets.  
ARTICLE  10 
98. Article  10, which remains unchanged, provides that the provisions of Articles  XXII and XXIII  
of the GATT  1994 as elaborated and applied by the DSU, and Article  4 of the SCM  Agreement, shall 
apply to the disputes under the fisheries subsidies discipline.  
99. The specific text of the dispute settlement provision in Article  10 depends on whether the 
disciplines become a standalone agreement or an annex to the SCM  Agreement. However, this is TN/RL/W/276/Rev.1/Add.1  
 
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  also an important topic to many Members and we have had several dedicated sessions on it since 
last fall.  
100.  Throughout this work, there was a general convergence o n the idea that our point of departure 
is the dispute settlement procedures under the SCM  Agreement that apply to the prohibited subsidies 
in that Agreement. This was because these rules would apply by default if the fisheries subsidies 
disciplines were to bec ome an annex to the SCM  Agreement. But also, it was because many Members 
see that the rules for prohibited subsidies under the SCM  Agreement would be a good reference for 
the subsidies prohibited under the fisheries subsidies disciplines.  
101.  This is not to sa y that there was full convergence on the current text. As you will recall from 
our recent discussions on this topic, some Members consider that certain changes to the default 
dispute settlement rules could be considered. Just to name a few:  
• Some Members qu estioned whether the expedited procedures for Article  4 of the 
SCM Agreement would be appropriate in the fisheries subsidies context;  
• Some Members have suggested ideas on specific countermeasures for fisheries subsidies on 
the basis that "appropriate count ermeasures" in Article  4.10 of the SCM  Agreement is linked 
to economic , rather than sustainability , concerns;  
• Some Members would like to see the notion of "nullification and impairment", or non -violation 
claims and situations claims excluded from the appl ication of Article 10, because they do not 
find them to be relevant or useful in the fisheries subsidies context; and  
• Some Members want other specific rules such as for standard of review and panel's 
information seeking authority.  
102.  In the meantime, many Me mbers oppose some or all such changes because they find that 
existing dispute settlement rules are adequate and sufficient.  
103.  All of these ideas are very helpful and we should keep them in mind when we finalize the text 
once the form of the discipline is dec ided. However, despite having discussed all of these ideas on 
several occasions now, each is opposed by some and none has attracted wide support – which is 
why this text remains unchanged.  
ARTICLE  11 
104.  Turning now to the last Article, Article  11 on the fina l provisions. As explained before, this 
Article contains four paragraphs that do not belong readily to any of the other provisions, or that 
apply to some, but not all, of the substantive pillars.  
Article  11.1 
105.  Article 11.1 clarifies that nothing in the dis ciplines shall be construed or applied in a manner 
that will affect the rights of landlocked developing country (LLDC) Members. This text was introduced 
in 126/Rev.2 based on the proposal by the LLDC proponents in RD/T N/RL/130, and the text itself  
remains unchanged in the new text.  
106.  During our discussion of this text last week, many Members raised various questions about 
this provision, such as what rights are intended to be protected and whether the provision is needed 
at all. Some also suggested textual la nguage to modify or replace it. This is a discussion we need to 
have, and in order to indicate this, the text of Article  11.1 has been placed in square brackets.  
Article  11.2 
107.  Article  11.2 is a provision for a "special care" and "due restraint" requirement  when granting 
subsidies to fishing where the status of the stocks in question is unknown. This text remains 
unchanged from W/276 as Members are generally supportive of this text.  TN/RL/W/276/Rev.1/Add.1  
 
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  108.  I did, however, hear some ideas to amend the text. For example, some Members  wondered 
whether we need both "special care" and "due restraint", or whether either one will serve the 
purpose. Some Members did not like the reference to "stocks the status of which is unknown" and 
preferred "unassessed stocks". In addition, some Members  considered the term "shall" to be too 
strong and suggested reformulating it with the word "should ". 
109.  These suggestions could not be reflected in the text as only a limited number of Members 
commented on them, and so for now I did not find a sufficient leve l of support for any of the 
suggestions . That said, I of course took careful notes of all these comments as they will be valuable 
when we intensify our text -based work.  
Article  11.3 
110.  Article  11.3 is an exception for disaster relief. This text remains uncha nged from W/276, 
except for the addition of a footnote that was added to the term "disaster " appearing in the chapeau. 
This footnote provides that "For greater certainty, this provision does not apply to economic or 
financial crises ."  
111.  As you would recall,  before W/276, this text in /126 documents had "natural disaster" with 
the term "natural" in square brackets. However, in W/276, the qualifier "natural" was deleted 
because no one had yet provided a clear rationale for excluding certain man -made disaster 
scenarios, such as oil spills.  
112.  While this change was welcomed by many Members during our discussion of this text, some 
Members were concerned that leaving the term "disaster" without any elaboration could make this 
provision a loophole. In particular, they were concerned that an economi c or financial event could 
be characterized as a "disaster" under this Article.  
113.  This is of course not the intention, which was to allow exceptions where there is a physical 
disaster affecting the marine environment – such as natural disasters like hurrica nes and tsunami, 
and man -made disasters like oil spills. To clarify this, footnote  19 has been added to exclude events 
that are economic or financial in nature.  
Article  11.4 
114.  Finally, Article  11.4 is a provision that reflects Members' views that our fisheri es subsidies 
work here at the WTO, and anything that flows from that work, should not have any impact on issues 
involving territorial claims and delimitation of maritime boundaries. This text reflects the idea of two 
"firewalls" that has gained a level of support: subparagraph (a) is aimed at ensuring that the fisheries 
subsidies disciplines in the WTO, including results of dispute settlement, could not be used outside 
in other international fora; subparagraph (b) is aimed at ensuring that WTO panels addres sing claims 
under the fisheries subsidies disciplines not address any issues of territorial claims and delimitation 
of maritime boundaries.  
115.  This text reflects one change from the W/276 text, which is replacing the terms "territoriality" 
and "delimitation of maritime jurisdiction" with "territorial claims" and "delimitation of maritime 
boundaries" respectively. This is meant to be a purely technical change, to reflect the view that the 
terms "territoriality" and "maritime jurisdiction" are not recognized te rms.  
116.  Other than this, the text remains unchanged as it captures the common view that the issues 
concerning territorial claims or maritime boundaries should not be addressed by the WTO. However, 
given that this is understandably an extremely sensitive topi c, some Members continue to have 
strong views on their preferred approach es.  
• Some dislike any text on the issue on the basis that this principle already applies to all WTO 
Agreements, and that adding a specific reference in the fisheries subsidies discipl ines might 
raise questions in Agreements that do not have a similar provision. As an alternative, these 
Members suggest addressing this issue outside of the four corners of the disciplines , such as 
in a Ministerial Declaration.  TN/RL/W/276/Rev.1/Add.1  
 
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  • Some support m aking the termination of a claim or of an entire dispute under subparagraph 
(b) automatic when the issues of territorial claims or delimitation of maritime boundaries are 
asserted by a party, such that a panel does not even consider whether a claim would require 
it to address any issues of territoriality or delimitation of maritime jurisdiction; and  
• Some think that the first firewall in (a) is enough and that the a more specific firewall to the 
panel in (b) could be removed.  
117.  These are of course not all the comments I heard. For example, some Members want to move 
(b) to Article  10, seeing it as a dispute settlement provision, and some want to broaden the 
application of (b) to all proceedings envisaged in the WTO dispute settlement system in addition to 
the panel proce ss. We will of course keep these considerations in mind as we move forward.   
CONCLUSION  
118.  This brings me to the end of the revised text. Thank you for bearing with me, I know that was 
a lot of information. Shortly after this meeting, the revised draft text will be circulated to you with 
my explanation as an addendum, as has become our customary practice.  
119.  Usually this is when I give you an indication of next steps. However, we all know what those 
are – it is the 15  July Ministerial level meeting. As I report ed at last week's TNC meeting, this Friday 
the DG and I will be sending Ministers our specific questions for the meeting on 15  July. In the 
meantime, it would be an opportunity for you and your colleagues to help your Ministers become 
familiar with the dra ft text and the issues and discussion questions, so that we can have a meeting 
that is fruitful for all our Ministers.  
120.  And between now and 15 July I will continue to reach out to delegations in different 
configurations, again with a view to preparing the ground for that Ministerial -level meeting.  
121.  Also, it goes without saying that my door is always open and I would be delighted to discuss 
with you the revised draft text, the process, or any matter you may have in your mind.  
122.  Before closing, I would like to invite Dr.  Ngozi, to provide some closing remarks if you so wish.  
123.  [DG intervention  – see Annexe I ] 
124.  Thank you Dr.  Ngozi for your reflections.  
125.  With this, I look forward to seeing you  again  soon. Thanking the interpreters for their hard 
work today, I would no w like to close this meeting. The meeting is now closed.  
_______________  
  TN/RL/W/276/Rev.1/Add.1  
 
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ANNEX I  
STATEMENT FROM  THE DIRECTOR -GENERAL  
Introduction of changes to Article 7  
1. Thank you very much Santiago and good morning excellencies. It's a great opportunity to 
take part in the presentation of the new text, which is an important milestone on our way to the 
Ministerial meeting. And as Santiago said, it's been a tough few days w ith all the meetings and trying 
to find something more towards convergence.  
2. For now, I just wanted to give you a bit of background on the drafting suggestions that have 
been introduced in Article 7 on Technical Assistance and Capacity Building. At then at  the end of the 
meeting I will share of my thoughts about where we're going and what we need to do for the next 
few weeks so that we can make the most of the 15 July meeting.  
3. On Article 7 you will see that the changes are aimed at making more explicit the  mechanism 
through which we can assure that the necessary technical assistance and capacity building for 
implementation of the new disciplines will be provided to developing and least developed country 
Members. In particular, we now have specific language on the establishment of a WTO funding 
mechanism, in cooperation with other relevant international organizations such as the FAO and IFAD. 
As many of you are probably aware, for some time now I have been reaching out to Members about 
a funding mechanism to be run from the WTO. The purpose of the fund will be to coordinate and 
finance the provision of the TA that is needed to help developing and LDC Members adapt their 
domestic fisheries systems, so that these Members can both comply with the new rules and al so 
take full advantage of the available flexibilities in the disciplines . I've seen first -hand from even 
along the West African coast the lack of capacity to be able to take advantage of these flexibilities. 
The potential donors with whom I have spoken hav e expressed considerable interest, and I also 
have had very good discussions with the FAO and IFAD, which are active in the area of fisheries. 
Both of these organizations have given very positive indications of interest and willingness to work 
with and sup port WTO in this important endeavour. I think both are staff are engaged in trying to 
work out exactly what this might mean.  So again, the purpose of the suggested drafting changes is 
to put the TA provision into a more concrete form, based on what we are doing to set up this funding 
mechanism.  
4. The main reason for doing this is that I've listened to many least developed countries, many 
developing country members who have explained the difficulties they've had with past TA and 
capacity building pledges, whi ch in the end have turned out to be very difficult in practice and that 
has brought great skepticism every time we say we are doing TA and capacity building. So designing 
something different might actually work and help us achieve our objective.  
Closing r emarks  
5. Thanks Santiago. I am sharing a few remarks from my side on where we are today, and where 
we still have to go. And before that, let me say that I continue to have a strong sense of optimism 
that we will conclude these negotiations, notwithstanding t he differences that we see still need to 
be bridged. There is plenty of work to do, I admit that, but let me also say that this Negotiating 
Group has accomplished a lot. We are far, but we are close. And that is not a contradiction. I feel 
Members' shared sense of commitment and responsibility to this institution, not least through your 
sheer tenacity in continuing to engage in the really demanding programme of meetings that Santiago 
and all of us have been holding.  
6. Regarding this revised text, and the nat ure of the changes, I can only echo what the Chair 
has said. The text reflects his best judgement – after listening to each and every one of you, and 
with your often extremely different opinions - on changes that can help to build convergence. We 
have met,  virtually, every single day, at the end of the day, after the discussions, to go over where 
we are, and see what progress can be made. The history of these negotiations has shown time and 
time again that progress tends to come incrementally, and not throu gh big bangs. So while the 
changes may look modest perhaps, I share Santiago's view that they are a very useful attempt at TN/RL/W/276/Rev.1/Add.1  
 
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  pointing in the direction of more convergence, and that this text can be a good basis for the more 
detailed and really focused work t hat we will need to to do to conclude the negotiations. In this 
sense, the text should help Ministers to engage on 15 July in a way that will provide us the kind of 
push and political guidance that we need at this stage to be able to move towards conclusio n. 
7. With respect to what will happen between now and then, both Santiago and I will be reaching 
out and continuing the meetings and his door is open, ditto with myself trying to meet with different 
members in different configurations to listen carefully and  prepare the ground as much as possible 
for the 15 th of July and also to prepare the questions that we need to  send to ministers. As you 
know, the discussion questions accompanied by contextual elements will be circulated at the end of 
the week so it's no t much time. The aim of our activities will be to use these documents and the new 
text to try to clarify positions and identify as much common ground among Members as possible. I 
hope this would assist Ministers to engage substantively and constructively o n 15 July. Having their 
guidance and having them involved politically an this stage is extremely useful and I hope it will help 
to propel us so that we can use our time efficiently after the ministers' meeting to move forward and 
finalize the text.  
8. Remember the ambition and guidance for ministers of the APEC Group who themselves set 
the date of the end of July for us to conclude. I dare say there are many ministers, who in spite of 
the difficulties that have been spelled out to them, see the necessit y and importance of really pushing 
forward on this. This is a charge that has been given to this organization, WTO, by the leaders of 
the world who put up the Sustainable Development Goals, and the targets were supposed to reach. 
I don't think we should fo rget this. We should bear this in mind. This is a duty, and a charge, given 
to us that we have to take seriously. So over the next two weeks, I ask you to be prepared to 
continue to join meetings in different configurations as much as you possibly can. Som e of them 
might be with very short notice. You have been amazing in terms of your forbearance and fortitude. 
And all I can ask is that we continue this because I sense a change in mood and we should seize 
advantage of that mood to push towards concluding t hese negotiations. So thank you in advance. 
Let's keep our chins up and continue to roll up our sleeves.  
__________  