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16 December 20 20 
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Negotiating Group on Rules   
 
 
NEGOTIATING GROUP ON RULES  
FISHERIES SUBSIDIES  
REPORT BY THE CHAIR , H.E. MR SANTIAGO WILLS  TO 
THE TRADE NEGOTIATIONS COMMITTEE  
14 December 20 20 
INTRODUCTION  
1. I would like to begin this report by  expressing my hope that  all are staying well and healthy in 
these difficult times.  
2. As we are coming to the end of the year, I wish to provide a status report on, and to share a 
few thoughts and reflections about, the fisheries subsidies negotiations.  
3. By way of introduction, I can only s ay that what I anticipated for 2020 when I became Chair of 
the Negotiating Group on Rules a year ago, and the 2020 we have just lived through, have almost 
nothing in common! In short, I had planned for a very intensive schedule of technical and HOD 
meeting s, and a possible senior officials meeting or two, with substantial involvement of the DG 
along the way, all culminating in adoption by Ministers of a set of new fisheries subsidies disciplines, 
in June, in Nur Sultan. And I was confident that with the pla nned work programme, which would 
build on the very solid work of my predecessor and of the facilitators, a successful outcome in June 
was well within reach.  
4. While an unfortunate confluence of events made that impossible, we nevertheless did our best 
to keep up a strong pace of work and indeed we made a tremendous amount of progress in spite of 
all of the challenges. And for this the credit goes to all the Members for maintaining, in very difficult 
circumstances, a high level of commitment and determination  to bring the negotiations to a 
successful outcome this year. While unfortunately it is now clear that we simply cannot make up the 
time we lost to the pandemic and reach that goal, we are closer than ever and now need to capture 
the progress we have made,  and focus with even greater attention on finding bridging, compromise 
solutions on the issues where divisions remain.  
5. Here, I want to convey to all delegations how much I appreciate the constructive spirit in which 
you have been engaging, including in par ticular since the COVID -19 pandemic disrupted our lives. 
I admit that the intensive pace that we have maintained since June has been tiring, but the opposite 
would have been much worse, and all of you rose to the challenge.  
6. This consistent positive engage ment by delegations is what has allowed the real, substantive 
progress that we have made under these unprecedented circumstances. I am confident that this will 
continue, and will lead to the technical and political decisions necessary to bring this negotia tion to 
a successful conclusion in line with our mandate.  
WORK SINCE MY ELECTION AS CHAIR OF THE NEGOTIATING GROUP  
November 2019 to March 2020  
7. Members may remember that when I took this role in November last year, the negotiations had 
been inactive for several months. When the previous Chair left Geneva, the foundations had been TN/RL/33  
 
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  laid for a productive second semester of work, with the issuance of facilita tors' reports capturing 
state of play of the negotiations, and a solid process in place.  
8. Unexpectedly, it was only in November that Members agreed on a new Chair, and thus several 
months were lost that could have been spent in actual negotiations. During t he interval, the 
facilitators and some Members convened and took part in a range of activities, and all of this was 
useful work, although necessarily limited in scope and potential to generate concrete progress.  
9. Therefore, one of the first things I did up on assuming my new role in November was to ask the 
facilitators to update their June reports to reflect progress in their work since then. I also developed 
an intensive work programme from January to June 2020 with clusters of meetings and the promise 
of intersessional work, with the view of concluding the work for final decision by Ministers at MC12 
in Nur Sultan.  
10. With that objective in mind, work in 2020 resumed in January. A number of proposals were 
submitted by different delegations in the first few mo nths that concentrated on overcapacity and 
overfishing, and on special and differential treatment. Based on suggestions from a number of 
meetings with Heads of Delegation, including a meeting that the Director -General and I held on 
6 March, I began work on  a single consolidated document to serve as a basis for further work. To 
start this process, I prepared and distributed on 9 March a suggested text , based on elements from 
Members' proposals and the facilitator's work,  on the prohibition element of the dis ciplines on 
overfishing and overcapacity.  
March to July 2020  
11. However, just as the Director -General and I were ready to start an intensive series of HOD -level 
meetings for the final stretch before MC12, the measures needed to address the COVID -19 pandemic 
intervened. The restrictions on travel and public gatherings meant that meetings that were supposed 
to take place starting on 11 March had to be cancelled, and on 12 March it was announced that 
holding MC12 in June was no longer feasible. An attempt to hol d a virtual meeting of the NGR on 
20 March also was cancelled as there simply was not the time to sort out the logistical and technical 
issues involved.  
12. Nevertheless, despite these problems, work continued, on the basis of a written procedure to 
discuss ne w proposals, which at the time was the only means available for our work. While we did 
make progress, the procedures were both slow and cumbersome.  
13. Furthermore, at that time many of us had problems using the wide range of virtual platforms 
that began to b e used to host remote meetings. While we are now all veterans, at the time this felt 
completely alien, and the adaptation process was an additional element limiting our ability to meet, 
particularly in plenary meetings.  
14. In addition, addressing the various  crises provoked by the pandemic was by far the top priority 
of all governments, such that the possibility for engagement and consultations with capitals was just 
not there. Therefore, after a written exchange of views on two proposals I reluctantly sugges ted on 
7 May that we take a short pause while waiting for restrictions to ease and for technical solutions to 
improve remote participation.  
15. Then, that same month, on 14 May, the Director -General announced that he would be leaving 
at the end of August, whi ch meant that we could no longer count on his availability for our process 
once the restrictions eased up.  
16. In the meantime, I conducted extensive consultations with individual delegations and groups, 
using a variety of virtual platforms, and continued work  on a first draft of a consolidated draft 
document. In June, the restrictions on movement and meetings were relaxed and meetings restarted 
again in the WTO, and we then resumed our negotiations in hybrid meetings with physical and 
remote presence and parti cipation.  
17. On 25 June I introduced a first draft consolidated document, in RD/TN/RL/126, at an NGR HoDs 
meeting. I need to stress that nothing in this draft was new as it was entirely based on the work by 
the facilitators, and on Members' proposals. On 21 July, at another NGR HoDs meeting, when TN/RL/33  
 
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  Members gave their preliminary comments on the first draft, they indicated that it should be the 
starting point for the Group's further work starting in September, and aiming for agreement by the 
end of this year.  
September to November 2020  
18. The NGR reconvened after the summer break and we continued our discussions on the basis of 
the draft consolidated document. By that point, we were making extensive use of virtual platforms 
for meetings and discussions, and hybrid m eetings quickly became the norm. So did working in a 
truly continuous negotiating mode. While we held week -long clusters of meetings each month during 
the fall, there was no pause between clusters. In the intersessional periods, many topic -specific 
meeting s in different configurations were held. In addition, I was very fortunate to find a good friend, 
Ambassador Chambovey of Switzerland, to assist me on moving forward on special and differential 
treatment which we all know is integral to the negotiations.  
19. At the end of the October cluster, a number of Heads of Delegations suggested that it was time 
for a revision of the draft consolidated document. Based on this request and on the work post -July, 
I introduced such a revision on 2 November, in RD/TN/RL/126/R ev.1, at the start of a meeting 
cluster. As before, the revisions were entirely based on earlier work by facilitators, proposals from 
Members and the meetings I had held. I also circulated , in an addendum to 126/Rev.1 , a detailed 
explanation on the rationale behind the revision.  
20. This revised version of the draft consolidated document was an important step forward. Many 
of the changes were to fill in text in several important areas that were represented by placeholders 
in the first version. These area s included dispute settlement, notifications, and how a panel – and 
the WTO – would not address issues relating to overlapping claims of maritime jurisdiction.  
21. Unfortunately, also on 2 November, COVID -19 intervened once again with renewed restrictions 
on meetings and movement imposed by the authorities in Switzerland and Geneva. The difficulties 
that this created for many Members for coordination between colleagues in Geneva and back home 
in capitals made it evident that the year -end deadline was going to b e very difficult to meet. 
Nevertheless, I am very grateful to all delegations for maintaining their engagement as our meetings 
went fully virtual.  
22. The most recent cluster of meetings this year was held in week of 30 November. The cluster 
was at the level of Heads of Delegation, with a particular focus on some key issues that need to be 
unlocked in the IUU and overcapacity and overfishing pillars. A summar y of some of these issues is 
presented later in this report.  
23. During these meetings, I noted a high leve l of engagement, both from Geneva and from senior 
capital -based officials. The delegations put forward many interesting ideas and, in some areas, there 
was a willingness to compromise, while in other areas the discussion clarified the main concerns of 
delegations.  
PROGRESS MADE, CURRENT STATUS, AND CERTAIN OUTSTANDING ISSUES  
24. Unfortunately, despite all of our efforts , our work is still not complete. As all of us are well 
aware, the challenges we faced in the past year are real and have not yet disappeared. The platforms 
for virtual meetings have worked well and they have allowed capital -based officials to participate 
but they have many disadvantages as well. The absence of a Director -General also has left us without 
that important instance on which we were h oping to draw to help us cross the finish line.  
25. As a result, we will not be able to deliver an agreement on disciplines to fisheries subsidies by 
the end of this year. This is a serious setback for the Negotiating Group, for the WTO, for the SDGs 
set by ou r Heads of Government, and for sustainable fishing. But let’s not forget that our mandate 
remains unchanged – even if we are going to make a late delivery.  
26. Although we should not underestimate this serious setback, the truth is we did make lot of 
progress this year. Major differences remain but, in some areas where we have spent many hours 
working on specific texts, delegations are not that far apart. This is less true for some other topics 
but with the right will and proper engagement I am convinced we can  finish th ese negot iations  in TN/RL/33  
 
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  the near future. And indeed, it is normal that as differences narrow down and come into sharp focus, 
the final steps to bridge the gaps become more difficult.  
27. And the NGR has made some progress since the first revision of the  draft consolidated text until 
today, particularly on the topics on which we focused in our recent discussions. I would now like to 
summarize some of the key issues that have been addressed.  
IUU F ishing  
28. In the pillar on subsidies to illegal, unreported and unregulated (IUU) fishing, a lot of the 
discussion was focused on the entities that can make an IUU determination that would trigger the 
subsidy prohibition.  
29. The discussion showed that there are some d ifferences of view on whether the list in Article  3 
implied a hierarchy and the possibility that a determination of IUU fishing by one listed entity could 
be cancelled by another that came to the opposite conclusion. I wish to emphasize, as I did in the 
discussions, that that was never the intention of the provision. There was some discussion of possible 
textual changes aimed at making this absolutely clear.  
30. A more substantive issue that was extensively discussed is the degree to which the various 
entities listed have the competence to make IUU findings and, if so, under what circumstances. In 
this context, some Members focused on certain provisions in international fisheries instruments in 
emphasizing the competence of coastal Members in waters under their jurisdiction, and of RFMOs/As 
in areas and for species under their competence. Some Members raised questions over the 
competence under such instruments of flag State Members and subsidizing Members to make IUU 
findings. Others considered that the disciplin es are only addressing findings that would trigger a 
subsidy prohibition, and that in this context flag State and subsidizing Member s have particular 
responsibility in respect of vessels that they flag or subsidize. Another area of discussion was the 
role of port State Members and whether or not they have competence to make IUU findings that 
would trigger a subsidy prohibition.  
31. Other issues that were discussed in the context of the IUU pillar included whether and what due 
process requirements should apply to IUU determinations by the various entities, how to address 
minor offences, and what provisions there should be on the durat ion of the subsidy prohibition. 
A number of references also were made to a due diligence provision in the draft, with issues raised  
including whether this could be a possible alternative to due process.  
32. Regarding the treatment of developing Members in the  IUU pillar, some Members advocate SDT 
in the form of a transition period to allow for the development or reinforcement of legal and 
administrative systems to address unregulated and unreported fishing. Others oppose any SDT in 
this pillar, taking the view  that no Member should provide any such subsidies.   
Overfished stocks  
33. Concerning subsidies for fishing of stocks that are already overfished, some delegations 
questioned whether such a provision is needed given that there will be a provision on subsidies t hat 
contribute to overfishing and overcapacity. Others continue to consider a separate provision to be 
important, given the poor condition of the fisheries in question.  
34. Most recently, the focus of our discussions related not to this question or the substan tive 
drafting, but instead a placeholder in the draft regarding how to address subsidization to fishing on 
unassessed stocks. Here the discussions helped to clarify that there are many unassessed stocks in 
the world and that many Members oppose a simple as sumption that unassessed stocks could be 
equated with overfished stocks, such that the placement of this provision in this pillar was 
questioned. At the same time, there also were delegations emphasizing the need for care in granting 
subsidies to fishing o n unassessed stocks which they felt should be recognized in the disciplines.  
Overfishing and overcapacity  
35. In the pillar on subsidies contributing to overcapacity and overfishing, the revision of the 
consolidated draft document made some substantive change s to the provisions setting forth the TN/RL/33  
 
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  prohibition. The aim of the changes was to try to clarify how the hybrid approach used in the 
consolidated draft document would operate such that certain forms of subsidies would be prohibited 
if they contributed to ov erfishing and overcapacity but would not be prohibited if they did not. There 
were extensive discussions of these provisions and positions remain divided on whether the draft 
achieves this effect . ,  
36. Despite these differences in respect of what many consid er to be the central pillar of the 
disciplines, the discussions did help clarify positions. Some  delegations continu e to advocate a list 
of subsidies that would be prohibited . Others consider that  the prohibition should operate on the 
basis of sustainabili ty indicators, with subsidies prohibited when the rate of fishing and/or the level 
of fishing capacity are more than would keep the stock at a biologically sustainable level, and an 
exception from that prohibition where measures are implemented  to maintain  the stock at a 
biologically sustainable level. While a number of Members continue to have concerns over this 
approach, the meeting generated a useful discussion over how the sustainability indicators are 
expressed in the draft, and whether those indicator s could be modified to accommodate a broader 
range of the sustainability measures in question.  
37. Considerable differences remain, especially as regards  concerns that the approach as drafted 
could provide a loophole for Members with more advanced management systems. To bridge the 
gaps and develop a compromise that all can accept, we will need to continue to focus intensively on 
this area as we move forward in our work.  
38. There also were useful discussions on draft provisions that would prohibit certain subsidi es to 
fishing beyond national jurisdictions. While some see these provisions as a very important part of 
the final outcome, ensuri ng the coverage of the disciplines of unregulated areas of the ocean, others 
take the view that some subsidies for fishing bey ond national jurisdiction may be neutral or even 
beneficial for fish stocks , and that one cannot assume that all such subsidies contribute to overfishing 
and overcapacity. One view was that, if there is to be such a provision, it should focus on fuel 
subsidies as these are considered by some fisheries experts to be the most harmful kinds of subsidy.  
39. In the context of subsidies to fishing beyond national jurisdiction, we also had some discussion 
on government -to-government access agreements. While it seems t o be the common view that 
government -to-government payments pursuant to such agreements are not subsidies and thus are 
outside of the scope of the disciplines, views differ on how the disciplines should treat any subsidies 
that might arise from the provisi on of the acquired fishing rights to the fleets in question. This too 
is an area that requires considerable additional work.  
40. Other draft disciplines and placeholders in the overcapacity and overfishing pillar have not been 
extensively discussed in recent m eetings. I am aware that there are strong views in respect of some 
of them and that there is increasing interest in pursuing many of these issues further.  
41. Lastly under overfishing and overcapacity, the discussion on special and differential treatment 
has been the subject of intensive discussion. As Ambassador Chambovey stated at a number of 
meetings, positions remain far apart. However, there are some intere sting ideas that are beginning 
to emerge and there are some signs that it may be possible to begin to build on these ideas. Most 
important have been the repeated statements by all delegations that they do not want to use 
subsidies that would lead to unsust ainable fishing.  
42. To summarize the debate in broad terms, one view is that special and differential treatment 
should take the form of transition periods for the implementation of and adaptation to the new 
disciplines. Another view is that SDT should be mor e structural, providing flexibility for developing 
Members with underdeveloped fishing capacity to create that capacity using subsidies. There also is 
the view that least developed Members should be exempted completely from this pillar of the 
disciplines. As I mentioned, some ideas are beginning to emerge for possible compromise solutions. 
Again , this is an area that will continue to require intensive work.  
Other  
43. In other areas we have made significant progress during the year, including on notifications an d 
transparency, dispute settlement, and exemption of subsidies for disaster relief, as well as on the 
highly sensitive issue of territoriality. These provisions are reflected in the current draft. There also TN/RL/33  
 
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  are ideas that have received considerable intere st that would need to be refined and discussed 
further, such as, for instance, a possible exemption from some disciplines for artisanal or subsistence 
fishing.  
SECOND REVISION OF THE CONSOLIDATED DRAFT DOCUMENT  
44. To mark the current state of progress, I inte nd to issue a second revision of the consolidated 
draft document by the end of this week. The changes relative to the current version will be modest 
and will aim to reflect where I think we are at this stage. As before, the revision will be accompanied 
by an addendum outlining the background for and intention of each change. As always, this 
document will be without prejudice to Members' positions and the entire text will remain in brackets.  
45. I should note here that although we have had rich discussions in r ecent weeks, with a range of 
important new ideas put forward by Members, these ideas will not necessarily be reflected in the 
revised text. This in no way is intended as a judgement on the substance of those ideas, and to the 
contrary I welcome all constru ctive suggestions that might help us find a way forward. Rather this 
simply reflects the need for more thorough discussion to mature those ideas, including in regard to 
their placement and in relation to other elements, before they can be included in the t ext.  
NEXT STEPS  
46. A number of delegations have said that we need to reach an agreement as soon as possible. 
Others have said that we should not sacrifice quality for a rushed agreement, particularly given the 
problems that many are still having in their coo rdination between Geneva and capitals.  
47. I believe that I speak for all of us in saying that our negotiations have a particular urgency, not 
only because of the SDG 14.6 and MC11 mandates but because while we talk, fish stocks continue 
to decline due to overfishing, and the research by internatio nal organizations such as the FAO and 
OECD detailing the nature of the links between harmful subsidies and unsustainable fishing has been 
growing steadily. To continue without multilateral disciplines on harmful subsidies essentially means 
that governments  can continue to spend in unsustainable fishing, with no immediate consequences 
– except that eventually there will be no fish left to find.  
48. New disciplines on harmful fisheries subsidies are like a debt that we owe to the global 
community. We were suppos ed to pay this debt at the end of the year. The fact that we are not 
managing to pay on time does not mean the debt has gone away. To the contrary, the debt increases 
with each day that goes by – so the urgency, far from disappearing or diminishing, is gro wing.  
49. Although it is evident that the COVID -19 pandemic is a major cause for not meeting the 
deadline, it is not the only one. Members’ positions remain divided on some very important issues , 
and it is clear that we need more flexibility and compromise fro m Members in order to successfully 
conclude the negotiations. If we have learned something from the past two decades of negotiating 
it is that, pandemic or not, we will get nowhere without a willingness to find solutions we can all live 
with rather than re maining in positions others cannot agree to.  
50. Given that there is thus no time to waste, and given that we are still bound by the mandates 
agreed by Heads of Government in SDG 14.6 and trade ministers in MC11 to deliver effective 
disciplines on fisheries s ubsidies, I intend to schedule the first cluster of meetings after the Christmas 
break in the week of 18 January, and to be available for consultations with delegations scheduled 
the week prior. Details of issues for discussion and the structure for the wo rk in the cluster will be 
sent to you as soon as possible.  
51. I plan to hold the second cluster in the week beginning 15 February. I cannot give you more 
details about the work programme because it depends on other developments, including the 
measures taken here in Switzerland and back home in capitals to deal with the ongoing COVID -19 
pandemic, and how this pandemic evolves. But I can tell you that the intensity will not diminish until 
we conclude our negotiations and deliver on our mandate, and that work wi ll be continuous with 
intersessional meetings in various formats. We must also keep in mind convening opportunities for 
Ministers in 2021, as well as scheduled meetings of our leaders to review our work in light of the 
SDG mandate. It will be intense.  TN/RL/33  
 
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  52. Believe me, Didier and I are not doing this because there is nothing else to do. We believe in 
the importance of these negotiations for our Oceans ' sustainability and for the WTO; we are doing 
this to help Members deliver a meaningful outcome as soon as possib le.  
53. In closing, let me say that although we should not underestimate the setback of missing this 
deadline, we should not be discouraged. To the contrary, we should be encouraged by the progress 
made, by the momentum that has been built, and by the real an d unique opportunity we have to 
conclude this process in the near future, fulfilling the responsibility that has been tasked upon us.  
54. Dear colleagues, it’s time to step up.  
55. I wish you an excellent, safe and restful holiday period.  
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