As we reported in June, on May 26 the Biden administration put forward a proposal in the WTO fisheries subsidies negotiations that raised the issue of forced labor. The parts of this proposal related to notifications have been taken up in the latest version of the draft negotiating text, which was released yesterday, and the differences in viewpoint among WTO Members are coming into focus.
In its May proposal, the U.S. Trade Representative's Office explained the issue as follows: "The U.S. proposal ... 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."
China was not specifically mentioned in the USTR proposal, but other U.S. government actions at the same time made clear the U.S. concerns with the labor practices of Chinese companies in the fishing industry.
In the U.S. proposal, there were three key references to forced labor. First, as a general principle in the preamble: "Recognizing that effective disciplines on and greater transparency of fisheries subsidies can contribute to Members’ efforts to prevent and halt the use of forced labor on fishing vessels." Second, as a chapeau to Article 3: "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." And third, as a notification provision in Article 8.2(b): "Each Member shall notify the [Committee] in writing on an annual basis of: ... (b) any vessels and operators for which the Member has information that reasonably indicates the use of forced labor, along with relevant information to the extent possible."
With the WTO's Ministerial Conference quickly approaching, yesterday the Chair of the WTO fisheries subsidies negotiations released the latest version of the negotiating text, along with an explanatory note that offers comments on the key issues. The one U.S. proposal for new provisions on forced labor that was picked up in the text is the notification provision, which is incorporated verbatim, although it remains in brackets to indicate the lack of consensus around the provision. The Chair's explanatory note then offer the following discussion of the issue and the decision to keep the text in brackets:
126. Article 8.2 includes information that should be notified relating to IUU fishing determinations.
127. In this revision, Article 8.2(b) is new and it would require notification of any vessels or operators for which a Member has information that reasonably indicates the use of forced labour.
128. As you recall, this proposal was first raised in May this year in TN/RL/GEN/205, which we have discussed on several occasions, along with the language in Article 3.1 that I have already noted. In those discussions, various Members shared the particular concern over the use of forced labour in illegal fishing activities and supported enhanced transparency on it. Some others said they were not proponents of this initiative but found it acceptable.
129. However, some other Members have expressed opposition on the basis that this issue is outside of the WTO's competence. Given these different views, the change is reflected in square brackets for further consideration.
The difference of views on this point is not exclusively between China and the United States, as there are a wide range of countries with an interest in it. However, China and the United States are two of the key players here. The United States has been pushing hard against the issue of forced labor in general; and China is often accused of forced labor, and therefore the inclusion of this provision could put them on the defensive, although Chinese officials have been quiet on this issue in public.
According to Inu Manak, a research fellow at the Cato Institute, the question of including provisions on forced labor in any final fishing subsidies text "is not the only sticking point, but overcoming disagreements on how the issue should be incorporated is necessary for concluding negotiations." She added that "the revised draft presented by Ambassador Wills on November 8th is a compromise that could generate convergence and address US concerns on the issue."