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This article was published prior to the publication of the post-Brexit agreement between the UK and EU which covers the relationship between the UK and EU following the end of the implementation period (commonly referred to as the “transition period”) created by the European Union (Withdrawal Agreement) Act 2020, and should be read in that context. For up-to-date commentary and information on our services, please see our Beyond Brexit page.
This article originally featured in Fishing News.
Imminent departure from the EU Regulation regime does not, necessarily, mean freedom from international obligations and regulations. Since 1972 the regulation of our seas has become both international and complex. International EU and the United Nations Conference on the Law of the Sea (UNCLOS) together with other regional organisation laws complicates the variety of transnational legislation that has been put in place regulating the use of the seas and care of the marine environment.
In very broad terms the total catch in UK waters by non-UK EU vessels equates to about 15% of the total EU catch. The catch by UK vessels in non-UK EU waters is approximately 33% what the rest of the EU takes from our waters. Another useful fact is that most of what we catch we export. Most of what we eat in the UK we import. The complexity of the legislation can be illustrated as follows:
- The Non East Atlantic Regional Sea Convention [known as “OSPAR”], coordinates environmental protection in the North Sea. Norway is not a member of the EU but membership of OSPAR and UNCLOS require both Norway and the EU to cooperate and negotiate in respect of any environmental matters.
- The Marine Strategy Framework Directive and the Mariner Spatial Planning Directive both have legal clout and in each directive, it is mandatory that all parties cooperate and negotiate best possible solutions
- The UN Fish Stocks Agreement 1995 has the objective of conservation and long term sustainability of high migratory stocks. It is mandatory to take measures to prevent over fishing – so there is an obligation on the UK to cooperate and avoid over fishing stock within an ecosystem.
- The North East Atlantic Fishing Committee (“NEAFC”) was established in 1980. The EU is a member – together with others - but the UK is not. To gain access to NEAFC the UK will have to become a member and that is not going to be easy judging by the difficulty encountered by other applicants.
- Most importantly, UNCLOS makes it clear that coastal states must avoid over exploitation and sustain maximum sustainable yields and importantly, whether a “sub regional “or “regional” organisation, they are all are obliged and mandated to reach agreement for conservation of stocks [Articles 61 and 63].
- Article 62 of UNCLOS is important because it is states that there is an international obligation to minimise “economic” dislocation – particularly where areas have been “habitually” fished. There can be no doubt that French, Dutch, Spanish ,Belgium and other trawlers have been in UK waters over the last 40 years or so and that their presence has been “habitual”. Accordingly there will, in my view, be what is known as “historic fishing rights” and fishing may continue pending a determination of any dispute. The same will apply to English and Scottish vessels that regularly and frequently fish in other EU waters well within EU member states 200miles EEZs. As a result all EU members states with fishing fleets will, as a matter of international law, be mandated to negotiate access to and from each other’s EEZ. It is axiomatic that the UK will require and need access to EU waters and ,of course, vice versa. There must, under international law, be detailed negotiation in order to resolve access issues. As to the right to fish it seems unlikely that quotas will come to an end but the basis for quotas will probably remain on advice from ICES. It seems therefore that under NEAFC, the UN Fish Stocks Agreement and for example the Marine Strategy Framework Directive ,the UK may have no alternative but to agree TAC’S between the EU and the UK. It may be that there will be an “effort” or “days at sea” input to the TAC’s but the clever money is on the retention of quota entitlement.
- Lastly, as the UK will be wanting access to northern waters, as well as complying with OSPAR requirements, the UK will also have to negotiate direct with Norway in the absence of current membership of existing “Northern Agreements” which have been negotiated by the EU (but not the UK).
Given the background complexity and range of obligations as a result of international conventions and regulations, negotiations must, self-evidently, be detailed and comprehensive in order to achieve the result for which most of the fishing industry voted. It will take considerable time and the use of very skilled and well informed negotiators to achieve the correct result. If properly managed and suitably funded, such negotiations should inure to the benefit of the UK fishing industry but - even if wholly successful - it is unlikely that such negotiations would be fully productive for say 5 to 10 years, particularly in light of the legal requirement to avoid economic dislocation and also the amount and intensity of habitually fished areas over the last 47 years. At the very least there is bound to be a short term adjustment to the current import/export ratios referred to above.