Fatal Miscalculation

11th December 2020 in Brexit, Europe / Common Fisheries Policy

A huge miscalculation lies at the heart of the EU’s negotiating strategy as we now head, apparently inexorably, into a future relationship unmediated by an overall framework agreement. The EU have made the assumption that because the EU is a regulatory superpower and because trading on WTO terms would be disadvantageous for the UK, the UK would back down on fish. This conviction has informed the EU’s negotiating mandate from the outset and its unwillingness to negotiate seriously throughout long weeks where talks have produced nothing tangible.

Fatal Miscalculation

Contingency

The recent publication of the EU’s contingency plans carries forward the same belief. It is assumed that the UK’s new legal status as an independent coastal state, although underpinned by international law, will be set aside and that the UK will be cowed into ceding automatic access to fish in UK waters for 2021. The UK is required to make an abject surrender that would tie us into CFP-like arrangements for decades.

There is no sign that is going to happen. The scene is therefore set for the scenario that will cause most harm to the EU: no access to fish in UK waters from 1st January. EU fleets, in value terms, catch around six times as much in UK waters, as UK vessels fish in EU waters. Whilst the UK will have to adjust to increased border checks, the EU will have to deal with the serious consequences of fleet displacement - until a new agreement on fish is reached.

Compromise

Having made control over waters a centrepiece of both the referendum to leave the EU, and the subsequent general election campaign, a humiliating UK surrender on fish would not be survivable politically. There is no sign in anything that has been said by the Prime Minster, or his cabinet ministers, or the UK negotiating team, that suggests a cave-in on fish is contemplated. In the country, even implacable remainers, unreconciled to the referendum result, can see that the UK fishing industry has been tied into an asymmetric and exploitative relationship for 40 years. The UK share of Channel cod is 9%; the French share is 84%. Those numbers succinctly spell out what is at stake. Continuing that relationship beyond the end of the transition period would be to disavow the referendum result and the repeated commitments made and assurances given.

A compromise, however, is on offer. Access to fish in UK waters could be granted to the EU fleets on the same terms that apply between any other coastal states that share fish stocks.

Annual Fisheries Agreement

Normally at this time of year there would be trilateral and bilateral negotiations between coastal states to set total allowable catches on jointly managed stocks for the coming year, and the other elements of an annual fisheries agreement, including access and quota shares. The UK is the new coastal state and has already taken its place at the table in a number of coastal state negotiations.

It is unclear at this stage, whether there will be bilateral UK/EU negotiations to fix total allowable TACs for shared stocks for 2021, or whether we will move straight to autonomous quotas, set by each side, which will remain in place until there is an agreement. Norway, as a major player in the North Sea, has been waiting patiently for the UK and the EU to settle their differences and for talks to begin.

What is clear, is that mutual access to fish in each other’s waters will be part of that agreement and not an automatic right.

Resolution

There will be an agreement between the UK and the EU on fish. Sometime.

There is a legal obligation on countries which share stocks to negotiate, and to manage fish stocks sustainably. Alongside those legal responsibilities, are a number of legal rights, including the right for each coastal state to harvest the resources within their exclusive 200-mile zone. Agreement, when it is reached, will recognise that fundamental change in legal status which underpins the UK’s negotiating positions.

Summary

In a nutshell, the EU has overplayed its hand and risks bringing on the one thing on fisheries that it has sought to avoid. The exclusion of its fleets from UK waters from 1st January. By backing the UK into a corner on fish, it has left the UK Prime Minister no option but to turn and fight.