New Era Opens
Annual Fisheries Agreements for 2021: Trilateral and bilateral negotiations have now opened between the UK and adjacent coastal states including EU, Norway and Faeroes. The aim will be to agree (if possible) total allowable catches for shared stocks and other fisheries management measures for 2021. Talks are being held remotely because of the Covid-19 pandemic. In normal circumstances access arrangements to fish in each other’s waters and quota allocations of shared stocks are part and parcel of annual fisheries agreements between coastal states. The UK, however, enters its first annual negotiations with the EU with one hand tied (and will for the next five-and-a-half years) because of the terms of the Trade and Cooperation Agreement with the EU reached on Christmas Eve. Despite this considerable constraint, the talks which begin in earnest this week nevertheless represent a significant watershed.
The UK will participate in the negotiations as an independent coastal state rather than as only one of a number of member states represented by the European Commission. In the final analysis, if the UK cannot agree TAC numbers or ancillary management measures, it has the option (subject to certain caveats) of setting its own autonomous quotas, and applying its own management measures for all vessels operating in its waters.
All the signs are, however, that in the first instance, the UK will seek agreement with the EU and other coastal states, with a shared commitment to setting TACs at sustainable levels and agreeing remedial actions where these are deemed necessary. ICES advice will remain the starting point for TAC decisions, although as fisheries managers, the parties will have to take into account the complexities of mixed fisheries and address socio-economic concerns where TAC reductions are necessary.
It is unclear what the timetable for the negotiations will be. The longstanding and familiar arrangements for annual negotiations between the EU and Norway are likely to act as a model for the talks, but the constraints provided by Covid-19 restrictions and the pioneering aspects of the negotiations are reasons why things may evolve in a slightly different way. In the meantime, provisional quotas have been set by all parties to allow their fleets to make a start on fishing in their own waters (and for EU vessels, in UK waters). Access to Norwegian waters will depend on the outcome of the EU/Norway bilateral negotiations.
In addition to setting TACs, the parties will also try to reach agreement on quota exchanges where these are deemed to bring mutual benefit. As the UK is no longer an EU member state in-year international quota swaps as a way of transferring unutilised quota between member states, will no longer be an option. There is however provision for state-to-state transfers (UK to EU and vice versa) in the context of annual negotiations and other points during the fishing year. These will be an important element in the talks which have now begun.
Whilst setting TACs will be subject to trilateral negotiations where Norway has an interest, quota exchanges between the UK and Norway will now be a bilateral matter.
The talks will have to address a number of substantive issues. The ongoing distributional shift in the cod populations in UK waters, and proportionate steps to limit fishing pressure on the remaining stocks will be one particularly difficult issue to address in the North Sea and the Celtic Sea. In the latter, cod constitutes less than 0.1% of the fleets catches in a highly mixed fishery where more that 25 demersal species can be landed. It makes little sense to place unjustified curbs on fisheries for the other species, but the balance between rebuilding the cod stock and protecting the livelihoods and fishing communities dependent on non-cod species is an especially tricky one.
Measures to assist the continuing rebuilding of the stocks of seabass will also be part of the bilateral negotiations, although bass is not strictly speaking a TAC species. The UK will no longer have to act as a supplicant, making its case to the Commission but will be an equal party in the negotiations. If no agreement can be reached between the parties, the UK has the option of going its own way and applying its own measures which will apply to all vessels operating in UK waters.
More broadly, the management of stocks which have high economic value but are not currently subject to TACs will be a focus of these talks; later in the year, the specialist committee that will now be established to handle a range of UK/EU joint stock management issues will also address this issue.
A Transitional Year
We can expect that 2021 will in some senses be another transitional year, as the UK begins to pivot away from the Common Fisheries Policy. EU retained law will initially be the basis for UK fisheries regulation. Over time, however, the Fisheries Act 2020 will provide the basis for a fork in the road and UK fisheries management will increasingly diverge from the CFP, whilst maintaining the same broad commitments to sustainable fishing required under international law.
Revision and reform of the mess that is the EU landing obligation, will be an early priority. The EU legislation underpinning the landing obligation is widely recognised as misconceived and an impediment to good fisheries management. A workable and enlightened discard policy will probably become a major element in the fisheries specific fisheries management plans foreseen in the Fisheries Act. These will take time to be developed, however, and there is an immediate need to address the choke risks that are an inherent part of the landing obligation as currently constituted. In the meantime, reducing unwanted catch will remain one of the primary foci of fisheries managers when setting TACs.
The huge ongoing gulf between the UK’s quota shares under the terms of the Trade and Cooperation Agreement, and what it could reasonably expect as an independent coastal state, means that the UK will continue to experience acute choke risks until the landing obligation is reformed, revised or removed.