Mature and responsible fisheries management frequently requires necessary trade-offs…
The Year Ahead – A UK/EU Fisheries Agreement
In an industry that has experienced many momentous years and critical turning points, 2020 stands to be one of the most pivotal in our history.
It is now clear that the delays and confusions, primarily caused by the absence of a government majority in Parliament, are now behind us and the UK will formally leave the EU on 31st January 2020. We will enter an 11month transition phase, during which negotiations will take place on the future economic and political relationship between the UK and the EU.
The aim is to agree a framework EU/UK fisheries agreement by the beginning of July 2020. Both the UK and EU have made extensive preparations for these negotiations. Scenario planning for multiple eventualities can now be replaced by a single-minded focus on arrangements that will secure a future for the UK as an independent coastal state outside the EU and outside the Common Fisheries Policy.
Negotiations: Opening Positions
Although, understandably, as we enter the negotiations, both sides are keeping their negotiating strategies close to their chests, it is possible from public statements, to see an outline of the overall shape of the forthcoming talks, and the fracture lines which will in the end determine the outcomes.
In its White Paper on Fisheries, the previous government spelt out that as an independent coastal state (under UN Law of the Sea) the UK will hold sovereignty over its exclusive economic zone and the right to exploit the fisheries resources within it. The UK will control access over who is permitted to fish within UK waters, and under what conditions. The White Paper indicates that the Government will enter negotiations with the EU with the express objective of closing the gap between the fisheries resources available for harvesting that are located in UK waters, and the quota shares that it has received under the Relative Stability Principle since 1983.
By contrast, the EU has said that any trade deal with the UK will be contingent on the status quo on access arrangements and quota shares. It will seek to bind the UK into a long-term agreement which replicates the Common Fisheries Policy as closely as possible.
The two parties therefore enter the negotiations holding polar opposite positions. Radical change versus status quo. Negotiating leverage will take legal, moral, scientific and political forms but both parties are required by UNCLOS to cooperate on the sustainable harvesting of shared stocks, so there will also be limits on the room to manoeuvre. Both the UK and the EU have staked their reputations on maintaining the highest standards in terms of sustainable fisheries management. Failure to reach agreement could potentially set up tensions that could only lead to both parties being losers. It is something of an understatement that both parties have a lot at stake.
The starting point and context for the negotiations for a framework agreement on fisheries will be the provisions of the UK/EU Withdrawal Agreement. The relevant parts of the Withdrawal Agreement for fisheries:
- Accept that after the transition period, the UK will have regulatory autonomy over the exploitation of the resources within its EEZ, and that after the UK fully leaves the EU there will be no automatic right of access to fish in each other’s waters
- Points towards a UK/EU fisheries agreement, as part of a wider agreement of a future political and economic relationship between the European Union and the United Kingdom
- Spells out that the UK will not participate in any EU decision-making fora during the transition period, but will be “consulted” during the annual quota setting round (this clause is now less significant than it was previously because with a shorter transition period than earlier envisaged, the UK will negotiate quotas for 2021 as and independent party)
It is worth recalling that when Teresa May’s original Withdrawal Agreement was settled, towards the end of the negotiations, there were two outstanding issues: one was Gibraltar, the other was fishing rights. This gives some sense of the political significance of the fishing issue for both the UK and the EU.
Norway has a significance in all of this as:
- A relevant party where it too shares stocks that are exploited by the UK and EU fleets
- A precedent and model for a long-term fisheries agreement between the EU and a Third Country with shared stocks and joint management arrangements.
The annual EU/Norway fisheries agreements have provided a largely successful model for cooperation on fisheries which has been in place for over 40 years. There are five essential components to the annual reciprocal agreements:
- Joint management of key stocks: TAC setting, with ICES scientific advice as the starting point
- Access arrangements, which allow fleets to fish in each other’s waters
- Quota Sharing based on the principle of Zonal Attachment
- Quota exchanges (of unutilised quota)
- Regulatory autonomy in the parties' respective zones
Notwithstanding the EU’s largely successful fisheries relationship with Norway over 40 years, we can expect that the EU/Norway model will be anathema to the EU in the context of a future EU/UK fisheries relationship. The EU will argue that the EU/Norway agreement covers far fewer stocks than would require joint management between the EU and UK, and so is not appropriate. The UK will say that the EU’s position reflects the fact that the EU’s relationship with the UK under the CFP has been asymmetrical and exploitative, and that the EU wants to maintain this uneven relationship. By contrast, the EU/Norway fisheries agreement is balanced – in the sense that both parties benefit more-or-less equally from the arrangement. The UK will argue that therefore the current EU/Norway agreement and a relevant and pertinent reference point.
Leaving it All Behind
Whilst all remains to be fought for in terms of the UK and EU’s future relationship on fisheries, some things are already clear. After the transition period, the UK will have regulatory autonomy.
This means that the decisions, regulations, and directives of the Commission, Council of Ministers and European Parliament, will no longer have any direct relevance to the fisheries which take place in UK waters.
Most CFP fisheries legislation will be initially retained and incorporated into UK law to avoid any legal vacuum, but the Fisheries Bill, which should shortly pass through Parliament unimpeded, will provide the scope to amend and adapt these statutes to meet the UK’s purposes. The relative powerlessness over fishing in its own waters, that has been the UK’s fate under the CFP, will end. In particular, the European Parliament’s baleful influence over fisheries policy will come to an abrupt halt. The Commission will still be required to seek negotiating mandates from the Council and European Parliament but where, for example in the North Sea, the EU will control less than 20% of the sea area and a minority of the stocks, its legal or political sway will be much reduced in negotiations with third countries.
Adjustments to the UK version of the EU landing obligation to transition from an untenable to a workable set of arrangements can be expected to be high on the list of measures for early revision.
The scene is set for a dramatic trial of strength. Both sides have an interest in securing a trade deal which minimises trade frictions. The shape of that deal is the issue at hand. The UK Government has insisted that the new arrangements must be agreed in time for the UK to leave the EU at the end of the transition period in December 2020. This short timeframe makes the negotiation of a comprehensive trade deal less likely. A less ambitious deal, with much to be agreed in future negotiations seems, at present, the most likely outcome.
The EU may have the strongest hand of cards to play on trade because of the sheer size of its economy. On fishing, the situation is reversed. EU fleets fish around six times as much in UK waters as UK vessels fish in EU waters. To continue to access those waters concessions by the EU will be required. The UK has made clear that a rebalancing of quota shares to a fairer equilibrium will be the price of access. And that access will be subject to conditions – as any fleet fishing in third country waters would be.
Many businesses in the supply chain on both sides of the Channel depend on the trade in fish and shellfish, so from an economic perspective, both the UK and EU have a deep interest in smooth and unimpeded trade arrangements. This is particularly true of fresh and live fish where the transit times are of critical importance.
The question is to what extent this trade will become a political hostage over fishing rights, and what effect of short term disruptions to trade could have. Should trade talks fail for any reason, the UK could be forced to trade on WTO terms, which would be far from ideal – but also is very far from no trade at all. One only needs to glance at the massive trade in fisheries products between Iceland and the UK, and how quickly that was re-established after the cod wars of the 1970s, to understand that disputes over fishing rights have little long term impact on trade.
In the access negotiations when the UK applied to join the then European Economic Community in 1973, a conscious decision was taken on the UK side to sacrifice the UK fishing industry to secure other national political and economic objectives. The legacy of this decision has been to deny the UK the benefits of independent coastal state status for over forty years. It also created a deep sense of betrayal throughout the UK fishing industry and coastal communities that has been shared by many in Parliament. That sense of grievance has not diminished with time.
The optics of Brexit, in which the fishing issue has consistently been high on the list of national priorities, means Government will not want to repeat the historic betrayal of the 1970s. In this sense, fishing is an important litmus test and carries symbolic weight as well as political and economic significance. This is the reason why the UK fishing industry is confident that, whatever the negotiating challenges ahead, there will not be a repeat of 1973.