Fisheries after Brexit

27 Nov 2019

Two years ago, I helped organise and chaired an evening conference at the British Institute of International and Comparative Law on the subject of the legal consequences of Brexit for the fishing industry. Since that conference was rated a great success, BIICL decided to repeat the experience on 19 November at the offices of public international law firm Volterra Fietta, which kindly hosted the event, as BIICL’s premises in Russell Square are currently undergoing major renovation. This time, the speakers were just as eloquent as two years ago and the interventions from the floor were just as interesting and informative. What is more, thanks to BIICL’s event promotion team nearly fifty people participated.

As is well-known, a high proportion of British fishermen are ardent Brexiters. Readers will recall the flotilla of fishing boats organised by Fishing for Leave, which sailed up the Thames with the then leader of UKIP to urge Parliament to take back control of British waters, shortly before the referendum of June 2016. As one would expect, FfL has lost none of its ardour in the meantime, as a glance at its website (here) will confirm.

Yet there is a two-fold problem. First, if there is one economic activity which is strictly regulated by international law, it is fisheries. If the UK were to exclude all or most foreign fishing vessels from its waters, British fishermen would receive the same treatment from the countries concerned. Many fishermen in a number of neighbouring countries, including France, the Netherlands and Denmark, stand to lose their livelihoods. For the same reason, the UK would no doubt find it extremely difficult, if not impossible, to join the regional fisheries management organisations (RFMOs) which control many sections of the Atlantic and other waters. Second, the overwhelming majority of the fish caught by British boats are sold to the EU27. If the UK takes a hard line on fishing rights within its waters, the EU will not offer any tariff concessions and EU tariffs on some stocks are high.

The four speaker’s slides are available on BIICL’s webpage (here), so what follows is an overview of the salient points.

Eoin Fannon, a former Irish civil servant who is an expert on maritime law, began by setting out the key relevant provisions of international law, notably those of the UN Convention on the Law of the Sea (UNCLOS). He then focused on the disputed fishing rights around Rockall, which is claimed by the UK, but this claim is disputed by Denmark (for the Faroes), Ireland and Norway. This was a “test case” of the international law problems which could arise.

The next speaker was Thomas van Rijn, a former Director in the Legal Service of the European Commission who had devoted some sixteen years to the Common Fisheries Policy. Building on the talk by Eoin Fannon, he described the main international and EU treaties which will come into play, including UNCLOS (focusing on some of the provisions not mentioned so far) and the treaties establishing various RFMOs as well as the revised Withdrawal Agreement (here) and the revised Political Declaration on future relations between the EU and the UK. That declaration states in particular that the Parties “should cooperate bilaterally and internationally to ensure fishing at sustainable levels, promote resource conservation, and foster a clean, healthy and productive marine environment”. It also states that “the Parties should cooperate on the development of measures for the conservation, rational management and regulation of fisheries, in a non-discriminatory manner”. Finally, Thomas described some of the steps which the EU will take in 2020 if the Withdrawal Agreement comes into force.

Next, Jill Wakefield of Warwick University spoke on two separate topics: trade and environmental protection. On trade, she described the new regulations for export to the EU, the import tariffs which the EU imposes on the main stocks and the problem of EU standards, which may be an even more formidable hurdle for UK fish than tariffs. The particularly severe impacts for the small-scale sector reliant on export to the EU were raised. In discussing the relevant provisions of the Withdrawal Agreement and its Protocol on Ireland/ Northern Ireland, she mentioned that the Council’s guidelines for a future trade agreement with the UK (here) contain the following important statement: “In the overall context of the FTA, existing reciprocal access to fishing waters and resources should be maintained …”

On the environment, Jill exposed the weakness of the current EU regime due to the fact that the Common Fisheries Policy prevails over the Marine Strategy Framework Directive, the environmental pillar of the Integrated Maritime Policy. The result is that the goal of the CFP remains maximum sustainable yield. As to the UK, although section 16 of the European Union (Withdrawal) Act 2018 requires the environmental principles enshrined in EU law to be maintained and although EU environmental law is due to remain in force provisionally by virtue of the same Act, there were grounds for serious concern that these provisions would be weakened after a short time. For instance, the fact that the now defunct Environment Bill, which was before Parliament earlier this year and which applies to England alone, only contains a passing reference to the marine environment is scarcely encouraging.

Finally, Helen McLachlan of WWF UK, the only member of the panel who is a marine biologist and not a lawyer, took the floor. As the chair of the fisheries work of Greener UK (a group of 13 major environmental organisations, with a combined public membership of over 8 million united in the belief that leaving the EU is a pivotal moment to restore and enhance the UK’s environment), she is well placed to discuss the Fisheries Bill. She demonstrated how the Bill, which was before Parliament earlier this year and failed to reach the statute book, fell well short of the measures advocated by Greener UK on several counts; and she described the Bill as so regressive that it would have failed to ensure sustainable fisheries.

Given the immense importance of Scotland in this sector (which accounted for 57% of UK landings by value and 64% of UK landings by tonnage in 2017), we needed a voice from north of the border; and Helen ticks that box as well. She stated that, without a UK Fisheries Act, the devolved administrations will be in limbo as regards the powers which they will enjoy after Brexit. Before its untimely demise, the Fisheries Bill had provided for the four administrations to subscribe to a joint statement setting out the means whereby they would realise the aims of the Bill.

She concluded with a number of slides explaining the gravity of the environmental damage currently being inflicted on the oceans. One slide referred to a report published this year according to which fishing is the human activity with the greatest impact on ocean health.

The audience was notable not only for its impressive expertise in the field and its remarkable collective memory spanning several decades, but also for its professional diversity. In addition to legal practitioners, academics and civil servants (mainly from Defra, but also from other Government departments), the fishing industry itself was very well represented in the room. This led to an unusually lively and stimulating debate, in which the civil servants naturally did not take part.

These problems stand on the cusp of two crises: the uncertainties over Brexit and the environmental emergency. Not only on the panel but also amongst those who intervened from the audience, there appeared to be a consensus on both points. Many “dark thoughts” (as one attendee put it) were expressed, as further problems were raised.

According to one member of the audience, the fishermen were being led to believe that a significant proportion of their catch after Brexit need not be subject to UK quotas – a policy which the EU would never accept, which would make a fisheries agreement between the parties extremely unlikely. Another attendee referred to the passage in the Political Declaration according to which the Parties would use their best endeavours to conclude and ratify a fisheries agreement by 1 July 2020 so as to ensure continuity, if the Withdrawal Agreement comes into force but expires at the end of 2020. In his view, the chances of meeting this deadline were very slim or even non-existent.

Other points raised by the audience included discussion on: the advantages and disadvantages for the UK in negotiating quota as an independent state; the continuing obligation to ensure resource sustainability under international law; the nature of the public resource of fish and possibilities in the defunct Fisheries Bill for reform of fishing opportunities allocation; provision for the small-scale fleet; whether EU product standards will impact the UK more forcefully as a third country and whether these standards will impede or prevent export to the EU.

Towards the end of the conference, I also ventured a brief intervention, predicting that, despite its protestations to the contrary, in the worst-case scenario – where either there is a no-deal Brexit or the Withdrawal Agreement does come into force, but we subsequently fall over the proverbial cliff edge – the EU might after all be prepared to conclude a number of agreements relating to the specific sectors where there is the greatest urgency. This would certainly include security, but fisheries is also an obvious candidate for such exceptional treatment. One thing is clear, though: the EU will insist on having common rules on governance (essentially dispute resolution) so as to avoid falling into the same trap as it has with Switzerland, which has concluded some 130 separate agreements with the EU over the years without any kind of common institutional framework.

Let me end with an afterthought: only one State in Western European is likely to be an ally of the UK in its relations with the EU, and that country is Switzerland. But presumably not when it comes to fisheries.

BIICL has asked me to specify that this post does not represent their views.