Brexit: fisheries Contents

Chapter 3: A new legal baseline

United Nations Convention on the Law of the Sea

27.The United Nations Convention on the Law of the Sea (UNCLOS) III was adopted in 1982 and regulates activities at sea. It grants states the sovereign right to govern their respective Exclusive Economic Zones (EEZs), though in recognition of the vulnerability of fish as a natural resource, UNCLOS obliges countries (‘coastal states’) to manage their living resources in a sustainable manner. For fish stocks that occur in the EEZs of two or more coastal states (‘shared stocks’) there is an obligation to co-operate on their management.41 Notably, the right to establish an EEZ was agreed after the UK joined the EU.

The Fish Stocks Agreement

28.Fish stocks that are highly migratory or straddle the EEZs of coastal states and the adjacent high seas (‘straddling stocks’) are further regulated through the 1995 United Nations Fish Stocks Agreement.42 This Agreement obliges coastal states to co-operate in relation to the management, exploitation and conservation of straddling and highly migratory stocks, such as mackerel, either directly or through appropriate sub-regional fisheries management organisations.43 The co-operation must be based on scientific advice and must seek to preserve the sustainability of stocks.

An independent coastal state

29.It was widely assumed by witnesses, and confirmed by the Minister of State for Environment, Food and Rural Affairs, the Rt Hon George Eustice MP, that upon withdrawing from the EU, the UK will assume control of the UK EEZ.44 The UK will then become an independent coastal state bound by the obligations of UNCLOS and the Fish Stocks Agreement. Professor Barnes explained that:

“All states are parties to the United Nations Convention on the Law of the Sea, which has particular provisions on the exclusive economic zone, and coastal states are granted sovereign rights for the purpose of exploring/exploiting the natural resources of the EEZ. This … is a right to govern as it will, but it is subject to certain rights and responsibilities. The rights are to enjoy the resources, but obviously whether or not the resources are exclusive to those waters is another question. There are also certain responsibilities, which are to co-operate in the management of the fish stocks there.”45

30.The UK must determine the total allowable catch of the living resources in its EEZ.46 It must also ensure the maintenance of fish stocks through conservation and management measures. These must be designed to maintain or restore stocks to levels that can produce the maximum sustainable yield, taking into account the best scientific evidence available.47 It is for the UK to decide how fish stocks may be harvested within its EEZ and by whom.48

31.Robin Churchill, Professor Emeritus of International Law at the University of Dundee, explained that under Article 63(1) of UNCLOS “there is an obligation on states in whose waters the same stocks occur, what are generally called in shorthand ‘shared stocks’, to co-operate in the management of them.” He noted: “The details of how that is to be done are very vague, but there is a general obligation to co-operate.”49 He added that “there is a further obligation to co-operate in respect of species which are found both within national limits, the 200-mile zone, and on the high seas beyond … which is spelt out in much more detail in the Fish Stocks Agreement of 1995”.

32.Where fish stocks are not exclusively found in UK waters, then, the UK must co-operate on the management of the stocks.50 Prof Churchill explained: “most of the fish stocks found in the waters of the UK are actually shared with our neighbours, be it the EU, Norway, the Faroe Islands or, in some cases, all three”.51 How the UK decides to pursue its general obligations to co-operate with the EU and other neighbouring states will be a matter for negotiations before and after Brexit.

33.As an independent coastal state under the UN Convention on the Law of the Sea, the United Kingdom will be required to manage the living resources and fishing activities within its Exclusive Economic Zone in a sustainable way. Consequently it will be for the UK Government, and the Devolved Administrations, to develop and implement a domestic fisheries policy after withdrawal from the EU.

34.The UK will also be required to co-operate with adjacent coastal states to manage those stocks which are shared with neighbours as well as straddling stocks to minimise the risk of over-fishing.

Accessing the EEZ

35.Another fundamental change relates to access to fishing in the UK EEZ. Under international law, any decision to allow foreign vessels access to fish in UK waters will be a matter for bilateral negotiation and agreement between the UK and other coastal states. In the words of Prof Churchill:

“There is a distinction between what is said in the UN Convention on the Law of the Sea and what tends to happen in practice. … as far as the Convention is concerned … if in a particular coastal state’s EEZ the coastal state is capable of harvesting the entire allowable catch, it is under no obligation to allow any other fishermen from other states to fish there, so it can take the whole of the allowable catch. Where an obligation to admit other fishers comes in—again, this is on the theory of the convention—that is where the coastal state does not take the whole of the allowable catch and there is a surplus. It must admit other states to the surplus, but again it has a discretion … but only where there is a surplus.”52

36.Prof Barnes concurred, noting that “there are obligations to provide a surplus where we cannot catch [the TAC], so, regardless of whether we are in or out of Europe, that would still apply”.53 Where such a surplus exists, Article 62(3) of UNCLOS will require the UK to minimise the economic dislocation in states whose nationals have habitually fished in a given EEZ and have made substantial efforts in research and identification of stocks.54 The NEF argued that EU Member States were likely to draw on this article to claim a right of continued access to fishing in the UK EEZ if the UK were to close off access entirely.55 This point was also raised by Dr Bryce Stewart, Lecturer at the University of York, who noted: “For the last 30 years, a lot of European nations have been fishing in British EEZs”.56

Historic access rights

37.In the course of the Referendum campaign, some argued that historic rights to fishing in the 6–12 nautical mile limit would have to be respected in any future settlement for accessing the UK EEZ. But we heard from legal experts that this may not be the case. Prof Barnes told us that historic rights were hard to define, but suggested that they were “rights that have been asserted by states on the basis of some form of practice or usage over a considerable period of time which had not been objected to and have been acquiesced to”.57 He added: “For European waters, I take the position that most of the historic rights, medieval or later, have largely been reduced down to those which are captured within the Fisheries Convention.”58 Prof Churchill told us that the London Fisheries Convention had worked to the detriment of the UK, because “the UK only has rights in five areas of coast, whereas I think there are 32 areas of the British coast where other states can fish.”59

38.Prof Churchill and Prof Barnes agreed that the Convention had been superseded by EU law and that the rights were now captured in the annex to the Council Regulation 2371/2002.60 Prof Churchill explained:

“So far as the Member States are concerned, these rights to fishing in the outer six miles, which is what people generally mean when they are talking about historic rights, derive from EU law. They do not derive any longer from the 1964 Convention, because that allowed the EU to have its own regime. The basic regime in the EU is equal access, and the 12-mile limit with the six to 12-mile historic rights are an exception to equal access, so those rights derive from EU law. … when the UK leaves the EU, the Common Fisheries Policy and that Regulation will no longer apply, so … will these rights from 1964 suddenly revive after 40 years? I am rather sceptical about that, but, even if they do… the UK could cover itself and withdraw from that.”61

39.Dr Appleby agreed that the UK could lawfully withdraw from the London Convention and the historic rights contained therein, but noted that withdrawal would take two years, and could have diplomatic consequences for the wider Brexit negotiations.62

Access and co-operation

40.Some witnesses told us that the UK should discontinue the principle of equal access. UKIP found it politically desirable “to gradually restrict access to foreign vessels, which will finally facilitate the proper conservation and management of our UK fish stocks, which is long overdue”.63 Fishing for Leave argued that: “With the UK having the lion’s share of resources, reciprocal access, forced unrestricted upon us through the founding tenant [sic] of the CFP … is a one-way street massively to our detriment.”64 Access, they argued, should therefore only be negotiated “when absolutely necessary”.

41.The majority of witnesses drew on the precedent set by coastal states such as Norway, and argued that the UK would be best served by some degree of reciprocal access arrangements for fishing within the EEZs of neighbouring states. Prof Churchill explained that “in practice states often admit foreign vessels to their waters because they want to get reciprocal access to the waters of the other state”. He continued:

“This happens on a considerable scale with the EU and Norway where the EU is interested in fishing in Norwegian waters for cod, say, because that is a particular interest, and then it is happy to allow Norwegians to fish for more mackerel in the EU zone, even though in neither case is there a surplus.”65

42.This enabled vessels that were specialised in fishing for certain stocks or in certain waters to maximise their fishing patterns, something on which, according to Mr Vidar Landmark, Director General in the Department for Fisheries and Aquaculture at the Norwegian Ministry of Trade, Industry and Fisheries, Norway places great emphasis.66 He told us that the EU and Norway allow fishers to fish their quota “where it is most profitable, whether or not that will be in the Norwegian zone or the EU zone”, ensuring that these stocks are caught in the most economically beneficial area, and conversely are not caught in areas where they may be spawning.67

43.Mr Landmark also told us that the TACs for “most of the Norwegian stocks” were set “in negotiation with other countries” and that Norway had not been tempted to exploit resources in the Norwegian EEZ unilaterally. He noted that some stocks depended on using the EEZs of other countries throughout their lifecycles and, as a result, “isolating us from our neighbours would jeopardise the situation for those stocks—and our industry also sees this.”68

44.A complete closure of the UK EEZ to foreign vessels would probably only be possible if the UK chose not to co-operate with neighbouring coastal states. Prof Churchill told us that “the result is likely to be that fish stocks which are shared—most commercial species around the coast of Britain—would simply become overfished, so it would be rather a hollow victory”.69 Dr Stewart concurred, and noted that a full restriction of access to the UK EEZ would be “very damaging obviously to diplomatic relations, trading relations and all the rest of it”.70 A similar point was made by Dr Appleby, who wrote that revoking historic access rights could have “diplomatic consequences in bilateral relations over and above those which will be part of the Brexit discussions”.71

45.In declaring an Exclusive Economic Zone independent from EU waters, the UK would be able to control the access that foreign vessels have to fishing in UK waters. It will be for the Government of the day to decide whether the principle of equal access should be preserved, and the extent to which foreign vessels should be granted access to fishing in the UK EEZ.

46.The UK could choose to exclude foreign vessels that have gained access to fishing in UK waters through the Common Fisheries Policy, including those that claim historic access rights. To do this it would need to use the full Total Allowable Catches in its Exclusive Economic Zone, while bearing in mind the obligation under international law to co-ordinate with neighbouring states. In making this decision the Government would have to take into account any impact such a change could have on relations with neighbouring states that currently have access to fishing in the UK EEZ.

Quota-hopping

47.Though the UK could choose to restrict EU vessels’ access to fishing in the EEZ, such restrictions would not automatically apply to quota-hopping vessels. Prof Churchill explained that “Quota hopping is possible because of freedom of establishment”, not because of the Common Fisheries Policy.72 The EU Right of Establishment73 allows EU nationals to establish businesses freely in other Member States and therefore also to purchase UK fishing vessels and use UK quotas.

Box 6: Quota hopping74

Quota hopping denotes the practice of fishers from other Member States benefiting from UK quotas by setting up UK companies to buy UK fishing vessels and thereby quotas.

The Merchant Shipping Act 1988 imposed nationality requirements on vessels seeking to benefit from quotas granted to the UK under the CFP. This gave rise to the 1991 Factortame line of cases in which the Court of Justice of the EU ruled, among other matters, that the Act was in breach of EU law.

Source: European Union Committee, The Progress of the Common Fisheries Policy (21st Report, Session 2007-08, HL Paper 146)

48.Prof Churchill thought that the Government would want to preserve freedom of establishment at least in some sectors. He argued it would be “a matter for negotiation whether it is for all sectors or some sectors”.75 This point was echoed by the UK Seafood Industry Alliance (SIA), which noted that the issue was likely to feature in the “wider discussions of the ‘four freedoms’ associated with the Single Market”.76 The Minister recognised that the legal status of quotas held by non-UK nationals after Brexit was complicated and unclear. He said that, after Brexit, the UK could “look at the allocation of quotas to foreign vessels”, but he noted that “we may want to take regard of the fact that in many cases these are commercial entities which bought British vessels and inherited the quota that went with them”.77 He concluded that “there are arguments on both sides”, and added that it was an “intricate” area which had to be discussed within the Government in due course. Restricting access to fishing vessels from other EU countries will therefore not necessarily end the practice of quota hopping. Whether quota-hopping will remain possible after Brexit will be determined by the outcome of the wider negotiations.

49.The Government could seek to ensure that domestic quotas deliver benefits to the UK, regardless of quota-hopping, by strengthening the ‘economic link’. The economic link is a set of conditions that vessels using UK quotas must comply with to illustrate that the quotas benefit UK communities. The NEF suggested that after Brexit: “These conditions could be made more stringent if there is an issue with foreign-owned vessels not contributing sufficiently to the UK.”78 Dr Stewart and Fishing for Leave agreed.79

50.The practice of quota-hopping is possible because of EU Freedom of Establishment rules, rather than as a consequence of the Common Fisheries Policy. Whether the practice is maintained post-Brexit is likely to be determined in the course of the negotiations on withdrawal. In the meantime, the Government could consider whether a strengthening of the ‘economic link’ could enhance the benefits derived from UK quotas for UK communities.


41 Article 63(1), UNCLOS, 10 December 1982: http://www.un.org/depts/los/convention_agreements/texts/unclos/UNCLOS-TOC.htm [accessed 5 December 2016]

42 The general principles of the Agreement are set out in Article 5, Agreement for the implementation of the provisions of the United Nations convention on the law of the sea, 10 December 1982: http://www.un.org/depts/los/convention_agreements/texts/fish_stocks_agreement/CONF164_37.htm [accessed
5 December 2016

43 Article 63, UNCLOS, 10 December 1982: http://www.un.org/depts/los/convention_agreements/texts/unclos/UNCLOS-TOC.htm; Article 8, Agreement for the implementation of the provisions of the United Nations convention on the law of the sea, 10 December 1982: http://www.un.org/depts/los/convention_agreements/texts/fish_stocks_agreement/CONF164_37.htm [accessed 5 December 2016]

44 Written evidence from Dr Thomas Appleby (FBR0012), Fishing for Leave (FBR0002) and UKIP (FBR0009); Q 2 (Prof Robin Churchill), Q 12 (Barrie Deas) and Q 35 (George Eustice MP)

46 Article 61(1) UNCLOS, 10 December 1982: http://www.un.org/depts/los/convention_agreements/texts/unclos/UNCLOS-TOC.htm [accessed 5 December 2016]

47 Article 61(2) UNCLOS, 10 December 1982: http://www.un.org/depts/los/convention_agreements/texts/unclos/UNCLOS-TOC.htm [accessed 5 December 2016]

48 Article 62(4) UNCLOS, 10 December 1982: http://www.un.org/depts/los/convention_agreements/texts/unclos/UNCLOS-TOC.htm [accessed 5 December 2016]

50 Article 63 UNCLOS, 10 December 1982: http://www.un.org/depts/los/convention_agreements/texts/unclos/UNCLOS-TOC.htm [accessed 5 December 2016]; Article 8, Agreement for the implementation of the provisions of the United Nations convention on the law of the sea, 10 December 1982: http://www.un.org/depts/los/convention_agreements/texts/fish_stocks_agreement/CONF164_37.htm [accessed 5 December 2016]

54 Article 62(3) UNCLOS, 10 December 1982: http://www.un.org/depts/los/convention_agreements/texts/unclos/UNCLOS-TOC.htm [accessed 5 December 2016]

55 Written evidence from the NEF (FBR0007)

60 Council Regulation (EC) No 2371/2002 on the conservation and sustainable exploitation of fisheries resources under the Common Fisheries Policy, 20 December 2002, OJ L 358/59

62 Written evidence from Dr Thomas Appleby (FBR0012)

63 Written evidence from UKIP (FBR0009)

64 Written evidence from Fishing for Leave (FBR0002)

71 Written evidence from Dr Thomas Appleby (FBR0012)

74 Court cases (1989) 2 WLR 997; (1989) UKHL 1; (1990) 2 AC 85; (1990) UKHL 7; (1991) 1 AC 603; and (1999) UKHL 4

76 Written evidence from UK Seafood Industry Alliance (FBR0008)

78 Written evidence from the NEF (FBR0007)

79 Q 9; written evidence from Fishing for Leave (FBR0009)




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