The UK-EU Fisheries negotiations: untying the knots

In this post, Harry Gillow of Monckton Chambers assesses the state of play of the negotiations between the UK and EU on fisheries and the parties’ respective legal texts.

It’s hard to deny that Brexit was driven in part by the UK’s maritime separation from the continent and image of itself as an island nation; it’s perhaps therefore ironic that one of the biggest obstacles to a future EU-UK trade deal comes from the sea. With the June deadline for progress on negotiations fast approaching, an agreement on fishing rights is still a distant prospect, with UK and EU further apart than ever. Disagreement extends as far as the very basis on which discussions are conducted. The UK Government has, since the earliest days of negotiating the Withdrawal Agreement, taken the view that any agreement on fishing access to EU and UK waters should be separate from the future trade agreement; the EU has insisted that the two must be linked.

There’s not necessarily any obvious reason why access and trade should be linked – many countries import fish without allowing access by its trading partners’ fleets to its waters. Nevertheless, it’s easy to see why the positions of each side have hardened where they are. EU nations take some 60% of fish caught in British waters each year, around 760,000 tonnes annually, compared with around 90,000 tonnes landed in EU waters by British fishermen (see the 2018 Fisheries White Paper, based on averages from 2012-2016). As far as trade is concerned, the relationship is tilted the other way – according to the UK Trade Info database (April 2018), while 70% of UK fish exports by value go to the EU (worth around £1.3 billion annually), imports from the EU are by value only 34% of UK fish imports overall (worth £1.1 billion annually).

The draft texts

The EU Commission published its Draft text of the Agreement on the New Partnership between the European Union and the United Kingdom on 12 March 2020, followed by an amended version on 18 March 2020; true to its past approach, the proposed text for a fisheries agreement was incorporated into the broader agreement on economic partnership, and is found at Title Five.

In essence, the EU’s position is that little should change from pre-Brexit arrangements under the Common Fisheries Policy. The EU draft fisheries text is divided into three chapters, the first setting out 15 objectives for the agreement, the second governing conservation and sustainable exploitation of fish stocks, and the third providing for continued reciprocal access of EU vessels to UK waters, and vice versa.

Under the provisions of the third chapter, each party would have access to “jointly managed stocks and other stocks”; negotiations would begin each year on 31 January to agree total annual catches of each stock, which would be shared based on fixed percentages set in the agreement. This is in line with the current approach under the Common Fisheries Policy of annual negotiations between EU Member States to determine the total allowable catch; in the absence of agreement, the EU’s draft text requires allowable catches to be set at maximum sustainable yield (the greatest catch that can be taken from a stock without significantly affecting its reproduction process) or, if that data is unavailable, at the “precautionary level” (Article FISH.2(j) states that a “precautionary approach”  is “an approach according to which absence of adequate scientific information should not justify postponing or failing to take management measures to conserve target species, associated or dependent species and non-target species and their environment”).

Failure to comply with the agreement would allow either party to suspend trade tariffs concession on goods covered by the trade agreement within seven days; disputes would then be subject to arbitration and cannot be pursued through other channels such as the WTO.

The UK draft fisheries framework agreement – notably separate from an overarching economic partnership agreement – was published on 19 May 2020, in advance of the fourth round of UK-EU negotiations. The UK text, in stark contrast to the EU’s, is based on the principle of the UK as an independent coastal state following Brexit, with control over the resources, including fish, in its exclusive economic zone. The UK’s proposal is based on, as set out in the introduction to the text, relevant international precedents, including those between the EU and other coastal states such as Norway. It provides for annual negotiations to determine fishing opportunities (the percentage of the total agreed catch that each party is allowed to collect in each other’s waters). It also provides for a Fisheries Co-operation Forum, with the aim of setting this up by January 2021; this would allow “for discussion and cooperation in relation to sustainable fisheries management, including monitoring, control and enforcement”.

Further provisions at Articles 8 and 9 require the parties to consult on questions relating to the implementation and functioning of the agreement, or in the case of a dispute, and allow either party to suspend the agreement on three months’ notice should there be a dispute or failure to comply one side.

Discussion

So far as the EU’s draft text is concerned, the provisions of the second chapter, and the objectives in the first relating to conservation and sustainable fishing, are unlikely to present a substantial obstacle to agreement in and of themselves. Many of the objectives mirror those set by the UK Government, including those on stock recoveries, co-operation on conservation, management and data collection, basing policies on the best available science, and cooperating to prevent illegal or unregulated fishing. The objectives do, however, provide for a number of potential constraints on UK fishing policy post-Brexit. The commitment to continue to fish at maximum sustainable yield would prevent the UK from setting allowable catches at a higher or lower rate in its waters, and the commitment to eliminate discards of fish landed could clash in future with the provisions in the Fisheries Bill currently in the House of Lords allowing for measures to amend the landing obligation.

The positions on fishing access are, however, miles apart. While the UK has stated that any changes to the distribution of quotas should happen gradually, it’s clear that the underlying shift will be towards redistributing catches in British waters to British fisherman. The EU position, a continuation of the status quo, is unlikely to be acceptable to the UK Government, and would eliminate any potential benefit to the British fishing industry from Brexit.

There have been signs that even the EU’s negotiating team recognise that its demands on fisheries are a little too much, and tentative hope that a compromise could be reached as a result. It was reported on Sunday, however, that Michel Barnier’s attempt to propose a compromise in last week’s talk was blocked by a number of member states with large fishing communities. The aim of the Withdrawal Agreement’s Political Declaration – that agreement on fisheries be reached by 1 July 2020 – is looking increasingly unlikely.

This may have far-reaching ramifications for negotiations more broadly. Should the EU maintain its insistence that fishing access be linked to broader questions of trade, then it’s conceivable that a future trade agreement could be derailed by what is – in absolute terms – a relatively minor industry. It’s hard to escape the conclusion that for progress to be made, far more flexibility is required from the EU. While it’s understandable, not to mention in line with the requirements on the UN Convention on the Law of the Sea (UNCLOS), that EU fishermen should have some access to UK waters post-transition, to expect a complete continuation of the status quo is a demand that the UK Government is highly unlikely to be able accede to, not least for domestic political reasons.

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