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Brexit: where angels fear to tread

There has been a lot of noise recently on the post-Brexit fate of the UK fishing industry, and the shape of the agreement we will need to forge with the EU. However, sorting out the wheat from the chaff is extraordinarily difficult in a field that is so complicated that very few could claim to understand it fully.

One entertaining meander around the issues can be found here, published some 30 months ago after the UK government had denounced the London Fisheries Convention, of 1964 – part of the process of recovering control over our fishing grounds.

The article, which is heavy on international law, raises serious questions as to whether EU Member States (or fishing vessel owners) could gain continued access to our waters after Brexit, based on the doctrine in international law of what is known as “acquired rights”.

In an area where the complications make a bowl of spaghetti look as straight as an ebony ruler by comparison, that does not apparently prevent some states making a case for the retention of “historic rights”, which have the same effect but stem from a different corner of international law. Names and terminology can have a profound effect on the arguments when the lawyers get involved.

The situation, however, is further complicated by the bane of treaty negotiations, where we are dealing with an uneasy meld of international law, EU law, domestic law and multi-level politics. Boundaries are not clearly defined and responsibilities are blurred, all set against the overarching technical and practical nature of the fishing industry which itself is beyond the grasp of most players and commentators.

On that basis, it is a very brave man (or woman) who can report coherently on what might transpire from the coming trade talks, as the affect fishing, as the EU circles the wagons and starts to leak something of its negotiating position.

That said, whatever legal and political complications there might be, there are several unarguable facts which will serve to frame the discussions.

Firstly, it is a given that the majority (anything up to about 80 percent) of the fish caught in our waters are not sold to British consumers. Secondly, the bulk of fish (a similar percentage) consumed in the UK are caught in non-EU waters – and especially Norway, Iceland and the Faeroes.

Further, even if we were to gain absolute control over UK waters after Brexit, and we able to exclude all foreign vessels, the British-flagged fishing fleet does not have the capacity to harvest the biomass that would become available.

But, even if it could, UK vessels would be prohibited from landing their catches in the ports of EU Member States, until the UK government had lodged a fisheries management plan with the EU, and it had been approved by the European Commission.

Despite the rhetoric on “taking back control”, therefore, and the desire in certain Brexiter quarters to purge our seas of “Johnny Foreigner”, everybody has something to gain from allowing vessels registered in EU Member States continued access to UK waters.

Both sides, though, will be keen leverage their positions to gain the greatest possible advantages for themselves. Thus, we see reports that the EU is prepared to offer the City of London access to its financial markets in return for the retention of fishing rights in UK waters.

However, things are not that simple. They never are. As soon as the UK leaves the EU, it becomes a third country. Not only are UK vessels then cut off from the EU market until a management plan is lodged and approved, vessels flagged in EU Member States are likewise prohibited from accessing UK waters or landing catches in EU Member State ports.

Thus, while the UK has a bargaining chip, in that it can trade access to its fishing waters for concessions, elsewhere, it too needs the goodwill of the Commission to expedite approval of a UK fisheries management plan, as that serves both EU and UK interests.

But there is also the question of reciprocal access. Some UK fishing vessels traditionally fish in the waters of EU Member States, while some also benefit from access to the waters of third countries, such as Mauritius, via EU-brokered “Sustainable Fisheries Partnership Agreements”. There will be a price to pay for continued access there.

Then there are also EU quota agreements with Norway and the Faeroes, for which some continuity arrangements will have to be brokered, pending the UK making its own agreements, presumably via the North-East Atlantic Fisheries Convention.

Certainly, according to the EU’s own preparatory discussions, it is seeking to maintain reciprocal access to fishing waters, but secured “in the overall context of the FTA” which the EU is about to negotiate.

Nevertheless, the situation therefore, is far from straightforward and either side could easily overplay its hand. The UK might have on offer access to its waters but, on the other hand, that access is of limited value if the Commission refuses to endorse the UK’s fisheries management plan. In effect, the Commission has the capability to veto any deal, outside the framework of the FTA negotiations, which it could well do if it believes that the asking price is too high.

Then, if the UK pushes its luck too far, there is always the possibility that one or other Member States might find compliant lawyers willing to take a case to the International Court at the Hague, arguing for “historic rights” or whatever other device that might get them a hearing.

And yet, if the EU demands too much, the UK could simply close down all access to vessels on the EU Member State registers, and ride out the storm until it can secure better terms.

Whether the UK has the resources to police a fisheries ban, however, is another question. No doubt the RAF’s newly acquired P-8A Poseidon maritime patrol aircraft (pictured) will come in handy. To intercept rogue fishing vessels, though, surface asserts are still needed, and it is unlikely that the Royal Navy has the resource to fight a full-scale “cod war”.

For all that, the specific details will only get us so far, while the EU is making it clear that it has other priorities to address before it gets down to the nitty-gritty. As we heard recently from Michel Barnier, the first thing on the list is new capacity building, setting up mechanisms and institutions that will enable the EU and the UK to work together in the future.

From the EU briefing, we learn that this will include “adequate mechanisms to ensure effective implementation domestically, enforcement and dispute settlement mechanisms in the agreement”, as well as “Union autonomous remedies, that are all commensurate with the depth and breadth of the EU-UK economic connectedness”.

The latter is being described as a “punishment clause” which would allow the EU to take unilateral action in the event of the UK failing to abide with the terms of the agreement and permitting uncontrolled divergence. This might have special relevance where ECJ judgements are overturned.

In the coming talks, such matters are likely to dominate the agenda, leaving little time for detailed sectoral talks. Perhaps all we can expect on fishing is some form of status quo agreement, on the back of the EU’s approval of a management plan, until more substantive issues are settled.

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