Professor Richard Barnes – Written Evidence (NFF0001)
Richard Barnes is Professor of Law at the University of Lincoln. He is an expert in the international law of the sea, with particular interest in the governance of marine resources. Since 2016, he has provided expert evidence on fisheries law and policy to committees of the House of Lords, Welsh Assembly and NI Assembly. He has published widely on law of the sea.
- Key Points. The UK Norway Agreement is a very basic bilateral framework that allows considerable flexibility as how the Parties will cooperate in respect of fisheries matters (ie the terms and extent of access to fishing waters and the use of quotas). The agreement is perhaps more symbolic than substantive, given the basic nature of its provisions. It provides a starting point for more detailed agreements, so its value can only really be judged by how it is implemented in practice. I would make three key observations: First, a key test will be ensuring that any access and quota measures adopted under the agreement respect scientific advice on sustainable fishing levels. Second, given that licensing is a devolved matter, assurances about how this is coordinated in respect of foreign fishing arrangements should be sought from ministers. Third, it is also worth seeking ministerial views on how this agreement might relate to a future bilateral UK/EU agreement, or a trilateral fisheries agreement between UK, Norway and the EU.
- Main features. Following the end of the transition period on 31 December 2020, the UK will no longer be subject to or enjoy rights under the EU-Norway Fisheries Agreement 1980. The present agreement provides the basis for regulating fisheries of common interest between the UK and Norway. The agreement will be critical in providing the basis for continued fishing in Norwegian waters for parts of the UK fleet.
- As a framework agreement it merely establishes the structure and general parameters for cooperation between UK and Norway in respect of fisheries. It does not commit to any specific rights of access or negotiation and allocation of quota, other than what might be implied by its general provisions. Indeed, on the key issue of quota allocations the agreement only refers to this once, and in terms of quota transfers.
- The agreement has four main elements: a commitment to cooperate in the long-term sustainable management of fisheries; to establish a legal framework on access to waters and quota exchanges; to set out the means for licensing of vessels in each other’s waters; and for the parties to agree on operational arrangements, including licensing, monitoring, control, and data exchanges.
- Clear Objectives. The Agreement is to be praised for setting out explicit governing principles for cooperation (Article 1), including long-term sustainable use, the precautionary approach, use of best scientific evidence, minimising harmful impacts of fishing on ecosystems or dependent species, and the preservation of marine biological diversity, However, the principles do not contain a clear commitment to reduce or minimise by-catch. This commitment is contained in the Fisheries Bill it and will be key to effective fisheries management.
- Limited scope: The Agreement applies only to the waters of the Parties respective EEZs (ie between 12m and 200m). It does not include the territorial sea. This may be taken to imply such stocks will be reserved for domestic fleets. The agreement provides no basis for fishing by Norwegian vessels in the UK territorial sea. However, good management practices require that any (foreign) fishing in the EEZ is conducted in a manner that is compatible with and sensitive to fishing interests in the 12m zone.
- The Agreement says nothing about cooperation in respect of conservation and management. It is also silent on matters such as setting total allowable catch and distributing quotas. This may be contrasted with the EU Norway Agreement (Article 7), which requires cooperation to ensure proper conservation and management, and which has resulted in agreed management approaches. Cooperation remains a requirement of general international fisheries law (eg UN Fish Stocks Agreement). Such cooperative measures are not precluded by the UK Norway Agreement. However, explicit reference to this would have strengthened one’s confidence in the agreement’s management credentials.
- Annual Consultations: Access and Quota. The agreement only recognises that access may be granted (Art 3). It does not secure mutual access nor require it to be granted. This is in contrast to the EU Norway Agreement (Article 1) which requires the parties to grant access. In the UK Norway Agreement, any access would be contingent on future agreement resulting from annual consultations (Article 4). As such the agreement concedes little to each other by way of fishing entitlements. Only that access is a possibility and that it is anticipated.
- The UK Norway Agreement operates on the basis of annual consultations. There is little by way of constraints or outcomes required by the agreement. This appears to reflect the Government preference for annual negotiations to ensure longer-term fishing rights are not conceded. There is a reference in the preamble to zonal attachment, but this only signals it as principles of fisheries management. However, it should be stressed there is no requirement under international law (or this agreement) to use it as the basis of quota allocations. This in part sends out a signal to the EU about the UK Government’s stance. However, we should not read too much into this approach. First, specific agreements are always the product of specific negotiations, and so contingent upon the political position and bargaining power of individual parties. Just because this approach is acceptable to the UK and Norway does not mean it will be acceptable in a UK/EU or even the UK. Norway and EU in any future trilateral agreement. Second, the agreement only requires that annual consultations take place. However, the fact consultations take place does not entail that specific outcomes on access and or quota will happen. Neither does this rule out agreements to determine quota shares for longer or shorter periods. The parties remain free to agree such matters. Indeed, the Agreement may be amended by agreement between the parties by way of diplomatic notes, further emphasising the flexible nature of the agreement. For example, although the EU-Norway Agreement refers to annual TACs and allocation, in practice quota shares under the agreement are fixed percentages on an ongoing basis.
- Although this framework preserves a high degree of flexibility, it does mean that the security/stability of longer-term quota shares (eg per the EU Norway agreement) is lost. This may be to the disadvantage of the UK fleet if stocks move out of UK waters, for example as a result of climate change driving distributions northwards. Also, this annual approach may render multi-annual plans more challenging since it requires a review of access and quota matters each year.
- Licensing and Devolved matters. The agreement glosses over the legal competence to licence foreign fishing vessels (Article 5). Under the Fisheries Bill, licensing is a devolved matter. And the grant of a fishing licence is limited to the respective DA/English maritime zones. This may give rise to complications when access to stocks for Norwegian vessels is being considered, and such stocks are located across different UK maritime areas. It would be advisable to seek assurances on how this will be managed, and how devolved competences will be respected.
- Relationship to other agreements. The agreement is without prejudice to other agreements concerning fishing in each other’s waters (Article 9). This leaves open the door for a trilateral agreement between UK, Norway & EU, which could take priority over the UK Norway Agreement. In the event that there are other agreements, the relationship between them will need to be resolved. Given the history of fishing, the existence of common stocks and the general legal duties to cooperate, a trilateral agreement between the UK, Norway and EU would ultimately provide a more effective way of managing shared stocks and questions of access and quota allocations. In practice, a series of bilateral agreements could be adopted, but each would need to be considered in light of other agreements. This would provide a more complex and potentially contentious way of managing fisheries relationships.
20 October 2020