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Brexit and IUU Fishing

Introduction

The Government of the United Kingdom (UK) has announced that it will trigger the procedure for withdrawal from the European Union (EU or Union) in March this year. As part of this process, the UK is likely to leave the Common Fisheries Policy (CFP), reclaim its exclusive economic zone (EEZ), and resume international activity as a single State for the purposes of exercising rights and responsibilities as a flag, coastal, port and market State. Consequently, it will take its own decisions in international fisheries fora and bilateral negotiations, including for the purposes of illegal, unreported and unregulated (IUU) fishing control. This blog post discusses what the UK’s withdrawal from the EU may mean for the fight against IUU fishing, and related fisheries control policies that have so far been shared between the UK and the other States in the Union.[1]

Background to the Legislation for IUU Fishing Control in the European Union

Council Regulation (EC) 1005/2008 (the IUU Regulation) was adopted by the European Council on 29 Sept 2008, and came into force in January 2010, alongside implementing Commission Regulation 1010/2009.[2] The IUU Regulation and its complementing legislation establish a legal and institutional framework for cooperation in the fight against IUU fishing. They articulated a set of administrative and operational controls across the Member States of the EU, through which non-EU States with regulatory authority over fishing activities are engaged in respect of detected IUU fishing activity.

Axiomatic to the regulatory framework of the IUU Regulation is State compliance with all applicable international fishery conservation laws, and regional conservation and management measures. The IUU Regulation primarily concerns IUU controls on imports of non-excluded seafood products from outside the EU,[3] as well as re-exports. Failure to observe international obligations in respect of flag, coastal or market State responsibilities may prompt warnings,[4] and under certain circumstances also trade suspensions. The IUU Regulation is based on the premise of mutuality in cooperation among Member States as well as third countries, which is underpinned by information exchange and verification processes.[5]

The IUU Regulation and the UK

As a member State of the European Union, the UK responded to the adoption of the IUU Regulation by adapting its domestic legal, operational and administrative framework in support of the shared regulatory objective to control IUU trade. DEFRA contributed to the development of operational systems, regulatory structures, training and the strengthening of communications with the Commission and with the other Member States of the Union. DEFRA and SeaFish published information on the main provisions of the Regulation, and its implementation in the United Kingdom. Regulatory adjustments were made under the powers conferred by section 2(2) of, and paragraph 1A(f) of Schedule 2 to, the European Communities Act 1972, and section 30(2) of the Fisheries Act 1981 for the implementation of the Regulations by way of the Sea Fishing (Illegal, Unreported and Unregulated Fishing) Order 2009.[6] UK businesses, particularly importers and retailers, have invested considerable effort in adapting to the requirements of the IUU Regulation, and arguably have an interest in the maintenance of IUU controls as a domestic policy.

UK Withdrawal from the EU and IUU fishing control

Given its full integration in the regulatory arrangements that underpin IUU control in the Union, and the high rate of importations recorded by UK authorities, the withdrawal of the UK from the EU will not be consequence-free. Some of the effects of its withdrawal are likely to be potentially damaging for both parties, and detrimental to the objectives of the IUU Regulation.

Among the regulatory processes that appear less vulnerable to the impact of the UK’s withdrawal from the EU are catch certification arrangements. The flexibility of the regime is evidenced by existing agreements between the EU and non-member States, including New Zealand, the United States and Norway. These arrangements recognise the similarity of domestic regulatory approaches for the purposes of certification, agency interaction, and record keeping.[7] The UK’s integration in the regulatory fabric of the EU in all aspects of IUU fishing control to date suggests that certification arrangements are likely to be perpetuated. There may, however, be loss of coherence between the arrangements if there is no parallel reflection of planned future improvements.

Other cooperative arrangements under the IUU Regulation may be more vulnerable to the negative consequences of the UK’s exit. Among these, the removal of the UK from the internal administrative web of cooperation that supports the operational dimension of the IUU Regulation. This includes intelligence-sharing arrangements concerning IUU risk and verification data under Chapter IV of the IUU Regulation, which establishes the Community Alert System. The sharing of methodologies is essential to avoid misreporting and discourage port-hopping, one of the most important factors in the perpetuation of IUU fishing practices. Inter-agency cooperation and risk assessment systems are key for controls to be effective, and for enabling learning and adaptive growth and resilience against the highly dynamic nature of IUU fishing capture and ensuing transport and processing practices.

Responses to Confirmed IUU Fishing Activity 

The European Commission has adopted a high profile policy of warning third countries that it suspects as being non-cooperating for the purposes of IUU fishing control. The yellow and red carding system follows a formal process of approval that may culminate in the adoption of restrictive measures, including the possibility of trade suspensions, under Article 38 of the IUU Regulation. Once the UK leaves the EU, it will no longer engage in the participatory processes whereby carding decisions are taken, and resulting restrictions will not involve the UK market. This is likely to weaken the reach of some of the measures, as these commonly depend on scale and homogeneity for effectiveness, such as  restrictions in the provision of services to third country IUU listed vessels.[8]  Although there is likely to be loss of coherence in sanctioning approaches, some vessel black lists should persist, insofar as they concern regional fishery organisations of which the UK becomes a party. Lastly, the risk of deregulation in the UK, if ultimately realised, would accentuate discrepancies in market controls.

The IUU Regulation and Shared Stock Management

Upon exit, UK exports to the EU will be subject to the controls and conditions of the IUU Regulation.[9] Regular EU importation processes have been built on a certification strategy that is currently shared by the UK, and should not need major adjustment. International legal obligations exist for both parties in respect of the conservation and cooperative management of shared and straddling stocks under the 1982 United Nations Convention on the Law of the Sea, the 1995 Fish Stocks Agreement, and other applicable global and regional treaties. Potential breaches are in principle relevant for the operationalisation of the IUU Regulation, although only in respect of stock intended for exportation to the EU.

Conclusion

The UK’s departure from the Union has the potential to be detrimental to IUU fishing control policies, given the UK’s prominence as an import market. The overall loss of EU market size, impoverishment of intelligence-sharing mechanisms, and loss of integrity in the articulation of responses to IUU fishing, may erode the efficiency of the system, and cause it to lose global impact in some cases. For the UK, there may be a loss of resilience and opportunity for adaptation to IUU threats, resulting from the withdrawal from EU cooperation, data-sharing and training networks. In order to minimise negative impacts, and given that currently there are no fundamental differences in the IUU control mechanisms in place in the UK and the rest of the Union, the perpetuation of harmonised administrative and operational arrangements should, where possible, be maintained.

There is a risk that the current success of the EU’s approach to IUU fishing control may be unnecessarily damaged, especially if there is loss of good will as a consequence of frictions in shared or straddling stock management negotiations. The IUU Regulation is a flagship tool in the EU’s continuing external fisheries policy, and one of which the UK has been a strong supporter. Maximising the integrity and resilience of the processes it has helped create is essential for the success of IUU fishing control worldwide. The continuing observance of applicable international conservation and cooperation commitments by both parties will be instrumental to ensure the perpetuation of its success.

Mercedes Rosello, February 2017.

[1] This blog post is a considered opinion by the author only, and has not been written or published for the provision of legal advice.

[2] Later additions include Regulation 86/2010, updating the list of excluded products.

[3] Article 8.2 of the IUU Regulation states: ‘fishery products’ mean any products which fall under Chapter 03 and Tariff headings 1604 and 1605 of the Combined Nomenclature established by Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff (1), with the exception of the products listed in Annex I (…).

[4] Article 31.3 of the IUU Regulation.

[5] See Preamble paragraph 38, and Article 12.4 of the IUU Regulation.

[6] http://www.legislation.gov.uk/uksi/2009/3391/pdfs/uksi_20093391_en.pdf. The Order implemented sanctions under Regulation 2847/93, later repealed by Regulation 1224/2009 (the Control Regulation). In Scotland, similar arrangements were made through the Sea Fishing (Illegal, Unreported and Unregulated Fishing) (Scotland) Order 2013.

[7] Specimen catch certificates and provision for the development of assistance and data exchange processes are set out in Regulation 86/2010.

[8] See Articles 4.2, 5.2 and 6.1(b) of the IUU Regulation.

[9] Article 31.4(a) of the IUU Regulation.

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