Hopefully it’s confusion rather than betrayal

Michael Gove’s comments to Danish fishermen about access to UK waters after Brexit have attracted some adverse criticism. We have not been provided with a full record of his actual words and it is quite likely he has been misquoted. Furthermore, he has only been in the job a few weeks and there is a lot of detail for him to take on board.

The same cannot be said for the Civil Servants of DEFRA, the Department for the Environment, Food and Rural Affairs, who should know better, A statement by one of their spokesman is therefore far more of a cause for concern than Mr Gove’s comments in Denmark. The spokesman said:-

“Leaving the EU means we will take back control of our territorial waters. As we have always said, other countries will be able to access our waters – but for the first time in 50 years it will be on our terms and under our control…..We will allocate quotas on the basis of what is scientifically sustainable, making sure we have a healthy marine environment and profitable fishing industry in the UK.”

The fishing industry has always been concerned that the Government will only allow British vessels the exclusive use of the 12 nautical mile zone – in other words, out territorial waters. This is  what the DEFRA statement has indicated and the recent the Conservative manifesto said the same thing. Taking the DEFRA statement at face value, it would appear that arrangements regarding our Exclusive Economic Zone (EEZ) covering the area from 12 nautical miles up to 200 nautical miles/median line will continue as at present. This means that EU vessels will continue to take around 59% of the British people’s resource and the failed quota system will continue. Is this really what Mr Gove has in mind?

So why did the department use the word “Territorial”?

This is where confusion is creeping in. This doesn’t apply just to fishing but right across the whole range of Brexit-related issues. The public is stating to get restless and are wondering whether those at the top know what they are doing or else fear that they are deceiving us again. This is unhealthy, and proves once again the importance of detail.

Consequentially, Gove, probably for no fault of his own, will be under pressure now not only to explain his own comments but also the actions of his department. The burden on Gove’s shoulders cannot be exaggerated. The survival of the Government  – and indeed, the Conservative party – could rest in his hands. If the EEZ is traded away, then Brexit isn’t Brexit. DEFRA may state, “it will be on our terms and under our control”, but if the existing quota system of the CFP is used, the expected benefits will not materialise. Life after Brexit has to be a success for our fishing industry, not a continuation of the present story of decline.

The confusion stems directly from the DEFRA statement – “As we have always said, other countries will be able to access our water”. There is nothing wrong with these words as all free and independent fishing nations have reciprocal arrangements with their neighbours. Under international Law, UNCLOS3 article 62(2) states that if you haven’t the fishing capacity to take the resource, the amount you can’t catch can be given to your neighbours. The problem here is the civil servants will have advised Gove that we haven’t the capacity, whereas in reality we have.

The confusion centres around this word “Territorial.” UNCLOS3 has different rules for the territorial waters up to 12 nautical miles from the coastline and the Exclusive Economic Zone reaching out to 200 nautical miles/median line zone.

No one is saying that we should throw all EU vessels out on 30th March 2019, but no permanent rights must be given, only temporary transitional rights on a declining annual basis. What is vital, however, is that we need to know whether DEFRA is making the common mistake of using the term “Territorial waters”  when it actually means EEZ or whether it really does mean that we will only control the 12 nautical mile limit.

If so, it would be a shameful betrayal of our fishermen on a par with Fisheries Minister Peter Walker, who told Parliament in January 1983 – “the reality is that if the UK, instead of demanding anything like the historic proportions of Europe’s fish that it had caught, demanded a 200 mile limit and 50% or 60 % of Europe’s fish, that would mean the destruction of the fishing industries of most of our friends and partners in western Europe”.

Unfortunately the attitude that fishermen in other countries come before our own still prevails in some quarters. Thankfully, in Michael Gove, we have a person who has hit the deck running and is prepared to listen and learn. He has already shown in denouncing the London Convention  that he is someone who can and will take action. Ultimately, it is the job of civil servants to implement, not decide policy, so we can but hope that when Mr Gove really has his feet under the table that there will be a change of tone from DEFRA.

The way his Danish visit has been reported in the press will also underline to him how important it is for his department to issue clear, unambiguous statements, leaving no room for confusion over a very delicate subject.

A small step – the denunciation of the 1964 Fisheries Convention at last!

Within a week of taking up his new post as Secretary of State Environment, Food and Rural Affairs, Michael Gove, has finally denounced the London 1964 Fisheries Convention. This is a small and welcome step towards Brexit, but one which should have been done at the same time as Article 50, as both require two years’ notice of termination. It means that unless we get a time extension to the Article 50 process, there will be a 3-month overlap.

The 1964 Convention was an agreement between the UK and some other European countries about fishing rights in each other’s waters. It was disadvantageous to UK fishermen and very beneficial to the French, possibly as a sop to General de Gaulle, who was not at all keen to see us join the European Community, with which we were currently in negotiations with at the time.

There are some grounds for saying it may make little difference as the Convention is vessel-specific and very few, if any, boats mentioned in the 1964 agreement are likely to be commercially active.

Of course, our membership of the EU has superseded it. Michel Barnier tweeted yesterday:-

UK denunciation of London Convention=no change: EU law/Common Fisheries Policy had superseded it. EU 27 interests=my priority for negs

This is a very telling. In one sense, Barnier is correct, as the detail of the Convention was transferred into EU regulation. On Brexit day, however, the regulation ceases to apply, and we revert to previous domestic legislation which, if it had not been denounced today, would have continued the right of access to our 6 to 12 nautical mile limit.

Note again, “EU 27 interests=my priority for negs.” Given that France gained most from the 1964 Convention, in any negotiations for a post-Brexit fishing settlement, you can expect France to demand access rights to fish in UK waters.

So while today’s move has cleared the way for UK control of our waters up to 12 nautical miles from the coast, there is still the question of control of our seas between 12 and 200 nautical miles (or the median point where the sea is less than 400 nautical miles wide). The Great Repeal Bill will repeal the European Communities 1972 Act, but at the same time will repatriate EU law into UK law – in other words, EU legislation will still be on our statute books but will take its authority from Westminster and not Brussels. This means that while Article 50 would take us out of the Common Fisheries Policy, the Great Repeal Bill, unless it excludes fisheries, would more or less take us straight back in again.

The separate Fisheries Bill will counter that, as long as it takes effect at exactly the same time as, or before, the Great Repeal Bill. If there is any overlap, this will result in huge problems of continuity and legal challenges.

As the time ticks away towards 30th March 2019, ministers need to remember the Kent Kirk case. This Danish skipper deliberately fished in UK waters to test the situation when there were uncertainties following the termination of a fisheries agreement without anything being put in its place.

Once we reach the end of the Article 50 period in March 2019, all EU treaties and regulations will cease to apply to the UK, and we revert to our own UK legislation. It is vital to sort out a fisheries policy before then and the timetable is short. Under Article 50, unless there is unanimous agreement among the 27 members to extend the two year period, we have 21 months left to achieve a withdrawal agreement. When you consider all that needs to be done in such a short space of time, it raises the question as to whether this is possible.

The EU is in the driving seat when it comes to determining the terms of withdrawal. The UK can say yes or no and even then, the Council and the European Parliament have a vote. While the EU is obliged by treaty to conclude a deal, it could make life so difficult that the UK either has to submit or say no.

However, circumstances have dealt us a strong hand as far as fisheries is concerned. If there is no fisheries agreement, no EU vessel will be able to fish in our waters. Given the French fishing Industry needs access to UK waters to survive, it will be putting a lot of pressure on the EU’s negotiators to fight hard on its behalf. It is vital that our side does not give in. Gove has thrown down the gauntlet and even today’s action has ruffled a few feathers. He will need to steel himself for a far worse reaction if he is to see this through to the bitter end and reclaim full control out to the 200 nautical mile/median point limit.

(See also this press release from Fishing for Leave)

The rise and possible demise of the SNP

Although the SNP came into being in 1934, it only achieved a modest degree of success until the two 1974 elections, when it grew from one parliamentary seat to seven and then eleven, including several seats in the North East of Scotland. In the next general election that area of Scotland went blue again and remained a Conservative stronghold until the 1987 election when the SNP took the Moray and Banff seats which it held for the next 30 years – often referred to as the Alex Salmond period.

The SNP unquestionably hit a peak in 2015, when it won all but three seats in Scotland. Two years later, however, the party lost two seats in the Moray Firth area while the Tories also took the prize scalp of Alex Salmond in the neighbouring seat of  Gordon.

At the start of Salmond’s parliamentary career he fully supported the fishing communities, just as those communities supported the SNP, both financially and with their votes.

For instance, here is an extract from Hansard where Alex Salmond brought in a private members Bill on Fisheries Jurisdiction:-

(756HC Deb 02 March 2004 vol 418 cc756-8)

Mr Alex Salmond (Banff and Buchan) (SNP)

I beg to move, That leave be given to bring in a Bill to make provision for withdrawal from the Common Fisheries Policy of the European Union; to amend the Fisheries Limits Act 1976; to make provision about the exercise of functions under that Act by Scottish Ministers, the National Assembly for Wales, Northern Ireland Ministers and the Secretary of State; to provide that that Act shall have effect regardless of the provisions of the European Communities Act 1972; to define Scottish, Welsh and Northern Irish waters; and for connected purposes. The Bill is supported by hon. Members of all eight political parties that are represented in the Chamber, which is unusual for a politically controversial measure, and, more important, by every fishing organisation in the country, both offshore and onshore.

And as Scottish First Minister, he later said on 29th. May 2008, when answering a question from Karen Gillan:-

“No one seriously believes that the common fisheries policy has brought benefits to Scottish fishermen or fish stocks. We are committed to withdrawing from that damaging policy.”

However, by 2015, the SNP position had become more ambivalent.  In a Parliamentary debate on 10th September 2015, Sheryll Murray, the MP   for Cornwall South East, said:-

“I notice that there are some hon. Members from the Scottish National party present. If one of them makes a speech, perhaps they will clarify their policy, which I am confused about. In 2003 the SNP MEP Ian Hudghton said that equal access to a common resource was fundamental to the common fisheries policy, and that no one could change it. Yet I remember that in the early days of my involvement in fisheries policy Alex Salmond, who was then the Member for Banff and Buchan, promoted a private Member’s Bill to restore national control”.

The confusion continues to this day.  The SNP 2017 manifesto expressed a desire to re-join the EU while at the same time saying,

“We will continue, in all circumstances, to demand the scrapping or fundamental reform of the Common Fisheries Policy”

This statement is nonsense. You cannot re-join the EU if you advocate such a policy. Indeed, you would have thought that the SNP would have learned a lesson from the earlier Conservative demise in Scotland – you must not betray your core supporters. Yet this is exactly what they have done and the fishing communities have taken their vengeance. Salmond appears to think he will be back, but he will have to move well away from the coast. The Scottish Tory leader Ruth Davidson has plenty of evidence to use against him if he tries to make a comeback. Anyone can access the Parliamentary documents of Hansard to read his statements.

On polling day Salmond looked grim and deservedly so. He needs to consider why he lost his seat.  For all those years he supported the fishermen, but then power went to his head to such an extent he stopped visiting his fishing supporters. Democracy has worked, but the Conservatives must take note too about what has happened. If they mess up the post-Brexit fishing policy, the Scottish Conservative bandwagon will quickly grind to a halt.

It is ironic that the talk over the past year or so has been about Scottish independence, and separation, but thanks in no small measure to the fishing communities, it is Scotland that has kept Mrs. May in a position to continue as Prime Minister of the UK.

Could fisheries prick the SNP’s bubble in Scotland?

The roots of the SNP lie in the coastal communities, especially the fishing communities that in the 1960s were safe Conservative seats. It was Edward Heath’s surrender of our fishing industry which  provided the impetus for SNP’s subsequent growth. Alex Salmond, the previous leader of the SNP, once put forward a private members Bill to take back control of UK fishing grounds of 200 nautical miles/median line zone during his first stint as a Westminster MP.

How times have changed! Power has gone to the SNP’s head and now they do not want to be in an union with the UK but want Scotland to be part of the Union of the EU.

But what would happen if, following Brexit, Scotland voted for independence and then re-joined the EU? The membership terms are unequivocal: Scotland would have to hand back her Exclusive Economic Zone (EEZ) to the EU on the basis of equal access to a common resource without discrimination, and not increasing fishing effort.

Furthermore, the rules of the Common Fisheries Policy state that EU fishing capacity must be balanced to EU marine resource, and with the loss to the EU of the UK’s EEZ, even though Scotland would have its own EEZ, the loss of the English, Welsh and Northern Irish EEZs would result in the EU having to reduce its overall fishing capacity, but that reduced number of vessels would have to share in that reduced capacity – including Scotland’s EEZ.

So if the SNP were to take an independent Scotland back into the EU, it would result in a further decline in the Scottish fleet, finishing off the already devastated coastal communities that originally helped to create the SNP.

It does not end there. The territorial waters of 12 nautical miles come back to the coastal state through a transitional derogation which expires on 31st. December 2022 and would have to be renewed. With the rest of the UK out of the EU and our Accession treaty of 1972 (which was the main reason for the 12 mile derogation) now confined to history, why would the EU wish to offer a fresh derogation covering Scottish waters only? In other words, Scotland could find herself with the EU vessels fishing up to her beaches.

The SNP will huff and puff over this, saying they will negotiate, but there is no way out. These are the rules of EU membership. If, therefore, the SNP is so desperate to rejoin the EU, it would be at the cost of destroying the party’s roots.

The Conservatives, who are currently looking to become the main challengers to the SNP north of the border, would benefit immensely from including a clear fishing policy on the lines we have proposed in their manifesto. Who knows, it may enable them to recapture those seats they lost in the the 1960s and 1970s and tear the heart out of the SNP?

Fisheries: Oral questions following the Prime Minister’s statement

Following on from Mrs May’s announcement last week that Article 50 had finally been triggered, it was encouraging to note how many oral and written questions on the subject of fisheries were asked. Equally encouraging were the answers from the Prime Minister. We are still some way off from any definitive statement about future fisheries policies, but there seems to be a growing recognition of the problems that would ensue by transposing fisheries Regulation 1380/2013 onto the UK statute books.   Here are the questions and answers in full, with my observations and comments in italics:-

 ORAL QUESTIONS

(1) Mr Owen Paterson (North Shropshire) (Con)

May I thank my right hon. Friend for and congratulate her on resolutely sticking to her promise to the British people to trigger article 50 before the end of March? There will be celebrations all around the country, nowhere more so than in our remote coastal communities, where the health and wealth of our fishing grounds has been trashed by the common fisheries policy. To re-establish fully our national control of the full exclusive economic zone, we will have to abrogate our membership of the 1964 London convention on fisheries, which requires two years’ notice. Does my right hon. Friend intend to trigger that soon?

The Prime Minister

I know that my right hon. Friend has always had a particular interest in the impact of the common fisheries policy, and he has looked at that issue very carefully. We are looking very carefully at the London fisheries convention and at what action needs to be taken. He is right that this would require two years, but we of course expect to conclude the deal with the European Union within two years and there will then, as I have indicated, be an implementation period beyond that particular time. We hope to be able to say something about the London fisheries convention soon

(At least we have confirmation that they know all about London convention – JA)

(2) Kate Hoey (Vauxhall) (Lab)

On what is a genuinely historic day for our country, may I pay tribute to the Prime Minister and to the Brexit Ministers for their determination and dedication in getting to this stage today to implement the will of the British people? Does she agree that one area on which we should be able to move forward very quickly in negotiations is getting back control of our fishing grounds?

The Prime Minister

My right hon. Friend the Member for North Shropshire (Mr Paterson), the former Secretary of State for Environment, Food and Rural Affairs, mentioned the London fisheries convention. The Department for Environment, Food and Rural Affairs is looking at this issue and we hope to be able to say something soon. As we look at the whole raft of negotiations, we will be looking at policies that affect not just trade in goods and services, but agriculture and fisheries here in the United Kingdom, and security and crime. We will be looking particularly at the London fisheries convention in due course

(Further confirmation that Fisheries are being looked into)

(3) Martin Vickers (Cleethorpes) (Con)

For those of us who campaigned and voted for Brexit not just last year, but in 1975 this is a great day and one for celebration. Some 70% of my Cleethorpes constituents and of those in neighbouring Grimsby voted for Brexit last June, partly as a result of continuing anger and resentment at the sell-out of the fishing industry in the original negotiations. The Prime Minister has already reassured me that the fishing industry will be looked after, but the associated seafood industry is very much dependent on the fishing industry. I have already met industry leaders in my constituency who see both opportunities and concerns, so will she reassure me that the seafood processing industry will be a key part of the negotiations?

The Prime Minister

I can give my hon. Friend the assurance that we want to ensure not only that we get a good future for our fishing industry, but that those parts of industry that rely on fishing will also have a good future here in the UK. We will be taking that into account.

(This looks as if they are keen to address the concerns of fishermen, but do they fully understand the pitfalls?)

(4) Dr Sarah Wollaston (Totnes) (Con)

I welcome the Prime Minister’s clear commitment to a positive, constructive and respectful approach to the negotiations that lie ahead. May I press her further on behalf of the fishing community in my constituency and around the United Kingdom? She will know that in the past these people have been badly let down during negotiations, so ​will she give an equally clear commitment that the fishing community will receive a sufficiently high priority during the negotiations ahead?

The Prime Minister

I can confirm to my hon. Friend that we are very conscious of the needs of the fishing industry. The Department for Environment, Food and Rural Affairs has been talking to the fishing industry. The Secretary of State and others have been looking carefully at the arrangements that will need to be put in place in the interests of the fishing industry, and that will be an important part of our considerations in future.

(I would love to know exactly who within the fishing industry they  have been talking to!)

WRITTEN QUSTIONS

(1) Kevin Hollinrake Conservative, Thirsk and Malton

To ask the Secretary of State for Environment, Food and Rural Affairs, which EU fishery regulations will be transferred to domestic legislation through the Great Repeal Bill.

George Eustice The Minister of State, Department for Environment, Food and Rural Affairs

We are currently analysing all EU fisheries legislation. No decision has yet been made on the extent to which the EU legislation governing the Common Fisheries Policy will be incorporated into domestic law.

The Government remains fully committed to controlling and managing UK waters after we leave the EU in accordance with our rights and obligations under international law.

We are considering the issue of the London Fisheries Convention carefully to ensure we have full control of UK waters after we leave the EU and, as the Prime Minister said on 29th March 2017, we hope to be able to say something about it soon

(2) Lord Pearson of Rannoch UKIP

To ask Her Majesty’s Government under what arrangements vessels of other EU member states fish in UK waters between the six and 12 nautical mile limits; and by what process those arrangements could be terminated.

 Lord Gardiner of Kimble The Parliamentary Under-Secretary of State for Environment, Food and Rural Affairs

Under Article 5 (2) of Council Regulation 1380/2013 on the Common Fisheries Policy, and the 1964 London Fisheries Convention, vessels from Belgium, Germany, France, Netherlands, Denmark and the Republic of Ireland have access to fish in the UK’s six to twelve nautical mile zone.

In order to withdraw from the London Convention signatories must give two years notice

(3) Lord Pearson of Rannoch UKIP

To ask Her Majesty’s Government under what arrangements vessels of other EU member states fish in the UK’s Exclusive Economic Zone between the 12 and 200 nautical mile limits; and by what process those arrangements could be terminated.

Lord Gardiner of Kimble The Parliamentary Under-Secretary of State for Environment, Food and Rural Affairs

Under the EU’s Common Fisheries Policy regime vessels from EU Member States have access to fisheries in the UK’s Exclusive Economic Zone (EEZ) between the 12 and 200 nautical mile limit. When it leaves the EU, the UK will control access to fisheries in its EEZ and will manage its waters in accordance with international law, including the UN Convention on the Law of the Sea.

Fisheries and the complexities of international treaty law

On 29th March, Mrs May invoked Article 50 of the Lisbon Treaty. Article 50 is very clear:- after two years, the treaties (and regulations} cease to apply – at least as far as the departing member state is concerned. The treaties will still apply to the remaining 27 members but not to the UK. However, the “withdrawal agreement” specified under Article 30 section 4b will be applicable to all.

As far as Article 50 is concerned, there are no grounds for any legal challenge, because the UK was only following the treaty obligation by invoking article 50, to which every other member has agreed twice – once when the Lisbon Treaty came into force and once when Croatia joined the EU.

The problem arises because of the need for a “withdrawal agreement” and the Westminster Parliament’s plan to take the EU acquis across into domestic legislation. If no exceptions are made, as far as fisheries are concerned we would have left the CFP through article 50 only for our Parliament to all intents and purposes to subjugate us into what is in effect the CFP in all but name, especially by bringing regulation 1380/2013, (which contains the percentage share-out – otherwise known as Relative Stability – and historic rights) across into domestic legislation as part of the “agreement”.

When the negotiations are finished and the “agreement” done, it will have to be presented in some legal form or other – a treaty or something similar, as the EU is under a treaty obligation to secure a “withdrawal agreement”.

By coming out of the EU legally through Article 50 and then basically going back to what we have just left through the “agreement”, then according to the Vienna Convention on Treaties we could have problems at a later date. as the UK has on its own accord secured the other 27 EU Members’ continuity rights to fish in its waters. These would be very difficult to remove at a later date, even though invoking Article 50 will make the EU treaties and regulations cease to apply to the UK.

It is possible HMG is unaware of this dang­erous situation, but we can be certain French EU negotiator Michel Barnier will know, therefore it is imperative regulation 1380/2013 is not repatriated into domestic legislation, but will cease to apply on Brexit, as per the treaty obligations within Article 50.

Given we will hopefully see the removal of historic right in the 6 to 12 nautical mile zone by terminating the London 1964 Fisheries Convention, it would be tragic if our Westminster Parliament reinstates the present rights enjoyed by EU fishermen to take 59% of our UK resource and thus accelerate the demise  of our coastal communities.

In connection with the “withdrawal agreement” the following Articles of the Vienna Convention apply:-

Article 30. APPLICATION OF SUCCESSIVE TREATIES RELATING TO THE SAME SUBJECT-MATTER

  1. Subject to Article 103 of the Charter of the United Nations, the rights and obligations of States parties to successive treaties relating to the same subject-matter shall be determined in accordance with the following paragraphs.
  2. When a treaty specifies that it is subject to, or that it is not to be considered as incompatible with, an earlier or later treaty, the provisions of that other treaty prevail.
  3. When all the parties to the earlier treaty are parties also to the later treaty but the earlier treaty is not terminated or suspended in operation under article 59, the earlier treaty applies only to the extent that its provisions are compatible with those of the later treaty.
  4. When the parties to the later treaty do not include all the parties to the earlier one:

(a) As between States parties to both treaties the same rule applies as in paragraph 3;

(b) As between a State party to both treaties and a State party to only one of the treaties, the treaty to which both States are parties governs their mutual rights and obligations.

  1. Paragraph 4 is without prejudice to article 41, or to any question of the termination or suspension of the operation of a treaty under article 60 or to any question of responsibility which may arise for a State from the conclusion or application of a treaty the provisions of which are incompatible with its obligations towards another State under another treaty.

Article 4L AGREEMENTS TO MODIFY MULTILATERAL TREATIES BETWEEN CERTAIN OF THE PARTIES ONLY

  1. Two or more of the parties to a multilateral treaty may conclude an agreement to modify the treaty as between themselves alone if:

(a) The possibility of such a modification is provided for by the treaty; or

(b) The modification in question is not prohibited by the treaty and:

(i) Does not affect the enjoyment by the other parties of their rights under the treaty or the performance of their obligations;

(ii) Does not relate to a provision, derogation from which is incompatible with the effective execution of the object and purpose of the treaty as a whole.

  1. Unless in a case falling under paragraph l(a) the treaty otherwise provides, the parties in question shall notify the other parties of their intention to conclude the agreement and of the modification to the treaty for which it provides.

My reading of these articles suggests that we would be back to square one, making the share out and rights a treaty obligation once again.

Article 14. CONSENT TO BE BOUND BY A TREATY EXPRESSED BY RATIFICATION, ACCEPTANCE OR APPROVAL

  1. The consent of a State to be bound by a treaty is expressed by ratification when:

(«) The treaty provides for such consent to be expressed by means of ratification;

(b) It is otherwise established that the negotiating States were agreed that ratification should be required;

(c) The representative of the State has signed the treaty subject to ratification; or

(d) The intention of the State to sign the treaty subject to ratification appears from the full powers of its representative or was expressed during the negotiation.

  1. The consent of a State to be bound by a treaty is expressed by acceptance or approval under conditions similar to those which apply to ratification.

 

I think Article 14 section 2 is dangerous, because we would be bringing the acquis across and turning it into a treaty. Likewise Article 30 section 4b which would mean that the UK has re-established mutual rights and obligations.

Article 59. TERMINATION OR SUSPENSION OF THE OPERATION OF A TREATY IMPLIED BY CONCLUSION OF A LATER TREATY

  1. A treaty shall be considered as terminated if all the parties to it conclude a later treaty relating to the same subject-matter and:

(a) It appears from the later treaty or is otherwise established that the parties in tended that the matter should be governed by that treaty; or

(b) The provisions of the later treaty are so far incompatible with those of the earlier one that the two treaties are not capable of being applied at the same time.

  1. The earlier treaty shall be considered as only suspended in operation if it appears from the later treaty or is otherwise established that such was the intention of the parties.

Comparing moving the acquis across into domestic legislation with the independence of Ireland and India is of only limited help as both these events predate the Vienna convention.

We are entering uncharted waters in dealing with the EU is untested, as we are not dealing with a sovereign nation but a group of 28 member states, where only one is leaving. It is HMG’s desire to bring the acquis across, the thinking being it will create a smooth transition, which in many cases it will. As far as fisheries is concerned, however, all it will do is re-establish a right for EU vessels to continue to take UK resource on the same excessive scale. .

The only way resource should be allowed to EU vessels over and above equal reciprocal arrangements is through Article 62 of UNCLOS3. Unless HMG is prepared to start with a clean sheet with a policy policy designed for our mixed fishery, fisheries Brexit will never be achieved.