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.

The Government will fail the first Brexit test by not scrapping the London Convention

Release: Immediate

 

Words: 382

Contact: Alan Hastings – 07827 399 408

Fishing for Leave recently highlighted the immediate need for the government to denounce the London Convention.

DexEU and DEFRA’s response that “in regard to historical access to waters, no decisions have yet been taken on the UK’s position” and that “we endeavour to reach an agreement…. by the time the two year Article 50 process has concluded”  is pitiful and suggests they have no intention of acting.

As lovely as it was to hear the government reiterate its position of caring for our fishing and coastal communities their response scarcely backs this rhetoric.

The London Convention must be denounced now to secure all access to our waters and obtain the strongest possible diplomatic hand.

This Convention gives historic rights for European vessels to fish in UK waters but only between 6 and 12 nautical miles from our shores.

Failing to scrap this Convention would allow the EU ‘back door’ access to this narrow strip as the convention will still apply to the UK upon withdrawal.

As the Convention requires two years notice it must be denounced immediately, and before Article 50 is triggered, to avoid an overlap allowing EU access to UK waters.

For 8 months there has only been rhetoric and no results. The government is well aware of this issue and their failure to act suggests they have no intention of securing our rich fishing waters.

Why are they not fully committed to securing this strong hand by controlling all access?

If the government does not act immediately on this easy and simple test of Brexit then it evidently has no intention of making a serious stand. The government and MP’s are about to fail this first test on Brexit.

It would show the opportunity of automatic repatriation of an industry, that could double to be worth approximately £6.3bn annually, is to be betrayed a second time. Fisheries will symbolise whether we’ve “taken back control of our borders” and will therefore be the “acid test” of Brexit.

The government must serve notice to denounce this Convention immediately. To demonstrate that it really does intend to repatriate and safeguard the nation’s greatest renewable resource.

If it does not then it looks like we’re going to have a backslide and betrayal of Brexit and that the government is all mouth and no trousers.

There is still time to lobby your MP to act on this – if you want to see our fishing grounds secured please send the letter in this link to them – http://www.ffl.org.uk/letter-to-mp/

Would Scotland REALLY want to rejoin the EU after Brexit?

Nicola Sturgeon is currently attempting to create the momentum for a second Scottish independence referendum  – alias “Indyref 2”. The 2014 referendum was described at the time as a “once in a generation” but Sturgeon said last Monday that because the UK voted to leave the EU but Scotland did not, there has been a “change in material circumstances” since 2014 that justifies a second vote. She wants to give Scottish voters the option “to follow the U.K. to a hard Brexit — or to become an independent country.”

“Scotland’s future will be decided not just by me, the Scottish government or the (Scottish National Party),” she said. “It will be decided by the people of Scotland. It will be Scotland’s choice. And I trust the people to make that choice.”

Some recent reports claim that the SNP’s plan for an independent Scotland now involve gaining access to the Single Market by rejoining EFTA rather than trying to rejoin the EU. No doubt we will know more after the party’s forthcoming spring conference this weekend, but given the activities of malign individuals like Tony Blair south of the Border,  it is hard to believe that all Scots – and the SNP leadership in particular – have thrown in the towel as far as membership of the EU is concerned.

Perhaps, however, reality is beginning to dawn on at least some pro-remain Scots that rejoining the EU would be on massively disadvantageous terms because the country would not benefit from the opt-outs which successive British Prime Ministers the UK fought for and which the whole UK currently enjoys.

Were Scotland to overcome concerns in Madrid, which is worried about the Catalan separatist movement, as a new state joining the EU, this would be its fate:-

(a) It would have to adopt  the euro currency  – although this can be deferred somewhat.
Furthermore, what currency would a newly independent Scotland use between leaving the UK and joining the EU? Would it use the euro unofficially like ( say) Montenegro?

What is more, to join the Eurozone,  Scotland’s top- heavy public sector would have to be pruned as vigorously as in the “club Med” countries like Greece where many unemployed people no longer have access to the NHS and long-term unemployed households are on income of only 8.40 euros per day

(b) Scotland would not have the derogations which the UK presently enjoys. For instance, VAT would have to be added to food, children’s clothes, books and house sales. The minimum rate would be 5 per cent. But much, much more would be required to make good the deficit left by the withdrawal of subsidies from England

(c) If there were a strong possibility of a yes vote, financial institutions, pension funds, mutual organisations,  charities and other investors with members and clients in England would have a duty of care to protect them from currency risks, possible exchange restrictions and seizure of money from bank accounts (as happened in Cyprus), as an independent government would quickly become financially desperate. This would undermine the position of the considerable Scottish financial,sector.

(d) Scottish energy policy has been based on selling overpriced “renewable” electricity to England and buying cheap, conventionally produced electricity in the other direction when the wind doesn’t blow.
With the discrediting of the global warming myth, Independence would give England an excellent opportunity to discontinue the arrangement.

(e) The unkindest cut of all. There are already excellent English and Welsh whisky brands which could quickly be expanded and much reduce England’s demand for Scotch whisky.

(f) The much smaller area of Scottish territorial waters and Exclusive Economic Zone (Compared with those of the UK as a whole) would be shared among an unchanged number of EU trawlers, barred from English waters by Brexit.

All in all, the prospects for Scotland if it tries to re-join the EU do look bleak.  It is hard to say how widely these negative impacts are known among the Scottish population – or indeed, by Scotland’s politicians. As mentioned above, it is possible that the SNP’s recent talk of looking at EFTA rather than EU membership may be due to their recognition of  harsh reality of these disadvantages.

However, in the event of any attempt to whip up support for re-joining the EU by the SNP or anyone else, we believe the points set out above need to be widely publicised throughout Scotland. For anyone wishing to start the ball rolling, this helpful website gives a list of all Scottish newspapers, great and small.

Our Chairman demolishes a supporter of the Common Fisheries Policy

Readers of local papers across the country need to keep an eye open for the name C.N. Westerman. This ever-industrious gentlemen bombards local papers across the country with letters in support of the European Union. Indeed, he is so besotted with the EU that he even praises the Common Fishery Policy – one of the most catastrophically badly managed projects of the EU. Even keen Europhiles usually recognise that. The letter below appeared in the Derby Telegraph of 7th March 2017. No doubt he has sent the same letter to other papers. Informed refutation of this nonsense is required

“BREXIT supporters have complained that they are all regarded as ignorant  and stupid by EU Remoaners but that is not correct. People like Michael Gove are quite clever but very untrustworthy. We suspect their motives.

The matter is most openly displayed by those voters of the UK fishing ports who voted to come out of the EU and declared their reasoning that

“it does not suit us”.

Their only motive is to continue to do what they want to do.  We never doubted the sincerity of their short-sighted self interest. But we doubt their wish to protect the oceans for later generations. And the rest of us lose all the industrial EU advantages for the wrong price of a fish supper. Any thought that our oceans, upon which our grandchildren must depend, need to be protected from exploitation, from thoughtless commercial fishing by UK businesses and also by the 192 other nations, makes no impact on their minds. No one nation can save the oceans. It is a stupid thing to say, not just because the speaker is stupid but because he is not honest.

Every child at school should be able to see that the EU offers the best hope for our planet by coaching other nations to grasp the vision of “shared responsibility- for oceans and for air pollution, for a balanced ecology  and the continuation of animal species, for humans being able to live without epidemics and without warfare. It is only after they have left school that the adults’ self-interest comes to endanger their own grandchildren.”

I  responded as below. It is not possible to refute all his points in a single letter of the size likely to be acceptable to a newspaper. (around 250 -350 words)  I ask those with knowledge of fishery matters to respond with other points to  opinion@derbytelegraph.co.uk and wherever else they see this letter – or one like it- published.

 7th March 2017

 Sir,

Of all the EU’s activities the Common Fisheries Policy (CFP) must rank as the most damaging for the marine environment and economically disastrous for British people.

 In 1972,  just as Britain’s negotiations to join the EEC were nearly complete, the European Commission announced out of the blue that there was going to be a Common Fisheries Policy. This meant that Britain’s Exclusive Economic Zone (EEZ) of waters up to 200 miles away from our shores, or to the median line where countries are nearer, must become a “common resource” for all European countries to fish.

 It was an official secret at the time, but Edward Heath knew that the EEC treaties provided no legal basis for such a policy. It was a try-on. But, having counted up the number of fishermen and constituencies affected, he decided they could be sacrificed. Surely one of the nastiest pieces of premeditated treachery to his own people by any Prime Minister.

 Today I received the following account by a friend whose lifelong career has been designing equipment for trawlers. He writes “On 28 January a trawler was fishing in the English Channel for haddock and whiting…..Good marks had shown up on the sounder and the skipper decided to haul early. He was delighted to see the net bursting at the seams……The delight turned to horror as the first fish on deck were not whiting and haddock but Sea Bass of 2 – 3kg size. As he had no quota for that species, all had to be thrown back dead into the sea. Out of an estimate of 500 boxes, there were 6 boxes of whiting and haddock….”

 So around 17 tonnes of dead Sea Bass polluted the sea. That week the prices were good and the overall value would have been around £175,000, if they could have been landed.

 Not only does the Common Fisheries Policy cause this grotesque abomination but around 60% of the fish caught in our waters go to foreign trawlers. Often they are landed on the mainland of Europe, processed, packed and shipped back to us at much higher prices.

Yet C.N.Westerman thinks this is marvellous because the EU does it. It is up to every Member of Parliament to right this historic wrong.

 Yours faithfully,

 Edward Spalton

A template letter for writing to your MP about fishing

Britain’s Maritime Resources & the Great Repeal Bill

You may like to use all or part of our Chairman’s letter to his MP as a template if you wish to write to your own MP expressing your concern that the UK does not end up with a Common Fisheries Policy Mark 2 and thus betray our fishermen a second time. We also need to renounce the 1964 London Convention, so that other countries do not acquire rights to fish in our waters. 

Dear……           

I write as a constituent as well as on behalf of concerned members of CIB and friends in the fishing industry. The surrender of our seas as a “common resource” to the EU was a particularly shameful act, as HMG was fully aware that the then EEC had no legal basis for the Common Fisheries Policy which it introduced into our negotiations to join at the last minute. There is now opportunity for a root and branch rectification of this disastrous decision.

* By international law all living marine species within the  200 nautical mile/median line zone belongs to the coastal state.

* A British Act of Parliament (Fishery Limits 1976 Act) established our Exclusive Economic Zone (EEZ) of  200 nautical miles/median from our coast.

* Under the  term of the European Communities Act 1972, this solely national resource was shared with every other EU member state.

* Our friends in the fishing industry advise us of the following figures.

UK catches in UK waters amount to 461,047 tonnes value  £593,600,000

UK catches in EU waters  amount to   88,126 tonnes value  £102,136,000

EU  catches in UK waters amount to  674,601 tonnes value £711,224,000

EU catches in  EU waters  amount to 568,575  tonnes value £777,081,000

* Repealing the ECA 1972 and invoking Article 50 of the Lisbon Treaty reverts control of the British EEZ from Brussels to Westminster Control, returning to the Fishery Limits Act 1976 and the London Fishery Convention of 1964.

* In the London Fishery Convention of 1964, the UK gave mainly  to France and four other countries rights to fish within our 6 -12 mile territorial limit zone. From 1986 the UK can renounce this agreement by giving two years notice. We urge that this should be done at the same time as invoking Article 50, so there is no overlap time.

* From the Brexit White Paper

To provide legal certainty over our exit from the EU, we will introduce the Great Repeal Bill to remove the European Communities Act 1972 from the statute book and convert  the “acquis”- the body of existing EU law into domestic law. This means that, wherever practical and appropriate, the same rules and laws will apply on the day after we leave the EU as they did before.

* The fisheries acquis includes the main fisheries regulation 1380/2013, which establishes who  catches what, where and how much in UK waters. So the figures quoted above would become British Fishing Policy.

* It seems incredible that HMG appears to have decided to run a policy based on regulation 1380/2013 so that EU vessels will continue to plunder 59% of the British people’s resource.

* HMG has made much of not being “half in and half out” of the EU and characterised the EEA/EFTA as that sort of arrangement. Yet Norway and Iceland, which are in EEA/EFTA, exercise whole and sole control over their own national fisheries. As with agriculture, they make their own arrangements.

* We urge that the UK’s arrangements should be no less sovereign over our own EEZ and territorial waters.

* We also believe that the whole of the existing CFP quota regime is unfit for purpose and should be scrapped.  Our expert colleagues in Fishing for Leave have prepared proposals for  control by permitted days at sea, as currently used in the Faeroe Islands. This  is far more practicable and removes the incentive to cheat. It can provide a more effective system with local ecological controls for the very different fishing grounds in our waters. Fishing rights should not be individual  property but remain under public control, inalienably for the nation.

* We also urge that immediate preparations should be made for an adequate force of Royal Navy Fisheries Protection Vessels, which could also provide a platform for HM Customs and Excise and Immigration Control purposes.

Yours sincerely,

Photo by Oldmaison

Time to call MEPs’ bluff

 

Last week, an article in the Guardian painted a bleak picture of the prospects for the UK fishing industry after Brexit:- “The hopes of British fishermen that the UK can win its “waters back” after Brexit are expected to be dashed by the European parliament, despite the campaign promises of Boris Johnson and Nigel Farage, a leaked EU document reveals.

MEPs have drafted seven provisions to be included in Britain’s “exit agreement”, including the stipulation that there will be “no increase to the UK’s share of fishing opportunities for jointly fished stocks [maintaining the existing quota distribution in UK and EU waters]”.

The document, obtained by the Guardian, adds that in order for the UK and EU to keep to commitments on sustainable fishing – contained within the United Nations stocks agreement – “it is difficult to see any alternative to the continued application of the common fisheries policy”

It is time for those MEPs to read Article 50, which they as a Parliament, and each EU member state have twice endorsed. While it is correct that where you have two nations’ Exclusive Economic Zones (EEZ) that adjoin one another you will have a straddling stock and the percentage share-out is agreed on the basis of the total allowable catch within each EEZ, it is totally wrong is to suggest to any degree that the share allocated to the British EEZ has to be shared out between the EU and the UK as at present.

Section 3 of Article 50 states “The treaties shall cease to apply to the state in question from the date of entry into force of the withdrawal agreement, or failing that, two years after the notification Or failing that, if there is no agreement,  the treaties – including regulations – shall cease to apply two years after notice has been given.”

Going back to section 2 of Article 50, it says  “the Union shall negotiate and conclude an agreement with the state”. It does not say that the leaving Nation has to negotiate.

Of course the MEPs are going to try it on. They don’t want to lose out taking a British resource for free, as they have been doing for over 40 years. Taking the phrase “the Union shall negotiate”, they want things to remain as they are  – in other words, as far as the UK is concerned, a shadow CFP. However, the main straddling stocks are located in the North Sea and English Channel, where our EEZ in that area is larger than the EU one. This implies that the EU should follow our policy, not that we should follow theirs – i. e, maintain the CFP.

The MEPs stress that we must abide by International law – the United Nations Convention on the Law of the Sea (UNCLOS3).  Actually, we would agree with this as sections 55 to 75 clearly lay out the guidelines for operating an EEZ. At one second past the two-year period stipulated under Article 50, competency and control reverts to Westminster. We return to the Fishery Limits 1976 Act and its amendments, which accepts the guidelines of UNCLOS3. This states that the marine resources within the British EEZ belongs to the British people. The EU and its MEPs in particular have no say in the management of our own EEZ post-Brexit.

To repeat, international law bestows the responsibility of the British EEZ of 200 nautical mile/median line zone solely onto the UK Government.

In order to prevent an overnight collapse of EU fleets by excluding them totally from day one from our waters, under UNCLOS3 Section 62,  we can make a generous offer in the negotiations. We could allow EU vessels a limited right to fish in UK waters on a decreasing transitional basis – to fish the overcapacity of our resource until we build up our own fleet.

So whatever the Guardian‘s source may say, while the MEPs can huff and puff as much as they wish, there is nothing they can do about it. The only way they can achieve their desire would be if a weak UK government capitulates and creates a British fishing policy based on the CFP for the British EEZ. In other words, giving the EU what they want and repeating Edward Heath’s betrayal of our fishermen. They must not cave in to pressure and deny our coastal communities this lifeline after over four decades of EU-instigated decline