Where our negotiators are going wrong- Part 2

Article 50 of the Lisbon Treaty – or, to quote its proper name, the treaty of European Union (TEU) – is clear and precise with the added advantage that 27 Member States agreed its terms and all 28 current Members reconfirmed these provisions through the Accession Treaty of Croatia. So there can be no legal comeback when the Treaties cease to apply to the UK at 23.01 on 29th March 2019, and competency (control) of our Fisheries Exclusive Economic Zone (EEZ) ­of 200 nautical miles or median line becomes the responsibility of every single Member of Parliament in Westminster.

We will see the UK leave the Common Fisheries Policy, (CFP) and our EEZ will be operated under the guidance of international Law – UNCLOS3 – well, that is the theory.

Things do get more complicated, however, as Our Westminster Parliament is proposing to bring all the EU legislation in force up to 29th March 2019 (the Acquis), into domestic legislation, and this will include the CFP. This means that, having left the CFP legally and with the full support of all EU member states, our Parliament will then endorse what we have left through the European Union (Withdrawal) Bill. It will not be the CFP in name, but a carbon copy of the CFP, giving exactly the same rights to EU vessels in our EEZ as they currently enjoy.

It is a pretty poor outcome for our negotiators: All 27 EU member states have returned the competency back to Westminster and Westminster then passes a law giving those rights back.

The Government claims that it will also introduce a Fisheries Bill. At the moment, however, we have no idea of its contents or whether it will be robust enough to ensure UK control of our EEZ enabling us to introduce a UK system of fisheries management during the next stage of the Brexit plan – the two year transitional period also known as implementation period.

The Government does not wish to apply for an extension of the two years stipulated by Article 50, because it is concerned that the 17 plus million voters who supported Brexit will turn against them. Taking nearly three years to leave the EU is just about acceptable but five years would not be tolerated. The Government would be punished at the general election.

So the date of 29th March 2019 will remain as the date of leaving, and at 23.01 of that day we will no longer be a member of the EU and will become a “third country”. This means that all EU treaties cease to apply within the UK, including Article 50 of the Lisbon Treaty, so while the transitional period will be negotiated under Article 50, the actual implementation of that period will have operate under a different legal basis – a new treaty.

Both the European Commission and the European Parliament (which has a final say on any agreement), have made it very clear that no non member can have the same terms and conditions as a member, which is rather obvious otherwise there would be no point being a member.

One issue of which we can be sure is that, irrespective of the Fisheries Bill, the EU will demand that any implementation treaty must include the Fisheries Acquis and being a treaty, we could find ourselves falling foul of the Vienna Convention on Treaties, especially article 30 and 70, if the EU, a single member state or individual challenges the rights if our own Parliament rescinds what they  established. We could end up in a lengthy legal process.

This transitional/implementation period will be under the full authority of the EU institutions, including the ECJ, but there will be no UK representation at all. Even though the Secretary of State for Exiting the EU stated at a select committee session on 25 October 2017 that no new EU law will be acceptable post Brexit because it will be sorted before Brexit, no cherry picking will be allowed, so we would have to accept any new legislation during that period.

For the past 30 years, successive governments and main political parties have claimed that we hold a considerable degree of influence within the EU, but from April 2019 to March 2021 (perhaps 2022 as the European Parliament would allow up to three years), we would in effect be governed by the EU, as a third country, with no input whatsoever.

The Prime Minister and Ministers have made it very clear during this period that would adhere to International Law on fisheries. It is absurd that over the years, many UK political leaders have condemned the Common Fisheries Policy and yet our own Parliament could end up unilaterally implementing the very policy they condemn. Furthermore, this would not comply in any form to the requirements of International law, UNCLOS 3, especially Article 61 (Conservation of the living resource), Article 62  (Utilization of the living resource), Article 63 (Straddling stocks) and Article 64 (Highly migatory species).

Fishing for Leave has  produced a management plan/model, designed by those with practical experience, for the UK’s fishing EEZ that ticks all the boxes. It is environmentally sustainable, follows International law, creates harmony between fishermen, scientists and fishery officers, while at the same time if will engender a revival of our coastal communities. This plan is based on the Faeroe Islands’ “days at sea” principle, but it has learnt from the Faeroese’ mistakes and is an improvement on the original crude “days at sea” model The Faeroese Government is impressed and is now extremely interested in the FfL model. By contrast, the alternative, which we could yet end up with, is a carbon copy of the present CFP. It will be a complete failure  – socially, environmentally, and economically – and could end up giving the Nation’s resource away permanently.

There are those that appear to think that as far as fisheries is concerned, the UK will still be subservient to the EU after Brexit. With our mixed fisheries, which requires its own plan, we should be the world leader. We will never get another opportunity to do this and it is down to political will. The buck stops with every Member of Parliament in Westminster; the potential is there to make Brexit either a huge success, or a catastrophic failure. Failure will bring with it a very heavy price, because although the responsibility rests with every MP, the electorate will see it as the Government’s fault.

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.