The complexity of the negotiations facing Britain following its expected departure from the European Union has been highlighted by solicitor Charley Hattersley, an expert in commercial marine law.
“Given the background complexity and range of obligations as a result of international conventions and regulations, negotiations must – self-evidently – be detailed and comprehensive in order to achieve the result for which most of the UK fishing industry voted,” he said.
“It will take considerable time and the use of very skilled and well informed negotiators to achieve the correct result. If properly managed and suitably funded, such negotiations should inure to the benefit of the UK fishing industry but – even if wholly successful – it is unlikely that such negotiations would be fully productive for say five to ten years, particularly in light of the legal requirement to avoid economic dislocation and also the amount and intensity of habitually fished areas over the last 47 years. At the very least there is bound to be a short term adjustment to the current import/export ratios.”
According to Charles Hattersley, departure from the EU Regulation regime does not necessarily mean freedom from international obligations and regulations.
“Since 1972 the regulation of our seas has become both international and complex. International and EU law and the United Nations Convention for the Law of the Sea (UNCLOS), together with other regional organisation laws, complicates the variety of transnational legislation that has been put in place regulating the use of the seas and care of the marine environment.”
He explained that in very broad terms the total catch in UK waters by non-UK EU vessels equates to about 15% of the total EU catch. The catch by UK vessels in non-UK EU waters is approximately 33% what the rest of the EU takes from UK waters.
“Another useful fact is that most of what we catch we export,” he said. “Most of what we eat in the UK we import.”
Charley Hattersely listed the primary conventions and agreements that the UK will inevitably have to be part of once it leaves the European Union.
The Convention for the Protection of the Marine Environment of the North-East Atlantic (known as OSPAR), co-ordinates environmental protection in the North Sea.
“Norway is not a member of the EU, but membership of OSPAR and UNCLOS require both Norway and the EU to co-operate and negotiate in respect of any environmental matters,” he said.
“The Marine Strategy Framework Directive and the Marine Spatial Planning Directive both have legal clout and in each directive, it is mandatory that all parties co-operate and negotiate best possible solutions. The UN Fish Stocks Agreement 1995 has the objective of conservation and long term sustainability of high migratory stocks. It is mandatory to take measures to prevent overfishing – so there is an obligation on the UK to co-operate and avoid overfishing stock within an ecosystem.”
The North East Atlantic Fishing Commission (NEAFC) was established in 1980. The EU is a member – together with other nations – but the UK is not.
“To gain access to NEAFC the UK will have to become a member and that is not going to be easy judging by the difficulty encountered by other applicants,” he explained.
“Most importantly, UNCLOS makes it clear that coastal states must avoid over-exploitation and sustain maximum sustainable yields and importantly, whether a ‘sub regional’ or ‘regional’ organisation, they are all are obliged and mandated to reach agreement for conservation of stocks [Articles 61 and 63].”
He added that Article 62 of UNCLOS is important as it states that there is an international obligation to minimise ‘economic’ dislocation – particularly where areas have been “habitually” fished.
“There can be no doubt that French, Dutch, Spanish, Belgian and other trawlers have been in UK waters over the last 40 years or so and that their presence has been ‘habitual.’ Accordingly there will, in my view, be what is known as ‘historic fishing rights’ and fishing may continue pending a determination of any dispute,” Charles Hattersley said, commenting that the same will apply to English and Scottish vessels that regularly and frequently fish in other EU waters well within EU member states 200 mile EEZs.
“As a result, all EU members states with fishing fleets will, as a matter of international law, be mandated to negotiate access to and from each other’s EEZ. It is axiomatic that the UK will require and need access to EU waters and ,of course, vice versa,” he said.
“There must, under international law, be detailed negotiation in order to resolve access issues. As to the right to fish it seems unlikely that quotas will come to an end but the basis for quotas will probably remain on advice from ICES. It seems therefore that under NEAFC, the UN Fish Stocks Agreement and, for example, the Marine Strategy Framework Directive, the UK may have no alternative but to agree TACs between the EU and the UK. It may be that there will be an effort or days-at-sea input to the TAC’s but the clever money is on the retention of quota entitlement,” he said and added that lastly, as the UK will be wanting access to northern waters, as well as complying with OSPAR requirements, there will also have to be direct negotiations with Norway in the absence of current membership of existing Northern Agreements which have been negotiated by the EU – but not the UK.
Charles Hattersley, Partner and Head of Ashfords’ marine team
Charles Hattersley specialises in all aspects of commercial marine work with clients including insurers, ship owners, banks, masters, charterers, major plcs, Lloyds underwriters, and harbour authorities.
His extensive portfolio of maritime work has included advising a major international bank on the repossession and subsequent sale and purchase (through the Admiralty Court) of a fleet of vessels value at over €10 million. This included dealing with all issues on behalf of the bank and advising sellers on all issues involved.
He advised third party interests arising out of the Napoli grounding on the south coast of Devon in 2007, dealing with all issues through to the Admiralty Court hearing and protecting substantial interest accordingly.
He acted for the pilot of the Sea Empress involved in a 70,000 tonne spill in Milford Haven, ensuring that all issues were dealt with arising out of owners and/or charterers allegations.
Charles Hattersley has acted in the financing and purchase of three 5000 tonne vessels to the value of €5.5 million.
He has also acted for the North Devon Fishermen’s Association, concluding matters with RWE npower in respect of a £10 billion windfarm development.
Anonymous. (2019). COMPLEX NEGOTIATIONS AHEAD AS UK LEAVES EU. [Blog]. COMPLEX NEGOTIATIONS AHEAD AS UK LEAVES EU. Available at: https://www.worldfishing.