The Community points out that its Member States have transferred competence to it with regard to the conservation and management of sea fishing resources. Hence in this field it is for the Community to adopt the relevant rules and regulations (which are enforced by the Member States) and, within its competence, to enter into external undertakings with third States or competent international organizations. This competence applies to waters under national fisheries jurisdiction and to the high seas. Nevertheless, in respect of measures relating to the exercise of jurisdiction over vessels, flagging and registration of vessels and the enforcement of penal and administrative sanctions, competence rests with the Member States whilst respecting Community law. Community law also provides for administrative sanctions.

2. Matters for which the Community shares competence with its Member States

With regard to fisheries, for a certain number of matters that are not directly related to the conservation and management of sea fishing resources, for example research and technological development and development cooperation, there is shared competence.

This apparently straightforward and simple statement hides a number of difficulties and complications. First, although the Declaration lists the division of competence between the EC and its Member States under two categories, exclusive and shared competence, in reality there are three categories:

·         EC exclusive competence (conservation and management of sea fishing resources, including the competence to adopt regulatory measures and enter into international agreements to that end, but not the enforcement of those measures);

·         competence shared between the EC and its Member States (“a certain number of matters” such as research and technological development and development cooperation);

·         matters within the competence of the Member States whilst respecting Community law (measures relating to the exercise of jurisdiction over vessels, flagging and registration of vessels and the enforcement of penal and administrative sanctions).

Second, it is noticeable that the division of competences is not precisely expressed in the Declaration. For example, competence is shared for “a certain number of matters that are not directly related to the conservation and management of sea fishing resources.” Although the Declaration provides some examples, it is not clear from the Declaration which other matters might fall into this category.

The Declaration is also somewhat surprising, as it provides that the Community has exclusive competence in relation to the conservation and management of sea fishing resources, including the competence to adopt regulatory measures and enter into international agreements, but that it does not have such competence in relation to matters of enforcement, scientific research, or to development measures. This is not consistent, however, with the practice of the EC, which has entered into numerous regional fisheries agreements and undertaken numerous international obligations under these agreements, both prior to and after depositing the declaration, on these matters. Although an agreement may allocate certain rights and duties which cannot be implemented at the Community level, particularly in respect of enforcement and administrative and judicial measures relating to vessels and their crew, this does not necessarily affect the Community’s competence since it is only legislative competence which is considered for concluding international agreements and not judicial or administrative competence: see Churchill (1999). According to the consistent case law of the ECJ, the Community’s legislative competence may involve imposing requirements on Member States to adopt measures to implement Community obligations. Thus, at the international level, it is perfectly possible for the Community, on the basis of its legislative competence, to enter into an agreement which includes control measures or administrative sanctions which, in practice, will have to be implemented by the Member States. As Churchill (1999) points out, this is customary under the Community’s legal system and has no impact on the scope of the Community’s competence for concluding an international agreement.

It is thus not clear to what extent the categorization provided by the Community will be helpful to third States in establishing whether the EC or the Member States are responsible for fulfilling particular obligations under the Convention. This could have significant consequences in the case of a specific dispute, particularly as the Member State concerned and the Community may have selected different dispute settlement forums under the Convention.[17] The Convention does anticipate such a difficulty, however, as it provides that any party may request an international organization, or its member States which are parties, for information as to who has responsibility in respect of any specific matter. The organization and the member States concerned are required to provide this information and a failure to provide such information within a reasonable time or the provision of contradictory information will result in joint and several liability.[18]

2.      Straddling and highly migratory fish stocks

As was mentioned above, the Law of the Sea Convention left a number of unresolved issues in international fisheries management. Of these, the issue of straddling stocks (i.e. stocks which occur both within the EEZ of a coastal State and in an area beyond and adjacent to that EEZ) and highly migratory stocks (i.e. fish stocks, in particular those listed in Annex I of the Convention, which migrate vast distances through various zones of jurisdiction) has been among the most difficult and contentious and certainly the highest profile. The Convention contains just two brief provisions dealing with these types of stock.

Article 63(2)

Where the same stock or stocks of associated species occur both within the exclusive economic zone and in an area beyond and adjacent to the zone, the coastal State and the States fishing for such stocks in the adjacent area shall seek, either directly or through appropriate sub regional or regional organizations, to agree upon the measures necessary for the conservation of these stocks in the adjacent area.

Article 64(1)

The coastal State and other States whose nationals fish in the region for the highly migratory species listed in Annex I shall co-operate directly or through appropriate international organizations with a view to ensuring conservation and promoting the objective of optimum utilization of such species throughout the region, both within and beyond the exclusive economic zone. In regions for which no appropriate international organization exists, the coastal State and other States whose nationals harvest these species in the region shall co-operate to establish such an organization and participate in its work.

Thus, in both cases the basic principle is that of cooperation. States are to cooperate, in particular through international organizations, with a view to taking appropriate conservation measures. In the case of straddling stocks, the objective is to agree on conservation measures for the high seas portion of the stock while in the case of highly migratory stocks, the objective is both to conserve and to promote optimum utilization of the stocks concerned, both within and beyond the exclusive economic zone. The Convention does not elaborate in any manner, however, the basic principles on which this cooperation is to be based (although when fishing on the high seas, States are, of course, subject to the general principles of conservation applying in that area). The result of this, which is well documented,[19] was that, for a number of years following the conclusion of the Convention, international fisheries organizations, where they even existed, generally lacked effectiveness and failed to prevent continued overfishing on the high seas.

Beginning in 1992, however, attention began to focus on the problem, the impetus for action being provided in particular by the United Nations Conference on Environment and Development (UNCED) in Rio de Janeiro in 1992. Although the issue was not considered comprehensively at UNCED, it was decided to call for an intergovernmental conference to be convened under UN auspices “with a view to promoting effective implementation of the provisions of the United Nations Convention on the Law of the Sea on straddling fish stocks and highly migratory fish stocks”: UNCED (1992). Accordingly, in December 1992, the UN General Assembly adopted a Resolution establishing the Conference on Straddling Fish Stocks and Highly Migratory Fish Stocks, which held its first session in April 1993.[20] Although the Conference was originally authorized to meet for only one year, the work of the Conference, which involved six formal rounds of negotiation and numerous intersessional meetings of various degrees of formality, was not completed until August 1995, when a comprehensive international agreement was opened for signature.[21] Over the six sessions, more than 130 States participated to some extent as well as the EC.

The Rules of Procedure of the Fish Stocks Conference provided for the EC to be represented as a full participant for areas within its competence. However, although the EC had participated fully in UNCED, it had never before participated in a United Nations conference convened specifically to negotiate a legal document nor - as it happened - in a fisheries conference, and the question of EC participation was one of the most controversial issues in the preparatory sessions. A number of States expressed opposition to the participation of the Community, and argued that since the Conference had been convened by the United Nations - and was therefore a subsidiary of the General Assembly - traditional General Assembly rules should apply: i.e. the Community could only participate as an observer (it not being a member of the United Nations itself). These States did not want to set a precedent by giving additional rights to the EC. Other States, however, argued that the Conference should follow the same rules of procedure as UNCED, which had originally called for the Conference to be convened and in which the EC had participated and contributed significantly. Eventually, however, it was accepted that - given its status as a major distant water fishing entity - participation of the EC was the only realistic option.[22] Ultimately, the participation of the Community benefited the Conference as a whole, because it acted as the main counter-balance to the group of coastal States, particular in the latter stage of the Conference.

The Agreement itself, which has been the subject of extensive discussion elsewhere,[23] is an important and detailed text, based on the LOS Convention but designed to elaborate and extend on the Convention’s basic provisions. It provides a long list of general principles on which conservation and management measures are to be based. In particular, it requires parties to apply the precautionary approach and provides, in an integral Annex, a set of guidelines to this end. The Agreement also contains a number of provisions designed to strengthen cooperation between States and specifies in greater detail the role and functions of international fisheries organizations. In particular, the Agreement specifies that States are to give effect to the duty to cooperate by becoming members of the relevant fisheries organizations or, at the very least, by applying the measures of such an organization and, importantly, it provides that States having a real interest in the fisheries concerned may become members of such organizations and that the terms of participation of such organizations shall not preclude such States from membership.[24] This is a potentially useful provision for the Community, as it seeks to find new fishing grounds, although it should be noted that interpretational difficulties have emerged, particularly as regards the meaning to be applied to the words “real interest” in the Agreement.

The other parts of the Agreement deal with matters such as scientific cooperation, the promotion of flag State responsibility, compliance and enforcement and the settlement of disputes. These are all important aspects of the Agreement, but space and time constraints prevent a detailed discussion here. Mention should be made, briefly, however, of the provisions on enforcement as it was in this area that the Community had the greatest reservations. In particular, under the Agreement, provision is made for the boarding and inspecting of vessels fishing for straddling and highly migratory fish stocks on the high seas. Importantly, any party to the Agreement which is also a member of an international fisheries organization may, through its authorized inspectors, board and inspect fishing vessels flying the flag of another party to the Agreement, whether or not such a party is also a member of the organization.[25] The Agreement then provides a detailed set of procedures for the application of this possibility. The EC has expressed concern about this part of the Agreement, and other aspects of the provisions on enforcement, in particular preferring that the authority to board and inspect non-flag vessels should emanate only through multilaterally agreed procedures of regional fisheries organizations, rather than applying generally between parties to the Agreement: European Commission (1995). The Commission, however, has been keen to point out that Agreement creates a priority for enforcement schemes established by international fisheries organizations since it provides that where such an organization has established an alternative mechanism, the members of such organization may agree to limit the application of the scheme in the Agreement as between themselves in respect of the conservation and management measures which have been established in the relevant high seas area.[26]

Despite these, and one or two other, reservations, in general, the Agreement was received approvingly by the Community.[27] It was always inevitable that, as a distant water fishing entity, it would have to accept a number of concessions to greater coastal State interests under the Agreement. On most issues, however, the EC appeared to be prepared to accept such concessions, which gave it additional bargaining power in relation to other parts of the Agreement on which it sought particular positions, such as achieving a balance in obligations between coastal States and distant water States (through an emphasis on the biological unity of stocks), the primary role and open character of regional and subregional organizations and the retention of flag State jurisdiction. As a result, it was broadly able to achieve the objectives it had set itself in relation to the principal issues.

The Community has thus agreed to adhere to the Agreement (a Council Decision to this end has been adopted), although the ratification process is proving to be a rather messy affair. First, there was some disagreement between the Commission and the Council as to whether competence should be exclusive or shared with the Member States. In the end, it was decided that the Agreement should be entered into by both the Community and the Member States (i.e. shared competence). This appears to be a political decision rather than a legal one, since, form a legal point of view, the is no strong justification for shared competence.[28] Having decided that competence was to be shared, it was then decided that the Agreement should be ratified by the Community and all Member States at the same time, even though this is not a requirement under the Agreement.[29] This has also proved to be troublesome, because of delays in the Member States (the Community has adopted its Decision on adherence) and as yet the Agreement has not been ratified by the Community. Recently, however, possibly because it got tired of waiting and also to coincide with its ratification of the LOS Convention, Luxembourg ratified the Agreement on 5 October. Italy similarly ratified the agreement last year, but then withdrew, apparently claiming it had been a mistake, because of the agreement that all Member States and the Community should ratify together. This is all the more regrettable because the Agreement has yet to enter into force (although it is likely to do so shortly) and the early ratification by the Member States would have enabled the earlier entry into force of the Agreement.

As noted above, the principal method by which States are expected to fulfil the obligations of cooperation in fisheries is through participation in international fisheries organizations. There are over thirty such organizations, varying considerably in terms of structure, species covered and activity. The Community is a member of approximately ten of these organizations, comprising most of the organizations covering fisheries in which there is a Community interest. The main exception to this is the Inter-American Tropical Tuna Commission (IATTC), whose constitutive instrument does not currently allow for regional economic integration organizations to accede. However, that issue is currently being dealt with by IATTC (although it has turned out to be a rather slow process because of some reluctance on the part of certain IATTC members) and, in the mean-time, the Community is applying IATTC conservation measures. The Community has also signed the 1998 Agreement on the International Dolphin Conservation Programme, which seeks to protect dolphins from incidental capture in the yellowfin tuna fisheries of the region, and has agreed to apply it provisionally pending accession to IATTC.[30]

The Community’s record and experience is these organizations has been somewhat mixed. Of particular note, however, is the case of the Northwest Atlantic Fisheries Organization (NAFO). NAFO is one of the most developed fisheries organizations in existence and, in contrast to a number of other fisheries organizations, has been active throughout its history. One of the major issues in NAFO has been the relationship between the Community, on the one hand, and the other members (notably Canada, the principal coastal State), on the other. This was particularly so in the period 1986-1992,  during which, principally because of a disagreement with Canada over appropriate management strategy, the Community consistently rejected management measures adopted by NAFO and set quotas for its own fleet - which furthermore were poorly enforced - that were well in excess of quotas agreed in NAFO. The result, of course, was overfishing, leading eventually the closure of most fisheries in the NAFO area. Since 1992, however - one infamous incident notwithstanding[31] - the Community has adhered to NAFO decisions, has enjoyed good relations with the other members and, together with Canada, has been instrumental in improving and strengthening that organization.

The policy of objection during the period described raises an interesting point in international law. Whilst it might be difficult to defend the Community’s approach as a matter of policy (although there were arguments on both sides) the Community’s actions between 1986 and 1992 were not, strictly speaking, contrary to international law. The EC was able, legitimately, to opt out of NAFO measures by using an objection procedure contained in the NAFO Convention itself. The action was thus in conformity with that Convention. Various arguments have been raised suggesting, for example, that the Community was in contravention of the duty to cooperate or other provisions in the LOS Convention, but the Convention is not really sufficiently well-equipped to deal with problems such as these and, in reality, such arguments carry little weight. However, it is interesting to note that if such a situation were to arise again, international law might enable a different response, as instruments such as the Compliance Agreement and the Fish Stocks Agreement place an obligation on the flag State to ensure that its vessels do not engage in any activity which undermines the effectiveness of internationally agreed conservation and management measures. It is clearly arguable that such behaviour contravenes this rule.

3.      Anadromous stocks

In contrast to the stocks discussed so far, for anadromous stocks the LOS Convention actually lays down detailed provisions which have enabled States to implement effective management measures.[32] Anadromous stocks, such as salmon and sea-trout, are stocks which inhabit and reproduce in fresh water but which also journey, during their life-cycle, into the ocean, often for thousands of miles, before returning to spawn. From a management point of view, it is well understood that it is only the State in whose rivers such fish originate - the State of origin - which can implement meaningful management measures, in particular because on the high seas, stocks from widely separated rivers of origin converge, so that measures aimed at a particular stock cannot be designed or applied. It is also that State which, of course, has the greatest interest in such stocks, not only because of the fisheries concentrated around its rivers but also because it is these States which may have to devote significant resources to matters such as the reduction of pollution, the provision of salmon ladders in rivers or the prevention of over-exploitation during their spawning migrations. On the other hand, it is clear that these States are not the only States with an interest, since other countries (interceptory States) have traditionally also had an interest in exploiting such stocks either on the high seas or in areas under national jurisdiction.

The LOS Convention reflects this balance of interests and management reality by providing that the State of origin has the “primary interest in and responsibility for” anadromous stocks.[33] Thus, within its EEZ, that State is to ensure the conservation of such stocks by the establishment of appropriate regulatory measures and it is also allowed, after consultations with any interceptory States, to establish the total allowable catch for stocks originating in its rivers.[34] Importantly, fishing on the high seas is prohibited,[35] and, while fishing is permitted in the EEZs of interceptory States, the State of origin and the interceptory States are required to cooperate with regard to the conservation and management of the stocks.[36] Although the Convention lays down much more detailed and effective rules for anadromous stocks than it does for other types of stock, its provisions have not been without difficulty. In particular, differences of opinion have arisen in determining the relative extents of the different interests of States of origin and interceptory States. In this regard, Article 66 does not lay down any guidelines and, in practice, it is an extremely complicated matter, which must involve consideration of all the circumstances on a case-by-case basis, and as such, as Burke has pointed out,[37] is ill suited to general formulae and principles. Factors such as the relative periods of time the stocks spend in various jurisdictions and the relative conservation costs incurred by the various States should all be considered in the determination of rights and interests.

Indeed, this is the approach that has been taken by the States concerned, in the context of international organizations established to manage anadromous fisheries.[38] In the case of the Community, the relevant organization, of which it is a member, is the North Atlantic Salmon Conservation Organization (NASCO). This organization, which was established under a treaty signed in 1982,[39] has a rather unusual and complicated structure, designed to provide a balance between the interests of the States of origin and the interceptory States. It consists of a Council, which is the overall forum for consultation and cooperation, three regional Commissions,[40] which, inter alia, formulate regulatory proposals for salmon fishing and make recommendations to the Council on scientific research, and a Secretariat, which is based in the United Kingdom. The three Commissions have restricted membership, based on geographical location, and the Community participates in two: the North-East Atlantic Commission - which also comprises Denmark, Iceland, Norway and Russia; and the West Greenland Commission - which also comprises Canada, Denmark and the United States.[41]

In general, NASCO is closely modelled on the Article 66 formula, although it differs in one major respect: within the EEZs of coastal States, fishing is prohibited beyond 12 miles (as opposed to 200 miles, as under the Convention), except in the case of the Faeroe Islands and West Greenland, where fishing is permitted up to 200 miles and up to 40 miles from the coast respectively. Interceptory fishing, of salmon stocks originating in Community and other members rivers, takes place in the waters of these States. In the early years of its operation, NASCO had difficulty in adopting management measures, partly because of the philosophical differences between members concerning the relationship between the State of origin’s “primary interest” and the rights and interests of interceptory States. This meant that during the early years of NASCO’s existence, management arrangements for the interceptory fisheries in Faroese waters (Greenland was, of course, at this time a member of the EC), were established bilaterally between the Faroe Islands and the Community. Although these early issues do not appear to have ever been fully resolved, the members of NASCO decided to adopt a more pragmatic approach in the late 1980s, and in general arrangements have been implemented in every year since then. These generally consist of catch and other effort limitations on the interceptory fisheries and other technical conservation requirements. In practice, interceptory fishermen have also been paid compensation not to fish their quotas with the result that very little interceptory fishing has taken place since the early 1990s. In recent years, the main issues dealt with by NASCO have concerned unauthorized fishing by vessels from non-member States (a problem it appears to have dealt with quite effectively) and issues relating to matters such as salmon farming, transfers and disease.

4.      Shared stocks

The final type of stocks for which specific reference is made in the LOS Convention are shared stocks (sometimes also known as transboundary stocks).[42] These are simply stocks which exist in the EEZs of two or more coastal States. The Community shares a number of stocks with third States, notably Norway, the Faeroe Islands and Iceland. There are also shared stocks in the Baltic Sea and, undoubtedly, in the Mediterranean, although the latter have not been the object of much investigation or discussion. From the point of view of international law, the coastal States concerned are under an obligation to “seek . . . to agree upon the measures necessary to coordinate and ensure the conservation and development of [shared] stocks.”[43] As is usually the case, the Convention provides that this obligation may be fulfilled directly between the States concerned as well as through appropriate subregional or regional organizations.

In practice, States have found it significantly easier to conclude agreements for the conservation and management of shared stocks than it has done in the case of other types of transboundary stock, principally because of the low number of parties concerned in any one case (many arrangements are bilateral) and the fact that access to the stocks in question is (variations in stock distribution notwithstanding) limited to the coastal States concerned. That is not to say the development of management measures for shared stocks is without legal difficulties, however. Problems frequently arise in the identification of joint stocks, for example in agreeing on appropriate measures for those stocks and in allocating catches. In these respects, as might be expected, the Convention provides little or no guidance. 

As far as the Community is concerned, these problems have sometimes meant that management measures could not be agreed for joint stocks and measures have instead been taken autonomously by the parties concerned. However, in the majority of cases - except in the Mediterranean - cooperative arrangements have been agreed. Outside the Baltic, these have usually consisted of annual arrangements within the context of the Community’s bilateral agreements with the States concerned (discussed below) and generally comprise the setting of a TAC and allocating it between the two parties and, in some cases, there are also a number of additional conservation measures. On the question of allocation, the main criterion used is the proportion of the stock which is of catchable size found in each party’s zone. Although advice is taken from the International Council for the Exploration of the Sea (ICES) in this and other matters, questions of allocation have not always easily been resolved.

Turning briefly to the Baltic, which is an area entirely under the jurisdiction of the coastal States, the situation is rather different as various stocks are shared between a number of coastal States. Here, fisheries management is the responsibility of a regional fisheries organization, the International Baltic Sea Fishery Committee (IBSFC). This organization, which was established in 1974 under the Convention on Fishing and Conservation of the Living Resources in the Baltic Sea and the Belts (the Gdansk Convention),[44] has as its objectives the promotion of close cooperation amongst its members with a view to preserving and increasing the living resources of the Baltic Sea and the Belts and obtaining the optimum yield, and, to coordinate the management of the living resources in the Convention area.[45] The Community has been a member of this organization since 1984 (the Commission had actually proposed Community accession in 1977, but this was not accepted by the Eastern European States until 1982). Although in the first few years, the Community did not participate effectively in IBSFC (it was not until 1986, for example, that the EC implemented the measures which were in force at the time of it’s accession in 1984) in recent years no major conflicts have been reported.

5.      Agreements with third countries

The Community’s bilateral relations with third States are among the most important aspects of the Common Fisheries Policy. To date, the EC has concluded bilateral agreements with more than 30 different countries, most of which remain in force. These agreements enable vessels from Member States to enter the EEZs of third States and utilize certain fishing possibilities therein, creating substantial employment for Community fishermen and contributing significantly to the supply of the Community market.

The international legal basis for these agreements, at least in theory, is the concept of surplus. Under the LOS Convention, the coastal State is required to determine both the total allowable catch for stocks located within its waters and the harvesting capacity of its fleet. Other States are then to be given access to fish that part of the TAC which is in excess of its harvesting capacity, i.e. the so-called surplus. The coastal State may prescribe conditions pertaining to any fishing activities by foreign vessels in its zone, including conditions relating to the enforcement of management measures, and may demand payment in return for access to the surplus.[46] It is clear, however, that at every stage, the coastal State has extremely wide discretion and that, in reality, the concept of surplus is rather irrelevant. Thus, ultimately, the decision as to whether or not to grant foreign fishery access to the EEZ and, if so, to which States and under what conditions, is left entirely to the discretion of the coastal State.[47] At best, the relevant Convention provisions can only be viewed as being guidelines for coastal States on how to implement their obligation of optimum utilization of the fisheries of their EEZs. Consequently - and this is an important point, bearing in mind the Community’s position as a distant-water fishing entity - the Convention does not provide for any effective legal right of access for third States. A distant-water State may, perhaps, point to the provisions of the Convention in order to strengthen it’s position in negotiations on access, but ultimately access will depend on the acceptance of a mutually agreeable bargain.

Looking briefly at the Community’s agreements with third States, it may be said that they fall into two broad categories - reciprocal access agreements and non-reciprocal access agreements. The former, which have been concluded mainly with developed States in the North Atlantic,[48] are based on a mutually agreeable exchange of quotas between the parties while the latter, concluded mainly with developing States in Atlantic Africa and the Indian Ocean,[49] involve the granting of some sort of concession by the Community in return for the provision of fishing opportunities in the waters of the third State. All of the reciprocal access agreements which the Community has concluded are broadly similar, as are most of the non-reciprocal access agreements.

Taking the reciprocal access agreements first, all of the agreements are framework ones, with the details on matters such as quota exchanges and access conditions being negotiated on an annual basis. Thus, each of the agreements provide in general that each party is to grant access to its fishing zone, or parts of it, to vessels of the other party and that, on the basis of annual consultations, quotas are allocated with the objective of achieving a satisfactory balance in fisheries relations. In practice this means an annual, balanced exchange of quotas between the parties.[50] All of the agreements also provide that each party may require the vessels of the other party fishing in its waters to carry a licence - a requirement that is usually applied in practice - and that such vessels shall be subject to the fisheries jurisdiction (both prescriptive and enforcement) of the other party while fishing in its waters. Disputes concerning the application of the agreements are generally to be settled by consultation between the parties. As regards foreign fishing in EC waters, the Community adopts annual Regulations (which do not generally differ significantly from year to year) specifying the relevant conditions. These usually relate to matters such as the species that may be fished by each party in the following year and where they may be fished,[51] licensing arrangements and other conservation and enforcement measures. Licences, which are issued by the Commission, are usually restricted in number and a small number of conditions relating to their issue are usually specified, although the licences function more as a guidance mechanism for the administration of quotas than as a direct management tool: IFREMER (1999). In addition to any specific conditions set out in the Regulations, there is also, in all cases, a general clause to the effect that foreign vessels must also comply with any other conservation and control measures an all other provision governing fishing in the zone where access is permitted. This includes not only general conservation and control measures applying in Community waters but also any legislation enacted by Member States, although the latter is quite limited.

The agreements with the three Baltic States – Estonia, Latvia and Lithuania - concluded in 1992, are slightly different to the general format described above, since they provide in addition that the Community is to provide the other party with funding for training and that the parties are to promote the establishment of joint-venture arrangements in the fisheries sector between Community fishing vessels and undertakings in the third country concerned. In 1996, these agreements were replaced by new agreements which, inter alia, put more emphasis on joint enterprises. These agreements reflect the so-called “second-generation” type agreement, promoted by the Community in recent years, under which agreements seek to encourage the establishment of joint ventures (a temporary undertaking) and joint enterprises (a permanent transfer of a Community vessel to the flag of the third State).

In the early years of operation of the Community’s reciprocal access agreements there was generally a steady reduction of fishing opportunities, although in recent years a considerable level of stability has been reached and quota exchanges generally do not change much from year to year. As was mentioned above, the fishing opportunities granted to the Community are allocated to the Member States on an annual basis by means of a Regulation. The criterion used for such allocation is the principle of relative stability, which takes into account, inter alia, traditional rights. In the case of less popular species such as blue whiting, Norway pout and sandeel, the actual interest of Member States in the species concerned is taken into account. In practice, this means that, in the case of the reciprocal access agreements - which are all with North Atlantic and Baltic States - the main “beneficiaries” of the agreements are the northern Member States.

As with the reciprocal agreements, most of the non-reciprocal agreements, the majority of which, as has been noted, have been concluded with West African or Indian Ocean States, are broadly similar. Thus, in most cases there is a basic bargain of fishing opportunities for Community vessels in return for financial compensation paid to the third State concerned. Also as with the reciprocal agreements, these agreements are framework ones, with the fishing opportunities and other measures being specified in periodically adopted protocols, typically lasting two or three years. Neither the agreements nor the protocols say whether the amount of fish that may be caught comes from the surplus in these States’ zones, but this is likely to be the case: Churchill (1999). The protocols do not usually specify fishing opportunities in terms of quotas (which would be difficult for the coastal States to enforce) but instead either in terms of the number of vessels (for tuna fishing) or the average annual gross registered tonnage (for other types of fishing). The protocols also usually specify a number of other conditions, such as an obligation for Community vessels to land part or all of their catches in the ports of the third State concerned or to employ a certain proportion of fishermen from such State. In return for access to the waters concerned, the Community pays financial compensation for the fishing opportunities. In most cases, this compensation has traditionally been paid (or, at least, most of it), directly to the Treasury of the third State concerned. In recent years, however, the Community has tried to direct more of the compensation towards specific areas of the fisheries sector, with the aim of promoting the development of the domestic industry.

The size and importance of these agreements varies considerably. Some provide real and substantial fishing opportunities, while other agreements are important from the point of view of allowing Community fishermen to pursue stocks (of tuna) without interruption, even though very little fishing will actually take place in the waters of the State concerned. Traditionally, the agreement with Morocco was the most important of these agreements, providing substantial and vital opportunities for the Spanish and Portuguese fleets (the last agreement for example, involved financial compensation of ECU 500 million over four years in respect of access by up to 590 vessels). However, in 1999 the Moroccan Government decided not to renew the agreement, a decision which has serious implications for the Community. Negotiations are on-going, but it is not yet certain whether a new agreement will be concluded.

The Agreement with Greenland, although of the non-reciprocal type, is rather different, since, in addition to exchanging fisheries access for Community vessels in return for financial compensation, the agreement has also provided for the admission to the EC of fishery exports from Greenland free of customs duties. In recent years, the formation of joint ventures has also been encouraged by amendments made to the agreement. Finally, mention should also be made of the agreement with Argentina. Like the agreement with Morocco, this was one of the Community’s most important and also expired in 1999 following a decision of the coastal State not to renew it. The important factor about the Argentinean agreement, aside from the fact that it provided substantial opportunities for an important sector of the Spanish fishing industry, was that it was the first - and only - agreement to be based principally on the promotion of joint ventures, undertakings and enterprises. Thus, Community vessels could only gain access to Argentinean waters if they entered into some form of joint undertaking with Argentinean interests. Quotas were set aside for vessels operating under these quotas, with, in effect, a certain proportion devoted to vessels operating under temporary joint ventures and the remainder being allocated to joint enterprises, which involve a permanent transfer of flag from a Member State to Argentina.

6.      The Mediterranean

The final issue to be dealt with briefly in this paper is the Mediterranean. From numerous standpoints - politically, socially, geographically, biologically, etc. - the Mediterranean is a unique region of the world. The region is also different from a legal point of view, because - essentially due to the complexities just mentioned - the coastal States have in general decided not to extend their jurisdiction beyond 12 miles. However, from the point of view of fisheries, the legal regime remains much the same. Thus, the provisions relating to shared stocks, straddling stocks and highly migratory stocks all apply in the Mediterranean. Both the LOS Convention and the Fish Stocks Agreement make special mention of semi-enclosed seas, but, as can be seen, the texts concerned provide little additional guidance:

Article 123, LOS Convention

States bordering an enclosed or semi-enclosed sea should co-operate with each other in the exercise of their rights and in the performance of their duties under this Convention. To this end they shall endeavour, directly or through an appropriate regional organization:

(a) to co-ordinate the management, conservation, exploration and exploitation of the living resources of the sea . . .  

Article 15, Fish Stocks Agreement

In implementing this Agreement in an enclosed or semi-enclosed sea, States shall take into account the natural characteristics of that sea and shall also act in a manner consistent with Part IX of the Convention [on enclosed and semi-enclosed seas] and other relevant provisions thereof.

A regional fisheries organization has existed in the Mediterranean since 1952, when the General Fisheries Council for the Mediterranean came into being. Despite the importance of the Community in the Mediterranean, however, it was only recently, that the Community became a member, following the adoption of amendments, inter alia, allowing regional economic integration organizations to accede.[52] (Other amendments adopted in 1997 included a change of name from Council to Commission, an agreement on the concept of an autonomous budget and the extension of the mandate of the Commission to include sustainable development of aquaculture). The Community must accept some of the responsibility for the delay in bringing about its accession, since a large part of the problem was the absence, for many years, of any measures for the Mediterranean under the CFP. Thus, until quite recently, the CFP effectively did not apply in the Mediterranean.

In general, the Commission has the sort of mandate one would expect of a regional fisheries organization. Thus, its main functions include keeping under review the state of resources, to formulate and recommend appropriate measures for the conservation and rational management of living resources, etc. However, two aspects are worth particular mention. First, in accordance with Article III(2) of the Convention, as amended in 1997, the Commission, when formulating and recommending measures, must apply the precautionary approach to conservation and management decisions and, second, it provides for the possibility of disputes to be settled by the International Court of Justice (ICJ). In relation to the latter, disputes between parties, if not settled by the Commission, are to be referred to a committee composed of a member appointed by each of the parties to the dispute, plus an independent chair chosen by the members of the committee. The recommendations of such a committee are not binding, but should become the basis for renewed consideration by the parties. If the dispute remains, however, provision is made for it to be referred to the ICJ. This possibility does not, of course, apply to the Community which has no standing before the ICJ. In the case of international organizations which are parties, disputes are to be submitted to arbitration, unless the parties to the dispute agree to another method of settlement. It is perhaps disappointing that the 1997 amendments to the GFCM Convention could not have been a little more forward thinking, and allowed for the possibility of disputes to be referred to the International Tribunal for the Law of the Sea, where the Community does have standing.

7.      Conclusions

It is not remotely possible to do justice to such an enormous topic as the Community’s international fisheries relations in a brief paper such as this. The issues are many, are often complex and each of these issues are worthy of a significant study in their own right. All that has been offered is a simple sketch, with one or two of the main issues highlighted. Even from this simple sketch, however, one or two themes should emerge. First, it is clear that, both in general terms and as regards international relations in particular, that the Community is a major player in world fisheries. It has fishing interests in many regions of the world, and it participates actively both at a multilateral level and bilaterally. It is also the case that the international Community, or at least the vast majority of it, now fully accepts the position of the Community in fisheries relations. This was not the case during the early years of the UNCLOS III negotiations nor during the period immediately following the conclusion of the Convention. Now, most countries accept the need to include the Community, although they may not always desire to do so. As regards the actual participation of the Community in the relevant organizations and arrangements, it can be seen that, although it participates widely in various instruments, it has not always participated effectively or responsibly. (It is, of course, not alone in this regard). However, what has been seen in the last few years is a move by the Community, along with the majority of the rest of the international community, towards more responsible fisheries policies. It is clear, however, that further work can be done and the prompt ratification of the UN Fish Stocks Agreement by the Community and the Member States should be a priority.