With the announcement of the EU’s terms for the proposed “implementation” period it is finally beginning to dawn that it’s not an “implementation”, as our political establishment have branded a pig in lipstick, but a transition to no-where.
Fishing for Leave have been warning of this since it was announced in September. The EU has continually reiterated that a “transition” means obeying ALL current and new Acquis (EU law), including the CFP, after Britain officially leaves the EU under the Article 50 procedure;
“if we are to extend for a limited period the Acquis of the EU, then logically this would require existing Union regulatory, budgetary, supervisory, judiciary and enforcement instruments and structures to apply”.
For too long people have bought the government rhetoric. The PM and Ministers have repeated;
“We will be leaving the Common Fisheries Policy on March 29, 2019”.
This spin has never been a commitment nor indication of a clean Brexit for fisheries. Those who kept citing these words have been either mendacious or naive to the reality of a Transition.
The government has known all along what the transition meant. The PM always continued, that;
“Leaving the CFP and leaving the CAP” wouldn’t give the opportunity until “post that implementation(transition) period – to actually introduce arrangements that work for the United Kingdom. The arrangement that pertains to fisheries during that implementation period will, of course, be part of the negotiations for that implementation period”.
We may officially “leave” the CFP on 29th March 2019 but we’ll re-obey entire EU Acquis as part of the “transition” period after Article 50 officially terminates the UKs membership – we will have left in name only.
The PM has twice stated last year that Britain’s fishing industry and coastal communities will once again be negotiating capital to gain a transition period,
The EU clearly state their terms announced on 29th of January;
- any transitional arrangements…. should cover the whole of the Union Acquis…Any changes to the Acquis should automatically apply to and in the United Kingdom during the transition period.
- The UK will no longer participate in or nominate or elect members of the Union institutions, nor participate in the decision-making or the governance of the Union bodies, offices and agencies.
- Specific consultations should also be foreseen with regard to for the fixing of fishing opportunities during the transition period, in full respect of the Union acquis.
CLAUSE 12 & 20 CLEARLY SAYS WE WILL STILL HAVE TO RESPECT THE ACQUIS (i.e. THE CFP). CLAUSE 17 SAYS WE’LL HAVE NO SAY OR RECOURSE.
The UK industry will be trapped in the EU and CFP until at least 2021 with No representation or recourse. This is not an “implementation” to a new deal but a capitulation to being trapped in some sort of legal purgatory where we will be running a mirror of the CFP as some sort of vassal state.
We will have re-joined and continued the CFP of equal access to a common resource, relative stability shares and terrifyingly quotas and the inevitable discard ban that comes with them – this is just the tip of the iceberg as we may never escape for the reasons below.
Article 50 clearly says; “the treaties (all EU law) shall cease to apply” at the end of the Article 50 period at 11pm on 29th March ’19. This means Britain is out the entire EU and CFP with no ties or obligations to honour.
To add further weight international treaty law under Article 70 of the Vienna Convention says;
“the termination of a treaty does not affect any rights, obligations or legal situations created through the treaty…. unless the treaty otherwise provides, or the parties otherwise agree”.
Quite clearly the EU has otherwise provided through Article 50.
The EU 27 agreeing to “the treaties ceasing to apply” means there’s no recourse under international law for them to have any sway over Britain. EU law will irrefutably legally terminate at the end of March 2019 and control and responsibility will reside with Westminster
However, although the government is clear that it will ‘take back control’ It’s not a question of do we leave, it is a question of what we do thereafter.
TRANSITION MEANS “RE-JOINING” THE EU & CFP
Fishing for Leave have continually reiterated the threat of adoption of EU law since its announcement in October 2016. The EU could have tried to sight “continuity of rights” as we’d have continued the same policies just branded with a Union jack – A transition compounds this danger.
The EU has clearly stated that to gain a transition period the UK would have to obey the Acquis.
This will have to be agreed through a new treaty between the two parties as a “transition” is part of the deal AFTER we leave the EU – it is not an extension of current membership which Article 50 clinically terminates.
We will officially leave the EU and terminate our membership with Article 50 but then as part of a “transition” we will agree in a new treaty to re-obey ALL EU law, including the CFP, which we will have conveniently adopted with the EU Withdrawal (Repeal) bill.
Instead of merely mimicking EU laws we will give recognition under international treaty law that the UK has acquiesced to re-obey the same EU laws. This cancels out the provision of Article 50 of the TEU and Article 70 of the Vienna Convention that gives us a clean slate.
IT GETS WORSE – CONTINUITY OF RIGHTS
As we will either not terminate the new ‘withdrawal/transition’ treaty, nor have a clearly defined Article 50 clause where “the treaties cease to apply”, then Article 70 of the Vienna Convention says;
“unless the treaty otherwise provides…..the termination of a treaty does not affect any rights, obligations or legal situations created through the treaty”.
As the new treaty will not lapse through an instrument such as Article 50 at the end of any transition period the EU can cite continuity of rights established under the new treaty and transition period where we have continued a mak2/mirror CFP– it is immaterial as to the length of time whether it is 9 months or 2 years.
Why would the EU agree another Article 50 clean cut as they would have the UK locked into EU law and over a barrel.?
In addition to this the EU could easily cite Article 30 of the Vienna Convention to claim continuity of rights between an old treaty and a new.
This Article 30 provides that if a previous and latter treaty are not incompatible, and that the old treaty is not terminated, then the rights of that treaty will still apply.
As we will have adopted and agreed to re-obey all EU laws in their entirety under an international treaty agreement it could allow the EU to cite that, as we had continued and adopted the same laws, rights acquired under the Acquis should continue to apply – the EU has stated this since its parliamentary briefing notes on Brexit in February 2016.
We will have created a continuity of rights binding us into the CFP for years by adopting all EU law and then agreeing to obey it as per the terms of a transition treaty.
This creates the potential for the EU to instigate protracted legal challenge to hamstring the UK for years to come AFTER the transition period ends whilst enforcing attritional policies to decimate the UK fleet particularly with the discard ban.
As Fishing for Leave have tirelessly warned the Vienna Convention is a grey area but that is the point – the EU doesn’t need to be proved right, it just needs to nail the UK governments feet to the floor in a protracted legal fight.
One would be a fool to suggest that the EU and its fishermen would not use any means possible to keep the UK trapped in the CFP for years to come to cull the UK fleet with punitive rules – especially a fully enforced discard ban.
CFP TIME BOMB
Having to Obey All EU law including new law whilst not being a member state means the EU could deliberately and malignantly use the transition to enforce attritional policies and move the goal posts to finish off what’s left of the British industry with an ill-founded discard ban – using this to force a deliberate reduction of our catching capacity.
The EU discard ban addresses the symptom (discards) rather than the cause (quotas). As of 2019 “choke species” will see vessels tied up early and, according to official government Seafish statistics, 60% of the fleet will go bankrupt with inevitable consolidation from coastal communities and family businesses to a few big corporate and flagship operators.
With this deliberate culling of our catching capacity and our inability to set our own catch limits whilst trapped in the CFP the EU could cite international law under UNCLOS Article 62.2 which says;
Article 62.2 Utilization of the living resources
Where the coastal State does not have the capacity to harvest the entire allowable catch, it shall, through agreements or other arrangements…give other States access to the surplus of the allowable catch.
Once we have lost our industry there is no way back from this Catch 22– if we do not have the fleet we cannot catch the “surplus” and if we do not have the “surplus” we cannot maintain a fleet. We will lose a generation and their skills which are irretrievable – we would consign another British industry to museum and memory.
LOSS OF ACCESS TO NON-EU COASTAL STATES
Clause 14: During the transition period the UK will remain bound by the obligations stemming from the agreements concluded by the Union… the United Kingdom should however no longer participate in any bodies set up by those agreements.
The intention is the UK will still have obligations to apply EU agreements concluded with non-EU countries.
However, since the transition agreement cannot bind non-EU countries, those non-EU countries will no longer have obligations to the UK as the UK will no longer be an official member of the EU but merely maintaining ‘regulatory alignment’.
The UK would only be party to such agreements if other non-EU countries agree to continuing existing obligations in force. The negotiation of treaties between the UK and non-EU countries is the subject of the next Clause 15 which seemingly makes that an impossible contradiction.
Clause 15: During the transition period, the United Kingdom may not become bound by international agreements entered into in its own capacity in the fields of competence of Union law, unless authorised to do so by the Union.
One has to ask how under the terms of Clause 15 the UK (as a non-EU member) will be able to seek recognition by other non-EU counties for them to recognise the UK being party to agreements they have concluded with the EU.
This could mean any agreements the EU has signed with other coastal states would no longer be binding for the UK as we wouldn’t be officially a member only a vassal state which has agreed to maintain regulatory alignment with the CFP.
This catch 22 between Clause 14 and 15 means the UK could lose agreements on access to Norwegian and Faroese waters for our pelagic and largest whitefish vessels.
COASTAL STATE BRIDGING PERIOD – “SQUATTERS RIGHTS”
The SFF have naively played right into giving credence to a “transition” by bleating about a “shorter transition” of ‘just’ 9 months. With continuity of rights it is academic as to whether it is for 9month or 2 years – the damage is done.
Some mechanism is required to cover the gap between the UKs clean exit from the CFP on 29th of March 19 and when we can exercise and implement our rights over our waters and resources under UNCLOS.
FFL advocate the government must leave entirely on 29th March 19 and claim our rightful share of resources under zonal attachment and implement entirely new domestic policy that is not legally tied to any treaty with the EU.
Thereafter, the only way a bridging period between the 29th March ‘19 and the 1st January ‘20 is legally tenable is if the Government issues “squatter’s rights” rather than become embroiled in any transition.
The UK will benevolently allow the EU to utilise what are now our resources under zonal attachment on “temporary loan” with shares that coincidently mimics current one until the first coastal state meeting where we cancel the loan as of the 1st January 2020 as is our right to exercise as a coastal state.
These “squatters rights” achieve the result of a bridge/transition but on a totally different legal premise than re-adhering under a legally binding new treaty to continued obedience to the Acquis which creates a continuity of rights negating Article 50/Article 70.
The danger that others are only just starting to grasp the magnitude of is why Fishing for Leave have continually laid out in detail how and why it was VITAL to have a clean break.
It is why FFL have strenuously warned that entirely new and bespoke policy that didn’t continue quotas and the specter of a fully enforced discard ban was critical to avoid any excuse to continue the CFP to avoid a “cliff edge” for want of a better alternative.
Sadly, a select few vested quota and flagship influences in the NFFO and SFF have dithered this opportunity for a fresh start for the whole industry to make the essential need a clean break from the CFP by trying to keep the current system going for short term vested interests.
It is CRITICAL there is No Transition to avoid the EU claiming continuity of rights or else we will be locked into the CFP for the next decade as the CFP reform looms in 2021. HM Government should commit to NO adoption or continuation of the CFP and to take the clean slate Article 50 confers.
The government must do so with new UK policy that unequivocally claims and exercises sovereign jurisdiction over all waters and resources as per international law and domestic legislation
If the Industry does not get behind what Fishing for Leave have been saying for months by being blinded by the lack of the federations knowledge and a lack of vision past short term vested interest then we are going to lose the lot from biggest operator to smallest.
This transition is the existential threat, yet Brexit can take sill take the other fork in the road to a clean break that is our industries salvation allowing a bright future for everyone as FFL have continually advocated.
We ask everyone to wake up to the fight that’s not over as Fishing for Leave looks and needs all the industries support to go back up through the gears as it looks like we are going to have to re-fight the referendum all over again.
- We leave – we get a clean slate under Article 50
- We re-adopt/mirror the CFP in our own domestic legislation and then recognise our obedience to this in a new treaty under our own steam as an independent country.
- As that new treaty will mirror the Acquis and will not be broken or have an Article 50 get out clause, any rights established under it run on.
- In effect we undo Article 50 of the TEU and Article 70 of the Vienna Convention.
- It’s very grey – FFL have never said it is absolute, but we are standing into unnecessary danger and negating a clean extrication with no legal ability of the EU to claim otherwise.