Last week, MPs voted on a controversial new bill published by the Government. The UK is currently in a transition period that keeps it bound to the EU’s rules until December 31. The two sides have been trying to negotiate a new trade deal that would come into effect once this period ends, but talks have been characterised by deadlock.
With less than four weeks to go, Downing Street is seeking to prevent disruption to trade between the four nations of the UK if no deal is reached with the EU.
The Government described the Internal Market Bill as a “vital legal safety net”.
However, the move has enraged Brussels and prompted a fresh rebellion within the Conservative Party, spearheaded by former Prime Minister Theresa May.
European Commission President Ursula von der Leyen has set Prime Minister Boris Johnson a three-week deadline to ditch his plans or face financial and trade sanctions.
While it is true that if Mr Johnson goes ahead with his plan, Britain would essentially break international law, the European Union does not seem to understand it in the first place.
Last week, the EU’s chief Brexit negotiator Michel Barnier stated that while the UK would regain full sovereignty over its waters after Brexit, the fish in those waters were “another story”.
However, according to political scientist Anna Bailey, international law proves him completely wrong on that point.
She explained in a recent report for Briefings for Britain: “As a matter of international law, Barnier’s assertion is simply false. What we colloquially refer to as ‘fishing waters’ is referred to in international law as a country’s Exclusive Economic Zone (EEZ).
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“EEZs are defined by the United Nations Convention on the Law of the Sea (UNCLOS), and reach to 200 nautical miles from a nation’s coastline, or the ‘median line’ if there is less than 400 miles between two countries’ coastlines (as is the case between the UK and the Republic of Ireland, for example).
“UNCLOS is crystal clear that national sovereignty (it explicitly uses the term ‘sovereign rights’) applies not only to the waters, but to ‘natural resources, whether living or non-living’ within them.
“There can therefore be no doubt that Barnier’s remark about the fish in UK waters being ‘another story’ is completely and unambiguously false.”
Ms Bailey noted this could not have been a genuine error on Mr Barnier’s part as he served as French Minister of Agriculture and Fisheries for two years, from 2007 until 2009.
She added: “It would seem odd for any former fisheries minister not to be familiar with the basic definition of an EEZ as laid out in UNCLOS, let alone one renowned for being on top of the minutiae of his brief like Barnier.
“Another possibility, given his remark immediately afterwards about ‘looking [at] and respecting the international regulations’, is that Barnier was making a cryptic reference to other provisions of UNCLOS.”
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Examining the possibilities, Ms Bailey said: “Firstly, Article 62(2) of UNCLOS states that if a coastal state has spare resource and does not have the fleet capacity to harvest it all, then their neighbours can use that resource. The British fishing fleet has been seriously diminished by decades of being subject to the EU’s Common Fisheries Policy (CFP). Whether the UK has the capacity to harvest all of the resource in its own EEZ is a matter for debate.
“However, that does not mean that EU fishermen would be entitled to sail in and help themselves. Article 62(2) is clear that other countries’ ‘access to the surplus of the allowable catch’ should be ‘through agreements or other arrangements.’ It would therefore be incumbent on the EU to seek an agreement with the UK to harvest any surplus fish stocks that British fishermen were not capable of harvesting themselves.
“Moreover, Article 61 of UNCLOS clearly states that it is for the UK to set the ‘total allowable catch’ (TAC) of fish within the UK EEZ. The UK’s TAC cannot be arbitrary: states are obliged to take into account a number of factors, notably balancing ‘the economic needs of coastal fishing communities’, against their responsibility to ensure that fish stocks are ‘not endangered by overexploitation’. But there is certainly scope for the UK to lower its TAC to allow for the replenishment of its fish stocks after decades of overfishing under the CFP while its fleet is built up again.
“Finally, Article 63.1 states that a coastal state shall cooperate with neighbours to agree TAC shares of stocks in fisheries areas that fall within both parties’ EEZs. But while the UK is indeed obliged to cooperate with the EU ‘to agree upon measures necessary to coordinate and ensure the conservation and development of such stocks’, it is far from obliged to agree to any old EU demand on TAC shares, least of all demands that entail the antithesis of conservation. Indeed, such cooperation need not even be directly with the EU: it can be ‘through appropriate sub-regional or regional organisations’, which would be the natural step for a newly-sovereign UK.”
Ms Bailey concluded there is no obvious answer as to what exactly Mr Barnier meant when he said that Britain regaining sovereignty over its fish was “another story”.
She added: “Given that it is hard to imagine this former fisheries minister not being well-versed in the intricacies of international law vis-à-vis fishing rights, one can only surmise it was a theatrical but throwaway comment made in frustration at said international law not being on his side.
“Fishing, remember, is a totally different story to trade. While trade between the UK and EU will continue on WTO terms in the event of no deal, fishing by EU fleets in the UK’s EEZ must stop dead on January 1, 2021 until such time as a deal is reached.
“Barnier’s ‘another story’ is nothing more than a fairy tale, and a fishy one at that.”
