Fisheries Partnership Agreements Research Articles

Purse Seiner non grata: Privy Council Wades into Pacific fisheries

William Framhein & another v Attorney General [of the Cook Islands] was heard by the Judicial Committee of the Privy Council on 17 November 2021, with the judgment released on 28 February 2022. The case concerned a judicial review of three decisions made by the Cook Islands Government in relation to the establishment of its purse seine fishery in 2013, which is subject to international management arrangements made by the Western and Central Pacific Fisheries Commission. The three decisions at issue were the making of the Skipjack Tuna Purse Seine Fishery Plan 2013, the promulgation of the Marine Resources (Purse Seine Fishery) Regulations 2013, and the adoption and signature of the Sustainable Fisheries Partnership Agreement and Implementation Protocol with the European Union. The case was brought by a private citizen and traditional leader, Mr William Framheim, together with a local environmental NGO, Te Ipukarea Society. The Applicants brought the case to the High Court of the Cook Islands in 2017 and, following the Court’s dismissal of their claim, appealed to the Court of Appeal in 2018. Both parties appealed elements of the Court of Appeal’s decision to the Privy Council, which is the Cook Islands’ highest appeal court. Ultimately, the government prevailed on its cross-appeal to the Privy Council, and the Applicants’ appeal was dismissed. The case centers on the interaction between customary international law, the international fisheries legal regime, and domestic law (including indigenous customary law). The findings are significant not just for the Cook Islands, but for all Commonwealth countries engaged in fishing that rely on the Privy Council as a final court of appeal.

The limits of the European Union’s fisheries agreements as sustainable development instruments: The case of Cape Verde

As an important instrument of the external dimension of the Common Fisheries Policy, the European Union tends to promote the Sustainable Fisheries Partnership Agreements (SFPAs) as doubly beneficial, since they grant access to foreign waters for its vessels, while also opening channels of technical, scientific, and administrative cooperation for the development of the fisheries sector in partner countries. However, the Republic of Cape Verde, which has signed fisheries agreements with the EU since 1990, has shown consistent deficiencies that these treaties were supposed to tackle, such as the monitoring of illegal activities by foreign vessels or enhancing the capacities of the local artisanal and semi-industrial fleets. By collecting and comparing data on the initiatives developed under the EU-Cape Verde SFPA and the country’s performance in fulfilling the Sustainable Development Goal 14, which aims to manage and protect marine life and ecosystems, this paper discusses Brussels’s potential and limits as an international development actor for the fisheries sector and oceans governance, seeking to determine the level of efficiency of these treaties in promoting sustainable development in maritime spaces. An enhancement of financial and technical cooperation is observed between both parts of this specific SFPA, but the transparency and sustainability of the actions undertaken are still viewed as flawed, compromising Cape Verde’s national strategies to achieve the goals of the 2030 Agenda.

Results-based management in practice: Lessons learnt and policy recommendations from the implementation of RBM in European fisheries outside Europe

This paper summarizes the lessons learnt from the implementation of a practical approach to Results-based Management (RBM) within the EU H2020 FarFish project, where RBM is conceptualized as a contract situation. From these lessons a set of policy recommendations for the improvement of the fisheries management through the adoption of RBM for EU vessels fishing in international- and Sustainable Fisheries Partnership Agreements (SFPA) waters were put forward. The policy recommendations are based on key project outputs and additional semi-structured interviews on the experiences of project partners. This exercise revealed advancements and shortcomings for the broader implementation of a more participatory, inclusive, and responsive approach to fisheries governance. Meaningful and effective participation was a pivotal factor for the success of the process. Absence of relevant bodies, sectors and fleet segments proved detrimental throughout all cases. The importance of scoping, goal setting and timing of the actions, as well as managing realistic expectations within the RBM, were highlighted. Data availability and accountability was pivotal, as in cases were cooperation succeeded, data was made available, and knowledge was expanded and enriched. The implementation of this approach to RBM showed great potential when extended to other aspects of fisheries’ management, fishing categories and fleets. This structured approach to RBM provides a promising alternative to current fisheries management systems across the world.

Unpacking the tuna traceability mosaic – EU SFPAs and the tuna value chain

Traceability has been gaining in importance recently and has seen its potential uses within fisheries expanding from primarily food safety to combat illegal fishing and promote sustainability. In the tuna value chain, key processing actors have introduced comprehensive systems allowing consumers to trace products right back to the vessel that caught the tuna and the catch date. Traceability is also an important component of EU SFPAs (Sustainable Fisheries Partnership Agreements). This paper explains the rationale for the EU entering into SFPAs and shows how the current portfolio of SFPAs exhibits an increasing dependence on access to tuna stocks. Utilizing a unique dataset, we present information on area, method of capture and landing site for EU SFPA vessels. We show that there are economic incentives for vessels to misreport, and clear traceability challenges as vessels fish several species and across several areas (both coastal and in areas beyond national jurisdiction - ABNJ). The tuna value chains in Cabo Verde and the Seychelles are then examined from a traceability perspective. As we report, while an EU catch certificate scheme (CCS) operates to cover all tuna products imported into the EU market, there are flaws in the current system which need remedying.

Keep it in house or sell it abroad? A framework to evaluate fairness

This paper explores a problem faced by many coastal states worldwide: Should the rights to fish in their exclusive economic zones be attributed to national firms or sold to foreign countries/firms? The European Union for instance, with the so-called Sustainable Fisheries Partnership Agreements gives financial and technical support to developing countries in exchange for fishing rights in their jurisdiction. In order to understand and quantify the basis upon which those agreements are drawn up, we propose a framework based on a multistage game that can be used as a tool to evaluate the fairness of natural resource agreements in general, including fishery ones. By capturing how much it is worth for coastal states to give access to their fishery resources to foreign fleets, this framework can help authorities to decide on a fair sharing of resource rents during negotiations.The problem is addressed through a two-country game, in which “home” represents the resource owner, and “foreign” the one that seeks access to the resource. In each country, there are two decision makers: authorities and harvesting firms. Two markets for selling the resource are considered, one at home and one abroad, where prices are determined endogenously.We begin with the case of exogenous quotas. In a symmetric equilibrium, both firms are active when the foreign authority maximises welfare, but only the home firm is active when it maximises profit. Under cost asymmetry, the home authority has a pool of mutually exclusive price strategies that depend on market conditions and induce a plethora of outcomes. When quotas are endogenous, the shape of optimal price regions changes and the distinct number of pricing options increases.

International politics must be considered together with climate and fisheries regulation as a driver of marine ecosystems

Seafood is an essential source of protein globally. As its demand continues to rise, balancing food security and the health of marine ecosystems has become a pressing challenge. Ecosystem-based fisheries management (EBFM) has been adopted by the European Union (EU) Common Fisheries Policy (CFP) to meet this challenge by accounting for the multiple interacting natural and socio-economic drivers. The CFP includes both the implementation of regulatory measures to EU stocks and the establishment of bilateral fisheries agreements with neighbouring countries, known as sustainable fisheries partnership agreements (SFPAs). While the effects of fisheries management regulations are well acknowledged, the consequences of the SFPAs on EU ecosystems have been commonly overlooked. Here we investigate the development of the Gulf of Cadiz marine ecosystem over the last two decades and found evidence of the impact of both policy interventions. Our findings reveal the effectiveness of regulatory measures in reverting a progressively degrading ecosystem, characterised by high fishing pressure and dominance of opportunistic species, to a more stable configuration, characterised by higher biomass of small pelagics and top predators after 2005. Knock-on effects of the EU-Morocco SFPA and climate effects were detected before 2005, resulting in increased purse seine fishing effort, lower biomass of pelagic species and warmer temperatures. This southern EU marine ecosystem has been one of the latest to introduce regulations and is very exposed to fishery agreements with neighbouring Morocco. Our study highlights the importance of taking into consideration, not only the effects of in situ fisheries regulations but also the indirect implications of political agreements in the framework of EBFM.

The European Court of Justice on the EU-Morocco agricultural and fisheries agreements: an analysis of the legal proceedings and consequences for the actors involved

ABSTRACT Over the past few years, the Court of Justice of the European Union (CJEU) has issued several judgments on the international agreements between the European Union (EU) and Morocco and their territorial scope, including the non-self-governing territory of Western Sahara. This study examines cases C-104/16 P and C-266/16 concerning, respectively, the Agricultural Agreement and the Fisheries Partnership Agreement between the EU and the Kingdom of Morocco, both of which have revealed a tug-of-war between the judiciary and the legislative and executive powers of the EU regarding the Western Sahara conflict. While the highest European legal authority stated that Western Sahara has a separate and distinct status from Morocco, the Parliament, Commission, and Council have persisted in their long-standing position of viewing the conflict as a result of postcolonial relations between France and Spain, on the one hand, and the Alawite kingdom, on the other. This article analyses the two cases at both the procedural and political levels, in addition to their consequences with regard to the positioning of the actors involved to show that, in the case of the Western Sahara conflict, EU economic and geopolitical interests have prevailed over the application of European and international law.

The European Union's fishing activity outside of European waters and the Sustainable Development Goals

AbstractThe EU's fishing fleet engages in extensive fishing activities in the Exclusive Economic Zones of non‐EU countries as well as in areas beyond national jurisdiction. These activities are regulated by an external dimension in the EU's Common Fisheries Policy (CFP). We review the relationship between the CFP, including regulations for the Sustainable Management of External Fishing Fleets (SMEFF) and the role of Sustainable Fisheries Partnership Agreements (SFPAs) and Regional Fisheries Management Organisations (RFMOs), and the internationally agreed aims and definitions of sustainability provided by the United Nations Sustainable Development Goals (SDGs). The SDG that most directly relates to fish and fisheries is goal 14, to "conserve and sustainably use the oceans." This paper, however, focuses on relationships between the CFP and SDGs that target social and economic dimensions, including those aiming to eliminate poverty (1) and hunger (2), improve health (3), provide decent work and economic growth (8), and achieve gender equality (5) and peaceful institutions (16). We identify several areas where the EU's external fishing fleet interacts with different facets of those goals, and suggest some important improvements that can be made to support the development of the EU’s external fleet into a contributor, rather than counterforce, to sustainable development in line with commitments under Agenda 2030. We provide a first and broad overview of an important area for future interdisciplinary research. We conclude by identifying specific questions that can provide starting points for further in‐depth analyses of the sustainability of EU fishing activities in external waters.

Oceanic karma? Eco-ethical gaps in African EEE metal cycle may hit back through seafood contamination

The increasing global demand for electric and electronic equipment (EEE) such as smartphones, tablets and electric car batteries has resulted in an increase in heavy metal releases to the environment at different steps during its manufacture (e.g. mining, extraction, production and e-waste). Some critical raw materials (CRMs) that supply the worldwide demand of technology are mainly sourced from Africa, but their resulting heavy metal pollution can reach citizens from other regions of the world through seafood caught in African waters, which would act as a vector. In this study, we review heavy metal contents in African fish and, as proof of concept, we analyse heavy metal content in three tuna species (Thunnus alalunga, T. albacares and T. obesus) caught in different regions inside the Sustainable Fisheries Partnership Agreements (SFPAs) by Spanish fleets and commercialised in Spain. Thunnus alalunga and T. albacares from African waters had higher concentrations of heavy metals (especially Hg but also As and Pb) in muscle than samples of the same species caught in other waters. Metal profiles in tunas from African waters were significantly correlated with those of continental and coastal fish from nearby areas impacted by mines and e-waste, as found in the literature review. Based on these results we identify research priorities that should be addressed in order to improve the social and environmental sustainability of EEE metal manufacture in Africa.

Exploiting non-self-governing territory status: Western Sahara and the new EU/Morocco Sustainable Fisheries Partnership Agreement

The 2018 European Union (EU)/Morocco Sustainable Fisheries Partnership Agreement (SFPA) was negotiated in the aftermath of the Court of Justice of the European Union's (CJEU) 2018 Western Sahara Campaign judgment, which concerned a challenge to the 2006 EU/Morocco Fisheries Partnership Agreement (and its 2013 Protocol). This article first sets out the way in which the CJEU harnessed Western Sahara's status as a non-self-governing territory (NSGT) for the purpose of its finding that the EU/Morocco fisheries agreements were inapplicable to Western Sahara's coastal waters in the absence of third-party consent. However, the Court's approach left open the possibility that such agreements could be revised and extended to this marine area. Against this background, the article considers how the EU Commission and Council have responded to the CJEU's judgment in this case and, specifically, the way they have sought to justify the SFPA's de jure application to the waters off Western Sahara. In so doing, it shows the extent to which the SFPA's terms, and the circumstances surrounding its development, are deeply problematic as far as the exploitation of the territory's marine living resources is concerned. In this regard, it is hard to avoid the conclusion that the renewed EU/Morocco fisheries partnership undermines the EU's proclaimed commitment to the duty of non-recognition and the operation of the right to self-determination in this fraught context.

The European Parliament and the Layered Politicization of the External Dimension of the Common Fisheries Policy

When the Lisbon Treaty entered into effect, the European Parliament became a core player in the decision-making processes of the EU’s Common Fisheries Policy (CFP) and its external dimensions. This new role suggested a shift towards stronger politicization in what had previously been a rather technocratic policy field. However, the CFP is not yet marked by a clear and consistent level of politicization. I use the concept of ‘layered politicization’ to explain this pattern. Although it is not comparable to the degree of political controversy shaping fully politicized policy fields, some similar political dynamics can be observed. Among them is a transformation in the policy process due to higher ratification requirements; a higher likelihood of political deadlock resulting from an increasing number of veto-players; and a strengthening of the contested legitimacy of EU decision-making. An empirical test of these theoretical propositions is provided here in the form of two case studies; the negotiation of Fisheries Partnership Agreements with Morocco and Mauritania.

The European Union’s Common Fisheries Policy, the Right to Self-determination and Permanent Sovereignty over Natural Resources

Abstract In Front Polisario and Western Sahara Campaign UK, the European Court of Justice applied the principles of self-determination and permanent sovereignty over natural resources, deciding that the various international agreements concluded with Morocco, including the Fisheries Partnership Agreement and its 2013 Protocol, should be interpreted as excluding Western Sahara’s territory and adjacent waters. These cases and Western Sahara’s situation more generally raise several questions regarding the external aspect of the European Union’s (EU) Common Fisheries Policy and the impact of international law on the EU’s fisheries agreements. In particular, the principle of self-determination may require the scope of application of the EU’s fisheries agreements to be (more) limited to safeguard the interests of those peoples protected by the principles of self-determination and permanent sovereignty over natural resources. This article outlines the continued influence of the principle of self-determination, including its influence on the actions of the EU.

The new Fisheries Partnership Agreement between the European Community and the Kingdom of Morocco: fishing too south?

1. INTRODUCTION. 2. A SHORT REHEARSAL OF THE WESTERN SAHARA QUESTION. 3. THE 2006 FISHERIES PARTNERSHIP AGREEMENT. 4. THE LEGAL VALIDITY OF THE FPA WITH REGARD TO WESTERN SAHARA. 5. THE COMPATIBILITY OF THE FPA WITH INTERNATIONAL LAW. 6. THE EC AND THE OBLIGATION OF NON-RECOGNITION APPLIED TOWESTERN SAHARA. 7. THE LAW OF OCCUPATION AND THE USE OF NATURAL RESOURCES BY MOROCCO. 8. POSSIBLE CHALLENGES OF THE FPA BEFORE JUDICIAL INSTITUTIONS. 9. CONCLUSIONS.

Balancing sustainability and commerce in international negotiation: the EU and its fisheries partnership agreements

ABSTRACTSince the 1980s, the European Union (EU) has negotiated fisheries agreements with numerous maritime countries. These agreements stipulate the conditions under which the European fishing industry gains access to foreign territorial waters. In the past two decades, the EU also wants to advance development objectives and promote environmental sustainability with these agreements. Not surprisingly, EU negotiators have found it hard to accommodate these often contradictory preferences. I argue that a mushrooming institutional structure of EU decision-making in the negotiation and ratification of fisheries agreements makes it increasingly hard for concentrated commercial interests to influence the outcome of the negotiations. As a result, diffuse interests representing a dominant normative discourse of social and ecological responsibility increasingly dominate the aggregation of preferences. I also find that the Commission (and its allies in the Council) benefit from the heterogeneity of diverse lobbies to pursue their geopolitical goals, again privileging the non-commercial dimensions of these agreements.

West Africa & the New European Common Fisheries Policy: Impacts & Implications

This chapter examines how the EU Common Fisheries Policy (CFP) has historically affected fisheries in West Africa, and how recently enacted reforms to the CFP may alter or perpetuate trends in this relationship. The CFP’s historical impacts on West African states are explored through its various policy tools, as well as how CFP changes might affect relations between these countries and the EU, with implications for their wider economies.West African states represent some of Europe’s closest neighbors, and the waters comprising their Exclusive Economic Zones (EEZs) are some of the most productive fishing grounds for European fleets. The interests of European fishing nations and those of coastal West African states have often been at odds, however, and scholars have argued that the combined CFP policies have led to a range of consequences, from degraded habitat and diminished stocks to conflicts between domestic and foreign fishers and stymied local economies.This historical legacy is here examined, using existing data and studies to assess these claims. Furthermore, the profound impacts of the EU CFP far beyond European waters are demonstrated, along with the possible impacts of recent changes in the EU CFP for West African fisheries. Multiple policies and reforms are addressed, including the discard ban, the implementation of Maximum Sustainable Yield (MSY), and the establishment of Sustainable Fisheries Partnership Agreements (SFPAs). The implications for West African fisheries are tremendous but also uncertain, and much will depend on the implementation of the rules in distant waters.

The Western Sahara Dispute: A Case for the ECJ?

The Western Sahara dispute remains prominent today on the agenda of international politics. From a legal perspective, the discussion has focused on Morocco’s alleged violations of public international law, in particular the infringement of the UN Charter. However, the Fisheries Partnership Agreement (FPA) between the EU and Morocco adds an EU dimension to the conflict because it entitles EU fishermen to fish in the waters falling within the sovereignty or jurisdiction of the Kingdom of Morocco including the Western Sahara. In light of the current debate over the renewal of the FPA, this Article explores the possibility of seeking legal review of the FPA before the ECJ on the basis of public international law violations. The analysis highlights the ECJ approach towards public international law and to what extent the Court incorporates rules of public international law in its legal review.

EU–Mauritania fisheries partnership in need of more transparency

The new protocol signed in July 2012 by the European Union and Mauritania under the existing Fisheries Partnership Agreement did not produce the expected results. The main component of this protocol consisted of the access rights for 300,000t/yr of small pelagics. During the first five months after the signature of the protocol, no EU pelagic trawlers used the opportunities created by the protocol. Only after the formal approval of the protocol by the European Council in December 2013, some eastern EU member states started sending their pelagic trawlers back to Mauritania. This resulted in a utilisation of the protocol of 54% for the whole of 2013. Although the EU repeatedly stated that the €70million/yr paid under the protocol provided good value for money, this assertion was hard to maintain considering the limited utilisation of the agreement. The paper analyses why the EU concluded an agreement with Mauritania that was not wanted by their industry and that was therefore only partially used in the end. It describes the decision making process inside the EU; the different parties involved and their different objectives. It is concluded that the EU decision making process suffers from a lack of transparency and that the combination of a business agreement with development aid resulted in an agreement which did not attain either of the stated objectives. It is proposed that in future the two aspects are clearly separated, and that the development component is extended to other countries in West Africa, including those that have no fish to sell to the EU.

Fishing for Self-Determination: European Fisheries and Western Sahara — The Case of Ocean Resources in Africa's Last Colony

European states, particularly Spain, have fished the waters of Western Sahara for centuries. In December 2011, this history came to an abrupt end with the European Parliament voting for the first time under the Lisbon Treaty to reject a treaty; the 2007 EU-Morocco Fisheries Partnership Agreement. A quarter century of EEC-EU involvement in the Saharan fishery has been left in disarray out of concern for the sustainability of stocks in the Canary Current Large Marine Ecosystem area, the economic value of the agreement, and the question of self-determination for the people of Western Sahara. This paper addresses the question of Western Sahara and the role that natural resources, in particular a European fishery, have played in the self-determination of the Saharawi people. The nature of historic fisheries on the Saharan coast is reviewed and the status of Western Sahara as a non-self-governing territory (sometimes referred to as Africa’s last colony) together with the issue of the Saharawi people’s sovereign rights to natural resources. The Spanish-Moroccan and EU-Moroccan fisheries treaties from 1986 until 2011 is canvassed, including the differing and sometimes conflicting views of the European Commission, EU member states and the EU Parliament. The roles of Morocco as the state administering (or occupying) Western Sahara and that of the Frente POLISARIO in fisheries matters is an important part of this. The phenomenon of the European Parliament rejecting a longstanding resource arrangement (and European Commission treaty) under the Lisbon Treaty receives critical assessment. The prospects for renewed fishing on the Saharan coast and how that could result in a benefit to the Saharawi people is assessed, together with possible governing and mediating roles of the United Nations.

Fishing for Self-determination: European Fisheries and Western Sahara – The Case of Ocean Resources in Africa’s Last Colony

European states, particularly Spain, have fished the waters of Western Sahara for centuries. In December 2011, this history came to an abrupt end with the European Parliament voting for the first time under the Lisbon Treaty to reject a treaty; the 2007 EU-Morocco Fisheries Partnership Agreement. A quarter century of EEC-EU involvement in the Saharan fishery has been left in disarray out of concern for the sustainability of stocks in the Canary Current Large Marine Ecosystem area, the economic value of the agreement, and the question of self-determination for the people of Western Sahara. This paper addresses the question of Western Sahara and the role that natural resources, in particular a European fishery, have played in the self-determination of the Saharawi people. The nature of historic fisheries on the Saharan coast is reviewed and the status of Western Sahara as a non-self-governing territory (sometimes referred to as Africa’s last colony) together with the issue of the Saharawi people’s sovereign rights to natural resources. The Spanish-Moroccan and EU-Moroccan fisheries treaties from 1986 until 2011 is canvassed, including the differing and sometimes conflicting views of the European Commission, EU member states and the EU Parliament. The roles of Morocco as the state administering (or occupying) Western Sahara and that of the Frente POLISARIO in fisheries matters is an important part of this. The phenomenon of the European Parliament rejecting a longstanding resource arrangement (and European Commission treaty) under the Lisbon Treaty receives critical assessment. The prospects for renewed fishing on the Saharan coast and how that could result in a benefit to the Saharawi people is assessed, together with possible governing and mediating roles of the United Nations.

Is the EU’s Fisheries Partnership Agreement (FPA) with Mauritania a genuine partnership or exploitation by the EU?

The EU’s fisheries agreements with West African states have long been criticised by NGOs for exporting the EU’s problem of over-exploiting its own fish stocks to African waters. To meet these criticisms, the EU introduced in 2003 a new form of fisheries agreement, the Fisheries Partnership Agreement (FPA), replacing purely commercial deals with a commitment to sharing decision-making with the African states to sustainably develop their fisheries. However, some critics claim that despite the EU’s good intentions, little has changed: the partnerships are dominated by the EU, and the fish stocks in the African states’ waters are still being over-fished to serve the needs of the EU, not the African states. In this paper, the working of the FPA between the EU and Mauritania is investigated to determine whether a genuine partnership has been established, or whether the FPA is a thinly disguised form of EU exploitation, using the fashionable model of partnership as a cover or mask. The findings are that while the FPA is a significant improvement on the EU’s previous fisheries relationship with Mauritania, it falls short of a genuine partnership, and it needs several reforms if it is to meet not only its own specifications of what constitutes the FPA, but also wider, aspirational notions of the essence of partnership.