1. Our natural resource rights

1.1. Basic rights

"… fundamental changes must be made in the CFP. An injustice is being perpetrated and must be put right."

Our natural rights to our fish resources do not extend merely to sea areas, tonnages and quotas. Such boxes, such quantities, are simply bureaucratic devices, knives to cut what is seen as a 'common fish pie'. Irish rights are rights to the economic development of the fishing communities, to the conservation of the fish resources of our natural sphere of marine influence, and to an adequate level of economic rent from our fish resources.

Unless there is an equitable adjustment to the allocation of the fish resources the Irish people will have a mounting sense of grievance and disillusion with the ideals of the EU and their practical application.

1.2 Cohesion and the coastal fishing communities

The so-called ‘Celtic Tiger’ is based on computers, chemicals and pharmaceuticals. It has little relevance in the fishing ports of the South and West of Ireland. Ireland has the highest proportion of people living in poverty in the industrialised world outside the US. Our coastal peripheral population, particularly in the West of Ireland remain the least affluent and most deprived 20% of the Irish people. In particular the Irish fishermen are being unjustly restricted in their access to the fish resources, which are their natural heritage. This infinitely sustainable resource is capable of supporting and maintaining coastal peripheral communities which is a stated objective of EU policy.

These social and economic facts cannot be ignored in the context of a readjustment of the CFP.

The EU answer to this deprivation and relative poverty is through ‘cohesion’, to be achieved through circuitous programmes and projects, rather than rectifying the injustice in allocation of rights to our fisheries resources. These projects and programmes are a payoff, a short-term compensation for loss of a renewable resource in perpetuity. The long bureaucratic circuit of these programmes, through Brussels and Dublin is costly, inefficient, often ill-targeted, and leads to dependency rather than self reliance, based on our own fish resources of the Atlantic seaboard.

To apply the CFP in the same manner to both peripheral and developed regions, is in effect to treat non- comparable situations the same, and is therefore not only discriminatory, but contrary to cohesion objectives. In so far as decisions made by the EU in the fisheries sphere prevent the Member States from implementing effective fisheries conservation, the CFP operates in a manner contrary to the best interests of the Member States, the regional fishing communities, and the aquatic environment. Ignoring the principle of subsidiarity, the CFP fails to accommodate the logic of managing certain fisheries locally, regionally, nationally, or bilaterally.

1.3 The application of the conservation policy of the CFP

The conservation policy of the CFP has failed to conserve our fish resources. It has failed because its foundations are flawed, it is seen as inequitable, and its practical application is virtually impossible.

In the not so distant past our coastal waters were rich with fish. Our inshore fishing grounds relied on the offshore areas to maintain this abundance. Now the catches are poorer, the species composition has changed, the individual fish are smaller, and the seasonal migrations are more erratic. However well managed our inshore fisheries, zones of 6 and 12 miles are inadequate for effective national conservation when major uncontrolled fishing takes place 13-50 miles from our shores.

It is not the Irish fishermen who have caused this decline in our fish stocks. It is not the Irish fleet with its average age of 30 years which has caused this decline. Yet we are the fishermen who pay the price of this abuse of our natural heritage. It is our families who emigrate from our coastal fishing ports. It is our small boatyards and fish processors which go bankrupt.

The EU Fisheries Commissioner has herself recognised the gross inadequacies of the practical application of the conservation policy. Our own government has concurred: "Overfishing by EU States in Irish waters … is a scandal of immense proportions"

2. Why the CFP conservation policy has failed us

As fishermen we are entitled to expect that the managers of the natural fish resources upon which we depend will ensure that the fish resource remains as stable as the bounds of natural fluctuations allow. In fact, it is not Brussels, but the Irish government, which has a democratic mandate and an obligation to responsibly manage our fisheries resources.

2.1 Blame ‘the system’

Who and what is responsible for the decline in our fisheries resources ? The only answer is that the conservation policy of the EU’s Common Fisheries Policy has failed. We can identify several culprits, faceless deals, regulation by directive, and misconceived ideals.

The faceless deals are fixes done in the ‘quota and relative stability ’ meetings of the Fisheries Ministers of the EC and EU. These deals distort the fishery management process for political purposes, which may be far removed from the fisheries involved, or indeed from any fishery matters.

The key regulation was made in 1970, immediately prior to the Irish negotiations on accession to the EEC, and set out in Article 2 of Regulation 2141/70 as follows:

This regulation and its subsequent manifestations effectively introduced a pan-European open-access fisheries regime, which has undermined the prospects for strong coastal state fisheries conservation. The CFP has failed to replace the strong regulatory hand of the coastal state.

The misconceived ideals include the inappropriate application of the concept of ‘free flow of goods and capital’ to open access fisheries, in the absence of a clear and acceptable pan-European notion of fish and fishing rights as property, as goods, and as transferable capital.

Quota hopping has undermined whatever credibility the conservation policy may have had. It is clear that an economic link is required to assert the resource allocation arrangements. This link should not only be enforceable but also transparent and self-evident. There is no room for flags of convenience, or non-Irish beneficial ownership in the context of relative stability. If this core of the CFP, the very keel and ribs of the conservation policy, is rotten and untenable, then it is time to decommission the CFP.

Many of the UK-registered flagships (quota hoppers) are fishing within the Irish 200-mile zone. How did these vessels achieve quotas and access in our waters without having a historical record in our waters ? Furthermore, these flagships have consistently flouted both UK and Irish fisheries regulations – with repeated offences of fishing up to 6000% over quota.

2.2 Control

The conservation policy has failed to control the fishing operations of certain fleets, in particular those operating outside the waters of their flag State. This is because the policy has allowed access by foreign fleets to national waters (within 200-mile zones) without adequately empowering the coastal States to effectively control the fishing operations within its 200-mile zone.

Each fishery is unique, individual, and specific. The regulatory framework of the conservation policy is based on a lowest common denominator approach and fails to cater for the specific situations and the unique nature of each fishery. The Commission has attempted to cater for the specific problems of the regional fisheries by ignoring them (Mediterranean), by allowing a plethora of derogations and exceptions, or by imposing increasingly complex layers of regulations. None of these responses has achieved control of the fishing operations and conservation of the fish stocks.

2.4 Brussels lacks a democratic mandate

Because of the fluid nature of fishery property rights, fishery management has a large political dimension. Effective fisheries regulation requires the support of the fishing community. By its undemocratic nature the CFP lacks the support of the fishing communities and fails to meet the political requirement for effective fishery control.

It is undemocratic because neither the Commission, nor the Council, which formulate and approve EU directives and regulations are democratic institutions. The members of the Council are appointed. The Commission is a bureaucracy. None of the committees advising the Commission have a democratic mandate. Only the European Parliament’s virtually powerless Fisheries Committee can claim a democratic base. Consequently, the directives and regulations are fundamentally undemocratic, and because the decision-makers are unaccountable to any electorate, the legal, practical and political implications can often be ignored – and conveniently labelled as allowing each Member State to exercise flexibility and subsidiarity.

The EU’s legal instruments are not laws made by any elected body, but centralised directives and regulations to which our Irish law must conform.

2.5 Legal questions and answers ?

The review of the CFP is required specifically to address the questions of the derogations retaining the 6 and 12-mile zones and the Shetland Box, and to introduce a community system of fishing licenses. But can this expiry of the derogations be legally accommodated or is the CFP review merely a public relations exercise ?

Article 89 of the Treaty of Accession of Sweden, Finland and Austria strongly suggests that only a treaty amendment (i.e., requiring unanimous consent of the Member States) will enable the existence of the 6 and 12-mile zones to continue. Despite previous requests, the Commission has not provided a definitive statement on this matter, citing a clear legal basis for its position.

Ireland acceded to the UN Convention of the Law of the Sea on 21 June 1996. Under the Law of the Sea Ireland has a number of obligations. In particular, under Article 61, ‘Conservation of the living resources’, Ireland "shall determine the allowable catch of the living resources in its exclusive economic zone", and "shall ensure through proper conservation and management measures, that the maintenance of the living resources of the exclusive economic zone is not endangered by over-exploitation." The Law of the Sea also obliges Ireland to "determine its capacity to harvest the living resources of the exclusive economic zone".

Does the conservation policy of the CFP effectively prevent Ireland from fulfilling its international obligations ? Rather than allowing the Member States to determine ‘allowable catches’ and build a fishery-by-fishery consensus on management measures, does Brussels simply impose centrist directives, suppressing the Member State competence under international law ? Effective conservation policy directives must surely be based on Member State competence under accepted international sea law. Is it not the Member States which must determine the levels of fishing to be permitted within their respective economic zones ? Are not questions of access to waters and resources distinct and separate from the determination of the allowable catch, which, under the law of the Sea, is an obligation of the Member State, and not a function of the Commission, or Council ?

2.6 Resources

As we are all well aware, the fish stocks have scant regard for 6 and 12-mile limits. Our fish stocks range far and wide, and fishing activities 50 and 200 miles from our coasts have a substantial effect on our fish stocks. Fishing activities by other Member States have eroded our offshore reservoir of fish wealth, this buffer which has replenished our coastal fish stocks over the decades.

While economists laud the merits of individual transferable quotas (ITQs) and similar instruments, the social consequences and subsequent political fallout from their application has often been negative. As such, they are no panacea for Irish fishery management, and are by no means suitable for all fisheries. We are totally opposed to any imposition of ITQs.

The Hague Agreement (Hague Preferences) recognised the inequity of the original arrangements on the access to waters and fish resources. "On joining the EEC, Ireland was allowed to expand its catch. This led to six-fold increase in the catch of low-value pelagic species other than herring ….. This left Ireland with a low value mix of fish quotas, which is inequitable when compared to the mix enjoyed by our European partners." Neither does this low value mix of fish quotas reflect the wealth of our fish stocks. "As a basic minimum, the Community should maintain the ‘relative stability’ of the economic value of the Irish catch vis-à-vis other Member States."

There is a confusion of units: 200-mile zones, ICES Areas, fisheries, quota species, and permits. These units lack the necessary cohesion, harmony, and jurisdictional connections for effective resource management. The Member State jurisdiction and power of enforcement extends throughout their respective 200-mile zone. However, the resources are divided on the basis of the ICES areas, and fishing permits are issued by subject to flag State fisheries regulations.

3. How to conserve and manage our fisheries

3.1 Applied subsidiarity and regional fishery management

3.2.1 Applied subsidiarity

The ISWFO position: It is the sovereign obligation, and within the primary competence of each coastal Member State to determine the management rules which apply within their 200-mile fisheries zones, applicable to all vessels operating within those waters on a non-discriminatory basis. We term this concept "applied subsidiarity".

The parties, or stakeholders involved in the management of the fishery must be restricted to those directly involved in the fishery. For example, Ireland should have no say in the management decisions concerning Baltic Sea fisheries, as Ireland has no fleet operating there. Thus the pan-European decision-making process must be devolved to the regions. To do otherwise merely burdens the Brussels bureaucracy and renders management less effective.

Regional fishery management will mean different solutions for different fisheries and areas. No one formula will meet all requirements, and moves by Brussels to ‘standardise’ solutions is counterproductive.

3.2.4. Mopping up the access anomalies

In the haste to conclude the original arrangements on relative stability, a number of anomalies occurred due to the need for recognition of certain historical fishing rights off the Irish coast. To simplify management of the fisheries, two forms of access to Irish waters and to the fish resources should gradually be rationalised:

• token quotas – meaning quotas which are essentially symbolic and represent a small proportion of the TAC, and
• access to the resources within the 6 and 12-mile zones by non-Irish flag vessels.

These access rights and token quotas should be rationalised to facilitate practical regional management. The rationalisation may take several forms: either a direct buy-out of the token quotas (possibly redeploying savings from the third country agreements), or permanently swopping certain quotas. We suggest that minimal allocation keys (percentages of the TAC) should be considered to be token quotas and rationalised accordingly. In the event that TACs are to reduced, such token quotas (minimal percentages of the TAC) should be a primary target for rationalisation.

Some minor quota is clearly required to take account of incidental by-catch. Control of by-catch is essentially an enforcement issue with a strong link to technical measures.

3.2.5. The machinery of regional management

What can be the form of a regional fisheries management machine ?

The Member States and their democratically elected representatives (i.e., the fisheries ministers) are the primary stakeholders as sovereignty and jurisdiction is vested in the Member State, and the governments hold both the democratic mandate and the obligation with respect to fisheries governance.

The key players interacting with the fisheries ministers are the Member State government agencies, the POs, the ‘fisheries MEPs’, and of course the Commission. ICES remains the independent scientific advisory body.

The 200-mile fishery zone of the Member State should be the basic unit of management for the purposes of control and enforcement, as it is the coastal Member State, which can most effectively apply legal sanctions.

The ICES Areas, or Sub-Areas should be the basic unit of management for the purpose of determining TACs, as it is the building block of the current relative stability arrangements. The larger ICES Areas may be sub-divided for more effective management. However, it is vital to breakdown the trans-area quotas by Area and Sub-Area so that effective management and enforcement can be applied.

Each ICES Area, or Sub-Area will have a representative regional fisheries management body, or council established in accordance with broad criteria set out at European level. Those Member States holding a minimal, or token percentage, of the TAC allocation key in that ICES area should have no say in fishery management recommendations and decisions affecting such a species.

A single ‘regional fisheries management council’ comprising the fisheries ministers of concerned Member States (only) could, in practice, deal with several ICES Areas (or Sub-Areas). The ‘regional fisheries management councils’ would be advised by ICES and the appropriate technical sub-committees. Thus there may be, for example, a Baltic council, a North Sea council, a Biscay council, or a Celtic Sea council.

3.2.6 Precautionary management plans and regional management councils

The main function of the regional management councils would be to structure and agree upon a species-by-species, or fishery-by-fishery management plans within broad guidelines set out at a European level. The function of the Commission and the Council of Fisheries Ministers would be to coordinate and integrate the regional plans, rather than to approve the outputs of subsidiarity.

In the event that the regional body failed to agree on a management plan, the management of the fishery/ species in question would default to the levels of exploitation and technical conservation measures recommended by ICES. In the event that the management plan proposed a level of exploitation substantially superior to that recommended by ICES, then the plan would require further endorsement at a higher level. This formula is both precautionary and responsible.

3.2 Creating the resource buffer

Our inshore fishing has suffered from offshore fishing activities.

We need to identify and protect from all fishing activity certain reserves, closed areas, or ‘no-take’ zones. Based on scientific advice on the location of offshore nursery areas and feeding grounds of juvenile fish such areas must be created and enforced if our coastal fishing is to survive. With modern technology (vessel tracking systems) such enforcement is possible.

Enforcement means enforcement of Member State laws. The notion of an expanded role for an EU fisheries inspectorate is misguided, as EU legislative instruments are enforceable only through Member State law. The specific problem of control at sea of non-Irish, Member State fishing vessels operating in waters under Irish jurisdiction can readily be resolved by bilateral cooperation, as the following example illustrates.

Elementary example: In the case of UK fishing vessels fishing in waters under Irish jurisdiction a formal bilateral arrangement would apply making the following provisions. A UK fisheries inspector duly authorised under UK law will be placed on board the Irish fishery patrol vessel. In the event that a UK-flag vessel is to be boarded, the UK fisheries officer will have ‘mission control’. Within the agreed bounds of safety, security and related considerations, the UK fishery inspector will instruct the commander of the Irish patrol vessel regarding the boarding, arrest, communications, or other procedures which will be conducted under UK law. Clearly, officers of several Member States could be placed on board so that all fleets are covered, both within and outside 200-mile zones. Similar shore-side arrangements can apply if required.

The solution to many of the fishery control problems is to implement practical subsidiarity, by devolving effective control powers to the Member States, and structure effective regional management of the fisheries. This means that all vessels operating within the Irish 200-mile zone operate subject to the full force of Irish law and in particular must comply with requirements for quota monitoring.

The alternative is that offences against the fisheries regulations of other Member States are considered to be offences against Irish fisheries law. This means that, in the case of quota controls, Member States whose vessels fish within the Irish 200-mile zone ensure that the Irish authorities have sufficient information to hand to effect quota control, in default of which the vessel is detained.

The flagships, or quota-hoppers should be the primary target for fleet reduction under the MAGPs. A specific decommissioning scheme for such vessels may be considered, possibly using budgetary savings from the third-country agreements.

4. Recommendations

Our recommendations are the "proposals from the bottom up" required by Commissioner Bonino.

4.1 Regional management

We recommend that the Commission endorse the concept of regional fishery management as a realistic solution to the current dysfunctional conservation policy, and initiate a continuing dialogue with the fishing industry to develop practical applications of regional management.

4.2 Extension of the zones

Given the alarming decline in many of our whitefish stocks, we recommend that the Commission reintroduce the so-called ‘Irish Box’ restricting access to Irish-flag vessels, to ensure the survival of our fish stocks and our fishing communities.

4.3 Token quotas and access anomalies

We recommend that the Commission take measures to:

• rationalise token quotas
• eliminate all non-coastal State fishing rights with in the 12-mile zone.

4.4 A fair share - review of the quota allocations

By means of the current review of the CFP, we recommend, that the Taoiseach instruct his Ministers to vigorously pursue the commitment made to the Irish fishing community in the Fianna Fail policy document ‘Sea of Change’: "Fianna Fail is committed to increasing our existing fish quotas and will fight for peripheral regions." In particular, we recommend that the quota allocation rectify the historical injustices in the allocation and ensure a fair and equitable proportion of the high-value whitefish species.

4.5 The economic link

We recommend that the Commission formally recognise that the principle of free flow of goods and capital is incompatible with that of relative stability, and as such is undermining the foundations of fishery conservation. We recommend that the Commission authorise the Member States to individually define the term ‘economic link’ and that such an economic link be a requirement for the use of Member State quotas.

We further recommend that the Commission make provision within the FIFG to decommission all quota hoppers (flagships) over a reasonable timescale and that such flagships be the primary target of any MAGPs.

4.6 Effective fishery control

We recommend that the Commission recognise:

• that only the Member States have effective competence and jurisdiction in fishery enforcement, and should have full powers to control all fishing operations within the 200-mile zone,
• that practical cooperation between Member States is required on sea-going fishery patrols. This cooperation can be most effective through embarking authorised fisheries inspectors of several Member States on board a patrol vessel of a particular Member State.

We recommend that the Irish government consider that an offence against the fisheries regulations of another Member State be an offence against Irish law (long arm jurisdiction).

4.7 Technical conservation measures

We recommend that the Commission recognise that the existing technical conservation measures are general in nature and that effective technical conservation measures are specific to areas and fisheries and can only be effectively implemented and fine tuned through a regional management approach.

4.8. Closed areas, or no-take zones

We recommend that the Irish government in close coordination with the Commission and in the context of a regional management plan, create a range of closed areas (no take areas) where no fishing is permitted. The location and extent of the closed areas should be specific to each fishery, or group of related fisheries. The closed areas should be based on precautionary scientific advice.

4.9. Answers to legal questions

We recommend that the Commission consider and respond with precision to the legal issues raised in this discussion document.