Suchergebnisse

The European Union (EU) and Faroe Islands, a small self-governing archipelago under the sovereignty of Denmark, both belong to the North-East Atlantic Fisheries Commission (NEAFC). NEAFC is a regional fisheries management organisation (RFMO) which is responsible for the management of, inter alia, Atlanto-Scandian herring. NEAFC parties have a long-term management plan in place for Atlanto-Scandian herring. Based on recommendations from the International Council for the Exploration of Seas (ICES) the parties set a total allowable catch (TAC) for the herring and divide this among the contracting parties each year. At the 2012 consultations between the NEAFC parties the Faroe Islands requested a larger share of the TAC. The Faroe Islands left the consultations after the other parties repeatedly refused this request. It was granted a share of the TAC by the other four states in its absence. It then set its own catch quota far above this allocated share. In response the EU put in place port state measures to prevent Atlanto-Scandian herring from entering the EU. This included an import ban and a ban on the use of EU ports by Faroese vessels. The EU took this action under Council Regulation (EC) No. 1026/2012 (Shared Stocks Regulation) which allows measures to be imposed against third countries that allow non-sustainable fishing of common or straddling stocks. This includes measures taken against RFMO partners for non-compliance with RMFO laws, as RFMOs are generally set up to conserve straddling fish stocks. This Regulation was promulgated in line with a number of multilateral environmental agreements (MEAs) such as UNCLOS and the United Nations Fish Stocks Agreement (UNFSA). The Faroe Islands challenged the Shared Stocks Regulation and the specific Implementing Regulation imposing the port state measures in both the World Trade Organisation (WTO) and a Tribunal constituted under the United Nations Convention on the Law of the Sea (UNCLOS). However the matter was settled before either of these tribunals could hear the case. The dissertation interrogates whether the EU Regulations are consistent with WTO law, specifically the General Agreement on Tariffs and Trade (GATT), using the facts of the Atlanto-Scandian herring dispute. Chapter I sets out the background to the dispute, and explains the concepts of illegal, unreported and unregulated (IUU) fishing, and port state measures. Chapters II and III of the dissertation consider the consistency of the EU Regulations with the GATT. Chapter II finds that the EU Regulations contravene one or more of Articles I, V and XI of the GATT (the substantive provisions). Chapter III considers whether these measures, having contravened one of the GATT substantive provisions, may be justified under Article XX of the GATT (the exceptions provision). Chapter III concludes that, although well-crafted, the EU Regulations may still not be justifiable under the Article XX Chapeau in the particular circumstances of the herring dispute, based on principles in previous WTO cases. Chapter IV considers the relationship between multilateral environmental agreements (MEAs) relevant to IUU fishing and WTO agreements, to determine whether the EU Regulations could be considered GATT-consistent by reference to these MEAs or whether the MEAs could override WTO law. Chapter V concludes.

The small-scale fisheries sector makes a valuable contribution to livelihoods and food security, particularly in under-resourced countries. Yet small-scale fishers and fishing communities are often vulnerable and marginalised, and the small-scale sector is largely ignored by governments providing subsidies to their fishing industries. Provisions seeking to ban harmful fisheries subsidies are now the subject of several large international trade agreements and negotiations. While this is a laudable and necessary goal, the binding nature and robust enforcement mechanisms of trade agreements make it imperative that small-scale fisheries are protected and provided for in these agreements in the interests of sustainable development and poverty reduction. The thesis considers how this can be achieved. In order to determine what would best serve the interests of small-scale fisheries in trade agreements, the thesis creates a framework of development needs, which underpins the analysis in the remainder of the thesis. This analysis revolves around three large trade agreements and negotiations containing provisions on fisheries subsidies – namely the World Trade Organization (WTO) negotiations, the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP), and the United States-Mexico-Canada Agreement (USMCA). Drawing on the development framework, the thesis identifies a number of shortcomings in these agreements when it comes to protections for small-scale fisheries, including a lack of provision for important development needs and a failure to achieve an appropriate balance between development and sustainability considerations. The thesis also considers potential problems that could arise in the conclusion and enforcement of trade agreements dealing with fisheries subsidies, particularly as these relate to small-scale fisheries and sustainable development. Based on this analysis, the thesis makes a number of recommendations to be incorporated in trade agreements going forward that would adequately protect and promote the interests of small-scale fisheries, while not losing sight of sustainability concerns and the practical realities of negotiating complex international trade agreements. These include, inter alia, exemptions for important social assistance subsidies, better representation and transparency, and measures to improve equity between the small-scale sector and other fishing sectors.