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Jill Wakefield

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Jill Wakefield

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Jill Wakefield

Sustainability in EU fisheries is the subject of this chapter. Although it has been suggested that the Law of the Sea Convention introduced a principle of sustainable use to apply in all international instruments dealing with fisheries, there is little evidence that it has entered customary international law. The CFP pursues sustainable exploitation, which is its basic principle along with the principle of relative stability. These two principles are unique to EU fisheries. Sustainable exploitation gives priority to socio-economic factors and is expressed in fish catch levels which, routinely, have been set too high, leading to overexploitation. Legal challenges to such decisions on ground of environmental protection have not been successful, the strict rules on standing instituted by the Court of Justice being rigorously maintained. The balancing of economic, social and environmental interests that should be undertaken by policy-makers continues to give priority to the interests of the industrial fisheries sector, exacerbating the problem of regulatory capture already entrenched within decision-making. Relative stability is a principle that guarantees fish shares to Member States and militates against the reduction in quotas. The language of precaution and sustainability as applied in EU fishery legislation and as judicially interpreted is a significant obstacle to change. Successive reforms have simply overlain the fundamental concepts of sustainable exploitation and relative stability without dismantling them. As a result, these concepts continue to determine the operation of EU fisheries.
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Jill Wakefield

This book takes a critical view of the policy and law governing EU marine fisheries and the effect of the 2013 reform of the Common Fisheries Policy (CFP). Reforms to the CFP are impeded by Treaty-guaranteed concessions, exemptions from general environmental legislation and the Court of Justice’s creation of principles unique to the sector. The author discusses how damaging effects of fishing could be ameliorated if the Court were to align fisheries principles with general principles of law, and considers the institutional and regulatory frameworks needed to encourage prudent resource use.
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Jill Wakefield

This chapter considers the good governance principles that have been introduced to the CFP in the 2013 Fisheries Regulation. Following the direction under the TEU that the division of responsibilities at Union, national and local level should be clarified, the institutional structure of the CFP has been overhauled so that decision-making will operate at Union, regional, national and local level. To replace the centralised model that predominated under earlier policy, a new cross-border regionalisation has been introduced in order to achieve more effective regulation through the tailoring of policy to respond to the specific circumstances of geographically defined areas. Greater participation and stakeholder involvement in determining the implementation of policy is envisaged. Provision is made for ‘appropriate stakeholder’ involvement through Advisory Councils and no fisheries measure may be adopted without reference to the relevant Advisory Council. Although democratisation in decision-making may have been intended, membership of the Advisory Councils is weighted to give a majority voice to the fishing industry. Absent from the reform is any provision to protect the interests of coastal communities that are particularly dependent on fishing. There has been a failure to institute safeguards to prevent regulatory capture of the participatory process which has severe implications for actual democracy, competition and sustainability.
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Jill Wakefield

This chapter deals with the evolution of the EU’s CFP. The substantive reforms introduced by the 2013 Fisheries Regulation are outlined and discussed in the context of the new policy obligation to ensure that fishing is environmentally sustainable in the long term. Although overexploitation of the fish resource is driven by overcapacity, there are few incentives for capacity reduction. Attempts to ensure the sustainability of the resource are continued through revised control measures, including the introduction of a discard ban and a requirement to fish at maximum sustainable yield (MSY). However, the legislation does not address the problems emerging as a result of climate change. Even given the resultant mounting stressors on marine ecosystems, the latest Fisheries Regulation applies no pressure on the industry for husbandry of the resource. To support reforms, a new funding instrument, the Maritime and Fisheries Fund, has been established with aids to the fishing industry maintained, even though under EU law there is a prohibition on aid for other commercial sectors. Hitherto, the provision of aid has not managed to reduce the catching power of the fleet to match the available resource. A system to deliver robust, evidence-based policy has not emerged and scientific evidence is given no priority in decision-making. Instead, as under international law, the right to fish is protected, and this is treated by the Court of Justice as fundamental.
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Jill Wakefield

This chapter considers the precautionary approach to fisheries management set by international law and which underpins the management of EU marine fisheries. The distinction between the precautionary principle, a concept recognised in EU law but not international law, and the precautionary approach is analysed. The precautionary principle operates under EU law to protect against risks to human health and only applies to the environment if human welfare may be compromised. Even though the precautionary approach is understood not to require certainty of damage before the adoption of measures to restrict fishing, in practice, it is only applied where there is certainty that damage will occur. In its external fisheries policy, the EU evinces no inclination to promote the sustainability of the resource and exercise precaution in the negotiation of stock share and, instead, competes to maximise its own allocation. For its part, with regard to the CFP, the Court of Justice has refused to interpret the precautionary approach to give effect to the precautionary principle. The inability of the precautionary approach to ensure the sustainability of the resource is indicated by the intention to move to an ecosystem-based approach which is expected to establish an integrated approach to policy-determination. As the EU is committed to achieving the environmental objective of good environmental status for the seas, the ecosystem-based approach requires the introduction of an MSY standard for fish extraction. However, according to regulation, the negative impacts of fishing are to be minimised rather than avoided and ecological protections are required only within designated conservation areas or biologically sensitive areas.
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Jill Wakefield

This chapter considers the predicament of the overexploited EU fishing grounds and why the most integrated and regulated region of the world, the European Union, has failed to ensure the sustainability of its fish stocks. The Common Fisheries Policy (CFP), rooted in the Common Agricultural Policy regulating the husbandry of the land and harvesting of crops, has never developed effective principles or strategies to prevent the overexploitation of stocks and has failed to impose responsibility for the regeneration of fish stocks on the industry. The Court of Justice has not provided coherence for the CFP, being more exercised by individual rights and the constitutionalisation of the law internally, and concerned not to tie the hands of legislators in external affairs. Although the EU Treaties require the integration of environmental protection in all Union policies and objectives, the CFP is not made subject to environmental provisions. In 2014 a reformed CFP came into effect through the 2013 Basic or Fisheries Regulation. However, as with previous iterations of the CFP, the new regulation will not be effective to overcome overexploitation.
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Jill Wakefield

This chapter describes the framework of international legal instruments that have formed the basis of EU fisheries regulation. A raft of measures have been adopted by the international community to protect living marine resources and to promote environmental sustainability. However, the most significant impact of international law with regard to fisheries has been to entrench the right of States to exploit the living marine resource. Environmental measures confirm the right to extract at the maximum sustainable level, but do not elaborate how such a level is to be determined, leaving the marine resource susceptible to overexploitation. The limitation on protection is sought to be overcome through a non-binding FAO Code of Conduct which attempts to substitute a notion of a right to use the fish resource in place of the right of exploitation recognised in international law.
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Jill Wakefield