7.1 Conflicting policies

The issue of a deepsea fishing policy raises complex questions concerning the interplay between various aspects of European Community fisheries and environmental policies, and between European Community and international law. For example, the European Community’s Common Fisheries Policy (CFP) is, in theory, now based upon the precautionary principle, under the Maastricht Treaty. In practice this is far from the truth. A 1982 Explanatory Memorandum to the Council more accurately described the current policy: “Management of fish stocks cannot be based on purely scientific considerations but...socio-economic considerations are also a governing factor. Fisheries must be managed for the benefit of fishermen and take account of consumer interests.” (Commission 1982).

The precautionary principle applied to the management of ecosystems represents a major change in the way we treat the environment. The Maastricht Treaty on European Union introduced amendments to the EC Treaty to give greater effect to environmental protection. As a result Article 130r sets forth the key elements of EC environmental law and policy. Article 130r (2) provides that “Community policy on the environment...shall be based on the precautionary principle”, and that “Environmental protection requirements must be integrated into the definition and implementation of other Community policies” [emphasis added] (Sheridan and Sands 1996).

The UN Conference on Environment and Development (UNCED), having met in Rio de Janeiro in June 1992, proclaimed in Principle 15: “In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.” (UNCED 1992).

Since Rio, the precautionary principle has been advocated in the UN Food and Agriculture Organisation (FAO) Code of Conduct for Responsible Fisheries and in the UN Treaty on Straddling and Highly Migratory Fish Stocks. Both international bodies realise that management of fish stocks and fisheries are heading the wrong way and urgent changes are required. Both the FAO and the UN note that States: “should [FAO]/shall [UN] apply the precautionary principle widely to conservation, management and exploitation of living resources in order to protect them and preserve the aquatic environment.”

In June 1997, the UN General Assembly’s “Special Session” (UNGASS) will undertake a 5-year Earth Summit review. The aim is to review successes, failures and gaps in implementation, and identify new issues, with the intended outcome of an action-oriented political declaration. The European Commission believes that forests, climate change and finance are likely to be the most critical issues debated at UNGASS. The critical threats to deep-sea biodiversity from these new frontier fisheries will probably be left to fisheries managers within the EC and perhaps will never be adequately addressed (Commission 1996)

7.1 Deep-sea policy?

Despite European fisheries policy not been based on “purely scientific considerations”, the European Commission (EC) currently receives scientific advice on the management of fisheries from the International Council for the Exploration of the Seas (ICES). In 1993, the EC and ICES both realised that the deepwater fisheries in the north-eastern Atlantic, which have no quotas, would eventually have to be controlled if they are to survive (Gordon and Hunter 1993).

At the meeting of the Council of Fisheries Ministers of 19-20 December 1992, both the Council and the Commission jointly declared that deepwater resources of diverse nature “are likely to be very vulnerable to over-exploitation.” However, they have been reluctant to secure any conservation measures to protect deepwater species from the impact of these fisheries (Commission 1993).

The Commission published a ‘Staff Working Paper’ into the development of the deepwater fisheries in European waters. ‘Deepwater Fisheries’ highlighted a number of the major complications in trying to effectively manage these ‘new’ fisheries:

c “there appear to be sufficient reasons to believe that these stocks are particularly vulnerable to over-exploitation.”

c “...current difficulties in ageing individuals of these species imply that...there is little chance that analyses of the state of stocks analogous to that available for such species as cod, plaice, etc. will be forthcoming in the foreseeable future.”

c “...the national statistical databases [of Member States] do not make specific provision for recording these new species which are classified as “others” or are included in some general classification such as “diverse sharks”, etc. “

c “...classification of the landings into species is, in practice, impossible in some cases where species are landed unsorted and/or skinned prior to landing and/or are discarded except for their livers [e.g deepwater sharks]”.

The report concluded that, for the above reasons, management of individual species by a “precautionary TAC is inappropriate” and by “analytically-based TAC’s also appears impossible.” John Gordon, who is the current Chairman of the ICES Study Group on these fisheries, concluded in Gordon and Hunter (1994a) that the authors “agree with the Commission’s view that management by TAC’s on individual species would be difficult and indeed wasteful.”

Faced with these policy problems, the Commission concluded that it would only consider “a licensing scheme as a means of controlling the exploitation of these species.” That was over three years ago and it would appear that the Commission is still “considering” the management of deep-water fisheries, as this licensing scheme has never seen the light of day (Commission 1993).

In August 1994, the Study Group on the ‘Biology and Assessment of Deep-Sea Fisheries Resources’ reported to ICES that “where no assessment information is available, management should be based on precautionary measures in order to minimize the risk of over-exploiting the resources before that information can be obtained” (ICES 1995a). The fact that none of the ‘new’ deepwater species are subject to quota and that many are probably straddling stocks means that they are susceptible to the ‘mining’ or ‘gold rush’ philosophy of take all you can today and forget about tomorrow (Gordon and Hunter 1994).

The Study Group’s advice to ICES effectively implied that there will never be enough known about these deepwater species for it to be safe to exploit them.

Following the Study Group’s report, the ICES Advisory Committee on Fishery Management (ACFM) published its recommendations to the Commission in November 1994. ACFM informed the Commission and Fisheries Ministers that : “because of the vulnerable nature [of deepwater fish] ACFM recommends that a cautious approach should be adopted” (ICES 1995b), re-affirming the Study Group’s advice. No action was taken.

Nearly five years has elapsed since the Council of Fisheries Ministers’ and the Commission’s joint declaration on deepwater fisheries and three years since ACFM’s recommendation. The European Commission and Member States Fisheries Ministers have failed to heed warnings given by scientists and have chosen to leave these deepwater resources in a “very vulnerable” position, while the fishing industry have adopted their own “gold-rush” policy. These fisheries remain without control. The Commission appears to be supporting this policy by giving millions of pounds in European Development Funds to upgrade Scottish fishing ports, allowing ‘new’ fleets to develop close to the deepwater grounds of the Atlantic Frontier.

7.3 Deep-sea ‘suspension’

Dr John Gordon published an article in the Annual Report of the Scottish Association for Marine Science, part of the Government funded National Environment Resource Council (NERC). Gordon (1994) recognised that “the management of deepwater fish stocks is likely to pose considerable problems for the foreseeable future.”

Both Dr Gordon and the NERC provided evidence to ‘The House of Lords Select Committee on Science and Technology’ on the subject of Fish Stock Conservation and Management (1996). The final Committee report to the UK Government concluded “Ideally, we would recommend an interim suspension of all deep-sea fishing, but we recognise that it could not at present be enforced.” Presumably, they thought that the UK Government had no powers to enforce such measures and that any suspension of these fisheries would have to be left to European policy makers. However, in the absence of such measures being adopted by the European Commission, it may be open to the United Kingdom to adopt such measures unilaterally, subject to the approval of the Commission, the Council and ultimately the Court (Sheridan and Sands 1996).

The European Court of Justice has ruled in the past that unilateral national measures may be permissible provided they are genuine conservation measures, that they do not discriminate, that they are “necessary” for conservation and that they are proportionate. Article 13/2, Regulation 3094/86 allows for unilateral action in waters under the jurisdiction of a Member State. By virtue of the United Kingdom’s Fishery Limits Act 1976, the UK extended British Fishery Limits to 200 nautical miles, including a claim of 200 nautical miles around Rockall. Thus, it appears the UK did take unilateral action in the interest of conservation though its Exclusive Economic Zone (EEZ) (Sheridan and Sands 1996; Fisheries Chart 1988; Holden 1994).

There are no clear signals from the European Commission that the issue of deep sea fisheries will be addressed in the near future, if at all. It is clear that urgent action is needed to protect what is left of the remarkable deep-sea fish species off the British Isles, which are within the UK’s EEZ.