Government of the Faroes: Coercive economic measures are illegal and counterproductive
In less than a week, on July 31, the EU will decide whether to adopt coercive economic measures against the Faroe Islands, over a dispute on the quota allocation of Atlanto-Scandian herring. Not only does the proposed EU action contravene the United Nations Convention on the Law of the Sea (UNCLOS) and circumvent available procedures where disagreements arise, it is also based on inaccurate allegations and is unnecessarily excessive.
The crux of the European Commission’s own narrative, on which it basis its reasoning, asserts that the Faroese have “withdrawn from consultations” on Atlanto-Scandian herring in October 2012. This statement presents the Faroese counter-narrative to challenge that of the Commission, and repeats the Faroese call for multilateral negotiations on the allocation of Atlanto-Scandian herring.
Stock migration and management:
Multilateral management of regional fisheries of migrating stocks should always reflect scientific conclusions on the size and behaviour of the stock. The annual evidence presented by the International Council for the Exploration of the Sea (ICES) working groups for 2011 and 2012 reflect migration patterns of Atlanto-Scandian herring into- and increased dependency on maritime areas within Faroese jurisdiction. This was what prompted the Faroese call for an equitable allocation key in comparison to the previous, both in 2011 and 2012.
The first allocation key for Atlanto-Scandian herring was originally agreed for 1996 between the Faroe Islands, Norway, Iceland and the Russian Federation. Despite the virtual absence of Atlanto-Scandian herring in EU waters, the EU through unilateral means became a party to the Atlanto-Scandian herring arrangement, after having set itself an unprecedented unilateral quota of 150,000 tons, which it could only effectively fish in international waters. The allocation key was modified again in 2007, after four years without an agreed arrangement between the coastal States. This was due to Norway’s refusal at that time to sign the annual agreement until its share was increased. Over the years, the Faroese share has remained by far the smallest at just over 5%, which by no means reflects the distribution and dependence of Atlanto-Scandian herring in Faroese waters today, nor the long-standing dependency of the Faroe Islands on fisheries.
Indeed, the recent stock changes in migratory patterns entitling the Faroe Islands an equitable share, fully merit changes to the allocation key in the management of the Atlanto-Scandian herring stock. This agreement must be concluded within the framework of the agreed long-term management plan for the Atlanto-Scandian herring, to which the Faroe Islands continue to adhere.
Instead, the Faroese calls were flatly rejected and an agreement on the annual total allowed catch (TAC) and quota allocation for 2012 was made in a peculiar meeting where the Faroese delegation was deliberately excluded – so much so that questions can be raised as to the legitimacy of the arrangement with regards to UNCLOS.
Unable to present its case for a changed allocation key, the Government of the Faroes saw no option but to set a catch limit which reflects its entitlement and is also based on the ICES advice. It is therefore the lack of an inclusive five-party agreement on allocation, which puts the sustainability of this shared stock in jeopardy, a situation the Faroe Islands wish to see rectified jointly with the other coastal States as soon as possible.
The on-going dispute:
The Commission’s proposal for coercive measures against the Faroe Islands appears to be primarily based on the assertion that the Faroe Islands have “withdrawn from consultations” on the Atlanto-Scandian herring. The inaccuracy of this description was formally corrected in a letter from the Faroe Islands to the other coastal States after the inconclusive round of consultations in January this year. The Commission has nevertheless chosen to continually repeat the biased claim that the Faroe Islands have “left the negotiating table” and are “not discussing or cooperating” with the EU on the issue.
In fact, the Faroese Fisheries Minister, Mr. Vestergaard, has in several letters underlined his view that all options for renegotiating an equitable allocation of the Atlanto-Scandian herring have far from been exhausted. These include his response of 17 June to the European Commissioner for Fisheries and Maritime Affairs, Mrs. Maria Damanaki, following the Commission’s notification of the planned coercive economic measures on 17 May, as well as further letters, some of which were sent jointly with the Danish Minister for Foreign Affairs, Mr. Villy Søvndal.
In each of these letters, Mr. Vestergaard has also repeatedly stressed that the Faroese remain ready and willing to resume consultations with the other Parties as soon as possible, in which context the Faroe Islands would be given an opportunity to present a reasoned and justified claim for the Faroese share of the Atlanto-Scandian herring stock. Mr. Vestergaard has also underlined the Faroese commitment to the long-term management plan and ICES’ TAC recommendations, but contests the quota allocations within the set TAC.
A meeting between all five coastal States has now been scheduled for 2 and 3 September in London, although this would only occur following the introduction of the proposed coercive economic measures. Neither does it mention the expressed commitment received by the Commission in recent letters from Mr. Vestergaard to work constructively with other Parties at the forthcoming meeting.
When confirming the outcome of the Council meeting in a press conference on 15 July, Mrs. Damanaki equally ignored these on-going Faroese efforts. In a response to the Commissioner, Mr. Vestergaard nevertheless reiterated his commitment “to constructively seeking to agree on a joint management arrangement for 2014 in which there could be leverage for including possible fisheries undertaken in 2013 in order to be compatible with the latest scientific advice.” At the same time, Mr. Vestergaard made clear his “concern that on-going efforts by the EU to pursue a process towards the adoption of coercive economic measures risk calling into question the very basis for further negotiations, to which I remain strongly committed.”
The legal dimension:
In all of this, it is noteworthy that the EU has claimed the prerogative to implement “certain measures for the purpose of the conservation of fish stocks in relation to countries [which it deems to allow] non-sustainable fishing” through Article 6 of Regulation (EU) No 1026/2012.
This development is perplexing. Consistent with international law as reflected in article 279 of UNCLOS, States shall seek to resolve disputes by peaceful means. In the case of shared fish stocks, States shall seek to agree upon the measures necessary to coordinate and ensure their conservation and development. The obligation to seek to agree on the establishment of joint conservation and management arrangements of shared fish stocks cannot be interpreted to mean that one of the relevant coastal States to a shared fish stock can impose on others a management arrangement, including allocation, which it alone considers to be equitable. The EU’s behaviour therefore contrasts with the very nature of the procedures under UNCLOS.
Indeed, by unilaterally attempting to force the Faroe Islands to undermine their national interests under threats of coercion, as a precondition for multilateral consultations, the EU is therefore acting in breach of its obligations under international law. Furthermore, it can also be argued that such an approach on the part of the EU is actually instrumental in preventing the cooperation necessary to reach a multilateral agreement.
On behalf of the Government of the Faroes, I want to add my own grave concern that the EU’s confrontational approach in this matter, is a disturbing break from the long-standing tradition of close dialogue and constructive cooperation on the management of shared fish stocks in the Northeast Atlantic.
As a European third country vis-à-vis the EU, the Faroe Islands have a Framework Agreement on cooperation on fisheries as well as a Free Trade Agreement with the EU. Both agreements have their basis in long-standing relations between the Parties, and recognize in particular the overwhelming dependency of the Faroe Islands on fisheries. It is not least with these close and long-standing cooperative relations in mind that the Government of the Faroes views the Commission’s detrimental proposal with such concern and urges its rejection.
The Government of the Faroes is of the firm view that only multilateral negotiations between all five coastal States (EU, Faroes, Iceland Norway and the Russian Federation) can provide a joint management arrangement for the Atlanto-Scandian herring.
On behalf of the Government of the Faroes,
Kaj Leo Holm Johannesen
Prime Minister of the Faroes