Fishing Power Europe: The EU’s Normativity in Its External Fisheries Action 9462655820, 9789462655829

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Global Europe: Legal and Policy Issues of the EU’s External Action

Fishing Power Europe The EU’s Normativity in Its External Fisheries Action Foreword by Prof. Robin Churchill

Mihail Vatsov

Volume 3

Global Europe: Legal and Policy Issues of the EU’s External Action Volume 3

Editors-in-Chief Narin Idriz , T.M.C. Asser Institute, The Hague, The Netherlands Eva Kassoti, T.M.C. Asser Institute, The Hague, The Netherlands Advisory Editors Elaine Fahey, Institute for the Study of European Law, City University London, City Law School, London, UK Ramses A. Wessel, Faculty of Law, University of Groningen, Groningen, The Netherlands Katja Ziegler, University of Leicester, Leicester, UK

The Global Europe Book Series: Legal and Policy Issues of the EU’s External Action Series is a peer-reviewed book series that explores the legal and policy issues pertaining to the EU’s global actorness. The editors of the book series welcome edited volumes as well as monographs exploring the EU’s identity as an international actor. The coverage extends to submissions identifying the internal and external factors that may challenge the EU’s capacity to exercise value-based global leadership on crucial issues affecting European citizens as well as those from other parts of the world; critically reflecting on whether the external projection of the EU as a virtuous normative power comports with its practice on the ground as well as addressing the descriptive, normative and conceptual challenges that complement the ever-expanding global reach of EU law.

Mihail Vatsov

Fishing Power Europe The EU’s Normativity in Its External Fisheries Action

Mihail Vatsov Brussels, Belgium

ISSN 2666-4828 ISSN 2666-4836 (electronic) Global Europe: Legal and Policy Issues of the EU’s External Action ISBN 978-94-6265-582-9 ISBN 978-94-6265-583-6 (eBook) https://doi.org/10.1007/978-94-6265-583-6 Published by t.m.c. asser press, The Hague, The Netherlands www.asserpress.nl Produced and distributed for t.m.c. asser press by Springer-Verlag Berlin Heidelberg © T.M.C. ASSER PRESS and the author 2023 No part of this work may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, microfilming, recording or otherwise, without written permission from the Publisher, with the exception of any material supplied specifically for the purpose of being entered and executed on a computer system, for exclusive use by the purchaser of the work. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. This t.m.c. asser press imprint is published by the registered company Springer-Verlag GmbH, DE, part of Springer Nature. The registered company address is: Heidelberger Platz 3, 14197 Berlin, Germany

Stay awhile and listen —Deckard Cain

Foreword

It is both a pleasure and a privilege to contribute the foreword to this important book by Mihail Vatsov on European Union external action in relation to fisheries. I first met Dr. Vatsov some years ago when he was engaged in Ph.D. studies at the University of Edinburgh. During his time in Edinburgh, we had a number of long and stimulating conversations about the EU’s external fisheries actions. Although fisheries have been an important element of the EU’s external relations since the 1970s, it initially attracted little attention in the academic literature. When the first legal studies on the external dimension of the EU’s Common Fisheries Policy (CFP) began to appear in the 1980s, they were, for the most part, straightforward black-letter law analyses. That began to change after 2000 when environmental NGOs began to turn their attention to the CFP and its external dimension. NGO critiques probably helped to generate a more questioning approach in the legal and political science literature. During the 2010s, a new generation of legal scholars with an interest in EU external fisheries action began to emerge, adopting a much more sophisticated approach than their predecessors. Among them was Dr. Vatsov. He helped to lead the way, not only with his publications but also by convening a conference of like-minded young scholars at the University of Edinburgh in 2018. That resulted in a fascinating and wide-ranging set of papers, subsequently published in 2020 as volume 35 (2) of the International Journal of Marine and Coastal Law. Now comes this book. In it, Dr. Vatsov examines the EU’s external fisheries relations, not only from the perspective of the CFP but also by discussing the fisheries dimensions of the EU’s commercial, development, environmental, social and transport policies. He does so through the prism of the political science concept of normative power. Normativity in this context has three elements: (1) the endorsement and promotion of universal or universally realisable norms; (2) the employment of negotiations and persuasion as the means to that end, with coercive measures being a limited last resort and (3) acting legitimately, i.e. complying with the law, focusing on long-term community interests rather than short-term self-interest and being consistent and coherent. The author subtly and convincingly shows that observance of these three elements is required by EU law. The main part of the book considers, in an admirably clear and structured way, whether the EU in its external fisheries relations vii

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has lived up to these criteria of normativity. It examines a wide range of external fisheries issues, including the safety and welfare of fishers, subsidies for the fishing industry, illegal, unreported and unregulated fishing, regional fisheries management organisations and the access of EU fishing vessels to the waters of developing states, drawing on a wealth of detailed practice. The author finds numerous failures by the EU to live up to its obligation to act normatively, particularly in relation to the legitimacy element, and suggests reasons for those shortcomings and how they might be remedied. Overall, the book is an authoritative, richly informative and thought-provoking study of an important area of the EU’s external relations. It is a major contribution to the literature on both the Common Fisheries Policy and EU external relations. Auchterarder, UK September 2022

Robin Churchill

Preface

This book is the result of many years of personal interest and research in the area of fisheries and even more in the area of the European Union’s (EU) external action. It is based on my Ph.D. research conducted at the University of Edinburgh, which benefitted from the skilful, knowledgeable, supportive and compassionate mentoring of Prof. Dr. James Harrison and Prof. Dr. Tobias Lock, as well as the insightful conversations with Prof. Dr. Chad Damro, Daniel Owen and Prof. Dr. Robin Churchill in Edinburgh and Prof. Dr. Bruno de Witte and Prof. Dr. Joanne Scott in Florence. It is also the result of the insistence of Dr. Eva Kassoti on its publication. I hope it serves as inspiration to my niece Kalina. I wrote this book because there is an enormous gap in the literature on the EU’s external action in the area of fisheries. This book also stands out because it provides a legal overview of that action, which is encapsulated in the leadership narrative often found in the political science and international relations debates. As such, it seeks to not only explore in a more comprehensive way what the EU does in the area of fisheries at the international stage, but also put flesh to the bone of leadership debates from the legal perspective. This book is aimed at academics and practitioners alike working in the area of fisheries globally but also on the EU’s external action more generally. Any views and opinions expressed in this book are my own and should not be considered as representative of the European Commission’s official position. Brussels, Belgium September 2022

Mihail Vatsov

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Contents

1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.1 The Inception of Fishing Power Europe . . . . . . . . . . . . . . . . . . . . . . . . 1.2 Purpose of the Book . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.3 Contribution to the Literature . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.4 Theoretical Context . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.5 Structure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 1 4 5 6 9 12

2 Normative Power Europe as an Analytical Framework for Examining the EU’s Normativity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.2 Elements of Normative Power Europe . . . . . . . . . . . . . . . . . . . . . . . . . 2.2.1 The EU’s Distinctiveness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.2.2 Universality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.2.3 Use of Instruments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.2.4 Legitimacy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.3 The Adapted Concept and Its Use . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

17 17 18 19 20 22 28 34 35

3 The EU Area of Fisheries and Normative Power Europe . . . . . . . . . . . 3.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.2 The Area of Fisheries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.3 Can the EU Act Normatively in the Area of Fisheries? . . . . . . . . . . . 3.3.1 Institutional Framework . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.3.2 Competences to Act in the Area of Fisheries . . . . . . . . . . . . . 3.3.3 Capacity to Act Internationally in the Area of Fisheries . . . . 3.4 Is the EU Required to Act Normatively in the Area of Fisheries? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.4.1 Universality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.4.2 Use of Instruments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.4.3 Legitimacy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.5 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

39 40 40 42 42 48 61 62 63 64 65 69 70 xi

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4 Challenges to the EU’s Normativity Posed by Lack of Membership in Global Institutions . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.2 Universality in Safety and Working Conditions of Fishermen . . . . . 4.3 The Normative Impact of Participation Limitations . . . . . . . . . . . . . . 4.3.1 Relevant International Fora and the EU’s Status Therein . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.3.2 Involvement in Multilateral Processes . . . . . . . . . . . . . . . . . . . 4.3.3 Damaged Coherence and Consistency . . . . . . . . . . . . . . . . . . . 4.4 Overcoming Participation Limitations . . . . . . . . . . . . . . . . . . . . . . . . . 4.4.1 Utilising Available Participation Rights . . . . . . . . . . . . . . . . . 4.4.2 Utilising Other Policies and Instruments . . . . . . . . . . . . . . . . . 4.5 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Challenges to the EU’s Normativity Notwithstanding Its Membership in Global and Regional Bodies . . . . . . . . . . . . . . . . . . . . . . 5.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.2 Normativity in Cooperative Management of Fish Stocks . . . . . . . . . 5.2.1 Universality in Cooperative Management of Fish Stocks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.2.2 Re-emerging Participation Limitations . . . . . . . . . . . . . . . . . . 5.2.3 Legitimacy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.3 Normativity in Reducing Fisheries Subsidies . . . . . . . . . . . . . . . . . . . 5.3.1 Universality in Reducing Fisheries Subsidies . . . . . . . . . . . . . 5.3.2 Use of Instruments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.3.3 Legitimacy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.4 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Challenges to the EU’s Normativity in Multileveled Coercive Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.2 Universality in Fighting IUU Fishing . . . . . . . . . . . . . . . . . . . . . . . . . . 6.3 Implementing Multilaterally-Agreed Measures . . . . . . . . . . . . . . . . . 6.4 Conditionality and Bilateral Trade Agreements . . . . . . . . . . . . . . . . . 6.5 Adopting Unilateral Measures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.5.1 The IUU Fishing Regulation . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.5.2 The Sustainable Fishing Regulation . . . . . . . . . . . . . . . . . . . . . 6.6 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

75 76 77 80 80 83 97 100 100 102 107 108 115 116 117 117 118 126 138 138 141 143 148 149 157 158 159 161 163 167 167 177 186 187

7 Challenges to the EU’s Normativity in Gaining Access to Foreign Resources . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 193 7.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 194 7.2 Universality of Sustainably Fishing in a Foreign EEZ . . . . . . . . . . . . 195

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7.2.1 The EEZ Regime and Sustainable Fishing . . . . . . . . . . . . . . . 7.2.2 Origins of the EU’s Fisheries Agreements . . . . . . . . . . . . . . . 7.2.3 Evolution of the EU’s Fisheries Agreements . . . . . . . . . . . . . 7.3 The EU’s Normativity in Using Compensatory Agreements . . . . . . . 7.3.1 Undue Pressure on Stocks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.3.2 Failing to Ensure Mutual Benefit . . . . . . . . . . . . . . . . . . . . . . . 7.3.3 Attempting to Export Norms Through SFPAs . . . . . . . . . . . . 7.3.4 Complicating On-Going Disputes . . . . . . . . . . . . . . . . . . . . . . 7.4 Case Study: Western Sahara . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.4.1 Legal and Factual Context . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.4.2 Normativity of the EU’s Conduct . . . . . . . . . . . . . . . . . . . . . . . 7.5 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

195 197 199 201 202 204 204 206 208 209 212 221 222

8 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.1 The EU’s Power in the Area of Fisheries . . . . . . . . . . . . . . . . . . . . . . . 8.2 Normativity Characteristics . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.2.1 The EU’s Fishing Power Is Dispersed . . . . . . . . . . . . . . . . . . . 8.2.2 The EU’s Normative Conduct Is Multileveled . . . . . . . . . . . . 8.2.3 The EU’s Normativity Requires Flexibility . . . . . . . . . . . . . . 8.3 Law and Normativity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.3.1 Acting Normatively Has Important Legal Consequences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.3.2 The International Law Framework Still Limits the EU’s Conduct . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.3.3 The EU Member States Are Central to Addressing These Limitations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.3.4 The EU’s Distinctiveness Helps and Hinders Normativity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.4 Towards Achieving Normativity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

229 230 231 231 232 233 234 234 235 236 238 238 239

Index . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 241

Abbreviations

AG CCAMLR CCP CCRF CCSBT CETA CFP CFR CGD CJEU CNCP COFI CSTCW-F CTA CTP DARIO DCP DWFF ECHR ECJ EEZ EFCA EFF EMFAF EMFF EU EUMOFA FAO FPA

Advocate General Commission for the Conservation of Antarctic Marine Living Resources Common Commercial Policy Code of Conduct for Responsible Fishing Convention for the Conservation of Southern Bluefin Tuna Comprehensive and Economic Trade Agreement Common Fisheries Policy Charter of Fundamental Rights Changes in the geographical distribution Court of Justice of the European Union Cooperating non-contracting party Committee on Fisheries International Convention on Standards of Training, Certification and Watchkeeping for Fishing Vessel Personnel Cape Town Agreement Common Transport Policy Draft Articles on the Responsibility of International Organisations Development Co-operation Policy Distant water fishing fleet European Convention on Human Rights European Court of Justice Exclusive Economic Zone European Fisheries Control Agency European Fisheries Fund European Maritime Fisheries and Aquaculture Fund European Maritime Fisheries Fund European Union European Market Observatory for Fisheries and Aquaculture Food and Agriculture Organization Fisheries Partnership Agreements xv

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FTA GATT GC GFCM GSP ICCAT ICJ ILC ILO IMO IPOA IUU LDAC MPA MSY NAFO NEAFC NGO NPE NPFC NSGT OECD PFLC PSMA REIO RFMO SDG SFPA SFR SPRFMO STECF TAC TEU TFEU TSD UNCLOS III UNCLOS UNEP UNFSA UNGA VCLT WFC WSC WTO

Abbreviations

Free Trade Agreement General Agreement on Tariffs and Trade General Court General Fisheries Commission for the Mediterranean Generalised System of Preferences International Commission for the Conservation of Atlantic Tunas International Court of Justice International Labour Conference International Labour Organization International Maritime Organization International Plan of Action Illegal, unreported, or unregulated Long Distance Fleet Advisory Council Marine protected areas Maximum sustainable yield Northwest Atlantic Fisheries Organization North East Atlantic Fisheries Commission Non-government Organisations Normative Power Europe North Pacific Fisheries Commission Non-Self-Governing Territories Organisation for Economic Co-operation and Development Protocol to the Forced Labour Convention Port State Measures Agreement Regional Economic Integration Organisation Regional Fisheries Management Organisation Sustainable Development Goal Sustainable Fisheries Partnership Agreement Sustainable Fishing Regulation South Pacific Regional Fisheries Management Organisation Scientific, Technical and Economic Committee for Fisheries Total allowable catch Treaty on European Union Treaty on the Functioning of the European Union Trade and Sustainable Development Third United Nations Conference on the Law of the Sea United Nations Convention on the Law of the Sea United Nations Environment Programme United Nations Fish Stocks Agreement United Nations General Assembly Vienna Convention on the Law of the Treaties Work in Fishing Convention Western Sahara Campaign World Trade Organization

Chapter 1

Introduction

Contents 1.1 The Inception of Fishing Power Europe . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 1.2 Purpose of the Book . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 1.3 Contribution to the Literature . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 1.4 Theoretical Context . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 1.5 Structure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Abstract This chapter sets the scene of the book. It starts by introducing the developing importance of fisheries for the European Union (EU) over the years and shows that the continuous consolidation of powers in this area made the EU an important powerful actor with respect to fisheries. The chapter continues with setting some cornerstones of the book such as (1) the adopted understanding of ‘normative power’ as being a powerful actor that acts in a principled way and (2) the main aim of the book, which is to examine how the frameworks of EU and international law impact the EU’s ability to act normatively in its external action in the area of fisheries. Considering the vastness of the literature on the EU’s external action, this chapter also shows the gap that is left with respect to fisheries. Subsequently, this chapter sets out the theoretical context of Ian Manners’ work on Normative Power Europe and sketches out how it is adapted methodologically to serve the purpose of a legal analysis. Finally, the overall structure of the book is presented. Keywords Fishing Power Europe · Normative Power Europe · Ian Manners · Idée force · Pouvoir · Puissance

1.1 The Inception of Fishing Power Europe Fish are a fundamental natural resource. They are crucial for mankind’s subsistence as well as the Earth’s ecosystem, of which the human is only one part. Just a few hundred years ago Grotius, in defence of his argument on the freedom of the seas, viewed this resource as inexhaustible.1 Today such views are only reminiscences of 1

Rayfuse 2004, p. 3.

© T.M.C. ASSER PRESS and the author 2023 M. Vatsov, Fishing Power Europe, Global Europe: Legal and Policy Issues of the EU’s External Action 3, https://doi.org/10.1007/978-94-6265-583-6_1

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1 Introduction

the past.2 Fisheries disputes are breaking out as there is not as much fish in the sea to satisfy the desires of the fishing nations and are of ever-growing importance in times of food security concerns. Since the middle of the twentieth century, States have strongly asserted their control over greater areas off their coasts to the exclusion of foreign fishermen.3 This practice found strong support during the negotiations at the Third United Nations Conference on the Law of the Sea (UNCLOS III) in the 1970s resulting in the development of the Exclusive Economic Zone (EEZ) concept and its eventual inclusion in the 1982 the United Nations Convention on the Law of the Sea4 (UNCLOS). EEZs are zones of up to 200 nautical miles (nm) (about 370 km) off the States’ coasts within which inter alia they have sovereign rights and obligations relating to exploration, exploitation, conservation and management of natural resources, including fisheries.5 These developments gave birth to the need for a consolidated European Union (EU)6 action in fisheries with a strong international dimension. Since the 1970s, the EU has been getting increasingly involved in almost all aspects of international fisheries. This progressive action went hand-in-hand with the development of the EU’s internal and external competences. Internally, it was in the 1960s that the EU first started drawing upon its agricultural competence to develop a fisheries policy that much later, and following the relevance boost of international developments, became a separate fisheries policy with the Maastricht Treaty in 1993.7 With the increasing international consensus on the EEZ’s establishment as a new pivotal element of the law of the sea, the EU’s internal competences were of little use without the corresponding external competence. The Court of Justice of the European Union (CJEU) categorically agreed and in 1976 ruled in the Kramer case that the EU had the implied and exclusive competence to also act externally in the area of fisheries conservation.8 The assumption of external competence in fisheries and some law of the sea matters put the EU firmly on the map by securing for it a separate negotiator seat (and not just an observer status) at the UNCLOS III table.9 The EU sat there alongside its Member States. The exclusive authority that the EU developed in the area of fisheries, both internally and externally led to it being rightfully considered a “Single Coastal State” for the purposes of fisheries, notwithstanding the initial refusal by Eastern European States (the Soviet Union and fellow members of the Council for 2

Ibid. Hollick 1977, p. 495. 4 United Nations Convention on the Law of the Sea, opened for signature 10 December 1982, 1833 UNTS 397, entered into force 16 November 1994. 5 Ibid., Part V, specifically, Articles 55 and 56. 6 Although the EU as a unitary all-encompassing name has been legally applicable since the entry into force of the Lisbon Treaty in 2009, this book uses the EU (occasionally inaccurately) as a term referring also to the organisation before the Lisbon Treaty for ease of expression. The same approach is taken towards the changing names of EU judiciary. 7 Churchill and Owen 2010, pp. 4–6. 8 ECJ, Joined Cases 3, 4 and 6/76 Kramer, Judgment, 14 July 1976, EU:C:1976:114, para 30/33. 9 Treves 1987, p. 520. 3

1.1 The Inception of Fishing Power Europe

3

Mutual Economic Assistance) to recognise the EU as a negotiating partner.10 This consolidation of powers made the EU an important powerful actor with respect to fisheries—a Fishing Power Europe was created. Despite initial challenges to its powers and relevance, the EU emerged as a major player in the area of fisheries with serious leadership aspirations. First, the EU has the largest market of fisheries and aquaculture products in the world in terms of value.11 Second, the EU is fifth in the world in terms of fisheries and aquaculture production.12 Third, the EU’s fishing fleet operates all over the world’s oceans and the EU has secured wide participation in Regional Fisheries Management Organisations (RFMOs) across the world—eighteen RFMOs, two of which have purely advisory functions.13 Fourth, beyond RFMOs, the EU is also a strong participant in the international fisheries governance through participating in the negotiations and being a party to main fisheries treaties (e.g. UNCLOS, the United Nations Fish Stocks Agreement (UNFSA),14 the Compliance Agreement,15 and the Port State Measures Agreement16 (PSMA)) and soft-law instruments (e.g. the Food and Agriculture Organization (FAO) International Plans of Action (IPOA),17 the FAO Code of Conduct for Responsible Fishing18 (CCRF)) and participating in various fora dealing among other things with fisheries matters as a member (FAO and the World Trade Organization (WTO)) or through an observer status and its Member States (the United Nations General Assembly (UNGA), the United Nations Environment Programme (UNEP), the International Maritime Organization (IMO), the International Labour Organization (ILO) and the Organisation for Economic Co-operation and Development (OECD)). Fifth, fisheries are an important part of the EU’s bilateral agreements. Since the 1970s, the EU has developed a strong continuous practice of bilateral fisheries agreements with various States. Since the late 1980s, the EU has also included fisheries cooperation provisions in its trade-related agreements with various States.19 Sixth, for the past decade the EU has started using unilateral 10

Churchill 1987, pp. 557–558. EUMOFA 2021, p. 22. 12 Ibid., p. 19. 13 On the EU’s membership in RFMOs, see Popescu 2015, p. 9. See also https://ec.europa.eu/fisher ies/cfp/international/rfmo_en. Accessed 2 August 2022. 14 The United Nations Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, opened for signature 4 August 1995, 2167 UNTS 3, entered into force 11 December 2001. 15 Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas, opened for signature 24 November 1993, 2221 UNTS 91, entered into force 24 April 2003. 16 Agreement on Port State Measures to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing, opened for signature 22 November 2009, FAO Doc C 2009/LIM/11 Rev.1, entered into force 5 June 2016. 17 FAO 1999, 2001. 18 FAO 1995. 19 Vatsov 2019. 11

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instruments involving trade measures aimed at third States on account of their fishing practices. The EU has also claimed to be a champion of sustainable fishing through its various actions.20 However, the results of its efforts are heavily criticised for not matching its rhetoric.21 These leadership claims are understood in this book as claims to being a ‘normative power’. In this book ‘normative power’ denotes a powerful actor that acts in a principled way.

1.2 Purpose of the Book The purpose of this book is to examine the EU’s normativity relating to the abovementioned vast amount of external fisheries action of the EU. The overarching question to be answered is how the frameworks of EU and international law impact the EU’s ability to act normatively in its external action in the area of fisheries? Theorising and analysing the EU’s power on the international plane and its external policies is a daunting task requiring the adoption of a particular ontology. First and foremost, I reject the understanding that the EU’s power can be reduced to only one particular type (civil, military, normative, ethical, etc.) to the exclusion of others. Such singularity is impossible at this stage of the EU’s development (if ever) because of its decentralised and dynamic nature. The variety of competing internal aspects such as competences, objectives, stakeholders (e.g. Member States and EU institutions) and their interests prevent the EU from being a singular type of actor (and often having a single voice). The most that can be done is to examine the EU’s role with respect to a specific area. In practice, this is what most researchers do. They take sectoral approaches and put forward wider claims for the EU’s power.22 They may all be correct in their views on the EU’s power, but only within the specific areas they discuss and using the specific theoretical approaches that they do.23 In other words, I consider that the EU can and ought to be labelled a different actor in different areas of

20

European Commission (2015) EU speaks out at UN General Assembly in favour of better managed oceans and sustainable fishing. https://ec.europa.eu/newsroom/mare/items/27749/en. Accessed 2 August 2022; Machado (2017) EU leads the way to sustainable fisheries. https:// ec.europa.eu/newsroom/mare/items/607902/EN. Accessed 2 August 2022; European Commission (2019) European Commission launches new tool to strengthen EU’s fight against illegal, unreported and unregulated fishing. https://ec.europa.eu/newsroom/mare/items/650689/en. Accessed 2 August 2022; Sinkeviˇcius (2019) Press statement: AGRIFISH Council 16–17 December 2019 Brussels. https://ec.europa.eu/commission/commissioners/2019-2024/sinkevicius/announcements/ press-statement-agrifish-council-16-17-december-2019-brussels_en. Accessed 2 August 2022. 21 Wakefield 2016, p. 6; Cardinale et al. 2017; Said et al. 2018; Nicolás (2020) EU failed to end overfishing by 2020: lost opportunity? https://euobserver.com/environment/147099. Accessed 18 July 2020. 22 E.g. Bickerton 2011; Bosse 2017; Zielonka 2013; Falkner 2007; Leeg 2014; Poletti and Sicurelli 2018; Tilley 2012; Palm and Crum 2019. 23 E.g. Hyde-Price 2006, p. 223 where he admits that “[s]tructural realism cannot explain all aspects of European affairs, and certainly not the nuances and intricacies of EU politics”.

1.3 Contribution to the Literature

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action.24 The existence of such a spectrum of roles can undoubtedly be problematic for the EU’s overall international image. The only way to sustain a comprehensive claim about the type of external actor the EU is as a whole is to examine its entire external action—a truly arduous task.25 This book is focusing only on the EU’s normativity in the area of fisheries. It canvasses EU conduct under several EU policies and at different levels of action (global, regional, bilateral and unilateral) to the exclusion of the broader consequences of that conduct and its effect on the behaviour on third States. The focus on the area of fisheries cannot present a comprehensive claim about the EU’s power in all areas. Instead, it provides stepping stones for such further work, showing that the analytical approach can be replicated across many EU policies and if it is so used the understanding of the EU’s power can be greatly improved. The political science literature already features an analysis in the area of external EU social action bearing similar characteristics to the present work.26 However, this book presents a much more developed analytical framework with a distinct law-oriented focus.

1.3 Contribution to the Literature This book contributes to the literature analysing the EU’s fisheries actions as well as the literature exploring the EU’s external action both in the legal and the political science domains more broadly. The authors discussing the EU’s international role have explored at length the EU’s conduct in a variety of areas.27 However, the area of fisheries has largely remained unaddressed with the exception of cursory examples given in some broad-scope works.28 Where fisheries action is centrally discussed, the external dimension attracts not much more than a chapter of discussion or a thorough discussion of just a single issue29 leaving a focused and comprehensive study of the EU’s external fisheries action missing. Discussions of the EU’s power in different areas of action can yield different results and a complete claim on the EU’s power cannot be given without exploring all of its action. The lack of fisheriesspecific in-depth analyses of the EU’s action is a gap in the literature that this book 24

For a similar view, see Lerch and Schwellnus 2006, p. 318. One can just consider the recent 1000-pages edited volume discussing 92 leading EU external relations law cases. Butler and Wessel 2022. 26 Orbie and Tortell 2009. 27 E.g. Eeckhout 2011; Morgera 2012; Marin Duran and Morgera 2012; Van Vooren et al. 2013; Govaere et al. 2014; Velluti 2016; Cooreman 2017; Hadjiyianni 2019; Cremona and Scott 2019. 28 Marin Duran and Morgera 2012, pp. 14, 22, 37, 43, 46, 57, 72, 113; Cooreman 2017, pp. 198–216; Scott 2019. 29 The lengthiest albeit somewhat outdated discussion is in Churchill and Owen 2010, Ch. 5 and the second half of Ch. 7. For other discussions, see Churchill 1999a, b; Lequesne 2005; Bretherton and Vogler 2008; Markus 2009; Tsamenyi et al. 2009; Mfodwo et al. 2010; Tindall 2010; Belschner 2015; Wakefield 2016, Ch. 2, pp. 128–134, 161–164; Lado 2016, Ch. 7; 2020, Ch. 10; Aranda et al. 2019, pp. 77–110. 25

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1 Introduction

seeks to address. The literature focusing on the whole of the EU’s action in the area of fisheries, while admitting the importance of the external dimension in the EU’s action, is still lacking a thorough analysis of that dimension. Certain specific topics of the external dimension of the EU’s action in the area of fisheries have attracted a great deal of attention, illegal, unreported, or unregulated (IUU) fishing being a prime example.30 However, while such discussions hold great value for the topics in question, they cannot provide a clear picture of the EU’s overall action. Furthermore, the existing literature discussing the EU’s fisheries action tends to focus on the EU’s action specifically under the Common Fisheries Policy (CFP). This book contributes to the EU fisheries literature by considering the EU’s fisheriesrelated external action under other policies as well. It also seeks to contribute to the literature methodologically by reconceptualising a political science concept and using it in a strictly legal discussion. This is a novel interdisciplinary approach informing the methodological approaches for analysing the EU’s power in both the legal and political science scholarships. The analytical framework of this book can be used in other areas of EU action in order to produce comparable results per area of action.

1.4 Theoretical Context Actorness as a subject of research is usually much more central to international relations debates as part of the political science literature than the legal debates examining lawfulness. Actorness is broadly understood as the impactful involvement in international developments and an actor is respectively the entity that is so involved.31 As such, the political science literature has become well-equipped methodologically to examine actorness. With respect to the EU’s actorness, a central concept in the political science literature is Normative Power Europe (NPE), which was put forward by Ian Manners in 2002.32 Manners used the tripartite division of power into military, economic, and ideological to identify normative power with ideological power— ‘power over opinion’ or also idée force.33 His concise definition of normative power is the “ability to shape conceptions of ‘normal’ in international relations”.34 For him the EU is a normative power because “it changes the norms, standards and prescriptions of world politics away from the bounded expectations of state-centricity”.35 According to Manners, “the EU’s normative difference comes from its historical

30

E.g. Van der Marel 2019; Prado 2020. For a more nuanced discussion of the understanding of actorness, see Richard and Van Hamme 2013. 32 Manners 2002. 33 Ibid., pp. 236–239. 34 Ibid., p. 239. 35 Manners 2008. 31

1.4 Theoretical Context

7

context, hybrid polity and political-legal constitution”.36 Thus, “the central component of normative power Europe is that it exists as being different to pre-existing political forms, and that this particular difference pre-disposes it to act in a normative way”.37 The different character of the EU (from the Westphalian model) leads Manners to claim that the EU “has been, is and always will be a normative power in world politics”.38 However, as Manners observes, labelling the EU a normative power because of what it is, is different from arguing that the EU acts in a normative way.39 This differentiation is crucial here because this book analyses the EU’s normativity not solely by reference to what it is but, and more importantly, by reference to the way it conducts itself—what the EU says and does. This is deduced from various legally binding and soft-law instruments as well as other available formal and informal exchanges on the international plane. Although the analytical framework of the book veers away from the heart of Manners’ NPE ideas, they need to be further explored here as they have developed a life of their own in the literature and guide this discussion. A starting point for exploring those ideas is better understanding the term ‘normative power’ itself through examining its constitutive parts. An often mounted criticism of normative power is that it represents a contradiction in terms.40 This criticism is essentially based on linguistic fluidity and the impossibility of imposing a unified definition of a political concept such as normative power.41 Normative, can be understood as referring to ‘being normal’ as well as to “principle of right action that can be approached from various ethical perspectives”.42 Power, can mean ‘the ability to cause effects’ as well as ‘a powerful actor’,43 similar to the distinction between ‘pouvoir’ and ‘puissance’.44 Adopting certain mixtures of meanings of the terms can easily lead one to conclude that there is a contradiction in terms. As already stated, normative power in this book is understood as a powerful actor that acts in a principled way. The discussion on the NPE’s aspects in Chap. 2 further fleshes out this understanding of normative power. NPE has attracted major criticisms largely due to its underdeveloped theoretical framework and the resulting problems with critically evaluating the EU’s power.45 The fact that EU officials use concepts such as NPE to describe the EU’s power, according to Sjursen, “leaves researchers vulnerable to the charge of being unable to distinguish between their own sympathy for the European project and their

36

Manners 2002, p. 240. Ibid., p. 242. 38 Manners 2008, p. 45. 39 Ibid. 40 E.g. Meunier and Nicolaïdis 2006, p. 172. 41 Forsberg 2011, p. 1190. 42 Ibid. 43 Ibid. 44 Aron 1986. 45 Skolimowska 2015, p. 112; De Zutter 2010; Sjursen 2006b, pp. 171 et seq. 37

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1 Introduction

academic role as critical analysts”.46 In response to these criticisms, some theoretical approaches have been developed in the literature, the main one being Manners’ ‘tripartite analytical method’.47 This method provides a framework for examining the EU’s normative power by looking at its principles, actions, and impact. For each part of the method Manners suggests using a specific ethical approach—(1) virtue ethics for principles, (2) deontological ethics for actions, and (3) consequentialist ethics for impact.48 From these approaches, Manners draws three maxims that should shape the EU’s normative power—live by example, be reasonable, and do least harm.49 The tripartite method itself has attracted various comments in the literature with respect to the necessary characteristics of a normative power. According to De Zutter, the nature of the instruments used by a normative power is not a defining characteristic.50 This argument refers to Manners’ idea that a normative power acts through instruments such as dialogue and debate, which in turn relates to the second part of the tripartite method. Tocci, on the other hand, considers that a normative actor “not only needs to pursue normative goals through normative means it also needs to achieve a discernible normative impact”.51 Forsberg rightly observed in that regard that none of the three parts proposed by Manners on their own are “enough for an actor to qualify as a normative power”.52 If Tocci’s view is taken and “a normative power has to fulfil all possible criteria, even if all of them were relevant in one way or another, the bar can be set too high and the concept may not have any real referents”.53 The NPE concept has indeed sparked a lot of academic interest and a multitude of viewpoints have enriched it.54 The NPE concept has turned into a leading concept in the scholarship and policy-making fora.55 This book borrows this concept and uses the wealth of literature that builds on it to guide the analytical framework. In particular, it draws on Manners’ analytical method by adapting it to the legal context and answering the question how EU and international law impact the normativity of the EU’s conduct. The three parts of Manners’ method roughly correspond to (1) what the EU says, (2) what the EU does, and (3) what the consequences of the EU’s actions are. This book covers only what the EU says and what the EU does, which allows the discussion to present a well-rounded and coherent story of the EU’s normativity. 46

Ibid., 170. Manners 2008, p. 47. For a slightly different construction of the tripartite method, see Niemann and De Wekker 2010. Another contribution to the theoretical underpinning of NPE was provided by Sjursen who focused on evaluating the norms that the EU diffuses internationally. See Sjursen 2006a. 48 Manners 2008, p. 47. 49 Ibid. 50 De Zutter 2010, p. 1107. 51 Tocci 2008, p. 15. 52 Forsberg 2011, p. 1191. 53 Ibid. 54 Janusch 2016, p. 505. 55 Forsberg 2011, 1184; Bickerton 2011, p. 73; Savorskaya 2015; Manners 2021. 47

1.5 Structure

9

On the one hand, it analyses the principles and norms that the EU is supposed to embody and project onto the international plane through its actions (according to its primary and secondary law instruments, policy papers, and statements of officials). On the other hand, it analyses the actions that the EU eventually takes or does not take in pursuit of those principles and norms. This book does not take a consequentialist approach towards the EU’s actions because it goes beyond the scope of the purpose of this book in two main ways. First, the consequentialist approach goes well beyond the legal domain as the normative impact of the EU conduct cannot be fully analysed only by looking at legal provisions and their preparatory history. One also needs to examine the impact (social, environmental, economic, etc.) of the EU’s diffused norms on the ground in various communities and geographical locations as well as the way in which the EU is perceived by those on the receiving end of the EU’s norm diffusion (governments and peoples). That is, the consequentialist approach enters also the political, sociological and economic domains. Second, the consequentialist approach shifts the focus of research away from the EU because it addresses developments of different level of control for the EU. While the EU controls its principles and its actions, it has much less control over the consequences of its actions internationally because, inter alia, the international community (the whole or parts thereof) is also involved.

1.5 Structure Chapter 2 presents the analytical framework of the book. It centres around a legally contextualised understanding of the NPE concept featuring three interrelated elements that are constantly resurfacing in the NPE literature with authors failing to reach a broad agreement on their contents and relevance. These elements are referred to in this book as (1) universality, (2) use of instruments and (3) legitimacy. The universality element examines the level of international acceptance of the stated aims of the EU conduct. The use of instruments element examines the EU’s participation limitations in relevant international institutions and the means (persuasion as opposed to coercion) through which it acts. The legitimacy element examines the substance of the EU conduct in terms of legality, protection of common or self-interests and coherence and consistency. Before delving into these elements, a brief comment is made on the importance of the EU’s distinctiveness to the NPE concept. Chapter 3 builds on that theoretical foundation and lays down further and more contextualised foundations for the subsequent substantive chapters. In particular, it explains the notion of the area of fisheries in the EU as understood in this book and the way in which the framework of normativity generally applies in this area. More specifically, it explains the different dimensions of the area of fisheries and the various EU policies involved in it, thus setting the broad policy background of the analysis in the following chapters. This chapter also makes two central arguments. It argues that the EU (1) has the necessary institutional framework, internal competences, and

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1 Introduction

external capacity to act normatively and (2) is required to act normatively in the area of fisheries on the basis of both primary and secondary EU law instruments from the area of fisheries. The following chapters explore whether or not the EU is indeed acting normatively in the area of fisheries. It does so by looking at the EU’s conduct, and where relevant of its Member States, in seeking to fulfil the normativity mandate and the various legal, and stemming from them practical, challenges that arise in the process. This conduct is examined in four different contexts and respective chapters—global fora in which the EU is not a member but observer, global and regional fora in which the EU is a member, multileveled coercive action, and bilateral action seeking access to foreign resources. Chapter 4 focuses on the normativity challenges the EU faces at global fora in which it lacks membership. In particular, this chapter focuses on the EU’s involvement at the ILO and the IMO with main attention given to actions relating to the welfare of fishermen. The focus of the analysis is on the use of instruments element and the extent to which the EU manages to overcome its participation limitations within the relevant international fora in order to assert itself as an interlocutor in matters of its competence. The discussion also considers the effect of these participation limitations on the legitimacy of the EU, specifically its coherence and consistency. A central hypothesis flowing from this chapter is that membership in relevant international fora holds a strong normative promise that should allow the EU to act in a more normative way and that the existing participation limitations affect its ability to act normatively. Chapter 5 develops that hypothesis by analysing what normativity challenges arise for the EU within those global and regional fora in which it is a member. In particular, it examines whether membership in relevant fora ensures normativity in the EU’s conduct and to what extent it neutralises the identified internal and external limitations in Chap. 4 and their effect on the EU’s normativity. As such, Chap. 5 continues the focus on the procedural limitations related to the use of instruments element and also examines substantive aspects of the EU’s normativity under the legitimacy element. Thematically, the analysis focuses on the EU’s action in (1) cooperative management of fish stocks with focus on RFMOs and (2) reducing fisheries subsidies with focus on the WTO. The chapter concludes that the normative promise of membership in international fora remains unfulfilled for the EU because it still faces major obstacles in its attempts to act normatively in the area of fisheries. These obstacles relate to occasional participation limitations related to shared membership arrangements with the EU Member States as well as to failures to ensure coherence and consistency between the EU’s and the Member States’ conduct. Chapter 6 shifts the focus to the EU’s ability to act normatively, even when acting unilaterally, by analysing the coercion aspect of the use of instruments element. In particular, the discussion examines the EU’s use of economic coercion by leveraging its fisheries market. This type of economic coercion in the area of fisheries has a considerable impact on third States due to the size and characteristics of the EU fisheries market, which can be a strong leverage for the EU. This chapter examines the EU’s normativity in using coercive measures by exploring three types of coercive

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instruments ordered according to the level of unilateralism involved—implementing multilaterally agreed measures, enforcing conditionality under bilateral agreements and adopting purely autonomous measures. These instruments form part of the EU’s action against IUU fishing or complement it through fighting legal yet unsustainable fishing. The discussion also analyses the EU’s normativity under the legitimacy element with respect to each level of coercive action. These instruments also present a mixture of uses of the exclusive CFP and the Common Commercial Policy (CCP) competences. As such, the analysis looks at instruments where the EU has strong powers giving it large freedom to act normatively. Nevertheless, challenges to normativity are still identified relating to the ways in which the EU has put in place some of its coercion frameworks as well as the coherence and consistency in their implementation. Chapter 7 completely shifts the focus to the substantive aspects of the EU’s normativity under the legitimacy element and examines the EU’s action in accessing foreign fisheries resources. In that type of action, the EU has asserted itself as the relevant interlocutor under its exclusive CFP and so it does not face the legal issues of participation limitations or reliance on Member States. This chapter provides a more general discussion of the EU’s compensatory (payment for access) agreements and then focuses on a specific case study (the Western Sahara saga) to analyse in detail the EU’s conduct and the normativity challenges that arise due to a strong emphasis on individual and even common Member State interests at the expense of more global interests, leading to incoherence and inconsistency and possibly illegality in the case of Western Sahara. Chapter 8 provides the conclusions. It shows that the EU faces significant challenges to acting normatively. Most visibly, in fora in which it lacks membership, these challenges stem from its incomplete powers as a non-State actor. At the same time these challenges predominantly relate to and are aggravated by obstructions from EU Member States at different levels (enforcing EU law, acting in the Council, acting in international institutions). Even where the EU enjoys strong powers of action (exclusive competence and/or enjoying membership in relevant international institutions) it fails to act normatively again because of its Member States. The Member States’ involvement at different levels in the area of fisheries allows them to protect their interests, leading to incoherence and inconsistency, reliance on short-term selfinterest and in some cases even possible illegality in the overall EU action. Thus, while the EU’s normativity depends greatly on having internal and external powers, it is its inability to freely wield the powers it already has that mostly damages its normativity. In order for the EU to act normatively it needs first and foremost to be fully supported by its Member States for its present constitution prevents it from acting fully to their exclusion and independently from them.56

56

For a similar conclusion in other areas of EU action, see Cohen-Tanugi 2021.

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1 Introduction

References Aranda M, Prellezo R, Santurtún M, Ulrich C, Le Gallic B, Borges L, Metz S (2019) EU fisheries policy – latest developments and future challenges. https://www.europarl.europa.eu/RegData/etu des/STUD/2019/629202/IPOL_STU(2019)629202_EN.pdf. Accessed 2 August 2022 Aron R (1986) Macht, Power, Puissance: Democratic Prose or Demoniacal Poetry. In: Lukes S (ed) Power. New York University Press, New York, pp. 253–278 Belschner T (2015) Not so green after all? The EU’s role in international fisheries management: the cases of NAFO and ICCAT. Journal of European Public Policy. DOI: https://doi.org/10.1080/ 13501763.2014.989891 Bickerton C (2011) European Union Foreign Policy: From Effectiveness to Functionality. Palgrave Macmillan, London Bosse G (2017) EU normative performance: a critical theory perspective on the EU’s response to the massacre in Andijon, Uzbekistan. East European Politics. DOI: https://doi.org/10.1080/215 99165.2017.1280472 Bretherton C, Vogler J (2008) The European Union as a Sustainable Development Actor: the Case of External Fisheries Policy. European Integration. DOI: https://doi.org/10.1080/070363308021 42012 Butler G, Wessel R (eds) (2022) EU External Relations Law: The Cases in Context. Bloomsbury Publishing, Oxford. DOI: https://doi.org/10.5040/9781509939725 Cardinale M, Chato Osio G, Scarcella G (2017) Mediterranean Sea: A Failure of the European Fisheries Management System. Frontiers in Marine Science. DOI: https://doi.org/10.3389/FMARS. 2017.00072 Churchill R (1987) The EEC’s Contribution to “State” Practice in the Field of Fisheries. In: Brown E and Churchill R (eds) The UN Convention on the Law of the Sea: Impact and Implementation: Proceedings Law of the Sea Institute Nineteenth Annual Conference. Law of the Sea Institute, Honolulu pp. 557–568 Churchill R (1999a) The EU as an International Fisheries Actor - Shark or Minnow? European Foreign Affairs Review. DOI: https://doi.org/10.54648/EERR1999046 Churchill R (1999b) The European Community and its Role in Some Issues of International Fisheries Law. In: Hey E (ed) Developments in International Fisheries Law. Kluwer, The Hague. DOI: https://doi.org/10.1163/9789004478381_022 Churchill R, Owen D (2010) The EC Common Fisheries Policy. Oxford University Press, Oxford Cohen-Tanugi L (2021) Europe as an international normative power: state of play and perspectives. https://geopolitique.eu/en/articles/europe-as-an-international-normative-power-state-of-playand-perspectives/. Accessed 2 August 2022 Cooreman B (2017) Global Environmental Protection through Trade: A Systematic Approach to Extraterritoriality. Edward Elgar, Cheltenham Cremona M, Scott J (eds) (2019) EU Law Beyond EU Borders: The Extraterritorial Reach of EU Law. Oxford University Press, Oxford De Zutter E (2010) Normative power spotting: an ontological and methodological appraisal. Journal of European Public Policy. DOI: https://doi.org/10.1080/13501763.2010.513554 Eeckhout P (2011) EU External Relations Law. Oxford University Press, Oxford EUMOFA (2021) The EU Fish Market: 2021. https://www.eumofa.eu/documents/20178/477018/ EN_The+EU+fish+market_2021.pdf/27a6d912-a758-6065-c973-c1146ac93d30?t=163696463 2989. Accessed 2 August 2022 Falkner R (2007) The political economy of ‘normative power’ Europe: EU environmental leadership in international biotechnology regulation. Journal of European Public Policy. DOI: https://doi. org/10.1080/13501760701314326 FAO (1995) Code of Conduct for Responsible Fisheries. https://www.fao.org/3/v9878e/v9878e.pdf. Accessed 2 August 2022

References

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FAO (1999) International Plan of Action for Reducing Incidental Catch of Seabirds in Longline Fisheries, International Plan of Action for the Conservation and Management of Sharks, International Plan of Action for the Management of Fishing Capacity. http://www.fao.org/3/a-x3170e. pdf. Accessed 2 August 2022 FAO (2001) International Plan of Action to Prevent, Deter, and Eliminate Illegal, Unreported and Unregulated Fishing. https://www.fao.org/3/y1224e/Y1224E.pdf. Accessed 2 August 2022 Forsberg T (2011) Normative Power Europe, Once Again: A Conceptual Analysis of an Ideal Type. Journal of Common Market Studies. DOI: https://doi.org/10.1111/J.1468-5965.2011.02194.X Govaere I, Lannon E, Van Elsuwege P, Adam S (eds) (2014) The European Union in the World: Essays in Honour of Marc Maresceau. Martinus Nijhoff, Leiden. DOI: https://doi.org/10.1163/ 9789004259140 Hadjiyianni I (2019) The EU as a Global Regulator for Environmental Protection: A Legitimacy Perspective. Hart Publishing, London. DOI: https://doi.org/10.5040/9781509925636 Hollick A (1977) The Origins of 200-mile Offshore Zones. American Journal of International Law. DOI: https://doi.org/10.1017/S0002930000106499 Hyde-Price A (2006) ‘Normative’ power Europe: a realist critique. Journal of European Public Policy. DOI: https://doi.org/10.1080/13501760500451634 Janusch H (2016) Normative power and the logic of arguing: Rationalization of weakness or relinquishment of strength? Cooperation and Conflict. DOI: https://doi.org/10.1177/001083671664 0836 Lado E (2016) The Common Fisheries Policy: The Quest for Sustainability. Wiley Blackwell, Chichester. DOI: https://doi.org/10.1002/9781119085676 Lado E (2020) Quo Vadis Common Fisheries Policy? Wiley Blackwell, Chichester. DOI: https:// doi.org/10.1002/9781119576907 Leeg T (2014) Normative Power Europe? The European Union in the Negotiations on a Free Trade Agreement with India. European Foreign Affairs Review. DOI: https://doi.org/10.54648/EER R2014028 Lequesne C (2005) Fisheries Policy Letting the Little Ones Go? In: Wallace H, Wallace W, Pollack M (eds) Policy-making in the European Union. Oxford University Press, Oxford, pp 353–376 Lerch M, Schwellnus G (2006) Normative by nature? The role of coherence in justifying the EU’s external human rights policy. Journal of European Public Policy. DOI: https://doi.org/10.1080/ 13501760500452665 Manners I (2002) Normative Power Europe: A Contradiction in Terms. Journal of Common Market Studies. DOI: https://doi.org/10.1111/1468-5965.00353 Manners I (2008) The normative ethics of the European Union. International Affairs. DOI: https:// doi.org/10.1111/J.1468-2346.2008.00688.X Manners I (2021) Normative Power Approach to European Union External Action. In: Gstöhl S, Schunz S (eds) The External Action of the European Union: Concepts, Approaches, Theories. Bloomsbury Publishing, London, pp 61–76 Marin Duran G, Morgera E (2012) Environmental Integration in the EU’s External Relations: Beyond Multilateral Dimensions. Hart, Oxford. DOI: https://doi.org/10.5040/9781472565921 Markus T (2009) European Fisheries Law from Promotion to Management. Europa Law Publishing, Groningen Meunier S, Nicolaïdis K (2006) The European Union as a conflicted trade power. Journal of European Public Policy. DOI: https://doi.org/10.1080/13501760600838623 Mfodwo K, Milligan B, Palma A, Tsamenyi M (2010) The European Council Regulation on Illegal, Unreported and Unregulated Fishing: An International Fisheries Law Perspective. The International Journal of Marine and Coastal Law. DOI: https://doi.org/10.1163/092735210X12589554 057604 Morgera E (ed) (2012) The External Environmental Policy of the European Union: EU and International Law Perspectives. Cambridge University Press, Cambridge. DOI: https://doi.org/10.1017/ CBO9781139152327

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1 Introduction

Niemann A, De Wekker T (2010) Normative power Europe? EU relations with Moldova. European Integration online Papers. DOI: https://doi.org/10.1695/2010014 Orbie J, Tortell L (eds) (2009) The European Union and the Social Dimension of Globalization: How the EU Influences the World. Routledge, London Palm T, Crum B (2019) Military operations and the EU’s identity as an international security actor. European Security. DOI: https://doi.org/10.1080/09662839.2019.1667769 Poletti A, Sicurelli D (2018) The Political Economy of Normative Trade Power Europe. Springer, Cham. DOI: https://doi.org/10.1007/978-3-319-78864-7 Popescu I (2015) Beyond the European seas: The external dimension of the Common Fisheries Policy. https://www.europarl.europa.eu/thinktank/en/document/EPRS_IDA(2015)571323. Accessed 2 August 2022 Prado C (2020) The Leadership of the EU in Shaping the International Ocean Governance: Fighting Against IUU Fishing. In: Troitiño D, Kerikmäe T, Martín de la Guardia R, Sánchez G (eds) The EU in the 21st Century: Challenges and Opportunities for the European Integration Process. Springer, Cham. DOI: https://doi.org/10.1007/978-3-030-38399-2_16 Rayfuse R (2004) Non-Flag State Enforcement in High Seas Fisheries. Nijhoff, Leiden. DOI: https:// doi.org/10.1163/9789047405498 Richard Y, Van Hamme G (2013) The European Union as an Actor in International Relations: A Geographical Assessment of European Actorness. L’Espace géographique. DOI: https://doi.org/ 10.3917/EG.421.0015 Said A, Tzanopoulos J, MacMillan D (2018) The Contested Commons: The Failure of EU Fisheries Policy and Governance in the Mediterranean and the Crisis Enveloping the Small-Scale Fisheries of Malta. Frontiers in Marine Science. DOI: https://doi.org/10.3389/FMARS.2018.00300 Savorskaya E (2015) The Concept of the European Union’s Normative Power. Baltic region. DOI: https://doi.org/10.5922/2079-8555-2015-4-5 Scott J (2019) The Global Reach of EU Law. In: Cremona M, Scott J (eds) EU Law Beyond EU Borders: The Extraterritorial Reach of EU Law. Oxford University Press, Oxford. DOI: https:// doi.org/10.1093/OSO/9780198842170.003.0002 Sjursen H (2006a) The EU as a ‘Normative’ Power: How can this be? Journal of European Public Policy. DOI: https://doi.org/10.1080/13501760500451667 Sjursen H (2006b) What kind of power? Journal of European Public Policy. DOI: https://doi.org/ 10.1080/13501760500451584 Skolimowska A (2015) The European Union as a ‘Normative Power’ in International Relations. Theoretical and Empirical Challenges. Yearbook of Polish European Studies 18:111–132 Tilley R (2012) Normative Power Europe and Human Rights: A Critical Analysis. POLIS Journal 7:450–494 Tindall C (2010) Baseline study on the CFP external dimension and global fisheries governance: Technical Report. https://www.charlottetindall.co.uk/wp-content/uploads/Executive-Rep ort_CFP-external_pdf.pdf. Accessed 2 August 2022 Tocci N (2008) Profiling Normative Foreign Policy: The European Union and its Global Partners. In: Tocci N (ed) Who is a Normative Foreign Policy Actor? The European Union and Its Global Partners. Centre for European Policy Studies, Brussels, pp 1–23 Treves T (1987) The EEC, the UN and the Law of the Sea. In: Brown E, Churchill R (eds) The UN Convention on the Law of the Sea: Impact and Implementation: Proceedings Law of the Sea Institute Nineteenth Annual Conference. Law of the Sea Institute, Honolulu, pp 519–526 Tsamenyi M, Palma M, Milligan B, Mfodwo K (2009) Fairer Fishing? The Impact on Developing Countries of the European Community Regulation on Illegal, Unreported and Unregulated Fisheries. Commonwealth Secretariat, London. DOI: https://doi.org/10.14217/978184859 0328-EN Van der Marel E (2019) Problems and Progress in Combating IUU Fishing. In: Caddell R, Molenaar E (eds) Strengthening International Fisheries Law in an Era of Changing Oceans. Hart, Oxford. DOI: https://doi.org/10.5040/9781509923373.ch-013

References

15

Van Vooren B, Blockmans S, Wouters J (eds) (2013) The EU’s Role in Global Governance: The Legal Dimension. Oxford University Press, Oxford. DOI: https://doi.org/10.1093/ACPROF:OSO/978 0199659654.001.0001 Vatsov M (2019) Towards achieving sustainable fishing through EU trade agreements? Europe and the World. DOI: https://doi.org/10.14324/111.444.EWLJ.2019.13 Velluti S (2016) The Promotion and Integration of Human Rights in EU External Trade Relations. Utrecht Journal of International and European Law. DOI: https://doi.org/10.5334/UJIEL.342 Wakefield J (2016) Reforming the Common Fisheries Policy. Elgar, Cheltenham. DOI: https://doi. org/10.4337/9781785367663 Zielonka J (2013) Europe’s new civilizing missions: the EU’s normative power discourse. Journal of Political Ideologies. DOI: https://doi.org/10.1080/13569317.2013.750172

Chapter 2

Normative Power Europe as an Analytical Framework for Examining the EU’s Normativity

Contents 2.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.2 Elements of Normative Power Europe . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.2.1 The EU’s Distinctiveness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.2.2 Universality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.2.3 Use of Instruments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.2.4 Legitimacy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.3 The Adapted Concept and Its Use . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

17 18 19 20 22 28 34 35

Abstract This chapter presents the analytical framework of the book. It centres around a legally contextualised understanding of the Normative Power Europe (NPE) concept featuring three interrelated elements that are constantly resurfacing in the NPE literature with authors failing to reach a broad agreement on their contents and relevance. These elements are referred to in this book as (1) universality, (2) use of instruments and (3) legitimacy. The universality element examines the level of international acceptance of the stated aims of the EU conduct. The use of instruments element examines the EU’s participation limitations in relevant international institutions and the means (persuasion as opposed to coercion) through which it acts. The legitimacy element examines the substance of the EU conduct in terms of legality, protection of common or self-interests and coherence and consistency. Before delving into these elements, a brief comment is made on the importance of the EU’s distinctiveness to the NPE concept. Keywords Normative Power Europe · Universality · Use of instruments · Legitimacy · Legality · Interest · Coherence · Consistency

2.1 Introduction The European Union (EU) is undoubtedly a fishing power. However, this does not tell us much about what kind of a power the EU is in the area of fisheries. The EU’s power and the nature of the EU’s foreign policy and external action are topics that have attracted and continue to attract a lot of scholarly attention in various academic © T.M.C. ASSER PRESS and the author 2023 M. Vatsov, Fishing Power Europe, Global Europe: Legal and Policy Issues of the EU’s External Action 3, https://doi.org/10.1007/978-94-6265-583-6_2

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disciplines. There is an abundance of theories and opinions about what kind of international power the EU is generally (e.g. civil,1 military,2 normative,3 ethical,4 market,5 trade,6 social7 ), including that it is not even a foreign policy actor at all.8 The view taken here is that the EU is indeed a power—an actor that has the ability to diffuse its own values externally. This chapter’s aim is to provide an analytical framework allowing for the EU’s normativity in exercising that power in the area of fisheries to be examined.9 The analytical framework constructed in this chapter is based on the Normative Power Europe (NPE) concept and adapts it to the specificities of a legal discussion. The NPE concept is a product of various European historical and political developments and their appraisal with respect to EU’s international role by various scholars such as Duchêne and Bull. NPE was elevated to mainstream scholarship and policymaking fora discussing the EU’s power on the basis of Manners’ work in the 2000s. The NPE’s background has already been thoroughly explained in the literature and there is no need to repeat it here.10 Instead, the focus is on the substance of the NPE concept. Section 2.2 provides a detailed examination of the NPE elements and adapts them to the fisheries context. Section 2.3 concludes by summarising the elements of the adapted concept.

2.2 Elements of Normative Power Europe The NPE literature has grown immensely since the creation of the concept. However, it is yet to produce a coherent story of what NPE is or should be. There are, nevertheless, three interrelated elements that are constantly resurfacing in the literature with authors failing to reach a broad agreement on their contents and relevance. These elements are referred to in this book as (1) universality, (2) use of instruments and (3) legitimacy. The universality element examines the level of international acceptance of the stated aims of the EU conduct. The use of instruments element examines the EU’s participation limitations in relevant international institutions and the means (persuasion as opposed to coercion) through which it acts. The legitimacy element examines the substance of the EU conduct in terms of legality, protection of common 1

Duchêne 1972. See generally Bull 1982; Wagner 2006. 3 Manners 2002. 4 Aggestam 2008. Also see Gegout 2016. 5 Damro 2012a, 2015. 6 Meunier and Nicolaïdis 2006. 7 Kissack 2009b. 8 Bull 1982, p. 151. 9 An isolated application of NPE in fisheries governance already exists in the literature but it has a very limited scope and does not develop the NPE framework as such. Miller et al. 2014. 10 E.g. Diez 2005; Savorskaya 2015. 2

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or self-interests and coherence and consistency. Before delving into these elements, a brief comment is made on the importance of the EU’s distinctiveness to the NPE concept and its relevance to this book.

2.2.1 The EU’s Distinctiveness The EU’s distinctiveness is central to Manners’ NPE argument. According to him, “the EU’s normative difference comes from its historical context, hybrid polity and political-legal constitution”.11 Thus, Manners sees the EU as not only constructed on a normative basis but also as being predisposed “to act in a normative way in world politics” because of that.12 What the EU is then becomes “the most important factor shaping the international role of the EU” and not what the EU says or does.13 In a way the EU’s distinctiveness is the reason for conceptualising NPE. The EU is indeed different from States in many aspects.14 In particular, it is founded on international instruments and its Member States are still considered sovereign, even if they are considered to be exercising part of their sovereignty in a shared manner at the EU level.15 Nevertheless, the EU also exercises many ‘Statelike’ activities in its external action16 and bears comparable characteristics to States such as China, Russia (and previously the Soviet Union), and the United States of America (USA), especially in the context of normative action.17 Thus, imbuing the EU with so much distinctiveness with respect to its normative power is not only unreflective of reality,18 but also damages the usefulness of the concept itself as it appears to put the EU in a category of its own. Thus, this book rejects that the EU’s distinctiveness should be accepted as undeniable proof of acting normatively.19 Nevertheless, the EU’s distinctiveness is an important factor relating to and influencing the analysis of the EU’s normativity. On the one hand, the EU’s distinctiveness predisposes the EU to act normatively on account of the principles and norms it is founded on and are interwoven in its policies and actions through competencespecific EU Treaty provisions and respective secondary EU law instruments. This side of the EU’s distinctiveness informs (1) the aims of the EU’s action under the universality element, (2) the emphasis on negotiation and persuasion as opposed to coercion (including of military nature) under the use of instruments element, and (3) 11

Manners 2002, p. 240. Ibid., 252. 13 Ibid. 14 See Zielonka 2011. 15 On the debate of Member States’ sovereignty in the EU context and its external action, see Eckes and Wessel 2018. 16 Ibid. 17 Zielonka 2011. 18 Diez 2005, p. 614; Sjursen 2006, p. 240. 19 Ibid., p. 242. 12

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the substance of the EU action in light of lawful action, pursing common long-term interests in a coherent and consistent fashion under the legitimacy element. This point is elaborated further in Sect. 3.4 of Chap. 3. On the other hand, the EU’s distinctiveness is also creating challenges to the EU’s normative action due to its non-State nature requiring a sometimes uneasy coexistence with and dependence on its Member States for achieving its own aims and objectives. This side of the EU’s distinctiveness affects the EU’s ability to be involved in the relevant fora under the use of instruments element as well as its legitimacy mostly because of the risk of emerging incoherence and inconsistency between the EU’s and its Member States’ actions, as is elaborated in the following chapters. The EU’s distinctiveness can sometimes seem to pose even insurmountable obstacles to normative action. An extreme case in point a bit outside of the fisheries context is the EU’s attempt to accede to the European Convention on Human Rights (ECHR) and be subjected to the jurisdiction of the European Court of Human Rights in order to ensure better human rights protection in the EU. The process for that accession spanned decades and, even after including an explicit competence in the EU Treaties20 that the Court of Justice of the European Union (CJEU) found necessary,21 adopting an accession-permitting ECHR Protocol22 and negotiating accession conditions that took detailed account of the EU’s specificities,23 the CJEU still found the EU’s accession problematic in light of the EU’s special characteristics.24 Accordingly, the EU’s distinctiveness strongly influences the EU’s normativity and it cannot be said that in of itself the EU necessarily acts more normatively just because of its distinctiveness. Furthermore, in a similar way the distinctiveness of another powerful actor can influence positively and/or negatively its own normativity. For these reasons the EU’s distinctiveness (from States) is not considered as making its actions more normative. Nevertheless, the EU’s distinctiveness will shape the discussion in this book because various emanations of the EU’s distinctiveness will be considered throughout the normativity analysis.

2.2.2 Universality The universality element examines the level of international acceptance of the stated aims of EU action. It shows the extent to which the EU Treaties’ objectives and 20

Treaty on European Union (Consolidated Version), opened for signature 7 February 1992, entered into force 1 November 1993, TEU 2016 OJ C202/13, Article 6. 21 ECJ, Opinion 2/94 Accession by the Community to the European Convention for the Protection of Human Rights and Fundamental Freedoms, Opinion, 28 March 1996, EU:C:1996:140. 22 Protocol No. 14 to the Convention for the Protection of Human Rights and Fundamental Freedoms, amending the control system of the Convention, opened for signature 13 May 2004 CETS No 194, entered into force 1 June 2010. 23 Council of Europe 2013. 24 ECJ, Opinion 2/13 Accession of the European Union to the European Convention for the Protection of Human Rights and Fundamental Freedoms, Opinion, 18 December 2014, EU:C:2014:2454.

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their implementation through statements and other actions match or contribute to developing or established international principles or norms. This examination is important for the normativity analysis because a normative power operates in a specific existential equilibrium with its counterparts and this examination determines that equilibrium. According to Manners, the EU as a normative power “promotes a series of normative principles that are generally acknowledged, within the United Nations system, to be universally applicable”.25 While Manners talks about principles it must be mentioned that norms in the sense of specific rules may also be promoted in the same way. The use of the word ‘promotes’ in this context requires some explanation for it can mean different things. If the principles or, more specifically, norms being ‘promoted’ are indeed universal or universally applicable, as Manners suggests, then the EU promotes them in the sense of ensuring their continuous observance through available mechanisms. The EU can only promote them in the sense of diffusing them to ensure their wider acceptance and application if they are not yet universal. Accordingly, the universality aspect is to be divided in two—universal and universalizable principles or norms. This division is important because the EU’s conduct is different and its normativity is to be examined differently with respect to each of the two. Where universality is achieved, the EU’s normativity is examined only with reference to the EU’s own observance of the principle or norm and the EU’s reaction to the breaches of others. In cases of widely diverging interpretations of a seemingly universal principle or norm, only the undisputed core (if existing) is considered as universal and the divergences are subject to universalizability considerations. Where universality is not (yet) achieved, the EU’s normativity is examined also with reference to the content of the principle or norm (its universalizability) and the mechanisms the EU uses to diffuse them. With respect to the latter, a principle or a norm is considered as being diffused including through its concrete incarnations (e.g. promoting the precautionary principle through rules requiring action where scientific uncertainty exists). Universalizability, similarly to the whole NPE concept, shares a lot with Kant’s ideas on moral and universal law.26 The connections between the NPE concept and Kant’s writings have already been recognised in the literature and criticised by some for inter alia neo-colonialist inclinations.27 These criticisms, with a degree of generalisation, see the EU’s norm diffusion as imposing to the rest of the world Europe’s own values and experiences as cosmopolitan ones. Mindful of these criticisms, this analytical framework relies selectively on Kant’s universalizability ideas. Kant’s categorical imperative is to “act only according to that maxim through which you can at the same time will that it become a universal law”.28 What this means has been subject to different readings. The reading adopted here is that “Kant does not 25

Manners 2008, pp. 46, 60. Timmermann 2011. 27 Manners 2008, p. 57; Kagan 2003; Eriksen 2006; Prichard 2013; Staeger 2016. 28 Timmermann 2011, p. 71. 26

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mean that one can morally act on any policy that one would oneself be willing to see universalised but, rather, only on policies that could be truly universalised in the sense of being freely adopted by all who would be affected by them”.29 Thus, universalizability requires universal, voluntary consent.30 That means that “[a]ll affected can accept the consequences and the side effects its general observance can be anticipated to have for everyone’s interest (and the consequences are preferred to those of known alternative possibilities for regulation)”.31 It is only through such a view of universalizability of EU-promoted norms that the neo-colonialism criticisms can begin to be addressed.32 Before continuing to the next aspect, it is necessary to clarify the stance taken in this book on Kant’s rejection of empirical principles as foundation of moral laws. According to Kant, the universality of norms vanishes if they are based on contingent circumstances,33 that is, if they are contextualised. This exclusive reliance on rationality as the singular benchmark for universality of norms is rejected here. It is recognised that on many occasions, relating to technical and scientific matters, rationality will be the leading, if not the only, benchmark for the universalizability of a norm. This is particularly true in some core aspects of the area of fisheries where technical and scientific matters are involved. Sustainable fishing must follow the scientific advice on total allowable catch (TAC) as it is (supposedly) based on objective scientific information about the condition of stocks. Equally, using particular fishing gears is objectively damaging for the marine environment and objectively increases bycatch of protected species or undersized fish. However, in many other occasions in the area of fisheries, context and experience will be necessary requirements for examining universalizability. Norms are based on interests and the context and experience of all actors influences the substance of a universal norm. In order for all affected actors to freely accept a norm, that norm needs to account for the contextual discrepancies between the actors (social, economic, historical, etc.) to an acceptable (to these actors) degree. This is because it is the true universalizability of a norm—the possibility of universal voluntary acceptance—that drives the norm’s normativity and not the foundations of its content.

2.2.3 Use of Instruments The use of instruments element focuses broadly on the process through which the EU acts. This element examines the EU’s participation limitations in relevant fora and the means (persuasion as opposed to coercion) through which it acts. It shows the 29

Guyer 1998, xxxv. Ibid. In the context of this book, consent is understood as the consent under international law of the other international actors with which the EU interacts—States and international organisations. 31 Habermas 1990, p. 65. 32 Forsberg 2011, p. 1187. 33 Timmermann 2011, p. 113. 30

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medium through which the EU pursues its objectives. This examination is important for the normativity analysis because a normative power, first, needs to be able to act at the level where relevant discussions are being held in order to, second, persuade the other relevant actors in its position so that they can voluntarily accept it and not be forced into it, as required under the universality element. The first part of this element relating to the ability to act is theoretically more straightforward because it relates to the rather binary question of whether a power can act or not. This is an important question and a sizeable part of this book deal with whether the EU has the necessary powers (Sect. 3.3 of Chap. 3) and the participation challenges it faces in operationalising these powers (Chaps. 4 and 5). Nevertheless, the question itself does not require further elaboration unlike the second part of the use of instruments element, which asks how a normative power should act, to the extent that it can. This subsection explores in further detail this second part by examining, first, what instruments and mechanisms should be used by a normative power and, second, what role can coercion play in that.

2.2.3.1

What Instruments and Mechanisms Should Be Used?

According to Manners, the use of dialogue, debate and argumentation, and even shaming at relevant fora is central to a normative power.34 In particular, a normative power should use persuasion when promoting principles and norms.35 Such persuasion in world politics, according to Manners, “involves constructive engagement, the institutionalisation of relations, and the encouragement of multilateral and plurilateral dialogue between participants”.36 Thus, a normative power needs to interact with other actors at the international plane through bilateral and multilateral instruments in various fora and avoid unilateral actions that have coercive character. Such bilateral and multilateral instruments can take the shape of binding international agreements as well as soft-law such as non-binding instruments of international organisations, declarations, or joint statements. Accordingly, specific types of instruments and fora that further the international dialogue must be prioritised over unilateral actions of coercive character because their basic characteristic is precisely the lack of input from another party. Such prioritisation is even more needed in the area of fisheries because of the crucial specificity of fish as a classical example of common natural resource.37 This nature of the fisheries area has led it to become plagued by the tragedy of the commons (exhaustion of open-access shared resources due to pursuance of selfish interests).38 The only solution to this problem is cooperative action that balances the interests

34

Manners 2011, p. 235. See also Foot 2000, p. 9. Manners 2011, p. 235. 36 Ibid. 37 Rose 1991, p. 3; Berkes 1994, p. 51. 38 McWhinnie 2009; Al-Fattal 2009. 35

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of multiple users.39 This means that a particular emphasis must be put on global instruments that need to become as widely and as swiftly accepted as possible, but also regional instruments that operationalise the overarching global principles. A piecemeal approach that could work in other area of normative action, such as death penalty would not work in the area of fisheries. This is because differences in the death penalty norms of another State will not compromise the death penalty norms of a normative power in the way that differences in the sustainable fishing norms (or lack thereof) can compromise the effectiveness of such norms of a normative power. Nevertheless, unilateral actions can still be used in order to support a wider multilateral process of universalising a norm. One way to do this is through positive conditionality instruments such as the EU’s Generalised System of Preferences. These instruments can be criticised by some as non-normative due to their reliance on material-stimuli to induce changes dictated by the ‘donor’. Although these instruments do not involve persuasion as such and do involve an element of coercion in the sense of the possibility of withdrawing the benefits if the donor-set changes do not materialise, they can still be defended as compatible with normative action in principle. A normative power may have been able to persuade an actor to follow a particular norm but doing so may involve prohibitive costs for that actor. In such a case, a normative power that has the resources would be wise to set up a mechanism where it provides material stimuli assisting the actor in question to implement the norm in question. A further criticism of such action would be that the actor may implement the norm without being persuaded but simply to obtain the promised material stimuli. This criticism can be dealt with in several ways. First, this is a consequentialist argument that deals with circumstances beyond the control of the normative power and the normativity of its actions is not decreased by the actions of others. It would be decreased if the normative power does not inquire as to the actor’s full and continuous commitment to the norm. Second, admittedly, if the actor commits fully to a norm only because of the material stimuli and only for as long as they are available, the overall normativity of the normative power will be decreased. However, this is again a consequentialist and speculative argument, which needs to be supported on a caseby-case basis. In any event, it is not the type of instrument in question that can be normatively problematic but the way it is operationalised. Furthermore, as said in the beginning, the analysis in this book does not have a consequentialist focus and, instead, looks at the EU’s conduct only. Another way of using unilateral instruments to support a wider multilateral process is by engaging in a process of cross-fertilisation. In such a process, a unilateral instrument may originate or support the development of a particular norm. For example, the unilateral instrument could be used experimentally for self-regulation without elements of coercion to other actors and then advocated for at the international plane. Such external diffusion of the experiment should, however, be accompanied by openness to subsequently adapt it after the international discussions. Equally, following

39

Ibid., 547.

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the accumulation of international support for a particular norm, a unilateral instrument based on such support could be adopted featuring internationally acceptable coercive elements and could be further advocated for towards becoming universal. In such a cross-fertilisation process the norm’s content develops through the input of various actors and takes it closer to a universal norm. The EU may, thus, diffuse its own norms as well as norms which are created by (or together with) others and then act as an amplifier for these norms. The cross-fertilisation process is a mechanism for universalising norms and is required by the information failures during norm formation. That is, in order to create truly universal norm to which all can agree, a certain degree of development in the scope and substance of the norm must be allowed. Naturally, the fewer changes a norm undergoes after a normative power starts diffusing it, the higher the norm’s original normative quality. However, due to information failures, the opposite is not necessarily always true. Every norm is context-specific and is influenced by the underlying interests and worldviews of its creator(s). Even where the norm creator seeks to produce a universalizable norm, it may lack the necessary knowledge about the totality of the contexts and interests which that norm is set to eventually cover.40 In such cases, it is only through the input of other actors that a normative power can learn. This learning, in turn, increases its normativity as it shows cooperativeness as well as the understanding that nobody knows what is best for everyone without external input.

2.2.3.2

What Role for Coercion?

Since persuasion and various persuasion techniques are the primary mediums through which a normative power should act, the use of methods to force an interlocutor to agree to a particular course of action is intuitively to be avoided. Indeed, some authors consider any use of coercion to be contradicting the very nature of the EU as a normative power.41 An ideal or pure normative power is free from other types of powers such as material stimuli or physical coercion and is expressed in its ability to convince through normative justification.42 However, Manners and others, in their more realistic views, allow for the use of coercive measures in their normative power conceptions.43 De Zutter in that regard considers that this freedom of choice by a normative power means that the use of particular types of instruments is not a defining characteristic of a normative power.44 The understanding adopted here is that a normative power is indeed to be conceived as being allowed to rely on coercive actions while acting normatively. However, the use of such coercive measures must be controlled. It must be limited 40

See Eriksen 2006, p. 253; Damro 2012a, p. 684. E.g. Meunier and Nicolaïdis 2006, pp. 920–921; Savorskaya 2015, p. 69. 42 Ibid.; Manners 2009, p. 11. 43 Diez 2005, p. 616; Diez and Manners 2007, p. 176. 44 de Zutter 2010, p. 1114. 41

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to specific circumstances and be proportionate in order to remain within the boundaries of a normative action. The use of dialogue, argumentation, and even shaming at relevant fora is central to a normative power.45 These instruments and mechanisms, however, need to be backed by a certain degree of (economic or even military) force to ensure observance of the agreed rules. As with the authority of law more generally, part of the normative attraction of the EU-diffused norms flows from the indiscriminate use of coercive measures against those offending these norms.46 Thus, De Zutter’s view is not fully embraced here. While a wider range of instruments is accepted for a normative power, the range is limited in the sense of the circumstances in which they are used, which is discussed below. When Can Coercion Be Used? The normativity of the use of coercion depends on the circumstances of its usage. The use of coercion to enable the diffusion of norms to other actors is not normative use of coercion. It contradicts the universality aspect discussed above. A norm that is diffused through coercion is not universalizable in the understanding adopted here because its acceptance would not be voluntary. Conversely, diffused norms can be backed by coercive measures to ensure their compliance as discussed above. The availability of coercive measures does not imply low or reduced persuasiveness of the norms themselves. Instead, it seeks to tackle reduced commitment to already agreed norms on the side of a particular actor. On the international plane, in the context of a lack of centralised enforcement mechanism under international law, it is for the subjects of international law to ensure the observance of agreed norms in observance of international law. In such a case coercion may be used if and to the extent that it is envisaged in the legal context (a treaty or another instrument or set of instruments) of the norm in question. Where the legal context provides for several mechanisms and does not order them procedurally, a normative power should start with the least coercive, where circumstances permit. This stems from the understanding that a normative power primarily acts through persuasion and only in last resort through coercion. In the event that the legal context of the norm does not provide for coercive measures, it is the rules of general international law that provide the limits to the normative use of coercion. In case these rules are broken the analysis will turn into a question of legality under the legitimacy element. Accordingly, the basic understanding of use of coercion by a normative power adopted here is that coercion or threat thereof should never be the reflexive response of a normative power to a situation involving a (perceived) breach of a principle or norm if non-coercive action would also yield effective results. Where coercive methods get to be used and can be gradated the most coercive should remain a last-resort measure. What Kind of Coercion Can Be Used? The two overarching kinds of power discussed in the literature are military (hard) and economic (soft). Before discussing the two, however, attention must be paid to 45 46

Manners 2011. See also Foot 2000, p. 9. See Eriksen 2006, pp. 255–256.

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the common misconception concerning the coerciveness of hard and soft power. The use of soft power through economic instruments is often viewed as less coercive than military or even non-coercive. This view does not always reflect reality. Economic sanctions can cause considerable and disproportionate harm to civilians.47 Targeted sanctions have been developed in response to the shortcomings of broad economic sanctions with the aim to focus on inter alia “segments of society believed responsible for objectionable behavior, while reducing collateral damage to the general population and third countries”.48 Conversely, the use of hard power need not have strong coercive connotations, particularly (but not only) in reconstruction efforts, post-conflict rehabilitation, and peace keeping.49 The NPE concept has been criticised and its relevance questioned with the gradual development of the EU’s military capabilities.50 Manners’ responded to these criticisms and argued that the EU’s militarisation itself does not “necessarily lead to the diminution of the EU’s normative power”.51 It is rather the way in which the developed military capabilities are used that may threaten the EU’s normative power.52 Sjursen goes along the same lines when saying: [w]hat if important norms are clearly and systematically broken? Would this not provoke a responsibility to react rather than to look the other way? It may also be that the threat of the use of force is required in order to appear credible to third parties when seeking to promote particular norms. The criticisms of the EU’s role in the crises in former Yugoslavia, for example, suggest that, for a putative ‘normative’ power, the incapacity to act is considered by many to be as problematic as the capacity to act.53

These observations confirm the views expressed above concerning the circumstances in which coercion can be used by a normative power. The use of economic power by a normative power has been no less controversial. A starting point here is identifying when the use of economic power to persuade others actually amounts to coercion. According to Smith, “[c]oercion involves threatening or inflicting “punishment” [while] persuasion entails co-operating with third countries to try to induce desired internal or external policy changes”.54 Even with that distinction in mind, it can be difficult to distinguish between the two in some cases because actions may involve a mixture of the two.55 Furthermore, even where an action is meant as persuasion, it may be perceived as coercion.56 In particular, 47

Sjursen 2006, p. 239; UN Secretary-General 1997. Hufbauer and Oegg 2000, p. 12. 49 Aggestam 2008, p. 9. 50 Discussed e.g. in Diez 2005, pp. 623–624. 51 Manners 2006, p. 183. 52 Ibid., pp. 194–195. 53 Sjursen 2006, p. 239. 54 Smith 2003, p. 22. 55 Damro 2012a, p. 691. 56 Ibid. 48

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EU trade agreements including non-trade aspects such as sustainable development chapters may be meant as persuasion by the EU but the other parties may feel coerced to agree to them in order to access the EU’s market.57 Consequently, the precise line between persuasion and coercion in such agreements and other positive conditionality instruments can only be drawn on a case-by-case basis and after proper consequentialist research on how the EU’s partners perceive its abovementioned agreements and instruments. Such work, however, goes beyond the scope of this book. Thus, trade and other agreements and instruments including positive conditionality will be considered as persuasion unless there are indications to the contrary. The EU’s use of economic coercion as a normative power has been criticised by linking (and liking) it to the older concept of civil power (using civil rather than military methods to influence others) with the consequence of again questioning the NPE’s relevance.58 The two concepts are admittedly very close to each other.59 However, according to Manners and Diez, they differ in several ways, which are centred on the aspect of universality of norms and the pursuance of these norms for more cosmopolitan reasons than simply protecting immediate national interests.60 Thus, while both concepts may involve instruments of economic coercion, it must be asked what are the underlying intentions and goals to be achieved in order to evaluate the normativity of the coercive actions. Again, the circumstances of coercion are of relevance. These circumstances also include the proportionality of the coercive actions relative to the goal to be achieved.

2.2.4 Legitimacy The legitimacy element examines the substance of the EU’s conduct. It does so by looking at issues of legality, protection of common or self-interests and coherence and consistency. The examination of legitimacy helps answering the overall question by analysing the actual EU conduct. This examination is important for the normativity analysis because the substance of the conduct of a normative power is as important as the process through which it acts (use of instruments) and the overall acceptance of the objectives of that conduct (universality). Accordingly, legitimacy has a specific meaning in this book that is connected to the NPE context. This narrowing down of legitimacy is needed because legitimacy is a very broad concept that has been explored widely in the literature61 and there is no need to delve into its theories and philosophical aspects beyond the NPE context. 57

Meunier and Nicolaïdis 2006, p. 920. Savorskaya 2015, p. 69. 59 Diez 2005, p. 617. 60 Diez and Manners 2007, pp. 177–179. 61 E.g. Franck 1990; Hurd 1999; Beetham and Lord 1998. 58

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Legitimacy has been defined as: a normative belief that a rule or a demand of an institution should be obeyed, not due to coercion or self-interest, but due to its inherent normative strength, being perceived as desirable, proper or appropriate within a socially constructed system of norms, values, beliefs and definitions.62

This definition provides a good understanding of legitimacy. However, it needs to be further built upon. Legitimacy is an aspect in a very special relationship with NPE, where the one fuels the other. In particular, NPE can be seen as part of the broader efforts of legitimising the EU’s external action.63 At the same time, the NPE itself rests on the legitimacy of the norms being diffused and the actions related to their diffusion and implementation.64 As Meunier and Nicolaïdis observed, “legitimacy is the main currency of an aspiring normative power”.65 The role of legitimacy as fuelling NPE has now even become the revolving point of the normative power literature.66 Legitimacy of a normative power, and by extension the norms it stands behind, can be examined in many ways and considering a variety of elements. Legitimacy can be divided in two parts—subjective and objective. The focus in this book is on the latter, staying clear of the consequentialist approach weaved into the subjective part. The subjective part relates to the extent to which other actors perceive the EU’s norm diffusion as legitimate and its importance has already been discussed in the literature.67 The objective part relates to certain elements that can be examined in a more general way as opposed to the rather particularistic case-by-case analysis required in the subjective part. The sub-elements proposed as part of the objective part are (1) legality, (2) interests, and (3) coherence and consistency. This division of sub-elements builds on Bickerton’s and Manners’ discussion of legitimacy and coherence and consistency.68 In particular, this division brings further clarity into how legitimacy should be examined in the context of normativity. It is maintained here, that although the NPE elements are strongly interrelated and may at times even be seen as permeating with each other, they deal with different parts of the normative analysis. For example, Bickerton and Manners allow for a large overlap between legitimacy and universality, as defined above. The two are indeed related but still considered different here. This is because a power may act normatively even if the universality element is not fulfilled but the use of instruments and legitimacy elements are fulfilled. This would happen where a power devises a completely new 62

Harpaz 2007, p. 97. Bickerton 2011, p. 25. 64 Ibid.; Harpaz 2007, p. 96. 65 Meunier and Nicolaïdis 2006, p. 922. 66 Bickerton 2011. 67 Weber 1978, p. 213; Manners 2008, p. 46; Nye 2004; Dandashly 2012, p. 425; Hurd 1999, p. 387; Harpaz 2007, p. 97; Haukkala 2011, p. 52. 68 Manners 2011, pp. 233–234. 63

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principle or norm that initially lacks wide or any international acceptance and uses the process of persuasion and acts with legitimacy to harness such acceptance. That is to say that each NPE element as presented in this chapter serves a specific purpose and contributes to the normativity analysis differently.

2.2.4.1

Legality

Legality is a central part of legitimacy as its norm diffusion actions are effectively law-making and, thus, even more important in the context of a legal discussion. There are two identifiable aspects of legality—a negative one relating to a prohibition of breaking the law and a positive one relating to law-making. With respect to the negative, a normative power that does not observe the substantive and procedural rules applicable to it loses normativity. That is, the EU, in order to act normatively, must observe the law.69 This aspect relates to the universality element in that both are generally concerned with whether the EU’s conduct corresponds to a particular level of acceptance of a principle or norm. However, they differ in detail. First, under the universality element, the principle or norm enjoying wide acceptance is not necessarily binding, although it would often be. At the same time, when it is binding, a power may still act normatively by operationalising international lawmaking mechanisms (also complying with the other legitimacy sub-elements and the process required under the use of instruments element) that eventually aim to change the universal binding principle or norm in way that would otherwise violate it. Thus, the two points of analysis are different. Further shifting to the positive aspect of legality, an example of increasing the legitimacy of a normative power is tying norms to already existing international rules and principles that are widely supported.70 Another example is seeking to elevate norms to form part of an international agreement that would ‘self-bind’ the normative power and provide additional assurance to the other actors that the norm in question will apply equally to all.71

2.2.4.2

Interest

The role of interest can cause a lot of confusion and controversy in the context of an NPE discussion. Some authors consider that normativity and interests are incompatible with one another.72 Others, however, correctly recognise that the two cannot be separated.73 Norms are founded on specific interests and seek to maximise them.74 Even where a normative power does not have an invested interest in a particular norm 69

Sjursen 2006, p. 245. Manners 2011, pp. 233–235. 71 Sjursen 2006, pp. 244–248. 72 See the discussions in Manners 2011, pp. 242–243; Martin-Mazé 2015. 73 Ibid.; Diez 2005, 622; Manners 2011, p. 242. 74 Ibid., Martin-Mazé 2015, 1288; de Zutter 2010, p. 1109. 70

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that it approves, it still has an interest in diffusing it inter alia in order to increase its overall legitimacy and in turn its normativity. A power can very well act to maximise its interests, while diffusing universalizable norms.75 However, in order to do so normatively, it needs to comply with the other normativity elements. Interest can be divided along two lines in the context of the present discussion. First, it can be long-term or immediate.76 The long-term interest is strategic and goes beyond the specific interest of the normative power. It is part of the common interest of the international community,77 which is also what allows the norm that is built on it to be universalizable. The immediate interest is particularistic and seeks to provide temporary advantages, if it is divorced from the long-term interest, and does not provide legitimacy. Second, interest can be broadly international or domesticspecific. In the context of universalizable norms, long-term interest will often but not always coincide with the broadly international, while the immediate with the domestic-specific. The area of fisheries conservation is a perfect example of the tension between these interest divisions and normativity. The immediate interest of setting fishing quotas higher than the scientific advice or continuing to provide harmful subsidies may provide temporary economic advantages. However, it is incompatible with the long-term sustainability interest, which builds legitimacy and is the basis of universalizable fisheries norms. These two divisions show again close inter-element connections within NPE. They show that the interests on which the conduct of a power are based are linked to the nature of the principles or norms, discussed under universality, and the imposition of one’s interests over another, discussed under use of instruments and specifically coercion. However, as with legality, these elements differ and their analysis focuses on different things. Under the universality element, the analysis is focused on the status of the power’s stated pretext for action. The interest analysis focuses on the underlying interest that this action seeks to address. That is, a power may state that through its action it seeks to further a recognised universal norm or principle (e.g. sustainable fishing) or create a new one but the substance of its action to be protecting its self-interest, which may even lead to the uncovering of incoherence an inconsistency with its action in another situation, which is elaborated in the next sub-subsection. Analysis of the EU’s conduct at the International Labour Organization (ILO) has shown that where the EU is very active in promoting its own exclusive interest as opposed to common interests during the drafting of an ILO Convention, that Convention receives a lower number of ratifications.78 Naturally, there can be situations of overlap where the stated pretext is a principle, which is based on a specific common interest, and the underlying interest is the same common interest. The existence of such overlap will simply point to increased normativity. Similarly, under the use of instruments element, the relevant part of the analysis focuses on the process (mechanisms and instruments) that a power uses disregarding the substance for which this process is used. A power 75

Sjursen 2006, p. 239. Manners 2011, 243; Martin-Mazé 2015. 77 Bickerton 2011, 87. See also Laïdi 2008, 86. 78 Kissack 2009a. 76

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may seek to further its immediate self-interests through a process of persuasion or it may seek to further long-term common interests through coercive imposition. The analysis of these situations would be different and after all normativity elements are considered the normativity conclusions can differ. Accordingly, a balanced approach is central to the interest-normativity tension. The correct balance needs to be struck between long-term and immediate interest as well as between domestic-specific interest and norms, which are based on broader international interest.79 In the fisheries context there is a great need for sustainability, which involves a balance of economic, social, and environmental aspects. Balancing these three aspects translates to increased attention to balancing the underlying interests (long-term and immediate as well as international and domestic). A normative power will often be expected to act against its immediate interest in order to uphold a particular norm. In the context of fisheries, an example of doing so will be to reduce or eliminate subsidies in order to reduce excess capacity or to stop the import of seafood from a particular State due to a proven record of illegal, unreported, or unregulated (IUU) fishing even if such a measure may harm the domestic processing industry, the market supply, or the relationship with that State. However, a normative power cannot also be expected to completely disregard its immediate and/or domestic interests.80 For example, if the abovementioned normative actions are not complemented by other States’ actions and prove to be ineffective because (1) other fleets continue to be subsidised or (2) seafood obtained through IUU fishing is accepted on other markets and the normative action results in being purely and heavily self-harmful to the actor, it should not be expected to maintain such measures in order to act normatively. Thus, the way and the extent to which a normative power sacrifices or is willing to sacrifice its interests in upholding a norm impacts its legitimacy and in turn its normativity. Still, a genuinely normative action need not necessarily be damaging a normative actor’s interests.81 It is equally possible for an actor to use a normative shell (pretending to act normatively) while seeking to maximise its immediate and domestic interest.82 There is a fine line between truly acting normatively and pretending to do so. Which is it can be discovered through case-specific analysis of the norms and interests involved. A general indication of using a normative shell is that actor’s reaction when more pressing interests are at stake. A power may seem to act normatively where a particular conduct does not damage its interests. However, if it stops acting normatively once important interests are at stake then it will exit its normative shell and show its true nature.

79

Striking such a balance has been considered in Bossuyt et al. 2017, paras 43 and 57. Aggestam 2008, 9. 81 Martin-Mazé 2015, p. 1288. 82 Diez and Pace 2011, p. 224; Langan 2012, p. 244. 80

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Coherence and Consistency

Coherence and consistency are considered together because they share the same core. Both terms refer to harmonious coexistence of (and connection between) different elements. There is no agreement in the literature what coherence and consistency stand for or even whether there is difference between them.83 The meaning of the two can easily vary in between contexts and they may sometimes even be used interchangeably.84 In the context of the EU a degree of confusion has been created by differences in the language versions of the Treaties. The English version features both notions (coherence and consistency), the use of consistency being the prevalent one.85 In fact, its wide use suggests that it can cover conceptually everything coherencerelated, as long as it fits the context of the provision in question. Irrespective of the lack of clarity surrounding coherence and consistency, there is some consensus forming in the literature that the two concepts need to be differentiated.86 The way in which they are differentiated and the conceptual divisions offered in the literature vary depending on the discursive context in which coherence and consistency are used.87 For example, in the EU context, coherence and consistency can be used to examine internal and external dynamics of the EU institutions and its Members States, to examine the overall efficiency of certain policies or institutions, or even to examine legality of actions. Coherence and consistency are differentiated in this book as well. The present context focuses on EU actions that affect its legitimacy as a normative power. This context requires a specific understanding of coherence and consistency.88 Coherence is understood as compatibility (other than legality) and even complementarity between actions within a policy or across policies. This understanding comes close to what is labelled as horizontal coherence in the literature.89 This type of coherence is very important in the fisheries context because fisheries regulation touches upon many policy areas, as further elaborated in Chap. 3. This multidimensionality requires an increased effort to ensure coherence among the relevant policy areas. The literature also speaks of vertical coherence, which relates to compatibility between the actions of the EU and its Member States.90 This book predominantly 83

Gebhard 2017, p. 108. Ibid., 107–108. See also Wakefield 2016, p. 128. 85 Coherence—3 times and consistency—19 times (the Treaties including Protocols, Annexes and Declarations). The Spanish, French, Italian and German versions only use ‘coherencia’, ‘cohérence’, ‘coerenza’, ‘kohärenz’. 86 Gebhard 2017, p. 108. 87 For different divisions, see ibid.; Cremona 2012, p. 58; Nuttall 2005. 88 The understanding of coherence and consistency here follows the one suggested by Manners 2011, pp. 233–234. 89 Cremona 2012, p. 34. 90 Ibid. Achieving such coherence has been seen as a challenge by the Commission in European Commission 2006, p. 6. 84

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focuses on horizontal coherence. Member States’ actions are considered where the discussion examines actions in different dimensions of the area of fisheries involving shared competences or where the EU is prevented from acting in certain fora due to participation limitations. Consistency is understood here as non-arbitrarily interpreting and applying rules (again in a way not affecting legality). This understanding of consistency has an internal and external side. Internally, it concerns uniformity between what the EU does internally and what the EU expects of its external partners to do. That is, if the EU expects its partners to fight IUU fishing, it needs to ensure that its Member States’ fleets are not engaging in IUU fishing or, if they are, that serious sanctions that are actually imposed. Externally, it concerns the uniformity between EU actions towards its international partners. For example, the EU should not apply its IUU fishing rules arbitrarily and sanction or threaten with sanctions some States, while looking the other way with respect to other States. In order to preserve legitimacy, any prima facie inconsistency needs to be justified in principled terms to the satisfaction of the international community.91 Accordingly, acting in a coherent and consistent way is crucial for the legitimacy and hence the normativity of a normative power.92 Dissonances between actions as well as between actions and projected images can damage the credibility and persuasiveness of a potential normative power such as the EU.93 Furthermore, where the EU and the Member States share competences and have to act together, lack of coherence and consistency also damages the EU’s normativity. This is so even if the contradicting conduct is of a few Member States and is beyond the control of the EU. In the words of the Commission: [u]nsatisfactory co-ordination between different actors and policies means that the EU loses potential leverage internationally, both politically and economically. Despite progress with improving co-ordination, there is considerable scope to bring together different instruments and assets, whether within the Commission, between the Council and Commission, or between the EU institutions and the Member States. Furthermore, the impact of EU’s policy is weakened by a lack of focus and continuity in its external representation.94

2.3 The Adapted Concept and Its Use NPE can be used to explain the role of a power in a variety of different ways depending on the standpoints taken. The basic ontological view taken with respect to NPE here is that the EU cannot be reduced to only one type of power to the exclusion of others. Such singularity is considered impossible due to the EU’s decentralised and dynamic nature both institutionally and competence-wise. Varying roles depending 91

Franck 1990, p. 163. Ibid., pp. 142, 180; Damro 2012b, p. 58. 93 Whitman 2011, p. 16; Skolimowska 2015, p. 120. 94 European Commission 2006, p. 6. 92

References

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on the area of action is a much more realistic view of the EU’s overall actorness. Another basic understanding with respect to the NPE concept is that it refers to a powerful actor that acts in a principled way. Furthermore, the present analytical framework is influenced by the legal standpoint of the book. In particular, the NPE concept is used to examine the EU’s normativity in the area of fisheries in order to answer how EU and international law impact the EU’s ability to act normatively in that area. Thus, the analysis does not take a consequentialist approach looking at how the EU and its conduct are perceived by the members of the international community. The NPE concept comprises tripartite cumulative criteria—universality, use of instruments, and legitimacy—that are tailored to the specificities of the fisheries area. For the EU to be acting normatively in the area of fisheries, it needs to (1) promote universalizable norms and ensure the observance of universal norms, (2) emphasise the use of specific instruments and processes by being involved in international fora that promote cooperation and use coercive action as a last-resort measure in limited circumstances, and (3) do so with legitimacy by acting lawfully, focusing on common and long-term interests, and acting coherently and consistently. The extent to which the EU manages to do all of that reveals how normatively it is acting in the area of fisheries. Before providing that analysis, however, the next chapter sketches out the area of fisheries and explores whether the EU can and, if so, whether it should act normatively in that area.

References Aggestam L (2008) Introduction: Ethical Power Europe? International Affairs. DOI: https://doi. org/10.1111/j.1468-2346.2008.00685.x Al-Fattal R (2009) The Tragedy of the Commons: Institutions and Fisheries Management at the Local and EU Levels. Review of Political Economy. DOI: https://doi.org/10.1080/095382509032 14834 Beetham D, Lord C (1998) Legitimacy and the EU. Longman, Harlow. DOI: https://doi.org/10. 4324/9781315840949 Berkes F (1994) Property Rights and Coastal Fisheries. In: Pomeroy R (ed) Proceedings of the Workshop on Community Management and Common Property of Coastal Fisheries in Asia and the Pacific: Concepts, Methods and Experiences. ICLARM, Manila, pp 51–62 Bickerton C (2011) Legitimacy Through Norms: The Political Limits to Europe’s Normative Power. In: Whitman R (ed) Normative Power Europe: Empirical and Theoretical Perspectives. Palgrave Macmillan, New York. DOI: https://doi.org/10.1057/9780230305601_2 Bossuyt J, Caputo E, Schwarz J (2017) Coherence Report – Insights from the External Evaluation of the External Financing Instruments. https://ec.europa.eu/international-partnerships/system/files/ coherence-report-main-report-170717_en.pdf. Accessed 2 August 2022 Bull H (1982) Civilian Power Europe: A Contradiction in Terms? Journal of Common Market Studies. DOI: https://doi.org/10.1111/j.1468-5965.1982.tb00866.x Council of Europe (2013) Fifth Negotiation Meeting Between the CDDH ad hoc Negotiation Group and the European Commission on the Accession of the European Union to the European Convention on Human Rights. https://www.echr.coe.int/Documents/UE_Report_CDDH_ENG. pdf. Accessed 2 August 2022

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Cremona M (2012) Coherence and EU external environmental policy. In: Morgera E (ed) The External Environmental Policy of the European Union: EU and International Law Perspectives. Cambridge University Press, Cambridge. DOI: https://doi.org/10.1017/CBO9781139152327.004 Damro C (2012a) Market power Europe. Journal of European Public Policy. DOI: https://doi.org/ 10.1080/13501763.2011.646779 Damro C (2012b) The post-Lisbon institutions and EU external environmental policy. In: Morgera E (ed) The External Environmental Policy of the European Union: EU and International Law Perspectives. Cambridge University Press, Cambridge. DOI: https://doi.org/10.1017/CBO978 1139152327.005 Damro C (2015) Market power Europe: exploring a dynamic conceptual framework. Journal of European Public Policy. DOI: https://doi.org/10.1080/13501763.2015.1046903 Dandashly A (2012) European Integration Revisited—From the Founding Fathers to the Normative Power Europe. Journal of European Integration. DOI: https://doi.org/10.1080/07036337.2012. 679835 De Zutter E (2010) Normative power spotting: an ontological and methodological appraisal. Journal of European Public Policy. DOI: https://doi.org/10.1080/13501763.2010.513554 Diez T (2005) Constructing the Self and Changing Others: Reconsidering ‘Normative Power Europe’. Millennium-Journal of International Studies. DOI: https://doi.org/10.1177/030582980 50330031701 Diez T, Manners I (2007) Reflecting on normative power Europe. In: Berenskoetter F, Williams M (eds) Power in World Politics. Routledge, London, pp 173–188 Diez T, Pace M (2011) Normative Power Europe and Conflict Transformation. In: Whitman R (ed) Normative Power Europe: Empirical and Theoretical Perspectives. Palgrave Macmillan, New York. DOI: https://doi.org/10.1057/9780230305601_11 Duchêne F (1972) Europe’s Role in World Peace. In: Mayne R (ed) Europe Tomorrow: Sixteen Europeans Look Ahead. Fontana, London, pp 32–47 Eckes C, Wessel R (2018) An International Perspective. In: Schütze R, Tridimas T (eds) Oxford Principles of European Union Law. Oxford University Press, Oxford. DOI: https://doi.org/10. 1093/oso/9780199533770.003.0004 Eriksen EO (2006) The EU – A Cosmopolitan Polity? Journal of European Public Policy. DOI: https://doi.org/10.1080/13501760500451683 European Commission (2006) Communication, Europe in the World — Some Practical Proposals for Greater Coherence, Effectiveness and Visibility, COM(2006) 278 final Foot R (2000) Rights beyond borders: the global community and the struggle over human rights in China. Oxford University Press, Oxford. DOI: https://doi.org/10.1093/0198297769.001.0001 Forsberg T (2011) Normative Power Europe, Once Again: A Conceptual Analysis of an Ideal Type. Journal of Common Market Studies. DOI: https://doi.org/10.1111/J.1468-5965.2011.02194.X Franck T (1990) The Power of Legitimacy Among Nations. Oxford University Press, Oxford Gebhard C (2017) The problem of coherence in the EU’s international relations. In Hill C, Smith M, Vanhoonacker S (eds) International Relations and the European Union, 3rd edn. Oxford University Press, Oxford. DOI: https://doi.org/10.1093/hepl/9780198737322.003.0006 Gegout C (2016) Unethical power Europe? Something fishy about EU trade and development policies. Third World Quarterly. DOI: https://doi.org/10.1080/01436597.2016.1176855 Guyer P (1998) Introduction. In Guyer P (ed) Kant’s Groundwork of the Metaphysics of Morals: Critical Essays. Rowman & Littlefield Publishers, Lanham, pp xi–xlv Habermas J (1990) Moral Consciousness and Communicative Action. Polity Press, Cambridge Harpaz G (2007) Normative Power Europe and the Problem of a Legitimacy Deficit: An Israeli Perspective. European Foreign Affairs Review. DOI: https://doi.org/10.54648/EERR2007006 Haukkala H (2011) The European Union as a Regional Normative Hegemon: The Case of European Neighbourhood Policy. In: Whitman R (ed) Normative Power Europe: Empirical and Theoretical Perspectives. Palgrave Macmillan, New York. DOI: https://doi.org/10.1057/9780230305601_3 Hufbauer G, Oegg B (2000) Targeted Sanctions: A Policy Alternative? Law and Policy in International Business 32:11–21

References

37

Hurd I (1999) Legitimacy and Authority in International Politics. International Organization. DOI: https://doi.org/10.1162/002081899550913 Kagan R (2003) Of Paradise and Power: America and Europe in the New World Order. Knopf, New York Kissack R (2009a) Writing a new normative standard? EU member states and ILO conventions. In: Orbie J, Tortell L (eds) The European Union and the Social Dimension of Globalization: How the EU Influences the World. Routledge, London, pp 112–126 Kissack R (2009b) How to lose friends and alienate people? The EU as a global social power. European Journal of Social Policy 19:99–116 Laïdi Z (2008) Norms over Force: The Enigma of European Power. Palgrave Macmillan, New York. DOI: https://doi.org/10.1057/9780230614062 Langan M (2012) Normative Power Europe and the Moral Economy of Africa–EU Ties: A Conceptual Reorientation of “Normative Power”. New Political Economy. DOI: https://doi.org/10.1080/ 13563467.2011.562975 Manners I (2002) Normative Power Europe: A Contradiction in Terms. Journal of Common Market Studies. DOI: https://doi.org/10.1111/1468-5965.00353 Manners I (2006) Normative power Europe reconsidered: beyond the crossroads. Journal of European Public Policy. DOI: https://doi.org/10.1080/13501760500451600 Manners I (2008) The normative ethics of the European Union. International Affairs. DOI: https:// doi.org/10.1111/J.1468-2346.2008.00688.X Manners I (2009) The EU’s Normative Power in Changing World Politics. In: Gerrits A (ed) Normative Power Europe in a Changing World: A Discussion. Netherlands Institute of International Relations Clingendael, The Hague, pp 9–24 Manners I (2011) The European Union’s Normative Power: Critical Perspectives and Perspectives on the Critical. In: Whitman R (ed) Normative Power Europe: Empirical and Theoretical Perspectives. Palgrave Macmillan, New York. DOI: https://doi.org/10.1057/9780230305601_12 Martin-Mazé M (2015) Unpacking Interests in Normative Power Europe. Journal of Common Market Studies. DOI: https://doi.org/10.1111/JCMS.12257 McWhinnie S (2009) The Tragedy of the Commons in International Fisheries: An Empirical Examination. Journal of Environmental Economics and Management. DOI: https://doi.org/10.1016/j. jeem.2008.07.008 Meunier S, Nicolaïdis K (2006) The European Union as a conflicted trade power. Journal of European Public Policy. DOI: https://doi.org/10.1080/13501760600838623 Miller A, Bush S, Mol A (2014) Power Europe: EU and the illegal, unreported and unregulated tuna fisheries regulation in the West and Central Pacific Ocean. Marine Policy. DOI: https://doi. org/10.1016/j.marpol.2013.12.009 Nuttall S (2005) Coherence and Consistency. In: Hill C and Smith M (eds) International Relations and the European Union, 1st edn. Oxford University Press, Oxford, pp 91–112 Nye J (2004) Soft Power: The Means to Success in World Politics. Public Affairs, New York Prichard A (2013) Justice and EU Foreign Policy Journal of Contemporary European Studies. DOI: https://doi.org/10.1080/14782804.2013.831604 Rose C (1991) Rethinking Environmental Controls: Management Strategies for Common Resources. Duke Law Journal 41:1–38 Savorskaya E (2015) The Concept of the European Union’s Normative Power. Baltic region. DOI: https://doi.org/10.5922/2079-8555-2015-4-5 Sjursen H (2006) The EU as a ‘Normative’ Power: How can this be? Journal of European Public Policy. DOI: https://doi.org/10.1080/13501760500451667 Skolimowska A (2015) The European Union as a ‘Normative Power’ in International Relations. Theoretical and Empirical Challenges. Yearbook of Polish European Studies 18:111–132 Smith K (2003) European Union Foreign Policy in a Changing World, 1st edn. Polity Press, Cambridge Staeger U (2016) Africa–EU Relations and Normative Power Europe: A Decolonial Pan-African Critique. Journal of Common Market Studies. DOI: https://doi.org/10.1111/JCMS.12350

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2 Normative Power Europe as an Analytical Framework for Examining …

Timmermann J (ed) (2011) Kant, Groundwork of the Metaphysics of Morals: A German–English Edition (Gregor M (transl)). Cambridge University Press, Cambridge UN Secretary-General (1997) Report of the Secretary-General on the work of the Organization, UN Doc. A/52/1 Wagner W (2006) The democratic control of military power Europe. Journal of European Public Policy. DOI: https://doi.org/10.1080/13501760500451626 Wakefield J (2016) Reforming the Common Fisheries Policy. Edward Elgar, Cheltenham. DOI: https://doi.org/10.4337/9781785367663 Weber M (1978) Economy and Society: An Outline of Interpretive Sociology. University of California Press, Berkeley Whitman R (2011) Norms, Power and Europe: A New Agenda for Study of the EU and International Relations. In: Whitman R (ed) Normative Power Europe: Empirical and Theoretical Perspectives. Palgrave Macmillan, New York. DOI: https://doi.org/10.1057/9780230305601_1 Zielonka J (2011) The EU as an International Actor: Unique or Ordinary? European Foreign Affairs Review. DOI: https://doi.org/10.54648/EERR2011021

Chapter 3

The EU Area of Fisheries and Normative Power Europe

Contents 3.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.2 The Area of Fisheries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.3 Can the EU Act Normatively in the Area of Fisheries? . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.3.1 Institutional Framework . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.3.2 Competences to Act in the Area of Fisheries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.3.3 Capacity to Act Internationally in the Area of Fisheries . . . . . . . . . . . . . . . . . . . . 3.4 Is the EU Required to Act Normatively in the Area of Fisheries? . . . . . . . . . . . . . . . . . . . 3.4.1 Universality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.4.2 Use of Instruments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.4.3 Legitimacy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.5 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

40 40 42 42 48 61 62 63 64 65 69 70

Abstract This chapter builds on the theoretical foundations set out in Chap. 2 and lays down further and more contextualised foundations for the subsequent chapters. It explains the notion of the area of fisheries in the EU as understood in this book and the way in which the framework of normativity generally applies in this area. More specifically, it explains the different dimensions of the area of fisheries and the various EU policies involved in it, thus setting the broad policy background of the analysis in the following chapters. The EU policies mentioned are Common Fisheries Policy, Environmental policy, Common Commercial Policy, Development Cooperation Policy, Social policy, and Common Transport Policy. This chapter also makes two central arguments. It argues that the EU (1) has the necessary institutional framework, internal competences, and external capacity to act normatively and (2) is required to act normatively in the area of fisheries based on both primary and secondary EU law instruments from the area of fisheries. Keywords Normative Power Europe · Area of fisheries · EU institutional framework · Common Fisheries Policy · Environmental policy · Common Commercial Policy · Development Cooperation Policy · Social policy · Common Transport Policy

© T.M.C. ASSER PRESS and the author 2023 M. Vatsov, Fishing Power Europe, Global Europe: Legal and Policy Issues of the EU’s External Action 3, https://doi.org/10.1007/978-94-6265-583-6_3

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3.1 Introduction The previous chapter set out the analytical framework of the book. Building on it, this chapter lays down further and more contextualised foundations for the subsequent chapters by exploring the notion of the area of fisheries in the European Union (EU) and the way in which the Normative Power Europe (NPE) concept applies in this area. Section 3.2 focuses on the EU area of fisheries. It explains its different dimensions and the various EU policies involved in it. This mapping out is important because it sets the broad policy background of the analysis in the following chapters. It also shows that the analysis needs to go beyond the formal boundaries of the Common Fisheries Policy (CFP) in order to provide a comprehensive picture of the EU’s conduct in fisheries matters. Section 3.3 examines whether the EU can be a normative power in the area of fisheries. That is, it builds on the area of fisheries discussion, and explores whether the EU has the necessary institutional framework, internal competences and external capacity to act normatively. Examining these three issues sets the ground for applying the use of instruments element throughout the book as they clarify the first part (ability to act) of this element. Section 3.4 examines whether the EU is required to act normatively in the area of fisheries. It does so by considering both primary and secondary EU law instruments from the area of fisheries and as such further sets out the legal context of the analysis in the following chapters. Section 3.5 concludes that the EU can and is required to act normatively in the area of fisheries, which sets the stage for the following chapters, exploring whether the EU is indeed acting normatively in the area of fisheries.

3.2 The Area of Fisheries To begin with, the use of certain terms must be defined. An area covers all governance matters contained in specific policies related to the theme in question. A policy relates to a Treaty-defined competence(s) to act. A dimension is a cross-policy and intra-area thematic division. The scope of the CFP is defined in the Treaties and is composed of shared and exclusive CFP competences.1 The CFP contains a core of purely fisheries measures that do not overlap with other policies. Such matters deal with quota determinations and allocations, determination of fishing seasons, technical measures, etc. The CFP was initially mainly composed of such core measures. However, over the decades, with the increasing complexity of the international fisheries regime and applicable standards, different dimensions started creeping-in in the shape of additional aims and objectives.2 These objectives were transplanted from other EU policies and where 1

Treaty on the Functioning of the European Union (Consolidated Version), opened for signature 25 March 1957, entered into force 1 January 1958, TFEU 2016 OJ C202/47, Articles 3(1)(d) and 4(2)(d). 2 Churchill and Owen 2010, p. 122; European Commission 2009, p. 5; 2011b, p. 3.

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the non-purely-fisheries objectives prevail in a measure it is based on the respective legal basis of the non-CFP policy (or on dual legal basis). This is how the different cross-policy dimensions are formed. For example, the environmental dimension in the area of fisheries encompasses fisheries matters dealt under the environmental policy and environmental matters dealt under the CFP. There is no exhaustive list of these dimensions, but one can find indications as to the main ones in various CFP instruments, which are discussed below. Regulation 1380/2013 (the 2013 Basic Regulation) refers specifically to improving the coherence of EU initiatives with regard to “environmental, trade and development activities” as well as “strengthen[ing] consistency of actions taken in the context of development cooperation and scientific, technical and economic cooperation”.3 In the same spirit, the Commission’s communication on the external CFP in 2011 stated that in order to fulfil the goals of the external CFP, the EU needs a more powerful voice at the international level. The Commission considered that this will happen “through greater synergies between its actions and policies in the realm of international fisheries governance and the domains of development, trade, environment, research and innovation, foreign policy and others”.4 One area that is missing from these lists and is becoming increasingly relevant in the area of fisheries is fundamental rights.5 However, the EU Treaties do not contain a separate EU competence or formal policy on fundamental rights. Thus, the fundamental rights area needs to be broken down to the various policies, relevant in the fisheries context, that contribute to fundamental rights protection. Such policies, in addition to the ones already identified, are the social and transport policies, on account of the social protection and safety standards they present for the fishermen. Accordingly, it is the collection of the CFP and the parts of the other EU policies dealing with fisheries matters that constitute the area of fisheries, as understood in this book. As already pointed out, the aim of this book is to explore the impact of EU and international law on the EU’s normativity and whether the EU is acting normatively in the area of fisheries. In doing so, the discussion does not need to cover EU action in all possible policies and respective dimensions. Instead, it needs to focus on several dimensions that relate to different types of EU conduct. In particular, the focus in the following substantive chapters is on EU conduct (1) in fora where the EU faces participation limitations due to lack of membership, (2) in fora where it enjoys membership, (3) in multileveled coercive action and (4) at the bilateral level in accessing foreign resources. The policies involved in these types of action are the Common Commercial Policy (CCP), environmental policy, Development Cooperation Policy (DCP), social policy, Common Transport Policy (CTP), and the CFP, the latter being central. This collection of policies also provides a rich analytical foundation because they draw on different types of EU competences—exclusive, shared and complementary, which are explained in Sect. 3.3.2. The rest of the book focuses on these policies and the respective dimensions. 3

European Parliament and Council 2013, Article 28(2)(b). European Commission 2011b, p. 13. 5 Kirchner 2019. 4

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3.3 Can the EU Act Normatively in the Area of Fisheries? A preliminary question to be answered before any normativity analysis can start is whether the EU can act normatively, that is, whether it bears the basic operational marks of a normative power in the area of fisheries. There are three such marks. First, the EU needs a proper institutional framework through which to develop policies and to act upon them internally and externally. Second, the EU needs competences, allowing it to develop policy choices at the EU level. Third, the EU needs the capacity to act in the relevant international fora, due to the international nature of the area of fisheries. This section explores these matters in turn.

3.3.1 Institutional Framework The necessary institutional framework requires bodies that have the necessary legislative and executive powers, which are supported at technical and scientific levels due to the often technical and scientific nature of the area of fisheries, all of which operate under functioning judicial oversight. In the context of the EU, it must be pointed out that due to the EU’s distinctiveness there is no one single organ that deals with the EU’s external action to the full exclusion of the others.6 Additionally, the Member States continue to exist alongside each other and the EU7 and their formal role is sketched out below as well. Even if the EU enjoys a separate legal personality from its Member States, as discussed in Sect. 3.3.3 below, in practical terms, it operates on the basis of its Member States and this is very visible in the area of fisheries. The EU does not have its own, separate from its Member States, fishing fleet and fishermen. Instead, its conduct, as well as that of its Member States, relate to the fleet and the fishermen of the Member States and serve their wellbeing. Thus, when discussing the EU’s normativity in the area of fisheries, it is important to note who the EU is. As this book shows, the main weight of the analysis is on the conduct of the EU institutions, formally comprising the EU. However, in some chapters the analysis takes due account of the relevant conduct of the Member States and discusses how it reflects on the EU as a whole. Accordingly, where so noted throughout the book, the EU’s normativity is analysed as a function of the conduct of the EU institutions as well as of the Member States. Disregarding the conduct of the Member States and simply looking at the EU institutions would provide a distorted picture of normativity in the area of fisheries.

6 7

Cannizzaro 2007, p. 194; Larik 2018, p. 176. Ibid.

3.3 Can the EU Act Normatively in the Area of Fisheries?

3.3.1.1

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EU Bodies

The central EU institutions involved in the internal legislative action and treatymaking are the Commission, the Council, and the European Parliament. In certain situations, in the competences outlined in Sect. 3.3.2 below, the legislative process requires for the European Committee of the Regions and the European Economic and Social Committee to be involved by issuing non-binding advisory opinions on the aspects of proposals or developments falling within their competences.8 The action of all of these bodies is directed by the European Council at the highest political level and without legislative action. It comprises Heads of State or Government of the Member States, together with its President and the President of the Commission.9 Internally, the Commission enjoys the power of legislative initiative and, thus, influences the fisheries agenda. This is relevant here with respect to the EU’s autonomous measures having external impact. Under the ordinary legislative procedure, which governs most of the action under the abovementioned EU competences, the European Parliament and the Council are co-legislators. This means that both institutions need to agree on the adoption of a particular act. Under that procedure (1) the European Parliament acts by a simple majority (first reading) and absolute majority (second reading when rejecting or amending Council’s position) and (2) the Council acts by qualified majority, except where the Commission issues a negative opinion on the Council amendments, in which case the Council acts by unanimity.10 The Commission also has the power to withdraw a proposal until the Council acts on it, as an implied extension of its power of initiative.11 Under the special legislative procedures the Council’s and the European Parliament’s roles can differ by reducing the European Parliament’s role to only providing its consent or even making the Council the sole legislator and the European Parliament is only consulted, as in cases of “fixing prices, levies, aid and quantitative limitations and on the fixing and allocation of fishing opportunities”.12 Next to the European Parliament’s legislation-related input, it sometimes issues opinions on relevant fisheries matters on its own initiative and keeps track of fisheries developments through its Fisheries Committee. In the adopted Regulations in the area of fisheries, the Commission also often has delegated powers to adopt detailed technical and implementing measures. This happens under the supervision of a committee composed of Member States’ representatives and any such acts may enter into force only if the European Parliament or the Council do not object to it.13 8

TFEU, above n. 1, Articles 91, 100(2), 153(2), 192. Treaty on European Union (Consolidated Version), opened for signature 7 February 1992, entered into force 1 November 1993, TEU 2016 OJ C202/13, Article 15(2). 10 TFEU, above n. 1, Article 294. 11 ECJ, Case C-409/13 Council v Commission, Judgment, 14 April 2015, EU:C:2015:217, paras 70–74. 12 TFEU, above n. 1, Articles 218(6)(a)(v) and (b) and 43(2)–(3). 13 European Parliament and Council 2013, Articles 46–47. 9

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Externally, the Commission also plays an important role in the EU’s treaty-making process. Under Article 218(3) of the Treaty on the Functioning of the European Union (TFEU), the Commission recommends to the Council to open negotiations for an international agreement and appoint the EU negotiator. Then the Commission negotiates an agreement in accordance with any adopted negotiating directives and proposes to the Council to authorise the signing of the negotiated agreement and in some cases its provisional application.14 Consequently, the Commission proposes that the Council concludes the agreement after obtaining the European Parliament’s consent in areas where inter alia the ordinary legislative procedure applies; the European Parliament’s consent is otherwise needed in a special legislative procedure, or where important budgetary implication are involved.15 The Council acts by a qualified majority throughout the treaty-making procedure.16 Furthermore, the Commission represents the EU at various fora and speaks on the EU’s behalf, including before national and international courts and tribunals.17 In national and international proceedings concerning fisheries matters the Commission also has the leading role in preparing the EU’s statements.18 The Commission is also in charge of implementing the agreements the EU concludes. Last but not least, the Commission is the guardian of the Treaties and can bring Member States and other EU institutions before the Court of Justice of the European Union (CJEU) for failure to observe EU law.19 The EU’s institutional framework also involves a mixture of other bodies that provide scientific and technical support.20 In that regard it is relevant to mention the Scientific, Technical and Economic Committee for Fisheries (STECF), European Fisheries Control Agency (EFCA), and the Long Distance Fleet Advisory Council (LDAC). The STECF is a scientific body that advises the Commission on fisheries conservation and management matters and publishes reports on the EU state of fisheries resources.21 The EFCA was established in 2005 with its primary role “to organise coordination and cooperation between national control and inspection activities so that the rules of the CFP are respected and applied effectively”.22 It also provides support for various international control and inspection tasks in the context of relations with third countries or Regional Fisheries Management Organisations (RFMO).23 The LDAC was established in 200424 and was reaffirmed with the 2013 14

TFEU, above n. 1, Article 218(4) and (5). Ibid., Article 218(6). 16 Ibid., Article 218(8). 17 See Council 1991; ECJ, Case C-73/14 Council v Commission, Judgment, 6 October 2015, EU:C:2015:663, paras 58–59. 18 Ibid., paras 69–76. 19 TFEU, above n. 1, Articles 258, 260 and 263. 20 On the role of science, see Lado 2020, pp. 206–215. 21 European Commission 2016a. 22 http://www.efca.europa.eu/en/content/mission-statement. Accessed 2 August 2022. See also Council 2005. 23 Ibid., Article 4. 24 Council 2004. 15

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CFP reform.25 It operates alongside a number of other advisory councils but unlike them it has an exclusively external outlook. Like the other councils, it consists of stakeholders of the fishing sector and other groups, such as environmental Nongovernment Organisations (NGO), consumers and civil society. Its mission is to advise the principal EU institutions and the Member States on matters relating to bilateral fisheries agreements, relations with RFMOs, and the international fisheries market.26 Promoting the external CFP and policy coordination is a key area of work for it. Finally, the EU institutional framework features the CJEU, which has the jurisdiction to provide judicial review of EU acts in light of EU and international law as well as to interpret and apply them in the cases before it. The CJEU played an important role in the early development of different policies through its interpretations, including of the CFP.27 With the Lisbon Treaty changes the CJEU regained prominence in clarifying the powers of the EU and its institutions in various policies including the CFP and its external dimension.

3.3.1.2

EU Member States

The EU Member States also play an important role in the institutional framework through which the EU acts in the area of fisheries. They play that role directly and indirectly. Directly, they participate in their individual capacities, which includes exercising rights and discharging duties as flag States, enforcing the CFP (under the Commission’s oversight28 ), and acting under their delegated powers.29 The Member States may act internationally on behalf of the EU, where the EU is not a member but enjoys an internal competence to act. As stated above, the EU’s normativity is a function of the conduct of both the EU and its Member States. The role of the Member States’ conduct is all the more important where the EU faces participation limitations. Where the EU has competence but is unable to act due to participation limitations, it is for the Member States under the duty of sincere cooperation to step in by acting or refraining from acting. This means that in such situations the Member States’ ability to act should be considered as an indirect EU ability to act for the purposes of the present discussion. The duty of sincere cooperation is a foundational constitutional principle of EU law.30 It is of great importance in the EU’s external action in light of the different types of EU competences (exclusive, shared, etc., which are explained below) and the participation limitations the EU faces.31 The duty applies between the EU and its 25

European Parliament and Council 2013, Annex III; European Commission 2015a. https://ldac.eu/en/about-us. Accessed 2 August 2022. 27 Lado 2016, p. 13; Churchill and Owen 2010, p. 27. 28 Long and Curran 2000, pp. 61–63. 29 Churchill and Owen 2010, p. 24. 30 See Klamert 2014. 31 Van Elsuwege 2019, pp. 283–284. 26

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Member States (Article 4(3) of the Treaty on European Union (TEU)) and between the EU institutions themselves (Article 13(2) TEU).32 Under Article 4(3) TEU, Pursuant to the principle of sincere cooperation, the Union and the Member States shall, in full mutual respect, assist each other in carrying out tasks which flow from the Treaties. The Member States shall take any appropriate measure, general or particular, to ensure fulfilment of the obligations arising out of the Treaties or resulting from the acts of the institutions of the Union. The Member States shall facilitate the achievement of the Union’s tasks and refrain from any measure which could jeopardise the attainment of the Union’s objectives.

In the area of external action, the duty of sincere cooperation requires the Member States, on the one hand to act as “trustees of the Union interest”33 and, on the other hand a “duty to remain silent” when the unity of the EU’s representation is at stake.34 In the context of external action, the CJEU has had several occasions to clarify the implications for the Member States of that duty (including on its pre-Lisbon versions). In the ERTA case, the CJEU held that this duty prohibits Member States from exercising their external competences when this would risk affecting internal Union rules or altering their scope.35 In the IMO I case, the CJEU extended this pronouncement beyond the conclusion of international agreements and into the adoption of positions within international organisations.36 In that case, Greece submitted a proposal at the International Maritime Organization (IMO) concerning a matter of shipping and port facilities, which fell under EU competence. There, the CJEU emphasised the role of the duty in fora with participation limitations for the EU and stated that [t]he mere fact that the Community is not a member of an international organisation in no way authorises a Member State, acting individually in the context of its participation in an international organisation to assume obligations likely to affect Community rules promulgated for the attainment of the objectives of the Treaty.37

Similarly, in the ILO case, the CJEU held that although, under the ILO Constitution, the Community cannot itself conclude Convention No 170, its external competence may, if necessary, be exercised through the medium of the Member States acting jointly in the Community’s interest.38

According to the CJEU in the OIV case, the EU’s non-participation in an international agreement does not prevent the Council to adopt positions “on the Union’s 32

A similar duty is set out for the Member States in the area of the Common Foreign and Security Policy (TEU, above n. 9, Article 24(3)) but it is not in the focus of this chapter. 33 Cremona 2011a. 34 Delgado Casteleiro and Larik 2011. 35 ECJ, Case 22/70 Commission v Council (‘ERTA’), Judgment, 31 March 1971, EU:C:1971:32, para 22. 36 ECJ, Case C-45/07 Commission v Greece, Judgment, 12 February 2009, EU:C:2009:81, paras 14–17. 37 Ibid., para 30. 38 ECJ, Opinion 2/91 Convention No 170 of the International Labour Organization concerning safety in the use of chemicals at work, Opinion, 19 March 1993, EU:C:1993:106, para 5.

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behalf” in a body set up by such agreement, as long as the position concerns a matter within EU competence.39 In later cases the CJEU made clear that Member States must abstain from acting even where the EU is present alongside the Member States (where participation limitations are smaller) and the issue is a matter of shared competence, if such action would contradict an existing EU position.40 With respect to shared competence, the CJEU stated in the OTIF case that exercising a shared competence internally is not a requirement for the EU to act externally under that competence.41 All of these cases show that the duty of sincere cooperation contains specific obligations for the Member States designed to achieve the objectives of the EU’s external action especially where the EU faces participation limitations.42 Indeed, had the EU been the sole external actor and admitted as such at all fora, this duty would be emptied of purpose with respect to external action. Observing the duty of sincere cooperation affects the EU’s normativity in two main ways. First, the observance of that duty by the Member States, with the Commission ensuring that observance, has the inherent normative value of overall commitment to the rule of law. Second, the duty affects substantively the EU’s external action and the content of the resulting international legal obligations. That is, the substance of the involvement differs where the EU acts in the EU interest (itself or through the medium of the Member States based on a common position) from where the Member States act uncoordinated on their own and purely in their own interest. Such EU action has an inherent normative value because it (1) strengthens the EU’s authority to act and with it the case for participation limitations to be removed, which would improve its normativity under the use of instruments element and (2) provides more coherence and consistency. The duty of sincere cooperation is, thus, the EU law link making it possible for the Member States’ ability to act to be ascribed to the EU’s ability to act. However, that duty has important practical limitations. For example, where a common EU position for certain matter has not been adopted and it does not fall under an exclusive competence or the rule of pre-emption (explained below) does not apply, the Member States may act in their own interest. That is, practically, the duty may be useful to keep few Member States from breaking rank. However, where the Member States collectively decide at the Council not to adopt an EU position proposed by the Commission, the duty becomes largely useless. This is to show again that the Member States hold a very important role for analysing the EU’s normativity. Where the EU is a member in the relevant fora, the Member States may also act alongside the EU through mixed action where the matter at hand falls under shared competences.43 Indirectly, in the Council, the Member States in practice also (if not 39

ECJ, Case C-399/12 Germany v Council, Judgment, 7 October 2014, EU:C:2014:2258, para 52. ECJ, Case C-370/07 Commission v Council, Judgment, 1 October 2009, EU:C:2009:590; ECJ, Case C-246/07 Commission v Sweden, Judgment, 20 April 2010, EU:C:2010:203. 41 ECJ, Case C-600/14 Germany v Council, Judgment, 5 December 2017, EU:C:2017:935, para 62. 42 Van Elsuwege 2019, p. 296. 43 ECJ, Joined Cases C-626/15 and C-659/16 Commission v Council, Judgment, 20 November 2018, EU:C:2018:925. 40

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primarily) represent their own, highly diverse, fishing interests44 and influence the area of fisheries through the compromises that need to be made. This goes also for the Council’s decisions on establishing the positions to be adopted on the EU’s behalf in bodies set up by the agreements the EU concluded with respect to acts having legal effects.45 In particular, the Member States may even refuse to adopt a common position in the Council in order to have more flexibility in pursing their interests at a particular forum and there are no rules to force them to do otherwise.46 Examples of such action and their consequences for EU’s normativity are discussed in Chap. 4. Where the EU and its Member States together are members in the relevant fora, it is possible for an arrangement to be made that would elaborate on the procedural practicalities such as speaking and voting. Such arrangement, however, is not concluded between the EU and its Member States as such but takes shape in an Interinstitutional Arrangement between the Commission and the Council, as it happened in the case of the Food and Agriculture Organization (FAO), which is further discussed in Chap. 5. In the FAO Compliance Agreement case where the observance of that arrangement was challenged, the CJEU held that the Interinstitutional Arrangement “between the Council and the Commission represents fulfilment of that duty of [sincere] cooperation between the [EU] and its Member States within the FAO”.47 This CJEU statement shows that the Council is not simply an EU institution but an EU institution representing the Member States collectively, which impacts the EU’s external action. Accordingly, the EU is provided with the necessary institutional framework in order to act normatively in the area of fisheries. It is composed of many actors that are supposed to work towards the same overarching goals that are set out in the Treaties. However, the different nature and mandates of the actors involved can lead to internal conflicts threatening inter alia the coherence and consistency of the EU’s external action in the area of fisheries and, in turn, its normativity.

3.3.2 Competences to Act in the Area of Fisheries This subsection explores whether the EU has the relevant competences to act in the area of fisheries and, if so, to what extent. The discussion of said competences covers not only the question of their existence but more importantly the competence to act externally under them. Before discussing the specific competences, a brief overview of the types of competences, powers, and agreements is necessary in order to better appreciate the differences between the specific competences. There are several types of competences under EU law. The main types are listed in Articles 3 (exclusive), 4 (shared) and 6 (complementary) TFEU. Other competences 44

Churchill and Owen 2010, pp. 23–24. See also generally Larik 2018, p. 195. TFEU, above n. 1, Article 218(9). 46 Larik 2018, p. 194. 47 ECJ, Case C-25/94 Commission v Council, Judgment, 19 March 1996, EU:C:1996:114, para 49. 45

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lacking an agreed classification are spread through the Treaties and apply to specific issues, which are not of interest for this book. Exclusive competences are competence fields in which only the EU, to the exclusion of its Member States, may act. Shared competences are fields in which the EU shares powers with its Member States and the EU’s exercise of its shared competence precludes the Member States from further exercising theirs, unless it is explicitly stated otherwise, as it is in Article 4(3) and (4) TFEU. The Member States are so precluded due to the rule of pre-emption. In particular, in accordance with Article 2(2) TFEU and settled case-law, if the EU has provided for common rules the Member States no longer have the right to take measures internally or externally undermining those rules.48 This pre-emption applies both within the EU and on the international plane, as further explained below. Complementary competences are fields in which the EU carries out actions to support, coordinate or supplement the actions of the Member States. In exercising these competences, the EU has internal and external powers to act. While some of these powers are expressly stated in the EU treaties, others are implied. The doctrine of external implied powers was developed by the CJEU with its ERTA decision.49 The line of case-law on implied powers that followed50 is today codified in Article 216 TFEU and Article 3(2) TFEU.51 Article 216 TFEU provides that the EU may conclude an agreement with one or more third countries or international organisations where the Treaties so provide or where the conclusion of an agreement is necessary in order to achieve, within the framework of the Union’s policies, one of the objectives referred to in the Treaties, or is provided for in a legally binding Union act or is likely to affect common rules or alter their scope.

The general language of Article 216 TFEU shows that implied powers apply generally to all EU competences. With respect to exclusive competences Article 3(2) TFEU further provides that the EU shall also have exclusive competence for the conclusion of an international agreement when its conclusion is provided for in a legislative act of the Union or is necessary to enable the Union to exercise its internal competence, or in so far as its conclusion may affect common rules or alter their scope. 48

For internal pre-emption see ECJ, Case 75/63 M.K.H. Hoekstra (nee Unger) v Bestuur der Bedrijfsvereniging voor Detailhandel en Ambachten, Judgment, 19 March 1964, EU:C:1964:19, para 2. For external pre-emption see ECJ, Case 22/70 Commission v Council (‘ERTA’), Judgment, 31 March 1971, EU:C:1971:32, para 17. Further on pre-emption, see Schütze 2006; Arena 2016. 49 ECJ, Case 22/70 Commission v Council (‘ERTA’), Judgment, 31 March 1971, EU:C:1971:32. 50 ECJ, Joined Cases 3, 4 and 6/76 Kramer, Judgment, 14 July 1976, EU:C:1976:114; ECJ, Opinion 1/76 Draft Agreement for Laying-Up Fund for Inland Waterway Vessels, Opinion, 26 April 1977, EU:C:1977:63; ECJ, Opinion 2/91 Convention No 170 of the International Labour Organization concerning safety in the use of chemicals at work, Opinion, 19 March 1993, EU:C:1993:106; ECJ, Opinion 1/94 TRIPS Agreement, Opinion, 15 November 1994, EU:C:1994:384; ECJ, Opinion 2/94 Accession by the Community to the European Convention for the Protection of Human Rights and Fundamental Freedoms, Opinion, 28 March 1996, EU:C:1996:140; ECJ, Case C-466/98 Commission v United Kingdom, Judgment, 5 November 2002, EU:C:2002:624. 51 The provisions were copied from the text of the Constitution for Europe. The Secretariat of the European Convention 2002, pp. 4, 15, 16. See also Cremona 2003.

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When the EU exercises its external powers under a specific competence, it makes use of various instruments, a central one being the international agreement. The procedure and the institutional involvement for concluding international agreements at the EU level were briefly sketched out in Sect. 3.3.1. An important clarification in that regard is that, occasionally, the EU concludes international agreements with third States alongside its Member States. From that perspective, there are two main types of agreements—‘EU only’ and ‘mixed’ agreements. With respect to the latter, the literature distinguishes between compulsory and facultative mixitiy.52 The former refers to agreements covering exclusive or exercised shared EU and reserved Member States’ competences and the latter refers to agreements falling under exclusive or shared (even non-exercised) competences.53 The facultative nature of the latter is expressed in the freedom of the Council to decide between the agreements being concluded as EU only or a mixed one.54

3.3.2.1

Common Fisheries Policy

In the EU Treaties, the CFP is based on two types of competences. First, the EU is vested with a shared competence in matters of “agriculture and fisheries that exclude the conservation of marine biological resources”.55 Second, the EU is vested with an exclusive competence with respect to “the conservation of marine biological resources” under the CFP.56 This competence categorisation has applied to the CFP since its inception. In the Kramer case, the CJEU, considering together Article 102 of the 1972 Act of Accession and the 1970s fisheries Regulations, found that the EU “has at its disposal, on the internal level, the power to take any measures for the conservation of the biological resources of the sea”.57 The CJEU reinforced this in the Commission v United Kingdom case58 by saying that with the expiration of Article 102 of the 1972 Act of Accession (1 January 1979) “the power to adopt, as part of the common fisheries policy, measures relating to the conservation of the resources of the sea has belonged fully and definitively to the [EU]”.59 Accordingly, with minor drafting changes (‘marine’ instead of ‘of the sea’), the exclusive powers of the EU in this area have remained the same since the 1970s.60

52

Gatti and Manzini 2012, p. 1711. Ibid. 54 Ibid. 55 TFEU, above n. 1, Article 4(2)(d). 56 Ibid., Article 3(1)(d). 57 ECJ, Joined Cases 3, 4 and 6/76 Kramer, Judgment, 14 July 1976, EU:C:1976:114, paras 30/33. 58 ECJ, Case 804/79 Commission v United Kingdom, Judgment, 5 May 1981, EU:C:1981:93. 59 Ibid., para 17. 60 Churchill and Owen 2010, p. 48. 53

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Fisheries conservation measures represent the bulk of the CFP. However, the CFP also very clearly includes measures of shared competence. Yet, one can occasionally find misleading statements equating the CFP to the scope of the EU’s exclusive fisheries competence.61 This issue of scope needs to be examined further in order to avoid confusion. Article 38 TFEU mandates that the EU defines and implements a CFP. The EU’s exclusive fisheries competence features in the TFEU as a specific area within the broader CFP, the rest of which is covered by the shared fisheries competence. The link with the CFP in Article 3(1)(d) TFEU also serves the purpose of limiting the scope of marine biological resources to the fisheries-related products referred to in the Fisheries and Agriculture Title and set out in Annex I to the Treaties. Accordingly, the CFP as a whole is an amalgamation of exclusive and shared competences providing for different involvement of the EU and the Member States, which is further discussed in Sect. 3.3.3. However, the boundaries of the two competences within this amalgamation are not always easy to draw.62 The Lisbon Treaty provisions do not elaborate on the meaning of “conservation of marine biological resources”, which is the dividing line between the two competences and, thus, needs to be further explored. While the text of the EU Treaties bases exclusive fisheries competence only on conservation of marine biological resources, the scope of conservation should not be understood narrowly to exclude fisheries management. To the contrary, on the basis of CJEU rulings and EU’s CFP legislation to be discussed below, it appears that conservation is used broadly to include management measures, similar to the understanding ascribed to conservation under international law.63 With respect to the latter, the title of Article 61 of the United Nations Convention on the Law of the Sea (UNCLOS) is “Conservation of the living resources”, yet the provision covers both conservation and management measures, narrowly understood. This broad understanding follows the broader approach of Article 2 of the 1958 High Seas Fishing Convention, under which ““conservation of the living resources of the high seas” means the aggregate of the measures rendering possible the optimum sustainable yield from those resources so as to secure a maximum supply of food and other marine products”. In the Kramer case, the CJEU held that measures for the conservation of the biological resources of the sea “include the fixing of catch quotas and their allocation between the different Member States”.64 The CJEU also found in the Commission v United Kingdom case that, with respect to the equal access principle, the Council alone, and not the Member States on their own, has the power to determine the

61

Such statements can be found inter alia in Commission’s legislative proposals under the CFP where subsidiarity is discussed. E.g. European Commission 2015b, p. 3 stating about subsidiarity: “Not relevant here because fisheries policy is exclusive EU competence”. 62 Markus 2009, p. 36. 63 Churchill and Owen 2010, p. 130. 64 ECJ, Joined Cases 3, 4 and 6/76 Kramer, Judgment, 14 July 1976, EU:C:1976:114.

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detailed conditions of such access.65 This broader understanding of conservation is further reflected in the 2013 Basic Regulation, the main CFP instrument, which gives a long but non-exhaustive list of conservation measures in its Article 7 that is very broad and goes beyond a narrow understanding of conservation. The 2013 Basic Regulation itself rests on both shared and exclusive internal competences. The 2013 Basic Regulation was the first CFP Basic Regulation to include the external CFP and unify the overall regulatory framework of the internal and external dimensions. The 2013 Basic Regulation sets out the rules under which the external CFP action must be conducted and reference is made to them throughout the book. It must be noted that these rules relate only to the external CFP action and not to the external action under other policies in the area of fisheries. According to the proposal of the 2013 Basic Regulation, the provisions under the shared competence relate to the Common Market Organisation and to “aquaculture and the need for the establishment of Union strategic guidelines on common priorities and targets for the development of aquaculture activities”.66 These provisions correspond to Article 1(1)(b) of the 2013 Basic Regulation, which sets out the scope of the CFP. This leaves Article 1(1)(a) of the Basic Regulation, which relates to “the conservation of marine biological resources and the management of fisheries and fleets exploiting such resources” to be covered by the EU’s exclusive CFP competence. Furthermore, throughout the 2013 Basic Regulation, ‘conservation and management’ are often referred together, giving the impression that indeed the term ‘conservation’ in Article 3(1)(d) TFEU mirrors the broader understanding of the term under international law. Further evidence of that can be drawn from the many and diverse instruments for which the EU has relied completely on its exclusive fisheries competence.67 Accordingly, as already stated, the predominance of the CFP action is under its exclusive competence. The CFP measures discussed in this book fall under this exclusive CFP action, unless otherwise indicated. In practice, the competence division between shared and exclusive competences within the CFP does not create many problems due to the rule of pre-emption. The EU has acted to a great extent also within its shared CFP 65

ECJ, Case 804/79 Commission v United Kingdom, Judgment, 5 May 1981, EU:C:1981:93, para 29. 66 European Commission 2011c, p. 5. 67 Examples are the proposals for the IUU fishing Regulation (European Commission 2007b, p. 7), Regulations on fixing fishing opportunities for EU vessels (e.g. European Commission 2008b, p. 5), Regulations on the allocation of fishing opportunities under bilateral fisheries agreements (e.g. European Commission 2016b, p. 2), Regulations establishing management plans for stocks (e.g. European Commission 2012, p. 6), the Control Regulation (European Commission 2008a, p. 8; European Commission 2013a, p. 2), the technical measures Regulation (European Commission 2016c, p. 7), the Regulation on a framework for data collection (European Commission 2015b, p. 3), the Regulation on the landing obligation (European Commission 2013b, p. 5), the Regulation on the external fishing fleets (European Commission 2015c, p. 3), the Regulation on vulnerable marine ecosystems (European Commission 2007c, p. 6), the Regulation prohibiting driftnet fisheries (European Commission 2014, p. 4), the Regulation prohibiting shark finning (European Commission 2011a, p. 2), and the Regulation on non-sustainable fishing third countries (European Commission 2011d, p. 3).

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competence. Thus, the Member States are pre-empted from adopting measures in the areas covered by those acts. Nevertheless, in some instances the EU may delegate certain powers back to the Member States, even under its exclusive CFP competence, allowing them to take unilateral fisheries conservation measures.68 The most important aspect of the CFP competence for the present discussion is the EU’s ability to act externally. This ability is closely connected to the fact that global and European fisheries are interconnected both biologically and politically.69 International developments had a considerable impact on the CFP’s creation and organisation.70 The Commission’s views in the 1970s concerning the future CFP involved both the external and the internal dimensions.71 The Member States agreed with this approach and the external dimension of the CFP was made part of the foundations of the CFP since its inception.72 Geographically, the CFP is set to cover activities carried out on Member States’ territories to which the Treaties apply, in EU waters, including foreign vessels, outside EU waters by EU vessels or Member States’ nationals.73 Such geographical clarification and explicit inclusion of the extraEU waters was lacking in the previous Basic Regulations. This is because hitherto the external CFP policy developed much like a stand-alone policy.74 It was not until the 2013 reform that the external and the internal dimensions were brought together and subjected to common principles. The Basic Regulation explicitly states that “coherence between the internal and external dimension of the CFP” shall be one of the guiding good governance principles.75 Under the Treaties, the EU does not yet have express treaty-making powers in the area of fisheries conservation and management.76 Instead, the EU must rely on the implied powers doctrine, discussed above. In the case of fisheries, there is no doubt that the implied powers criteria under Article 216 TFEU is fulfilled, as acting externally is necessary for achieving the fisheries-related objectives laid down in the Treaties. Even more, it can be argued that even the narrower criteria of Article 3(2) TFEU are met because of the need to conclude international agreements in order to allow the EU to exercise a big part of its CFP competence.77 As early as the 1970s the CJEU held in the Kramer case that 68

European Parliament and Council 2013, Articles 19–20. Long and Curran 2000, p. 27. 70 Churchill and Owen 2010, pp. 6–11. 71 See European Commission 1976. The Commission kept in mind international aspects from the very inception of the plans to create a CFP. See European Commission 1966. 72 Lado 2016, p. 144. 73 European Parliament and Council 2013, Article 1(2). 74 Lado 2016, pp. 145–146. 75 European Parliament and Council 2013, Article 3(j). 76 The EU has express competence with respect to trade in fishery products under the CCP but this goes beyond the present discussion. Furthermore, a theoretical discussion could be had on whether the express powers under the environmental competence can be used here. However, this has never happened in practice with respect to fisheries conservation and management-focused agreements and as such will not be addressed here. See Churchill and Owen 2010, p. 304. 77 Eeckhout 2011, p. 78. 69

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3 The EU Area of Fisheries and Normative Power Europe [i]t follows from the very duties and powers which Community law has established and assigned to the institutions of the Community on the internal level that the Community has authority to enter into international commitments for the conservation of the resources of the sea. […] The only way to ensure the conservation of the biological resources of the sea both effectively and equitably is through a system of rules binding on all the States concerned, including non-member countries.78

Accordingly, the EU has the competence to act externally under the CFP. However, the extent of the exclusivity of that external competence is not always clear in practice, as it appears in theory.79 In particular, up until the mid-1990s it was widely considered that the EU had exclusive treaty-making powers in the area of fisheries with respect to matters on which ‘common rules’ had been adopted in accordance with the ERTA line of cases.80 However, in the context of the EU’s participation in the UNCLOS, the United Nations Fish Stocks Agreement (UNFSA), and the FAO Compliance Agreement this view was challenged by some Member States, arguing that the scope of exclusivity needs to be narrowed.81 With respect to the Compliance Agreement, it was the initial focus on providing conditions for granting nationality to fishing vessels that was the basis for arguing for Member States involvement.82 That matter was eventually dropped from the agreement and it was concluded only by the EU, without mixity. The UNCLOS and the UNFSA, however, were eventually concluded as mixed agreements and were accompanied by declarations of competence,83 reflecting the view that with respect to fisheries they cover matters which were still within the competence of the Member States. While mixity can be expected for the UNCLOS, which covers a vast area of issues beyond fisheries, mixity with respect to the UNFSA is much harder to defend due to its focus on fisheries conservation and management. Issues that have been claimed by the Member States to involve their competence such as exercise of jurisdiction by the vessel’s flag State form part of RFMO rules to which it is only the EU that is a party without the Member States.84 This treaty-making practice, including the text of the declarations, however, provides little guidance with respect to the actual scope of the EU’s exclusive competence. This is because that practice conforms neither to the EU’s earlier nor subsequent international action.85 Declarations of competence have been analysed in the literature and the conclusion is that in practice they are not really a useful tool for determining competence delimitation.86

78

ECJ, Joined Cases 3, 4 and 6/76 Kramer, Judgment, 14 July 1976, EU:C:1976:114, paras 30/33. Churchill and Owen 2010, pp. 306, 310. 80 Ibid., p. 306. 81 Ibid., p. 307. 82 AG Jacobs, Case C-25/94 Commission v Council, Opinion, 26 October 1995, EU:C:1995:350, paras 17 and 68. 83 United Nations 2004, pp. 268, 301. 84 Churchill and Owen 2010, pp. 310–312. 85 Ibid. 86 Casteleiro 2012. 79

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This conflicting practice casts doubt over the precise competence delimitation. However, that practice may probably be better explained with political bargaining and interests of some Member States not to be completely overshadowed by the EU at the international plane than with results of rigorous legal analysis and changes in the actual scope of the EU’s competence. Such behaviour by the Member States leads to situations where mixed agreements have been (ab)used even where the agreement in question is predominantly covered by an exclusive EU competence or where the EU has indeed legislated under a shared competence.87 In practice the Member States are able to insist on mixity in certain cases because they have the last word on the conclusion of an agreement when sitting in the Council. While situations of such (ab)uses of mixity are rare, they can affect the EU’s overall ability to act coherently on the international plane and hence its normativity as evidenced in the following chapters. Nevertheless, overall, the EU’s external CFP competence is firmly established.

3.3.2.2

Environmental Policy

The environmental policy falls under the EU’s shared competences.88 Three of the four environmental policy objectives listed in Article 191 TFEU concern fisheries governance. First, “preserving, protecting and improving the quality of the environment” necessarily includes the marine environment. It has been recognised at the international level that protection of the marine environment includes, next to pollution control, the conservation of marine biological diversity.89 With the Lisbon Treaty, this has gained more recognition in the EU as well. As it was observed by Advocate General (AG) Kokott in the Antarctic Fisheries cases the common fisheries policy is certainly not the only conceivable point of reference for EU measures for the conservation of marine biological resources. Historically, the common fisheries policy was often the sedes materiae for conservation measures to be taken at European level. Nevertheless, it is apparent from Article 3(1)(d) TFEU that the Treaties now expressly distinguish between measures for the conservation of marine biological resources taken under the common fisheries policy and measures for the conservation of marine biological resources taken under other Union policies.90

Second, “prudent and rational utilisation of natural resources” covers both living and non-living natural resources on land as well as in the water. Thus, living natural resources in the ocean, essentially marine biological resources, are covered by this objective. These two objectives, thus, overlap with the objective of conservation of 87

Chalmers et al. 2010, p. 650; Weiler 1999, p. 177. TFEU, above n. 1, Article 4(2)(e). 89 PCA, Chagos Marine Protected Area Arbitration (Mauritius v the UK), Award, 18 March 2015, Case No 2011-03, para 320, PCA, In the Matter of the South China Sea Arbitration (Philippines v China), Award, 12 July 2016, Case No 2013-19, para 945. 90 AG Kokott, Joined Cases C-626/15 and C-659/16 Commission v Council, Opinion, 31 May 2018, EU:C:2018:362, para 73. 88

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marine biological resources under the exclusive CFP competence. Generally, the more specific provisions of the exclusive CFP would take precedence. However, as shown in the discussion of the Antarctic fisheries cases in Chap. 5, where measures go beyond regulating fisheries matters and affect environmental objectives more broadly, they fall under the shared environmental competence. Third, “promoting measures at international level to deal with regional or worldwide environmental problems, and in particular combating climate change” concerns fisheries through the major transboundary marine problems affecting various stocks. Furthermore, under Article 191(2) TFEU the environmental policy is to be based on several principles including the prevention and the precautionary principles. These principles also have a strong bearing in various aspects of fisheries governance such as regulation of fishing gear and setting fishing quotas. Under Article 11 TFEU, environmental protection also interacts with all EU policies and activities including the CFP at the horizontal level. According to it, “environmental protection requirements must be integrated into the definition and implementation of the Union’s policies and activities, in particular with a view to promoting sustainable development”. Thus, environmental policy can play an important role in furthering EU’s action in the area of fisheries. The EU can also act externally in the area of environment. Under Article 191(4) TFEU, the EU and the Member States can cooperate internationally within their spheres of competence and the modalities of the EU cooperation may be set out in international agreements.91 This EU external competence is without prejudice to the Member States’ competence in the area of environment.92 The scope of the express external environmental power of the EU under Article 191(4) TFEU was severely limited by the CJEU.93 This led to using Article 192 TFEU as the default provision for external environmental agreements in conjunction with the EU’s implied powers. Article 193 TFEU states that measures adopted under Article 192 TFEU provide minimum standards allowing the Member States to maintain higher environmental protections as long as the Commission is notified and the Treaties are observed. Such minimum standards, however, imply non-exclusive EU powers.94 Accordingly, while there is a substantive overlap of objectives between the environmental policy and the CFP, which could produce more comprehensive and effective action, the EU’s powers of action under the competences differ substantially. Under the environmental policy the EU does not enjoy the same exclusive autonomy of action, as it does under one part of the CFP. This variation in the powers under the two competences has attracted vigorous litigation between the Commission and the Council, as with the Antarctic Fisheries cases.95 With these cases the CJEU ruled that the EU does not enjoy strong autonomy of action to the exclusion of the 91

TFEU, above n. 1, Article 191(4). Ibid. 93 ECJ, Opinion 2/00 Cartagena Protocol, Opinion, 6 December 2001, EU:C:2001:664, para 43. 94 De Baere 2014, p. 741. 95 ECJ, Joined Cases C-626/15 and C-659/16 Commission v Council, Judgment, 20 November 2018, EU:C:2018:925. 92

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Member States, under the environmental policy due to its shared nature. In particular, the CJEU condoned the use of the so-called facultative mixity96 (involvement of Member States out of a political choice rather than a legal necessity).97 Such mixity has the potential to erode the EU’s external powers by bringing confusion to the EU’s partners as to the matters it can decide on alone, which requires such use to be closely scrutinised.98 The Antarctic Fisheries cases are further discussed in Chap. 5. At this juncture it needs to be said that the Treaties do provide the EU with the necessary powers to act externally under its environmental policy to complement its efforts under the CFP. The way these powers are used in practice, however, falls to be discussed in the following chapters as it reflects on the overall EU normativity.

3.3.2.3

Common Commercial Policy

The CCP is an exclusive EU competence and is also one of the wholly external policies.99 One of the main aspects of the CCP is the conclusion of various international tariff and trade agreements with one or more third countries or international organisations.100 Hence, the EU is explicitly given a treaty making competence. The procedure for negotiating and concluding such agreements is governed mainly by Article 218 TFEU, subject to the special provisions of Article 207 TFEU. Depending on the subject matter of the agreements, they require qualified majority or unanimity in the Council, giving the Member States different degrees of control.101 The CCP is also used for the adoption of trade restrictive measures against third States. The CCP is increasingly becoming an important tool of EU action in the area of fisheries. The CCP’s original interaction with fisheries through regulating the imports and exports of fish and fisheries products through the EU’s trade agreements has become just one part of the trade dimension of fisheries. In particular, in its modern trade agreements, the EU has transformed its past practice of occasionally including a short and very general provision on future fisheries cooperation into having a set of detailed provisions on sustainable fisheries102 that, according to the CJEU in the Singapore FTA case,103 even imply trade conditionality due to their importance for the overall trade agreement. Although these provisions develop the EU’s relationship with its partners in cooperating towards sustainable fisheries and have strong CFP background, the CJEU has ruled that they still form part of the CCP 96

On facultative mixity, see Eckes 2019, pp. 170–173. For a more detailed discussion, see Chamon and Govaere 2020. 97 Eckes (2018) Antarctica: Has the Court of Justice got cold feet? https://europeanlawblog.eu/ 2018/12/03/antarctica-has-the-court-of-justice-got-cold-feet/. Accessed 2 August 2022. 98 Eckes 2019, p. 171. 99 TFEU, above n. 1, Article 3(1)(e). 100 Ibid., Article 207(1). 101 Ibid., Article 207(4). 102 Vatsov 2019. 103 ECJ, Opinion 2/15 Singapore Free Trade Agreement, Opinion, 16 May 2017, EU:C:2017:376.

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competence due to the central place that sustainable development occupies in the post-Lisbon CCP Treaty provisions.104 Unlike the competence struggles between the exclusive CFP and the shared environmental policy, the legal consequences with respect to the overall power of the EU to act are the same since both the CCP and the CFP powers in question are exclusive. There are, naturally, internal legal consequences relating to legal bases and the respective procedural and institutional involvement as well as differences in the objectives and dynamics between the CCP and CFP. However, these matters do not affect the existence of the EU’s power to act externally and need not be discussed further here. The Singapore FTA case and the consequences of the competence choice for the EU’s normativity are further discussed in Chap. 6. The CCP is also used to adopt trade restrictive measures against third States that are not respecting relevant internationally agreed fisheries measures or are considered by the EU to be fishing unsustainably, which are also discussed in detail in Chap. 6. Accordingly, the EU has the competence to address fisheries matters through their trade dimension and is increasingly making use of it.

3.3.2.4

Development Cooperation Policy

While Article 4 TFEU sets out the various shared competences, it also provides for two variations to the usual shared competences. One of them refers to development cooperation and humanitarian aid. There, the EU can carry out activities and conduct a common policy but without preventing the Member States from exercising their competence. This is reiterated in Article 209(2) TFEU, which sets out explicitly the EU’s treaty-making competence in development cooperation, stating that this competence is “without prejudice to Member States’ competence to negotiate in international bodies and to conclude agreements”. These provisions mean that the EU’s and the Member States’ development cooperation actions can develop side by side, as recognised by the CJEU in the 1990s.105 Article 208 TFEU further emphasises this by stating that the EU’s “development cooperation policy and that of the Member States shall complement and reinforce each other”. In order to achieve this complementarity, the EU and the Member States have to coordinate their policies and consult each other on aid programmes.106 Just as the CCP, the DCP is a completely external policy leaving no doubt as to the EU’s competence to act externally. However, the shared nature of the underlying competence brings with it the complication of accommodating the involvement of the Member States at the international level as well. For example, Article 208(2) TFEU gives a special status to commitments and objectives approved by the Member States in the context of the UN and competent international organisations. Undoubtedly, the UN Sustainable Development Goals (SDGs) are covered by this provision and 104

Ibid., para 147. ECJ, Case C-316/91 Parliament v Council, Judgment, 2 March 1994, EU:C:1994:76, para 26. 106 TFEU, above n. 1, Article 210. 105

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specifically SDG 14 on life below water, which addresses inter alia fisheries issues.107 Furthermore, Article 211 TFEU once again highlights the reserved Member States’ competence, allowing them to cooperate internationally next to the EU with third countries and competent international organisations. This means that in relevant fora that are open only to States when the Member States make their own certain commitments and approve certain objectives in the area of development cooperation the EU’s powers may be somewhat limited. In practice, however, even where commitments are formally made by the Member States, as with the SDGs, which were formally adopted with an United Nations General Assembly (UNGA) Resolution by the UNGA members (EU only being an observer at the UNGA), the EU plays an active role during the negotiations.108 Participation limitations can nevertheless affect the EU’s normativity and they are addressed in Chap. 4. The organisational position of the DCP in the TFEU can be seen as enhancing the coherence with other relevant EU policies and thus strengthening the effectiveness of the policy.109 Article 208 TFEU clarifies this positioning by mandating that the DCP is “conducted within the framework of the principles and objectives of the Union’s external action”. Article 208 TFEU also requires the EU to “take account of the objectives of development cooperation in the policies that it implements which are likely to affect developing countries”. The late-1990s action relating to environmental protection and sustainable development, quite naturally, had a bearing on the EU’s development cooperation policies. The Commission recognised early-on that a systematic promotion of sustainable development requires coherence between development cooperation and other relevant policies, of which trade and fisheries were particularly important.110 The Council went in similar fashion when it stated that “[t]he Community’s action within Regional Fisheries Organisations (RFOs) and third countries’ agreements as well as the Community’s development policy should be consistent with the fishery policies and regulations applicable in Community waters under the CFP”.111 The extent to which the EU has used its powers coherently and consistently is an integral part of the analysis in the following chapters.

3.3.2.5

Social Policy

Under Article 4(2)(b) TFEU, the EU has a shared competence in “social policy, for the aspects defined in this Treaty”. The qualification of the policy is an express indication that the EU is ab initio restricted in this area and that social policy is primarily a responsibility of the Member States. This can be seen from the opening 107

UN General Assembly 2015. Kettunen et al. 2018, p. 6. 109 Broberg 2011, p. 546. 110 European Commission 1999a, p. 3; b, p. 12; 2001a, p. 18. In 2001 the Commission saw as one of the objectives of the future CFP to be developing fisheries partnerships with third countries “in a manner coherent with the Community development policy”. European Commission 2001b, p. 21. 111 Council 2001, para 24. 108

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provision in the Title on social policy in the TFEU. In particular, Article 151 TFEU states that it is the EU and the Member States together that have the objectives of promoting employment, improving working and living conditions, equal treatment of workers, proper social protection, social dialogue, developing human resources aimed at achieving lasting high employment, and combating exclusion. Article 153 TFEU further states that in achieving these objectives the EU shall support and complement the activities of the Member States in a number of fields. Under Article 152 TFEU the role of the social partners is recognised and promoted at the EU level and the EU must facilitate the dialogue between them. The EU uses its social policy competence to support its fisheries actions by working to ensure the welfare of fishermen. Internationally, the EU does that mainly through being active at the International Labour Organization (ILO) (albeit without being a member) and then internally by implementing the resulting international commitments through cooperating with the social partners (management and labour) and adopting necessary secondary acts of minimum harmonisation or otherwise encouraging cooperation between the Member States in accordance with Article 153(2) TFEU. Chapter 4 discusses the normativity challenges arising due to the lack of ILO membership. The secondary role of the EU in social policy is also reflected by the rather limited scope of internal action—minimum harmonisation being the most it can do. This limitation also mitigates the strength of the principle of pre-emption, which applies in shared competences.112 Nevertheless, the EU is still afforded enough powers to influence the welfare of fishermen. Additionally, similar to the environmental policy, there is a horizontal provision requiring the EU to take into account social policy requirements in defining and implementing its policies and activities.113 Furthermore, while the EU lacks express external powers to act in the social policy, it has powers to act externally on the basis of the abovementioned implied powers doctrine.114

3.3.2.6

Common Transport Policy

In accordance with Article 4(2)(g) TFEU, the CTP is also a shared EU competence. The CTP does not have a separate policy-specific list of objectives. Instead, under Article 90 TFEU “[t]he objectives of the Treaties shall, in matters governed by this Title, be pursued within the framework of a [CTP]”. In implementing Article 90 TFEU the EU is given the power to lay down common rules on international transport going in or out of the Member States, operational conditions for non-resident carriers, transport safety measures and any other appropriate provisions.115 As such the EU is given very broad powers to lay down common rules, which also makes the rule 112

Garben and Govaere 2017, p. 9. TFEU, above n. 1, Article 9. 114 ECJ, Opinion 2/91 Convention No 170 of the International Labour Organization concerning safety in the use of chemicals at work, Opinion, 19 March 1993, EU:C:1993:106. 115 TFEU, above n. 1, Article 91. 113

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of pre-emption very strong once the EU has acted, excluding the Member States. According to Article 100 TFEU, the CTP is mainly a land-based policy. However, it also allows the EU to lay down appropriate provisions for sea transport. The EU uses its CTP competence to support its fisheries actions by working to ensure the safety and security of fishermen on board fishing vessels. Internationally, the EU does that mainly though being active in the IMO (where it is also not a member, further discussed in Chap. 4) and then internally by implementing the resulting international commitments through adopting necessary secondary acts. Similar to the social policy, the EU does not have express external powers to act in the CTP. However, again, the EU does have powers to act externally on the basis of the implied powers doctrine.116 Accordingly, the EU enjoys strong powers under the CTP to ensure fishermen’s safety and security at sea. Chapter 4 explores the way the EU operationalises these powers from the viewpoint of normativity in the face of the relevant IMO participation limitations to exercising its external competence and the shared nature of that competence, similar to the social policy limitations.

3.3.3 Capacity to Act Internationally in the Area of Fisheries An overlap of competence and capacity to act is needed for the EU to freely act externally in the area of fisheries. As indicated above, capacity is understood here as the ability to act on the international plane in accordance with international law, while competence deals with the EU’s ability to act in accordance with EU law. The EU’s international legal personality is unequivocally declared in Article 47 of the Treaty on European Union (TEU). However, that legal personality is still of an international organisation and as such limited under international law. This limitation prevents the EU from directly participating in certain important international organisations or treaties that shape international fisheries governance. In the 1970s the EU encountered serious problems with being recognised as a negotiating partner in the area of fisheries, especially by the former Soviet Union and its satellite States.117 However, the EU managed to slowly assert its place. When the UNCLOS negotiations began in 1973, the EU was given an observer status only and, through the medium of its Member States, managed to participate in the negotiations and to secure the first ‘EU clause’ in a global international instrument.118 Article 305(f) UNCLOS allowed international organisations to become contracting parties to the UNCLOS in accordance with Annex IX UNCLOS. Many years later, in the 1990s the EU participated in its own name in the UNFSA negotiations. Similar to the UNCLOS, the

116

ECJ, Opinion 1/76 Draft Agreement for Laying-Up Fund for Inland Waterway Vessels, Opinion, 26 April 1977, EU:C:1977:63. 117 Lado 2016, p. 152. See also Maslen 1989, pp. 85–92. 118 United Nations Convention on the Law of the Sea, opened for signature 10 December 1982, 1833 UNTS 397, entered into force 16 November 1994, Article 305(f); Paasivirta 2015, pp. 1047–1048.

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UNFSA also features a clause allowing for the EU’s participation.119 The EU also faced participation limitations in the RFMOs on account of its non-State personality. However, the EU managed to negotiate the inclusion of a clause similar to the ones in the UNCLOS and the UNFSA in the membership rules of the pre-existing and the newly-forming RFMOs.120 The EU was also only allowed to join the FAO in 1991 after an amendment of FAO’s constitutive instrument.121 The EU is also a member of the World Trade Organization (WTO). The EU has also been fully recognised as a partner in concluding treaties such as the fisheries access agreements discussed in Chap. 7. Participation limitations still stand, however, with respect to fora, such as the IMO, ILO, and the UN, where the EU is not allowed to be a member but is gradually given increased participation rights short of membership. Notwithstanding these outstanding participation limitations, which are further discussed in Chap. 4, the EU has managed to assert its capacity on the international plane in the area of fisheries. Accordingly, there is largely an overlap of capacity and competence, allowing the EU to act in the area of fisheries. The following chapters examine how the institutional framework and the overlap of capacity and competence are operationalised to provide normativity to the EU’s actions.

3.4 Is the EU Required to Act Normatively in the Area of Fisheries? This section establishes the legal requirements mandating the EU to act normatively. This is not a straightforward legal analysis because there is no legal provision in the Treaties or elsewhere mandating that “the EU shall be a normative power” or “the EU shall act normatively”. Thus, in order to make that assessment, this section unpacks the NPE concept and focuses on its constituent elements, as set out in Chap. 2. In particular, this section looks at the legal provisions governing the EU’s external conduct in the area of fisheries and examines whether they correspond to the NPE’s elements and, when those legal provisions are read together, whether the EU is indeed required to act normatively in the area of fisheries. Accordingly, this section analyses whether the EU’s legal mandate in the area of fisheries is to act normatively. The three main conceptual elements are universality, use of instruments, and legitimacy.

119

The United Nations Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, opened for signature 4 August 1995, 2167 UNTS 3, entered into force 11 December 2001, Article 39. 120 With respect to the older RFMOs—NAFO and its predecessor ICNAF. With respect to the more recent RFMOs—SPRFMO. 121 FAO 1991a, b, paras 376–370.

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3.4.1 Universality Manners states that the EU as a normative power “promotes a series of normative principles that are generally acknowledged, within the United Nations system, to be universally applicable”.122 In the area of fisheries such normative principles relate to ensuring sustainable fishing through fighting unsustainable practices. Starting points in that regard are the Treaty provisions on sustainable development, of which sustainable fishing forms part, as shown in SDG 14 on conserving and sustainably using the oceans, seas and marine resources for sustainable development.123 Article 3 TEU requires the EU to “work for the sustainable development of Europe” and in its external relations the EU is required to “contribute to […] the sustainable development of the Earth”. Under Article 21(2)(d) and (f) TEU, the EU is required to define and pursue common policies and actions in order to “foster the sustainable economic, social and environmental development of developing countries, with the primary aim of eradicating poverty” and “help develop international measures to preserve and improve the quality of the environment and the sustainable management of global natural resources, in order to ensure sustainable development”. Furthermore, Article 11 TFEU requires that “[e]nvironmental protection requirements must be integrated into the definition and implementation of the Union’s policies and activities, in particular with a view to promoting sustainable development”. In compliance with these Treaty provisions, the EU legislators further developed them at the CFP level. In particular, the 2013 Basic Regulation sets as an objective that the CFP shall ensure that fishing and aquaculture activities are environmentally sustainable in the long-term and are managed in a way that is consistent with the objectives of achieving economic, social and employment benefits, and of contributing to the availability of food supplies.124

This is mirrored in the provisions on the objectives of the external CFP. Under Article 28 of the Basic Regulation, the EU shall “contribute to sustainable fishing activities that are economically viable and promote employment within the Union” as well as “promote and support, in all international spheres, action necessary to eradicate IUU-fishing”. The EU is also required in Article 29 of the Basic Regulation to “actively support and contribute to the activities of international organisations dealing with fisheries, including RFMOs”. All these provisions are directed towards the EU as a whole and not towards a specific institution. This can be explained by the fact that, although the Commission plays a leading role in implementing the external policy, other EU bodies are also importantly involved. For example, the Council and the European Parliament are involved, as already explained above, in the conclusion of international agreements, which are a central instrument for conducting the external CFP. Internationally, the 122

Manners 2008, pp. 46, 60. UN General Assembly 2015. 124 European Parliament and Council 2013, Article 2(1). 123

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EU has made commitments along the same universality lines. For example, Principle 12 of the Rio Declaration, which the EU has strongly supported, confirms that “environment measures addressing transboundary or global environmental problems should, as far as possible, be based on international consensus”. This commitment is relevant to EU’s fisheries actions with environmental dimensions. These provisions are just a collection of examples of universal or universalizable principles and norms the EU is required to observe and act upon in the area of fisheries. The universality element is further supported by the CJEU’s pronouncement in the Kramer case that “[t]he only way to ensure the conservation of the biological resources of the sea both effectively and equitably is through a system of rules binding on all the States concerned, including non-member countries”.125 The system of rules to which the CJEU refers is effectively one of universality. Thus, the EU is required to observe the universality element in its area of fisheries conduct.

3.4.2 Use of Instruments While the use of instruments element allows for coercive measures, they must be taken in limited circumstances and should be secondary to bilateral and multilateral negotiated solutions. Article 21(1) TEU requires the EU to seek to develop relations and build partnerships with third countries, and international, regional or global organisations which share the principles referred to in the first subparagraph. It shall promote multilateral solutions to common problems, in particular in the framework of the United Nations.

Furthermore, Article 22(2)(h) TEU mandates that the EU shall define and pursue common policies and actions, and shall work for a high degree of cooperation in all fields of international relations, in order to […] promote an international system based on stronger multilateral cooperation and good global governance.

Shortly after the signing of the Lisbon Treaty, the European Council issued an EU Declaration on Globalisation, stating that the EU aims at shaping globalisation and in doing that it “must engage [its] international partners in enhanced strategic cooperation and work together within stronger multilateral organisations”.126 Similarly, the EU’s priorities at the 70th UNGA open by stating that “[t]he EU’s commitment to multilateralism stems from its values and beliefs as enshrined in its treaty”.127 This emphasis on multilateralism is also present in the 2013 Basic Regulation. One example is the requirement in Article 29(1) to “actively support and contribute to the activities of international organisations dealing with fisheries, including RFMOs”. Another example is Article 33(1) of the Basic Regulation on management of common interest stocks, where the EU is required to “engage with [third countries exploiting 125

ECJ, Joined Cases 3, 4 and 6/76 Kramer, Judgment, 14 July 1976, EU:C:1976:114, paras 30/33. European Council 2007, Annex, p. 25. 127 Council 2015, p. 2. 126

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stocks of common interest] with a view to ensuring that those stocks are managed in a sustainable manner that is consistent [and w]here no formal agreement is reached, the Union shall make every effort to reach common arrangements for fishing of such stocks with a view to making the sustainable management possible”. Article 33(2) of the Basic Regulation continues by requiring the EU, with respect to shared stocks, to, “in accordance with UNCLOS, endeavour to establish bilateral or multilateral agreements with third countries for the joint management of stocks”. These fisheriesspecific provisions confirm the CJEU’s pronouncement in the Kramer case on the special need for multilateralism in that area. The EU has of course reserved the right to adopt coercive measures in cases of ‘non-cooperating’ States. Such determination implies that cooperation and multilateralism is primary to coercive action, further showing that the EU is required to observe also the second element of normativity.

3.4.3 Legitimacy The element of legitimacy is composed of three sub-elements—legality, interest, and coherence and consistency. The analysis in the following chapters generally follows this order of the sub-elements, unless a different order serves for better flow of the analysis.

3.4.3.1

Legality

Under Article 2 TEU, the EU is founded on inter alia the value of rule of law.128 It is a principle that strongly applies inter alia to the EU’s external action.129 Similarly, under Article 21 TEU the EU’s international action shall be guided inter alia the rule of law and the EU shall “define and pursue common policies and actions, in order to […] consolidate and support […] the rule of law”. This commitment to observing the law is also reflected in the 2013 Basic Regulation. Under its Article 28 the EU “shall conduct its external fisheries relations in accordance with [inter alia] its international obligations”. The preamble of the 2013 Basic Regulation elaborates further that the CFP should contribute to the implementation of the EU’s international obligations under agreements laying down conservation obligations such as the UNCLOS, UNFSA, and the Compliance Agreement.130 It also states that the Member States should also observe the obligations in those agreements where they 128

ECJ, Case 294/83 Les Verts v Parliament, Judgment, 23 April 1986, EU:C:1986:166, para 23; ECJ, Opinion 1/91 Draft agreement between the Community, on the one hand, and the countries of the European Free Trade Association, on the other, relating to the creation of the European Economic Area, Opinion, 14 December 1991, EU:C:1991:490, para 21. 129 Vianello 2018. 130 European Parliament and Council 2013, recital 6.

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have been empowered to adopt conservation and management measures within the CFP framework.131 Thus, it can be easily concluded that the EU is required to observe the legality sub-element.

3.4.3.2

Interests

This sub-element requires a focus on common and long-term interests as opposed to domestic and immediate interests. In order to do so, a power, such as the EU needs to have its own distinct interests, which should then be aligned with the common and long-term interests of the international community, to the extent they are identifiable. According to primary EU law, the EU indeed possesses such distinct interests.132 Primary EU law contains a truly colourful palette of qualifications of interests that in one way or another express a supranational pooling of Member States’ interests within the EU.133 In the process of that pooling of interests, individual Member States’ interests are elevated to a higher level and possibly transformed in the process. Primary EU law says very little about how and by whom these interests are actually identified. It only specifies that the strategic interests of the Union are identified by the European Council on the basis of the principles and objectives set out in Article 21 TEU.134 This shows again the dual (EU and Member States) origin of EU interests. On the one hand, it is an EU institution composed mainly of Member States’ representatives that decides. On the other hand, that decision is ab initio limited as it must be based on already stated principles and objectives. This limitation also shows the close link between interests and principles and objectives in EU law. This is important because the EU’s principles and objectives themselves contain language from which EU interests can be deduced as well. As already observed with respect to universality, the EU is required to “contribute to […] the sustainable development of the Earth”,135 to define and pursue common policies and actions in order to “foster the sustainable economic, social and environmental development of developing countries, with the primary aim of eradicating poverty” and “help develop international measures to preserve and improve the quality of the environment and the sustainable management of global natural 131

Ibid. TEU, above n. 9, Articles 3(5), 13(1), 17(1), 20, 22(1), 24(3), 26(1), 32, 34(2) and 42(5); TFEU, above n. 1, Articles 85(1), 86(1)–(2), 106(2), 107(3)(b), Protocol (No 5) on the Statute of the European Investment Bank, Article 18(1), Protocol (No 7) on the Privileges and Immunities of the European Union, Article 17, Protocol (No 22) on the Position of Denmark, preamble. See also European Commission 2007a, p. 2. 133 In various places primary EU law talks about Union interest, best interest of the Union, general interest of the Union, fundamental interest of the Union, strategic interest of the Union, financial interest of the Union, matters of particular interest for economic and monetary union, common European interest (for projects), mutual interest (for projects with third States), common interest and general interest (without specifying it is of the Union). 134 TEU, above n. 9, Article 22(1). 135 Ibid., Article 3(5). 132

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resources, in order to ensure sustainable development”.136 In the CFP context, Article 2(1) of the 2013 Basic Regulation states that “[t]he CFP shall ensure that fishing and aquaculture activities are environmentally sustainable in the long-term”. Article 3 of the same Regulation further states that one of the good governance principles to guide the CFP is “a long-term perspective”. In the same spirit is the objective of combating climate change, even if included only in the environment-specific Article 193 TFEU. Similarly, Article 1 of the Marine Strategy Framework Directive requires the Member States to develop and implement marine strategies that ensure inter alia “that the capacity of marine ecosystems to respond to human-induced changes is not compromised, while enabling the sustainable use of marine goods and services by present and future generations”. This focus on future generations with respect to the sustainable use of marine goods and services, which surely includes fisheries, also shows the long-term orientation of the EU’s interests in the area of fisheries. From these general and specific objectives one can deduce that the EU has a set of long-term interests that span well beyond the EU boundaries that need be promoted. As such they indicate a degree of altruism and a requirement to care for others, as is also required by the interest sub-element. The sub-element, however, does not require extreme altruism. That is, it is expected that a normative power will not completely disregard its immediate and/or domestic interests at all times but that it will be altruistic to a certain degree. EU law is clear in that as well and explicitly states in the area of fisheries that it will assert its own interest. In particular, as part of the external CFP objectives, while the EU shall contribute to sustainable fishing activities, these activities are to be “economically viable and promote employment within the Union” (emphasis added).137 Furthermore, the EU is strongly emphasising the promotion of level–playing field for EU fishing operators vis-à-vis fishing operators of third States.138 This promotion, however, does not elaborate on the perspective taken on that level-playing field. That is, would the EU insist for its operators to have the same access and operational conditions to a foreign resource as the operators of a third State that are much less subsidised than the EU fishing fleet? In any event, overall, it can be concluded that, under EU law, the EU is required to act with a long-term perspective and common (going beyond the EU) interests in mind, while also observing its own interest and not be overly altruistic. This conclusion is fully in line with the interest sub-element.

3.4.3.3

Coherence and Consistency

Many Treaty and CFP-specific provisions require coherent and consistent EU action. Coherence and consistency appear as a leitmotif in both the TEU and the TFEU, with special focus on coherence and consistency across policies.139 That coherence and 136

Ibid., Article 21(2)(d) and (f). Ibid., Article 28(2)(c). 138 Ibid., Article 28(2)(d). 139 See ibid., Articles 11, 13, 21(3), and 26(2); TFEU, above n. 1, Articles 7, 334, and 359. 137

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consistency is especially important in the EU’s external action due to the multitude of actors involved in the EU’s external action,140 as described in the institutional framework above. In order to ensure it, primary EU law features consistency since the Single European Act of 1987141 and today there are numerous references to coherence and/or consistency, most of which relating to the EU’s external action.142 Article 21(3) TEU very clearly states that the EU “shall ensure consistency between the different areas of its external action and between these and its other policies”, which is the core of this sub-element. This requirement has also been widely discussed in the literature, recognising its centrality to the EU’s external action.143 Coherence and consistency in the EU action are also ensured on a general level through other principles. One such principle is sincere cooperation, which was already discussed above. An important expression of that principle with respect to coherence and consistency is the “unity in the international representation of the Union”.144 In the PFOS case, the CJEU explicitly stated that breaking rank from an established EU position (even of abstention and even in the context of a shared competence) is prohibited because it creates “a situation […] likely to compromise the principle of unity in the international representation of the Union and its Member States and weaken their negotiating power with regard to the other parties to the Convention concerned”.145 This unity goes directly to ensuring coherence and consistency because it seeks to extinguish dissonances. Another principle is effectiveness, which while not explicitly recognised in primary EU law, has been developed by the CJEU, particularly with respect to the EU’s external action, in its case-law relating to sincere cooperation.146 The principle of effectiveness seeks to protect the EU’s ability to act externally by preventing Member States from acting unilaterally in a way that would limit the EU’s potential choices of action or contradict already-made choices and force their amendment. This principle furthers coherence and consistency by ensuring that the EU can confidently undertake and uphold certain conduct without its effectiveness being undermined by conflicting conduct of its Member States. These pieces of general EU law are supplemented in the area of fisheries by secondary EU law provisions reflecting the requirement for coherence and consistency in the relevant EU action. In particular, with the 2013 CFP reform, that requirement was also heavily introduced in the CFP and its external dimension. One of these coherence and consistency requirements is between the internal and the external CFP, an extension of which is the push to subject the distant water fleet to the same rules 140

Larik 2018. Single European Act, opened for signatures 17 February 1986, entered into force 1 July 1987, SEA OJ L169/1, preamble, Article 30(2)(d) and (5). 142 Hillion 2012, p. 1. 143 E.g. ibid.; Cremona 2011a; Hillion 2008, 2010; Cañamares 2018. 144 Larik 2018, pp. 176, 182, 183. 145 ECJ, Case C-246/07 Commission v Sweden, Judgment, 20 April 2010, EU:C:2010:203, para 104. 146 Thies 2018, p. 263. 141

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as the vessels fishing in EU waters. These are crucial changes for the external CFP, which had previously aimed only at gaining access to more fishing grounds.147 One of the particular CFP objectives in the 2013 Basic Regulation is for the CFP to be coherent with the EU environmental legislation.148 The 2013 Basic Regulation also sets an important guiding principle for the CFP, which is “consistency with other Union policies”.149 It delves even further in the external CFP objectives, which require the EU to inter alia “improve policy coherence of Union initiatives, with particular regard to environmental, trade and development activities and strengthen consistency of actions taken in the context of development cooperation and scientific, technical and economic cooperation”.150 The recitals of the 2013 Basic Regulation also build on these coherence and consistency requirements. In particular, they state that (1) the successful CFP management depends on inter alia mutual compatibility of measures taken at EU, regional, national, and local levels and their consistency with other EU policies151 and (2) the CFP should not only be consistent with other policies but should take into account interactions with EU actions in other maritime policy areas because “all matters related to Europe’s oceans and seas are interlinked”.152 Finally, the EU is required to go even beyond its policies and foster consistency between the regulatory frameworks of RFMOs.153 In light of all these provisions it can be safely concluded that the EU is also required to observe the coherence and consistency sub-element. Accordingly, the discussion in this section shows that the EU is legally required to act normatively in the area of fisheries by observing all of the constitutive elements of the NPE concept as applied in this book. This conclusion shows that the discussion in this book has an important legal value even if based on a concept developed in the political science literature.

3.5 Conclusion This chapter contextualised the NPE concept in the area of fisheries. With respect to the area of fisheries, it explains the different dimensions of this area and the various EU policies involved in it. This mapping also set out the broad policy background of the analysis in the following chapters. This chapter also showed that the EU can indeed act in a principled way. First, the EU has the necessary institutional framework to operationalise its powers. Second, the EU has the necessary competences to act in the area of fisheries. Even where they are shared and the Member States still enjoy 147

Wakefield 2016, p. 129. European Parliament and Council 2013, Article 2(5)(j). 149 Ibid., Article 3(h). 150 Ibid., Article 28(2)(b). 151 Ibid., recital 14. 152 Ibid., recital 17. 153 Ibid., Article 29(4). 148

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competences, the EU is provided enough powers to act internally and externally in order to support its fisheries goals. Third, the EU also enjoys the necessary capacity to act internationally under international law whether on its own or through its Member States. Furthermore, the EU is also required to act normatively on the basis of reading together a wide collection of Treaty and CFP-specific secondary law provisions. In particular, the analysis showed that all NPE elements feature within the EU legal framework governing the area of fisheries. Accordingly, the EU has the ability and is even required under EU law to act normatively. The extent to which it manages to do so in reality is subject of the analysis in the following four chapters.

References Arena A (2016) Exercise of EU Competences and Pre-emption of Member States’ Powers in the Internal and the External Sphere: Towards ‘Grand Unification’? Yearbook of European Law. DOI: https://doi.org/10.1093/YEL/YEV026 Broberg M (2011) What is the Direction for the EU’s Development Cooperation after Lisbon? A Legal Examination. European Foreign Affairs Review. DOI: https://doi.org/10.54648/EERR20 11035 Cañamares M (2018) ‘Building Coherent EU Responses’: Coherence as a Structural Principle in EU External Relations. In: Cremona M (ed) Structural Principles in EU External Relations Law. Hart, Oxford. DOI: https://doi.org/10.5040/9781782259985.CH-010 Cannizzaro E (2007) Unity and Pluralism in the EU’s Foreign Relations Power. In: Barnard C (ed) The Fundamentals of EU Law Revisited: Assessing the Impact of the Constitutional Debate. Oxford University Press, Oxford, pp 193–234 Casteleiro A (2012) EU Declarations of Competence to Multilateral Agreements: A Useful Reference Base? European Foreign Affairs Review. DOI: https://doi.org/10.54648/EERR20 12036 Chalmers D, Davies G, Monti G (2010) European Union Law: Cases and Materials, 2nd edn. Cambridge University Press, New York Chamon M, Govaere I (eds) (2020) EU External Relations Post-Lisbon The Law and Practice of Facultative Mixity. Brill, Leiden. DOI: https://doi.org/10.1163/9789004421981 Churchill R, Owen D (2010) The EC Common Fisheries Policy. Oxford University Press, Oxford Council (1991) Arrangement between the Council and the Commission regarding preparation for FAO meetings statements and voting, 10478/91, revised by document 9050/92 and document 8460/95 Council (2001) Conclusions on integration of environmental concerns and sustainable development into the Common Fisheries Policy, 7885/01 Council (2004) Decision (EC) 2004/585 establishing Regional Advisory Councils under the Common Fisheries Policy, OJ L256/17 Council (2005) Regulation (EC) 768/2005 establishing a Community Fisheries Control Agency and amending Regulation (EEC) 2847/93 establishing a control system applicable to the common fisheries policy, OJ L128/1 Council (2015) EU Priorities at the UN and the 70th UNGA, 10158/15 Cremona M (2003) The Draft Constitutional Treaty: External Relations and External Action. Common Market Law Review 40:1347–1366 Cremona M (2011a) Coherence in European Union Foreign Relations Law. In: Koutrakos P (ed) European Foreign Policy: Legal and Political Perspectives. Edward Elgar, Cheltenham, pp 55–92

References

71

Cremona M (2011b) Member States as trustees of the Union interest: Participating in international agreements on behalf of the European Union. In: Arnull A, Barnard C, Dougan M, Spaventa E (eds) Constitutional order of states: Essays in EU law in honour of Alan Dashwood. Hart Publishing, Oxford, pp 435–457 De Baere G (2014) EU External Action. In: Barnard C, Peers S (eds) European Union Law. Oxford University Press, Oxford, pp 704–750 Delgado Casteleiro A, Larik J (2011) The duty to remain silent: Limitless loyalty in EU external relations? European Law Review 36:524–541 Eckes C (2019) EU Powers under External Pressure: How the EU’s External Actions Alter its Internal Structures. Oxford University Press, Oxford. DOI: https://doi.org/10.1093/OSO/978019 8785545.001.0001 Eeckhout P (2011) EU External Relations Law. Oxford University Press, Oxford European Commission (1966) Rapport sur la situation du secteur de la pêche dans les Etats membres de la CEE et les principes de base pour une politique commune, COM(66) 250 final European Commission (1976) Communication Future of external fisheries policy and an internal fisheries system, COM(76) 500 final European Commission (1999a) Communication on Integrating Environment and Sustainable Development into Economic and Development Co-Operation Policy: Elements of a Comprehensive Strategy, COM(1999) 499 final European Commission (1999b) Working Document, From Cardiff to Helsinki and beyond: Report to the European Council on integrating environmental concerns and sustainable development into Community policies, SEC(1999) 1941 final European Commission (2001a) Communication on Elements of a Strategy for the Integration of Environmental Protection Requirements into the Common Fisheries Policy, COM(2001) 143 final European Commission (2001b) Green Paper on the Future of the Common Fisheries Policy, COM(2001) 135 final European Commission (2007a) Communication The European Interest: Succeeding in the age of globalisation COM(2007) 581 final European Commission (2007b) Proposal for a Council Regulation Establishing a Community system to prevent, deter and eliminate illegal, unreported and unregulated fishing, COM(2007) 602 final European Commission (2007c) Proposal for a Council Regulation on the protection of vulnerable marine ecosystems in the high seas from the adverse impacts of bottom fishing gears, COM(2007) 605 final European Commission (2008a) Proposal for a Council Regulation establishing a Community control system for ensuring compliance with the rules of the Common Fisheries Policy, COM(2008) 721 European Commission (2008b) Proposal for a Council Regulation fixing for 2009 and 2010 the fishing opportunities for Community fishing vessels for certain deep-sea fish stocks, COM(2008) 595 final European Commission (2009) Green Paper on Reform of the Common Fisheries Policy, COM(2009) 163 final European Commission (2011a) Proposal for a Regulation of the European Parliament and of the Council amending Regulation (EC) No 1185/2003 on the removal of fins of sharks on board vessels COM(2011) 798 final European Commission (2011b) Communication on External Dimension of the Common Fisheries Policy, COM(2011) 424 final European Commission (2011c) Proposal for a Regulation of the European Parliament and of the Council on the Common Fisheries Policy, COM(2011) 425 final European Commission (2011d) Staff Working Paper Executive Summary of the Impact Assessment Accompanying the document Proposal for a Regulation of the European parliament and of the Council on certain measures directed to non-collaborating countries for the purpose of the conservation of fish stocks, SEC(2011) 1575 final

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European Commission (2012) Proposal for a Regulation of the European Parliament and of the Council amending Council Regulation (EC) No 1342/2008 of 18 December 2008 establishing a long-term plan for cod stocks and the fisheries exploiting those stocks, COM(2012) 498 final European Commission (2013a) Proposal for a Regulation of the European Parliament and of the Council amending Council Regulation (EC) No 1224/2009 establishing a Community control system for ensuring compliance with the rules of the Common Fisheries Policy, COM(2013) 9 final European Commission (2013b) Proposal for a Regulation of the European Parliament and of the Council amending Council Regulations (EC) No 850/98, (EC) No 2187/2005, (EC) No 1967/2006, (EC) No 1098/2007, No 254/2002, (EC) No 2347/2002 and (EC) No 1224/2009 and repealing (EC) No 1434/98 as regards the landing obligation, COM(2013) 889 final European Commission (2014) Proposal for a Regulation of the European Parliament and of the Council laying down a prohibition on driftnet fisheries, amending Council Regulations (EC) No 850/98, (EC) No 812/2004, (EC) No 2187/2005 and (EC) No 1967/2006 and repealing Council Regulation (EC) No 894/97, COM(2014) 265 final European Commission (2015a) Delegated Regulation (EU) 2015/242 laying down detailed rules on the functioning of the Advisory Councils under the Common Fisheries Policy, OJ L41/1 European Commission (2015b) Proposal for a Regulation of the European Parliament and of the Council concerning the establishment of a Union framework for the collection, management and use of data in the fisheries sector and support for scientific advice regarding the Common Fisheries Policy (recast), COM(2015) 294 final European Commission (2015c) Proposal for a Regulation of the European Parliament and of the Council on the sustainable management of external fishing fleets, repealing Council Regulation (EC) No 1006/2008, COM(2015) 636 final European Commission (2016a) Decision setting up a Scientific, Technical and Economic Committee for Fisheries, OJ C74/4 European Commission (2016b) Proposal for a Council Regulation concerning the allocation of fishing opportunities under the Implementation Protocol to the Sustainable Fisheries Partnership Agreement between the European Union and the Government of the Cook Islands, COM(2016) 145 final European Commission (2016c) Proposal for a Regulation of the European Parliament and of the Council on the conservation of fishery resources and the protection of marine ecosystems through technical measures, amending Council Regulations (EC) No 1967/2006, (EC) No 1098/2007, (EC) No 1224/2009 and Regulations (EU) No 1343/2011 and (EU) No 1380/2013 of the European Parliament and of the Council, and repealing Council Regulations (EC) No 894/97, (EC) No 850/98, (EC) No 2549/2000, (EC) No 254/2002, (EC) No 812/2004 and (EC) No 2187/2005, COM(2016) 134 final European Council (2007) Presidency Conclusions, 16616/01/07. https://www.consilium.europa.eu/ uedocs/cms_Data/docs/pressData/en/ec/97669.pdf. Accessed 2 August 2022 European Parliament, Council (2013) Regulation (EU) 1380/2013 on the Common Fisheries Policy, amending Council Regulations (EC) No 1954/2003 and (EC) No 1224/2009 and repealing Council Regulation (EC) No 2371/2002 and (EC) No 639/2004 and Council Decision 2004/585/EC, OJ L354/22 FAO (1991a) Amendments to the Constitution and the General Rules of the Organization to allow for membership of FAO by regional economic integration organizations, Resolution 7/91. https:// www.fao.org/3/x5587E/x5587e0b.htm. Accessed 2 August 2022 FAO (1991b) Report of the Conference: 26th Session. https://www.fao.org/3/x5587E/x5587e0f. htm#viii.%20appointments%20and%20elections. Accessed 2 August 2022 Garben S, Govaere I (2017) The Division of Competences between the EU and the Member States: Reflections on the Past, the Present and the Future. In: Garben S, Govaere I (eds) The Division of Competences between the EU and the Member States: Reflections on the Past, the Present and the Future. Hart, Oxford. DOI: https://doi.org/10.5040/9781509913503.CH-001

References

73

Gatti M, Manzini P (2012) External representation of the European Union in the conclusion of international agreements. Common Market Law Review. DOI: https://doi.org/10.54648/COL A2012096 Hillion C (2008) Tous pour un, un pour tous! Coherence in the External Relations of the European Union. In: Cremona M (ed) Developments in EU External Relations Law. Oxford University Press, Oxford. DOI: https://doi.org/10.1093/ACPROF:OSO/9780199552894.003.0002 Hillion C (2010) Mixity and Coherence in EU External Relations: The Significance of the “Duty of Cooperation”. In: Hillion C, Koutrakos P (eds) Mixed Agreements Revisited: The EU and Its Member States in the World. Hart Publishing, Oxford. DOI: https://doi.org/10.5040/978147256 5082.ch-005 Hillion C (2012) Cohérence et action extérieure de l’Union Européenne. EUI Working Papers LAW. DOI: https://doi.org/10.2139/SSRN.2115477 Kettunen M, Bowyer C, Vaculova L, Charveriat C (2018) Sustainable Development Goals and the EU: uncovering the nexus between external and internal policies. https://ieep.eu/uploads/art icles/attachments/8399886b-8e29-43f7-b98c-4a714a0f0cc8/t2030-ieep_sdg_globaldimension_ final-1.pdf?v=63711750136. Accessed 2 August 2022 Kirchner S (2019) Human Rights and Fishing: A Multidimensional Challenge. Baltic Journal of Law & Politics. DOI: https://doi.org/10.2478/BJLP-2019-0007 Klamert M (2014) The Principle of Loyalty in EU Law. Oxford University Press, Oxford. DOI: https://doi.org/10.1093/ACPROF:OSO/9780199683123.001.0001 Lado E (2016) The Common Fisheries Policy: The Quest for Sustainability. Wiley Blackwell, Chichester. DOI: https://doi.org/10.1002/9781119085676 Lado E (2020) Quo Vadis Common Fisheries Policy? Wiley Blackwell, Chichester. DOI: https:// doi.org/10.1002/9781119576907 Larik J (2018) Pars Pro Toto: The Member States’ Obligations of Sincere Cooperation, Solidarity and Unity. In: Cremona M (ed) Structural Principles in EU External Relations Law. Hart, Oxford. DOI: https://doi.org/10.5040/9781782259985.ch-007 Long R, Curran P (2000) Enforcing the Common Fisheries Policy. Blackwell Science, Malden Manners I (2008) The Normative Ethics of the European Union. International Affairs. https://doi. org/10.1111/J.1468-2346.2008.00688.X Markus T (2009) European Fisheries Law from Promotion to Management. Europa Law Publishing, Groningen Maslen J (1989) European Community–CMEA: institutional relations. In: Maresceau M (ed) The Political and Legal Framework of Trade Relations between the European Community and Eastern Europe. Martinus Nijhoff, Dordrecht, pp 85–92 Paasivirta E (2015) The European Union and the United Nations Convention on the Law of the Sea. Fordham International Law Journal 38:1045–1071 Schütze R (2006) Supremacy without pre-emption? The very slowly emergent doctrine of Community pre-emption. Common Market Law Review. DOI: https://doi.org/10.54648/COL A2006051 The Secretariat of the European Convention (2002) Final report of Working Group VII on External Action, CONV 459/02. http://www.europarl.europa.eu/meetdocs/committees/deve/200 30218/489393EN.pdf. Accessed 2 August 2022 Thies A (2018) The Search for Effectiveness and the Need for Loyalty in EU External Action. In: Cremona M (ed) Structural Principles in EU External Relations Law. Hart, Oxford. DOI: https:// doi.org/10.5040/9781782259985.ch-011 UN General Assembly (2015) Transforming our world: the 2030 Agenda for Sustainable Development, UN Doc.A/Res/70/1 United Nations (2004) Multilateral Treaties Deposited with the Secretary-General: Status as at 31 December 2003:Volume II. United Nations Publication, New York Van Elsuwege P (2019) The Duty of Sincere Cooperation and Its Implications for Autonomous Member State Action in the Field of External Relations. In: Varju M (ed) Between Compliance

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and Particularism: Member State Interests and European Union Law. Springer, Cham. DOI: https://doi.org/10.1007/978-3-030-05782-4_13 Vatsov M (2019) Towards achieving sustainable fishing through EU trade agreements? Europe and the World. DOI: https://doi.org/10.14324/111.444.EWLJ.2019.13 Vianello I (2018) The Rule of Law as a Relational Principle Structuring the Union’s Action Towards its External Partners. In: Cremona M (ed) Structural Principles in EU External Relations Law. Hart, Oxford. DOI: https://doi.org/10.5040/9781782259985.ch-009 Wakefield J (2016) Reforming the Common Fisheries Policy. Edward Elgar, Cheltenham. DOI: https://doi.org/10.4337/9781785367663 Weiler J (1999) The Constitution of Europe. Cambridge University Press, Cambridge

Chapter 4

Challenges to the EU’s Normativity Posed by Lack of Membership in Global Institutions

Contents 4.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.2 Universality in Safety and Working Conditions of Fishermen . . . . . . . . . . . . . . . . . . . . . . 4.3 The Normative Impact of Participation Limitations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.3.1 Relevant International Fora and the EU’s Status Therein . . . . . . . . . . . . . . . . . . . 4.3.2 Involvement in Multilateral Processes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.3.3 Damaged Coherence and Consistency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.4 Overcoming Participation Limitations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.4.1 Utilising Available Participation Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.4.2 Utilising Other Policies and Instruments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.5 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

76 77 80 80 83 97 100 100 102 107 108

Abstract This chapter focuses on the normativity challenges the EU faces at global fora in which it lacks membership. In particular, this chapter focuses on the EU’s involvement at the International Labour Organization and the International Maritime Organization with main attention given to actions relating to the welfare of fishermen. The focus of the analysis is on the use of instruments element and the extent to which the EU manages to overcome its participation limitations within the relevant international fora in order to assert itself as an interlocutor in matters of its competence. The discussion also considers the effect of these participation limitations on the legitimacy of the EU, specifically its coherence and consistency. A central hypothesis flowing from this chapter is that membership in relevant international fora holds a strong normative promise that should allow the EU to act in a more normative way and that the existing participation limitations affect its ability to act normatively. Keywords ILO · IMO · FAO · Working conditions · Safety · Participation limitations · Observer · Membership · Sincere cooperation

© T.M.C. ASSER PRESS and the author 2023 M. Vatsov, Fishing Power Europe, Global Europe: Legal and Policy Issues of the EU’s External Action 3, https://doi.org/10.1007/978-94-6265-583-6_4

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4.1 Introduction The European Union (EU) is involved in a multitude of international fora dealing with fisheries matters in one way or another. The EU’s status in these fora varies due to the often-present State-only membership limitation. This limitation is an important legal factor that influences the EU’s normativity. This chapter contributes to answering the overall book question by showing how the EU seeks to act normatively in fora it lacks membership, mainly focusing at the International Labour Organization (ILO) and the International Maritime Organization (IMO) under the EU’s social and transport policies, and analysing the resulting challenges. In doing so this chapter deals headon with the impact of the EU’s distinctiveness on its normativity and pays special attention to the role of the Member States in the overall EU conduct. The analysis in this chapter is, thus, focused on the procedural side of the EU’s conduct—the use of instruments element, while supported by an examination under the other Normative Power Europe (NPE) elements. This analysis also distinguishes between the external and internal participation limitations the EU faces in the area of fisheries. External limitations refer to the EU’s international capacity to act as an international organisation at the relevant international fora in light of their organisational rules. Internal limitations refer to the EU’s competence limitations and/or obstruction by its Member States. Section 4.2 examines the EU’s conduct under the universality element. In does so by discussing the universality of safety and working conditions of fishermen in fisheries management and the EU’s support for these fishermen welfare norms. Section 4.3 is central to this chapter and discusses the EU’s use of instruments in supporting the identified norms. This use of instruments is predicated on the EU’s power to act in the relevant fora. Thus, this section starts by giving a brief overview of the ILO and IMO and the EU’s status therein. Next, it discusses the instruments the EU uses or seeks to use and the extent to which participation limitations prevent such use. The analysis points to the incoherence and inconsistency resulting from the failure to act. This analysis provides a basis for drawing parallels of the EU’s action under different policies and in different fora. In particular, it can show whether a specific practice is an isolated occurrence or an example of a more general approach of the EU and its Member States in the area of fisheries. In response to the identified limitations, Sect. 4.4 discusses actions and instruments that the EU could use to overcome those limitations at the multilateral, bilateral, and unilateral levels. Section 4.5 concludes that a mixture of external and internal participation limitations at relevant international fora in the area of fisheries can and do affect the EU’s normativity by affecting (1) the EU’s international presence, (2) its ability to influence the substance and the international support of norms, and (3) its internal law-making. These effects most notably influence the EU’s ability to ensure coherence and consistency between its narrative of high normative standards and its actions in protecting these standards. The section further concludes that the lowered EU normativity is largely due to actions or inactions of Member States and not so much due to extra-EU factors.

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4.2 Universality in Safety and Working Conditions of Fishermen Ensuring safety and adequate working conditions for fishermen is an important part of sustainable fisheries management. Fishermen represent a central factor of production in fisheries—labour—and are part of the social element of the sustainability formula in fisheries (economic, social, and environmental). Fishermen need constant protection because fishing is known to be more hazardous than other seafaring occupations and even by recent reports branded the most dangerous worldwide.1 In 1999, there were an estimated 24,000 fatalities per year in that occupation2 and fishermen’s vulnerability to exploitation is high, as evident from numerous reports of maltreatment including human trafficking and slave labour.3 Fishermen’s safety and adequate working conditions are ensured by norms relating to, on the one hand, the fishermen themselves and, on the other hand, the fishing vessels as their place of work. With respect to the fishermen, the norms in question are those relating to their labour rights, training, and qualifications. With respect to the fishing vessels, the norms in question are those relating to the construction and equipment of fishing vessels. Norms relating to fishermen and to the physical environment in which they work are closely connected. For example, prescribing a right to a particular length of rest would mean little without a norm prescribing adequate resting places in terms of size, ambience, hygiene, etc. and the other way around. The fishing vessel-related norms also include norms on the identification and surveillance of these vessels. This type of norms is important for fishermen’s safety because they facilitate the enforcement of the said standards in general and fighting illegal unreported or unregulated (IUU) fishing in particular. The United Nations General Assembly (UNGA) has recognised that IUU fishing may give rise to safety and security concerns.4 Due to the intentionally illegal activities of IUU fishing vessels, their masters and owners ignore any and all standards, rules, and regulations they can, including on safety, in order to maximise profits.5 Low safety and training levels are a safety and security threat not only to those on board but potentially to other vessels at sea due to the increased risk of collision.6 Even where all safety standards are observed volatilities at sea can be lethal and when they are not observed injuries and fatalities are all the more possible. 1

European Commission 2006b, vol II, p. 20; Mirkowski J (2021) The World’s Most Dangerous Countries for Workers. https://www.arinite.co.uk/the-worlds-most-dangerous-countries-for-wor kers. Accessed 2 August 2022. 2 ILO 1999. 3 See Marschke and Vandergeest 2016; Stringer and Harré 2019; Lewis et al. 2017; ILO 2013; EJF et al. 2016; HRW 2018. 4 E.g. UN General Assembly 2007, recital 15. 5 See Janovsky J (2017) Safety Matters: How Stopping Illegal Fishing Can Save Lives. https:// www.pewtrusts.org/en/research-and-analysis/articles/2017/10/16/safety-matters-how-stopping-ill egal-fishing-can-save-lives. Accessed 2 August 2022. 6 Danielsson et al. 2010, p. 37.

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This chapter covers a number of international instruments relevant to fishermen’s wellbeing. These instruments (listed in Sect. 4.3.1 under the relevant fora) enjoy varying levels of international support, with the binding conventions still attracting very low numbers of ratifications, although they have been negotiated and adopted at global fora. Yet, they have started to feature more and more prominently in the annual UNGA resolutions. In the late 1990s the first references to maritime safety started appearing in the annual UNGA resolutions and in 2001 for the first time a separate heading on maritime safety was introduced in the annual UNGA law of the sea resolutions.7 Since 2003, building on the Johannesburg Plan of Implementation,8 the UNGA has repeatedly issued general encouragement to States “to ratify or accede to international agreements addressing the safety of navigation and to adopt the necessary measures consistent with the Convention, aimed at implementing and enforcing the rules contained in those agreements”.9 In its 2003 law of the sea resolution, the UNGA also for the first time mentioned labour standards in the maritime area in those annual resolutions.10 In particular, the UNGA welcomed ILO’s work in consolidating and modernising international maritime labour standards and called on “[UN] Member States to take an active interest in the development of these new standards for seafarers and fishers”.11 Since 2006 the UNGA annual law of the sea and fisheries resolutions have consistently featured texts emphasising the importance of labour conditions in fisheries and encouraging States that have not yet done so to consider becoming parties to relevant conventions.12 Since 2016 the annual sustainable fishing resolutions even started mentioning flag State duties under the United Nations Convention on the Law of the Sea (UNCLOS) with respect to labour conditions and safety at sea.13 Substantively, safety and working conditions of fishermen are an important part of the EU’s external action in the area of fisheries. The extra-EU focus means that the EU is not only concerned about the protection of fishermen on board EU vessels or in EU waters but also about the protection on board other vessels and in non-EU waters. The rationale of the extra-EU focus is the negative impact of low safety and labour standards on sustainable fishing in general. The 2013 Basic Regulation clearly states that the “[Common Fisheries Policy (CFP)] should contribute to the improvement of safety and working conditions for fishing operators” (emphasis added).14 Furthermore, the Basic Regulation sets as an objective that the “CFP shall ensure

7

UN General Assembly 2001, para 33. United Nations 2002, para 34(a). 9 UN General Assembly 2003, para 23. 10 Ibid., para 34. 11 Ibid., para 32. 12 Since the paragraphs have been repeated since their initial inclusion, only the resolutions introducing changes are mentioned. UN General Assembly 2008, paras 53, 56; 2012a, paras 78, 81, 83; 2013, para 85. 13 UN General Assembly 2016b, paras 68, 166; 2017b, paras 73, 169. 14 European Parliament and Council 2013, recital 15. 8

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that fishing and aquaculture activities are environmentally sustainable in the longterm and are managed in a way that is consistent with the objectives of achieving economic, social and employment benefits, and of contributing to the availability of food supplies”.15 This is mirrored in the provisions on the objectives of the external CFP. Under Article 28 of the 2013 Basic Regulation, the EU shall “contribute to sustainable fishing activities that are economically viable and promote employment within the Union” as well as “promote and support, in all international spheres, action necessary to eradicate IUU-fishing”. Low safety and labour standards can affect sustainable fishing by decreasing the running costs of fishing operators and, thus, fuelling overfishing and IUU fishing.16 Recently, the USA President issued a National Security Memorandum on IUU fishing recognising that: IUU fishing often involves forced labor, a form of human trafficking, and other crimes and human rights abuses. Left unchecked, IUU fishing and associated labor abuses undermine U.S. economic competitiveness, national security, fishery sustainability, and the livelihoods and human rights of fishers around the world and will exacerbate the environmental and socioeconomic effects of climate change.17

The EU’s aim of fighting IUU fishing and achieving sustainable fishing requires it to act where safety and labour standards are low and, in some cases, lead to illegal conduct such as forced labour, child labour, human trafficking, and slavery. Beyond this, similar to what was observed in President Biden’s Memorandum, EU fishing interests are impacted where low safety and labour standards provide competitive advantage to competing (to the EU) fleets, thus, distorting the level-playing field for the EU fishing operators, which the EU is also aiming to protect.18 Furthermore, the EU’s aim of protecting employment within the EU also calls for action against foreign low safety and labour standards because they can negatively affect employment within the EU through their effect on sustainable fishing.19 As explained further below, the EU has strongly supported (to the extent capable) the international developments on fishermen’s wellbeing through its actions at the ILO, IMO, Food and Agriculture Organization (FAO) and the UNGA (to mention the most important) as well as through its internal legislative and policy actions, all of which are discussed below. Accordingly, the EU is indeed supporting these universalizable international developments on account of the increasing support they enjoy in the relevant global fora, including the UNGA calling for States to ratify the relevant conventions. That way, the EU’s conduct is in line with the universality element of normativity. 15

Ibid., Article 2(1). European Commission 2016b, p. 3. 17 Biden J (2022) Memorandum on Combating Illegal, Unreported, and Unregulated Fishing and Associated Labor Abuses. https://www.whitehouse.gov/briefing-room/presidential-actions/2022/ 06/27/memorandum-on-combating-illegal-unreported-and-unregulated-fishing-and-associatedlabor-abuses/. Accessed 2 August 2022. 18 Ibid. 19 Ibid. 16

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4.3 The Normative Impact of Participation Limitations The gist of this section is the legal challenges the EU faces in seeking to act normatively and how they reflect on its normativity. After providing an overview of the relevant fora and the EU’s status therein, the section focuses on the EU’s involvement in relevant international processes and the extent to which the internal measures it adopts seek to implement the results of these processes or to otherwise support them. The discussion looks at two ways in which the EU seeks to be involved in multilateral processes (negotiations and participating in agreements) and then analyses the damaged coherence and consistency of its conduct and its impact on normativity.

4.3.1 Relevant International Fora and the EU’s Status Therein The EU’s international action with respect to fishermen’s safety and labour protection is centred on IMO and ILO developments, as the central competent fora for the two respective matters, in cooperation with the FAO. These three organisations are crucial to the development of fishermen protection norms. Since 2008, the UNGA has repeatedly welcomed in its law of the sea resolutions the cooperation between the IMO, ILO, and the FAO “relating to the safety of fishers and fishing vessels [and has underlined] the urgent need for continued work in that area”.20 It is, thus, necessary to briefly outline the relevance of these three fora to safety and labour protection of fishermen. This outline briefly introduces the EU’s status within the ILO and the IMO, while a more detailed discussion on the FAO is included in Chap. 5. The ILO was established in 1919 with the aim to improve labour conditions and promote social justice21 and is today a specialised UN agency. With respect to fisheries, the ILO develops measures for protection of fishermen’s labour rights. While many ILO instruments deal with aspects of labour at sea, most of them explicitly exclude fishing vessels from their scopes, due to the specificities of the fisheries industry.22 The fisheries-specific ILO instruments are the Fishermen’s Competency Certificates Convention,23 the Work in Fishing Convention (WFC) and the four fisheries-specific Conventions the WFC revises, the Fishermen’s Competence

20

UN General Assembly 2008, para 58. Rodgers et al. 2009, pp. 1–2. 22 A good number of those ILO Conventions have been consolidated with the same limitation into Maritime Labour Convention, 2006, opened for signature 23 February 2006, UNTS CoR I-51299, entered into force 20 August 2013 MLC, Articles II(4) and X. 23 Fishermen’s Competency Certificates Convention, 1966, opened for signature 21 June 1966, 684 UNTS 81, entered into force 15 July 1969. 21

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Certificates Convention, as well as related soft-law.24 Also relevant in the fisheries context are the two ILO forced labour conventions (No 29 and its Protocol and No 105) and related soft-law.25 The ILO is open for membership only to States and has 187 members. Its emphasis on social dialogue involves a unique tripartite structure where, next to the States’ delegates, the employers and the workers are also represented and all participate in the creation of ILO instruments. Nevertheless, the EU’s involvement in the ILO dates back to a 1953 cooperation agreement with the European Coal and Steel Community, followed by a few other agreements and exchange of letters.26 The EU currently holds an observer status at the ILO, most recently confirmed in 2021.27 It allows the Commission, representing the EU, to attend the International Labour Conference (ILC) and Governing Body meetings. Under the ILC Standing Orders, the EU, as an international organisation, may participate without vote in the discussions of the Conference and in the meetings of Conference committees.28 With respect to formal involvement, such as voting and participation in ILO Conventions, the EU is bound to rely on its Member States, which are under the EU law duty of sincere cooperation to act jointly on behalf of and in the interest of the EU when its competences are involved.29 As explained in Sect. 4.4, this duty, however, has not always proven to be a very effective tool in compelling Member States to act. The IMO was established in 1958 with the aim to create a regulatory framework for commercial shipping that covers inter alia safety, security, environmental concerns, and technical cooperation30 and is today a specialised UN agency. The IMO’s purview also covers fishing vessels. The IMO’s work in the area of fisheries is crucial due to the highly hazardous nature of the fishing occupation. Similar to the ILO, the IMO is a standard-setting body adopting Conventions as well as soft-law instruments. Also similar to the ILO, the specificities of the fishing activity have led to its exclusion from certain general IMO Conventions, with the notable exception of MARPOL covering pollution from fishing vessels, including the discharge of fishing gear at sea. Thus, specific IMO instruments had to be adopted focussing on fishermen. Such instruments 24

Convention Concerning Work in the Fishing Sector, 2007, opened for signature 14 June 2007, UNTS CoR I-54755, entered into force 16 November 2017 WFC, Article 46 listing the four revised Conventions; ILO 1966, 2007. Together with the 2007 Convention and Recommendation, the ILC also adopted four resolutions aimed at the promotion, ratification and effective implementation of the Convention and the improvement of decent work in the fishing sector. 25 Forced Labour Convention, 1930, opened for signature 28 June 1930, 39 UNTS 55, entry into force 1 May 1932; Protocol of 2014 to the Forced Labour Convention, 1930, opened for signature 11 June 2014, 53 ILM 1232, entered into force 9 November 2016; ILO 2014; Abolition of Forced Labour Convention, 1957, opened for signature 25 June 1957, 320 UNTS 291, entered into force 17 January 1959. 26 De Baere 2018, 1262; European Communities and ILO 2001. 27 European Union and ILO 2021. 28 ILO 2021, Articles 14(7) and 36(5). 29 ECJ, Opinion 2/91 Convention No 170 of the International Labour Organization concerning safety in the use of chemicals at work, Opinion, 19 March 1993, EU:C:1993:106, para 5. 30 Convention establishing the Inter-Governmental Maritime Consultative Organization, opened for signature 6 March 1948, 289 UNTS 3, entered into force 17 March 1958, Article 1(a).

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relate to training, certification, and watchkeeping standards for fishermen (CSTCWF);31 a number of binding (Torremolinos Convention, its Protocol and its Cape Town implementing agreement (CTA)32 ) and soft-law (joint codes, voluntary guidelines, and recommendations with the ILO and the FAO33 ) instruments on safety of fishing vessels; and a soft-law instrument on the extension of the IMO identification number to fishing vessels34 as a cooperative effort with the FAO on the Global Record of Fishing Vessels, Refrigerated Transport Vessels and Supply Vessels (Global Record). The IMO is also currently exploring the extension of Vessel Monitoring Systems to fishing vessels. Similar to the ILO, the IMO is open for membership only to States and has 175 members and three Associate Members. The States that are not IMO members are mostly landlocked States. The Commission (and not the EU) enjoys only a status of permanent observer at the IMO since 1974.35 The EU’s extensive exercise of its transport competence in the IMO’s subject-matter area has only started in the 1990s36 and later greatly intensified after the Erika and Prestige oil spill incidents.37 This competence use has made the upgrade of the EU’s status more than necessary. However, for many years now the EU Member States fail to act on the Commission’s call for IMO membership or at least observer status negotiations,38 which has been supported by the European Parliament,39 as well as the Legal Service of the Council,40 as a solution to its current situation. This failure has been attributed to the EU Member States’ fear of losing presence at the IMO.41 The heavily intergovernmental nature 31

International Convention on Standards of Training, Certification and Watchkeeping for Fishing Vessel Personnel, opened for signature 7 July 1995, 43 SDIA 148, entered into force 29 September 2012. 32 Torremolinos International Convention for the Safety of Fishing Vessels 1977, opened for signature 2 April 1977, not entered into force, superseded by the 1993 Torremolinos Protocol Relating to the 1977 Torremolinos International Convention for the Safety of Fishing Vessels, opened for signature 2 April 1993, not entered into force, amended by Cape Town Agreement of 2012 on the Implementation of the Provisions of the 1993 Protocol relating to the Torremolinos International Convention of 1977 for the Safety of Fishing Vessels, opened for signature 11 October 2012, not yet in force. 33 FAO, ILO, IMO 2005, 2006, 2012, 2014. 34 IMO 2017. 35 European Commission, IMCO 1974. 36 Gulbrandsen 2013, p. 756. 37 For background information on the incidents, see ITOPF (1999) ERIKA, West of France, 1999. https://www.itopf.org/in-action/case-studies/erika-west-of-france-1999/. Accessed 2 August 2022; ITOPF (1999) PRESTIGE, Spain/France, 2002. https://www.itopf.org/in-action/case-studies/pre stige-spain-france-2002/. Accessed 2 August 2022. 38 See European Commission 2002; 2012a, p. 3. 39 European Parliament 2004. 40 Council 2005a, pp. 6–7. The legal opinion was in reaction to the refusal by the IMO to circulate a document sent to the IMO’s secretariat by the Netherlands (acting as Presidency) on behalf of the European Community. 41 European Commission 2012a, Annex, 3. Currently, the Commission is seeking (without much success) to upgrade the observer status to cover the EU and not just the Commission.

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and culture of action at the IMO is much less welcoming to EU involvement than the ILO, where the EU has been active since its inception. Thus, the EU is forced to extensively rely on its Member States to act at the IMO in the EU’s interest where its competence is involved,42 including through ratifying Conventions. The recent IMO II case, further discussed below, showed that the EU’s status at the IMO still needs a lot of work in order to be upgraded and that the Lisbon Treaty changes are not enough to extend the Commission’s status at the IMO to an EU status.43 The FAO was established in 1945 as a UN specialised agency aiming at improving nutrition and living standards, food security, conditions of rural people, contribute toward an expanding world economy, and fight world hunger.44 The FAO’s governance is composed of biennial Conference, a Council, and eight Committees, one of which is on fisheries (COFI), established in 1965. The FAO is an organisation with tremendous expertise in fisheries management. This expertise has been built up by inter alia regularly producing comprehensive fisheries-related studies, having a number of regional fisheries bodies set up under the FAO auspices, and cooperating with the United Nations Environment Programme (UNEP) on fisheries-related matters with respect to the regional seas conventions. The EU’s involvement at the FAO is discussed in Chap. 5 together with the discussion of its involvement in Regional Fisheries Management Organisations (RFMO), which is partly connected to its FAO membership. These three organisations are global and have important specialised knowledge with respect to different aspects of fishermen’s safety and working conditions. It is for that reason that they have closely cooperated in such matters. Developments at one of them can eventually influence developments at the others. An example of this, which is discussed below, is the FAO Global Record. The EU’s involvement at the FAO is considered in more detail in Chap. 5, focusing on fora in which the EU is a member.

4.3.2 Involvement in Multilateral Processes The use of instruments element of normativity requires an actor to be involved in multilateral processes in order to negotiate with others and convince them to support certain developments that further universal or universalizable norms and principles. As such, that element is predicated on the ability to act at the relevant fora and adopt the necessary instruments. Thus, the EU’s normativity decreases under the use of instruments element if it fails to act and participate in relevant multilateral 42

See ECJ, Case C-45/07 Commission v Greece, Judgment, 12 February 2009, EU:C:2009:81. ECJ, Case C-161/20 Commission v Council, Judgment, 5 April 2022, EU:C:2022:260, para 66. 44 Constitution of the United Nations Food and Agriculture Organization, adopted and entered into force 24 October 1945, TIAS 1554, preamble. 43

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processes. This in turn damages the EU’s normativity because it is losing its standing as an interlocutor for these developments and it is unable to match its rhetoric with the necessary actions. As already discussed in Chap. 3, the EU has the necessary competences to act internally and externally in the area of fisheries and where the EU lacks the external capacity to act at certain fora, under EU law, it is for its Member States to act on the EU’s behalf internationally. That is, there are specific consequences flowing from situations where the EU has competence to act with respect to a certain matter but lacks the relevant membership rights allowing it to exercise that competence. In particular, in such cases the Member States, as already observed in the discussion on sincere cooperation, must not only refrain from non-EU-approved actions that would affect the EU’s exercise of competences but must also act as trustees of the EU and cooperate in order to protect its interest. The modalities of that cooperation are provided in Article 218 of the Treaty on the Functioning of the European Union45 (TFEU) and constantly-evolving forum-specific documents. Under Article 218 TFEU, a central piece of all that cooperation is the existence of an agreed course of action at the Council on a proposal from the Commission. The Council, however, is not obliged to adopt any position or grant any negotiating mandate. The forum-specific arrangements for the ILO and the IMO are examined below.

4.3.2.1

EU-Member States Cooperation Arrangements

The ILO The cooperation process at the ILO has been a subject of controversies between the Commission and the EU Member States many times and at the centre of the ILO case at the Court of Justice of the European Union (CJEU).46 In that case, the CJEU held that in cases of shared competences “it is important to ensure that there is a close association between the institutions of the Community and the Member States both in the process of negotiation and conclusion and in the fulfilment of the obligations entered into”.47 The Commission subsequently issued a proposal for a Council Decision on the modalities of the exercise of shared competences at the ILO.48 In it, the Commission emphasised that the ILO’s tripartite structure must be respected and the two sides of the industry must be consulted by the Member States at different stages of the procedure.49 The Commission proposed that the EU and the Member States “must do their best to formulate joint replies to be adopted 45

Treaty on the Functioning of the European Union (Consolidated Version), opened for signature 25 March 1957, entered into force 1 January 1958, TFEU 2016 OJ C202/47. 46 See Bazerkoska 2013. 47 ECJ, Opinion 2/91 Convention No 170 of the International Labour Organization concerning safety in the use of chemicals at work, Opinion, 19 March 1993, EU:C:1993:106, para 36. 48 European Commission 1994. 49 Ibid., p. 6.

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by the Council on a proposal from the Commission”.50 In preparation of the first reading of a draft ILO Convention and Recommendation “the Commission will submit a recommendation for a decision to the Council, which will authorise the Community to take part in the negotiations through the medium of the Member States and also provide guidelines to this end”. The same applies mutatis mutandis at second reading (negotiation and adoption stages) and if needed the “Commission will request modified negotiation guidelines from the Council”.51 Conclusion of ILO Conventions is to happen by the Member States on behalf of the EU after being invited with a Council Decision, on a proposal from the Commission.52 The Council did not eventually act on that Commission proposal and the Commission withdrew it a decade later.53 Formally, this left the cooperation to the general Treaty rules, now contained in Article 218 TFEU. Nevertheless, reportedly, in practice the Commission proposal is largely followed in the EU coordination at the ILO.54 That Decision was supposed to supplement a previous Council Decision dealing with the exercise of exclusive EU competences at the ILO.55 That previous Council Decision was also adopted in the context of a case the Commission started against the Council for infringing what is today Article 218 TFEU.56 That Council Decision does not change the general rule that the Member States lack competence to negotiate or ratify ILO standards falling under exclusive EU competence but procedurally explains how the EU is to be involved. In particular, it states that Community replies to the ILO questionnaire must be adopted by the Council following a proposal from the Commission and that they must take account of consultations with employers’ and trade union organizations. For the preparation of the first reading of a draft convention, the Commission must propose that the Council adopt a decision authorizing it to negotiate and giving it a negotiating brief. In the Conference, the Commission speaks on behalf of the Community and acts in close consultation with the Member States. The delegates of the Member States retain their right to speak during the plenary session of the Conference.57

The IMO At the IMO there is also no formal instrument regulating the cooperation between the EU and the Member States beyond the general Treaty provisions requiring a Council Decision providing a negotiation mandate and sincere cooperation by the 50

Ibid., p. 7. Ibid., p. 9. 52 Ibid., p. 10. 53 European Commission 2004. 54 Nedergaard 2009, p. 154. 55 ECJ, Opinion 2/91 Convention No 170 of the International Labour Organization concerning safety in the use of chemicals at work, Opinion, 19 March 1993, EU:C:1993:106, IV—Community participation in negotiations leading to ILO conventions. The Council agreed to re-examine its Decision in Council Decision of 30 December 1989 concerning the negotiations for the International Labour Conference on Safety in the Use of Chemicals at Work. 56 European Commission 1986. 57 Ibid. 51

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Member States. Nevertheless, a great deal of informal coordination takes place before the IMO meetings.58 This informal coordination follows in practice59 an informal agreement on the procedural framework for the adoption of EU or otherwise common positions at the IMO.60 This procedural framework sought to supplement a more basic informal coordination process (so-called gentleman’s agreement61 ) that was set up following a Commission declaration of creation of external EU competence with the adoption of a Directive regulating ship inspection and survey organizations.62 The Commission’s proposed procedural framework was subject of negotiations in the Council’s Shipping Working Group, which produced Draft Internal Arrangements providing guidance for EU action at the IMO.63 The internal arrangements divide a possible EU position in three categories: (1) an EU position (based on exclusive EU competence), (2) a common position (based on shared competence) and (3) a coordinated position (based on exclusive Member State competence). The arrangements hold detailed provisions on the technical preparation of submissions, which will not be discussed here. What is relevant is the difference between three categories for the Member States conduct and the presentation of the EU position. Under the first category, the Commission proposes a position with an informal document, which is voted in accordance with the necessary Treaty majority for the matter at hand.64 If it is not adopted, the Member States and the Commission do not express positions unless necessary to defend the acquis.65 Still, they can provide information or factual comments. Under the second category, the Commission again can propose a position but the Member States “should also bring forward any issue of mixed competence that they would like to raise with a view to reach a common position”.66 The Council acts by common agreement and, if it fails to adopt a position, the Member States may present their positions as long as they do not affect the acquis.67 Under the third category, “[a]ny Member State or the Commission may bring forward an issue of exclusive Member States competence with the view to obtaining Member States’ support”.68 The Council again acts by common agreement and the arrangements are silent if it fails to adopt a position, suggesting freedom of Member State action. 58

Gulbrandsen 2013; Pape 2016. Nengye and Maes 2010, p. 585. 60 European Commission 2005b, as amended after discussions in the Shipping Working Party of the Council. 61 ECJ, Case C-45/07 Commission v Greece, Judgment, 12 February 2009, EU:C:2009:81, para 27. 62 European Commission 2005b, p. 2. 63 Council 2005b, Annex. 64 Ibid., p. 13. 65 Ibid. 66 Ibid., p. 15. 67 Ibid. 68 Ibid., p. 17. 59

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These arrangements effectively present a conceptual difference in applying the duty to cooperate—an obligation of result (to agree or abstain from acting) with respect to exclusive EU competences and an obligation of conduct (to seek agreement) with respect to shared competences and exclusive Member State competences.69 Even if mostly followed in practice there are occasions in which certain Member States disobey the arrangements, as they are formally not binding.70 Nevertheless, as already observed, the Commission has managed to show that the duty of sincere cooperation can be used against offending Member States, especially in the IMO I case.71 However, that tool is of limited practical usefulness, as it cannot undo the consequences of Member State interventions and a CJEU’s finding would be simply declaratory without financial penalties. The recent IMO II case provides further ground for reflection on the interactions between the Commission and the Member States at the IMO. This case dealt with a Commission action for annulment against a Council decision endorsing a submission to the IMO on behalf of the Member States and the Commission (but, crucially, not the EU as the Commission initially proposed). This case goes to the heart of the EU’s external representation, in general, and at the IMO in particular, and also deals with the international law limitations the EU faces.72 The CJEU continued its narrative from the Antarctic Fisheries cases (discussed in Chap. 5) of using international law to boost the standing of the EU Member States in matters of external EU action in competition with the Commission. In particular, the Court observed that: the Member States would have been able to give the Commission the task of ensuring their representation in their joint exercise, in the interest of the European Union, of an external competence which the European Union was precluded from exercising under the applicable rules of the IMO Convention,73

but they were not obliged to do so by EU law, leaving the Member States free to decide on a case-by-case basis on the modalities of their own external representation, including when acting jointly in the interest of the European Union. For those purposes, there is nothing to prevent those States from mandating, from among themselves, the Member State which holds the Presidency of the Council, in so far as that Member State is acting neither individually nor in the name of the European Union.74

It is doubtful whether this reading of EU law is the correct one as it introduces an artificial divide between acting on behalf of the EU and in the interest of the EU where EU competence is involved. This is artificial because in this case the action is in the interest of the EU only because of the perceived external (international law) 69

Van Elsuwege and Merket 2012, p. 47. Nengye and Maes 2010, p. 586. 71 ECJ, Case C-45/07 Commission v Greece, Judgment, 12 February 2009, EU:C:2009:81. 72 Kassoti E, Vatsov M (2022) The Curious Incident of the Commission at the IMO—Commission v Council (IMO). https://eulawlive.com/op-ed-the-curious-incident-of-the-commission-at-theimo-commission-v-council-imo-by-eva-kassoti-and-mihail-vatsov/. Accessed 2 August 2022. 73 ECJ, Case C-161/20 Commission v Council, Judgment, 5 April 2022, EU:C:2022:260, para 74. 74 Ibid., para 77. 70

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limitations. Using international law to introduce such artificial EU law divisions conflicts with the long-standing idea of EU law autonomy. This is not to say that the Court should not interact with international law, quite the contrary—but when the Court does so, it should be done properly. I consider that the more persuasive argument is that if the Member States can give the Commission the task of representation in circumstances such as the ones of the IMO II case, it is not a freedom of choice whether to do so. Naturally, this can create friction at the international level, but that is a matter of international law and not EU law. Furthermore, even in that case EU law provides a way forward. In particular, a provision that has not been mentioned at all in the case or by its commentators so far is Article 351 TFEU, which allows for Member States’ rights and obligations arising from pre-existing (concluded before 1 January 1958 or, for acceding States, before the date of their accession) agreements to remain unaffected by the provisions of the Treaties. It is another cornerstone of the relationship between EU law and international law and the necessary deference to the latter. While the IMO II case concerns the Commission and the Council as EU institutions, an important underlying issue is the role of the EU Member States and their rights and obligations under the Convention on the International Maritime Organization (IMO Convention). Article 351 TFEU is relevant as twenty-five of the twentyseven EU Member States have concluded the IMO Convention before 1 January 1958 or before their EU accession, with only Germany (1959 for the Federal Republic and 1973 for the Democratic Republic) and Luxembourg (1991) not meeting the temporal criterion. Thus, Article 351 TFEU allows the majority of the EU Member States not to be affected by the provisions of the Treaties when it comes to their rights and obligations stemming from the IMO Convention, which extends to the provisions on external EU representation. An important point in that regard, in light of the second paragraph of Article 351 TFEU, is whether there is an incompatibility between the IMO Convention and the EU Treaties, specifically the rules on the EU external representation. If there is incompatibility, the Member States must act to eliminate it and must, where necessary, assist each other to this end and, where appropriate, adopt a common attitude. Compliance with Article 351(2) TFEU is required also by Article 4 of the Treaty on European Union (TEU) which also puts a limitation to the right in Article 351(1) TFEU. Thus, if one adopts the reading presented here, that the Member States do not have the freedom to choose who to represent them in cases such as the one in the IMO II case and they have to give that task to the Commission, but the IMO considers this to be in violation of the IMO Convention, an incompatibility would arise. Legally, the consequence of this is not dramatic. It would simply mean that the Member States will have an EU law obligation to act at the IMO and ensure that the EU can have at least an observer status and in the meantime some sort of temporary arrangement is devised. That is, EU law is flexible enough to adapt to the international realities and ensure the representation of its positions externally. The matter boils down again to the EU Member States. Accordingly, with respect to the EU’s involvement in the ILO and the IMO, the EU Member States have been highly reluctant to commit to formal intra-EU coordination

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processes, showing their desire to reserve as much freedom of action as possible. This reluctance sets the tone of the following discussion, which shows its practical implications.

4.3.2.2

Involvement in Negotiation Processes

The EU has sought to be involved in the negotiation of the various IMO and ILO instruments introduced above. However, it has not always managed to secure the involvement it wished due to participation limitations. There are two main ways in which the EU’s normativity is affected by its exclusion from negotiation processes. First, the external limitations obstruct the actual EU involvement in negotiations and occasionally access to all relevant information. Second, the inability to act and the resulting absence of the EU from such negotiations decrease its authority as the competent interlocutor on such issues internationally, as opposed to its Member States. The IMO A good example of both ways in the IMO context was the CSTCW-F, in which the Commission has sought EU involvement from the outset. After the Council had adopted in late 1994 a Directive on seafarer’s training,75 in January 1995 at a Council Transport Working Party meeting the Commission indicated that “the Council would need to establish a negotiation mandate for the expression of the [EU] position at the revision conference” of the CSTCW.76 Both the Commission and the Council Legal Service representatives agreed that Directive 94/58 has the effect of creating an external EU competence.77 The representative of the Council Legal Service, however, stated that since there was no formal Commission recommendation at the time requesting for a negotiating mandate and the EU was not a party to the CSTCW, it was for the Member States to coordinate their positions. The President of the Working Party concluded that pending such a recommendation, “delegations will participate to the proceedings in London in the framework of a proper and constructive coordination on matters subject to [EU] competence”.78 The Commission also noted that under Article IV CSTCW only Parties to it enjoy full access to information provided under the CSTCW. The Commission, requested consideration of procedures to give it access to such relevant information in order to ensure consistency between EU and international rules.79 In light of the conclusions of the Working Party, the Commission issued recommendations to the Council in April 1995. Since the revision conference had decided

75

Council 1994. Council 1995b, p. 2. 77 Ibid., footnote 2. 78 Ibid., p. 2. 79 Ibid., p. 3. 76

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not to extend the CSTCW scope to cover fishing vessels, but to adopt a new instrument under the CSTCW umbrella, the Commission issued recommendations for both. In particular, with respect to the CSTCW-F, the Commission recommended to the Council to provide it with a mandate to negotiate the substance of the CSTCW-F at the IMO conference to ensure that it was compatible with EU fisher-related instruments adopted under the transport and social policies.80 In light of these instruments, the Commission considered that the matters proposed to be covered by the CSTCW-F fell mainly within EU competence and that the Presidency, the Member States, and the Commission are to ensure close cooperation in the negotiating process through coordination.81 The Commission also recommended that the EU should become a party to the CSTCW and CSTCW-F and that the necessary effort should be made for this to happen.82 The Commission saw it as necessary to safeguard fair competition between EU fishers. The recommendation, however, faced great resistance at the Council. Member State delegations entered reservations on EU participation in the conference on the grounds that such participation was not (1) necessary, (2) possible, or (3) advisable and considered that each Member State should be able to negotiate on its own while coordinating its position with the others (but notably not the Commission).83 With respect to ‘necessary’, the delegations challenged in entirety the Commission’s competence assertion, without any good substantive arguments. The Commission responded by asserting again the existence of EU competence and based its claim on a list of instruments and provisions.84 The Council’s Legal Service also reiterated its earlier position that Directive 94/58 creates external competences.85 With respect to ‘possible’, the delegations referred to the observer status of the Commission which would not allow for participation in negotiations.86 The Commission, however, considered that this status would not prevent participating in the negotiations in practice and that in the event of difficulties the Presidency-holding Member State could uphold the EU’s position.87 With respect to ‘advisable’, the delegations stated that EU action “would lead third countries to follow [EU’s] example by setting up regional groups, which would do serious harm to the IMO’s good spirit of cooperation and would place the [EU] in a minority position on a permanent basis. In addition, other observers could ask to be recognized as negotiators as well”.88 The Commission responded that the “political weight of the [EU] was just as great as that of the Member States taken together since it guaranteed the undisputed support of 15 Member States. In the event of a vote, the [EU] would cast the 15 votes of the 80

European Commission 1995, pp. 7–8. Ibid., p. 9. 82 Ibid., p. 8. 83 Council 1995a, pp. 2–3. 84 Ibid., pp. 3–4. 85 Ibid., p. 5. 86 Ibid. 87 Ibid., p. 4. 88 Ibid., p. 2. 81

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Member States”.89 The Commission also added that delegations’ intention to coordinate positions “could not constitute a valid alternative to negotiation by the [EU] itself. In fact, the differences of opinion between Member States over several issues raised doubts as to whether delegations could adopt a uniform position”.90 Eventually, the Council rejected the Commission’s recommendation and the Member States went on to participate in the negotiations in their own name. The ILO The EU had a similar experience at the ILO with the 2014 Protocol to the Forced Labour Convention (PFLC). The Commission sought to be involved in the PFLC negotiations.91 However, since the EU is not an ILO member, the Commission needed first a mandate from the Council to negotiate at the ILO on behalf of the EU Member States. The Commission requested the Council for such a mandate on the basis of exercised EU competence in the area of social policy.92 After several Working Party and COREPER meetings, the Council eventually refused to grant the mandate to the Commission. It is not yet publicly available on what basis the Council refused to provide the mandate. However, considering the CSTCW-F experience and subsequent discussions with respect to ratifying the PFLC (discussed in the next subsubsection), it is quite possible that the Council’s refusal was due to a disagreement on the existence of external EU competence. The Member States, thus, again went on to participate in the negotiations in their own name. In fact, the Member States have remained highly reluctant to adopt Council Decisions or Recommendations for negotiations at ILO conferences, including in case of exclusive EU competences.93 It is probably due to that established reluctance that the Commission did not even propose a negotiating mandate with respect to the WFC.94 Instead, the Commission prepared ‘technical notes’ for the Member States in 2004, 2005 and 2007 supporting the coordination process on the WFC.95 In these notes the Commission stressed the importance of having the negotiated result comply with existing EU law, approaches, and interests. Duty of Sincere Cooperation The CSTCW-F and the PFLC examples clearly call for the application of the duty of sincere cooperation to protect the EU’s position and involvement in the IMO and the ILO. With the CSTCW-F, the Commission observed that the delegations’ intention to coordinate positions “could not constitute a valid alternative to negotiation by the [EU] itself. In fact, the differences of opinion between Member States over several 89

Ibid., p. 4. Ibid. 91 See European Commission 2014b, pp. 5–6. 92 European Commission 2014d. 93 Pichot and Delarue 2019, p. 112. 94 This has been confirmed to me in an answer to an access to documents request Ares(2019)1098098. 95 Council 2004; European Commission 2005a, 2007b. 90

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issues raised doubts as to whether delegations could adopt a uniform position”.96 With the PFLC the Commission declared its disagreement with the Council’s failure to provide the EU with negotiating mandate. In particular, the Commission recalled the Member States’ obligation of sincere cooperation and stated that the absence of the negotiating mandate will lead to a situation which is not in compliance with the Treaties as Member States are legally not free to make legal commitments on issues of Union competence in international negotiations without the framework of Union decisions. The Commission will assess the appropriate measures to take in this regard. The Commission recalls the need to respect Union competences, to avoid any incompatibility between the Union acquis and the ILO instruments to be negotiated and for Member States to act in the interests of the EU at the ILO.97

As mentioned above, in both cases the Commission had provided evidence of already exercised internal competences. However, the Member States, acting in the Council refused the Commission recommendations and acted in both cases in their own interest. As such, they acted contrary to their sincere cooperation obligations, as warned by the Commission. Therefore, involvement on the EU’s behalf to protect the EU’s interest was absent and most probably the substantive result of the negotiations changed. This affects the EU’s normativity by not only damaging the EU’s authority at these fora in the respective matters, but also reduces the coherence and consistency of the EU’s conduct. Furthermore, the Commission does not appear to have taken any legal action to enforce the duty of sincere cooperation in these cases. Such inaction further casts doubt on the EU’s (Member States included) overall commitment to these procedural rules. While the Commission took individual Member States in the past to the CJEU to enforce the duty of sincere cooperation, it appeared much less willing to act where a big majority in the Council decided to act in their own interest. This situation points to political economy considerations when it comes to respecting and enforcing these rules, which as a matter of principle also hurts the EU’s normativity.

4.3.2.3

Participating in Agreements

The participation limitations related to the EU’s exclusion from negotiating processes necessarily lead to consequences following the adoption of the agreements in question and actions relating to their implementation. Such consequences can equally follow where the EU Member States did not prevent the EU from participating in the negotiations, albeit informally. This is due to the external participation limitations outlined above, according to which the EU cannot become a party to ILO or IMO Conventions. There are two main ways in which the use of instruments element of 96 97

Council 1994. Ibid., p. 6.

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normativity is affected by the EU’s exclusion from participating in agreements—(1) gathering support for the agreements and their entry into force and (2) stalling or preventing EU law developments. Support and Entry into Force of an Agreement Irrespective of whether or not the EU managed to influence the substance of the agreed instruments, it has a much lower influence on ensuring the entry into force and the overall international support of the instruments. Accumulating support for instruments and their entry into force are important parts of multilateral involvement and as such also of the use of instruments element of normativity. With respect to entry into force, there are examples from both the ILO and the IMO contexts. In the former, one can consider the developments surrounding the PFLC and the WFC. While in the case of the PFLC, the EU was excluded from participating in the ILO negotiations, the EU was not excluded with respect to the WFC, albeit being involved only indirectly through coordinating positions.98 Due to the ILO external limitations, the EU could not become a party to either the WFC or the PFLC. Since the WFC covers matters of EU competence, such as coordination of social security schemes, the EU Member States were also not free to ratify the WFC without an EU authorisation.99 Thus, in 2008 the Commission submitted a proposal for Council Decision authorising the Member States to ratify the WFC.100 It took two years for the Council to adopt the proposed Decision.101 Since then only seven EU Member States have ratified the WFC.102 There is little the EU can do to speed up this process. Generally, although the Decisions authorising the Member States’ ratifications of the various agreements point to a particular date by which this is to happen, they contain very flexible language. The Decision authorising the ratification of the WFC states for example: Member States should make efforts to take the necessary steps to deposit their instruments of ratification of the Convention with the Director-General of the International Labour Office as soon as possible, preferably before 31 December 2012. The Council will review the progress of the ratification before January 2012.103

As with the WFC, following the PFLC’s adoption, the Commission proposed two Council Decisions authorising the Member States to ratify the Protocol (one for the social policy matters and one for the judicial cooperation in criminal matters covered in the PFLC).104 These proposals, however, were not to be considered as accepting the legality of the Member States’ negotiation of the Protocol, for which the 98

European Commission 2008, p. 2. Ibid., p. 5. 100 Ibid. 101 Council 2010. On the status of ratifications, see https://treaties.un.org/Pages/showDetails.aspx? objid=080000028005f62c&clang=_en. Accessed 18 July 2020. 102 https://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:11300:0::NO::p11300_instru ment_id:312333. Accessed 2 August 2022. 103 Council 2010, Article 2. 104 European Commission 2014b, c. 99

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Commission’s recommendation for a common position was refused in the Council due to alleged lack of EU competence.105 While, the Council eventually adopted the Decisions,106 a number of Member States submitted reservations and statements challenging EU’s competence with respect to the PFLC with some expressing the view that the Decision was not legally required and that the Member States should have been able to consider ratifying the PFLC in their own right.107 Two similar examples can be given from the IMO context as well—the CTA and the CSTCW-F. The CTA is the last instrument of a line of international agreements (the Torremolinos Convention and its Protocol) that have failed to enter into force and were amended in order to overcome these failures. It is, thus, relevant to consider the development of the EU’s conduct throughout the process. In the early steps of implementing the CFP, the Commission issued a proposal to the Council in 1984 on the ratification of the Torremolinos Convention by the Member States and its provisional application pending entry into force.108 It must be noted that the proposal did not suggest that the Member States would ratify it in the interest of the EU and that they cannot do so without an EU authorisation. That proposal was based on the CFP competence and referred to the need to enhance the safety of the crews of fishing vessels, which was underlined in one of the early CFP Regulations.109 The Commission observed that several Member States had already ratified the Convention and adopted the necessary measures to implement it, although it had not entered into force. The Commission further observed that such uncoordinated application may affect intra-EU competition conditions and the effectiveness of existing measures. The Commission added that if all Member States were to ratify the Convention it may speed up its entry into force and constitute a first step towards attaining the EU goal of improving crew safety on fishing vessels. The proposal was never adopted and only one Member State subsequently ratified the Convention, making it a total of seven Member States. In light of the failure of the Torremolinos Convention to gather enough ratifications to enter into force, a Protocol to it was adopted in 1993. The Commission proposed to the Council to be given a mandate to negotiate that Protocol, but the Council disagreed.110 No proposal can be found dealing with the Member States’ ratifications of the Protocol. Instead, the Council adopted Directive 97/70,111 seeking to implement the Protocol in accordance with Article 3(5) of the Protocol, which allows the development of regional arrangements. The Directive was based on the transport policy competence, showing a departure from the initial suggestion that

105

Ibid., European Commission 2014b, p. 6. Council 2015b, c. 107 Council 2015a. 108 European Commission 1984. 109 Ibid. The reference was to Council 1983. 110 European Commission 1992; 1996, p. 5. 111 Council 1998a. 106

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these matters fall under the CFP. Shortly after the adoption of the Directive the ratification proposal for the Torremolinos Convention was retracted.112 The Protocol was eventually ratified by only eleven Member States and all of them had done so after the adoption of the Directive.113 This practice shows again the limitation with respect to entry into force and promoting the agreement. However, the adoption of Directive 97/70 also shows that there are ways to deal with participation limitations and act normatively by taking a lead, which is discussed further below. The Protocol again failed to gather enough support to enter into force. In response, another attempt was made in 2012 to save this process through the adoption of the CTA. The Commission, on the basis of the external competence created by Directive 97/70, got involved in the negotiation process of the CTA by coordinating the EU Member States’ positions.114 Since the EU could not become party to the CTA and it covered matters of EU competence precluding the Member States from deciding autonomously to ratify it, the Commission proposed in 2013 a Council Decision providing such authorisation.115 In 2014 the Council adopted the Decision116 and the CTA has so far been ratified by only 8 EU Member States.117 While it is still early to say conclusively for the CTA in particular, its history shows that the exclusion of the EU from becoming a party has left the relevant agreements without the optimal EU support due to the unwillingness of many EU Member States to act. With respect to the CSTCW-F, it took the Commission eighteen years after the CSTCW-F was adopted to submit a proposal authorising the EU Member States to sign and/or ratify it.118 Such delay in action raises normativity concerns because it questions the EU’s commitment to the multilateral instrument. Competence-wise the Commission’s proposal was based on somewhat different bases from its initial proposal during the negotiation process. This Commission proposal was based on multiple legal bases drawing from the CFP competence (Article 43(2) TFEU), free movement of workers (Article 46 TFEU), right of establishment (Article 53(1) TFEU), and freedom to provide services (Article 62 TFEU) competences. The Commission argued in its proposal that the EU’s legislation on mutual recognition of professional qualifications created EU competence with respect to the CSTCW-F and EU Member States were, thus, prevented from ratifying is without EU authorisation.119 Almost two years later the Council adopted the authorising Decision omitting the CFP legal basis.120 This exclusion of the CFP competence had the effect of keeping such matters as training and certification away from the exclusive CFP and, instead, keeping it in its orbit in the area of fisheries. This action was 112

European Commission 1998, p. 6. IMO 2022, p. 501. 114 European Commission 2012b. 115 European Commission 2013a. 116 Council 2014a. 117 IMO 2022, p. 503. 118 European Commission 2013b. 119 Council 2014b, para 5. 120 Council 2015e. 113

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similar to the Member States’ inaction on the Commission proposal with respect to the Torremolinos Convention, suggesting their unwillingness to extend the CFP to those matters. Thus far only 10 Member States have ratified the CSTCW-F (4 of them before the authorising Decision).121 Stalling or Preventing EU Law Developments Stalling or preventing altogether EU law developments affects the EU’s use of instruments internally to implement or further support international developments. As explained above, such failure to act (use instruments) decreases the EU’s normativity because it hinders the EU from supporting the multilateral approach, which is central to the use of instruments element of normativity. Examples of such stalling or preventing can be seen in the context of the implementation of both ILO and IMO instruments. It took many years for EU law to be updated with respect to fishermen’s labour standards. This update followed the conclusion of the WFC and the adoption of a Directive on the social partners’ agreement implementing the WFC. That Directive is now to be transposed by the Member States. That Directive was adopted, after a long process starting in 2009 of negotiations between the EU social partners, in the end of 2016. It essentially implements the social partners’ agreement concerning the WFC.122 The Directive’s entry into force was tied to the entry into force of the WFC.123 This meant that the Member States, by delaying their ratifications, which was discussed above, have also delayed the entry into force of the implementing internal EU legislation. The ratification delay of the WFC, partly due to inaction of the EU Member States, stalls yet another possible development. In particular, the EU could further strengthen its action by including the WFC in the list of Core human and labour rights UN/ILO Conventions to be observed in its Generalised System of Preferences (GSP).124 The European Parliament has already called on the Commission propose amendments of the GSP “to include important fishery instruments […] and provisions to allow the suspension of GSP+ status in cases where the provisions of these instruments are not applied”.125 With respect to the CSTCW-F, the poor ratification record of the EU Member States is effectively stalling developments at the EU level and has drawn criticisms from the EP.126 In particular, the CSTCW-F is yet to be implemented by a specific instrument at the EU level, even though the European Parliament has urged that the Article 155 TFEU procedure is opened in that regard (the same procedure was used with respect to social partners’ agreement on the WFC).127

121

IMO 2022, p. 430. Council 2017c. 123 Ibid., Article 6. 124 European Parliament, Council 2012, Annex VIII. 125 European Parliament 2017a, para 25. 126 Ibid., para 15. 127 Ibid., 17. 122

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4.3.3 Damaged Coherence and Consistency The coherence and consistency sub-element is crucial for the legitimacy of a normative power. It entails trustworthiness and continuity of action that is predictable and stable, which is in turn foundational of the relationships a normative power should aim at. As explained in Chap. 2, coherence brings compatibility and even complementarity between actions within a policy or across policies and consistency brings uniformity in applying and interpreting relevant rules. The participation limitations greatly impact the coherence and consistency of the EU action and in turn the EU’s normativity in four main ways.

4.3.3.1

Ratification of Relevant Instruments

The participation limitations lead to inconsistency between the EU’s rhetoric and its actions. One such example is the ratification of relevant instruments in the area of fishermen’s labour protection. In the words of the Commission “[i]n ratifying ILO Conventions and related Protocols, EU Member States send an important signal on the coherence of the EU’s policy in promoting fundamental principles and rights at work and improving working conditions worldwide”.128 Conversely, in failing to do so the EU’s policy coherence is damaged and, in turn, the EU’s normativity. The EU has been considering working and safety conditions in fishing since the 1980s.129 The EU has adopted strong rhetoric about the labour protection of fishermen externally.130 This rhetoric, however, does not match the EU’s internal regulatory framework. Fishermen’s labour protection under EU law is not comprehensive and is largely outdated. Admittedly, there are EU instruments generally applicable to labour conditions relevant for fishermen,131 and the EU has adopted several instruments seeking to specifically protect fishermen’s rights.132 Equally, however, the EU has excluded fishermen from a number of EU social policy instruments.133 While such exclusionary practice corresponds to ILO’s practice, it is not required by the latter, as it only sets minimum standards of protection. The European Parliament has also criticised this exclusionary practice.134 The participation limitations at the ILO have greatly contributed to this incomplete and outdated regulatory framework because (1) the EU could not become a party to the WFC, which was concluded over ten years ago, and (2) these limitations stalled the implementing EU law developments as described in Sect. 4.3, leading to incoherence between the EU’s external rhetoric and its internal action. 128

European Commission 2014b, p. 2. European Commission 1980; European Parliament 1981, 1988. 130 European Commission 2007a, p. 3; 2016a, Annex, pp. 1–2. 131 E.g. Council 1989, 1991; European Parliament and Council 2003, 2008, 2009. 132 Council 1992, 1993. 133 E.g. Council 1998b, 2001; European Parliament and Council 2002. 134 European Parliament 2008, para 19. 129

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Furthermore, these low ratification rates considerably weaken the EU’s international efforts to rally third States to ratify the said agreements. In particular, statements such as the following ones at the UNGA in 2012, 2017 and 2019, respectively, do not carry a strong normative force: [t]he safety of fishers and fishing vessels is indeed important for the EU. Consequently, we welcome the fact that the draft resolution refers to the new Cape Town Agreement, and we call upon States to become party to that Agreement so that it can enter into force at the earliest opportunity.135 [t]he EU remains strongly committed to the social dimension of fisheries and to ensuring decent working conditions on board fishing vessels. We are thus happy to see that the Work in Fishing Convention of the International Labour Organisation has entered into force, and encourage other States to also become party.136 the EU and its member States would like to reiterate the importance of ensuring decent working conditions on board fishing vessels. For that reason, we encourage States to become parties to the relevant conventions, particularly the Cape Town Agreement of 2012 on the Implementation of the Provisions of the Torremolinos Protocol of 1993 relating to the Torremolinos International Convention for the Safety of Fishing Vessels, 1977 and the Work in Fishing Convention, 2007 (No. 188), of the International Labour Organization.137

4.3.3.2

Ensuring High Normative Standards in International Norms

Moreover, these external limitations prevent the EU from ensuring that the international norms eventually adopted at the international level correspond to the high normative standards the EU seeks to promote. For example, the negotiating mandate that the Council refused to the Commission featured as one of its main points that “[t]he Commission shall ensure that the provisions of the Protocol relating to the Torremolinos Convention are compatible with the Community objectives in the field of safety of fishing vessels”.138 According to the Commission these objectives were of greater safety and it was them that the Commission wanted to promote during the negotiations. The external limitations also affect the EU’s ability to ensure coherent and consistent implementation of the said international norms in line with these high normative standards. For example, Directive 97/70 (last amended in 2009), which sought to implement the Torremolinos Protocol, due to its vessel-length limitations covers a very low percentage of the EU fishing fleet, leaving the governance of most vessels to the Member States.139 Leaving this matter to the Member States leads to incoherence in the regulatory framework across the EU in an area where common approach is needed in order to strengthen the EU’s authority in promoting specific standards internationally. Such wide exceptions in the internal regulatory framework are in turn used by the Member States to keep the EU at bay when such matters are discussed internationally. While the duty of sincere cooperation is meant to remove 135

UN General Assembly 2012b, pp. 18–19. UN General Assembly 2017a, p. 13. 137 UN General Assembly 2019, p. 13. 138 European Commission 1992, p. 3. 139 Oliveira-Goumas and El Houdagui 2000, p. 14. 136

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these obstacles, the previous subsection showed that it does not work perfectly as the Member States can obtain more freedom to act in practice through refusing Commission recommendations at the Council.

4.3.3.3

Treatment of Occupations

Participation limitations also uncover incoherence in the treatment of fishermen’s welfare as opposed to other occupations.140 For example, the low ratification rate of the WFC contrasts with the year-younger and concurrently developed MLC. The MLC has been ratified by twenty-five EU Member States with only two landlocked States—Austria and the Czech Republic—yet to ratify it.141 Similar to the situation with the MLC, the umbrella Convention of the CSTCW-F—the CSTCW does not suffer from such a shortage of EU Member State ratifications. This again shows that the EU Member States have a specific exclusionary attitude towards fisheries-related matters at the EU level. This difference in treatment is created by the participation limitations preventing the EU from participating in these agreements and ratifying these agreements if not instead, at least together with the EU Member States. The difference in treatment raises a coherence concern about a special low-support attitude towards fishermen’s labour rights protection by the EU Member States, which further damages the EU’s normativity in light of its rhetoric in that regard. This difference in treatment is also present at the EU level in light of the lack of standardised training for fishermen and recognition of qualifications. The lack of agreed minimum standards has been criticised by industry representatives pointing to the need for a multi-nationality fishermen crews to have a unified competence core on which they can rely especially in critical situations at sea.142 This difference in the treatment of fishermen leads to incoherence between the standard of protection the EU promotes and actually provides internally, as described below.

4.3.3.4

Incoherence in Expressed Positions

The participation limitations also create incoherence in the eventual positions that are expressed internationally, which weakens the EU’s voice. Dissonances between actions as well as between actions and projected images can have the effect of seriously damaging the credibility and persuasiveness of a potential normative power.143 Furthermore, where the EU and its Member States share competences and have to act

140

Ackermann et al. 2018, p. 26. http://www.ilo.int/dyn/normlex/en/f?p=NORMLEXPUB:11300:0::NO::P11300_INSTRU MENT_ID:312331. Accessed 2 August 2022. 142 Van der Zwaan et al. 2014, p. 14. 143 Whitman 2011; Skolimowska 2015, p. 120. 141

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together, lack of consistency damages the EU’s normative power even if the contradicting conduct is of a few Member States and is beyond the control of the EU. In the words of the Commission: [u]nsatisfactory co-ordination between different actors and policies means that the EU loses potential leverage internationally, both politically and economically. Despite progress with improving co-ordination, there is considerable scope to bring together different instruments and assets, whether within the Commission, between the Council and Commission, or between the EU institutions and the Member States. Furthermore, the impact of EU’s policy is weakened by a lack of focus and continuity in its external representation.144

The focus and continuity of the EU’s external representation in cases of participation limitations is to be addressed through the duty of sincere cooperation. Through that duty the Member States are meant to observe inter alia the principle of unity in the EU’s international representation.145 Where the EU has an established position, the principle of unity would prevent Member States from expressing a different position on that matter. That way the EU can maintain consistency in its action and build its normativity. The principle of unity, however, as the duty of sincere cooperation, has little effect where the Member States do not adopt such a position in the Council and due to the EU’s participation limitations, the Commission is unable to represent the EU and to influence the actions of the Member States at the particular fora.

4.4 Overcoming Participation Limitations While participation limitations can mount great obstacles to the EU’s ability to act and its normativity, they are not insurmountable. That is, there are two main ways in which the EU can act and promote certain norms. First, it can utilise to the fullest the participation rights it already enjoys in relevant fora. Second, the EU can utilise other competences and instruments to promote the norms in question. Each of these ways is examined in turn below.

4.4.1 Utilising Available Participation Rights Being an observer at States-only international fora such as the ILO and the IMO does not reflect the actual EU involvement in these fora. The EU can still be involved in important developments at these fora and wield its influence in different ways. One such way is by financing and leading projects. A good example of this is the EUfunded ILO Ship to Shore Rights Project. In this project the EU and the ILO worked with the Thai Government to improve the labour conditions in the Thai fishing and seafood industries. This project ran for three years (2017–2019) and has produced 144 145

European Commission 2006a. Eckes 2019, p. 45.

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important results. These results are a situation and gap analysis reports of the WFC and the PFLC and the Thai regulatory framework and its industries146 as well as major changes in the Thai labour protection regulatory framework.147 Another way is by promoting certain developments by coordinating the EU’s position at the IMO and using its general presence at the relevant fora. A good example in that regard is the EU’s action with respect to the extension of the IMO number to fishing vessels. The EU has advocated for its extension to fishing vessels as part of its effort in supporting the FAO’s work on the Global Record, which is examined below.148 When it was proposed, including by the UK and Spain, for IMO Resolution A.600(15) to be amended to allow the non-mandatory application of the IMO Ship Identification Numbering Scheme to fishing vessels of 100 gross tonnage and above in 2013, the EU expressed a position supporting it.149 The MSC approved the draft Resolution and the IMO Assembly eventually adopted IMO Resolution A.1078(28) in 2013.150 The EU further pushed for the extension of the IMO number to even smaller fishing vessels and in 2017 Spain et al proposed amendments to Resolution A.1078(28), which the EU supported again.151 According to the Commission, the IMO number as a Unique Vessel Identifier is: an important tool to monitor the activities of vessels between Member States and to ensure an unequivocal link between the information contained in the Union fishing fleet register and data from other information systems relating to fishing activities; the unique identification number, allocated to each Union fishing vessel, may under no circumstances be reassigned or altered.152

The proposal again gathered support at the MSC and was adopted by the IMO Assembly in 2017.153 Since 2016 the UNGA has started noting the IMO number extension in its annual law of the sea resolutions154 and has previously recognised that this change will aid the prevention of IUU fishing activities.155 Accordingly, where the EU acts in a coordinated way and is supported by its Member States, it can overcome its participation limitations and effectively promote certain developments at the international plane. The context of the IMO number developments is an example of yet another way in which the EU could overcome participation limitations by utilising the already available participation rights. In particular, the EU can use its enhanced status at other 146

ILO 2017a, b. Telesetsky 2018, p. 312. See also Thailand (2018) Thailand’s Views on International Labour Organization’s “Ship to Shore” Project. http://www.mfa.go.th/europetouch/th/news/8359/90080Thailand%E2%80%99s-Views-on-International-Labour-Organizat.html. Accessed 18 July 2020. 148 Council 2013, p. 15. 149 Ibid. 150 IMO 2013. 151 Council 2017a, pp. 27–28. 152 Ibid., p. 28. 153 IMO 2013. 154 E.g. UN General Assembly 2016a, para 115. 155 UN General Assembly 2013, para 78. 147

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relevant fora to promote developments. The specific context of fishermen’s protection provides the EU with such opportunities as the IMO work is closely related to and rely on the work at the FAO in the relevant matters. A case in point is the FAO Global Record. Its origins can be traced to the 2005 Rome Declaration and was publicly launched in July 2018.156 It relies strongly on the extension of the IMO number to fishing vessels to serve as an Unique Vessel Identifier. The EU has supported the Global Record not only financially (being one of the major donors for it, together with Spain, Sweden, Iceland, and the USA157 ) but also politically. With respect to the latter, the EU organised in 2014 a conference on sustainable fishing capacity management. In its outcome document—a joint statement—the EU, together with the Philippines, Indonesia, the USA, Japan, and Colombia, said that they intend to cooperate in supporting tools addressing overcapacity including the “development of international records of fishing vessels, refrigerated transport vessels and supply vessels, including at the global level”.158 This idea was also promoted during the Kobe Process (a process of five tuna RFMOs seeking to harmonize their activities), in which the EU is also strongly involved.159 The EU has equally supported the use of IMO numbers at the FAO COFI. In particular, the EU has supported its use “for all fishing vessels registered in the Global Record, in the first phase including vessels with a tonnage of over 100 GT, to reflect common practice in the IMO vessel register”.160 Following the second extension of the IMO number to fishing vessels, the EU also successfully promoted the adoption of a resolution at the General Fisheries Commission for the Mediterranean (GFCM) aimed at implementing the scheme in the GFCM area.161 Accordingly, the multifaceted nature of the protection of fishermen allows the EU to capitalise on its improved international standing at various fora such as the FAO, RFMOs, and general international diplomatic processes that lack State-only limitations and gather support to influence developments at fora where such limitations exist, such as the IMO.

4.4.2 Utilising Other Policies and Instruments The EU can overcome participation limitations by acting outside the international institutions imposing such limitations altogether. That way the EU’s reliance on the will of its Member States is also greatly diminished. Thus empowered, the EU can act 156

http://www.fao.org/global-record/background/history/en/. Accessed 2 August 2022. http://www.fao.org/global-record/partners/en/. Accessed 2 August 2022. See also Agritrade (2014) EU and Spanish support FAO work for a global register of fishing vessels. http://agritr ade.cta.int/Fisheries/Topics/ACP-EU-relations-FPAs/EU-and-Spanish-support-FAO-work-for-aglobal-register-of-fishing-vessels.html. Accessed 2 August 2022. 158 European Union et al. 2014, p. 2. 159 Kobe Process 2009, p. 5; 2011, pp. 7–8, 23. 160 Council 2013, p. 15. 161 Council 2017a, p. 28; Resolution GFCM 2017. 157

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more normatively as it will be able to act multilaterally more freely and participate in and support relevant international processes. In particular, the EU can use, on the one hand, other policies under which it has greater competence to act to the exclusion of its Member States and, on the other hand, other instruments with which the EU can wield its influence more freely as opposed to global fora. Such instruments can be bilateral agreements or autonomous EU law instruments. Such EU action, however, risks having lower normative force due to its less multilateral nature and openness to use of coercion. This subsection looks at three types of EU actions outside the ILO and/or IMO institutional contexts through which the EU overcomes its participation limitations.

4.4.2.1

Use of Multilateral Agreements

The EU can overcome its participation limitations by securing multilaterally-agreed permissible clauses for higher standards and acting to implement them even before their entry into force in order to promote them. A good example of this is the adoption of Directive 97/70. This Directive was based on a permissive clause in the Torremolinos Protocol allowing for the development of regional arrangements. By doing so, the Commission can prevent the Member States from acting on the basis of the rule of pre-emption, even though the Directive was based on a shared competence. Based on Directive 97/70 the Commission had a much stronger position vis-à-vis the EU Member States when the Protocol was to be amended with the CTA. During the CTA negotiations the EU saw that CTA’s purpose was to ‘water down’ the Torremolinos Convention and its Protocol in order to gather enough ratifications to enter into force.162 Thus, the EU’s main position was to safeguard the possibility of higher regional standards such as its own to still be acceptable.163 With respect to the expected lowering of the standards the EU was willing to accept some of them in principle only because (1) if that would eventually lead to the instrument’s entry into force it would still mean higher standards overall for non-EU vessels compared to if it did not enter into force and (2) the standards could be increased through later amendments.164 The EU attempted a similar course of action at the ILO. In particular, the Commission recommended to the Council, as part of the MLC negotiation mandate, to propose regional economic integration organisation (REIO) participation clauses in the MLC.165 These clauses were meant to secure EU involvement in the implementation of the MLC despite the fact that the EU could not formally ratify the MLC.166 Although, as already observed, the Commission did not formally request a negotiation mandate for the WFC, it is very likely that similar clauses were suggested for 162

Council 2012, p. 3. Ibid., p. 4. 164 Ibid. 165 Council 2005c. 166 Ibid., p. 2. 163

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the WFC. The EU was unsuccessful in the inclusion of these clauses. The MLC and the WFC, nevertheless, feature REIO clauses allowing ILO Members to set differing social security rules relating to, respectively, seafarers and fishers.167 Accordingly, the EU could overcome participation limitations by negotiating and protecting permissive clauses allowing the adoption of higher standards regionally and then implementing them. That way the EU can take the lead and promote universalizable standards through autonomous instruments aimed at supporting multilaterally agreed solutions even before their entry into force. The adoption of internal instruments also strengthens the EU’s ability to act externally on the basis of the rule of pre-emption.

4.4.2.2

Use of Bilateral Agreements

The EU can overcome participation limitations by including in its bilateral trade and fisheries agreements various social provisions. This course of action has given the EU greater control over developments as it acts under its exclusive trade and CFP competences, and it enjoys a much better standing with the third States with which it concludes these agreements. With respect to fisheries agreements, the EU has started including social provisions referring to ILO standards applicable to the signing-on of seamen on board the fishing vessels.168 Furthermore, the EU has started making human rights, including labour rights, an essential element of its fisheries agreements further strengthening the labour rights promotion, as required by Article 31(6) of the 2013 Basic Regulation.169 This use of ILO standards generally seeks to ensure a level–playing field for EU and third country operators. The 2013 Basic Regulation even seeks that such agreements include “a clause prohibiting the granting of more favourable conditions to other fleets fishing in those waters than those granted to Union economic actors”.170 These conditions are not defined and may even include labour standards. That is why it is important for the promotion of ILO standards that the EU not only participates in the creation of the ILO standards by participating in their negotiation but also adopts these standards for its own fleet. It is for that reason that the Commission saw the implementation of the social partners’ agreement relating to the WFC not only as important for improving fishermen’s conditions on EU vessels but also as giving the EU “a stronger position to promote its implementation in partner countries worldwide”.171 The EU included references to ILO standards also in its modern trade agreements featuring Trade and Sustainable Development (TSD) chapters.172 In that way the 167

MLC, above n. 22, The Regulation and the Code, Standard A4.5—Social security; WFC, above n. 24, Article 37. 168 E.g. Council 2015d, Chapter V. See also European Commission 2008, p. 4; 2016a, Annex, 1. 169 Council 2015d, Article 3(4). 170 European Parliament and Council 2013, Article 31(6)(a). 171 European Commission 2016b, p. 3. 172 On ILO standards in TSD chapters, see e.g. Council 2011, Article 13.4; 2017b, Article 23.3.

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EU showed willingness to bind itself and, thus, provide additional assurance that the standards in question will be observed by the EU. These references are mainly to fundamental ILO conventions and do not expressly mention the WFC, for example. This is understandable due to the recent entry into force of the WFC and its low ratification rate. However, it is to be repeated that the ratification rate of the EU Member States is itself very low. It is highly unlikely that an explicit reference will be included in EU international agreements before all Member States ratify the WFC. This is because it would be hypocritical of the EU to expect others to comply with an instrument it itself has not fully committed to and it may also create legal difficulties to promise to observe an instrument by which not all Member States are bound and the EU cannot be. Nevertheless, the European Parliament has called, for example, for the trade agreement with Thailand to “include a requirement for compliance with [ILO] conventions and greater transparency, surveillance, oversight, and traceability in the Thai fisheries sector, so that fishing activities can be monitored”.173 This general reference to ILO conventions would cover the WFC, which Thailand recently ratified. Due to the already-discussed EU Member States’ low ratification rate of the WFC, that call’s normativity with respect to the WFC would be greatly undermined. Accordingly, while the EU has a much freer hand in acting under its Common Commercial Policy (CCP) and CFP, the underlying limitations to its action at multilateral fora can eventually influence the substance of the EU’s subsequent actions and its normativity. Yet, the EU’s use of bilateral agreements proves to be an important way for the EU to promote developments it supports and overcome the participation limitations at the multilateral fora. The EU’s ability to use coercion under these agreements to force compliance with the said standards can bring up normativity concerns, depending on how it is used. The EU’s normativity in using coercion, including under bilateral agreements, is discussed further in Chap. 6.

4.4.2.3

Use of Unilateral Instruments

The EU can overcome participation limitations by adopting purely internal instruments seeking to promote the development of certain norms. Good examples are the EU’s CFP instruments. As already observed, the EU has recognised that the “CFP should contribute to the improvement of safety and working conditions for fishing operators”.174 In its 2012 resolution on the external dimension of the CFP the European Parliament considered that incentives should be drawn up for third countries that do not share EU standards to adopt good practices, and where applicable to establish trade measures such as banning imports of [IUU] fish products, and of aquaculture and fisheries products that do not comply with human rights and the United Nations conventions on employment (ILO) and navigation (IMO).175

173

European Parliament 2017b, para 8. European Parliament and Council 2013. 175 European Parliament 2015, para 81. 174

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The EU’s CFP action does that in different ways, other than through bilateral fisheries agreements. With respect to labour conditions, the EU uses its CFP by taking labour conditions into consideration in fighting IUU fishing. In particular, the EU uses its Control and IUU fishing Regulations because abusive labour practices are often linked to IUU fishing.176 Such labour protection considerations have been prominent in the EU’s action against Thailand on IUU fishing. Through this action the EU uses its leverage to include ILO standards as requirements in its interactions with third States in the context of these unilateral instruments. With respect to IMO norms, the EU has used its CFP instruments to introduce the IMO number developments. The Commission amended its regulation implementing the Control Regulation to include the IMO number as a requirement in the marking of fishing vessels.177 The new external fishing fleet Regulation has also made bearing an IMO number in compliance with EU law requirements one of the cumulative criteria for Member States to issue fishing authorisations for fishing operations beyond EU waters.178 The EU’s Long Distance Fleet Advisory Council (LDAC) recommended that the EU should make an even greater use of the IMO number and unilaterally impose it as “a requirement for non-EU vessels to supply their catches into the EU market under the catch certification scheme established by the EU IUU Regulation”.179 Such a measure would require an amendment of the IUU fishing Regulation with the view to establish a level playing field and further global compliance with “RFMO measures requiring IMO numbers for vessels fishing within their Convention areas”.180 This proposal could also strengthen the implementation of the relevant IMO resolution. This proposal, however, needs to comply with relevant international law rules, including World Trade Organization (WTO) law, in order to observe the legality aspect of normativity.181 The EU has also sought to use its European Maritime and Fisheries Fund (EMFF) to improve the health and safety of fishermen in the EU fleet. The EMFF Regulation explicitly provides that the EMFF “may support investments on board or in individual equipment provided that those investments go beyond the requirements under Union or national law” and are made “to improve hygiene, health, safety and working conditions for fishermen”.182 The Commission has further adopted a delegated Regulation identifying a long list of eligible for support operations aimed at improving fishermen’s wellbeing.183 Work-related injuries and accidents are even included in the list of common indicators that are used in the common monitoring 176

European Commission 2016a, Annex, 3. See also European Commission 2016b, p. 3. European Commission 2015b, Article 1(4). 178 European Parliament and Council 2017, Article 5(1)(c). 179 LDAC 2017, p. 2. 180 Ibid. 181 The legality of the proposed actions has been subject to different views between the Commission and some academics. On the side of the Commission, see European Commission 2017. On the other side, see Marín Durán and Scott 2017. 182 European Parliament and Council 2014, Article 32. 183 European Commission 2015a, Article 3. 177

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and evaluation system of the EMFF, with which the progress in EMFF implementation is measured.184 However, whether these support opportunities translate into an improvement in fishermen’s wellbeing again depends on the way the Member States implement these measures and make them attractive to the potential beneficiaries to apply with project proposals. The same applies for the new programming period under the European Maritime Fisheries and Aquaculture Fund (2021–2027). Accordingly, the use of unilateral instruments could possibly provide a way for the EU to overcome some of its participation limitations. However, the EU needs to be careful in using these instruments in such a way if it seeks to build and maintain its normativity. The EU’s actions so far indicate that it is indeed careful that way. At the same time, these actions are also not completely detached from Member State involvement.

4.5 Conclusion The EU’s participation limitations at international fora have an important impact on its normativity. They affect the EU’s overall authority as the competent interlocutor on the issues in question. The EU’s ability to act and be involved in the development of or participation in relevant instruments is greatly decreased. The EU’s legitimacy is also decreased because its prerogatives appear to be dismissed by its Member States in the area of fisheries and the result creates incoherence and inconsistency in the EU’s conduct. A mix of external and internal limitations creates these setbacks to the EU’s normativity. The analysis shows that the internal limitations and the uncooperative actions of the Member States affect the EU’s normativity the most, even though the Member States have the freedom to do so only because of the existence of the external participation limitations in the first place, which the Member States are also not quick to change. This means that Member State action even formally outside of the EU framework affects the EU’s normativity in the area of fisheries. This will remain so until the Member States are convinced in the added value of the EU approach and support it, or until the Commission is given more effective legal tools to force them to act together in the EU’s interest. The analysis also shows that the EU could overcome participation limitations and still influence the development of international standards and promote them. The EU can do so by utilising the participation rights it already enjoys in the relevant fora and employing other policies and instruments. While the EU has much freer hand when doing so, cooperation by the Member States remains important either externally at the relevant fora or internally when sitting at the Council. The next chapter focuses on the central hypothesis stemming from this chapter that membership in relevant international fora holds a strong normative promise that should allow the EU to act in a more normative way and that the existing participation limitations affect its ability to act normatively.

184

European Commission 2014a, Annex, I, Union Priority 1, point 9.

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References Ackermann A, Franceschelli N, Sanz M, Maridis G, Kubenova V, Pereau E, Van Dessel B, Haasnoot T, Le Roy Y, Borges L (2018) Research for PECH Committee - Training of Fishers. European Parliament, Brussels Bazerkoska J (2013) Making the Most of the EU’s External Competences in the Social Affairs’ Area: The EU and the International Labour Organisation. Croatian Yearbook of European Law and Policy. DOI: https://doi.org/10.3935/CYELP.09.2013.171 Council (1983) Regulation (EEC) 2908/83 on a common measure for restructuring, modernizing and developing the fishing industry and for developing aquaculture, OJ L290/1 Council (1989) Directive 89/391/EEC on the introduction of measures to encourage improvements in the safety and health of workers at work, OJ L183/1 Council (1991) Directive 91/533/EEC on an employer’s obligation to inform employees of the conditions applicable to the contract or employment relationship, OJ L288/32 Council (1992) Directive 92/29/EEC on the minimum safety and health requirements for improved medical treatment on board vessels, OJ L113/19 Council (1993) Directive 93/103/EC concerning the minimum safety and health requirements for work on board fishing vessels, OJ L307/1 Council (1994) Directive 94/58/EC on the minimum level of training of seafarers, OJ L319/28 Council (1995a) Outcome of proceedings, 7017/95 Council (1995b) Outcome of proceedings, Revision of the International Convention on Standards of Training, Certification and Watchkeeping for Seafarers 1978 (STCW), 4356/95 Council (1998a) Directive 97/70/EC setting up a harmonised safety regime for fishing vessels of 24 metres in length and over, OJ L34/1 Council (1998b) Directive 98/59/EC on the approximation of the laws of the Member States relating to collective redundancies, OJ L225/16 Council (2001) Directive 2001/23/EC on the approximation of the laws of the Member States relating to the safeguarding of employees’ rights in the event of transfers of undertakings, businesses or parts of undertakings or businesses, OJ L82/16 Council (2004) European Commission services technical note on the proposed conclusions for an ILO Convention and Recommendation on working conditions in the fishing sector, 26/05/2004, EMPL/G/2/RD/ec D (2004), 11417 Council (2005a) IMO - European Community position to be adopted by the Council for the 9th session of the Sub-Committee on Bulk Liquids and Gases (BLG 9) - presentation of the Community’s positions in the IMO, 7124/05 Council (2005b) Procedural framework for the adoption of Community or common positions for IMO related issues and rules governing their expression in the IMO - Agreement on internal arrangements, 13107/05 Council (2005c) Recommendation for a Council Decision on the negotiation of the provisions of the draft Maritime Labour Standards Convention in the context of the International Labour Organisation (ILO) - Regional Economic Integration Organisations (REIO) participation clause, 12491/05 Council (2010) Decision 2010/321/EU authorising Member States to ratify, in the interests of the European Union, the Work in Fishing Convention, 2007, of the International Labour Organisation (Convention No 188), OJ L145/12 Council (2011) Decision 2011/265/EU on the signing, on behalf of the European Union, and provisional application of the Free Trade Agreement between the European Union and its Member States, of the one part, and the Republic of Korea, of the other part Commission’s statements Free trade Agreement between the European Union and its Member States, of the one part, and the Republic of Korea, of the other part, Protocol concerning the definition of ‘originating products’ and methods of administrative cooperation, Protocol on mutual administrative assistance in customs matters, Protocol on cultural cooperation, OJ L127/1

References

109

Council (2012) Non Paper Drafted to Facilitate Co-Ordination between the EC Member States and the Commission for the International Conference on the Safety of Fishing Vessels (Cape Town, South Africa, 9–11 October 2012), W.Doc.2012/55 REV 2 Council (2013) Revised Working Document Preparation of IMO/MSC 92 (London, 12–21 June 2013) - EU Coordination meeting, W.Doc.2013/42 REV 2 Council (2014a) Decision 2014/195/EU authorising Member States to sign, ratify or accede to the Cape Town Agreement of 2012 on the Implementation of the Provisions of the Torremolinos Protocol of 1993 relating to the Torremolinos International Convention for the Safety of Fishing Vessels, 1977, OJ L106/4 Council (2014b) Report from the General Secretariat of the Council, 15714/14 Council (2015a) Agreement in principle to COM(2014)559 and COM(2014)582, 6426/15 Council (2015b) Decision (EU) 2015/2037 authorising Member States to ratify, in the interests of the European Union, the Protocol of 2014 to the Forced Labour Convention, 1930, of the International Labour Organisation with regard to matters relating to social policy, OJ L298/23 Council (2015c) Decision (EU) 2015/2071 authorising Member States to ratify, in the interests of the European Union, the Protocol of 2014 to the Forced Labour Convention, 1930, of the International Labour Organisation as regards Articles 1 to 4 of the Protocol with regard to matters relating to judicial cooperation in criminal matters, OJ L301/47 Council (2015d) Decision (EU) 2015/2312 on the signing, on behalf of the European Union, and provisional application of the Sustainable Fisheries Partnership Agreement between the European Union and the Republic of Liberia and the Implementation Protocol thereto, OJ L328/3 Council (2015e) Decision (EU) 2015/799 authorising Member States to become party, in the interest of the European Union, to the International Convention on Standards of Training, Certification and Watchkeeping for Fishing Vessel Personnel, of the International Maritime Organization, OJ L127/20 Council (2017a) Commission Non-paper drafted to facilitate EU co-ordination at 4th session of the IMO Sub-Committee on Implementation of IMO Instruments (London, 25–29 September 2017), 12303/1/17 REV 1 Council (2017b) Decision (EU) 2017/37 on the signing on behalf of the European Union of the Comprehensive Economic and Trade Agreement (CETA) between Canada, of the one part, and the European Union and its Member States, of the other part, OJ L11/23 Council (2017c) Directive (EU) 2017/159 implementing the Agreement concerning the implementation of the Work in Fishing Convention, 2007 of the International Labour Organisation, concluded on 21 May 2012 between the General Confederation of Agricultural Cooperatives in the European Union (Cogeca), the European Transport Workers’ Federation (ETF) and the Association of National Organisations of Fishing Enterprises in the European Union (Europêche), OJ L25/12 Danielsson P, Kuyateh M, Gambia B, Ravikumar R, Westerberg A, Yadava Y (2010) Safety at Sea for Small-Scale Fisheries in Developing Countries. FAO, Rome De Baere G (2018) EU Status in Other International Organizations. In: Schütze R, Tridimas T (eds) Oxford Principles of European Union Law. Oxford University Press, Oxford. DOI: https://doi. org/10.1093/OSO/9780199533770.003.0044 Eckes C (2019) EU Powers under External Pressure: How the EU’s External Actions Alter its Internal Structures. Oxford University Press, Oxford. DOI: https://doi.org/10.1093/OSO/978019 8785545.001.0001 EJF, Fairfood International, Greenpeace, Human Rights at Sea, International Labor Rights Forum, International Transport Workers’ Federation, International Union of Food and Allied Workers, National Guestworker Alliance, Walk Free (2016) Tragedy in the Marine Commons: The Intertwined Exploitation of Ocean Ecosystems and Fisheries Workers. https://www.ohchr.org/Doc uments/Issues/Environment/Biodiversity/CoalitionNGOs.pdf. Accessed 2 August 2022 European Commission (1980) Communication on the social aspects in the Community sea fishing sector COM(80) 725 final

110

4 Challenges to the EU’s Normativity Posed by Lack of Membership …

European Commission (1984) Proposal for a Council Decision on the ratification of the Torremolinos International Convention for the safety of fishing vessels and the application of the provisions thereof by the Member States pending the entry into force of the Convention at international level COM(84) 340 final European Commission (1986) Communication on Respect for Community Competence in Regard to Negotiation within the ILO, SEC(1986) 1252 final European Commission (1992) Recommendation for a Council Decision authorizing the Commission to negotiate Protocol relating to the Torremolinos International Convention for the safety of fishing vessels, 1977, SEC(92) 719 final European Commission (1994) Proposal for a Council Decision on the exercise of the Community’s external competence at international labour conferences in cases falling within the joint competence of the Community and its Member States, COM(94) 2 final European Commission (1995) Recommendation for a Council Decision relating to the negotiations for the adoption of the International Convention on Standards of Training, Certification and Watchkeeping for Fishing Vessel Personnel, SEC(95) 546 final European Commission (1996) Proposal for a Council Directive Setting up a Harmonized Safety Regime for Fishing Vessels of 24 metres in length and over, COM(96) 255 final European Commission (1998) Withdrawal of Certain Proposals and Drafts from the Commission, OJ C40/4 European Commission (2002) Recommendation in order to authorise the Commission to open and conduct negotiations with the International Maritime Organization (IMO) on the conditions and arrangements for accession by the European Community, SEC(2002) 381 final European Commission (2004) Withdrawal of Obsolete Commission Proposals, OJ C5/2 European Commission (2005a) Information note prepared by the services of the European Commission on the proposed provisions for an ILO Convention and Recommendation on work in the fishing sector, ILC June 2005, Ref. Ares(2019)1098098 European Commission (2005b) Staff Working Document Procedural framework for the adoption of Community or common positions for IMO related issues and rules governing their expression in the IMO, SEC(2005) 449 final European Commission (2006a) Communication, Europe in the World—Some Practical Proposals for Greater Coherence, Effectiveness and Visibility, COM(2006) 278 final European Commission (2006b) Green Paper, Towards a future Maritime Policy for the Union: A European vision for the oceans and Seas, COM(2006) 275 final European Commission (2007a) Communication, Reassessing the regulatory social framework for more and better seafaring jobs in the EU, COM(2007) 591 final European Commission (2007b) Preliminary information note prepared by the services of the European Commission on the proposed provisions for an ILO Convention and Recommendation on work in the fishing sector, ILC June 2007, Ref. Ares(2019)1098098 European Commission (2008) Proposal for a Council Decision authorising Member States to ratify, in the interests of the European Community, the Work in Fishing Convention, 2007, of the International Labour Organisation (Convention 188), COM(2008) 320 final European Commission (2012a) Communication to the Commission from the President in Agreement with Vice-President Ashton Strategy for the progressive improvement of the EU status in international organisations and other fora in line with the objectives of the Treaty of Lisbon, C(2012) 9420 European Commission (2012b) Staff Working Document, Paper to facilitate coordination between the EU Member States and the Commission for the IMO Diplomatic Conference in Cape Town, South Africa, on 9–11 October 2012, convened to consider and adopt an Agreement on the implementation of the Torremolinos Protocol of 1993 relating to the 1977 Torremolinos Convention on the safety of fishing vessels, SWD(2012) 272 final

References

111

European Commission (2013a) Proposal for a Council Decision authorising Member States to sign, ratify or accede to the Cape Town Agreement of 2012 on the Implementation of the provisions of the 1993 Protocol relating to the Torremolinos International Convention for the Safety of Fishing Vessels, 1977, COM(2013) 38 final European Commission (2013b) Proposal for a Council Decision authorising Member States to sign and/or ratify, in the interest of the European Union, the International Convention on Standards of Training, Certification and Watchkeeping for Fishing Vessel Personnel, 1995, of the International Maritime Organisation COM(2013) 595 final European Commission (2014a) Delegated Regulation (EU) 1014/2014 supplementing Regulation (EU) No 508/2014 of the European Parliament and of the Council on the European Maritime and Fisheries Fund and repealing Council Regulations (EC) No 2328/2003, (EC) No 861/2006, (EC) No 1198/2006 and (EC) No 791/2007 and Regulation (EU) No 1255/2011 of the European Parliament and of the Council with regards to the content and construction of a common monitoring and evaluation system for the operations funded under the European Maritime and Fisheries Fund, OJ L283/11 European Commission (2014b) Proposal for a Council Decision authorising Member States to ratify, in the interest of the European Union, the Protocol of 2014 to the Forced Labour Convention, 1930, of the International Labour Organisation with regard to matters related to social policy COM(2014) 563 final European Commission (2014c) Proposal for a Council Decision authorising Member States to ratify, in the interest of the European Union, the Protocol of 2014 to the Forced Labour Convention, 1930, of the International Labour Organisation with regard to matters related to judicial cooperation in criminal matters, COM(2014) 559 final European Commission (2014d) Recommendation for a Council Decision authorising the opening of negotiations and negotiating directives at the 103rd session of the International Labour Conference on a Protocol to supplement the forced labour Convention no 29, 1930, of the International Labour Organisation, COM(2014) 238 final European Commission (2015a) Delegated Regulation (EU) 2015/531 supplementing Regulation (EU) No 508/2014 of the European Parliament and of the Council by identifying the costs eligible for support from the European Maritime and Fisheries Fund in order to improve hygiene, health, safety and working conditions of fishermen, protect and restore marine biodiversity and ecosystems, mitigate climate change and increase the energy efficiency of fishing vessels, OJ L86/1 European Commission (2015b) Implementing Regulation (EU) 2015/1962 amending Implementing Regulation (EU) 404/2011 laying down detailed rules for the implementation of Regulation (EC) 1224/2009 establishing a Community control system for ensuring compliance with the rules of the Common Fisheries Policy, OJ L112/1 European Commission (2016a) Answer by DG Joao Aguiar-Machado to a letter of Mr Ivan Lopez van der Veen of 8 August 2016 on LDAC Proposals to improve observance of and compliance with International Law rules in terms of human, labour and social rights applicable to workers in the fishing sector, Ref. Ares(2016)6891948 European Commission (2016b) Proposal for a Council Directive implementing the Agreement concluded between the General Confederation of Agricultural Cooperatives in the European Union (COGECA), the European Transport Workers’ Federation (ETF) and the Association of National Organisations of Fishing Enterprises (EUROPÊCHE) of 21 May 2012 as amended on 8 May 2013 concerning the implementation of the Work in Fishing Convention, 2007 of the International Labour Organisation COM(2016) 235 final European Commission (2017) Letter by DG Machado of 6 July 2017. http://ldac.chil.me/downloaddoc/148582. Accessed 28 January 2019 European Commission, IMCO (1974) Cooperation and Collaboration Agreement between the IMCO and the European Commission of 28 June 1974 European Communities, ILO (2001) Exchange of letters between the Commission of the European Communities and the International Labour Organization, OJ C165/23

112

4 Challenges to the EU’s Normativity Posed by Lack of Membership …

European Parliament (1981) Resolution embodying the opinion of the European Parliament on the communication from the Commission of the European Communities to the Council on social aspects in the Community sea-fishing sector, OJ C11/208 European Parliament (1988) Resolution on measures intended to develop the social aspects of the Common Fisheries Policy, OJ C122/381 European Parliament (2004) Resolution on improving safety at sea, OJ C/104E/730 European Parliament (2008) Resolution on modernising labour law to meet the challenges of the 21st century, OJ C175E/401 European Parliament (2015) Resolution on the external dimension of the Common Fisheries Policy, OJ C419/175 European Parliament (2017a) Resolution on the implementation of control measures for establishing the conformity of fisheries products with access criteria to the EU market, 2017/2129(INI) European Parliament (2017b) Resolution on the situation and future prospects of the European fishing sector in the context of the Free Trade Agreement between the EU and Thailand, OJ C378/81 European Parliament, Council (2002) Directive 2002/14/EC establishing a general framework for informing and consulting employees in the European Community, OJ L80/29 European Parliament, Council (2003) Directive 2003/88/EC concerning certain aspects of the organisation of working time, OJ L299/9 European Parliament, Council (2008) Directive 2008/104/EC on temporary agency work, OJ L327/9 European Parliament, Council (2009) Directive 2009/104/EC concerning the minimum safety and health requirements for the use of work equipment by workers at work, OJ L260/5 European Parliament, Council (2012) Regulation (EU) 978/2012 applying a scheme of generalised tariff preferences and repealing Regulation (EC) 732/2008, OJ L303/1 European Parliament, Council (2013) Regulation (EU) 1380/2013 on the Common Fisheries Policy, amending Council Regulations (EC) No 1954/2003 and (EC) No 1224/2009 and repealing Council Regulation (EC) No 2371/2002 and (EC) No 639/2004 and Council Decision 2004/585/EC, OJ L354/22 European Parliament, Council (2014) Regulation (EU) 508/2014 on the European Maritime and Fisheries Fund, OJ L149/1 European Parliament, Council (2017) Regulation (EU) 2017/2403 on the sustainable management of external fishing fleets, and repealing Regulation (EC) 1006/2008, OJ L347/81 European Union, ILO (2021) Exchange of letters between the Commission of the European Union and the International Labour Organization. https://www.ilo.org/wcmsp5/groups/public/---eur ope/---ro-geneva/---ilo-brussels/documents/publication/wcms_769069.pdf. Accessed 2 August 2022 European Union, Philippines, Indonesia, USA, Japan, Colombia (2014) Joint Statement on Efforts to Promote Sustainable Fishing Capacity Management on the Global Scale. http://ec.europa.eu/commission_2010-2014/damanaki/headlines/press-releases/2014/03/ 20140314_joint_statement_signed.pdf. Accessed 2 August 2022 FAO, ILO, IMO (2005) Code of Safety for Fishermen and Fishing Vessels. IMO, London FAO, ILO, IMO (2006) Voluntary guidelines for the design, construction and equipment of small fishing vessels. FAO, Rome FAO, ILO, IMO (2012) Safety Recommendations for Decked Fishing Vessels of Less than 12 metres in Length and Undecked Fishing Vessels. FAO, Rome FAO, ILO, IMO (2014) Implementation Guidelines on Part B of the Code, the Voluntary Guidelines and the Safety Recommendations. FAO, Rome GFCM (2017) Resolution on the application of an International Maritime Organization number, GFCM/41/2017/6 Gulbrandsen C (2013) Navigating from Conflict to Working Arrangement: EU Coordination in the International Maritime Organization. Journal of European Integration. DOI: https://doi.org/10. 1080/07036337.2012.732072

References

113

HRW (2018) Hidden Chains: Rights Abuses and Forced Labor in Thailand’s Fishing Industry. https://www.hrw.org/report/2018/01/23/hidden-chains/rights-abuses-and-forced-laborthailands-fishing-industry. Accessed 2 August 2022 ILO (1966) Vocational Training (Fishermen) Recommendation, No 126 ILO (1999) Safety and Health in the Fishing Industry: Report for discussion at the Tripartite Meeting on Safety and Health in the Fishing Industry. ILO, Geneva ILO (2007) Work in Fishing Recommendation, No 199 ILO (2013) Caught at sea: Forced labour and trafficking in fisheries. ILO, Geneva ILO (2014) Forced Labour (Supplementary Measures) Recommendation, No 203 ILO (2017a) Gap analysis of the Work in Fishing Convention, 2007 (No. 188), and Thai national laws, regulations and other measures concerning conditions of work on board fishing vessels, THA/15/03/EUR[ILO_REF] ILO (2017b) Situation and gap analysis on the ILO Protocol of 2014 to the Forced Labour Convention, 1930, and the fishing and seafood processing industries in Thailand, THA/15/03/EUR[ILO_REF] ILO (2021) Standing Orders of the International Labour Conference. http://www.oit.org/wcm sp5/groups/public/---ed_norm/---relconf/documents/meetingdocument/wcms_837665.pdf. Accessed 2 August 2022 IMO (2013) IMO Ship Identification Number Scheme, A 28/Res.1078 IMO (2017) IMO Ship Identification Number Scheme, A 30/Res.1117 IMO (2022) Status of IMO Treaties. https://wwwcdn.imo.org/localresources/en/About/Conven tions/StatusOfConventions/Status%20of%20IMO%20Treaties.pdf. Accessed 2 August 2022 Kobe Process (2009) Report of the Second Joint Meeting of Tuna Regional Fisheries Management Organizations (RFMOs). https://www.tuna-org.org/Documents/TRFMO2/01%2002%20R eport%20and%20Appendix%201%20San%20Sebastian.pdf. Accessed 2 August 2022 Kobe Process (2011) Chair’s Report of the Third Joint Meeting of the Tuna Regional Fisheries Management Organizations (Kobe III). https://www.tuna-org.org/Documents/TRFMO3/REPKOBE3-ENG.pdf. Accessed 2 August 2022 LDAC (2017) Advice on the requirement for IMO numbers for importing seafood products into the EU market from non-EU vessels, R-01-17/WG5 Lewis S, Alifano A, Boyle M, Mangel M (2017) Human Rights and the Sustainability of Fisheries. In: Levin P, Poe M (eds) Conservation for the Anthropocene Ocean: Interdisciplinary Science in Support of Nature and People. Academic Press, London. DOI: https://doi.org/10.1016/B978-012-805375-1.00018-0 Marín Durán G, Scott J (2017) WTO compatibility of an IMO number requirement for non-EU vessels supplying fisheries products into the EU market. http://www.iuuwatch.eu/wp-content/upl oads/2015/07/Expert-Opinion_IMO_IUUwatch.pdf. Accessed 18 July 2020 Marschke M, Vandergeest P (2016) Slavery scandals: Unpacking labour challenges and policy responses within the off-shore fisheries sector. Marine Policy. DOI: https://doi.org/10.1016/J. MARPOL.2016.02.009 Nedergaard P (2009) The European Union at the ILO’s International Labour Conferences: A “Double” Principal-Agent Analysis. In: Jorgensen K (ed) The European Union and International Organisations. Routledge, London, pp 149–166 Nengye L, Maes F (2010) The European Union and the International Maritime Organization: EU’s External Influence on the Prevention of Vessel-Source Pollution. Journal of Marine Law and Commerce 41:581–594 Oliveira-Goumas B, El Houdagui R (2000) Safety and the Causes of Accidents in the Fisheries Sector. http://www.europarl.europa.eu/RegData/etudes/note/join/2001/297832/IPOLPECH_NT%282001%29297832_EN.pdf. Accessed 2 August 2022 Pape M (2016) The IMO – for ‘safe, secure and efficient shipping on clean oceans’. https:// www.europarl.europa.eu/RegData/etudes/BRIE/2016/577964/EPRS_BRI(2016)577964_EN. pdf. Accessed 2 August 2022

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Pichot E, Delarue R (2019) International Labour Organization (ILO): A dynamic and result-oriented cooperation with the EU and its Member States. In: Wessel R and Odermatt J (eds) Research Handbook on the European Union and International Organizations. Edward Elgar, Cheltenham. DOI: https://doi.org/10.4337/9781786438935.00012 Rodgers G, Swepston L, Lee E, Van Daele J (2009) The International Labour Organization and the quest for social justice, 1919–2009. ILO, Geneva. https://www.ilo.org/wcmsp5/groups/public/--dgreports/---dcomm/---publ/documents/publication/wcms_104643.pdf. Accessed 2 August 2022 Skolimowska A (2015) The European Union as a ‘Normative Power’ in International Relations. Theoretical and Empirical Challenges. Yearbook of Polish European Studies 18:111–132 Stringer C, Harré T (2019) Human trafficking as a fisheries crime? An application of the concept to the New Zealand context. Marine Policy. DOI: https://doi.org/10.1016/J.MARPOL.2018.12.024 Telesetsky A (2018) Thailand’s Fishing Labor Reforms. Asia-Pacific Journal of Ocean Law and Policy. DOI: https://doi.org/10.1163/24519391-00302013 UN General Assembly (2001) Oceans and the law of the sea, UN Doc.A/Res/56/12 UN General Assembly (2003) Oceans and the law of the sea, UN Doc.A/Res/58/240 UN General Assembly (2007) Sustainable fisheries, including through the 1995 Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, and related instruments, UN Doc.A/Res/62/177 UN General Assembly (2008) Oceans and the law of the sea, UN Doc.A/Res/63/111 UN General Assembly (2012a) Oceans and the law of the sea, UN Doc.A/Res/67/78 UN General Assembly (2012b) Official Records, UN Doc.A/67/PV.51 UN General Assembly (2013) Sustainable fisheries, including through the 1995 Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, and related instruments, UN Doc.A/Res/68/71 UN General Assembly (2016a) Oceans and the law of the sea, UN Doc.A/Res/71/257 UN General Assembly (2016b) Sustainable fisheries, including through the 1995 Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, and related instruments, UN Doc.A/Res/71/123 UN General Assembly (2017a) Official Records, UN Doc.A/72/PV.63 UN General Assembly (2017b) Sustainable fisheries, including through the 1995 Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, and related instruments, UN Doc.A/Res/72/72 UN General Assembly (2019) Official Records, UN Doc.A/74/PV.42 United Nations (2002) Plan of Implementation of the World Summit on Sustainable Development, UN Doc.A/CONF.199/L.7. https://www.un.org/esa/sustdev/documents/WSSD_POI_PD/ English/WSSD_PlanImpl.pdf. Accessed 2 August 2022 Van der Zwaan, Schaap M, González D, Wybenga R (2014) Safety at sea in fishing: Europe’s underachievement. https://europeche.chil.me/download-doc/57847. Accessed 2 August 2022 Van Elsuwege P, Merket H (2012) The role of the Court of Justice in ensuring the unity of the EU’s external representation. In: Blockmans S, Wessel R (eds) Principles and practices of EU external representation. TMC Asser Institute, The Hague, pp 37–58 Whitman R (2011) Norms, Power and Europe: A New Agenda for Study of the EU and International Relations. In: Whitman R (ed) Normative Power Europe: Empirical and Theoretical Perspectives. Palgrave Macmillan, New York. DOI: https://doi.org/10.1057/9780230305601_1

Chapter 5

Challenges to the EU’s Normativity Notwithstanding Its Membership in Global and Regional Bodies

Contents 5.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.2 Normativity in Cooperative Management of Fish Stocks . . . . . . . . . . . . . . . . . . . . . . . . . . 5.2.1 Universality in Cooperative Management of Fish Stocks . . . . . . . . . . . . . . . . . . . 5.2.2 Re-emerging Participation Limitations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.2.3 Legitimacy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.3 Normativity in Reducing Fisheries Subsidies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.3.1 Universality in Reducing Fisheries Subsidies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.3.2 Use of Instruments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.3.3 Legitimacy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.4 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Abstract This chapter develops the hypothesis of Chap. 4 that membership in relevant international fora holds a strong normative promise that should allow the EU to act in a more normative way and that the existing participation limitations affect its ability to act normatively. It does so by analysing what normativity challenges arise for the EU within those global and regional fora in which it is a member. It examines whether membership in relevant fora ensures normativity in the EU’s conduct and to what extent it neutralises the identified internal and external limitations in Chap. 4 and their effect on the EU’s normativity. As such, this chapter continues the focus on the procedural limitations related to the use of instruments element and examines substantive aspects of the EU’s normativity under the legitimacy element. Thematically, the analysis focuses on the EU’s action in (1) cooperative management of fish stocks with focus on Regional Fisheries Management Organisations and (2) reducing fisheries subsidies with focus on the World Trade Organization. The chapter concludes that the normative promise of membership in international fora remains unfulfilled for the EU because it still faces major obstacles in its attempts to act normatively in the area of fisheries. These obstacles relate to occasional participation limitations related to shared membership arrangements with the EU Member States as well as to failures to ensure coherence and consistency between the EU’s and the EU Member States’ conduct. Keywords RFMO · WTO · FAO · Membership · Management of fish stocks · Fisheries subsidies © T.M.C. ASSER PRESS and the author 2023 M. Vatsov, Fishing Power Europe, Global Europe: Legal and Policy Issues of the EU’s External Action 3, https://doi.org/10.1007/978-94-6265-583-6_5

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5.1 Introduction The previous chapter showed the impact that non-membership participation limitations at international fora have on the European Union’s (EU) normativity in the area of fisheries. It suggested that membership in relevant international fora holds a strong normative promise that should allow the EU to act normatively. This chapter continues in that regard and tests the normative potential of membership. By doing so this chapter furthers the discussion in two main ways. First, it continues the procedural constraints analysis by providing further detail to the EU’s ability to operationalise its powers and meaningfully participate in relevant international fora, which is central to the use of instruments element of normativity. Extending this type of analysis from the previous chapter to this one is necessary because the new analytical context of membership reveals more information about the impact of EU and international law on the EU’s normativity. Second, this chapter examines whether the EU acts with legitimacy when it acts as a member. The analysis of this question focuses more strongly on the coherence and consistency of the EU’s and the Member States’ actions internally and externally. This type of analysis highlights the tension between the EU (mostly the Commission) and the EU Member States in following a unified approach in the area of fisheries. It, thus, shows the strong role of the Member States even where exclusive EU competences are involved and the impact of their conduct on the EU’s normativity. The discussion in this chapter is organised in the following way. Section 5.2 takes the discussion to the regional level and focuses on the EU’s action at Regional Fisheries Management Organisations (RFMO) with various examples and discusses the normativity of that action. That way, this chapter also examines whether there is a difference in the challenges to the EU’s normativity at the global and the regional levels. Section 5.3 focuses on the EU’s actions in the area of fisheries subsidies. In particular, it centres on the fisheries subsidies negotiation process at the World Trade Organization (WTO), which is a global forum, and takes account of other relevant international and intra-EU developments. Section 5.4 concludes that the normative promise of full EU membership in international fora remains unfulfilled. While the EU enjoys a much stronger position as a member compared to cases where it is not a member, it still faces major obstacles in its attempts to act normatively in the area of fisheries. The analysis shows that while there are different types of membership (EUonly or mixed with Member States), the EU’s normativity can always be damaged by lack of commitment of the Member States to a unified EU action.

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5.2 Normativity in Cooperative Management of Fish Stocks 5.2.1 Universality in Cooperative Management of Fish Stocks The RFMOs are the result of States’ recognition of the need for regular cooperation in the management of fish stocks beyond the jurisdictional reach of any one State.1 Today’s international fisheries governance is built on the notion of international cooperation, pointing to RFMOs as the main fora for such cooperation.2 RFMOs or other similar arrangements are crucial pieces of the governance puzzle in that they adopt measures for the direct management of stocks such as total allowable catches (TAC), quota allocations, and mesh sizes. Other crucial pieces are the United Nations Convention on the Law of the Sea (UNCLOS), the UNSFA and the workings of the Food and Agriculture Organization (FAO). The latter is especially relevant because under its auspices some of the RFMOs are created and some important soft-law and binding instruments have been developed and adopted. The effectiveness of RFMOs and other arrangements depends on the level of political and financial commitment of its participants and those fishing in their geographically defined areas of action. That is, any effort can be rendered ineffective by weak (or insufficiently funded) institutional structures allowing for States to veto or opt out of adopted measures (using the so-called ‘objection procedure’), States not cooperating with the RFMOs, serving as flags of convenience, and lack of (good) scientific data.3 Accordingly, the multilateral approach with respect to RFMOs and other arrangements would require not only participation in them, but also not obstructing their work from the inside and seeking to strengthen their institutional structure and overall effectiveness in achieving and keeping stocks at sustainable levels. International cooperation in the management of fish stocks is a universal norm the achievement of which requires supporting the operation of RFMOs and using them to achieve sustainable fishing. The EU’s normativity under the universality element in that regard is very strong. The EU has been pledging to take an active role within RFMOs with the aim of achieving sustainable fishing through strengthening RFMOs and their conservation measures.4 Generally, the EU says that it “actively seeks to lead the process of strengthening the performance of regional and international fisheries organisations in order to better enable them to conserve and manage marine living

1

Churchill and Owen 2010, p. 112. Ibid., p. 113. RFMOs are also globally accepted as such in various international instruments. E.g. The United Nations Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, opened for signature 4 August 1995, 2167 UNTS 3, entered into force 11 December 2001 UNFSA and the annual UNGA Resolutions on the law of the sea and the UNFSA. 3 See Leroy and Morin 2018; Matley 2018, pp. 106–107. 4 See European Commission 1999, p. 4; 2011a, p. 8. Most recently, see European Commission 2016b, p. 3. 2

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resources”.5 Indeed, under the 2013 Basic Regulation, the EU is obliged to “actively support and contribute to the activities of international organisations dealing with fisheries, including RFMOs”.6 The EU has been engaged in several global fora in the UN framework stressing the need to strengthen the role of RFMOs.7 In that way the EU has shown its devotion to the universal norm of cooperation through RFMOs.

5.2.2 Re-emerging Participation Limitations The participation limitations examined in the previous chapter stemmed from the EU’s lack of membership in the relevant fora. This section shows that where the EU manages to obtain membership it may still face certain participation limitations affecting its power to act and in turn its normativity. This is because the use of instruments element of normativity requires an actor to be involved in multilateral processes in order to negotiate with others and convince them to support certain developments that further universal or universalizable norms and principles. As such, that element is predicated on the ability to act as freely as possible at the relevant fora and adopt the necessary instruments. Thus, the EU’s ability to join is just as important as are its participatory actions once it joins these fora. The discussion below starts by giving an overview of the EU’s formal involvement in RFMOs, which shows that the EU’s position is considerably enhanced compared to its involvement at the International Labour Organization (ILO) or the International Maritime Organization (IMO). After this overview the discussion looks at the EU’s participation in the FAO and Commission for the Conservation of Antarctic Marine Living Resources (CCAMLR) and shows that the EU is still facing certain participation limitations affecting its formal involvement and, in turn, its normativity. Both cases show that these participation limitations are external (related to the EU’s capacity) as well as internal (relating to the EU’s competence divisions and the Member States’ conduct).

5.2.2.1

General RFMO Involvement

The EU holds fishing interests in every high seas region of the world ocean where commercial fishing is possible.8 In order to protect these interests the EU has sought to participate in any and all relevant RFMOs. In particular, the EU participates in eighteen RFMOs, two of which have purely advisory functions and will not be discussed, and from the rest five RFMOs deal specifically with tuna and eleven are

5

Ibid. European Parliament and Council 2013, Article 29(1). 7 UN General Assembly 2000, p. 8. European Union 2019. 8 Hedley et al. 2007, p. 67. 6

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non-tuna RFMOs.9 Of these eighteen, the EU most recently, in 2021, joined the North Pacific Fisheries Commission (NPFC) after seeking membership for some time or at least participation as a cooperating non-contracting party (CNCP).10 The EU’s participation in some RFMOs required a Regional Economic Integration Organisation (REIO) clause amendment (an amendment adding a clause allowing for REIOs to participate) and in others it is still a requirement but the EU participates in a different way. For example, since 2009 the EU sought an amendment to the Convention for the Conservation of Southern Bluefin Tuna (CCSBT), which in its Article 13 allows only for States to participate. However, it has not yet been successful and instead the EU participates in the CCSBT Extended Commission since 2015, made possible after an amendment of the Resolution establishing the Extended Commission and an Agreement with the EU.11 The Bering Sea Convention is a similar case because the contracting parties have not yet agreed to amend the Convention. In that case, from the EU side only Poland is a contracting party, and the EU is represented through the Polish seat. The EU has been active in trying to become a full party to the Bering Sea Convention through giving mandate to Poland in 2016 to negotiate, in the EU interest, a REIO clause amendment to Convention12 and now authorising Poland to ratify, in the EU interest, said amendment, once it is adopted internationally.13 The EU also made great efforts at the NPFC, where Russia objected to the EU’s accession in 2019.14 Eventually, the Russian objection was overcome and the EU joined the NPFC in 2021. As this happened before the current state of diplomatic relations between the EU and Russia in light of Russia’s invasion of Ukraine, it is questionable if it would have been possible today. This shows that some of the limitations present at the global fora are also present regionally. The EU has had much better success in overcoming them at the RFMOs as the diplomatic effort required is very much different at that level. Also, some of the RFMOs have been set up under the FAO. Thus, the EU’s participation in them was dependent on its FAO membership. The EU’s participation in RFMOs, generally, falls under its exclusive Common Fisheries Policy (CFP) competence,15 formally giving it a strong position to act, and generally requires that the EU fully replaces its Member States that are participating in the said RFMO, in that they must fully exit it. In such cases, the EU is given a single vote and not a combined number of votes based on the number of its Member States. While this may be a procedural drawback when it comes to formal voting 9

This book uses the term RFMO rather expansively to include what are otherwise called Regional Fisheries Management Arrangements. On the EU’s membership in RFMOs see Popescu 2015, p. 9. See also https://ec.europa.eu/fisheries/cfp/international/rfmo_en. Accessed 2 August 2022. 10 European Commission 2018f. CNCPs are excluded from the decision-making but are obliged to fully cooperate and apply adopted measures in order to participate in the fisheries and are encouraged to contribute to the budget of the RFMO. 11 See Council 2015a. 12 Council 2016. 13 European Commission 2022a. 14 NPFC 2019, para 11. In that case, there is a REIO clause included in the NPFC founding document and the limitation was a matter of reaching political agreement. 15 Lado 2016, p. 152.

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and reportedly has been resented by some Member States,16 in practice a unified EU position holds a strong political and economic force, which is important during the relevant negotiations. Thus, the EU’s normativity is not damaged by such replacements. Furthermore, even if the EU completely replaces its Member States at certain RFMOs, the involvement of the interested Member States does not really disappear. This is clear from the composition of the EU delegations at the RFMOs, which include certain Member State representatives.17 This shows that even if formally it is the whole of the EU participating, depending on the RFMO, it is still the interested Member States that have the main influence. This is logical and pragmatic and supports the view expressed earlier in this book that the EU and the Member State conduct, especially in the area of fisheries, are closely linked as they relate to the same fleet and catches. This practical arrangement, however, leaves the door open for incoherence and inconsistency in the overall EU conduct at different RFMOs even if it is centrally coordinated by a single unit in DG MARE.18 As already mentioned, the complete replacement by the EU has not always been welcomed by the Member States in question, showing that the EU occasionally faces internal limitations.19 Exceptionally, certain Member States may also be members with respect to territories for which they are responsible in one way or another and are not part of the EU, such as Denmark with respect to Greenland and the Faroe Islands.20 Where the RFMO has a broader mandate than simply fisheries conservation and management, the EU participates next to some of its Member States that are interested in the works of the RFMO. Such examples are the General Fisheries Commission for the Mediterranean (GFCM) (the EU being accompanied by ten Member States21 ) and the CCAMLR, (the EU being accompanied by eight Member States22 ). In such cases, with respect to representation, it is of relevance whether the issue falls within the EU’s competence or not. The EU’s ability to act can, thus, sometimes be affected by competence struggles with the Member States, echoing the participation limitation problems discussed in the previous chapter. An example of this is examined below with the Antarctic Fisheries cases. Beyond these limitations, the EU has been active not only in getting to participate in already existing RFMOs but also in the formation of new ones where they are needed.23 The EU has also supported extensions of RFMO mandates in order to include relevant species. An example of this is the EU’s active participation in the

16

Ibid., p. 157. Heckler 2019, p. 437. 18 https://ec.europa.eu/info/sites/info/files/organisation_charts/organisation-chart-dg-mare_en. pdf. Accessed 2 August 2022. 19 Churchill and Owen 2010, p. 360; Sack 1995, p. 1236. 20 Ibid. 21 http://www.fao.org/gfcm/about/membership/en/. Accessed 2 August 2022. 22 https://www.ccamlr.org/en/organisation/members. Accessed 2 August 2022. 23 European Commission 2009, p. 96; 2016a, p. 7; UN General Assembly 2000, p. 8. 17

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negotiation of a Protocol amending the International Convention on the Conservation of Atlantic Tunas and signed it immediately after it was adopted in 2019.24 That Protocol is aimed at including targeted shark fisheries in the mandate of the International Commission for the Conservation of Atlantic Tunas (ICCAT). The EU’s involvement in RFMOs is expressed not only in terms of formal participation but also in financial terms. In particular, the EU is reportedly the largest overall contributor to the budgets of the RFMOs it participates in.25 The EU’s contribution in some RFMOs’ budgets is said to be even financially indispensable.26 The EU has been involved in the multilateral processes at RFMOs also through its support for the Kobe Process, which is a cooperation process of five tuna RFMOs seeking to harmonize their activities.27 The Commission has even considered reviving that process and extending it to all RFMOs.28 The EU’s support for multilateralism through the medium of RFMOs is, however, not unconditional. In particular, the EU has been also active in opposing the creation of RFMOs where the EU sees them as conflicting with the law of the sea principles such as equality of rights and obligations at the high seas. This happened with the so-called Galápagos Agreement in the South-East Pacific.29 In that case Chile, Colombia, Ecuador, and Peru adopted an agreement in 2000 that was closed to other States and sought to manage straddling and highly migratory stocks in the high seas zones of the Southeast Pacific. The legality of some of its aspects was questioned by the EU and other States. In particular, subject to opposition were its provisions on boarding, inspecting and escorting ships on the high seas, which were seen as going beyond the explicitly allowed circumstances under the UNCLOS, as well as its limited membership provisions.30 This development happened in the middle of the so-called Swordfish War between Chile and the EU where Chile extended its conservation measures to the high seas and the Galápagos Agreement has been seen as an attempt to legitimise Chile’s claims.31 As a result of the backlash towards the agreement, it never entered into force and instead was effectively replaced by the Convention on the Conservation and Management of High Seas Fishery Resources in the South Pacific Ocean,32 which was concluded in 2009 by a larger set of parties including the EU and Chile. This shows that the EU’s involvement is indeed seeking to promote the norm of RFMO-centred fisheries governance only if it complies with 24

See Council 2013; DG MARE (2019) Good news for tuna and blue sharks. https://oceans-andfisheries.ec.europa.eu/news/good-news-tuna-and-blue-sharks-2019-11-29_en. Accessed 2 August 2022. 25 Lado 2016, p. 152. 26 Ibid., p. 153. 27 Kobe Process 2009, p. 5; 2011, pp. 7–8, 23. 28 European Commission 2016a, p. 7. 29 See for the debates and the vote explanations UN General Assembly 2000, pp. 8, 10–11. 30 Ibid. 31 Rayfuse 2004, pp. 320–322. 32 Convention on the Conservation and Management of High Seas Fishery Resources in the South Pacific Ocean, opened for signature 14 November 2009, 2899 UNTS I-50553, entered into force 24 August 2012 SPRFMO Convention.

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the overarching universal law of the sea principles. Furthermore, the EU has been active in promoting the inclusiveness of RFMOs for States having interests in the regulated stocks, especially the participation of developing States, in order to ensure the relevance of the RFMOs’ decisions.33 The EU, however, does not have such a strong involvement across the board. The following two case studies exemplify the re-emerging participation limitations the EU suffers notwithstanding gaining membership. FAO The FAO has 194 member Nations, two associate members and one member organisation—the EU. The EU has been an FAO member organisation since 1991 (hitherto holding an observer status since 1962). The EU’s membership was possible following an amendment of the FAO’s constitution, as it previously allowed only for States to be members. The EU’s membership was also crucial for the EU’s participation in regional fisheries bodies created under the FAO. As already stated in Chap. 4, the FAO is an organisation with tremendous expertise in fisheries management and is one of the central fora for the development of the international fisheries regime. The EU’s membership status, however, still presents practical challenges that are widely observed in the literature.34 The EU’s membership in the FAO is based on alternative representation—it is dependent and alternative to the EU Member States’ participation at the FAO. This unique arrangement required the EU to submit a declaration of competence when joining the FAO as well as a statement on the exercise of competences (including voting) on every item on the agenda for every FAO meeting, as explained below. Accordingly, the EU acts at the FAO level through several of its competences. The central competence that is of relevance here is the exclusive competence under the CFP, complemented by shared competences such as development cooperation, and environment. The EU’s membership rights are also limited in that it is precluded from participating in the Programme, Finance and Legal Committees, cannot vote for elective or budget matters, or hold an office in the Conference, the Council, and their subsidiary bodies. Due to the involvement of both exclusive and shared EU competences at the FAO, the Commission and the Council (acting on behalf of the Member States) concluded an arrangement that regulates the speaking and voting rights of the Commission as the EU representative at the FAO.35 Under that arrangement, simply put, the EU or the EU Member State holding the rotating Council Presidency speak and vote if the matter falls within their respective competences.36 If the matter concerns both EU and EU Member State competences, a common position must be agreed based on the 33

European Commission 2009, p. 97; 2013b, pp. 113–114. See e.g. Sack 1995, pp. 1243–1247; Pedersen 2006; Frid 1995, pp. 229–279; Govaere et al. 2004, p. 165; Wouters et al. 2015, pp. 60–65; De Baere 2018, pp. 1255–1258. 35 Council 1991, 1992. 36 Ibid., Annex I, paras 2.1–2.2; Wouters et al. 2015, p. 64. 34

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competence ‘thrust’ of the matter and it should be presented and voted in accordance with that ‘thrust’ analysis by the EU or the rotating Presidency.37 Disagreements are referred to the COREPER.38 While this arrangement theoretically settles the question of EU/Member States participation and avoids the situation of a double Member State representation, there still are practical problems that complicate the EU’s involvement. These relate to hardships in presenting coherent positions due to the involvement of different competences and the existence of disagreements with the Member States.39 Furthermore, the EU’s alternative exercise of membership rights with the EU Member States leaves open the possibility of the EU’s involvement to still be challenged externally and internally.40 Externally, the EU’s involvement and right to speak at FAO meetings needs to be preceded by a competence statement stating that the EU has competence in the matters to be discussed and that it will be voting if vote is taken.41 Nevertheless, any FAO member can challenge the EU’s right to speak arguing the matter is not within its competence. Such a challenge at a COFI meeting has reportedly taken place at the 32nd COFI in 2016. While such challenge was eventually unsuccessful, it had taken a lot of working time to be settled and it was quite possibly deployed as a negotiating tactic of stalling discussions. This shows that even at the FAO, where the EU is a member, participation limitations albeit much smaller can affect the EU’s actorness. Internally, the EU’s involvement at the FAO has also been challenged. A good example is the case with the FAO Fisheries Compliance Agreement.42 During the negotiation of the Compliance Agreement, its substance had changed in such a way as to increase the involvement of EU competences.43 While there was an agreement between the Commission and the Member States that the Agreement was a matter of shared competences each considered that they are entitled to vote and the Council gave the right to vote to the Member States. The Commission challenged this Decision at the Court of Justice of the European Union (CJEU). The CJEU found that the Agreement concerned an issue the main thrust of which lies within exclusive EU competence and that the Council, thus, had violated the internal FAO arrangement concluded between the Council and the Commission.44 According to the CJEU, the matter of who would cast the vote adopting the Fisheries Compliance Agreement at the end of the negotiations impacts who has “competence to implement the

37

Council 1992, Annex I, para 2.3; Wouters et al. 2015, p. 64. Council 1992, Annex I, para 1.12; Wouters et al. 2015, p. 64. 39 Van der Meulen and Wernaart 2019, pp. 85–87. 40 Wouters et al. 2015, p. 65. 41 FAO 2017, Rule XLII(2) of the General Rules, p. 69. 42 Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas, opened for signature 24 November 1993, 2221 UNTS 91, entered into force 24 April 2003. 43 ECJ, Case C-25/94 Commission v Council, Judgment, 19 March 1996, EU:C:1996:114, para 45. 44 Ibid., para 50. 38

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Agreement and to conclude subsequent agreements on the same question”.45 The implementation of binding instruments and conclusion of subsequent ones again influences the EU’s ability to act and, in turn, its normativity. This shows the potential impact of the EU Member States’ actions limiting the EU’s involvement in negotiation processes. In 2013, the Commission submitted a communication on the EU’s post-Lisbon role in the FAO containing an updated competence declaration and inter-institutional arrangement on membership rights.46 Although the Council has discussed it,47 it has not yet taken definitive action. That way the Member States through the Council are effectively stalling the development of the EU’s involvement at the FAO. Such stalling further affects EU’s normativity by preventing the EU from asserting its position more strongly as an actor. CCAMLR As already stated, the internal limitations relate not only to formal membership but also to division of competences as the Antarctic Fisheries cases show.48 In these cases the CJEU took a cautious approach not only on the issue of division of competences but also on the EU’s autonomy as an international actor, which can pose great limitations to the EU’s ability to act externally alone, not just in the RFMO context of the case, but also in other fora and policies.49 In these cases the Commission sought the annulment of Council decisions approving the submission of a reflection paper and a common position to the CCAMLR. The common position and the reflection paper were submitted on behalf of the EU and its Member States. The Commission argued that they should have been submitted on behalf of the EU alone. The two documents concerned the creation and study of marine protected areas (MPA). The Commission argued that the documents and the measures they envisaged fell under the exclusive CFP competence and that the environmental aspects were based on the principle of integration of environmental protection requirements in all EU policies under Article 11 of the Treaty on the Functioning of the European Union (TFEU).50 The CJEU disagreed and held that the matter fell under the shared environmental competence.51 The CJEU also rejected the Opinion of Advocate General (AG) Kokott with respect to the consequence of finding that the environmental competence is applicable. While AG Kokott considered that the EU should have still been able to

45

Ibid., para 36. European Commission 2013a. 47 See Council 2015b. See also Wouters et al. 2015, p. 65. 48 ECJ, Joined Cases C-626/15 and C-659/16 Commission v Council, Judgment, 20 November 2018, EU:C:2018:925. 49 Eckes (2018) Antarctica: Has the Court of Justice got cold feet? https://europeanlawblog.eu/ 2018/12/03/antarctica-has-the-court-of-justice-got-cold-feet/. Accessed 2 August 2022. 50 ECJ, Joined Cases C-626/15 and C-659/16 Commission v Council, Judgment, 20 November 2018, EU:C:2018:925, paras 69–71. 51 Ibid., paras 99–100. 46

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submit the documents on its own behalf only,52 the CJEU found that greater deference should be exercised towards the position of the Member States in the CCAMLR framework. In particular, the CJEU held that [i]n the specific context of the system of Antarctic agreements, exercise by the European Union of the external competence at issue in the present cases that excludes the Member States would be incompatible with international law.53

The Court said this based on two things. First, the EU is not fully autonomous in the CCAMLR framework, as its membership is dependent on membership of one or more of its Member States.54 Second, as the EU is not a party to the Antarctic Treaty, under Article V of the CCAMLR Convention, it is obliged to “acknowledge the special obligations and responsibilities of the Antarctic Treaty consultative parties, including of those of its Member States which have that status”.55 Thus, according to the CJEU, if the EU were to act alone within the CCAMLR under its shared competence, while some of its Member States are Antarctic Treaty consultative parties, it would “undermine the responsibilities and rights of those consultative parties—which could weaken the coherence of that system of agreements” and eventually breach Article V of the CCAMLR Convention.56 That way the Court greatly diminished the EU’s actorness within the CCAMLR by overemphasising the EU’s capacity limitations under international law. While the EU indeed has the cited obligations under Article V of the CCAMLR Convention, the legal position of the Antarctic Treaty consultative parties that are EU Members and those that are not vis-à-vis the EU is not the same. Those that are EU Member States can express their position within the EU processes and their opinion does not seem to have been ignored as the content of the documents subject to the proceedings was not subject to disagreements. The fact that a matter falls under a shared EU competence should not mean that the EU cannot act alone in the CCAMLR context but also beyond it. Just because the EU is a less powerful actor in that context should not be an argument for its limitations to be overemphasised because it is still not uncommon for the EU to be represented by its Member States at various fora (as observed above and in the previous chapter) and that line of argumentation can thus turn to a slippery slope for the EU’s international actorness.57 Furthermore, in the Antarctic Fisheries cases, the CJEU observed beyond the case at hand that when acting under shared competences the EU may act alone but 52

AG Kokott, Joined Cases C-626/15 and C-659/16 Commission v Council, Opinion, 31 May 2018, EU:C:2018:362, para 102. 53 ECJ, Joined Cases C-626/15 and C-659/16 Commission v Council, Judgment, 20 November 2018, EU:C:2018:925, para 128. 54 Convention on the Conservation of Antarctic Marine Living Resources, opened for signature 20 May 1980, 1329 UNTS 47, entered into force 7 April 1982, Article VII(2)(c) j.o. Article XXIX(2). 55 ECJ, Joined Cases C-626/15 and C-659/16 Commission v Council, Judgment, 20 November 2018, EU:C:2018:925, para 132. 56 Ibid., para 133. 57 Eckes (2018) Antarctica: Has the Court of Justice got cold feet? https://europeanlawblog.eu/ 2018/12/03/antarctica-has-the-court-of-justice-got-cold-feet/. Accessed 2 August 2022.

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this is not a requirement.58 In the absence of criteria specifying when the EU is to act alone in such circumstances, the CJEU’s pronouncement means that facultative (politically chosen and not legally required) mixity can be used for adopting measures under Article 218(9) TFEU, as the ones at hand in the Antarctic Fisheries cases. This pronouncement, put next to the emphasis the Court put on the EU’s limitations as an international actor, undermines the EU’s power to act and, in turn, its normativity under the use of instruments element. As observed in Chap. 3, the area of fisheries spans different policies, including several based on shared competences. The Antarctic Fisheries cases showed that in RFMO-like context the environmental competence may sometimes prevail even if the measures at hand do touch upon fisheries matters. Thus, these pronouncements show that, even where the EU is a member, various internal and external limitations may affect its ability to act independently in its own name.

5.2.3 Legitimacy The EU’s expressed strong support for cooperative management of fish stocks and its institutionalisation through RFMOs as well as the sought strong involvement in the relevant fora must be tested against the EU’s actual conduct in order to examine its legitimacy. This sub-section focuses on the EU’s legitimacy in four main areas of action that the Commission has identified as important in the RFMO context. These areas are “[(1) d]elivery of more reliable data and science to underpin the decision-making; [(2) i]ncreased compliance and control; [(3) r]eduction of capacity to levels commensurate with resources; [and (4) m]ore effective functioning of the RFMOs through improved decision-making”.59 The analysis below shows a great lack of coherence and consistency between the EU’s projected ambitions and the actual conduct of the EU and its Member States internally and externally. The internal action is relevant because internally and internationally managed fisheries are closely linked biologically and action under each eventually affects the other. An important part of supporting the multilateral cooperation at the RFMO level in order to ensure the achievement of the overarching sustainable fishing norm is to mirror the dedication to sustainability in other international quota-setting arrangements as well as internally through setting TACs at sustainable levels. With respect to the Member States’ conduct, it is highly relevant for the EU’s normativity because it is inextricably linked to the achievement of the EU’s internal and external goals and commitments in the cooperative management of fish stocks. 58

ECJ, Joined Cases C-626/15 and C-659/16 Commission v Council, Judgment, 20 November 2018, EU:C:2018:925, para 126. 59 European Commission 2011a, 3. The Commission also identified a fifth area—introduction of fees for access to high seas by the members of the RFMO. However, no documents were found showing the EU formally putting forward this idea at any of the fora examined, making it hard to apply a normativity analysis at this point in time.

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Improved Data and Science-Based Decision-Making

The EU has long been criticised for proposing and negotiating quotas at significantly higher levels than scientifically recommended.60 A case in point is its involvement at the ICCAT in 2008 for the quotas on Mediterranean and Eastern Atlantic Bluefin tuna when the scientifically advised 15,000 tonnes was ignored and 22,000 tonnes quota was agreed on.61 There the EU’s action appeared compromised by a particular group of EU Member States and commercial fishing interests.62 Internally, the EU also has a bad record of setting quotas at higher than advised levels. In the words of the Commission in its 2002 Report under the Convention on Biological Diversity, it has made a number of proposals based on scientific information to limit catches in EU waters. These have been the subject of intense negotiation by Member States, with the finally agreed measures generally being less stringent than the original proposals.63

This shows that the Commission was often largely left helpless even when scientifically based proposals were made. These examples brought into question the EU’s ability to act as a whole even where it enjoys exclusive competence.64 In order to break away from previous unsustainable practices the EU has made use of instruments from both its external and internal action. At the global level, the EU has been actively supporting the scientific work of RFMOs and the implementation of their Strategic Research Plans [which] has been achieved through different initiatives, including targeted voluntary contributions to RFMOs, funding of EU projects and dissemination of relevant results to RFMOs, etc.65

However, the EU recognised that there is still a lot of action needed to further strengthen the science-policy interface.66 Thus, internally, the Commission proposed as part of the 2013 CFP reform much stricter decision-making rules seeking to ensure the setting of sustainable quotas both externally and internally. As a result, in the 2013 Basic Regulation the EU is obliged to take into account scientific advice,67 especially with respect to its positions at RFMOs,68 and to end overfishing in its waters by 2020 by “restoring and maintaining populations of fish stocks above biomass levels capable of producing maximum sustainable yield” (MSY)69 Accordingly, with respect to the use of instruments element, the EU has indeed sought to take non-coercive actions and lead by example to influence relevant multilateral negotiations. 60

Belschner 2015, p. 986. Williams 2008, pp. R1110–R1111. 62 Antonova 2015, p. 140. 63 European Union 2002, p. 24. 64 Khalilian et al. 2010, p. 1180. 65 European Union 2018, p. 1. 66 Ibid., pp. 6–7. 67 European Parliament and Council 2013, Article 6(2). 68 Ibid., Article 29(2) and (4). 69 Ibid., Article 2(2). 61

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The implementation of these actions both externally and internally, however, shows a lack of coherence and consistency, damaging the EU’s normativity. The 2013 Basic Regulation states that under one of the objectives of the external CFP the EU shall “actively support and contribute to the development of scientific knowledge and advice”.70 In the RFMO context the EU is obliged to have its positions at international organisations dealing with fisheries and at RFMOs based on the best available scientific advice.71 Even further, the EU is obliged to “support the development of scientific knowledge and advice to ensure that their recommendations are based on such scientific advice”.72 These two obligations, while obliging the EU to work towards sustainably managed stocks at the international level, have a glaring loophole—there is no obligation for the EU to break consensus and otherwise veto measures that eventually disregard scientific advice. That is, the EU may submit positions that are based on available scientific advice knowing full well the other parties may wish to set higher TACs and eventually negotiate how high they would be and not whether or not they are to be above sustainable levels. Said differently, there is no clear obligation of result with respect to the sustainability of the negotiated results after the EU, through the Commission, submits its scientifically based proposals. The practical outcome of this omission is the continued setting of TACs above sustainable levels. The following words of the Commission illustrate this point [f]or stocks subject to consultations with the Coastal States, only the blue whiting TAC for 2019 was in line with the long-term management strategy for this stock, and with ICES Fmsy advice. The EU-Norway negotiations led to a less ambitious result in terms of conservation, as only 9 out of 17 TACs were set in line with Fmsy –fewer than for 2018.73

The reason for this loophole is clear—there are other international actors involved and the EU cannot force them to agree to its proposal. Furthermore, if the EU were to be bound by such an obligation of result, which would practically be hard to achieve, it may hurt the EU in various ways. First, it may cause serious economic harm to the EU as it may have to drastically cut its quotas to have a sustainable result. Second, it may cast the EU into irrelevance as if it votes against unsustainable TACs it may simply be outvoted, where majority voting applies. Third, where the EU can veto unsustainable TACs (where the RMFO voting procedures allow for that), its veto may lead to situations where without an agreed TAC each fishing nation involved will set autonomous catch limits that in total may be even more unsustainable. Accordingly, the result is that such an obligation of result is lacking with the hope that the EU can bring about more sustainable results by being an active negotiator and negotiating TACs that are as close to the scientific advice as possible. From a normativity standpoint employing this tactic can be defended somewhat— the EU still supports the overarching norm of sustainability and fisheries governance 70

Ibid., Article 28(2)(a). Ibid., Article 29(2). 72 Ibid., Article 29(4). 73 European Commission 2019a, p. 2. 71

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through appropriate fora, it supports the multilateral approach, follows the legal procedures, works for the common long-term interest without unduly damaging its own position and is coherent and consistent in its positions and actions. However, the problem is that it is not clear to what extent the EU would agree to an unsustainable result only because of an impossibility to convince its partners to act more sustainably and not also because it seeks to protect the short-term interests of the EU fleet. Using such tactics, the EU has indeed made great strides in improving the sustainability of stocks managed by RFMOs. Probably the best example of an EU effort has been the recent Bluefin tuna recovery at the ICCAT. In particular, the EU proposed a recovery plan74 and invested a lot of money in scientific research on Bluefin tuna75 and control efforts in the Mediterranean Sea.76 The recovery plan for several years involved TACs above scientific advice.77 Eventually, compliance with scientific advice was reached and the stock recovered quickly.78 The EU also convinced the ICCAT members to adopt an electronic Bluefin Tuna documentation programme to control and monitor activities.79 The EU has further proposed and the ICCAT adopted a recovery plan for Mediterranean Swordfish until 2031.80 Accordingly, the EU has shown great progress in its stance on scientifically based TACs. However, some of its actions still draw criticism for being half-hearted and, thus, damaging its normativity. In particular, the EU’s approved proposal at ICCAT to put the Bluefin tuna under a management plan in 2018—i.e. to shorten the recovery plan by five years—has been criticised for being short-term-oriented and profitbased.81 This criticism is based on the inconclusive scientific advice of ICCAT’s scientific body—the Standing Committee on Research and Statistics. According to it, the stock may still be overfished if it is in high recruitment.82 The EU, however, has focused only on the part of the advice stating that, under low or medium recruitment scenarios, it can be considered recovered. Considering the Tarantelo case (discussed below and in Chap. 6), which shows the possibly large amounts of illegal catch caught in such a heavily monitored fishery, the better course of action in terms of normativity would have been greater precaution and not shortening the recovery plan. Internally, the EU has also made great progress in achieving sustainability by having a great number of stocks restored and maintained at MSY levels. The EU has, 74

ICCAT 2008, pp. 221–222. The EU has funded almost completely the Grand Bluefin Tuna Year Programme. See Di Natale et al. 2018, p. 3101. 76 ICCAT 2010, p. 8. 77 Sumaila and Huang 2012, p. 507; Lazat and Bjørndal 2016, p. 10. 78 ICCAT 2017, p. 22. 79 The EU has advocated for them at ICCAT at least since 2010. See ICCAT 2011, p. 372. 80 European Commission 2019a, p. 6. 81 WWF (2017) Bluefin tuna recovery: a ten-year battle may be lost by lack of caution, WWF warns. https://wwf.panda.org/wwf_news/?316059/Bluefin-tuna-recovery-a-ten-year-battlemay-be-lost-by-lack-of-caution-WWF-warns. Accessed 2 August 2022. 82 ICCAT 2017, p. 22. 75

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furthermore, adopted six multiannual plans for various stocks covering the Baltic Sea (cod, herring and sprat),83 North Sea (demersal stocks),84 the Mediterranean (demersal stocks in the Western Mediterranean85 and Bluefin tuna in the Eastern Atlantic and the Mediterranean86 ), the Western waters,87 and internal waters (European eel88 ). However, the fact remains that, contrary to the obligation in the 2013 Basic Regulation, not all stocks are in such state by 2020. In these matters the Council is the sole decision-maker on a proposal from the Commission.89 The failure to achieve the 2020 target has led to legal action from the civil society.90 In the Northern Atlantic and adjacent areas, the Commission proposed for 2019 TACs in line with MSY for all 76 stocks but the Council set TACs at MSY level for only 59 stocks.91 For deep-sea stocks, the Council Decisions were held to be “more closely based on scientific advice than in previous years”, which means that progress exists but they are still not fully based on the scientific advice.92 In the Mediterranean 35 of the 40 assessed stocks were not sustainably exploited in 2017 and for the Black Sea 6 out of 8 assessed stocks remain overfished.93 It is reported that the stocks fished at MSY level generally present positive economic trend, while the fleets targeting overexploited stocks perform economically worse.94 In 2021, the Commission issued a Communication on the state of play and orientations for 2022.95 There, it showed progress but still the MSY goal is not yet achieved. The Commission stated that for all stocks with MSY advice except Western Baltic herring, TACs had been set at MSY levels.96 This raises the question about the stocks without MSY advice. The 2013 Basic Regulation obligation does not have such limitation. Furthermore, the Commission also showed that the Council is still far from fully following the precautionary advice of ICES for many stocks.97 Another major

83

European Parliament and Council 2016a. European Parliament and Council 2018a. 85 European Parliament and Council 2019a. 86 European Parliament and Council 2016b. 87 European Parliament and Council 2019b. 88 Council 2007. 89 Treaty on the Functioning of the European Union (Consolidated Version), opened for signature 25 March 1957, entered into force 1 January 1958, TFEU 2016 OJ C202/47, Article 43(3). 90 Nelsen A (2022) ClientEarth launches legal action against EU over unsustainable fishing quotas. https://www.theguardian.com/environment/2022/mar/25/clientearth-legal-actioneu-unsustainable-fishing-quotas. Accessed 2 August 2022. 91 European Commission 2019a, p. 2. 92 Ibid. 93 Ibid. 94 Ibid., p. 3. 95 European Commission 2021b. 96 Ibid., p. 1. 97 Ibid. 84

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development the Commission observed was that following Brexit the number of EU-only managed TACs, “shrank drastically to only 35 TACs”.98 The 2022 Commission Communication on the state of play and orientations for 2023 observed that “in 2020 the overall fishing mortality ratio fell below 1 in the North East Atlantic for the first time” (original emphasis).99 While Brexit seems to have provided a ground for improved statistics of the EU-only sustainably managed stocks, time will show if the stocks now managed with the UK will improve. The Commission observed in both the 2021 and the 2022 Communications that the Baltic and Mediterranean stocks are in a bad shape and face overfishing.100 Undoubtedly, it did not help in that regard that the Commission’s proposal on fishing opportunities in the Baltic for 2022,101 apart from the TAC levels marked ‘pm’ due to pending publication of ICES advise at the time, has set TACs that the Council eventually increased in the adopted Regulation.102 These actions damage the EU’s normativity through reduced legitimacy on account of the incoherence and inconsistency between words and actions, the failure to fully observe the EU’s own rules due to the still present underlying focus on shortterm self-interest, even if practice shows that in the long-term sustainable action brings greater economic benefit.

5.2.3.2

Increased Compliance and Control

In 2011 the Commission identified three main actions to further work on: (1) periodically reviewing the compliance records of individual parties in the respective RFMOs; (2) identifying the reasons for the incompliance (e.g. lack of capacity) and addressing them in an appropriate manner; and (3) developing and implementing transparent and non-discriminatory sanctions in cases of clear lack of compliance or political engagement, which could be accompanied by incentives to reward complying actors (flag States or fleets).103 These three actions were translated in the 2013 Basic Regulation as an EU obligation to “promote the establishment and the strengthening of compliance committees of RFMOs, periodical independent performance reviews and appropriate remedial actions, including effective and dissuasive penalties, which are to be applied in a transparent and non-discriminatory manner”.104 The inclusion of these actions as a legal obligation shows strong commitment to improving compliance at the international level and increases the EU’s normativity due to the self-imposed nature of the legal obligations. The EU has indeed sought to act in accordance with 98

Ibid., p. 2. European Commission 2022b, p. 2. 100 Ibid., pp. 1–2; European Commission 2021b, p. 5. 101 European Commission 2021a. 102 Council 2021, Annex, Tables 3, 7 and 10. 103 European Commission 2011a, 9. Previously the EU has also stressed the need for effective control over ships by States interested in fishing in RFMO areas. See IISD 2006, p. 1. 104 European Parliament and Council 2013, Article 28(2)(f). 99

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these obligations at the RFMO level, judging by its positions and statements at relevant international fora.105 However, the internal EU record is not as straightforward. There are two examples showing a major want of compliance and control within the EU. The Tarantelo Case Internally, the EU relies on the European Fisheries Control Agency (EFCA) in order to “organise coordination and cooperation between national control and inspection activities so that the rules of the CFP are respected and applied effectively”.106 It also provides support for various international control and inspection tasks in the context of relations with third countries or RFMOs.107 Nevertheless, the EFCA’s mandate is limited as it does not have an autonomous operational mandate but supports the Member States’ authorities. Recently, the EU’s efforts in compliance and control have been put in doubt in light of many reports of failed enforcement by the EU Member States. Probably the starkest example is the uncovered illegal scheme for Bluefin tuna in 2018. In that scheme, it was estimated that the uncovered network trafficked a volume of over 2500 tonnes a year (about 20% of the EU quota in the 2016–2017 period108 ) making over EUR 12 million per year.109 The network spanned over several EU Member States. This is an example of a failure by the national authorities of the Member States to ensure strict compliance and control, which, however, is eventually elevated to the EU level and involves the EU’s normativity. Formally, a contrast can be drawn between failures of one or more Member States to act and a failure of the EU institutions to act. However, in terms of normativity, when these actions relate to the area of fisheries and more specifically the CFP, for which the EU claims to be the responsible actor, that formal contrast is insignificant. This is because in both situations there is incoherence and inconsistency between what happens in the EU internally and what the EU professes externally and expects from its partners. Even if the failure does not involve the EU’s international responsibility, it certainly involves its normativity. The same applies to other examples of Member State failures considered in this book. The internal competence divisions could hardly help the EU’s normativity in this case. The situation shows that the internal enforcement arrangement (where the Member States and not a centralised EU organ deal with enforcement) can be a strong limitation that is inadequate and prevents comprehensive EU action reducing its ability to act and in turn its normativity.

105

See Council 2019a, b, c, d, e, f, g, h, i, j, k, l. Council 2005. See also http://www.efca.europa.eu/en/content/mission-statement. Accessed 2 August 2022. 107 Council 2005, Article 4. 108 ICCAT 2019, p. 74. 109 Europol (2018) How the illegal Bluefin tuna market made over EUR 12 million a year selling fish in Spain. https://www.europol.europa.eu/newsroom/news/how-illegal-bluefin-tuna-market-madeover-eur-12-million-year-selling-fish-in-spain. Accessed 2 August 2022. 106

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Still, it must be said that the whole scheme was uncovered through police cooperation at the EU level using EUROPOL110 and the Commission reacted quickly in ensuring that involved entities do not eventually benefit from European Maritime Fisheries Fund (EMFF) funding.111 This showed that the relevant EU bodies have strong commitment to compliance and control but the failures at the Member State level affect them just the same. Furthermore, if the estimates are true, the success story of the Bluefin tuna and the effect of the EU’s efforts would be put in question.112 Furthermore, the Commission has at its disposal the tool of initiating infringement proceedings against offending Member States under Article 258 TFEU, which can lead to imposition of financial penalties for inaction under Article 260 TFEU. This tool holds the potential of recovering some normativity. The Commission has indeed followed up on this case by sending a letter of formal notice to Malta in 2020 and a reasoned opinion in 2021.113 It is yet to be seen if the Commission will initiate proceedings before the CJEU.114 This solution also has a limited practical effect on its own when it comes to ensuring such wide-spread fraud does not occur. This is because it is hard enough for national law enforcement authorities to uncover such fraud in detail to bring the responsible to justice and even harder for the Commission to prove that this fraud was a direct consequence of particular Member States breaching specific EU law provisions. Furthermore, infringement proceedings can take a long time before concluding (and even starting, as this case shows) and even longer before producing the desired effect, if a Member State is found in violation. After all, under Articles 258 and 260 TFEU, neither the Commission, nor the CJEU can directly bring about changes at the national level thorough an infringement procedure. The Landing Obligation According to the Commission, discards (catches that are returned to the sea) were one of the CFP’s top problems115 and the 2013 CFP reform introduced their gradual elimination, including gradually repealing rules requiring discards.116 However, this created some compatibility issues internationally. Certain RFMO measures still mandate discards, in contradiction to EU rules. In order to provide certainty and ensure the compliance with the EU’s international obligations, the Commission adopted a delegated Regulation, which introduced the necessary derogations into EU law.117 However, the Commission views this as a temporary solution while it 110

Ibid. European Commission 2019b. 112 ICCAT 2019, pp. 73–74. 113 https://ec.europa.eu/commission/presscorner/detail/en/inf_20_859. Accessed 2 August 2022; https://ec.europa.eu/commission/presscorner/detail/en/inf_21_5342. Accessed 2 August 2022. 114 An online search on 2 August 2022 in the pending cases of the CJEU did not show such proceedings. 115 European Commission 2011b, p. 1. 116 European Parliament and Council 2013, recital 26. 117 European Commission 2015, as last amended by European Commission 2018b. 111

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is promoting the abolition of discarding rules at the relevant RFMOs.118 The press release of that Regulation stated that “the European Commission seeks a level playing field for EU operators by promoting the elimination of discards in RFMOs. In the Northwest Atlantic Fisheries Organisation (NAFO), for instance, a working group was established upon EU proposal to examine the discard situation and find ways to reduce them”.119 Unfortunately, no substantive progress seems to have come up from that working group. With the beginning of 2019, the gradual introduction of the landing obligation ended, and it must be fully observed in EU waters and by EU vessels on the high seas120 or if provided in access agreements in the waters of the respective third States. The landing obligation is another example of a strong normative effort by the EU. It shows that even where the EU has taken the lead internally to improve fisheries sustainability and has sought to advocate for similar action at RFMOs, it has taken measures to avoid legal incompatibilities and has relied on multilateralism. While the EU has indeed shown international commitment to this issue, the internal situation draws heavy criticism. Recent reports of ClientEarth show that some of the biggest fishing EU Member States (France,121 Denmark,122 and Spain123 ) failed to enforce the discard ban. The findings in these reports appear to be broadly supported by the Commission in 2019 saying that: [r]egarding control and enforcement, compliance with the landing obligation remains weak. Member States have a responsibility to ensure the control, enforcement and inspection of all CFP-related activities, including the landing obligation. Commission audits and other EFCA initiatives indicate a general lack of compliance, compounded by difficulties in effectively controlling compliance by conventional means.124

In 2022, the situation had barely changed, and the Commission observed that: [t]he findings of the audits launched by the Commission in 2020 show that the Member States audited have not adopted the necessary measures to ensure effective control and enforcement of the landing obligation and significant undocumented discarding of catches by operators.125

118

European Commission (2015) EU fishing in international waters aligned with landing obligation. https://ec.europa.eu/newsroom/mare/items/20181/en. Accessed 2 August 2022. 119 Ibid. 120 European Parliament and Council 2013, Article 15. 121 ClientEarth (2019) The Control of the Landing Obligation in France. https://www.client earth.org/media/44olkpm3/the-control-of-the-landing-obligation-in-france-ce-en.pdf. Accessed 2 August 2022. 122 ClientEarth (2019) The Control of the Landing Obligation in Denmark. https://www.client earth.org/media/ashhk3al/the-control-of-the-landing-obligation-in-denmark-coll-en.pdf. Accessed 2 August 2022. 123 ClientEarth (2017) The Control and Enforcement of Fisheries in Spain. https://www.client earth.org/media/vipafv4h/the-control-and-enforcement-of-fisheries-in-spain-ce-en.pdf. Accessed 2 August 2022. 124 European Commission 2019a, p. 5. 125 European Commission 2022b, p. 6.

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This led the Commission to launch infringement proceedings in 2021 “against Spain, France, Belgium, Ireland and the Netherlands for failing to take appropriate measures to ensure control, enforcement and inspection of the landing obligation and to ensure detailed and accurate documentation of catches”.126 The lack of compliance and the failure by the Member States to enforce the rules is another example of decreasing the EU’s normativity. This is because of the incoherence and inconsistency in enforcing the landing obligation also making the EU appear incapable of ensuring that its rules are followed due to its internal enforcement competence allocation, putting its relevance into question as an actor. As the Commission noted, the lack of compliance is compounded by the practical difficulties of ensuring compliance in what happens at sea. In that regard the Commission has accepted that remote electronic monitoring systems such as closed-circuit television would be able to help127 and has included them in its proposal or a new fisheries control system.128 It is now in the hands of the co-legislators to strengthen the control system by adopting the Commission’s proposal.

5.2.3.3

Capacity Reduction

The EU seeks to address overcapacity at the multilateral and RFMO levels through reviewing best available scientific advice on sustainable catch levels and considering measures to address it.129 The EU considers such measures to include “capacity freeze or reduction, while taking into account the aspirations of the developing States to develop their own fishery sector”.130 The EU has also acted in this area through soft-law.131 This approach shows the emphasis the EU puts on the global capacity reduction as opposed to leading by example and unilaterally and comprehensively reducing the EU fleet. While the EU has already taken capacity reduction measures internally,132 they are by far not as comprehensive as ought to be, especially if the available resources in EU waters are taken as the benchmark for evaluating that capacity.133 Considering the discussion on vessel construction subsidies below, the EU’s record is becoming even bleaker. Nevertheless, it must be said that some of the EU’s conduct can be understood in the absence of a global legally binding agreement on capacity (even though the FAO’s International Plan of Action on the Management of Fishing Capacity attempted to go in that direction at paras 40–41) even for an actor seeking to act normatively. They can be understood because, in the context of fisheries with a lack of a capacity 126

Ibid. Ibid.; European Commission 2018g, p. 3. 128 European Commission 2018d. 129 European Commission 2011a, p. 9. 130 Ibid. 131 European Union et al. 2014. 132 European Union 2016, p. 4. 133 European Commission 2021, pp. 4–5; 2022b, pp. 3–4. 127

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reduction agreement, comprehensive and unilateral capacity reduction would most probably not lead to a reduction of the total global effort. Instead, it is to be expected that other States with big fleets will simply match the reduced EU fleet and if their fishing activities are even less sustainable the EU’s capacity reduction would eventually be damaging. Naturally, this is a speculation but it goes to show that in this specific context the lack of unilateral and comprehensive capacity reduction does not necessarily lead to lack of normativity. However, suggestions (discussed in Sect. 5.3) to bring back vessel construction subsidies in the EU at times when the industry is turning high profits damages the EU’s normativity. This is because it is one thing to delay drastic capacity reduction to protect vital interests until common agreement is struck and quite another to fund vessel modernisation and construction. The EU’s normativity is further damaged by the fact that the Member States are widely failing in monitoring the engine power of their fleets.134 This failure greatly undermines any capacity control actions at the EU level and damages its legitimacy externally in that area.

5.2.3.4

Improved RFMO Functioning

For many years the EU had a poor record in RFMO cooperation, most notably, through frequently using the objection procedure (preventing the adoption of the measures in question) at the NAFO and setting much higher unilateral quotas.135 Objections were largely due to Spanish interests after Spain joined the EU in 1986 and in six years the EU objected fifty-one times to NAFO decisions. That protection of the Spanish interests, however, was probably to compensate for the extensive limitations imposed on Spain (and Portugal) under the CFP in accessing the waters of other EU Member States due to their large fleets.136 Thus, instead of solving internal overcapacity problems, the EU was simply ‘exporting’ them to the high seas. For many years now the EU has not used the objection procedure, showing commitment to the RFMO processes, and leading to increased normativity in the EU’s actions. Currently, the EU considers the adoption of management measures by consensus to best guarantee the highest level of compliance. However, the EU recognises that it is not always possible to reach a consensus and, thus, supports reforms of the decision-making systems in RFMOs. Such reforms are to allow for voting where necessary in line with the South Pacific Regional Fisheries Management Organisation (SPRFMO) system, which the Commission saw in 2011 as the most progressive and efficient procedure thus far adopted,137 in the creation of which the EU itself was involved. Similarly, the new ICCAT Protocol features rules that “clarify voting rules 134

Ibid.; Siggins L (2019) EU states failing to monitor fishery engine power. https://www.irishe xaminer.com/news/arid-30939746.html. Accessed 2 August 2022. 135 Song 1997. Hedley et al. 2007. 136 On the limitations, see Long and Curran 2000, pp. 19–20, 24–25. 137 European Commission 2011a, p. 9; SPRFMO Convention, above n. 32, Articles 16–17.

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and quorum in the ICCAT Commission in particular majority requirements in situations where consensus cannot be achieved”.138 Naturally, the same voting arrangements do not necessarily work best in all RFMOs due to the membership variations. The recent amendments to the NAFO Convention rely strongly on consensus and avoid voting,139 which seems to work well for it. Either way, the EU’s involvement in these developments shows strong normative action because it supports a common goal of improved RFMO functioning through an expressly multilateralism-oriented approach, which the EU has acted to bring about. An important aspect of the EU’s RFMO involvement is also the use of internal instruments to support the multilateral cooperation and particularly the implementation of the RFMO measures. The EU has been very strict in implementing illegal, unreported, or unregulated (IUU) fishing RFMO measures blacklisting vessels or imposing import measures on specific States. This EU practice is discussed in more detail in Chap. 6. However, it is not equally quick in transposing all RFMO measures. There are two cases in point. First, with respect to the ICCAT, it has taken the EU almost a decade to implement certain ICCAT Recommendations. The European Parliament has criticised this situation not only for damaging the EU’s reputation as a leader but also legal certainty. In particular, according to the European Parliament, the ICCAT Recommendations that the EU sought to adopt, especially on Mediterranean Swordfish, were already obsolete and outdated as they had been in the meantime replaced by a new recovery plan at the ICCAT, for which no implementing proposal had been adopted.140 Second, with respect to the SPRFMO, the EU took five years to adopt its first transposition of SPRFMO measures, which had been adopted in 2013.141 These delays are partly because implementing such measures is subject to a complete co-legislation procedure, which is not a quick procedure. Unfortunately, the co-legislators have not yet agreed to delegate powers to the Commission to speed up the transpositions or to use dynamic references to RFMO technical documents.142 As RFMOs adopt management measures annually, it is inevitable that the EU legislation will follow with some delay. At the same time, it has taken in some cases years for the Commission to even begin the said legislative processes, which may be due to administrative capacity constraints. Legally, it may be said that the said RFMO measures are binding on the Member States through Article 216(2) TFEU. However, as the European Parliament observed, it is in the interest of legal certainty that such measures are appropriately transposed in EU law. DG MARE itself has admitted that 138

European Commission 2019c, p. 1. See International Convention for the Conservation of Atlantic Tunas, opened for signature 14 May 1966, 64 UNTS 1969, entered into force 21 March 1969, Article III(3) as amended. 139 Convention on Cooperation in the Northwest Atlantic Fisheries, opened for signature 24 October 1978, 1135 UNTS 369, entered into force 1 January 1979, Article XIII. An important amendment to the NAFO Convention was also the 2007 one, which introduced the ecosystem approach and the sustainability of fishery resources, which was spearheaded by the EU and Canada. 140 European Parliament 2018a, Annex to the legislative resolution. 141 European Parliament and Council 2018b. 142 The Commission is currently proposing such powers to be delegated to it in the context of ICCAT, see European Commission 2019d.

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advancing on transposition “will help improve transparency and predictability and strengthen our credibility on the international scene”.143 Overall, there are signs of the EU taking positive leadership steps in the cooperative management of fish stocks especially in fora it has previously attracted criticisms for its actions.144 Admittedly, the EU’s leadership actions are not simply altruistic. They openly have also a strong self-interest aspect—ensuring a level playing field for the EU fleet. Nevertheless, this type of action is consistent with normative action. This is because ensuring level playing field is not incompatible with common interests, it follows pre-existing international developments, and seeks to support universal norms. It does that through a multilateral approach involving negotiations at relevant regional and global fora, to the extent it is not hampered by participation limitations. However, the EU’s actions at RFMOs are still marked by many legitimacy problems, especially a lack of coherence and consistency of its and its Member States’ conduct. Although these seem to be largely due to the interests of particular Member States and the actions to protect them and not the EU as a whole, it is the EU’s normativity aspirations that are damaged.

5.3 Normativity in Reducing Fisheries Subsidies 5.3.1 Universality in Reducing Fisheries Subsidies The dire state of many fisheries stocks in the world ocean is the result of a mixture of man-made developments. The recovery of these stocks is largely hindered by continuous fishing activities, increasing the pressure on the stocks. The continuous fishing of over-exploited stocks results in a corresponding reduction of the yield. Such a reduction leads to lower profit margins, which at some point, in normal market conditions, would lead the fishing actors to decrease their effort or even exit the fishery, allowing it to recover. The fishing sector, however, does not appear to operate in normal market conditions. One reason for this is the existence of fisheries subsidies. Through them, governments cover certain costs of the fishing operators, increasing their profit margin and incentivising them to continue exerting pressure on the stocks. This is, admittedly, an over-simplification of the subsidies issue. Nevertheless, it is useful for introducing the issue in the present discussion.145 One can judge the level of controversy surrounding the issue of fisheries subsidies by simply looking at the number of various definitions thereof that are being put forward by global and regional organisations, consultant groups, and academics.146 The lack of an agreed definition and detailed reporting of subsidies leads to an 143

European Commission 2018c, p. 14. Antonova 2015, pp. 141–142. 145 For a much more detailed analysis of the issue, see e.g. UNEP 2011. 146 Bellmann et al. 2016, p. 183. 144

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impossibility to precisely quantify global fisheries subsidies.147 Numerous studies have, nevertheless, attempted to do so and while their figures vary widely the overwhelming majority of the studies conclude that the subsidies are to the tune of tens of billions USD per year.148 However, not all of these subsidies are considered harmful. Sumaila et al., using a broad definition of subsidies, have identified three main types of subsidies, based on the impact they tend to have on the fisheries resources.149 These types are beneficial, capacity-enhancing, and ambiguous subsidies. Beneficial subsidies are addressed to inter alia fisheries management programmes and fisheries research and development. Capacity-enhancing subsidies include modernisation, renewal, and increase of the fishing fleet, tax exemptions, access to foreign fishing grounds, and fuel subsidies. Ambiguous subsidies include vessel buy-back programmes and rural fisher community development. Naturally, this classification rests on certain assumptions—“the actual environmental effects of capacityenhancing and ambiguous subsidies on the fish stocks targeted will depend on the type of fisheries management regime in place as well as on the state of the fish stocks” (Emphasis original).150 That is to say, in situations of well-managed stocks with high abundance such subsidies would not be environmentally harmful. Subsidies are currently a leading and widely discussed topic in international fisheries law and policy discussions.151 Their environmental, social, and economic aspects prompted a number of organisations with different mandates to consider them, including the Organisation for Economic Co-operation and Development (OECD), the United Nations Environment Programme (UNEP), the FAO, and the WTO.152 The current debate has been traced in the literature to the work of the FAO in the early 1990s.153 However, international trade law emerged as the main field for negotiating a solution due to the trade-distorting effect of the fisheries subsidies. Thus, the WTO is used as the central forum for these negotiations. The subsidies negotiations directly aim at the conservation and management of stocks through the medium of trade. Although they have moved slowly and with little success for a long time, consensus was emerging on prohibiting subsidies that contribute to IUU fishing in light of Sustainable Development Goal (SDG) 14.6.154 Most recently, at the 12th Ministerial Conference, a Fisheries Subsidies Agreement (FSA) text was agreed.155 It would now require two-thirds of the WTO members to deposit their instruments of acceptance for it to become operational. The FSA has 147

UNEP 2011, p. 14. Ibid.; WTO 2010, p. 121. For more recent estimates, see Sumaila et al. 2016, 2020. 149 Sumaila et al. 2013, pp. 21–25. 150 Bellmann et al. 2016, p. 184. 151 E.g. Milazzo 1998; Young 2009; Chen 2010; UNEP 2011. 152 European Commission 2001, p. 14. Note that the OECD considered the issue as early as the 1960s—OECD 1964. 153 FAO 1993. 154 WTO (2017) WTO members hold discussions aimed at deepening talks on fisheries subsidies. https://www.wto.org/english/news_e/news17_e/fish_06apr17_e.htm. Accessed 2 August 2022. 155 https://www.wto.org/english/tratop_e/rulesneg_e/fish_e/fish_e.htm. Accessed 2 August 2022. 148

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been welcomed by various stakeholders as an important first step of an even longer development.156 This future agenda is itself set out in the text of the Ministerial Decision adopting the FSA and in the rather unusual sunset clause of the FSA. According to the Ministerial Decision, 4. Notwithstanding Article 9.4 of the Agreement on Fisheries Subsidies, the Negotiating Group on Rules shall continue negotiations based on the outstanding issues in documents WT/MIN(21)/W/5 and WT/MIN(22)/W/20 with a view to making recommendations to the Thirteenth WTO Ministerial Conference for additional provisions that would achieve a comprehensive agreement on fisheries subsidies, including through further disciplines on certain forms of fisheries subsidies that contribute to overcapacity and overfishing, recognizing that appropriate and effective special and differential treatment for developing country Members and least developed country Members should be an integral part of these negotiations.157

According to Article 12 FSA, “[i]f comprehensive disciplines are not adopted within four years of the entry into force of this Agreement, and unless otherwise decided by the General Council, this Agreement shall stand immediately terminated”.158 The comprehensive disciplines generally refer to subsidies contributing to overcapacity and overfishing—i.e. vessel acquisition and modernisation, purchase of engines, machinery and equipment, fuel costs and other variable costs, and fishing beyond the subsidizing members’ waters. Accordingly, the prohibition of harmful subsidies is a universalizable norm that is in the process of becoming universal and its content is still changing. Despite its initial opposition,159 the EU has shown support for this process and the creation of this norm since the Doha round and sought to actively influence their outcome. In particular, the EU’s 2003 paper to the negotiations stated that “[w]e have no doubt that introducing such rules on subsidies will eventually lead to a reduction in overcapacity, and therefore also to reduction in overfishing”.160 The EU’s position has since been one of supporting subsidies reduction as evidenced from its 2017 revised proposal161 and the fact that the WTO’s fisheries negotiations were considered a priority issue.162 The EU’s conduct in that regard is, thus, complying with the universality element of normativity.

156

For initial reactions on it, see WWF (2022) WWF welcomes long-awaited WTO agreement to curb harmful fisheries subsidies. https://wwf.panda.org/wwf_news/press_releases/?5852941/ WWF-welcomes-long-awaited-WTO-agreement-to-curb-harmful-fisheries-subsidies. Accessed 2 August 2022; IUCN (2022) IUCN applauds WTO Trade Ministers’ decision on fishing subsidies. https://www.iucn.org/news/marine-and-polar/202206/iucn-applauds-wto-trade-ministers-dec ision-fishing-subsidies. Accessed 2 August 2022; Bangura and Kromah 2022; Lennan and Switzer 2023. 157 WTO 2022, para 4. 158 Ibid., Attachment. 159 Chen 2010, p. 139; WTO 1998, p. 2. 160 WTO 2003. 161 WTO 2017a. 162 Council 2019m, p. 3.

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5.3.2 Use of Instruments The use of instruments element requires as a precondition the ability to act and be meaningfully involved in relevant international processes. As observed above, even as a member, the EU may still face certain participation limitations at relevant fora. Thus, a brief consideration of the EU’s position at the WTO is needed here to examine whether the EU meets similar challenges. The WTO is open to States and customs territories and has 164 members, representing over 98% of international trade. The WTO deals with a wide range of international trade issues, which also cover fisheries not only as traded goods but also as a natural resource in need of protection.163 The EU and all its Member States are WTO members. The EU acts at the WTO under its exclusive Common Commercial Policy (CCP) and almost always to the exclusion of its Member States.164 The extent of the exclusivity of the EU’s competence in the WTO context has been subject to development since Opinion 1/94 on concluding the WTO Agreement, where the CJEU held that certain matters are subject to shared competence, thus, justifying the involvement of the Member States. With the Lisbon Treaty the EU’s competence at the WTO has been further solidified.165 With respect to the fisheries subsidies negotiations discussed below, it is exclusively the EU that leads the negotiations. In accordance with Article 218(3) TFEU, it is the Commission that represents the EU at these negotiations after an authorisation by the Council. The negotiation positions are formed through the Commission coordinating the position with the Member States by consulting the trade policy committee of the Council.166 Accordingly, as with other fora, the EU’s involvement is a result of a concerted effort of the Commission and the Member States. Unlike other fora and despite being a member next to all its Member States, however, the EU has managed to assert its position as the relevant interlocutor and strengthen its normativity. The legal explanation for this is the wide scope of the exclusive CCP. Considering that the exclusive CFP has also been exercised in other fora, as with the Compliance Agreement at the FAO, yet EU action has been undermined by the Member States, there is probably a more practical explanation for the more unified stance at the WTO. Such explanation can be a realisation of the Member States that their interventions will be stronger in trade matters if they speak with one voice.

163

WTO 2010, pp. 162–169; Appellate Body, United States—Import Prohibition of Certain Shrimp and Shrimp Products, Report, 12 October 1998, AB-1998-4, paras 130–132. 164 TFEU, above n. 89, Article 3(3). 165 ECJ, Case C-414/11 Daiichi Sankyo and Sanofi-Aventis Deutschland, Judgment, 18 July 2013, EU:C:2013:520. 166 https://policy.trade.ec.europa.eu/eu-trade-relationships-country-and-region/eu-and-wto_en. Accessed 2 August 2022.

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Evidence for this is the strong, albeit not unwavering, support for the EU representatives in dealing with the US in during the strained trade relations under President Trump.167 The use of instruments element of normativity also requires involvement in multilateral processes in order to negotiate with others and convince them to support certain developments that further universal or universalizable norms and principles. Through its decision to commit to the multilateral process of the WTO negotiations with the aim to reach a global agreement on fisheries subsidies that would improve fisheries sustainability, the EU increased its normativity under the use of instruments element. One way in which the EU has done that is through advocating at the United Nations General Assembly for reaching an agreement on subsidies in the context of the law of the sea annual resolutions.168 The EU’s commitment to the multilateral process has also influenced its bilateral trade instruments. A clear relationship with the WTO negotiations was included in the agreement with Canada (CETA). In Article 7.4(1) CETA the EU and Canada agree that they share “the objective of working jointly to reach an agreement […] to help develop a global, multilateral resolution to fisheries subsidies”. Additionally, Article 7.4 CETA provides a mechanism for consultations where one of the parties considers a subsidy of the other party to be adversely affecting, or may adversely affect, its interests with respect to inter alia fisheries products. Such a consultation request must be accorded “full and sympathetic consideration” and best endeavours are to be used to eliminate or minimise the adverse effects of the subsidy. By including such a link in CETA with the WTO negotiations the EU is committing in an (economically and politically) important bilateral agreement to support the process in a multilateral way to achieve a global solution. This is still an isolated practice for the EU’s modern trade agreements, yet it shows the EU’s commitment to the overall multilateral process. The involvement in international processes is closely tied to the use of autonomous instruments. This is especially so in the present context because, although they are part of an internal policy, they deal with the very issue the multilateral negotiations seek to regulate and are closely followed by the other participants in the negotiations. Evidence of this is New Zealand’s statement at a 2017 meeting of the WTO Committee on Subsidies and Countervailing Measures, where it “recalled the progress made by the EU with respect to the Common Fisheries Policy and related fisheries funds, including the elimination of capacity enhancing subsidies such as vessel construction and modernization, and encouraged the EU to continue those reforms”.169 The EU has indeed made use of such internal instruments to supplement its external instruments and actions without using forms of coercion. In particular, the beginning of the Doha round coincided with the reform process of the CFP and 167

Valero J (2020) Member states ‘in the dark’ over Commission’s talks with the US. https://www.euractiv.com/section/economy-jobs/news/member-states-in-the-dark-on-commis sions-talks-with-the-us/. Accessed 2 August 2022. 168 UN General Assembly 2017, p. 13; 2019, p. 13; 2020, p. 10. 169 WTO 2017b, p. 3.

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its structural part—the Financial Instrument for Fisheries Guidance. During that reform process, the issues of subsidies and capacity were discussed. As a result, the EU adopted its 2002 Basic Regulation and the structural part of the CFP excluded funding for vessel construction from 2005.170 The EU also introduced a structural support scheme for achieving additional fishing effort reduction through scrapping fishing vessels.171 The EU continued its policy of not funding vessel construction in the following operational period (2014–2020) under the EMFF.172 Accordingly, under the use of instruments element of normativity, the EU’s commitment to the multilateral approach through its action internally and externally at the bilateral and multilateral level shows strong normativity.

5.3.3 Legitimacy 5.3.3.1

Interest

Although the fisheries subsidies negotiations are concluded for now (pending entry into force of the agreement), it is important to briefly mention their great importance for the EU’s action in the area of fisheries in order to appreciate what was at stake and the interests involved. First, the outcome of the negotiations could strongly contribute to the sustainability objective of the external CFP, especially where subsidies contributing to IUU fishing are discontinued. Second, the negotiations could impact the budgetary spending of the EU under the CFP by forcing the EU to reduce its own subsidies.173 One of the contentious issues in that regard is the fisheries access agreements.174 These agreements involve transfers of considerable financial governmental resources. If they were prohibited,175 the EU fleets may have had to withdraw from many fishing grounds with nowhere to go. That would also affect the EU’s partners who strongly rely on those financial resources. Another such contentious issue is the use of the EU’s internal structural support for the fisheries industry—the fisheries fund, which is further discussed below. Third, the fisheries subsidies negotiations also involved an aspect of differential responsibility towards developing States. The challenge with respect to the EU and developed States is that some of the developing States also provide large shares of the worldwide subsidies and if all developing States are exempt from the agreed rules on fisheries subsidies the EU’s 170

Council 2002a, new Article 9(1)(a). Council 2002b. 172 European Parliament and Council 2014, Article 11(b). 173 On the structural instruments under the CFP that are providing subsidies, see Dross et al. 2009, p. 63. 174 Ibid., p. 60. 175 According to one analysis, “access agreements per se do not breach any rules of the [WTO subsidies] Agreement, but certain fisheries enabled by access agreements may fall within its disciplines”. Orellana 2008, p. 22. 171

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fishing industry will be heavily affected. The European Parliament has stressed in that regard that the Commission is to insist in these negotiations that EU producers are not put at a competitive disadvantage vis-à-vis third-country suppliers.176 Thus, the EU had a very strong interest in the outcome of these negotiations. This makes the analysis of the EU’s conduct with respect to fisheries subsidies very interesting for a discussion on its normativity. This is because it is an area where the EU had to balance its interests and the norms and principles it advocates and eventually to make hard choices. These choices show its normativity in an area where the EU has strong competences offering great normative promises. As already shown, the EU took big steps towards reaching an agreement on reducing fisheries subsidies. This conduct is in the common long-term interest due to the presumed positive impact that reduced subsidies would make on fisheries sustainability. However, as described in more detail below, some EU conduct during the negotiations indicated an internal policy shift towards increasing certain fisheries subsidies that are considered more harmful due to their effect on maintaining or even increasing the currently unsustainably high capacity of the EU fleet.

5.3.3.2

Coherence and Consistency

The EU’s normativity under the legitimacy element suffers the most under the coherence and consistency sub-element. It requires compatibility and complementarity between actions within a policy or across policies and for consistency in applying and interpreting relevant norms. The EU’s conduct to be examined below has shown incoherence between the EU’s position at the WTO under the CCP and its actions internally under the CFP when analysed in more detail with respect to the impact of capital investment subsidies such as vessel construction on sustainable fishing. These types of subsidies are part of the comprehensive disciplines on which agreement was not reached at the WTO but is on the agenda for future negotiations. Since 2002, the EU’s CFP has sought to reduce harmful subsidies by inter alia preventing public funds from increasing the fleets’ capacity. This has been an important aspect of the 2002 and the 2013 Basic Regulations. This was also the basis on which the EU could actively engage in the WTO subsidies negotiations and advocate for their reduction. While the EU has remained actively involved in these negotiations, certain conflicting actions with respect to fisheries subsidies remained. The 2007–2013 European Fisheries Fund (EFF) was adopted under the 2002 CFP reform. The EFF was admittedly more progressive than its predecessor.177 However, the EFF still allowed for certain albeit limited assistance to go towards fleet modernisation178 and investment and for the construction or acquisition of new vessels,179

176

European Parliament 2011, para 18. Chen 2010, p. 187. 178 Council 2006, Article 25. 179 Ibid., Article 27. 177

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which contradicted the 2002 Basic Regulation.180 This deviation effectively resulted in backtracking on the EU’s international position and its subsidy-reducing stance.181 The currently ending EMFF took over the EFF and was developed and introduced in a much more coordinated manner with the 2013 CFP reform. The 2013 Basic Regulation requires the Member States to put in place measures to adjust the fishing capacity of their fleet to their fishing opportunities over time, taking into account trends and based on best scientific advice, with the objective of achieving a stable and enduring balance between them.182

These measures must culminate in an action plan that is strictly followed and failure to do so may result in suspension of EMFF funding.183 Where the EMFF is used to support permanent cessation (fleet-capacity reduction), the Basic Regulation prohibits the reintroduction of that capacity and also sets capacity ceilings that the Member States must ensure are not exceeded.184 The EMFF Regulation also put compliance with CFP rules at the centre of the support regime. In its recitals the EMFF Regulation states that [i]n accordance with Regulation (EU) No 1380/2013, Union financial support under EMFF is to be made conditional upon compliance by Member States and by operators with the rules of the CFP. This requirement is intended to reflect the responsibility of the Union to ensure, in the public interest, the conservation of marine biological resources under the CFP pursuant to Article 3 TFEU.185

The EMFF Regulation continued to allow some assistance for vessel modernisation through replacement or modernisation of main or ancillary engines.186 However, in a sign of development, the EMFF stated in clear terms that the construction of new fishing vessels or the importation of fishing vessels cannot draw funding from the EMFF.187 The prohibition was complemented by a Regulation regulating de minimis state aid in the fishery and aquaculture sector. Under that Regulation the de minimis exception does not apply to inter alia: (d) aid for the purchase of fishing vessels; (e) aid for the modernisation or replacement of main or ancillary engines of fishing vessels; (f) aid to operations increasing the fishing capacity of a vessel or equipment increasing the ability of a vessel to find fish; (g) aid for the construction of new fishing vessels or importation of fishing vessels.188 180

Chen 2010, pp. 187–188. Ibid. 182 European Parliament and Council 2013, Article 22. 183 Ibid. 184 Ibid. 185 European Parliament and Council 2014, recital 14. 186 Ibid., Articles 25 and 41. 187 Ibid., Article 11(b). 188 European Commission 2014, Article 1. 181

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However, this strong prohibition was short-lived. In 2017, the European Parliament called on the Commission to introduce supporting measures based on Article 349 TFEU to allow the funding of the Outermost Regions’ fishing vessels and proposed that the capacities of certain Outermost Regions fleet segments is increased.189 The Commission responded that it will evaluate the current entry/exit capacity scheme and propose, as appropriate, amendments and that it will “[c]onsider allowing State aid for the construction of new vessels in the outermost regions subject to conditions ensuring sustainable fisheries”.190 Eventually, the Commission adopted a Communication in November 2018 amending the state aid examination guidelines to the fisheries sector.191 That way, the strong language of the EMFF Regulation was circumvented by allowing national public money to be used for vessel construction. At the same time in 2017 the EU submitted a proposal in the WTO negotiations that stated: 1.1. The Parties shall not grant or maintain any of the following subsidies: (a) subsidies that increase the marine fishing capacity of a fishing vessel or support the acquisition of equipment that increases the ability of a fishing vessel to find fish; (b) subsidies that support the construction of fishing vessels or the importation of fishing vessels; and (c) subsidies for the transfer of fishing vessels to other countries including through the creation of joint ventures with partners of those countries.192

The text of this proposal goes to prevent any vessel construction subsidies as well as other capacity increasing subsidies. Thus, it goes very far as it does not even allow vessel replacement subsidies or vessel construction with reference to the state of the stocks which they would fish. In the past few years, the EU was in the process of negotiating the European Maritime Fisheries and Aquaculture Fund (EMFAF) for 2021–2027. This time, it was being negotiated a few years in advance of an anticipated CFP reform. As such, its outcome can set the tone for the following Basic Regulation allowing it to have an even stronger impact on the EU’s external action with respect to subsidies, thus, also affecting its normativity. The Commission’s proposal sought, inter alia, to continue preventing the use of EU funds for vessel construction, in line with its international position on the matter.193 However, many Member States in the Council and a majority in the European Parliament sought to change this. The European Parliament adopted its position at first reading not long before the 2019 European Parliament elections proposing amendments opening the new fund to vessel construction.194 The Council adopted in June 2019 its negotiating position (partial general

189

European Parliament 2018b, paras 40 and 43. European Commission 2017, p. 6. 191 European Commission 2018a. 192 WTO 2017a. 193 European Commission 2018e. 194 European Parliament 2019. 190

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approach) on the proposal.195 That position reflected the European Parliament’s position with respect to vessel construction support. In particular, the position expanded the scope of support to include inter alia investments related to energy efficiency, and to the “acquisition or importation of fishing vessels, as well as the replacement or modernisation of engines for vessels up to 24 metres”.196 The stance of the co-legislators was proving very problematic for the Commission and its efforts in the subsidies negotiations at the WTO, as evident from the abovementioned EU proposal. Furthermore, they were affecting already existing international commitments of the EU, such as SDG 14.197 According to SDG 14.6, by 2020 States should “prohibit certain forms of fisheries subsidies which contribute to overcapacity and overfishing, eliminate subsidies that contribute to illegal, unreported and unregulated fishing and refrain from introducing new such subsidies”. The eventually adopted EMFAF Regulation brands as ineligible operations or expenditure for EMFAF support inter alia “(a) operations that increase the fishing capacity of a fishing vessel, unless otherwise provided for in Article 19; (b) the acquisition of equipment that increases the ability of a fishing vessel to find fish; (c) the construction, acquisition or importation of fishing vessels, unless otherwise provided for in Article 17; […] (m) the replacement or modernisation of a main or ancillary engine of a fishing vessel, unless otherwise provided for in Article 18”.198

Articles 17, 18 and 19 of the EMFAF Regulation, introduce the exceptions to these prohibitions. These exceptions, while trying to limit such subsidies towards some ideas of sustainability, they have opened the gate to effectively harmful subsidies in the unbalanced EU fleet. These are precisely the type of subsidies on the WTO agenda for continued negotiations. Considering the time it would take for the FSA to enter into force and the four year deadline in its sunset clause, one would expect that at least the post-2027 fisheries fund regulation will live up the expectations on removing harmful subsidies. While the WTO negotiations on these points have been unsuccessful reportedly not because the EU representatives did not agree to them, that outcome surely plays into the hand of the stakeholders that advocated for the exceptions in the EMFAF Regulation. These exceptions severely damage the EU’s normativity. First, the EU shows a very incoherent approach between its international stance and its internal actions by offering such subsidies from its fund. Second, it is doubtful that these subsidies respect the provisions on the management of fishing capacity in the 2013 Basic Regulation. In particular, the exceptions do not even limit the use of the funds for replacing existing vessels or otherwise replacing existing capacity. Even then, however, such 195

Council 2019n. Council (2019) European Maritime and Fisheries Fund 2021–2027: Council ready to negotiate with the European Parliament. https://www.consilium.europa.eu/en/press/press-releases/2019/ 06/18/european-maritime-and-fisheries-fund-2021-2027-council-ready-to-negotiate-with-the-eur opean-parliament/. Accessed 2 August 2022. 197 According to the Commission, its original post-2020 proposal complies with SDG 14, specifically the aspects the co-legislators seek to change. See WTO 2019. 198 European Parliament and Council 2021, Article 13. 196

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replacement would maintain the current overall overcapacity of the fleet, which contradicts the EU’s sustainability efforts. Third, returning to vessel construction subsidies would be showing a strong bias towards short-term self-interest at the expense of the common interest in reducing overcapacity, especially in times of overall profiting EU fishing industry. Procedurally, the Commission had the right to withdraw its proposal under the ordinary legislative procedure, while it was under negotiation. This would have arguably sent a very strong signal to the co-legislators and to the international community. However, such a move was highly unlikely due to the heavy political responsibility that the Commission would have had to bear as that move may have resulted in the delay of the fund, which is used for many positive actions, including data collection and control. Thus, the case of the fisheries fund shows how even an EU membership at the WTO, where it acts under an exclusive competence (CCP), can fail to provide the expected normative action by the EU. It shows that even where legal obstacles are greatly decreased, the normative promise may remain unfulfilled due to internal incoherencies and short-term self-interests.

5.4 Conclusion This chapter explored the hypothesis that membership in relevant international fora holds a strong normative promise allowing the EU to act normatively. It did so by looking at the EU’s involvement in two different types of international fora—a global one (WTO) and regional ones (RFMOs). The EU acts in these fora under its exclusive competences—CCP and CFP—and acts on behalf of its Member States (except for some matters at the FAO and some RFMOs and very rarely at the WTO, where the EU acts alongside some of its Member States as shared competences are involved). Looking at these different types of fora allowed for an examination of how the global and regional contexts influence the EU’s normativity on account of the different legal frameworks, number of interlocutors, and interests involved. The analysis showed that the normative promise of EU membership in international fora remains unfulfilled. While, admittedly, the EU enjoys a much stronger position as a member at the global and the regional levels compared to cases where it is an observer, it still faces major obstacles in its attempts to act normatively in the area of fisheries. While formal internal and external limitations and the shortcomings of the EU’s international legal capacity are greatly diminished in the examined fora, the EU is still facing, albeit rarely, participation limitations. They are quite isolated and do not affect greatly the EU’s ability to act normatively. Still attention should be paid to the developments that are to follow from the Antarctic Fisheries cases. Although participation limitations have been diminished, the EU Member States’ interests are still frustrating the EU’s normativity efforts. The Commission as the institution representing the EU and its interests internationally is not able to always ensure coherent and consistent EU conduct in that regard, even where exclusive EU competences are involved. The Member States influence the EU’s normativity

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in several ways. First, they influence it through their direct standing in international fora, where applicable. Second, they influence it through their position in the Council having to approve legislative acts or EU positions. Third, they influence it through exercising their enforcement powers under the CFP. This chapter shows that in these situations the Member States are prone to focus on short-term self-interests creating incoherencies and inconsistencies with the Commission’s actions and sometimes even conflict with EU law. This conduct seriously damages the EU’s normativity under the legitimacy element, even if the EU’s normativity under the universality and the use of instruments element is quite strong.

References Antonova A (2015) Reforming European Union Participation in Fisheries Management and Conservation on the High Seas. Ocean Yearbook. DOI: https://doi.org/10.1163/22116001-029 01007 Bangura K, Kromah A (2022) The WTO’s Fisheries Subsidies Agreement: What’s New and What’s Next? Global Trade and Customs Journal 17:431–435 Bellmann C, Tipping A, Sumaila R (2016) Global trade in fish and fishery products: An overview. Marine Policy. DOI: https://doi.org/10.1016/J.MARPOL.2015.12.019 Belschner T (2015) Not so green after all? The EU’s role in international fisheries management: the cases of NAFO and ICCAT. Journal of European Public Policy. DOI: https://doi.org/10.1080/ 13501763.2014.989891 Chen C (2010) Fisheries Subsidies under International Law. Springer, London. DOI: https://doi. org/10.1007/978-3-642-15693-9 Churchill R, Owen D (2010) The EC Common Fisheries Policy. Oxford University Press, Oxford Council (1991) Arrangement between the Council and the Commission concerning the preparation of FAO meetings and statements and voting, 10478/91 Council (1992) Application of the Council and Commission Arrangement of 19 December 1991 concerning the preparation of FAO meetings (doc. 10478/91), 9050/92 Council (2002a) Regulation (EC) 2369/2002 amending Regulation (EC) 2792/1999 laying down the detailed rules and arrangements regarding Community structural assistance in the fisheries sector, OJ L358/49 Council (2002b) Regulation (EC) 2370/2002 establishing an emergency Community measure for scrapping fishing vessels, OJ L358/57 Council (2005) Regulation (EC) 768/2005 establishing a Community Fisheries Control Agency and amending Regulation (EEC) 2847/93 establishing a control system applicable to the common fisheries policy, OJ L128/1 Council (2006) Regulation (EC) 1198/2006 on the European Fisheries Fund, OJ L223/1 Council (2007) Regulation (EC) 1100/2007 establishing measures for the recovery of the stock of European eel, OJ L248/17 Council (2013) Decision authorising the Commission to open negotiations on behalf of the European Union on amendments to the International Convention for the Conservation of Atlantic Tunas Council (2015a) Decision (EU) 2015/1497 on the signing, on behalf of the European Union, and provisional application of the Agreement in the form of an Exchange of Letters between the European Union and the Commission for the Conservation of Southern Bluefin Tuna (CCSBT) concerning the membership of the Union in the Extended Commission of the Convention for the Conservation of Southern Bluefin Tuna, OJ L234/1

150

5 Challenges to the EU’s Normativity Notwithstanding Its Membership …

Council (2015b) The role of the European Union in the Food and Agriculture Organisation (FAO) after the Treaty of Lisbon − Presidency report on the state of discussions regarding the updated Declaration of competences and the new internal arrangements, 8233/15 Council (2016) AGRIFISH Decision of 11 April 2016, 7277/16 Council (2019a) Decision (EU) 2019/858 on the position to be taken on behalf of the European Union in the Meeting of the Parties of the Southern Indian Ocean Fisheries Agreement (SIOFA), and repealing the Decision of 12 June 2017 establishing the position to be adopted, on behalf of the Union, in the Meeting of the Parties of the SIOFA, OJ L140/21 Council (2019b) Decision (EU) 2019/859 on the position to be taken on behalf of the European Union in the South Pacific Regional Fisheries Management Organisation (SPRFMO), and repealing the Decision of 12 June 2017 establishing the position to be adopted, on behalf of the Union, in the SPRFMO, OJ L140/27 Council (2019c) Decision (EU) 2019/860 on the position to be taken on behalf of the European Union in the Indian Ocean Tuna Commission (IOTC), and repealing the Decision of 19 May 2014 on the position to be adopted, on behalf of the Union, in the IOTC, OJ L140/33 Council (2019d) Decision (EU) 2019/861 on the position to be taken on behalf of the European Union in the South East Atlantic Fisheries Organisation (SEAFO), and repealing the Decision of 12 June 2014 on the position to be adopted, on behalf of the Union, in the SEAFO, OJ L140/38 Council (2019e) Decision (EU) 2019/862 on the position to be taken on behalf of the European Union in the Western and Central Pacific Fisheries Commission (WCPFC), and repealing the Decision of 12 June 2014 on the position to be adopted, on behalf of the Union, for the Conservation and Management of Highly Migratory Fish Stocks in the WCPFC, OJ L140/44 Council (2019f) Decision (EU) 2019/863 on the position to be taken on behalf of the European Union in the Northwest Atlantic Fisheries Organisation (NAFO), and repealing the Decision of 26 May 2014 on the position to be adopted, on behalf of the Union, in the NAFO, OJ L140/49 Council (2019g) Decision (EU) 2019/864 on the position to be taken on behalf of the European Union in the North Atlantic Salmon Conservation Organization (NASCO), and repealing the Decision of 26 May 2014 on the position to be adopted, on behalf of the Union, in the NASCO, OJ L140/54 Council (2019h) Decision (EU) 2019/865 on the position to be taken on behalf of the European Union in the North-East Atlantic Fisheries Commission (NEAFC), and repealing the Decision of 26 May 2014 on the position to be adopted, on behalf of the Union, in the NEAFC, OJ L140/60 Council (2019i) Decision (EU) 2019/866 on the position to be taken on behalf of the European Union in the annual Conference of the Parties to the Convention on the Conservation and Management of Pollock Resources in the Central Bering Sea, and repealing the Decision of 12 June 2017 establishing the position to be adopted, on behalf of the Union, in that annual Conference, OJ L140/66 Council (2019j) Decision (EU) 2019/867 on the position to be taken on behalf of the European Union in the Commission for the Conservation of Antarctic Marine Living Resources (CCAMLR), and repealing the Decision of 24 June 2014 on the position to be adopted, on behalf of the Union, in the CCAMLR, OJ L140/72 Council (2019k) Decision (EU) 2019/868 on the position to be taken on behalf of the European Union in the International Commission for the Conservation of Atlantic Tunas (ICCAT), and repealing the Decision of 8 July 2014 on the position to be adopted, on behalf of the Union, in the ICCAT, OJ L140/78 Council (2019l) Decision (EU) 2019/869 on the position to be taken on behalf of the European Union in the General Fisheries Commission for the Mediterranean (GFCM), and repealing the Decision of 19 May 2014 on the position to be adopted, on behalf of the Union, in the GFCM, OJ L140/84 Council (2019m) Outcome of the 3731st Council meeting Foreign Affairs and Trade, 14433/19 Council (2019n) Partial General Approach, 10297/19

References

151

Council (2021) Regulation fixing for 2022 the fishing opportunities for certain fish stocks and groups of fish stocks applicable in the Baltic Sea and amending Regulation (EU) 2021/92 as regards certain fishing opportunities in other waters, OJ L384/1 De Baere G (2018) EU Status in Other International Organizations. In: Schütze R, Tridimas T (eds) Oxford Principles of European Union Law. Oxford University Press, Oxford. DOI: https://doi. org/10.1093/OSO/9780199533770.003.0044 Di Natale A, Tensek S, Pagá García A (2018) ICCAT Atlantic-Wide Research Programme For Bluefin tuna (GBYP) Activity Report for the Last Part of Phase 6 and the First Part of Phase 7 (2016–2017). ICCAT Collected Volume of Scientific Papers 74:3100–3171 Dross M, Acker H, Schönherr N (2009) The Impact of WTO and Other Trade Negotiations on Fisheries. http://www.europarl.europa.eu/RegData/etudes/etudes/join/2009/419119/IPOL-PECH_E T(2009)419119_EN.pdf. Accessed 2 August 2022 European Commission (1999) Communication on Community participation in Regional Fisheries Organisations (RFOs), COM(1999) 613 final European Commission (2001) Communication on Elements of a Strategy for the Integration of Environmental Protection Requirements into the Common Fisheries Policy, COM(2001) 143 final European Commission (2009) Staff Working Document, Accompanying the Report from the Commission to the Council, EU 2009 Report on Policy Coherence for Development, SEC(2009) 1137 final European Commission (2011a) Communication on External Dimension of the Common Fisheries Policy, COM(2011) 424 final European Commission (2011b) Proposal for a Regulation of the European Parliament and of the Council on the Common Fisheries Policy, COM(2011) 425 final European Commission (2013a) Communication, The role of the European Union in the Food and Agriculture Organisation (FAO) after the Treaty of Lisbon: Updated Declaration of Competences and new arrangements between the Council and the Commission for the exercise of membership rights of the EU and its Member States COM(2013) 333 final European Commission (2013b) Staff Working Document, EU 2013 Report on Policy Coherence for Development SWD(2013) 456 final European Commission (2014) Regulation 717/2014 on the application of Articles 107 and 108 of the Treaty on the Functioning of the European Union to de minimis aid in the fishery and aquaculture sector, OJ L190/4 European Commission (2015) Delegated Regulation (EU) 2015/98 on the implementation of the Union’s international obligations, as referred to in Article 15(2) of Regulation (EU) 1380/2013 of the European Parliament and of the Council, under the International Convention for the Conservation of Atlantic Tunas and the Convention on Future Multilateral Cooperation in the Northwest Atlantic Fisheries, OJ L16/23 European Commission (2016a) Joint Communication, International ocean governance: an agenda for the future of our oceans, JOIN(2016) 49 final European Commission (2016b) Proposal for a Council Directive implementing the Agreement concluded between the General Confederation of Agricultural Cooperatives in the European Union (COGECA), the European Transport Workers’ Federation (ETF) and the Association of National Organisations of Fishing Enterprises (EUROPÊCHE) of 21 May 2012 as amended on 8 May 2013 concerning the implementation of the Work in Fishing Convention, 2007 of the International Labour Organisation COM(2016) 235 final European Commission (2017) Communication, A stronger and renewed strategic partnership with the EU’s outermost regions, COM(2017) 623 final European Commission (2018a) Communication amending the Guidelines for the Examination of State Aid to the Fishery and Aquaculture Sector, OJ C 422/1 European Commission (2018b) Delegated Regulation (EU) 2018/191 amending Commission Delegated Regulation (EU) 2015/98 on the implementation of the Union’s international obligations, as referred to in Article 15(2) of Regulation (EU) No 1380/2013 of the European Parliament

152

5 Challenges to the EU’s Normativity Notwithstanding Its Membership …

and of the Council, under the International Convention for the Conservation of Atlantic Tunas, regarding the Mediterranean stock of swordfish, OJ L36/13 European Commission (2018c) DG MARE, Management Plan 2019, Ares(2018)6633859 European Commission (2018d) Proposal for a Regulation of the European Parliament and of the Council amending Regulation (EC) 1224/2009, and amending Regulations (EC) 768/2005, (EC) 1967/2006, (EC) 1005/2008, and Regulation (EU) 2016/1139 of the European Parliament and of the Council as regards fisheries control, COM(2018) 368 final European Commission (2018e) Proposal for a Regulation of the European Parliament and of the Council on the European Maritime and Fisheries Fund and repealing Regulation (EU) 508/2014 of the European Parliament and of the Council, COM(2018) 390 final European Commission (2018f) Recommendation for a Council Decision to authorise the Commission to open negotiations on behalf of the European Union to accede to the Convention for the Conservation and Management of High Seas Fisheries Resources in the North Pacific Ocean, COM(2018) 376 final European Commission (2018g) Towards new SCIPs: Advisory Council Consultation. http:// nsrac.org/wp-content/uploads/2018/02/Paper-9.1-SCIPs-AC-consultation-For-Information. docx. Accessed 2 August 2022 European Commission (2019a) Communication on the State of Play of the Common Fisheries Policy and Consultation on the Fishing Opportunities for 2020, COM(2019) 274 final European Commission (2019b) Letter from Commissioner Karmenu Vella to Maltese Prime Minister Jose Herrera dated 22 March 2019, Ares(2019)1960839 European Commission (2019c) Proposal for a Council Decision on the conclusion, on behalf of the European Union, of the Protocol to amend the International Convention for the Conservation of Atlantic Tunas, COM(2019) 472 final European Commission (2019d) Proposal for a Regulation of the European Parliament and of the Council establishing a multiannual management plan for bluefin tuna in the eastern Atlantic and the Mediterranean, amending Regulations (EC) 1936/2001, (EU) 2017/2107, and (EU) 2019/833 and repealing Regulation (EU) 2016/1627, COM(2019) 619 final European Commission (2021a) Proposal for a Council Regulation fixing for 2022 the fishing opportunities for certain fish stocks and groups of fish stocks applicable in the Baltic Sea, and amending Regulation (EU) 2021/92 as regards certain fishing opportunities in other waters, COM(2021) 491 final European Commission (2021b) Towards more sustainable fishing in the EU: state of play and orientations for 2022, COM(2021) 279 final European Commission (2022a) Proposal for a Council Decision authorising the Republic of Poland to ratify, in the interest of the European Union, the amendment to the Convention on the Conservation and Management of Pollock Resources in the Central Bering Sea, COM(2022) 263 final European Commission (2022b) Towards more sustainable fishing in the EU: state of play and orientations for 2023, COM(2022) 253 final European Parliament (2011) Resolution on the arrangements for importing fishery and aquaculture products into the EU with a view to the future reform of the CFP, OJ C351E/119 European Parliament (2018a) Legislative Resolution, Management, conservation and control measures applicable in the ICCAT Convention area, OJ C346/236 European Parliament (2018b) Resolution on Management of fishing fleets in the outermost regions, OJ C 298/92 European Parliament (2019) Legislative Resolution on European Maritime and Fisheries Fund, P8_TA-PROV(2019)0343 European Parliament, Council (2013) Regulation (EU) 1380/2013 on the Common Fisheries Policy, amending Council Regulations (EC) No 1954/2003 and (EC) No 1224/2009 and repealing Council Regulation (EC) No 2371/2002 and (EC) No 639/2004 and Council Decision 2004/585/EC, OJ L354/22

References

153

European Parliament, Council (2014) Regulation (EU) 508/2014 on the European Maritime and Fisheries Fund, OJ L149/1 European Parliament, Council (2016a) Regulation (EU) 2016/1139 establishing a multiannual plan for the stocks of cod, herring and sprat in the Baltic Sea and the fisheries exploiting those stocks, amending Regulation (EC) 2187/2005 and repealing Regulation (EC) 1098/2007, OJ L191/1 European Parliament, Council (2016b) Regulation (EU) 2016/1627 on a multiannual recovery plan for bluefin tuna in the eastern Atlantic and the Mediterranean, and repealing Regulation (EC) 302/2009, OJ L252/1 European Parliament, Council (2018a) Regulation (EU) 2018/973 establishing a multiannual plan for demersal stocks in the North Sea and the fisheries exploiting those stocks, specifying details of the implementation of the landing obligation in the North Sea and repealing Regulations (EC) 676/2007 and (EC) 1342/2008, OJ L179/1 European Parliament, Council (2018b) Regulation (EU) 2018/975 laying down management, conservation and control measures applicable in the South Pacific Regional Fisheries Management Organisation (SPRFMO) Convention Area, OJ L179/30 European Parliament, Council (2019a) Regulation (EU) 2019/1022 establishing a multiannual plan for the fisheries exploiting demersal stocks in the western Mediterranean Sea and amending Regulation (EU) 508/2014, OJ L172/1 European Parliament, Council (2019b) Regulation (EU) 2019/472 establishing a multiannual plan for stocks fished in the Western Waters and adjacent waters, and for fisheries exploiting those stocks, amending Regulations (EU) 2016/1139 and (EU) 2018/973, and repealing Regulations (EC) 811/2004, (EC) 2166/2005, (EC) 388/2006, (EC) 509/2007 and (EC) 1300/2008, OJ L83/1 European Parliament, Council (2021) Regulation (EU) 2021/1139 establishing the European Maritime, Fisheries and Aquaculture Fund and amending Regulation (EU) 2017/1004, OJ L247/1 European Union (2002) Second National Report under the CBD. https://www.cbd.int/doc/world/ eur/eur-nr-02-en.pdf. Accessed 2 August 2022 European Union (2016) Proposed EU positions regarding the various elements for the assessment of the adequacy and effectiveness of the Agreement, Ares(2018)4019955 European Union (2018) Submission to the thirteenth round of informal consultations of the States Parties to the UN Fish Stocks Agreement concerning the “Science-policy interface” European Union (2019) Submission on Performance reviews of regional fisheries management organisations and arrangements at the 14th round of informal consultations of States parties to the UNFSA. https://www.un.org/depts/los/convention_agreements/ICSP14/States/EUContrib ution.pdf. Accessed 2 August 2022 European Union, Philippines, Indonesia, USA, Japan, Colombia (2014) Joint Statement on Efforts to Promote Sustainable Fishing Capacity Management on the Global Scale. http://ec.europa.eu/commission_2010-2014/damanaki/headlines/press-releases/2014/03/ 20140314_joint_statement_signed.pdf. Accessed 2 August 2022 FAO (1993) Marine Fisheries and the Law of the Sea: A Decade of Change. https://www.fao.org/ 3/u9345e/u9345e00.htm. Accessed 2 August 2022 FAO (2017) Basic Texts. https://www.fao.org/3/mp046e/mp046e.pdf. Accessed 2 August 2022 Frid R (1995) The Relations Between the EC and International Organizations: Legal Theory and Practice. Kluwer, The Hague Govaere I, Capiau J, Vermeersch A (2004) In-Between Seats: The Participation of the European Union in International Organizations. European Foreign Affairs Review. DOI: https://doi.org/10. 54648/EERR2004012 Heckler P (2019) Regional Fisheries Management Organisations: Defining the EU and Member State roles. In: Wessel R, Odermatt J (eds) Research Handbook on the European Union and International Organizations. Edward Elgar, Cheltenham. DOI: https://doi.org/10.4337/978178 6438935.00030 Hedley C, Churchill R, De La Fayette L, Hønneland G, Serdy A (2007) Perspectives for the United Nations Fish Stocks Agreement. https://www.europarl.europa.eu/RegData/etudes/etudes/ join/2007/375320/IPOL-PECH_ET(2007)375320_EN.pdf. Accessed 2 August 2022

154

5 Challenges to the EU’s Normativity Notwithstanding Its Membership …

ICCAT (2008) Report for biennial period, 2006–2007: Part I (2006) – Vol. 1. https://www.iccat.int/ Documents/BienRep/REP_EN_06-07_I_1.pdf. Accessed 2 August 2022 ICCAT (2010) Report for biennial period, 2008–2009: Part I (2008) – Vol. 1. https://www.iccat.int/ Documents/BienRep/REP_EN_08-09_I_1.pdf. Accessed 2 August 2022 ICCAT (2011) Report for biennial period, 2010–11: Part I (2010) – Vol. 1. https://www.iccat.int/ Documents/BienRep/REP_EN_10-11_I_1.pdf. Accessed 2 August 2022 ICCAT (2017) Report of the 2017 ICCAT Bluefin Stock Assessment Meeting. https://www.iccat. int/Documents/Meetings/Docs/2017_BFT_ASS_REP_ENG.pdf. Accessed 2 August 2022 ICCAT (2019) Report for biennial period, 2018–19: Part I (2018) – Vol. 1. https://www.iccat.int/ Documents/BienRep/REP_EN_18-19_I-1.pdf. Accessed 2 August 2022 IISD (2006) UNFSA Review Highlights, Wednesday, 23 May 2006. Earth Negotiations Bulletin. https://enb.iisd.org/download/pdf/enb0758e.pdf. Accessed 2 August 2022 Khalilian S, Froese R, Proelss A, Requate T (2010) Designed for Failure: A critique of the Common Fisheries Policy of the European Union. Marine Policy. DOI: https://doi.org/10.1016/J.MARPOL. 2010.04.001 Kobe Process (2009) Report of the Second Joint Meeting of Tuna Regional Fisheries Management Organizations (RFMOs). https://www.tuna-org.org/Documents/TRFMO2/01%2002%20R eport%20and%20Appendix%201%20San%20Sebastian.pdf. Accessed 2 August 2022 Kobe Process (2011) Chair’s Report of the Third Joint Meeting of the Tuna Regional Fisheries Management Organizations (Kobe III). https://www.tuna-org.org/Documents/TRFMO3/REPKOBE3-ENG.pdf. Accessed 2 August 2022 Lado E (2016) The Common Fisheries Policy: The Quest for Sustainability. Wiley Blackwell, Chichester. DOI: https://doi.org/10.1002/9781119085676 Lazat E, Bjørndal T (2016) The Eastern Atlantic Bluefin Tuna: Fast Crash and Swift Recovery for the Ferrari of the Ocean? https://openaccess.nhh.no/nhh-xmlui/bitstream/handle/11250/243 1346/SNF%2bWP%2b07_16.pdf?sequence=1&isAllowed=y. Accessed 2 August 2022 Lennan M, Switzer S (2023) Agreement on Fisheries Subsidies. The International Journal of Marine and Coastal Law 38:(forthcoming) Leroy A, Morin M (2018) Innovation in the decision-making process of the RFMOs. Marine Policy. DOI: https://doi.org/10.1016/J.MARPOL.2018.05.025 Long R, Curran P (2000) Enforcing the Common Fisheries Policy. Blackwell Science, Malden Matley H (2018) Developments in International Fisheries Law and Their Contribution to Improving the Effectiveness of RFMOs and Other Environmental Regimes. In: Craik N, Jefferies C, Seck S, Stephens T (eds) Global Environmental Change and Innovation in International Law. Cambridge University Press, Cambridge. DOI: https://doi.org/10.1017/9781108526081.007 Milazzo M (1998) Subsidies in World Fisheries: A Reexamination. The World Bank, Washington DC NPFC (2019) 5th Commission Meeting Report. https://www.npfc.int/sites/default/files/2019-08/ NPFC-2019-COM05-Final%20Report.pdf. Accessed 2 August 2022 OECD (1964) Recommendation of the Council concerning Subsidies and Other Financial Support to Fishing Industries of Member Countries, OECD/LEGAL/0062 Orellana M (2008) Towards Sustainable Fisheries Access Agreements: Issues and Options at the World Trade Organization. https://wedocs.unep.org/bitstream/handle/20.500.11822/23017/ Sust_Fisheries_Agreements.pdf?sequence=1&isAllowed=y. Accessed 2 August 2022 Pedersen J (2006) FAO-EU Cooperation: An Ever Stronger Partnership. In: Wouters J, Hoffmeister F, Ruys T (eds) The United Nations and the European Union: An Ever Stronger Partnership. T.M.C. Asser Press, The Hague, pp 63–91 Popescu I (2015) Beyond the European seas: The external dimension of the Common Fisheries Policy. https://www.europarl.europa.eu/thinktank/en/document/EPRS_IDA(2015)571323. Accessed 2 August 2022 Rayfuse R (2004) Non-Flag State Enforcement in High Seas Fisheries. Nijhoff, Leiden. DOI: https:// doi.org/10.1163/9789047405498

References

155

Sack J (1995) The European Community’s Membership of International Organizations. Common Market Law Review. DOI: https://doi.org/10.54648/COLA1995057 Song Y (1997) The Canada-European Union Turbot Dispute in the Northwest Atlantic: An Application of the Incident Approach. Ocean Development and International Law. DOI: https://doi. org/10.1080/00908329709546106 Sumaila R, Huang L (2012) Managing Bluefin Tuna in the Mediterranean Sea. Marine Policy. DOI: https://doi.org/10.1016/J.MARPOL.2011.08.010 Sumaila R, Lam V, Le Manach F, Swartz W, Pauly D (2013) Global Fisheries Subsidies. https:// www.europarl.europa.eu/RegData/etudes/note/join/2013/513978/IPOL-PECH_NT(2013)513 978_EN.pdf. Accessed 2 August 2022 Sumaila R, Lam V, Le Manach F, Swartz W, Pauly D (2016) Global fisheries subsidies: An updated estimate. Marine Policy. DOI: https://doi.org/10.1016/J.MARPOL.2015.12.026 Sumaila R, Zeller D, Hood L, Palomares L, Li Y, Pauly D (2020) Illicit trade in marine fish catch and its effects on ecosystems and people worldwide. Science Advances. DOI: https://doi.org/10. 1126/SCIADV.AAZ3801 UN General Assembly (2000) Official Records, UN Doc.A/55/PV.44 UN General Assembly (2017) Official Records, UN Doc.A/72/PV.63 UN General Assembly (2019) Official Records, UN Doc.A/74/PV.42 UN General Assembly (2020) Official Records, UN Doc.A/75/PV.38 UNEP (2011) Fisheries Subsidies, Sustainable Development and the WTO. Earthscan, London Van der Meulen B, Wernaart B (2019) Food and Agriculture Organization (FAO) and Codex Alimentarius Commission: The impact of the Codex Alimentarius and the right to food on EU food law. In: Wessel R, Odermatt J (eds) Research Handbook on the European Union and International Organizations. Edward Elgar, Cheltenham. DOI: https://doi.org/10.4337/9781786438935.00011 Williams N (2008) Anger over bluefin tuna decision. Current Biology. DOI: https://doi.org/10.1016/ J.CUB.2008.11.050 Wouters J, Chané A, Odermatt J, Ramopoulos T (2015) Improving the European Union’s Status in the United Nations and the UN System: An Objective Without a Strategy? In: Kaddous C (ed) The European Union in International Organisations and Global Governance: Recent Developments. Hart, London. DOI: https://doi.org/10.5040/9781474202435.ch-004 WTO (1998) Comments by the European Community on the Document of the Secretariat of the Committee on Trade and Environment (WT/CTE/W/80) On Subsidies and Aids Granted in the Fishing Industry, WT/CTE/W/99 WTO (2003) Submission of the European Communities to the Negotiating Group on Rules – Fisheries Subsidies, TN/RL/W/82 WTO (2010) World Trade Report 2010: Trade in natural resources. https://www.wto.org/english/ res_e/booksp_e/anrep_e/world_trade_report10_e.pdf. Accessed 2 August 2022 WTO (2017a) Advancing Toward a Multilateral Outcome on Fisheries Subsidies in the WTO: European Union, TN/RL/GEN/181/Rev.1. https://trade.ec.europa.eu/doclib/docs/2017/july/tra doc_155746.pdf. Accessed 2 August 2022 WTO (2017b) Minutes of the Special Meeting Held on 25 April 2017, G/SCM/M/100. https:// docs.wto.org/dol2fe/Pages/SS/directdoc.aspx?filename=q:/G/SCM/M100.pdf&Open=True. Accessed 2 August 2022 WTO (2019) Replies to Questions from New Zealand Regarding the New and Full Notification of the European Union, G/SCM/Q2/EU/57. https://docs.wto.org/dol2fe/Pages/SS/directdoc.aspx? filename=q:/G/SCMQ2/EU57.pdf&Open=True. Accessed 2 August 2022 WTO (2022) Ministerial Decision of 17 June 2022 on Agreement on Fisheries Subsidies, WT/MIN(22)/33, WT/L/1144 Young M (2009) Fragmentation or interaction: the WTO, fisheries subsidies, and international law. World Trade Review. DOI: https://doi.org/10.1017/S1474745609990140

Chapter 6

Challenges to the EU’s Normativity in Multileveled Coercive Action

Contents 6.1 6.2 6.3 6.4 6.5

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Universality in Fighting IUU Fishing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Implementing Multilaterally-Agreed Measures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Conditionality and Bilateral Trade Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Adopting Unilateral Measures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.5.1 The IUU Fishing Regulation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.5.2 The Sustainable Fishing Regulation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.6 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Abstract This chapter shifts the focus to the EU’s ability to act normatively, even when acting unilaterally, by analysing the coercion aspect of the use of instruments element. In particular, the discussion examines the EU’s use of economic coercion by leveraging its fisheries market. This type of economic coercion in the area of fisheries has a considerable impact on third States due to the size and characteristics of the EU fisheries market, which can be a strong leverage for the EU. This chapter examines the EU’s normativity in using coercive measures by exploring three types of coercive instruments ordered according to the level of unilateralism involved—implementing multilaterally agreed measures, enforcing conditionality under bilateral agreements and adopting purely autonomous measures. These instruments form part of the EU’s action against illegal, unreported, and unregulated fishing or complement it through fighting legal yet unsustainable fishing. The discussion also analyses the EU’s normativity under the legitimacy element with respect to each level of coercive action. These instruments also present a mixture of uses of the exclusive Common Fisheries Policy and the Common Commercial Policy competences. As such, the analysis looks at instruments where the EU has strong powers giving it large freedom to act normatively. Nevertheless, challenges to normativity are still identified relating to the ways in which the EU has put in place some of its coercion frameworks as well as the coherence and consistency in their implementation. Keywords Coercive action · Unilateral measure · Autonomous measure · CFP · CCP · IUU fishing · Unsustainable fishing · PSMA

© T.M.C. ASSER PRESS and the author 2023 M. Vatsov, Fishing Power Europe, Global Europe: Legal and Policy Issues of the EU’s External Action 3, https://doi.org/10.1007/978-94-6265-583-6_6

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6.1 Introduction Chapter 5 evaluated the normativity promise of the European Union’s (EU) membership in international bodies and showed it to be unfulfilled. This chapter takes the analysis a step further by still focusing on the use of instruments element. Specifically, this chapter examines the normativity in the EU’s coercive action at the multilateral, bilateral, and unilateral levels. By looking at coercion, this chapter shows how the EU uses its power against others in the context of the applicable EU and international law frameworks and the normativity issues that arise from such use. As discussed in Chap. 2, coercion in the context of normativity is very controversial. Its normativity depends on the type of instruments and the context in which they are used. For example, it is normative for an actor to use coercion to support multilaterally agreed measures. However, the actor’s normativity requires closer scrutiny where coercion is of more unilateral character. This chapter examines the EU’s use of economic coercion by leveraging its market. This type of economic coercion in the area of fisheries has a considerable impact on third States due to the size and characteristics of the EU fisheries market. For the EU, trade in fisheries products has always been crucial for its market supply due to its substantial negative trade imbalance in the fisheries sector, which is both in terms of volume and value.1 In the mid-2000s the EU was even the world’s largest net importer of fish and fisheries products.2 Currently, more than half of the fish products on the EU market are imported.3 Accordingly, access to the EU market can be of great economic importance to third States and denying it can be a strong leverage for the EU. This chapter examines the EU’s normativity in using coercive measures by exploring three types of coercive instruments ordered according to the level of unilateralism involved—multilaterally agreed measures, bilateral agreements, and unilateral measures. These instruments form part of the EU’s action against illegal, unreported and unregulated (IUU) fishing or complement it through fighting legal yet unsustainable fishing. These instruments also present a mixture of uses of the exclusive Common Fisheries Policy (CFP) and the Common Commercial Policy (CCP) competences. As such, the analysis looks at instruments where the EU has strong powers giving it more freedom to act normatively. Section 6.2 introduces the problem of IUU fishing for sustainable fishing and the response of the international community to this problem. It is shown that the norms relating to IUU fishing are universalizable if not already universal and are supported by sources of international law. It also shows the EU’s strong support for them. The use of instruments and legitimacy elements of normativity are discussed in the subsequent three sections, each dealing with one type of instrument. Section 6.3 deals with the EU’s implementation of multilaterally-agreed Regional Fisheries Management Organisation (RFMO) trade restrictive measures. Section 6.4 then turns to the bilateral level and examines the use of conditionality in EU trade agreements with respect to fisheries cooperation. 1

Long and Curran 2000, pp. 52–53; Markus 2009, p. 11. Churchill and Owen 2010, p. 461. 3 EUMOFA 2021, p. 22. 2

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Section 6.5 looks at unilateral EU measures by focusing on two complementary, yet different, EU instruments—the IUU fishing Regulation and the Sustainable Fishing Regulation (SFR)—and their implementation. Section 6.6 concludes that where the EU builds on established international consensus it enjoys much greater normativity, even where coercive measures are used. However, where the EU is spearheading particular new legal developments without seeking wide consensus and forcefully leverages its market, its normativity is very low and its actions are likely to face strong resistance. Furthermore, the analysis shows that there is ground for improvement in the way the EU promotes and implements universal or universalizable norms, particularly in terms of legitimacy.

6.2 Universality in Fighting IUU Fishing IUU fishing is one of the main fisheries sustainability challenges. The cost of IUU fishing to the global economy has been estimated between 10 and 23.5 billion USD per year.4 IUU fishing covers a wide range of fishing practices and conditions under which such practices are carried out.5 According to the Food and Agriculture Organization (FAO), illegal fishing refers to fishing conducted in violation of applicable national or international rules and regulations; unreported fishing refers to fishing where the catch is not reported or is misreported to the competent authorities; and unregulated fishing refers to fishing conducted (1) in an RFMO area by vessels without nationality, or by those flying the flag of a State not party to that RFMO, or by a fishing entity, in a manner that is not consistent with or contravenes the conservation and management measures of that RFMO, or (2) in an area without applicable conservation and management measures and in a manner inconsistent with relevant international conservation obligations.6 IUU fishing has a destructive effect on the sustainability of fisheries stocks. It contributes to the overexploitation of stocks and the deterioration of the marine environment, reduces the effectiveness of conservation and management measures, and deprives coastal States from revenues crucial to their development, to mention some of its negative effects. Thus, IUU fishing has shown itself to be a global sustainability problem. This overarching norm of eradicating IUU fishing has been developing over the years at various international fora. In particular, the concept of IUU fishing originates in the work of the Commission for the Conservation of Antarctic Marine Living Resources (CCAMLR) and its Scientific Committee in 1997.7 Two years later it was picked up by the United Nations General Assembly (UNGA), which urged States to participate in the FAO’s efforts in developing an IUU fishing International Plan of

4

Agnew et al. 2009. Leroy et al. 2016. 6 FAO 2001. 7 CCAMLR 1997, paras 5.1–5.45. 5

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Action (IPOA).8 This was part of the UNGA annual resolution on fisheries, which was adopted by consensus. In 2001, building on its Code of Conduct for Responsible Fishing (CCRF), the FAO adopted its IUU IPOA.9 The UNGA has continuously expressed the view of the need to fight IUU fishing in its annual fisheries-related resolutions.10 The negative consequences of IUU fishing and the need to fight it has also been called for in a number of international fora (other than the UNGA and the FAO) including the UN Security Council,11 International Labour Organization (ILO),12 the International Maritime Organization (IMO),13 the Organisation for Economic Co-operation and Development (OECD),14 the World Trade Organization (WTO),15 the Sustainable Development process,16 including on the Sustainable Development Goals (SDG).17 The FAO Conference in 2009 adopted the first global legally binding instrument on IUU fishing—the Port State Measures Agreement (PSMA).18 Accordingly, one can hardly find an international forum that discusses fisheries-related matters and fails to call for the eradication of IUU fishing. Thus, it is safe to say that fighting IUU fishing is a universalizable if not already universal norm. The EU considers IUU fishing to be jeopardising the CFP’s very foundation.19 The EU has, thus, promoted the fight against IUU fishing at many international fora that have discussed IUU fishing20 as well as through joint statements with major fishing States.21 The EU promotes the fight against IUU fishing through its actions examined in this chapter—implementing multilaterally agreed measures, featuring IUU fishing provisions in its trade agreements, and acting under its IUU fishing Regulation. As such, the EU has shown its strong support for the fight against IUU fishing, which is normatively founded due to the universal character of that norm.

8

UN General Assembly 1999a, paras 9–10. FAO 2001. 10 E.g. UN General Assembly 2001b; 2002; 2003, para 34; 2006, para 37; 2017. 11 See resolutions on Somalia recognising the relationship between IUU fishing and piracy, e.g. UN Security Council 2018. Also see the UN Security Council 2015, para 3. 12 ILO 2007, para 9. 13 FAO 2016. 14 OECD 2004, 2005; High Seas Task Force 2006. 15 See the negotiations on fisheries subsidies relating to inter alia IUU fishing, e.g. WTO 2018. 16 United Nations 2012, para 170. 17 UN General Assembly 2015, SDG 14.4. 18 Agreement on Port State Measures to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing, opened for signature 22 November 2009, FAO Doc C 2009/LIM/11 Rev.1, entered into force 5 June 2016 PSMA. 19 Council 2008, recital 3. 20 At the UNGA, see e.g. UN General Assembly 1999b, p. 20; 2004, p. 5; 2005, p. 4. At the OECD, see e.g. European Commission 2007b, pp. 3–4; 2014, p. 4; 2015b, p. 3. 21 European Union and United States 2011; European Union and Japan 2012; European Union and Canada 2016; European Union and China 2018, para 33; European Union and Republic of Korea 2018. 9

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Fighting IUU fishing can happen through myriad different ways. They include anti-IUU fishing laws, improved monitoring, control, and surveillance of vessels, improved enforcement of anti-IUU fishing laws, removing subsidies, and refusing to put on the market IUU fished products. Each of this ways of fighting IUU fishing enjoys a different level of international support. The focus in the following sections is only on the normativity of the EU’s refusal of market access to IUU-fished products by adopting trade restrictive measures against third States.

6.3 Implementing Multilaterally-Agreed Measures The use of instruments element of normativity requires an actor to be involved in multilateral processes in order to negotiate with others and convince them to support certain developments that further universal or universalizable norms and principles. In the case of adopting coercive measures, it is important for this element that they step on a pre-existing bilateral or multilateral agreement. The EU’s coercive measures implementing RFMO measures rest on such international support due to the preexisting negotiated multilateral agreement underlying them. Thus, when the EU implements them, it acts normatively under the use of instruments element. The first trade restrictive measures that the EU has adopted against IUU fishing were pursuant to multilaterally agreed RFMO measures in the early 2000s.22 In particular, the EU adopted coercive trade restrictive measures against a number of third States in implementation of International Commission for the Conservation of Atlantic Tunas (ICCAT) Recommendations.23 The ICCAT is the first RFMO to agree on such measures.24 These early actions were in a context of international law developments. In 1995, the FAO adopted the CCRF, which generally referred to fisheries trade measures and held that they “should not be discriminatory and should be in accordance with internationally agreed trade rules”.25 Subsequently, the FAO IPOA concretised that adopting anti-IUU fishing measures should follow a comprehensive and integrated approach and in taking such approach States should embrace measures building on the primary responsibility of the flag State and using all available jurisdiction in accordance with international law, including port State measures, coastal State measures, market-related measures and measures to ensure that nationals do not support or engage in IUU fishing. States are encouraged to use all these measures, where appropriate, and to cooperate in order to ensure that measures are applied in an integrated manner. (emphasis added)26

22

Council 2000a, b, 2001, 2004a, b. E.g. ICCAT 2000, 2002a, b, 2003. 24 Chaves 2000, para 20. 25 FAO 1995, para 11.2.4. 26 FAO 2001, para 9.3. 23

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The IPOA further discusses market-related measures in a separate heading on internationally agreed such measures. The IPOA strongly emphasises that “[t]raderelated measures should be adopted and implemented in accordance with international law, including principles, rights and obligations established in WTO Agreements, and implemented in a fair, transparent and non-discriminatory manner”.27 The IPOA further states that “[u]nilateral trade-related measures should be avoided” and instead puts the emphasis on multilaterally-agreed measures including through RFMOs.28 This IPOA language was taken from the Rio Declaration, mirroring the more general debate on trade and environment.29 UNGA Resolution 56/13 welcomed the adoption of the IPOA, explicitly referring to the language of the abovementioned IPOA text listing market-related measures as possible action against IUU fishing.30 While nine RFMOs feature frameworks for adopting trade-related measures,31 to my knowledge the ICCAT is the only one that has adopted such measures against States.32 The PSMA lends further support to the availability of such measures. While it does not explicitly provide for trade measures and reference to trade has been dropped during its drafting, this has been explained with the fact that the PSMA was not intended as a trade instrument and not because it rejects such measures.33 Marketrelated measures were still explicitly recognised as possible in the PSMA’s preamble as long as they were in accordance with international law.34 The scope of Article 6(2) PSMA is broad, stating that “[e]ach Party shall, to the greatest extent possible, take measures in support of conservation and management measures adopted by other States and other relevant international organizations”, and ‘measures’ are not defined, allowing for market-related measures.35 The legitimacy analysis of the EU measures concerns the legality, interests involved in, and coherence and consistency of the EU’s actions. With respect to legality, the EU, as an ICCAT member was obliged to implement the ICCAT recommendations.36 Thus, the EU could not and did not question the measures and did not enter into separate consultations with the identified States. This conduct was normative because the ICCAT featured the necessary safeguards. In 1998, the ICCAT adopted a resolution setting out a multi-step procedure to be followed ending with the adoption of effective measures, including, if necessary, non-discriminatory trade

27

Ibid., para 66. Ibid., paras 66, 68. 29 UN General Assembly 1992, Principle 19. 30 UN General Assembly 2001a. 31 Webster 2015, p. 190. 32 See Churchill and Owen 2010, p. 494; Hosch 2016, pp. 17, 26. 33 Doulman and Swan 2012, pp. 68, 125. 34 PSMA, above n. 18, recital 3. 35 Doulman and Swan 2012, p. 42. 36 International Convention for the Conservation of Atlantic Tunas, opened for signature 14 May 1966, 9587 UNTS 63, entered into force 21 March 1969, Article VII. 28

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restrictive measures.37 These trade measures are meant to be consistent with the ICCAT members’ international obligations, that is, they are not meant as a new exception. The preamble of the EU implementing measures explicitly stated that the adopted measures were compatible with the EU’s obligations under other international agreements.38 The measures that were eventually adopted by the ICCAT followed the relevant procedure and were eventually revoked once the identified States reacted and ensured that the ICCAT measures were not undermined by vessels flying their flags. The EU acted accordingly in revoking the measures as well.39 Thus, in that respect there is nothing to question the EU’s normativity in implementing the ICCAT Recommendations. With respect to the interests involved, the EU measures do not raise concern because of their multilaterally-agreed nature. That is, the EU did not seek to pursue its own interests with these measures as distinct from the common long-term interest of sustainable fishing in the waters subject to the ICCAT Recommendations. Equally, the coherence and consistency element also does not raise concern. This is because the relevant practice is quite limited—no other measures have been adopted by the ICCAT or by another RFMO to compare the EU’s responsiveness to them. Thus, the EU’s practice of implementing RFMO measures shows strong normativity, despite their coercive nature.

6.4 Conditionality and Bilateral Trade Agreements The use of instruments element in principle requires as wide as possible multilateral action in order to reach wide agreement on an issue, which would in turn contribute to the universalisation of a particular norm or to the observance of an already universal norm. Such multilateral action could also take the shape of a multitude of bilateral agreements seeking the same result. Bilateral trade agreements can present such a multitude of agreements, which the EU may use to fight IUU fishing and in the context of which coercive action can be taken. In particular, the EU acts or seeks to act coercively at the bilateral level by trying to use its trade agreements to leverage the access to its market in order to fight IUU fishing.40 To that end, the EU seeks to include specific cooperation obligations involving trade conditionality, in line with the increased use of trade-related measures to ensure sustainable fishing. The modern EU trade agreements have built on long-developing practice and feature important fisheries cooperation provisions in the Trade and Sustainable

37

ICCAT 1998. E.g. Council 2001, recital 8. 39 Council 2005; European Parliament and Council 2014. 40 Young 2016, p. 215. 38

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Development (TSD) chapters of these agreements.41 The fisheries cooperation obligations in the TSD chapters vary widely in substance. However, a core of commitments including and centred on fighting IUU fishing appears to be emerging. They start with an opening paragraph going along the lines of the parties take into account/recognise (1) the importance of ensuring conservation and sustainable management of fish stocks or (2) the need to promote sustainable fisheries. In that regard the parties undertake/commit to a number of actions. These actions also vary in terms of the number and detail of the undertakings. Some general points can nevertheless be made about their content. They almost invariably include references to (1) taking measures against IUU fishing, (2) cooperating with and within RFMOs including as members, observers or cooperating non-contracting parties, (3) relevant UN and FAO instruments (e.g. United Nations Convention on the Law of the Sea (UNCLOS), United Nations Fish Stocks Agreement (UNFSA), the PSMA, the Compliance Agreement, and the CCRF), and (4) taking control and surveillance measures. The undertakings occasionally also refer to promoting best practices, development of sustainable aquaculture, revision and adjustment of fishing capacity, and promoting an integrated approach to maritime affairs. Accordingly, this developing set of bilateral EU trade agreements can serve as an alternative for a single multilateral effort seeking to develop or uphold the universality of a norm, such as the fight against IUU fishing. In order to be normative, the use of coercion through conditionality under a bilateral trade agreement requires the existence of an actual agreement to conditionality. This form of coercion involves direct interaction between the EU and the third State in question and it does not take away benefits already granted without that third State’s consent, at least in theory. That is, this use of coercion still relies on an international agreement, but the level of unilateralism is higher as the EU is not seeking the agreement of other external parties whether to use coercion against its bilateral partner or not. Such conditionality has a normative value for the EU because it would provide a right to the EU partners to use such measures against the EU if it does not observe the relevant sustainable fishing provisions including on IUU fishing. Theoretically, this would show strong commitment on behalf of the EU to the norms in question. The existence of such ‘meeting of the minds’ between the EU and its partner is central for the normativity analysis of the TSD chapters in the EU’s bilateral trade agreements. The focus is there because the conditionality in question is not based on clear wording, but on the Court of Justice of the European Union’s (CJEU) interpretation. Where fisheries cooperation provisions are included in TSD chapters, according to Opinion 2/15 on the Singapore Free Trade Agreement (FTA), there is an implied conditionality for breaches of such provisions.42 The legality of the CJEU’s pronouncement in Opinion 2/15 needs to be considered from an international law perspective. The relevant part of Opinion 2/15 is the importance the CJEU 41

On the development of that practice and its current state, see Vatsov 2019. The most recent draft agreement negotiated with New Zealand of 7 July 2022 also features such a provision in its TSD chapter. 42 ECJ, Opinion 2/15 Singapore Free Trade Agreement, Opinion, 16 May 2017, EU:C:2017:376.

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attached to TSD chapter provisions (covering inter alia fisheries matters) in the modern EU FTAs, such as the Singapore FTA, for the purpose of deciding under which competence these provisions fall—CCP or others. The Advocate General (AG) and the CJEU took different perspectives on this important question. According to AG Sharpston, some of the TSD chapter provisions do have a direct and immediate link with trade.43 However, a significant number of the provisions “neither impose a form of trade conditionality […] nor otherwise regulate the use of commercial policy instruments as a means to promote sustainable development” (original emphasis).44 AG Sharpston read the provisions seeking to ensure certain minimum standards of labour and environmental protection to be included “in isolation from their possible effects on trade” (original emphasis).45 She even pointed out that the provisions of the TSD chapter were not marked ‘essential elements’ of the agreement, as is sometimes done for human rights provisions in other EU FTAs to mark conditionality, and were not subjected to the agreement’s Dispute Settlement and Mediation Chapters, meaning that breaching the TSD chapter provisions does not lead to conditionality.46 The CJEU, however, saw things much more differently. First, the CJEU attached great importance to two circumstances—(1) the ‘new generation’ nature of the agreement, which includes not only classical elements, such as tariff reductions but also other elements that are relevant, or even essential, to trade and (2) the Lisbon Treaty developments of the CCP and the obligation under Articles 205 and 207(1) of the Treaty on the Functioning of the European Union (TFEU) to integrate various objectives and principles listed in Article 21 of the Treaty on European Union (TEU) into the conduct of that policy.47 As a result the CJEU held that “the objective of sustainable development henceforth forms an integral part of the [CCP]”.48 Second, building on the importance the CJEU attached to the sustainable development provisions as modern elements of FTAs, the CJEU substantially elevated their status. The CJEU dealt with AG Sharpston’s main concern—the lack of textual indication of trade consequences for potential breaches of the TSD chapter provisions—by finding applicable the customary international law rule of material breach as laid down in Article 60 of the Vienna Convention on the Law of the Treaties (VCLT).49 By doing this the CJEU elevated a breach of the TSD chapter provisions to a material breach, which, under Article 60(3)(b) VCLT, is a “violation of a provision essential to the accomplishment of the object or purpose of the treaty”. One can strongly doubt whether this pronouncement provides a solution or creates a problem. 43

AG Sharpston, Singapore Free Trade Agreement, Opinion, 21 December 2016, EU:C:2016:992, para 489. 44 Ibid., para 490. 45 Ibid., para 491. 46 Ibid. 47 ECJ, Opinion 2/15 Singapore Free Trade Agreement, Opinion, 16 May 2017, EU:C:2017:376, paras 140–146. 48 Ibid., para 147. 49 Ibid., para 161.

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On the one hand, it addresses the criticisms to the TSD chapters of the EU FTAs relating to the lack of mechanisms for their enforceability.50 On the other hand, it appears to go further than what was agreed by the parties. It is hard to objectively consider the TSD chapter provisions as an essential element of the FTA, the violation of which would constitute a material breach in the sense of Article 60 VCLT. It is hard because there is absence of clear evidence of intention of the parties in the text or the preparatory works to consider the TSD chapter as essential to the treaty. The CJEU’s pronouncement also goes beyond the agreement at hand and influences many other EU FTAs that feature TSD chapters (concluded and under negotiation). It is curious to note that about a year after Opinion 2/15, the European Parliament stressed that in order to rectify the shortcomings in the implementation of trade and sustainable development chapters in FTAs and to give force to these provisions, they should incorporate a binding dispute settlement mechanism (to include government-to-government consultations, a panel procedure, public access to documents and the consultation of civil society), complete with the possibility of applying sanctions in case of non-compliance with their international commitments.51

This paragraph can be read to suggest that the European Parliament has not accepted the CJEU’s pronouncement on the existence of conditionality and is instead calling for such possibility to be expressly stated. This analysis of the CJEU’s pronouncement shows that an agreement between the EU and its partner on the existence of the said conditionality is lacking and that has important consequences for the EU’s normativity. First, the use of instruments element of normativity will not be respected as an underlying agreement is lacking. Second, if the Commission accepts the existence of such implied conditionality and uses it, it is argued here, that this will most probably amount to a breach under international law. Such a breach would seriously undermine the EU’s normativity under the legitimacy element. Third, the pronouncement may create intra-EU institutional incoherence, damaging the EU’s external authority. In particular, the CJEU’s pronouncement may prompt requests by the EU’s partners bound (or to be bound) by TSD chapters for assurances from the Commission that the TSD chapters do not constitute such essential elements or that breaches of their provisions will not have the consequences the CJEU suggested. The CJEU’s decision is after all not binding on the EU’s partners as it does not have jurisdiction to conclusively interpret these agreements beyond the EU context, even if it may have some persuasive authority. On the international plane, this decision is nothing more than an opinion of the EU’s internal judiciary. If the Commission gives such assurances (if asked) it would delegitimise the CJEU before the EU’s partners. If the Commission does not give them, it would damage the EU’s overall consistency, as it would be saying one thing during negotiations and doing something different after, all assuming the CJEU was wrong, as it is argued here. 50 51

See Marx et al. 2017, pp. 14–16. European Parliament 2017a, para 26.

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As with any coercive measures discussed in this chapter, the existence of a sound legal basis for their adoption does not translate to immediate normativity. As with any coercive measures, it will have to comply with the normativity criteria. Universality and use of instruments are already observed because such measures will be adopted as part of an agreed framework that seeks to further an overarching universal norm. Thus, it is the legitimacy element that needs to be further examined. In particular, it needs to be shown that any agreed applicable procedures for adopting the measures are followed (e.g. prior consultation) and that the measures are not adopted arbitrarily, but in a coherent and consistent manner seeking to protect short-term self-interest.

6.5 Adopting Unilateral Measures A third type of coercive EU action to fight IUU fishing and ensure fisheries sustainability is the adoption and implementation of purely unilateral instruments. This type of coercive action risks raising the greatest normativity concerns because it is neither backed by the consent of the EU’s partner nor a multilateral agreement at an RFMO. Instead, the EU is the sole decider as to the circumstances of the use of coercion and the States against which it is used. The lack of convincing through negotiation and the imposition of sanctions to force certain behaviour in principle goes against the idea of normativity. However, as discussed in Chap. 2, it is not the mere use of such unilateral coercion that conflicts with normativity, but the context and the way in which it is used. Where such coercion is used to uphold agreed norms, normativity can be defended. However, where such coercion is used to promote immediate self-interests in contradiction of established norms, normativity is damaged. These two types of uses of unilateral coercion are considered below with respect to two complementary EU instruments and their implementation. These are the IUU fishing Regulation and the SFR. Both are EU law instruments that formally apply within the EU only. However, they have important external effects (also called territorial extension52 ) as they can lead to trade restrictions for third States on the basis of actions or omissions happening beyond the EU.

6.5.1 The IUU Fishing Regulation The IUU fishing Regulation is an expression of the EU’s conduct in supporting the universal norm of fighting IUU fishing. As such, it draws on the EU’s normativity under the universality element. This section, thus, focuses on the EU’s normativity under the use of instruments and legitimacy elements and examines how the EU seeks to act normatively through its unilateral conduct.

52

Scott 2014.

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6.5.1.1

6 Challenges to the EU’s Normativity in Multileveled Coercive Action

Use of Instruments

The use of instruments element requires as much international cooperation and negotiation as possible and the least amount of unilateral coercive action. The IUU fishing Regulation is very particular in that regard because, while it involves unilateral coercive action, it is used in the context of strong international cooperation. Thus far, the EU has made great use of its IUU fishing Regulation. It has not only blacklisted fishing vessels, but also identified several third States as non-cooperating. The EU has issued yellow cards against twenty-six third States (seven still yellow-carded) and red cards against six of them (three still red-carded).53 This coercive use of the IUU fishing Regulation, however, is simply one small part of its implementation. In particular, the Commission, acting under the IUU fishing Regulation, cooperates with a large number of third States and carries out evaluation missions to assess their compliance with the international obligations in the fight against IUU fishing. According to the Commission, as of January 2019, 92 third States “have notified the Commission that they have in place the necessary legal instruments, the dedicated procedures, and the appropriate administrative structures for the certification of the catches by vessels flying their flag”.54 Considering that the number of landlocked third States (disputed regions with low international recognition excluded) and the EU Member States is about 70, the scope of the cooperation under the IUU fishing Regulation is truly global. This shows that any sanctions shall only follow an attempt to resolve the situation and be used as a last resort measure. The EU’s flagship use of the identification procedure under the IUU fishing Regulation has been against Thailand. The EU yellow-carded Thailand in April 2015 (cleared January 2019).55 The Thai fishing industry had for long been scourged by IUU fishing and related human rights problems such as human trafficking and appalling labour conditions. For almost four years the Commission has been extending the yellow card and constantly reviewing the progress of the Thai authorities with respect to the fight against IUU fishing. The work with Thailand with respect to IUU fishing was important because Thailand plays a central role in the international supply chain for fisheries products and its processing industry relies on raw materials from the Indian and Pacific Oceans. During that process Thailand became party to the PSMA and the first Asian State to ratify the ILO Work in Fishing Convention. As a result, Thailand reinforced foreign fishing landings controls and strengthened cooperation with flag States in the Indian and Pacific Oceans. The development in the Thai legal and administrative systems is set to have a ripple effect beyond the Thai fishing industry. Satisfied with the progress, the Commission lifted the yellow card

53

https://oceans-and-fisheries.ec.europa.eu/document/download/dac17bdf-42cf-4525-884c-440 50b31d6a0_en?filename=illegal-fishing-overview-of-existing-procedures-third-countries_en.pdf. Accessed 2 August 2022. 54 https://ec.europa.eu/commission/presscorner/detail/en/MEMO_19_201. Accessed 2 August 2022. 55 European Commission 2015a.

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against Thailand in January 2019.56 The case of Thailand shows how much the EU can influence a third State towards complying with IUU fishing norms with a threat of imposing sanctions, albeit without actually imposing any, and a lot of cooperative effort. Next to using the IUU fishing Regulation directly, the EU uses it indirectly by requiring observance of its provisions in the terms of its Generalised System of Preferences (GSP) programmes. Under the GSP Regulation, the preferential arrangements it provides may be withdrawn temporarily, in respect of all or of certain products originating in a beneficiary country, for [inter alia] serious and systematic infringement of the objectives adopted by Regional Fishery Organisations or any international arrangements to which the Union is a party concerning the conservation and management of fishery resources.57

This provision makes an indirect link with the IUU fishing Regulation because such infringements are also grounds for implementing the IUU fishing Regulation against a particular State by identifying it as non-cooperating. Most recently, the EU started taking further autonomous steps through its internal market competence by proposing a Directive on Corporate Sustainability Due Diligence, which is aimed at limiting the products in the EU made with the involvement of forced labour.58 The Commission lists fisheries (including aquaculture) as one of the sectors that should be regarded as high-impact for the purposes of that Directive.59 Accordingly, the IUU fishing Regulation formally complies with the use of instruments element of normativity despite involving unilateral coercion. This is because of the strong international cooperative effort underpinning the IUU fishing Regulation and its implementation. The international basis for EU action under the IUU fishing Regulation can be strengthened even further in light of the European Parliament’s suggestion that “the provisions of bilateral and multilateral trade agreements should include an explicit reference to the IUU Regulation, including the standards contained therein” and advise for the Commission to suspend “trade relations with a third country that has been identified [as non-cooperating under] the IUU Regulation”.60 These European Parliament calls have been echoed in a number of resolutions.61 If these calls are followed, the EU will have an important tool for further encouraging third States to fight IUU fishing and increase its normativity. Nevertheless, it should be noted that these EU efforts are centred on the IUU fishing Regulation as a complete product that is assumed to be the correct solution, but in practice it has its own flaws such as known reports of failures in the catch traceability due to the paper-based system of catch certificates.62 The EU seeks cooperation with third States, but it is to be conducted under the IUU fishing Regulation 56

European Commission 2019. European Parliament and Council 2012b, Article 19(1)(e). 58 European Commission 2022; European Parliament 2022. 59 European Commission 2022, recital 22. 60 European Parliament 2018a, para 67. 61 European Parliament 2007, para 14; 2013, paras 36, 67; 2015, paras 80–81; 2017b, paras 6–7. 62 Miller et al. 2014, pp. 139–140. 57

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requirements and standards, as the European Parliament has suggested. Example of this is observed in the literature where existing IUU measures in the region of the Pacific Islands States have been dismissed by the EU and, instead, the EU has insisted on the implementation of its own measures.63 This insistence of cooperation but on EU terms, while formally seems normative, creates normativity concerns. This is because, under the use of instruments element, negotiation and compromise needs to take place in order to create and then uphold universal norms taking into account everyone’s concerns and interests. The EU cannot assume to know what is best for everyone and should instead be open if not to learn from the others, then at least to respect the choices of others. That is, to act fully normatively, the EU needs to focus “more on ‘horizontal’ cooperation than on ‘hierarchical’ teaching and leadership”.64

6.5.1.2

Legitimacy

The EU’s legitimacy with respect to the IUU fishing Regulation falls to be discussed with respect to the sub-elements of legality, interest, and coherence and consistency. Legality The IUU fishing Regulation was adopted in 2008 in the context of growing international support for combating IUU fishing and it entered into force on 1 January 2010.65 At the time of adoption, the PSMA was still in the making and a long way from entering into force. Nevertheless, the PSMA negotiation and conclusion process served as a foundation for the IUU fishing Regulation. The IUU fishing Regulation builds further on the PSMA and provides for a rich variety of measures designed to fight IUU fishing.66 Some of them are specifically trade-oriented. There are three main types of measures under the IUU fishing Regulation that have bearing on trade. First, the IUU fishing Regulation prescribes certain port State measures which include a prohibition of access to port, provision of port services, landing or transhipment of fish and fisheries products in Member States’ ports to vessels that are involved in IUU fishing with the exception of force majeure or distress situations.67 Second, the IUU fishing Regulation establishes a catch certification scheme, which is designed to ensure that fish and fisheries products that are obtained through IUU fishing are not imported in the EU.68 Under that scheme, imports of such products must be accompanied by a validated catch certificate in accordance with the

63

Ibid., pp. 141–143. Ibid., p. 144. 65 Cooreman 2017, p. 214. 66 European Commission 2007a, p. 7. 67 Council 2008, Article 4(2). 68 Ibid., Article 12. 64

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rules of the Regulation.69 Third, the IUU fishing Regulation establishes a system for blacklisting fishing vessels and identifying third States as non-cooperating due to involvement in IUU fishing. The catch certification scheme and the listing of vessels and third States directly impact the trade of fisheries products with the EU. The focus here is on the measures directed at third States as they are the most relevant for the normativity discussion of the EU external action. The main measure (among many) with respect to listed third States is the prohibition of importation into the EU of fish and fisheries products caught by vessels flying the flag of such States. Additionally, there is a prohibition (1) on the exportation of EU fishing vessels to such States and (2) of private trade agreements between EU citizens and such States allowing an EU vessel to fish in the waters of such States.70 As already mentioned in the previous chapter, the Commission shall also halt or not enter into negotiations concerning fisheries agreements with such States and where such agreements exist will propose their denunciation.71 With respect to third States, the IUU fishing Regulation provides a three-step procedure where a third State is first notified of the possibility to be identified as non-cooperating (yellow card). Where there is a possibility of notifying a State as noncooperating the Commission is required to provide reasons, provide the opportunity to respond in adequate time to the Commission with refuting evidence or plan of action to improve and rectify the situation within reasonable time.72 In particular, when the third State is notified, it is requested to “take any necessary measures for the cessation of the IUU fishing activities in question and the prevention of any future such activities, and rectify any act or omission” that “may have diminished the effectiveness of applicable laws, regulations or international conservation and management measures”.73 If the Commission is not satisfied with the reaction of the third State it proposes to the Council to add that State to a list of non-cooperating States (red card).74 If the Commission is satisfied with the initial reaction of the third State or, following a listing, that State shows that the situation that warranted its listing has been rectified, it will be cleared from listing or delisted (green card).75 This three-step procedure complies with the requirements of the overarching norm of fighting IUU fishing and the means of achieving it. As already observed, there is a large consensus on the use of trade measures to fight IUU fishing. However, such measures must respect international law, as no new exception appears to have been meant to be developed for such measures. This consensus initially related to

69

Ibid., Article 18. Ibid., Article 38(5)–(6). 71 Ibid., Article 38(8)–(9). 72 Ibid., Article 32. 73 Ibid., Articles 32(2) j.o. 31(6)(c). 74 Ibid., Article 33. 75 Ibid., Article 34. 70

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multilaterally-agreed measures at RFMOs. However, trade measures have subsequently been adopted by the USA, the EU, and most recently Japan.76 Such unilateral measures have never been explicitly prohibited, but were to be ‘avoided’ and, if adopted, should also comply with international law. The FAO IUU IPOA emphasises this by saying that “[t]rade-related measures should only be used in exceptional circumstances, where other measures have proven unsuccessful to prevent, deter and eliminate IUU fishing, and only after prior consultation with interested States. Unilateral trade-related measures should be avoided”.77 The abovementioned international consensus on the possible use of unilateral trade measures to fight IUU fishing showed that no new international trade law exception was meant to be created. Thus, the legality of the EU’s conduct under the IUU fishing Regulation must be considered in light of WTO law. The text of the IUU fishing Regulation does not expressly state that its implementing measures must be WTO law-compatible, as is the case with the measures against unsustainable fishing examined below. The closest the text gets to legally qualifying the measures is where in one of the recitals it is stated that “the establishment of a list of noncooperating States should entail trade counter-measures in respect of the States concerned” (emphasis added).78 On its own, however, this recital does not make it clear whether the envisioned measures are meant to fall within the exceptions provided in the General Agreement on Tariffs and Trade (GATT) or are meant to be countermeasures in the sense of general international law. The IUU fishing Regulation is just a framework for the subsequent adoption of measures, including trade measures. Without such implementing measures the IUU fishing Regulation does not affect the legal rights of third States. It is only the implementing measures that contain trade restrictive measures that could violate WTO law. Thus, an examination of the implementing measures on a case-by-case basis can provide the most detailed account of their legality. However, such a detailed account is not strictly required for the purpose of this book as the very detailed framework laid down in the IUU fishing Regulation can provide the necessary normativity indications. Thus, the analysis here is concerned with the limitations that WTO law puts on the implementation process of the IUU fishing Regulation. This question has already been discussed in the literature and there is strong support for WTO-compatibility.79 In particular, it is pointed out in the literature that the process appears to have been designed as transparent and non-discriminatory and its overall aim

76

Loew C (2020) Japanese legislature passes law to ban import of IUU seafood. https://www.sea foodsource.com/news/supply-trade/japanese-legislature-passes-law-to-curb-iuu-fishing. Accessed 2 August 2022. 77 FAO 2001, para 66. 78 Council 2008, recital 32. 79 E.g. Tsamenyi et al. 2009, pp. 58–64; Churchill and Owen 2010, pp. 497–501; Leroy et al. 2016, p. 86; Young 2016, p. 215; Churchill 2019.

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to combat IUU fishing conforms to legitimate objectives expressly recognised in trade law, such as national security requirements, the prevention of deceptive practices, and the protection of human health or safety, animal or plant life or health, or the environment.80

That is, the measures taken under the IUU fishing Regulation fall under the prohibited measures of Articles V and/or XI GATT but can be justified under Article XX GATT. Article V GATT prohibits discrimination “based on the flag of vessels, the place of origin, departure, entry, exit or destination, or on any circumstances relating to the ownership of goods, of vessels or of other means of transport”. Under Article XI(1) GATT, it is prohibited to maintain any “prohibitions or restrictions other than duties, taxes or other charges, whether made effective through quotas, import or export licenses or other measures” with respect to the importation or exportation of any product. Article XX GATT contains exceptions to such GATT-inconsistent measures. For these exceptions to apply, a WTO member must show that (1) the measure in question falls under one of the Article XX subparagraphs and (2) it complies with the chapeau of Article XX. Under the chapeau, the measures must not be applied in a manner that would constitute a means of arbitrary or unjustifiable discrimination between countries where the same conditions prevail, or a disguised restriction on international trade.81 Exhaustibility is dealt with under paragraphs (g)—conservation of exhaustible natural resources—and (j)—acquisition or distribution of products in short supply—of Article XX GATT. Article XX(b) GATT is also relevant as it concerns protection of human, animal or plant life or health. Furthermore, as already noted above, trade restrictions follow less-restrictive measures and are, thus, used as last resort measures. Article XX(d) GATT relates to measures that are “necessary to ensure compliance with laws or regulations which are not inconsistent with the provisions [of the GATT]”. It has also been considered theoretically relevant but in practice its applicability is limited because it cannot be used to ensure compliance with obligations of external origin (foreign law or stemming from an international agreement such as an RFMO).82 With respect to the already adopted implementing measures, it must be observed that none of them have been challenged before a WTO panel or any other international court or tribunal. This lack of challenges or otherwise voiced protests seems to provide the EU’s measures with prima facie legality under the relevant international rules. That is, although such silence may be unrelated to their addressees’ opinion on legality, it may also be argued that such silence constitutes acquiescence under international law.83 Furthermore, the practice of the EU and the USA with respect 80

Ibid. See also Leroy et al. 2016, p. 89. See generally Appellate Body, United States—Import Prohibition of Certain Shrimp and Shrimp Products, Report, 12 October 1998, AB-1998-4, para 186. 82 Churchill 2019, p. 333. 83 On acquiescence, see ICJ, Case Concerning Delimitation of the Maritime Boundary in the Gulf of Maine (Canada v USA), Judgment, 12 October 1984, ICJ Reports 1984, p. 246, para 130; ICJ, Case Concerning the Arbitral Award made by the King of Spain on 23 December 1906 (Honduras v Nicaragua), Judgment, 18 November 1960, ICJ Reports 1960, p. 192, para 213; ICJ, Case Concerning the Temple of Preah Vihear (Cambodia v Thailand), 15 June 1962, ICJ Reports 1962, pp. 6, 23. 81

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to trade sanctions for IUU fishing can be argued to constitute State practice in a developing norm of international law, even if there are legality issues.84 Accordingly, the IUU fishing Regulation and its implementation appear to be lawful EU conduct. Interest The EU action against IUU fishing has been defended as protecting the long-term common interest and not just the EU’s interest of sustainable fishing within its own waters. This transpires from various EU policy and preparatory legislative documents, where it is stated that the EU’s action is meant to fight IUU fishing at the international level, well-beyond EU waters due to the global damaging effect of IUU fishing on the environment and its socio-economic consequences.85 However, criticisms have been mounted as to the implementation of the IUU fishing Regulation. In that regard, a 2016 European Parliament Resolution is revealing when it considered that “in order to ensure the success of the [IUU] regulation it must not be subject to the short-term needs of the EU’s trade policy”.86 Leroy et al also concluded that EU’s action under the IUU fishing Regulation “could probably be more limited by its own economic dependence than by WTO rules”.87 Analyses of the actual implementation of the IUU fishing Regulation appear to support such criticisms. In particular, it has been suggested that the EU has been selective in its implementation because with a few important exceptions, most States targeted so far are not major fishing nations or seafood suppliers to the EU market and almost half of the targeted States were not trading seafood to the EU at the time of being targeted.88 This criticism suggests that the EU has been protecting its own interest by not adopting measures against States that would hinder its market supply or by not going after major (trade) partners in order to protect overall relationship and not to jeopardise on-going negotiations. The main such third State against which the EU appears to have been rather lenient is China, which got the worst score in a 2019-launched global (157 coastal States) IUU fishing index.89 While the EU has initiated discussions in that regard and has even signed an Ocean Partnership with China including fighting IUU fishing, this is hardly comparable with the much harsher EU actions towards other third States under the IUU fishing Regulation. Thus, while the implementation of the IUU fishing Regulation shows an overall strong commitment to the long-term common interest of fighting IUU fishing, it is equally marred by self-interest criticisms damaging the EU’s normativity, which also affect the coherence and consistency sub-element. If these criticisms are further 84

See generally Urrutia 2018. European Parliament 2013; European Commission 2007a, c, d. 86 European Parliament 2018a, para 62. 87 Leroy et al. 2016, p. 89. 88 Hosch 2016, pp. 34–35. 89 Hosch G (2019) China bottom of illegal fishing index. https://chinadialogueocean.net/7568china-worst-country-illegal-fishing-index/. Accessed 2 August 2022. 85

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substantiated by evidence of actual discrimination, they may be the foundation of a WTO-based action, returning the analysis to the legality sub-element. However, as already observed, the EU’s implementation of its IUU fishing Regulation is yet to be legally challenged. Coherence and Consistency The selective implementation of the IUU fishing Regulation discussed above also points to incoherence between the CCP and the CFP. In 2011, the European Parliament pointed to such incoherence when said that it once again deplores, therefore, the lack of coordination between DG MARE and DG TRADE, since whilst the former is setting itself more and more objectives in order to combat IUU fishing, the latter’s exclusive aim appears to be to make Community markets more and more open to imports, whatever their origin and whatever control guarantees are in place, granting tariff preferences and rules of origin derogations that are serving only to hand European markets over to fleets and countries that have been identified as at least tolerating IUU fishing.90

This was also echoed in the abovementioned 2016 European Parliament Resolution saying that the IUU fishing Regulation should not follow the EU’s short-term trade policy needs. In the same 2016 resolution the European Parliament insisted that “the IUU Regulation must be applied rigorously, objectively and transparently, in a non-discriminatory and harmonised manner, in order to promote a level playing field among fleets and countries”.91 This pointed to the need for external consistency—for the EU to apply its IUU fishing rules in the same way towards everyone. The abovementioned reports of selectivity in the implementation of the IUU fishing Regulation, however, suggest that the EU is not acting consistently in that regard. As already stated, depending on the degree of divergence in the EU’s practice, it may even amount to a basis for a legal challenge under WTO law for not meeting the chapeau requirements of Article XX GATT due to discrimination, as it happened with the EU measures against the importation of seal products.92 On internal consistency, the EU ought to apply its rules to its fleet in the same way it expects other States to apply them to theirs. The European Parliament has weighed in on this point as well by [stressing] the need, in the interest of the EU’s credibility, for the Commission and the Member States to identify and sanction EU operators who violate EU legislation, and considers in this context that there is still some way to go before the EU is satisfactorily combating IUU fishing on its own territory and by EU operators elsewhere (emphasis added).93

The EU’s and its Member States’ record in this regard can also be criticised. In particular, there have been reports of serious IUU fishing practices by EU vessels 90

European Parliament 2013, para 51. Ibid., para 62. 92 Appellate Body, European Communities—Measures Prohibiting the Importation and Marketing of Seal Products, Report, 22 May 2014, AB-2014-1, AB-2014-2, paras 5.316–5.339. 93 European Parliament 2013, para 8. 91

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and of lax enforcement.94 Such are the reports of IUU fishing by Danish vessels in the Sound,95 and the Tarantelo case involving major illegal Mediterranean trade in Bluefin tuna, amounting to 20% of the EU’s total Bluefin quota.96 This lack of intraEU implementation, as observed in Chap. 5, damages the EU normativity because it shows lack of coherence and consistency. In regions where EU vessels are found to be IUU fishing, the EU’s promotion of normative agenda is resisted and perceived as hypocrisy.97 Reports of abusive albeit legal reflagging of EU vessels to and from yellow or red-carded third States98 are equally damaging to the EU’s normativity. Admittedly, these reports point more to the inability and/or unwillingness of (some) EU Member States to tackle these problems, as enforcement of the CFP at sea in that regard lies with them.99 Notwithstanding this internal policy organisation, it is the EU’s normativity that is damaged. A clear example from the past of how the EU’s normativity can be damaged is the EU negotiations with Namibia on a fisheries agreement in the early 1990s. These negotiations were suspended by the EU in order to “bring about the ending of illegal fishing [by European vessels] in Namibian waters, to encourage the EEC Member State concerned to take the measures required to attain this objective”.100 Accordingly, the IUU fishing Regulation and its implementation paint a rather mixed picture of the EU’s normativity. It is a framework for the adoption of unilateral coercive measures, but it rests on ample international support and fuels cooperation. It appears to formally comply with relevant international law norms and its implementation remains legally unchallenged. However, the strong normativity stemming from this perceived normativity is faced with important implementation criticism 94

See e.g. Client Earth 2017; EJF et al. 2016b, pp. 10–15; Vulperhorst et al. 2017; Druel E (2018) Shocking cases of illegal fishing in EU highlight the need for stronger fisheries control. https://www.euractiv.com/section/agriculture-food/opinion/shocking-cases-of-ill egal-fishing-in-eu-highlight-the-need-for-stronger-fisheries-control/. Accessed 2 August 2022; Client Earth et al. 2018; Hosch 2016, pp. 18–19; BBC (2017) Europe vessels dey do illegal fishing for Africa. https://www.bbc.com/pidgin/world-41244064. Accessed 18 July 2020; Clover C (2022) Russia isn’t alone in stealing food—the EU does it too. https://www.politico.eu/article/eu-food-sup ply-fisheries-tuna-commission-global-shortage-ukraine-russia/. Accessed 2 August 2022; Marto 2019, p. 47. 95 Undercurrent News (2018) Danish vessels caught fishing illegally, claims Greenpeace. https://www.undercurrentnews.com/2018/03/16/danish-vessels-caught-fishing-illegally-claimsgreenpeace/?utm_source=Undercurrent+News+Alerts&utm_campaign=935c9d01b4-Europe_bri efing_Mar_16_2018&utm_medium=email&utm_term=0_feb55e2e23-935c9d01b4-91343769. Accessed 2 August 2022. 96 Undercurrent News (2018) WWF urges ICCAT to take action on illegal European bluefin trade. https://www.undercurrentnews.com/2018/11/12/wwf-urges-iccat-to-take-action-on-illegaleuropean-bluefin-trade/?utm_source=Undercurrent+News+Alerts&utm_campaign=4b9cf70375Europe_briefing_Nov_12_2018&utm_medium=email&utm_term=0_feb55e2e23-4b9cf7037591343769. Accessed 2 August 2022. 97 Miller et al. 2014, p. 143. 98 EJF et al. 2016a. 99 Marto 2019; Long and Curran 2000, p. 55. 100 European Commission (1991) Press Release IP-91-582. http://europa.eu/rapid/press-release_IP91-582_en.htm. Accessed 2 August 2022.

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on the extent to which the EU (1) relies on its self-interest and (2) acts coherently and consistently. This shows that unilateral coercive measures can have a veil of normativity. However, in order to keep it, they must be coherently and consistently implemented in light of the common interest.

6.5.2 The Sustainable Fishing Regulation Similar to the IUU fishing Regulation, the SFR is a framework for the adoption of various measures including trade restrictive measures against third States. The more particular scope of these measures requires the normativity analysis to pay greater attention to the possible implementation of the SFR. In particular, unlike the IUU fishing Regulation, the possible actions under the SFR do not relate to fishing of all stocks in general but have a more specific scope—stocks of common interest. The SFR defines stock of common interest as a fish stock the geographical distribution of which makes it available to both the Union and third countries and the management of which requires the cooperation between such countries and the Union, in either bilateral or multilateral settings.101

This definition largely coincides with the definition used in the 2015 ITLOS Advisory Opinion102 and, considering the context of the SFR, one can conclude that its aim is the regulation of shared stocks, governed by Article 63(1) and (2) UNCLOS. The stocks referred to in these paragraphs are also referred to in shorthand as transboundary and straddling stocks, respectively. Transboundary stocks are the ones occurring only in (migrating only through) the Exclusive Economic Zones (EEZ) of two or more States without reaching the high seas.103 Straddling stocks, on the other hand, are stocks that, next to the EEZs, are also present in and migrate onto the high seas.104 It must be stated, however, for reasons of completeness that while the scope appears to be intended for shared stocks, the language is not very clear and opens the SFR to wider interpretations and uses. In particular, the SFR may also involve highly migratory stocks as suggested in the preparatory works to the SFR.105 The phrase “geographical distribution […] which makes it available” also leaves unanswered the question whether the particular stock must always be present in the EU’s waters? If not, the geographical scope of the SFR can be as wide as the world ocean.106 The SFR’s scope is important for the normativity of the EU’s actions in implementing it. 101

European Parliament and Council 2012a, Article 2(a). ITLOS, Request for an advisory opinion submitted by the Sub-Regional Fisheries Commission (SRFC) (No 21), Advisory Opinion, 2 April 2015, ITLOS Reports 2015, p. 4. 103 Hayashi 1993. 104 Ibid. 105 European Commission 2011b, pp. 7, 9, 12. 106 Vatsov 2017, p. 302. 102

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This is because, first, different legal regimes apply in the different maritime zones it may or may not be applicable;107 second, such vagueness can lead to unpredictability and arbitrary application of the SFR. These legal differences and possible variations in implementation may decrease normativity with respect to any and all normativity elements as they may promote norms that are not universal or universalizable, coercion may be used too hastily without considering other cooperative options, and with little legitimacy. Be that as it may, the SFR is analysed as understood to apply to shared stocks only.

6.5.2.1

Universality

Under the universality element it is necessary to examine the type of coercive measures that the SFR provides for and whether they represent a type of action that is universal or universalizable. This separate analysis is needed due to the SFR’s more specific focus. The EU presented the SFR internationally as a “complementary instrument to the EU’s control and enforcement mechanism and, in particular, the framework for adopting measures against third countries under the IUU Regulation”.108 As such, the EU sought to translate the general consensus on achieving sustainable fishing and fighting IUU fishing to the SFR. “[The SFR] complements the IUU Regulation in that it is meant to address actions of third countries that are not illegal even though they may be contrary to international quota-allocating arrangements. This is because these arrangements are political agreements and, as such, are not legally binding.109 The lack of a breach of a binding international agreement prevents the application of the IUU Regulation. [In particular, the SFR’s] mechanism complements the IUU Regulation by targeting legal “fisheries not conducted within a legal framework guaranteeing sustainability”, as the EU considered to be the case with the Icelandic and Faroese fishing activities during the Mackerel War.110 ”111 The Mackerel War was a fishing quota dispute over shared fish stocks (mackerel and Atlanto-Scandian herring) broadly involving the EU and Norway on the one side and Iceland, the Faroe Islands, and Greenland on the other.112 The Mackerel War also occasioned the SFR’s adoption and its implementing measures against the Faroe Islands. Thus, the analysis of the normativity of the EU’s conduct focuses extensively, albeit not exclusively, on the Mackerel War. The stated overarching goal of the SFR is “to ensure the long-term conservation of stocks of common interest to the [EU and third States]”.113 That is, the EU promotes 107

Vatsov 2016. European Parliament and Council 2013, Article 36. See also European Union 2012, p. 15. 109 European Commission 2011b, p. 70. 110 Ibid., 9–10. 111 Vatsov 2017, p. 302. 112 On the factual background of the dispute, see Vatsov 2017. 113 European Parliament and Council 2012a, Article 1(1). 108

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a norm of conservation of shared stocks, which is an incarnation of the sustainable fishing norm. There can be no doubt about the universality of the norm that stocks should be fished sustainably. One need only look at any global fisheries-related binding instruments such as the UNCLOS, the UNFSA, and the PSMA and nonbinding instruments such as the annual UNGA Law of the Sea and Sustainable fisheries Resolutions, the CCRF, and the various instruments resulting from the Rio process on sustainable development to mention just a few. Furthermore, there can be no doubt that where stocks are shared there is an obligation on the States sharing them of a universal character to cooperate in their management. This is reflected in Article 63 UNCLOS, Part III of the UNFSA, and the various RFMOs and other arrangements that have been set up around the world as fora for such cooperation. While the overarching aim of the SFR is the conservation of shared stocks, the SFR is essentially a framework for the adoption of restrictive measures. These measures most notably include import bans against a third State that is identified as allowing non-sustainable fishing. “Article 3 SFR provides twofold cumulative criteria for [such identification], each criterion composed of multiple alternative elements. The first criterion refers to failure to cooperate in the management of a stock of common interest in accordance with three alternative sets of norms: (1) the provisions of the UNCLOS and the UNFSA; (2) any other international agreement; and (3) any other norm of international law.114 The second criterion can be satisfied by one of two alternatives: (1) the third country must fail to adopt necessary management measures (2) the third country must adopt such measures without due regard to the rights, interests, and duties of other countries and the EU and, when taken together with the measures of the other countries, the thirdcountry measures lead to fishing activities risking the sustainability of the stock. The second alternative element is considered fulfilled even where a stock’s sustainability is preserved due to the actions of the other fishing States.”115 The first criterion appears to be relying on universal or otherwise agreed norms. However, it (together with the other two criteria) is lacking an important clarification—that the said agreements and norms are binding upon the third State in question. While this could be implied, it could equally not be, which is why this omission is important. As the wording stands, the EU could base its action on perceived violation of an agreement or norm that is not binding upon the third State. Considering that the whole idea behind the SFR is to sanction legally conducted fishing the EU perceives as unsustainable, makes the ‘binding upon’ omission in the first criterion even more worrying from a normativity perspective. Using coercion to promote a norm or a particular mode of its implementation upon third States that have not agreed to it is not normative and can be problematic under the legality sub-element. Indeed, the EU has conservation obligations under Part V UNCLOS and specifically Article 61 UNCLOS for the stocks within its EEZ. These obligations are not affected by Article 63(1) UNCLOS as it states that the obligation of coastal States 114

Interestingly, the Regulation does not explicitly state that these sets of norms must be binding on both the EU and the particular third country. 115 Vatsov 2017, p. 302.

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sharing a transboundary stock “to seek […] to agree upon the measures necessary to coordinate and ensure the conservation and development of such stocks” is without prejudice to the other provisions of Part V. The SFR and its implementation in the Mackerel War, however, go much further than adopting conservation measures within the EU’s EEZ. They seek to force a third State, in casu the Faroe Islands, to reach an agreement with the EU (and the other coastal States). This is contrary to the rights of the coastal States, which under Article 63 UNCLOS are obliged only to “seek to agree”, that is to negotiate, the necessary conservation measures. “The duty to negotiate, as opposed to the duty to reach an agreement, is not result-oriented but conduct-oriented.116 As the Permanent Court of International Justice has stated and the International Court of Justice (ICJ) subsequently agreed, “an obligation to negotiate does not imply an obligation to reach an agreement”.117 While the duty to negotiate has real legal content with a multitude of emanations, which, if not observed, can lead to its violation,118 it is still very inconsequential. If States negotiate in good faith and try to reach an agreement but fail, the duty to negotiate will not be violated. The UNFSA further elucidates the straddling stocks regime. It puts increased emphasis on management through RFMOs and spells out certain particularities of the States’ duty to cooperate. Nevertheless, the UNFSA does not go as far as changing the nature of the duties in Article 63 UNCLOS.”119 The conduct-oriented nature of the duty means that a coastal State cannot be forced to reach an agreement on the necessary conservation measures. This is the result of a deliberate choice of the UNCLOS drafters, considering the failed attempt of Argentina to have the provision amended to “be obliged” to agree.120 Thus, with the SFR and its implementing measure, the EU effectively tried to promote a change in the nature of the duty in Article 63 UNCLOS. In this way the EU was seeking to promote a norm or an interpretation that is not universal and its normativity was damaged as a result.

6.5.2.2

Use of Instruments

In light of the lack of universal support for the specific type of action the EU sought to achieve through the SFR and its implementation, it is all the more important for the EU’s normativity under the use of instruments element to examine to what extent the SFR seeks to involve cooperation and negotiation before using coercion. 116

Kunoy 2012, p. 692. PCIJ, Railway Traffic between Lithuania and Poland, Advisory Opinion, 15 October 1931, PCIJ Series A/B, No. 42, pp. 108, 116; ICJ, International Status of South-West Africa, Advisory Opinion, 11 July 1950, ICJ Reports 1950, pp. 128, 140. 118 Arbitral tribunal, Lac Lanoux Arbitration (France v Spain), 16 November 1957, Reports of International Arbitral Awards, vol XII, pp. 281, 317; ICJ, North Sea Continental Shelf (Germany/Denmark; Germany/Netherlands), Judgment, 20 February 1969, ICJ Reports 1969, p. 3, para 87. See also Shearer 1990, p. 244. 119 Vatsov 2017, p. 301. 120 United Nations 1979, pp. 92–93, para 42. 117

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With the SFR the EU is effectively taking it upon itself to enforce international conservation norms due to the lack of a centralised enforcement mechanism under international law and the wide jurisdictional limitations for compulsory dispute settlement relating to fisheries matters under the UNCLOS and the UNFSA. While such is the nature of international law and of fisheries law in particular, it is not normative to immediately turn to coercion if there is a perceived violation of a certain norm and other less coercive options are available. In the SFR case, it is clear from the preparatory works that the EU has not even considered using options such as using available dispute settlement mechanisms.121 When such options were proposed during the consultation process with target groups, the Commission considered it “too lengthy and [not responding] to the imperatives of short-term risk of overfishing”.122 While this may be true, it is an important part of the regime that must not be discarded. The unilateral character of the coercive SFR measures contrasts with the cooperative character of the existing regime. There is at least one possible use of the dispute settlement procedure under UNCLOS in the SFR context. It is using Article 287(1)(d) UNCLOS, which gives the, albeit not compulsory for the parties, choice of using “a special arbitral tribunal constituted in accordance with Annex VIII [UNCLOS]”. The mechanisms provided therein are subject-matter-oriented and explicitly include fisheries disputes.123 While the Annex VIII special tribunal generally can also decide on disputes concerning the interpretation and application of UNCLOS provisions, its importance lies in the fact that the tribunal is to be composed mainly by experts from the particular field124 and the possibility that the parties to a fisheries dispute may request the tribunal to solve disputes mainly concerning facts.125 The tribunal could make conclusive finding of fact as between the parties, unless they agree otherwise126 and, if so requested, it may also formulate non-binding recommendations that will be meant to serve as a basis for review of the disputed question by the parties.127 This option is useful in the SFR context because it centres on conservation problems of shared stocks and, as the Mackerel War showed, such problems can revolve around factual disagreements on changes in the geographical distribution (CGD) of shared stocks. In the Mackerel War, Iceland, Greenland, and the Faroe Islands all argued that their unilateral quota increases were based on the increased abundance of the stocks in question in their waters due to their movement to the north caused by the warming of the ocean. The EU (and Norway) rejected these factual claims even

121

European Commission 2011b, p. 16. Ibid. 123 United Nations Convention on the Law of the Sea, opened for signature 10 December 1982, 1833 UNTS 397, entered into force 16 November 1994, Annex VIII, Article 1. 124 Ibid., Articles 2 and 3. 125 Ibid., Article 5(1). 126 Ibid., Article 5(2). 127 Ibid., Article 5(3). This book paragraph draws on an earlier version of the text in Vatsov 2017, p. 301. 122

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though there are scientific reports showing this.128 Thus, the EU should not have discarded this option ab initio. In the case of the Mackerel War, the disagreement had continued for several years before a political decision to impose sanctions was taken. This delay shows that imposing sanctions is in reality not a quick solution either. In the specific case of the Mackerel War, although Denmark (as governing the Faroe Islands’ UNCLOS participation) has not chosen a special arbitral tribunal under Article VIII UNCLOS as an option to settle disputes relating to the UNCLOS, it would have been possible for the EU to offer the Annex VIII solution ad hoc under Article 280 UNCLOS. Another, more normative, way to act in the SFR context is to seek cooperation for amending the relevant international norms to allow for the SFR measures, as is the case with the IUU fishing Regulation. However, the EU has not attempted to change or discussed changing this point of law at the global level. “Only after the Mackerel War, did some suggestions appear for an attempt to obtain broader (than just Norwegian) support for dealing with such situations in the future. In the context of the negotiations of a new UNCLOS implementing agreement the European Parliament adopted a resolution on its fisheries aspects. The resolution states that “lessons should be learned from the EU’s recent disagreements with the Faroe Islands and Iceland, in order to enable stocks to be managed sustainably worldwide”,129 suggesting to the Commission to put forward the issue internationally.130 ”131 Information is not yet available on whether the Commission took up this suggestion and what were the results if it did. Accordingly, the EU’s action with respect to the SFR is marred by a lack of wide multilateral cooperative effort and is instead putting great emphasis on the unilateral coercion, which contradicts the use of instruments element of normativity.

6.5.2.3

Legitimacy

The lack of wide international support is the original sin of the SFR in terms of normativity. While this is not an easy setback to overcome, it becomes even harder where it is used in disregard of the legitimacy sub-elements of normativity—legality, interests, and coherence and consistency. Legality Since the SFR simply provides a framework for the EU to adopt measures, without implementing measures it does not by itself legally affect the legal position of third States. Article 5(c) SFR requires that its implementing measures are “compatible with the obligations imposed by international agreements to which the Union is a 128

E.g. (repeating findings also from earlier reports) ICES 2015, pp. 39, 43–44, 53, 373, 385, 393, 786; Reid et al. 2003, 2006. 129 European Parliament 2018b, para AC. 130 This view was confirmed to me in an email on 18 April 2016 by the office of MEP Isabelle Thomas, who authored that paragraph. 131 Vatsov 2017, p. 303.

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party and any other relevant norms of international law”. “Only two implementing Regulations have been issued under the SFR—one for imposing measures against the Faroe Islands and one repealing them. Although the EU measures were not declared in breach of international law, as the proceedings were terminated, their legality remains questionable under the international fisheries regime and WTO law.”132 “With respect to the international fisheries regime, one can point to the Faroese claims against the EU before the Annex VII Tribunal. In particular, the Faroe Islands complained of a breach of its negotiation rights under Article 63(1) UNCLOS. According to its Statement of Claim, the breach arose as early as the EU’s threats of adopting coercive measures.133 ”134 As already stated above, the SFR effectively tried to promote a change in the nature of the duty in Article 63 UNCLOS from one of conduct to one of result. The implementing measures against the Faroe Islands showed this in practice. This attempt to change the nature of the duty to negotiate indeed affects the balance of rights and obligations and in the Mackerel War case appears to violate the rights of the EU’s partner. With respect to WTO law, the SFR’s requirement that its implementing measures observe the EU’s international obligations effectively incorporates the relevant WTO exception requirements. In particular, Article 5(3) SFR incorporates the chapeau conditions of Article XX GATT (arbitrary or unjustifiable discrimination and disguised trade restriction) and Article 5(1)(b) SFR the specific requirements of Article XX(g) GATT (complementing restrictions on home production). “With respect to the chapeau requirements, the EU singled out the Faroe Islands. The ongoing disagreements with Iceland and Greenland at the time with respect to the same stocks render the EU measures questionable. The Commission’s Legal Service opinion stated itself that “it would be difficult to justify a trade measure which applies only to one or more fish stocks whereas other stocks of the same species in a similar situation are not treated likewise”.135 ”136 The specific Article XX(g) GATT requirement mandates any restrictive measures to be “made effective in conjunction with restrictions on domestic product or consumption”. This condition requires even-handedness in the imposition of restrictions.137 The even-handedness requirement means that such restriction must be applied simultaneously with restrictions on domestic consumption or production, and must be comparable, in the light of the objective pursued. According to the Commission’s Legal Service, “depending on the circumstances, a complete ban on 132

Ibid. The Kingdom of Denmark in Respect of the Faroe Islands (2013) Statement of Claim, Kingdom of Denmark in Respect of the Faroe Islands v European Union (Coercive Economic Measures in Respect of the Shared Stock of Atlanto-Scandian Herring), para 2. 134 Vatsov 2017, p. 303. 135 European Commission are taking extreme negotiating, p. 7. 136 Vatsov 2017, p. 303. 137 Appellate Body, United States—Standards for Reformulated and Conventional Gasoline, Report, 29 April 1996, AB-1996-1, paras 19–21; Appellate Body, United States—Import Prohibition of Certain Shrimp and Shrimp Products, Report, 12 October 1998, AB-1998-4, para 144. 133

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imports could be considered as incompatible with this requirement if the EU fishermen were allowed to continue fishing within the limits of a quota”.138 That is, the Legal Service advised that where a total import ban for a stock is applied, under the even-handedness requirement for conservation measures, EU fishermen should not be allowed to continue fishing. Regulation 793/2013, however, imposed a total ban on both herring and mackerel as associated species while noting a 26% reduction in the EU’s herring catches.139 In that situation the even-handedness requirement does not seem fulfilled, considering the advice of the Legal Service, and as such the implementation measures raised serious doubts as to their legality. “The only way to reconcile the contradiction between the EU’s intent to observe international law and the alleged inconsistency with the international fisheries and trade law is to view the EU measures as countermeasures under international law. Special attention was paid to this issue during the drafting of the SFR. The Commission Legal Service was asked “whether the [envisioned] measures could be justified as “countermeasures” in response to an “internationally wrongful act””.140 The Legal Service expressed considerable doubts as to the need for resorting to countermeasures as well as whether a breach of an obligation owed to the EU can be established, considering that the EU’s complaints are only of States that are failing to cooperate or are taking extreme negotiating positions.141 ”142 As already explained, this is not as such a breach of the cooperation obligation under Article 63 UNCLOS, which is not one of result. Thus, even as countermeasures, the measures lacked strong legal foundation. Interests As with the IUU fishing Regulation, the SFR was based on specific interests that it sought to maximise. On the face of it, the SFR seeks to further the long-term and common interest of sustainable fishing. However, this appears to be just a normative shell hiding the underlying immediate self-interest to preserve the share of the EU’s quota. The refusal to accept the consequences of the CGD of the shared stocks sought to prevent the renegotiations of the relative share of the catches. Such renegotiation was going to lead to a decline in the EU’s share in favour of the Faroe Islands and the other third States benefitting from the increased presence of the stocks in their waters. When the coercive measures did not produce the desired result due to the concurrent opening of the Russian market to Faroese fish imports as a consequence of the Crimea invasion-related bans on food products, the EU had no choice but to accept the CGDs and reach a negotiated solution. That solution was reached but resulted in a significant increase of the overall total allowable catch (TAC) and 138

European Commission 2011a, p. 5. Even if the measures were compatible with WTO law, there is nothing in Regulation 793/2013 on whether they are compatible with the UNCLOS and the UNFSA, which seems to have been assumed. 140 European Commission 2011a, p. 2. 141 Ibid., pp. 13, 16. 142 Vatsov 2017, p. 304. 139

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created sustainability doubts. In particular, the deal on mackerel covered only the EU, Norway, and the Faroe Islands (amounting to about 1,047,000t) and already exceeded the temporary scientific advice (890,000t) (and even the subsequently updated one of 1,011,000t).143 Thus excluding Russia, Iceland, and Greenland meant that the eventual total catch were going to exceed the scientific advice with an estimated 50%, according to Icelandic Minister of Fisheries and Agriculture.144 That is to say, the seemingly sustainability-oriented action of the EU under the SFR and its implementation showed its true colours when the EU’s market access leveraging did not yield the sought results. Coherence and Consistency The coherence and consistency of the EU’s conduct in implementing the SFR also point away from normativity. First, singling out the Faroe Islands, when the EU had the same problem with Iceland and Greenland showed lack of consistency in applying the SFR. In fact, as it transpires from the advice of the Commission’s Legal Service, the EU’s measures first had Iceland in mind and action against the Faroe Islands was only potential at the time of drafting the SFR.145 This shows that at the very least the EU perceived Iceland’s actions just as damaging as those of the Faroe Islands. However, the EU only went after one of them in what appears an arbitrary manner. Second, the EU’s attempt to participate in Greenland’s exploratory fishing of herring and mackerel outside of 2014 mackerel negotiations showed incoherence in its actions of allegedly protecting sustainable fishing. The exploratory fishing related to the news of appearance of herring and mackerel in the waters of Greenland. Greenland’s industry had to catch-up with these new developments by adapting its fleet.146 During this adaptation period Greenland, however, had to rely also on foreign fishing fleets for its exploratory fishing.147 The EU sought involvement in that exploratory fishing outside of the negotiated deal. However, that was unacceptable to Norway because it would have de facto undermined any eventual agreement and would have

143

Agreed Record on a Fisheries Agreement between the European Union, the Faroe Islands and Norway on the Management of Mackerel in the North-East Atlantic from 2014 to 2018, signed 12 March 2014. https://www.regjeringen.no/contentassets/eea38124b666486a92c952c1a8e9f615/ makrellavtale2014.pdf. Accessed 2 August 2022; Tallaksen E (2014) Mackerel deal gets bitter reception as TAC set at 1.24m, Faroes get 12.6%. http://www.undercurrentnews.com/2014/03/13/mac kerel-deal-gets-bitter-reception-as-tac-set-at-1-24m-faroes-get-12-6/. Accessed 2 August 2022. 144 Undercurrent News (2014) Iceland: EU, Faroe Islands, Norway take full responsibility for overfishing. http://www.undercurrentnews.com/2014/03/13/iceland-eu-faroe-islands-norway-take-fullresponsibility-for-overfishing/. Accessed 2 August 2022. 145 European Commission 2011a, 3. 146 Ramsden N (2013) Polar Seafood prepared for Greenlandic industry shift. http://www.und ercurrentnews.com/2013/04/15/polar-seafood-prepared-for-greenlandic-industry-shift/#.UePQ32 1LpTg. Accessed 2 August 2022. 147 Tallaksen E (2014) Greenland ups 2014 mackerel quota by 66% to 100,000t. http://www.und ercurrentnews.com/2014/02/24/greenland-ups-2014-mackerel-quota-by-66-to-100000t/. Accessed 2 August 2022.

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given more legitimacy to Greenland’s claims, which Norway was rejecting.148 This, in turn, showed inconsistency on behalf of the EU in rejecting Faroese claims of increased presence of shared stocks but indirectly supporting Greenland’s claims of the newly present stocks (both claims being based on essentially the same CGD of shared stocks) and difference being that the latter provided economic benefit to the EU. Third, the EU’s support for the final mackerel deal that went way above the scientific advice and the subsequent lifting of the measures against the Faroe Islands showed incoherence in the EU’s actions of fighting unsustainable fishing. The Mackerel War appears to still be resurfacing, however. For the past year actions of Norway and the Faroe Islands of unilateral quota increases in 2021 and 2022 have stirred up the tensions in Europe again.149 There is no information that the EU reacted to either of the two increases. This is another opportunity for the EU to act normatively and its reaction is awaited from the sector.

6.6 Conclusion This chapter considered the EU’s normativity in using coercion to achieve fisheriesrelated goals and how it was facilitated or constrained by applicable EU and international law rules. The discussion considered three different types of legal instruments in terms of the level of unilateralism involved. The analysis showed that the EU’s actions are promoting universal or universalizable overarching norms. The specific means of implementation of these norms shows variations in the EU’s normativity. The EU’s normativity, as expected, is the strongest with respect to instruments implementing multilaterally agreed measures. This is because the EU is acting under its international obligations and the measures in question follow a multilateral cooperative effort. The EU’s normativity is lower with respect to the use of trade conditionality in the context of FTAs. The normativity is lower there because of the way such conditionality comes about. Conditionality in the shape of suspending existing trade agreements has the potential of high normativity as it presupposes a pre-existing agreement on the imposition of such measures. However, the possibility of such measures under the EU’s modern trade agreements is not explicitly stated. It is just an interpretation of the CJEU in the context of a competence analysis that reads-in that possibility. This CJEU’s conditionality interpretation is open to heavy criticism, 148

Tallaksen E (2014) Norway: EU, Iceland demand to fish in Greenland broke mackerel talks. http://www.undercurrentnews.com/2014/03/06/norway-eu-iceland-demand-to-fish-in-greenl and-broke-mackerel-talks/. Accessed 2 August 2022. 149 Holland J (2021) Europêche calls for action against Norway, Faroes for overfishing mackerel. https://www.seafoodsource.com/news/supply-trade/eu-fishers-call-for-action-against-norway-far oes-for-overfishing-mackerel. Accessed 2 August 2022; FIS-NET (2022) Unilateral quotas on mackerel established by Norway and Faroe Islands. http://www.fis-net.com/fis/worldnews/worldn ews.asp?monthyear=6-2022&day=28&id=118642&l=e&country=0&special=0&ndb=1&df=0. Accessed 2 August 2022.

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and it decreases EU’s normativity both if it is followed and if it is not due to the incoherence and possibly illegality under international law that it may create. The adoption of truly unilateral measures, which should theoretically be the least normative, also paints a mixed picture of the EU’s normativity. The EU’s action under its IUU fishing Regulation showed high normativity under universality, use of instruments, and the legality sub-element of legitimacy. However, the analysis of interests and coherence and consistency showed certain normativity concerns due to reported divergence in implementation against third States. The EU’s action under the SFR, showed a much different picture with respect to all elements of normativity. While the SFR is meant to complement the IUU fishing Regulation and has been shaped after it to a great extent, the analysis shows that the EU went too far in seeking to promote sustainable fishing through coercive measures. The EU’s action under the SFR appears to only carry a normative shell promoting immediate economic self-interests. Overall, the analysis looked at a different aspect of the EU’s conduct under the use of instruments element—coercion. It showed that the EU has a strong coercive power on account of its market and is increasingly making use of it to further fisheries objectives—mainly fighting IUU fishing but also, related to that, unsustainable fishing. The analysis showed that different normativity issues arise depending on the level and origin of the EU action. Even where the EU is using unilateral trade sanctions it can still act normatively. Where the EU builds on established international consensus, it enjoys much greater normativity, even if coercive measures are used. However, where the EU is spearheading new legal developments without seeking wide consensus and forcefully leverages its market, its normativity is very low and its actions are likely to face strong resistance, as it happened in the Mackerel War. Furthermore, the analysis showed that there is ground for improvement in the way the EU promotes and implements universal or universalizable international norms, particularly in terms of legitimacy.

References Agnew D, Pearce J, Pramod G, Peatman T, Watson R, Beddington J, Pitcher T (2009) Estimating the Worldwide Extent of Illegal Fishing. PLoS ONE. DOI: https://doi.org/10.1371/JOURNAL. PONE.0004570 CCAMLR (1997) Report of the Sixteenth Meeting of the Commission. http://archive.ccamlr.org/ pu/E/e_pubs/cr/97/i01.pdf. Accessed 2 August 2022 Chaves L (2000) Illegal, Unreported and Unregulated Fishing: WTO Consistent Trade Related Measures to Address IUU Fishing. http://www.fao.org/docrep/005/Y3274E/y3274e0i.htm# bm18. Accessed 2 August 2022 Churchill R (2019) International Trade Law Aspects of Measures to combat IUU and Unsustainable Fishing. In: Caddell R, Molenaar E (eds) Strengthening International Fisheries Law in an Era of Changing Oceans. Hart, Oxford. DOI: https://doi.org/10.5040/9781509923373.CH-014 Churchill R, Owen D (2010) The EC Common Fisheries Policy. Oxford University Press, Oxford

188

6 Challenges to the EU’s Normativity in Multileveled Coercive Action

Client Earth (2017) Slipping through the net: The control and enforcement of fisheries in France, Ireland, the Netherlands, Poland, Spain and the UK (England). https://www.clientearth.org/ media/1rcczhlw/slipping-through-the-net-the-control-and-enforcement-of-fisheries-in-franceireland-the-netherlands-poland-spain-and-the-uk-england-ce-en.pdf. Accessed 2 August 2022 Client Earth, SCIAENA, OCEANA, CFFA, PEW, WWF, The Nature Conservancy, Seas at Risk, FishSec, Our Fish, EJF (2018) Joint NGO priorities on the revision of the EU Fisheries Control System. https://www.clientearth.org/media/ho4nimkg/joint-ngo-priorities-on-therevision-of-the-eu-fisheries-control-system-coll-en.pdf. Accessed 2 August 2022 Cooreman B (2017) Global Environmental Protection through Trade: A Systematic Approach to Extraterritoriality. Edward Elgar, Cheltenham Council (2000a) Regulation (EC) 2092/2000 prohibiting imports of Atlantic blue-fin tuna (Thunnus thynnus) originating in Belize, Honduras and Equatorial Guinea, OJ L249/1 Council (2000b) Regulation (EC) 2093/2000 prohibiting imports of Atlantic swordfish (Xiphias gladius) originating in Belize and Honduras, OJ L249/3 Council (2001) Regulation (EC) 1036/2001 prohibiting imports of Atlantic bigeye tuna (Thunnus obesus) originating in Belize, Cambodia, Equatorial Guinea, Saint Vincent and the Grenadines and Honduras, OJ L145/10 Council (2004a) Regulation (EC) 827/2004 prohibiting imports of Atlantic bigeye tuna (Thunnus obesus) originating in Bolivia, Cambodia, Equatorial Guinea, Georgia and Sierra Leone and repealing Regulation (EC) 1036/2001, OJ L127/21 Council (2004b) Regulation (EC) 828/2004 prohibiting imports of Atlantic swordfish (Xiphias gladius) originating in Sierra Leone and repealing Regulation (EC) 2093/2000, OJ L127/23 Council (2005) Regulation (EC) 919/2005 amending Regulation (EC) 827/2004 as regards the prohibition of imports of Atlantic bigeye tuna from Cambodia, Equatorial Guinea and Sierra Leone, and repealing Regulation (EC) 826/2004 prohibiting imports of blue-fin tuna from Equatorial Guinea and Sierra Leone and Regulation (EC) 828/2004 prohibiting imports of swordfish from Sierra Leone, OJ L156/1 Council (2008) Regulation (EC) 1005/2008 establishing a Community system to prevent, deter and eliminate illegal, unreported and unregulated fishing, OJ L286/1 Doulman D, Swan J (2012) A Guide to the Background and Implementation of the 2009 FAO Agreement on Port State Measures to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing. https://www.fao.org/3/i2590e/I2590E.pdf. Accessed 2 August 2022 EJF, OCENA, PEW, WWF (2016a) Ensuring better control of the EU’s external fishing fleet: Reflagging by EU fishing vessels – the need for stricter standards. https://eu.oceana.org/sites/def ault/files/reflagging_by_eu_fishing_vessels_eng.pdf. Accessed 2 August 2022 EJF, OCENA, PEW, WWF (2016b) The EU IUU Regulation: Building on success: EU progress in the global fight against illegal fishing. https://ejfoundation.org/resources/downloads/IUU_rep ort_01-02-16_web.pdf. Accessed 2 August 2022 EUMOFA (2021) The EU Fish Market: 2021. https://www.eumofa.eu/documents/20178/477018/ EN_The+EU+fish+market_2021.pdf/27a6d912-a758-6065-c973-c1146ac93d30?t=163696463 2989. Accessed 2 August 2022 European Commission (2007a) Communication On a new strategy for the Community to prevent, deter and eliminate Illegal, Unreported and Unregulated fishing, COM(2007) 601 final European Commission (2007b) Note to Mr Fotiadis Director General, Common Position for the 100th Session of the OECD Committee for Fisheries (Paris, 29–31 October 2007), FISH-B-1/AF D(2007) European Commission (2007c) Proposal for a Regulation Establishing a Community system to prevent, deter and eliminate illegal, unreported and unregulated fishing, COM(2007) 602 final European Commission (2007d) Staff Working Document, Impact Assessment, Accompanying document to the Proposal for a Regulation establishing a Community system to prevent, deter and eliminate illegal, unreported and unregulated fishing, SEC(2007) 1336 final European Commission (2011a) Note for the Attention of Mrs Lowri Evans Director General, DG MARE, sj.b.(2011)708046

References

189

European Commission (2011b) Staff Working Paper, Impact Assessment, Accompanying the document Commission proposal for a Regulation of the European parliament and of the Council on certain measures directed to non-collaborating countries for the purpose of the conservation of fish stocks, SEC(2011) 1576 final European Commission (2014) Non-Paper, 113th Session – OECD Committee on Fisheries (COFI) 7–9 April 2014 & Special Session, DAC/FAO/WB 10–11 April 2004 European Commission (2015a) Decision on notifying a third country of the possibility of being identified as a non-cooperating third country in fighting illegal, unreported and unregulated fishing, OJ C142/7 European Commission (2015b) Non-Paper, 116th Session – OECD Committee on Fisheries (COFI) 19–25 October 2015 European Commission (2019) Notice of information of the termination of the demarches with a third country notified on 21 April 2015 of the possibility of being identified as a non-cooperating third country pursuant to Regulation (EC) 1005/2008 establishing a Community system to prevent, deter and eliminate illegal, unreported and unregulated fishing, 2019/C 6/07 European Commission (2022) Proposal for a Directive of the European Parliament and of the Council on Corporate Sustainability Due Diligence and amending Directive (EU) 2019/1937 European Parliament (2007) Resolution on the implementation of the EU action plan against illegal, unreported and unregulated fishing, OJ C287E/502 European Parliament (2013) Resolution on combating illegal fishing at the global level - the role of the EU, OJ C153E/148 European Parliament (2015) Resolution on the external dimension of the Common Fisheries Policy, OJ C419/175 European Parliament (2017a) Resolution on the implementation of control measures for establishing the conformity of fisheries products with access criteria to the EU market, 2017/2129(INI) European Parliament (2017b) Resolution on the situation and future prospects of the European fishing sector in the context of the Free Trade Agreement between the EU and Thailand, OJ C378/81 European Parliament (2018a) Resolution on common rules in respect of application of the external dimension of the CFP, including fisheries agreements, OJ C58/93 European Parliament (2018b) Resolution on Fisheries aspects within the international agreement on marine biodiversity in areas beyond national jurisdiction, UNCLOS, OJ C58/2 European Parliament (2022) resolution on a new trade instrument to ban products made by forced labour, 2022/2611(RSP) European Parliament, Council (2012a) Regulation (EU) 1026/2012 on certain measures for the purpose of the conservation of fish stocks in relation to countries allowing non-sustainable fishing, OJ L316/34 European Parliament, Council (2012b) Regulation (EU) 978/2012 applying a scheme of generalised tariff preferences and repealing Regulation (EC) 732/2008, OJ L303/1 European Parliament, Council (2013) Regulation (EU) 1380/2013 on the Common Fisheries Policy, amending Council Regulations (EC) No 1954/2003 and (EC) No 1224/2009 and repealing Council Regulation (EC) No 2371/2002 and (EC) No 639/2004 and Council Decision 2004/585/EC, OJ L354/22 European Parliament, Council (2014) Regulation (EU) 249/2014 repealing Regulation (EC) 827/2004 prohibiting imports of Atlantic bigeye tuna (Thunnus obesus) originating in Bolivia, Cambodia, Equatorial Guinea, Georgia and Sierra Leone, OJ L84/4 European Union (2012) EU Report on major developments of relevance on sustainable fisheries since 2008. http://www.un.org/depts/los/general_assembly/contributions_fisheries/2012/ 1st_Contrib_EU.pdf. Accessed 2 August 2022 European Union, Canada (2016) XVI EU-Canada Summit: Joint Declaration European Union, China (2018) Joint statement of the 20th EU-China Summit European Union, Japan (2012) Joint Statement on Efforts to Combat Illegal, Unreported and Unregulated Fishing

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European Union, Republic of Korea (2018) Joint Statement between the Republic of Korea and the European Union on Efforts to Combat Illegal, Unreported and Unregulated fishing European Union, United States (2011) Joint Statement between the European Commission and the United States Government on Efforts to Combat Illegal, Unreported and Unregulated Fishing FAO (1995) Code of Conduct for Responsible Fisheries. https://www.fao.org/3/v9878e/v9878e.pdf. Accessed 2 August 2022 FAO (2001) International Plan of Action to Prevent, Deter, and Eliminate Illegal, Unreported and Unregulated Fishing. https://www.fao.org/3/y1224e/Y1224E.pdf. Accessed 2 August 2022 FAO (2016) Report of the Third Session of the Joint FAO/IMO Ad Hoc Working Group on Illegal, Unreported and Unregulated (IUU) Fishing and Related Matters. https://www.fao.org/3/i5736e/ i5736e.pdf. Accessed 2 August 2022 Hayashi M (1993) The Management of Transboundary Fish Stocks under the LOS Convention. International Journal of Marine and Coastal Law. DOI: https://doi.org/10.1163/157180893 X00026 High Seas Task Force (2006) Closing the Net: Stopping illegal fishing on the high seas. https://por tals.iucn.org/library/sites/library/files/documents/2006-024.pdf. Accessed 2 August 2022 Hosch G (2016) Trade Measures to Combat IUU Fishing: Comparative Analysis of Unilateral and Multilateral Approaches. https://www.researchgate.net/profile/Gilles-Hosch/publication/309 013233_Trade_Measures_to_Combat_IUU_Fishing_Comparative_Analysis_of_Unilateral_ and_Multilateral_Approaches/links/57fe106608aeaf819a5bfd9e/Trade-Measures-to-CombatIUU-Fishing-Comparative-Analysis-of-Unilateral-and-Multilateral-Approaches.pdf. Accessed 2 August 2022 ICCAT (1998) Resolution by ICCAT Concerning the Unreported and Unregulated Catches of Tunas by Large-Scale Longline Vessels in the Convention Area, 98-18 ICCAT (2000) Recommendation by ICCAT Regarding Belize, Cambodia, Honduras, and St. Vincent and the Grenadines Pursuant to the 1998 Resolution Concerning the Unreported and Unregulated Catches of Tuna by Large-Scale Longline Vessels in the Convention Area, 00-15 ICCAT (2002a) Recommendation by ICCAT for Trade Restrictive Measures on Sierra Leone, 02-19 ICCAT (2002b) Recommendation by ICCAT Regarding Bolivia Pursuant to the 1998 Resolution Concerning the Unreported and Unregulated Catches of Tuna by Large-Scale Longline Vessels in the Convention Area, 02-17 ICCAT (2003) Recommendation by ICCAT for Bigeye Tuna Trade Restrictive Measures on Georgia, 03-18 ICES (2015) Report of the Working Group on Widely Distributed Stocks (WGWIDE), 25 August–31 August 2015, Pasaia, Spain, ICES CM 2014/ACOM:15 ILO (2007) Ninety-sixth Session: Record of Proceedings of the Committee on the Fishing Sector Kunoy B (2012) The Ambit of Pactum de Negotiatum in the Management of Shared Fish Stocks: A Rumble in the Jungle. Chinese Journal of International Law. DOI: https://doi.org/10.1093/CHI NESEJIL/JMS047 Leroy A, Galletti F, Chaboud C (2016) The EU restrictive trade measures against IUU fishing. Marine Policy. DOI: https://doi.org/10.1016/J.MARPOL.2015.10.013 Long R, Curran P (2000) Enforcing the Common Fisheries Policy. Blackwell Science, Malden Markus T (2009) European Fisheries Law from Promotion to Management. Europa Law Publishing, Groningen Marto C (2019) Human Rights Violations Consequent to Transshipment Practices in Fisheries. Ocean and Coastal Law Journal 24:32–58 Marx A, Ebert F, Hachez N, Wouters J (2017) Dispute Settlement in the Trade and Sustainable Development Chapters of EU Trade Agreements. https://ghum.kuleuven.be/ggs/publications/books/ final-report-9-february-def.pdf. Accessed 2 August 2022 Miller A, Bush S, Mol A (2014) Power Europe: EU and the illegal, unreported and unregulated tuna fisheries regulation in the West and Central Pacific Ocean. Marine Policy. DOI: https://doi. org/10.1016/j.marpol.2013.12.009 OECD (2004) Fish Piracy: Combating Illegal, Unreported and Unregulated Fishing

References

191

OECD (2005) Why Fish Piracy Persists: The Economics of Illegal, Unreported and Unregulated Fishing Reid D, Eltink A, Kelly C (2003) Inferences on the changes in pattern in the prespawning migration of the western mackerel (Scomber scombrus) from commercial vessel data, ICES CM 2003/Q:19 Reid D, Eltink A, Kelly C, Clark M (2006) Long-Term Changes in the Pattern of the Prespawning Migration of the Western Mackerel (Scomber scombrus) Since 1975, using Commercial Vessel Data, ICES CM 2006/B:14 Scott J (2014) Extraterritoriality and Territorial Extension in EU Law. American Journal of Comparative Law. DOI: https://doi.org/10.5131/AJCL.2013.0009 Shearer I (1990) High Seas: Drift Gillnets, Highly Migratory Species, and Marine Mammals. In: Kuribayashi T, Miles E (eds) Law of the Sea in the 1990s: A Framework for Cooperation. Law of the Sea Institute, Honolulu, pp 237–258 Tsamenyi M, Palma M, Milligan B, Mfodwo K (2009) Fairer Fishing? The Impact on Developing Countries of the European Community Regulation on Illegal, Unreported and Unregulated Fisheries. Commonwealth Secretariat, London. DOI: https://doi.org/10.14217/978184859 0328-EN UN General Assembly (1992) Report of the United Nations Conference on Environment and Development, Annex I Rio Declaration on Environment and Development, UN Doc.A/Conf.151/26 (Vol I) UN General Assembly (1999a) Implementation of provisions relating to straddling fish stocks, UN Doc.A/Res/54/32 UN General Assembly (1999b) Official Records, UN Doc.A/54/PV.60 UN General Assembly (2001a) Agreement for the Implementation of the Provision of the UN Convention on the Law of the Sea of 10 Dec. 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, UN Doc.A/Res/56/13 UN General Assembly (2001b) Oceans and the law of the sea, UN Doc.A/Res/56/12 UN General Assembly (2002) Large-scale pelagic drift-net fishing, unauthorized fishing in zones of national jurisdiction and on the high seas/illegal, unreported and unregulated fishing, fisheries by-catch and discards, and other developments, UN Doc.A/Res/57/142 UN General Assembly (2003) Oceans and the law of the sea, UN Doc.A/Res/58/240 UN General Assembly (2004) Official Records, UN Doc.A/59/PV.54 UN General Assembly (2005) Official Records, UN Doc.A/60/PV.54 UN General Assembly (2006) Sustainable fisheries, including through the 1995 Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, and related instruments, UN Doc.A/Res/ 61/105 UN General Assembly (2015) Transforming our world: the 2030 Agenda for Sustainable Development, UN Doc.A/Res/70/1 UN General Assembly (2017) Sustainable fisheries, including through the 1995 Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, and related instruments, UN Doc.A/Res/72/72 UN Security Council (2015) Letter dated 15 July 2015 from the Permanent Representative of New Zealand to the United Nations addressed to the Secretary-General, UN Doc.S/2015/543 UN Security Council (2018) UN Doc.S/Res/2442 United Nations (1979) Official Records of the Third United Nations Conference on the Law of the Sea, vol. XII, Report of the Chairman of the Second Committee, 24 August 1979, UN Doc. A/CONF.62L/42. https://legal.un.org/diplomaticconferences/1973_los/docs/english/vol_12/a_c onf62_l42.pdf. Accessed 2 August 2022 United Nations (2012) The future we want: outcome of the Conference on Sustainable Development, Rio de Janeiro, Brazil, 20–22 June 2012, UN Doc.A/Conf.216/L.1

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Urrutia O (2018) Combating Unregulated Fishing through Unilateral Trade Measures: A Time for Change in International Fisheries Law? Victoria University of Wellington Law Review. DOI: https://doi.org/10.26686/vuwlr.v49i4.5346 Vatsov M (2016) Changes in the geographical distribution of shared fish stocks and the Mackerel War: confronting the cooperation maze. Edinburgh School of Law Research Paper. DOI: https:// doi.org/10.2139/SSRN.2863853 Vatsov M (2017) The EU’s failed attempt to innovate with Regulation 1026/2012. Marine Policy. DOI: https://doi.org/10.1016/J.MARPOL.2017.06.029 Vatsov M (2019) Towards achieving sustainable fishing through EU trade agreements? Europe and the World. DOI: https://doi.org/10.14324/111.444.EWLJ.2019.13 Vulperhorst V, Malarky L, José Cornax M, Lowell B (2017) Fishing the Boundaries of Law: How the Exclusivity Clause in EU Fisheries Agreements was Undermined. https://oceana.org/wp-con tent/uploads/sites/18/http_usa.oceana.org_sites_default_files_fishing_the_boundaries_of_law_ final.pdf. Accessed 2 August 2022 Webster D (2015) Beyond the Tragedy in Global Fisheries. MIT Press, Massachusetts WTO (2018) Communication from the Chair, Fisheries Subsidies: Working Documents on: Definitions; Scope; Prohibited Subsidies Relating to IUU Fishing, Overfished Stocks, Overcapacity, Capacity-Enhancing Subsidies, and Overfishing; Notifications and Transparency; and Special and Differential Treatment, TN/RL/W/274/Rev.4 Young M (2016) International trade law compatibility of market-related measures to combat illegal, unreported and unregulated (IUU) fishing. Marine Policy. DOI: https://doi.org/10.1016/J.MAR POL.2016.01.025

Chapter 7

Challenges to the EU’s Normativity in Gaining Access to Foreign Resources

Contents 7.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.2 Universality of Sustainably Fishing in a Foreign EEZ . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.2.1 The EEZ Regime and Sustainable Fishing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.2.2 Origins of the EU’s Fisheries Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.2.3 Evolution of the EU’s Fisheries Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.3 The EU’s Normativity in Using Compensatory Agreements . . . . . . . . . . . . . . . . . . . . . . . 7.3.1 Undue Pressure on Stocks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.3.2 Failing to Ensure Mutual Benefit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.3.3 Attempting to Export Norms Through SFPAs . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.3.4 Complicating On-Going Disputes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.4 Case Study: Western Sahara . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.4.1 Legal and Factual Context . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.4.2 Normativity of the EU’s Conduct . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.5 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

194 195 195 197 199 201 202 204 204 206 208 209 212 221 222

Abstract This chapter completely shifts the focus to the substantive aspects of the European Union’s (EU) normativity under the legitimacy element and examines the EU’s action in accessing foreign fisheries resources. In that type of action, the EU has asserted itself as the relevant interlocutor under its exclusive Common Fisheries Policy and so it does not face the legal issues of participation limitations or reliance on Member States. This chapter provides a more general discussion of the EU’s compensatory (payment for access) agreements and then focuses on a specific case study (the Western Sahara saga) to analyse in detail the EU’s conduct and the normativity challenges that arise in due to strong emphasis on individual and even common Member State interests at the expense of more global interests, leading to incoherence and inconsistency and possibly illegality in the case of Western Sahara. Keywords Sustainable fishing · EEZ · Access agreement · SFPA · Mutual benefit · Western Sahara · Legitimacy · DWFF · NSGT

© T.M.C. ASSER PRESS and the author 2023 M. Vatsov, Fishing Power Europe, Global Europe: Legal and Policy Issues of the EU’s External Action 3, https://doi.org/10.1007/978-94-6265-583-6_7

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7.1 Introduction Chapter 6 considered the European Union’s (EU) normativity in the context of coercive action in the area of fisheries. This chapter breaks away from the use of instruments element of normativity and shifts the analysis more strongly to the legitimacy element. Specifically, this chapter examines the EU’s normativity in its bilateral action in accessing foreign resources. This type of action is the centrepiece of the EU’s external Common Fisheries Policy (CFP) action and the EU Member States have a strong interest in it. By looking at the substance of this action, this chapter shows the extent to which the EU’s use of bilateral fisheries agreements impacts the EU’s normativity and how this type of EU conduct fits within the applicable international law framework. This chapter focuses more heavily on issues of substantive legality, compared to previous chapters, which emphasised more procedural and institutional legality issues. In particular, this chapter considers the EU’s contribution to sustainability as expressed in Articles 61 and 62 of the United Nations Convention on the Law of the Sea1 (UNCLOS) as well as broader legality issues raised in the Western Sahara case study. The normativity analysis will, thus, examine whether the EU, in its direct interactions with third States, indeed acts as it suggests at regional and global fora and in its internal policy instruments or bows to intra-EU interests. The EU’s bilateral action in the area of fisheries differs substantially from acting multilaterally. As seen in previous chapters, action at the multilateral level and its subsequent implementation seeks to develop the relevant aspects of the international regime. It seeks to develop it in a way that would reach wide support and accommodate the diverging interest of a multitude of parties. Bilateral action in the area of fisheries, however, is more targeted. It seeks to address the interests and goals of a small number of parties with different bargaining power. Yet, accommodating these interests should fall within the existing international legal framework. Furthermore, the EU’s fisheries agreements as a whole allow for more general analysis. This is because they have already formed a standardised and discernible practice spanning over several decades and with a large number of third States. The network of agreements thus created elevates the fisheries agreements from simple bilateral ‘contracts’ to possible law-making venues2 containing evidence of the EU’s normativity. The analytical value of that evidence is still different from the one examined in previous chapters because of the nature of the bilateral interactions that underpin it. Moreover, the EU’s bilateral access agreements are concluded under the EU’s exclusive CFP competence. Thus, the legal issues of participation limitations or reliance on Member States to act are absent. However, the Member States still influence this action through their role in the Council. Section 7.2 provides a general discussion on the universality of sustainably fishing in foreign Exclusive Economic Zones (EEZ) and the EU’s stated support for that norm. In order to appreciate the EU’s support for this norm and better understand the 1

United Nations Convention on the Law of the Sea, opened for signature 10 December 1982, 1833 UNTS 397, entered into force 16 November 1994 UNCLOS. 2 Van der Burgt 2013, p. 274.

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following discussion in the chapter, Sect. 7.2 also explains the origins and evolution of the EU’s access agreements. Section 7.3 focuses on the EU’s normativity in accessing foreign fishing resources through compensatory (payment for access) agreements. Section 7.4 complements this more general discussion with a specific case study to analyse in detail the EU’s conduct in a recent development—the Western Sahara saga. Section 7.5 concludes that the EU’s normativity in seeking access to foreign fishing resources is considerably damaged. While much has been done towards improving that normativity, the imbalanced emphasis on EU’s interests in accessing foreign resources still prevents the EU from truly acting normatively. This is most evident where the EU chooses to protect those interests at the expense of its normativity where the two do not overlap.

7.2 Universality of Sustainably Fishing in a Foreign EEZ This section is divided into three subsections exploring the EU’s normativity under the universality element. First, it presents the EEZ regime, its sustainability requirements, with respect to fisheries, and its universal status. Second, it describes the origins of the EU’s access agreements in reaction to the creation of that regime. Third, it follows the evolution of the EU’s fisheries agreements in seeking to improve their sustainability.

7.2.1 The EEZ Regime and Sustainable Fishing The creation of the EEZ regime completely changed the international regime regulating the access to marine resources. It emerged during the drafting of the UNCLOS in the domain of customary law3 and is now comprehensively elaborated in the UNCLOS,4 which currently has 168 Parties, including the EU.5 Notable nonparticipants such as the United States of America (USA) act in accordance with the EEZ regime under customary law.6 Thus, the principles and norms contained in UNCLOS relating to the EEZ can be considered universal or nearly universal. Article 55 UNCLOS allows coastal States to claim an EEZ of up to 200 nm. Article 56 UNCLOS vests a coastal State, within its EEZ, with an important set of rights and obligations. A central set of rights relates to the coastal State’s “sovereign rights for the purpose of exploring and exploiting, conserving and managing the 3

For a discussion of the contribution of the UNCLOS negotiations to customary law and the status of the EEZ regime, see Harrison 2011, pp. 53–56. 4 For an overview of the regime, see Beckman and Davenport 2013. 5 https://treaties.un.org/pages/ViewDetailsIII.aspx?src=TREATY&mtdsg_no=XXI-6&chapter= 21&Temp=mtdsg3&clang=_en#1. Accessed 2 August 2022. 6 Comprehensive evidence of that is available at https://www.unclosdebate.org/argument/855/us-alr eady-abides-unclos-matter-customary-international-law-and-domestic-policy. Accessed 2 August 2022.

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natural resources, whether living or non-living”.7 This was a tremendous change from the previous regime where coastal States enjoyed fisheries jurisdiction in a modest 4 nm zone of territorial waters to a 200 nm zone where more than 90% of the world’s wild catch happened.8 In order to ensure the continuous availability of these resources, the coastal State is also given jurisdiction within its EEZ with regard to “the protection and preservation of the marine environment”.9 The coastal State’s rights and obligations within its EEZ with respect to fisheries resources are further developed in Part V of UNCLOS. Article 61 UNCLOS sets out the coastal State’s rights and obligations with respect to the conservation and management of the living resources in the EEZ. In particular, it requires the coastal State to determine the allowable catch of the living resources in the EEZ and generally ensure the sustainability of these resources through appropriate measures. These measures must (1) ensure that the maintenance of EEZ living resources is not endangered by overexploitation and (2) be designed to maintain or restore populations of harvested species at levels which can produce the maximum sustainable yield.10 Under Article 62 UNCLOS, a coastal State must promote the optimum utilization of these fisheries resources by determining its own harvesting capacity and where this capacity is below the allowable catch to give other States access to the surplus through agreements or other arrangements. Accordingly, under the UNCLOS, access agreements must not contribute to unsustainable fishing in the respective EEZ. Understandably, the relevant UNCLOS provisions are couched in terms of the rights and obligations of the coastal States, as it is they that avail themselves of the right to claim an EEZ and are subsequently gaining exclusive powers. However, considering the underlying objective of sustainability of these resources, certain (secondary) responsibility should also be assigned to the coastal States’ partners with which the access agreements or arrangements are concluded. That responsibility should be to ensure that the coastal State is indeed taking the required measures with respect to the stocks subject to the agreement and that the partner State is indeed tapping into an existing surplus. This is because the whole raison d’être of these agreements is the exploitation of existing surplus.11 Such responsibility is not explicitly stated in UNCLOS but follows from its aim and purpose. However, even if it is not accepted as a universally binding obligation, it should at the very least be seen as a universalizable norm, due to the strong universal character of the principle of sustainable fishing, expressed in every major fisheriesrelated document of modern times discussed in this book. Most importantly for this book and as observed below, the EU has indeed accepted such a responsibility and presents its fisheries agreements as sustainable—supporting both sustainable fishing and sustainable development.

7

UNCLOS, above n. 1, Article 56(1)(a). Eckert 1979, p. 116. 9 UNCLOS, above n. 1, Article 56(1)(b)(iii). 10 Ibid., Article 61(2)–(3). 11 Carroz and Savini 1983. 8

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7.2.2 Origins of the EU’s Fisheries Agreements The contextual discussion in this subsection shows the role of the EU’s self-interest preservation in the inception of this type of agreements. It shows that from its very inception the EU’s practice was engrained with the single aim of protecting its fishing interests. It has done so by mainly ‘exporting’ its fishing fleet overcapacity beyond its waters instead of ensuring the sustainability of its fleet and the viability of its own resources. Showing this is important for the rest of the chapter as it provides the baseline for appreciating the EU’s subsequent conduct. The international developments surrounding the establishment of EEZs left the EU and its Member States in a very difficult position in terms of fishing activities. Their initial opposition to the EEZ idea12 failed and they faced at least two serious problems in case of inaction.13 The first problem was that the Member States’ huge distant water fishing fleet (DWFF) would have to stop or considerably reduce their fishing activities in areas where they have traditionally done so.14 This cessation would have been very problematic because a considerable share of the EU catches at that time was caught by the DWFF.15 The possible inability to maintain these catch levels would have had important socio-economic impacts within the EU. Such impacts would have included disruptions to the supply of fish and fishery products to the EU market as well as disruptions in the labour markets of certain Member States. With the aim to avoid this, the fishing industry would have tried to offset these deficits by fishing in the waters close to the Member States. This brings us to the second problem that, due to the overcapacity of the EU fishing fleet, if the vessels were to return and fish in proximity to EU coasts they would threaten even more the fish stocks’ viability.16 This would have meant the collapse and extinction of these stocks as they were to a great extent fully exploited.17 In order to tackle this problem, the Member States had to claim their EEZs and exercise their jurisdiction in those waters for the purposes of management and conservation of the stocks. Accordingly, the Member States’ EEZ claims and the conclusion of fisheries agreements with the relevant third States were inevitable and essential responses to the initial EEZ claims of others.

12

This opposition is evident from the reactions of the EU (banning fish imports) and some of its Member States, mainly Germany and the UK, to Iceland’s fishing zone claims, which led to the Cod Wars. See ICJ, Fisheries Jurisdiction Case (United Kingdom v Iceland), Judgment on the merits, 25 July 1974, ICJ Reports 1974, p. 3; ICJ, Fisheries Jurisdiction Case (Federal Republic of Germany v Iceland), Judgment on the merits, 25 July 1974, ICJ Reports 1974, p. 175. Not all EU Member States, however, had an adverse position towards the EEZ concept, see Treves 1976. 13 European Commission 1974. 14 Long and Curran 2000, p. 11; Churchill and Owen 2010, p. 6. 15 Wise 1984, p. 145. 16 Ibid. 17 See generally ICES 1978.

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Responding to the Member States’ call for action, the Commission issued several policy documents.18 Four main points have already been distilled from them in the literature.19 The most relevant point here is the need to negotiate bilateral fisheries access agreements with third States by the Commission and not by the Member States themselves. That point also included the need for the Commission to take over the representation of the Member States in the relevant international organisations. Thus, the EU was to assume an exclusive external competence with respect to fisheries access and management matters, leading to the creation of the external CFP. In line with the central place that the EU’s interest played at that stage, the leitmotif which the Commission followed in those times was “to prevent an abrupt distortion of […] economic patterns such as might create an irreversible situation and jeopardise the structural changes needed to achieve a new balance”.20 To that extent, the EU had to negotiate with the third States the fishing fleets of which would find themselves within the (then) future 200 nm EU-wide EEZ or in the waters in which the Member States’ DWFFs used to fish.21 The Commission outlined three main approaches towards these third States, based on the different degrees of shared fundamental interests regarding access to fishing grounds with the particular third States.22 All three of them clearly show that the EU’s economic interest in accessing resources was foundational. It is the continuous contemporary emphasis on this interest that is central to the analysis in this chapter. The first approach related to third States with which the EU was interested to continue or create new opportunities for access to fishing grounds without considering reciprocal access. The main aim of the negotiations was to obtain access to the eventual foreign resource surpluses with the idea of boosting the potential EU fleet catch. The second approach related to third States with which the EU shared interests entailing certain reciprocal concessions on access to fishing grounds. This reciprocity, however, was not meant to prevent the possibility for the EU fleet to additionally access eventual surpluses in the fishing grounds of the respective third States. Furthermore, the reciprocity was meant to cover only fish species to which the shared interest applied. Thus, for fish species to which the reciprocity was not extended, there would have been a procedure for the progressive withdrawal of the fishing fleets of the respective third States from the EU Member States’ EEZ. The third approach related to third countries with which the EU did not ‘share any fundamental interest regarding access to fishing grounds’, but the third States did have a particular interest in fishing within the EU Member States’ EEZ. The main aim of these negotiations was to get to a provisional solution entailing the progressive withdrawal of the foreign fishing fleets because there was not enough fish in the EU waters. The overcapacity of the EU fleet and the corresponding overfishing could

18

European Commission 1974, 1975a, b, 1976. Churchill and Owen 2010, p. 7; Long and Curran 2000, p. 11. 20 European Commission 1976. 21 Ibid. 22 Ibid., p. 13. 19

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not tolerate foreign fleets in EU waters unless there was shared fundamental interest regarding access to fishing grounds. The Council agreed with the Commission that there was a need for the EU fishing fleet to have fishing rights in foreign fishing grounds which included, but was not limited to, preserving the already existing access. This need required bilateral access agreements. The same applied to the foreign access to Member States’ EEZs. Accordingly, the Council instructed the Commission to open negotiations with the respective third States. The resulting negotiations proved fruitful and the EU concluded agreements with States from the African coast and the North Atlantic such as the Faroe Islands, Norway, Canada, and the USA.23 While these agreements have evolved for the last forty years, the underlying interest-based division identified by the Commission back in 1976 still holds. Setting aside the agreements that were to be phased out, the EU’s practice centred on two main types of agreements—reciprocal (also called the Northern Agreements, due to their main geographical orientation in the North Atlantic and the Baltic Sea) and compensatory (also called the Southern Agreements as the majority of third countries’ waters involved are off the coast of Africa and in the Indian Ocean and the Pacific). The rest of the chapter focuses more on compensatory agreements as they provide a more fertile ground for assessing the normativity of the EU’s bilateral action with respect to fisheries access agreements. They can show how the EU acts where it has a greater freedom to choose whether to pursue its interests normatively or not. This is due to the EU’s stronger position in terms of economic power and developed industry compared to those of its partners, allowing for situations where the protection of the EU’s interest is imbalanced due to the lack of a counterbalancing power.

7.2.3 Evolution of the EU’s Fisheries Agreements The EU’s access agreements have considerably evolved through four ‘generations’ that have been explored in the literature.24 Thus, just a brief sketch of them is needed here before considering the EU’s contemporary practice. This sketch is needed to show the evolution of the EU’s practice and the attempt to increase its normativity through increased (1) coherence with binding and non-binding international norms and other EU policies and (2) care for the common sustainability interests. The first-generation agreements developed in response to the 1970s law of the sea developments and involved pure ‘cash for access’ agreements without any sustainability considerations. They did not always contain catch limits and it is not clear whether the access related to any available surplus.25 The second-generation agreements put an emphasis on joint enterprises and sought to create joint ventures between EU

23

Churchill and Owen 2010, pp. 7–8. Ibid., 342–350; Van der Burgt 2013, pp. 263–270. 25 Churchill and Owen 2010, p. 343. 24

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vessel owners and partners in the third State in question.26 Only one such agreement was concluded—with Argentina, which effectively exported EU overcapacity to the Argentinian fleet and pressured the viability of the stocks, especially hake.27 Thus, it proved very unattractive to other States to replicate. These two generations were heavily criticised for their contribution to stock overexploitation and negative developmental effect in the third States concerned.28 These criticisms also showed the incompatibility of these agreements with relevant EU policies on environment and development cooperation.29 In light of these serious shortcomings and of international developments in the 1990s, such as the entry into force of the UNCLOS and the conclusion of the United Nations Fish Stocks Agreement30 and the Code of Conduct for Responsible Fisheries,31 the Commission recognised that the fisheries agreements “must be, and be seen to be, responsible in terms of fishing practices and balanced in the interests of both parties”.32 The Council responded to that by, on the one hand, emphasising the primarily commercial aspect of the fisheries agreements benefitting both parties and, on the other hand, reaffirming that these agreements should also support the development of the fisheries sector of the third State in question.33 This change of direction directed the future evolution of the agreements towards sustainability and development cooperation.34 The third-generation agreements resulted from the 2002 CFP reform and were called Fisheries Partnership Agreements (FPA). They sought to increase the policy coherence between the CFP and the Development Cooperation Policy35 by using the FPAs to “strengthen co-operation to ensure the implementation of a sustainable fisheries policy and a rational and responsible exploitation of the resources in the mutual interest of the Parties concerned”.36 The compensation paid under the FPAs was paid not only for accessing resources, but also for structural support for the development of a fisheries policy in the third States, based on sustainable fishing and supported by the necessary administrative measures and monitoring and control

26

Ibid., p. 345. Valente M (2000) Stocks Depleted by EU Boats, Lax Controls. http://www.ipsnews.net/2000/03/ fisheries-argentina-stocks-depleted-by-eu-boats-lax-controls/. Accessed 2 August 2022. See also Orellana 2007, 4; Haynes 2003, p. 6. 28 Churchill and Owen 2010, pp. 348–349; Van der Burgt 2013, pp. 265–266. 29 Ibid., p. 265. 30 The United Nations Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, opened for signature 4 August 1995, 2167 UNTS 3, entered into force 11 December 2001. 31 FAO 1995. 32 European Commission 1996, p. 11. 33 Council 1997, p. 5. 34 On the development of the CFP reform in that regard, see Van der Burgt 2013, pp. 267–269. 35 Ibid., p. 270. 36 European Commission 2002, p. 3. See also Van der Burgt 2013, pp. 279–281; Churchill and Owen 2010, pp. 346–348. 27

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mechanisms.37 The FPAs, however, failed to cure the sustainability deficiencies that were meant to be addressed through them.38 This led to the need for further reform of the compensatory agreements and the creation of their next generation. The current, fourth, generation of agreements were introduced with the 2013 CFP reform and are called Sustainable Fisheries Partnership Agreements (SFPA). Under Article 31(2) of the Basic Regulation, the EU must endeavour to ensure that the SFPAs are of mutual benefit to the Union and to the third country concerned, including its local population and fishing industry and that they contribute to continuing the activity of Union fleets and seek to obtain an appropriate share of the available surplus, commensurate with the Union fleets’ interest.

The SFPAs inherited the two core FPA objectives—securing access to foreign resources and ensuring their sustainability.39 With the SFPAs the EU sought to further focus on “resource conservation and environmental sustainability, improved governance and effectiveness of sectoral support”.40 In order to address the criticisms that the developing aspect of the FPAs has often been misused by the EU’s partners, the SFPAs explicitly earmark the resources provided in compensation for the access to resources and the resources for structural support.41

7.3 The EU’s Normativity in Using Compensatory Agreements While the EU’s fisheries agreements have greatly developed in seeking stronger normativity, they have not moved much past their original sins—the EU fleet’s overcapacity and the interest to access foreign resources, especially those of African States.42 As Wakefield observes, despite the EU’s obligation to contribute to sustainable development,43 “there has been little evidence of conservation and sustainability in external fisheries policy”.44 Wakefield concludes that on the basis of the EU’s aggressive pursuit of access to resources, even where it risks EU’s normativity.45 Indeed, the EU’s pursuit of resources has led it to conclude fisheries access agreements impacting its normativity in at least four ways, which are explored in the 37

Wakefield 2016, p. 129. European Commission 2011, p. 10. 39 Zimmermann 2016, p. 136. 40 European Commission 2011, p. 10. 41 European Parliament and Council 2013, Article 32(2). 42 See Gegout 2016. 43 Treaty on European Union (Consolidated Version), opened for signature 7 February 1992, entered into force 1 November 1993, TEU 2016 OJ C202/13, Article 3(5). 44 Wakefield 2016, 6. 45 Ibid., pp. 5–6, 8–10, and 134. 38

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following subsections. The normativity analysis in these subsections is legitimacyfocused and examines the extent to which the EU acts in accordance with its stated objectives and applicable rules.

7.3.1 Undue Pressure on Stocks Some of the agreements can easily put undue pressure on stocks in order to match the EU fleets’ interest. Notwithstanding the increased emphasis on sustainability, the 2013 Basic Regulation tolerates such results. Article 31(2) thereof states that “[f]or the purpose of ensuring the sustainable exploitation of surpluses of marine biological resources, the Union shall endeavour to ensure” that its SFPAs mutually benefit the EU and its partner “and that they contribute to continuing the activity of Union fleets and seek to obtain an appropriate share of the available surplus, commensurate with the Union fleets’ interest”. On the available surplus, Article 31(4) of the 2013 Basic Regulation continues by saying that “Union fishing vessels shall only catch surplus of the allowable catch as referred to in Article 62(2) and (3) of the UNCLOS”. It also states that the surplus is to be identified “on the basis of the best available scientific advice and of the relevant information exchanged between the Union and the third country about the total fishing effort on the affected stocks by all fleets”. The quality of the scientific advice and data on the overall fishing effort, including that of other States, are real problems that the Commission identified in its 2011 Communication on the CFP’s external dimension and that pushed it to propose the creation of the SFPAs. The European Court of Auditors also noted in 2015 the existence of these problems and the difficulty of applying the surplus concept in practice.46 In situations where the best available scientific advice is of very low quality or is not at all available and where the partner country does not provide the EU with complete information on the total fishing effort, the SFPAs in seeking to protect the EU fleets’ interest can end up contributing to overfishing, while formally fulfilling the CFP’s sustainability requirements. Thus, although sustainable exploitation of surplus resources of third States appears as the overarching principle in concluding SFPAs in light of Article 62 UNCLOS, the legal requirements on scientific advice still allow for the EU fishing interests in practice to prevail over sustainability considerations and ultimately damage the EU’s normativity. This happens inter alia where the EU concludes agreements seeking to preserve access to resources even where there are clear governance problems in the country concerned hindering the ability of that country to provide reliable information. An example of this is the agreement with Guinea-Bissau, which has been in deep political crisis for several years and has inadequate resources to control its waters and maintain data for the relevant fisheries.47 Without this capacity, it is hardly possible to ensure sustainable exploitation of the relevant stocks. While one of the goals of the 46 47

European Court of Auditors 2015, p. 18, para 31. Okafor-Yarwood and Belhabib 2019.

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SFPAs, including the one with Guinea-Bissau, is capacity development, this cannot be accepted as adequately addressing the existing capacity problems. This is because, developing the necessary capacity does not happen immediately by concluding an agreement. Furthermore, the ear-marked amounts for capacity development are not large (for the 2014–2017 protocol EUR 3,000,000 per year) and cover a wide range of activities not limited to monitoring and control capacity but also including improving production conditions for fishery products.48 According to one commentator, GuineaBissau’s “naval strength is a mere 350 personnel, charged with the responsibility of safeguarding its 88 islands equipped only with two patrol boats whose operational status is uncertain”.49 All of this data shows that for the EU to act normatively and in accordance with the spirit of the overarching principle of accessing surplus resources, it needs to have a higher threshold of tolerance for data reliability on which its SFPAs and respective protocols are concluded. Even with certain existing estimates, some of the stocks targeted under the SFPA with Guinea-Bissau were already known to be fully exploited or even overexploited when the last protocol with Guinea-Bissau was renewed.50 Even where governance problems are not present, the EU’s agreements do not always have a good effect on the sustainability of the resources they target. Such was the case with the agreements with Morocco. First, Morocco did not renew its agreement with the EU in 1999 to stop overexploitation.51 Second, after it was renewed in 2007 for four years, its ex-post evaluation was negative in terms of its impact on the sustainability of the targeted resources.52 The Commission, nevertheless, sought a one year extension, which the European Parliament eventually rejected because it was not convinced in the ecological sustainability and economic viability of the agreement and that it was beneficial to the Saharawis (Western Sahara population, further discussed below).53 Third, this rejection created a strong fallout for EU vessels fishing there—mostly Spanish. The Commission renegotiated the agreement with enough improvements to command the necessary majorities in the European Parliament and the Council.54 The agreement, however, did not fully address the criticisms. What made the difference was geopolitical consideration.55 As further examined below, this has not changed with the following agreements with Morocco. At this point it can be recalled that, even in its northern fisheries arrangements, the EU’s conduct has attracted sustainability criticisms. As observed in Chap. 5, with respect to improved data and science-based decision-making “[t]he EU-Norway 48

See e.g. Council 2007, Article 8 of the Protocol setting out the fishing opportunities and financial contribution provided for in the Fisheries Partnership Agreement between the European Community and the Republic of Guinea-Bissau for the period 16 June 2007–15 June 2011. 49 Okafor-Yarwood and Belhabib 2019, p. 7. 50 Ibid. 51 Zimmermann 2016, p. 10. 52 Océanic Développement 2010, p. 96. 53 Zimmermann 2016, p. 11. 54 Ibid., 12. 55 Ibid., 12–13.

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[2019 Total Allowable Catch (TAC)] negotiations led to a less ambitious result in terms of conservation, as only 9 out of 17 TACs were set in line with Fmsy – fewer than for 2018”.56 Furthermore, the Mackerel War negotiated solution, discussed in Chap. 6, was also well above the scientific advice. Accordingly, the EU has shown that where strong access to resources interests exist its conduct will often lead to incoherence and inconsistency with its stated objectives, thus, reducing its normativity.

7.3.2 Failing to Ensure Mutual Benefit The SFPAs are meant, according to Article 31(2) of the 2013 Basic Regulation, to provide mutual benefits to the EU and its partner, including the local populations, even if the actual wording of the obligation is relatively weak—“endeavour to ensure”. The EU’s payments under its fisheries agreements, however, are often criticised for the insignificant benefit they actually provide to the country concerned.57 According to some estimates, in the case of Madagascar, “the EU is receiving 30% more tuna than a quarter century ago (quota increase from 10,000t to 13,300t) for a total fishing fee that has declined by 20%”.58 Other examples of the comparatively low actual benefit of the EU’s access agreements for the third States are also discussed in the literature.59 An analysis of the EU budget allocation for fisheries agreements shows that since the 1990s the number of active agreements has closely fluctuated around 15 (usual deviation of 2 with a high of 4), unlike the budget dedicated to them fluctuating from the record EUR 295.8 million in 1996 (34% of the CFP budget) to EUR 145 million in 2015 (13.4% of the CFP budget).60 There is a further problem with respect to providing benefit to the local populations, which is probably most problematic in the Western Sahara case, discussed below, as there appears to be a misunderstanding of who that population actually is. Thus, the seemingly normative aspirations of the SFPAs suffer serious drawbacks in their operationalisation.

7.3.3 Attempting to Export Norms Through SFPAs At the same time, the EU has tried to position its SFPAs in a more normative light by trying to use them as a vessel for exporting certain values and standards it considers sustainable. In that way the SFPAs go beyond their bilateral and transactional context

56

European Commission 2019, p. 2. See Kaczynski and Fluharty 2002; Mundt 2012; Le Manach et al. 2013. 58 Ibid., p. 262. 59 Okafor-Yarwood and Belhabib 2019, p. 7. 60 Popescu 2015, p. 17. 57

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and enter the broader law-making and enforcement arena. In that regard, the European Parliament called on the EU to seek to conclude sustainable fisheries cooperation agreements with these countries which should aim not at obtaining fishing rights for EU vessels but at achieving a situation where the EU could provide funding and technical support with the aim of attaining comparable sustainable management rules as the EU in the third partner country.61

First, the 2013 Basic Regulation requires that SFPAs, to the extent possible, include “a clause prohibiting the granting of more favourable conditions to other fleets fishing in those waters than those granted to Union economic actors”.62 Where such clause is included and high EU standards are extended to the EU vessels operating under the SFPA, the SFPA becomes a vessel for exporting EU values and standards. Occasionally, however, the high standards coupled with the high access fees the EU may be willing to pay can amount to grounds even for a legal challenge. In particular, the inclusion of such clause in an agreement with Mauritania was the reason for a threat by Russia to bring its first World Trade Organization (WTO) case against the EU in 2013 for prohibited subsidies.63 There are no reports of the complaint being formally submitted but even the threat makes a point of the possible legality issue of such clauses. Second, under the illegal, unreported, or unregulated (IUU) fishing Regulation, the Commission shall propose the denunciation of any standing bilateral fisheries agreement or fisheries partnership agreement with such countries which provides for termination of the agreement in case of failure to comply with undertakings made by them with regard to combating IUU fishing.64

The second part of this provision implies an effort for the EU during SFPA negotiations to include such a clause and then, in accordance with the first part of the provision, to enforce it when relevant. Through such actions the SFPAs can become a conduit for the EU’s efforts in combating IUU fishing and increase its normativity. However, this author is not aware of any such action for an SFPA with a protocol in force, raising normativity concerns similar to those discussed in the previous chapter about the implementation of the IUU fishing Regulation. Third, the Basic Regulation contains a stronger obligation on the EU to ensure that SFPAs “include a clause concerning respect for democratic principles and human rights, which constitutes an essential element of such agreements”.65 The legal significance of including such a clause as an essential element of the agreement is that in the event the EU’s partner violates the included human rights and democratic standards at a certain scale that could amount to a material breach of the treaty and the 61

European Parliament 2015, para 23. European Parliament and Council 2013, Article 31(6)(a). 63 Zimmermann 2016, p. 14; SeafoodNews.com (2013) Russia files first ever complaint to WTO. https://www.undercurrentnews.com/2013/04/25/russia-files-first-ever-complaint-to-wto/. Accessed 2 August 2022. 64 Council 2008b, Article 38(8). 65 Ibid., Article 31(6). 62

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EU can suspend benefits under that agreement.66 In that way the SFPAs become an additional tool for the EU to act in a principled way and make sure that its partners are observing certain universal values and that the EU’s fishing interests do not overcome such values. However, again, no action under such clauses appears to have been taken irrespective of the human rights records of the EU’s partners. These omissions raise questions as to the EU’s actual commitment to the normative goals of these clauses. The EU’s track record with respect to these clauses can be criticised in terms of the language used in the different agreements. For example, in the recent agreement with The Gambia, there is a strong clause stating that “where one of the Parties ascertains a breach of essential and fundamental elements on human rights” the agreement may be suspended.67 However, the EU’s agreement with Morocco features a much softer human rights clause, continuing from the practice with earlier agreements where Morocco strongly opposed human rights clauses.68 The current Morocco agreement mentions strict observance of fundamental human rights in the preamble and then states in Article 3 that “[t]he Agreement shall be implemented in accordance with […] Article 2 of the [Association] Agreement concerning the respect for democratic principles and fundamental human rights”. Article 2 of the Association Agreement states that “[r]espect for the democratic principles and fundamental human rights established by the Universal Declaration of Human Rights shall inspire the domestic and external policies of the Community and of Morocco and shall constitute an essential element of this Agreement”. The clause in the agreement with The Gambia is much more strongly worded and allows the EU if it ascertains a breach to act unilaterally. In the Morocco agreement the language is much softer showing incoherence and inconsistency in the EU’s conduct that reduces its normativity.

7.3.4 Complicating On-Going Disputes Some SFPAs seek access to resources even if they complicate on-going international border and/or maritime delimitation disputes. This is problematic for the EU’s normativity for two main reasons. First, by doing so the EU risks acting against one of the UNCLOS objectives that is strengthening of peace, security, cooperation and friendly relations among all nations.69 This objective draws from the purposes and principles of the UN Charter, which the EU is committed to respect in Article 3(5) of the Treaty on European Union (TEU). Affecting on-going disputes in order to secure self-interests through an SFPA that may be interpreted as recognition of certain claims may even violate applicable international rules of non-recognition. 66

European Commission 2012, p. 3. Council 2019d, Article 15(1) of the Sustainable Fisheries Partnership Agreement between the European Union and the Republic of The Gambia. 68 Zimmermann 2016, p. 12. 69 UNCLOS, above n. 1 preamble. 67

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This would deal an even heavier blow to the EU’s normativity under the legitimacy element. Second, concluding an SFPA in such circumstances can affect the sustainability of the stocks because protracted maritime delimitation disputes inevitably also affect the governance of the resources in question. Even where borders are agreed on, proper resource governance requires strong cooperation and detailed scientific research. Delimitation disputes would negatively affect both in varying degrees. One clear example of an SFPA complicating an on-going dispute is the Western Sahara saga, which is discussed below. It is a more specific case requiring special attention in this regard because the dispute involves strong power imbalance between the two sides of the dispute—Morocco and the people of Western Sahara (the Saharawi). Another older example is the protracted maritime delimitation dispute between Guinea-Bissau and Senegal.70 In that situation a case was brought before the Court of Justice of the European Union (CJEU) by the owners of a Greek fishing vessel that was licensed to operate under an EU fisheries agreement with Senegal but arrested by Guinea-Bissau in disputed waters.71 That owner sought compensation from the EU for having concluded an agreement covering disputed waters. As regards legal certainty, the General Court (GC) held that the uncertainty created was attributable to a dispute for which the EU was not responsible and the EU cannot be put at fault for “not having given up the benefits which conclusion of the fishing agreements in question could bring to the [EU]” especially where the EU fishermen could avoid the damage of the uncertainty by not fishing in these specific waters or by obtaining licence from both disputing States.72 In that way the GC basically said that the troubles created by such fishing agreements are outweighed by the eventual economic benefits they may bring to the EU, which puts in question the observance of EU’s values through such agreements.73 It must be noted that at the relevant time the EU had active agreements with both Guinea-Bissau and Senegal.74 This means that EU vessels could fish in the overlap of the claims, as did the Greek vessel, and fish for the same resource twice, putting additional pressure on the resource. Yet another example of an indirect involvement was the fisheries agreement with Côte d’Ivoire and its dispute with Ghana, which was resolved by the ITLOS in 2017.75 With that agreement the EU vessels again lacked a clear boundary to observe, as the agreement simply refers to “waters over which, as regards fisheries, Côte d’Ivoire has sovereignty or jurisdiction”.76 In this case the EU did not have an agreement with Ghana. Nevertheless, the agreement with Côte d’Ivoire kept open the possibility of 70

Okafor-Yarwood 2015. GC, Case T-572/93 Odigitria AAE v Council and Commission, Judgment, 6 July 1995, EU:T:1995:131. 72 Ibid., para 44. 73 See Wakefield 2016, pp. 9–10. 74 Popescu 2015, p. 14. 75 ITLOS, Dispute concerning delimitation of the maritime boundary between Ghana and Côte d’Ivoire in the Atlantic Ocean (No 23), Judgment, 23 September 2017, ITLOS Reports 2017. 76 Council 2008a, Article 2 of the Fisheries Partnership Agreement between the Republic of Côte d’Ivoire and the European Community. 71

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EU vessels fishing in disputed areas and catching fish Ghana did not account for in its fisheries conservation and management measures. The importance of the activities of the EU vessels should also be highlighted in that regard as in the Ghana v Côte d’Ivoire case Ghana used it as evidence indicating a possible maritime boundary.77 Although it was not accepted by ITLOS, it shows the legal value that may be attached to the conduct of EU vessels under the EU fisheries agreements and why it is important for the EU to exercise utmost vigilance in defining the geographical scope of its fisheries agreements in the context of disputes. This point is further developed in the case study below. Accordingly, the EU has sought to greatly improve the normativity of its access agreements, now called SFPAs, through setting out normative prerequisites for their conclusion, such as evidence of surplus in the stocks and existence of mutual benefit from the SFPA and including clauses that seek to export the EU’s values such as human rights, democracy, and fighting IUU fishing. However, while this is a seemingly normative framework, in practice the EU’s use of it fails to achieve that normativity, as shown from the general overview provided in this subsection. This action appears to be keeping still more in line with the original strong emphasis on the EU’s economic interests on which the access agreements were founded than with the EU’s modern normative aspirations and, thus, creates incoherence and inconsistency in the EU’s conduct.

7.4 Case Study: Western Sahara The Western Sahara saga between the EU, Morocco, and Front Polisario is as complicated as it is politically sensitive and has been widely discussed.78 This section builds on that literature by discussing the EU’s normativity with respect to accessing fisheries resources. Focusing on the fisheries aspects exclusively, however, is impossible as they play out in a much larger context and are closely linked to other issues. Nevertheless, the discussion attempts to keep non-fisheries matters to a minimum. The starting point is a legal and factual contextual account of the saga and its current state of development. That account is followed by a critical analysis of the EU’s conduct in handling the situation. It is argued that every aspect of the EU’s handling of the situation with respect to the access to the fisheries resources lacks normativity due to problems with almost all of the normativity criteria set out in this book.

77

ITLOS, Dispute concerning delimitation of the maritime boundary between Ghana and Côte d’Ivoire in the Atlantic Ocean (No 23), Judgment, 23 September 2017, ITLOS Reports 2017, para 194. 78 For a detailed account of the developments relating to Western Sahara, see e.g. Hodges 1983. For more contemporary discussions of legal issues related to the saga, see Milano 2006; Dawidowicz 2013; Kassoti 2017a, b, c, d, 2018, 2019a, b; Prickartz 2019; Smith 2020.

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7.4.1 Legal and Factual Context Since 1963, Western Sahara, a former Spanish colony, has been included in the UN Charter, Chapter XI list of Non-Self-Governing Territories (NSGT) and Spain was declared its administering power.79 In 1973, Front Polisario was created seeking independence for Western Sahara, subsequently recognised by the United Nations General Assembly (UNGA) as the representative of the Saharawi.80 In particular, the UNGA has recommended that Front Polisario “should participate fully in any search for a just, lasting and definitive political solution of the question of Western Sahara”.81 In its 1975 Western Sahara Advisory Opinion the International Court of Justice (ICJ) declared that any historical ties of Morocco and Mauritania on which they based claims over Western Sahara do not establish any sovereign title and do not affect the right of self-determination of the Saharawi.82 Nevertheless, the Saharawi never got the opportunity to exercise their inalienable right of self-determination. Spain did not complete the decolonisation process. Instead, it tried to leave this to Morocco and Mauritania through a Declaration of Principles on Western Sahara (the Madrid Agreement) whereby Spain transferred its powers and responsibilities as the administering power to a temporary tripartite administration.83 That Agreement, however, did not change in law the status of Western Sahara as a NSGT or Spain’s position as an administrative power, which is for the UN to do.84 The actual agreement between the three parties, however, has remained secret with certain aspects of it being surmised in the literature and further discussed below.85 Subsequently, an armed conflict broke out between Front Polisario and Morocco, which was joined by Mauritania. In 1979, Mauritania withdrew and relinquished its claims over the Territory.86 Morocco then annexed the rest of the Territory, drawing the condemnation of the UNGA, which declared Morocco’s presence “belligerent occupation”.87 In February 1976, Spain officially declared its withdrawal from Western Sahara,88 leaving the administration on the ground to Morocco and Mauritania and post-1979 only to Morocco. Immediately after the Spanish withdrawal Front Polisario declared the Saharawi Arab Democratic Republic, which has been recognised by a number of African and Latin American States and is a member of the African Union. All UN-brokered efforts to resolve the issue have since failed89 79

See UN Security Council 2002, para 5. See UN General Assembly 1979b, para 7. 81 Ibid. 82 ICJ, Western Sahara, Advisory Opinion, 16 October 1975, ICJ Reports 1975, p. 12, para 162. 83 UN Security Council 2002, para 6. 84 Ibid. 85 Franck 1976, p. 715. 86 UN General Assembly 1979a. 87 UN General Assembly 1979b, para 5. See also UN General Assembly 1990, para 3. 88 UN General Assembly 1976. 89 For an overview, see Dawidowicz 2013, pp. 260–261. 80

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and Spain (and not Morocco) is still recognised by the UN as the de jure administering power of Western Sahara.90 Spain has even acted upon this by extending its territorial jurisdiction to acts in Western Sahara.91 The UNSC and the UNGA have consistently reaffirmed the Saharawi’s right to self-determination.92 While Spain withdrew from Western Sahara, its interest in inter alia fishing in its waters, as it had been doing in the past, remained. Pursuant to the Madrid Agreement, according to Franck, “there were concessions by Morocco concerning fishing rights off the Saharan and Moroccan coasts, concessions of particular importance to the fishing industry of Spain’s nearby Canary Islands, which are almost wholly populated by ethnic Spaniards”.93 The consequence of these concessions appears to be the 1977 Spanish-Moroccan fisheries agreement, which did not enter into force.94 A Protocol on the Transitional Agreement on sea fisheries of 1979, however, did enter into force.95 It was followed by a few short-term agreements96 the last one in 1983 explicitly covering Western Sahara waters.97 The reason for these short-term agreements is not clear but may have been related to the concurrent international developments relating to the EEZ and Morocco’s expansion of its maritime zones at different stages until it claimed a full 200 nm EEZ in December 1980.98 That claim does not appear to cover Western Sahara waters.99 90

UN General Assembly 2017b. See Audiencia Nacional, sala de lo penal, ordinary proceedings No 80/2013, Order, 4 July 2014, No 40/2014, p. 8. 92 For the most recent, see UN Security Council 2017; UN General Assembly 2016. 93 Franck 1976, p. 715. 94 The Government of the Kingdom of Spain and the Government of the Kingdom of Morocco, Agreement on cooperation in sea fisheries, signed 17 February 1977. Evidence of the arrangement is the information Driss Dahak (an advisor to the Moroccan government for law of the sea matters and UNCLOS negotiations as the time) provides in his later book. According to him, the agreement was not ratified by Morocco in response to “Spain declaring after 1976 that it had only ceded administration of the territory, and not its sovereignty.” (Translation by Jeffrey Smith). See Dahak 1986, pp. 409–410. 95 The Government of the Kingdom of Spain and the Government of the Kingdom of Morocco, Protocol on the Transitional Agreement on sea fisheries, signed 29 June 1979, BOE 253 of 22 October 1979, 24551. https://www.boe.es/boe/dias/1979/10/22/pdfs/A24551-24552.pdf. Accessed 2 August 2022. 96 December 1979, April 1981, and December 1982 reported in Smith 2010, p. 51. 97 Kingdom of Spain and the Kingdom of Morocco, Agreement on cooperation on sea fisheries, signed 1 August 1983, BOE No. 243 of 11 October 1983, 27588. www.boe.es/boe/dias/1983/10/ 11/pdfs/A27588-27590.pdf. Accessed 2 August 2022. The 1983 agreement distinguished between two fishing zones, one to the north and one to the south of Cape Noun, the latter corresponding to the Western Sahara waters. See ibid., Annex I. 98 Act No. 1-81 of 18 December 1980, Promulgated by Dahir No. 1-81-179 of 8 April 1981, establishing a 200-nautical-mile Exclusive Economic Zone off the Moroccan coasts. http://www.un.org/ Depts/los/LEGISLATIONANDTREATIES/PDFFILES/MAR_1981_Act.pdf. Accessed 2 August 2022. On a previous extension, see Act No. 1.73.211 establishing the Limits of the Territorial Waters and the Exclusive Fishing Zone of Morocco, of 2 March 1973. http://www.un.org/Depts/ los/LEGISLATIONANDTREATIES/PDFFILES/MAR_1973_Act.pdf. Accessed 2 August 2022. 99 European Parliament 2013a, paras 9–11. 91

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In 1986, Spain joined the EU and, due to the CFP’s exclusive nature, Spain had to relinquish its competence to conclude fisheries agreements. The 1985 Act of Accession, however, allowed for the rights and obligations flowing from the alreadyexisting Spanish fisheries agreements to be provisionally maintained.100 Furthermore, the Council was to take “decisions appropriate for the continuation of fishing activities resulting therefrom […] including the possibility of prolonging certain agreements for periods not exceeding one year”.101 Since 1988, the EU concluded several fisheries agreements with Morocco replicating the territorial scope of Spain’s antecedent agreements to cover Western Sahara even if not explicitly stated.102 These agreements ran until 2011 when the European Parliament refused to extend the operation of the 2006 FPA out of sustainability and legality concerns relating to the access to Western Sahara waters.103 The agreement, nevertheless, was tacitly extended to 2013 when a new Protocol was agreed.104 In the meantime the EU had also concluded trade agreements with Morocco—the 1996 Association Agreement105 and the 2010 Liberalisation Agreement106 —both covered fisheries products and were applied to Western Sahara without explicitly including it in their territorial scopes. All these developments became relevant in proceedings before the GC and the European Court of Justice (ECJ). The Front Polisario case dealt with the validity of the Council Decision concluding the Liberalisation Agreement on the basis of breaches of EU and international law. In 2015, the GC accepted that the agreement applied to Western Sahara and, although rejecting almost all pleas, invalidated the Council Decision because “the Council failed to fulfil its obligation to examine all the elements of the case before the adoption of the contested decision” and specifically “there was no evidence of an exploitation of the natural resources of the territory of Western Sahara under Moroccan control likely to be to the detriment of its inhabitants and to infringe their fundamental rights”.107 In 2016, on appeal the ECJ overturned the GC’s decision and held that the Liberalisation Agreement did not cover Western Sahara and dismissed the action altogether.108 While the Front Polisario case was pending before the ECJ, a preliminary reference was sent to the ECJ in the Western Sahara Campaign (WSC) case.109 The WSC case challenged the validity of the Council Decisions concluding “the Association Agreement, the Fisheries Partnership 100

Act concerning the conditions of accession of the Kingdom of Spain and the Portuguese Republic and the adjustments to the Treaties, opened for signatures 12 June 1985, entered into force 1 January 1986, OJ L302/23, Article 167. 101 Ibid. 102 European Parliament 2006, para 41, footnote 19. See also Chapaux 2007, p. 218. 103 European Parliament 2013b; Wakefield 2016, p. 132. 104 Ibid. 105 Council and Commission 2000. 106 Council 2012. 107 GC, Case T-512/12 Front Polisario v Council, Judgment, 10 December 2015, EU:T:2015:953, paras 241 and 247. 108 ECJ, Case C 104/16 P Front Polisario v Council, Judgment, 21 December 2016, EU:C:2016:973. 109 ECJ, Case C-266/16 Western Sahara Campaign UK v Commissioners for HMRC and Secretary of State for Environment, Food and Rural Affairs, Judgment, 27 February 2018, EU:C:2018:118.

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Agreement, the 2013 Protocol and the acts of secondary legislation which allocate fishing opportunities to the Member States” to the extent they apply to Western Sahara, due to a violation of Article 3(5) TEU, which requires the EU to “contribute to the strict observance of international law”.110 In February 2018 the ECJ followed its previous pronouncement and held that neither the FPA nor its 2013 Protocol, which expired on 14 July 2018, cover Western Sahara waters, leaving nothing capable of affecting the validity of the relevant Council Decisions. The ECJ ruled that way because under international law Western Sahara is indeed not part of Morocco. Morocco and the EU institutions took several actions in response to the ECJ’s rulings. First, an Agreement amending Protocols 1 and 4 to the EU-Morocco Association Agreement expressly including Western Sahara was concluded by the Council,111 after the European Parliament’s consent112 in January 2019. Second, in March 2019 the Council concluded a new SFPA together with an Implementation Protocol and other complementary documents expressly including Western Sahara waters.113 By doing this, the EU decision-makers effectively ignored the ECJ’s decision and appear to have violated both EU and international law, as discussed further below. Naturally, Front Polisario again challenged these actions and in September 2021 the GC issued its judgments annulling the Council Decisions, albeit maintaining their maintaining their effects until the ECJ decides on their appeals.114

7.4.2 Normativity of the EU’s Conduct The EU’s normativity in the Western Sahara saga with respect to inter alia fisheries has been greatly undermined at every turn since the EU overtook Spain’s fisheries agreement. Here the EU’s normativity is discussed with reference to the EU’s conduct in light of the ECJ’s decisions.

7.4.2.1

The Effects of the ECJ’s Decisions

As indicated above, the final result of the ECJ’s decisions was that it confirmed the validity of the challenged agreements between the EU and Morocco on the ground that they did not territorially include Western Sahara. The ECJ ruled this way on the basis of its interpretation of international law—the right to self-determination, 110

Ibid., para 32. Council 2018a, 2019a. 112 European Parliament 2019a. 113 Council 2018b, 2019b, 2019c. 114 GC, Joined Cases T-344/19 and T-356/19, Popular Front for the Liberation of Saguia el-Hamra and Rio de Oro (Front Polisario) v Council of the European Union, Judgment, 29 September 2021, EU:T:2021:640; GC, Case T-279/19 Popular Front for the Liberation of Saguia el-Hamra and Rio de Oro (Front Polisario) v Council of the European Union, Judgment, 29 September 2021, EU:T:2021:639. 111

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Article 29 of the Vienna Convention on the Law of the Treaties (VCLT) relating to the territorial scope of international agreements, the principle of the relative effect of treaties (the principle of pacta tertiis), and the use of subsequent practice under Article 31(3)(b) VCLT in interpreting the Liberalisation Agreement. While the way the ECJ interpreted and applied these international law rules has been strongly criticised in the literature, it must be noted that the ECJ did seek to apply international law and bring the EU’s conduct in line with normativity by observing international law. However, even if the ECJ’s reading of international law is accepted, its decision in the WSC case, which concerned fisheries, further raises normativity concerns for the EU. In particular, it raises concerns about the legality of the activities of the EU fishing vessels, as authorised by the EU, prior to the ECJ’s decision. The central question that arises is on what, if any, basis these vessels accessed the resources in the waters off Western Sahara? This question is important for the EU’s normativity because if a proper basis cannot be found then the question arises whether or not such fishing operations amounted to IUU fishing. Such a conclusion would deal a heavy blow to the EU’s normativity aspirations in fighting IUU fishing, which was discussed in Chap. 6. The fisheries access agreement and its protocol provided the basis on which EU vessels were issued fishing authorisations. For these authorisations to be valid, the agreement and its protocol had to include Western Sahara waters. The legality of such inclusion has been dealt with in the past by the European Parliament’s Legal Service.115 According to it, the basis cannot be an EEZ claim, as such has not been made by Morocco with respect to Western Sahara waters under Article 75 UNCLOS. Such a claim is important because under relevant international law States have the right to claim an EEZ up to 200 nm from the baselines of their territorial sea as it is not extended by default. Even if Morocco had made such a claim, the ECJ could hardly accept it. In the WSC case, the ECJ relied on Articles 2(1), 55, and 56 UNCLOS to conclude that the “waters over which a coastal State is entitled to exercise sovereignty or jurisdiction […] are limited exclusively to the waters adjacent to its territory and forming part of its territorial sea or of its exclusive economic zone” and since Western Sahara is not Moroccan territory “the waters adjacent to the territory of Western Sahara are not part of the Moroccan fishing zone referred to in Article 2(a) [FPA]”.116 In July 2017, a report appeared of Morocco making way towards such a claim through adopting national law extending Morocco’s EEZ to include Western Sahara waters.117 A declaration under Article 75 UNCLOS to that extent cannot be found. Front Polisario protested this claim118 and it should be considered null and void if the ECJ’s pronouncements are to be followed. Front Polisario officially claimed an EEZ 115

European Parliament 2013a. See also European Parliament 2009. ECJ, Case C-266/16 Western Sahara Campaign UK v Commissioners for HMRC and Secretary of State for Environment, Food and Rural Affairs, Judgment, 27 February 2018, EU:C:2018:118, paras 67–69. 117 Le Matin (2017) Adoption de deux projets de loi et d’un projet de décret relatifs au domaine maritime du Maroc. https://lematin.ma/journal/2017/adoption-de-deux-projets-de-loi-et-dun-pro jet-de-decret-relatifs-au-domaine-maritime-du-maroc/274871.html. Accessed 2 August 2022. 118 UN General Assembly 2017a, Annex. 116

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in January 2009 and supplemented it with specific coordinates and charts in March 2016.119 However, it does not currently have a sovereign title over Western Sahara. Spain, as the de jure administering power, has not claimed an EEZ for Western Sahara. Accordingly, the fishing operations of EU vessels could not have happened in a properly claimed EEZ. This leaves two possible conclusions on the legal status of the Western Sahara waters—either they form part of the high seas or there is some other basis for these waters to be excluded from the high seas and be under the legal control of Morocco for it to rightfully conclude a fisheries access agreement. The European Parliament Legal Service’s Opinion opted for the latter. The proposed basis was the construction of Morocco as a de facto administering power of Western Sahara and the legal fiction that exploration rights are stemming from it.120 This part of the Opinion is now largely outdated. The ECJ’s decision flatly, and correctly, rejected the applicability of such fiction with respect to the EU fisheries agreement with Morocco when it comes to Western Sahara. In particular, the ECJ refused the possibility that the expression “waters falling within the sovereignty […] of the Kingdom of Morocco” of Article 2(a) [FPA] could have been given a special meaning including Western Sahara through an agreement of the parties. According to the ECJ, this is because, first, the EU “could not properly support any intention of [Morocco] to include, by such means, the waters in question within the scope of that agreement” as that would be a breach of international law and, second, it is not possible to consider Morocco a ‘de facto administrative power’ or an occupying power of the territory of Western Sahara, however legal or illegal that would be as a basis to include those waters, because Morocco “has categorically denied that it is an occupying power or an administrative power with respect to the territory of Western Sahara”.121 Thus, since the fisheries agreement and its protocol, according to the ECJ, did not extend to Western Sahara waters and the fishing activities therein were conducted on the basis of authorisations under the agreement and its protocol, the legal basis of these authorisations appears to have been removed. Under the Fishing Authorisations Regulation, an EU vessel is prohibited from carrying out fishing operations in foreign waters unless properly authorised under an access agreement.122 The exclusion of Western Sahara waters from the access agreement with Morocco makes this criterion unfulfilled. This, in turn, should render the fishing operations in question conducted in violation of EU law and, thus, illegal fishing under the IUU fishing Regulation. The same should go for any fishing operations under such authorisations in Western 119

Front Polisario (2016) Western Sahara Declares the Outer Limits of its 200-mile Exclusive Economic Zone (EEZ). https://wsrw.org/files/dated/2016-03-06/fp_media_release_05.03.2016. pdf. Accessed 2 August 2022. 120 European Parliament 2013a. 121 ECJ, Case C-266/16 Western Sahara Campaign UK v Commissioners for HMRC and Secretary of State for Environment, Food and Rural Affairs, Judgment, 27 February 2018, EU:C:2018:118, paras 71–72. 122 European Parliament and Council 2013, Article 31(5). See also European Parliament and Council 2017, Article 4. This requirement was in place even in the repealed Regulation 1006/2008 in its Article 3.

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Sahara waters following ECJ’s judgment and prior to the expiry of the Protocol under which they were issued. The alternative is that the EU vessels were not in foreign waters altogether but on the high seas. Even then, however, they need to be issued with proper authorisations.123 It is not clear whether the authorisations they were issued under the access agreement can be equalised to high seas fishing authorisations. These crucial issues were not addressed by the ECJ. The effects of its judgment were also not limited in any way, thus, leaving the issues open. They also do not seem to have been discussed or evaluated by the other EU institutions.124 However, as things currently stand, due to the lack of appropriate legal basis for the fishing operations in question, these operations could be considered at least prima facie IUU fishing. That would apply even more with respect to any fishing operations that took place subsequent to the WSC case under the relevant protocol until its expiration in mid-2018. Thus, the EU’s normativity is further damaged by the strong IUU fishing indications flowing as a consequence of the silence of the ECJ and the other relevant EU institutions on that matter. The conduct of the other institutions is further discussed below.

7.4.2.2

The EU’s Conduct after the ECJ’s Decisions

The EU’s conduct after the ECJ’s decisions raises normativity concerns with respect to the three sub-elements of legitimacy—legality, coherence and consistency, and interest. Legality The EU’s conduct has been legally problematic before and after the ECJ’s decision in the WSC case. Prior to the ECJ’s decision, the EU’s continuous application of the fisheries agreement to Western Sahara waters with the understanding that Morocco is exercising authority over it and without making sure that at least the proceeds from the Western Sahara waters’ authorisations are fully given for the benefit of the Saharawi people and not the Moroccan settlers is problematic under international law and possibly even EU law. Under international law, as already mentioned, NSGTs have the right of self-determination, implying inter alia the right to permanent sovereignty over natural resources. In the context of NSGTs, this means that it is for the people of the NSGT to decide how to dispose of the natural resources in question.125 In the 123

Ibid. On an access to documents request I made for “Commission evaluations or other documents relating to the legal status of the fishing operations (and their authorisations) of EU vessels in waters off the coast of Western Sahara under the 2013 access agreement with Morocco as a result of Case C-266/16 Western Sahara Campaign UK EU:C:2018:118. If existing, documents discussing the question whether such fishing operations can be considered IUU fishing”, the Commission responded that it does not hold such documents, Ref. Ares(2019)1608206. 125 With respect to marine resources, see United Nations Conference on the Law of the Sea 1982, Resolution III, para 1(a); UN General Assembly 1992, para 10; UN Security Council 2002, para 11. 124

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situation of Western Sahara, however, as an occupied territory, it is not possible for such a decision to be taken by the Saharawi people. Thus, there are certain obligations imposed on its occupying power—Morocco—under international law, such as the principle of usufruct. Under Article 55 of the Hague Regulations, which reflects customary law,126 [t]he occupying State shall be regarded only as administrator and usufructuary of public buildings, real estate, forests, and agricultural estates belonging to the hostile State, and situated in the occupied country. It must safeguard the capital of these properties, and administer them in accordance with the rules of usufruct.127

The rule of usufruct in relation to the right to permanent sovereignty over natural resources requires “all proceeds from the exploitation of natural resources of a territory benefit the people of the territory – save for the costs of maintaining a civilian administration therein”.128 However, the evidence points that Morocco did not use the proceeds to benefit the people of Western Sahara. According to the 2011 Opinion of the European Parliament Committee on Development [a]fter many requests from the Commission about benefits to the “local population”, Morocco responded on 13 December 2010 with a PowerPoint document on the outcome of some investment programmes divided into 4 different regions – the “South” includes Western Sahara as well as other territory. The document does not show whether the people of Western Sahara have benefitted socio-economically from the agreement. Although the document claims that jobs are created in all areas, it is highly likely that the agreement mainly benefits Moroccan settlers, transferred into the territory in violation of Article 49 of the IV Geneva Convention of 1949. Regrettably, the document does not support any EU conclusion on benefits for either the local population or the Saharawi people.129

Thus, Morocco appears to have been illegally exploiting inter alia the natural marine resources of Western Sahara. Under Article 14 of the Draft Articles on the Responsibility of International Organisations (DARIO), the EU’s responsibility is involved here by aiding and assisting Morocco in doing that. Article 14 DARIO states that [a]n international organization which aids or assists a State or another international organization in the commission of an internationally wrongful act by the State or the latter organization is internationally responsible for doing so if: (a) the former organization does so with knowledge of the circumstances of the internationally wrongful act; and (b) the act would be internationally wrongful if committed by that organization. 126

Kassoti 2017d, p. 4; Corell 2010, pp. 240–241. Regulations concerning the Laws and Customs of War on Land annexed to Convention (IV) respecting the Laws and Customs of War on Land, opened for signature 18 October 1907, 205 CTS 277 entered into force 26 January 1910; Nuremberg International Military Tribunal, Judgment, 1 October 1946, American Journal of International Law https://doi.org/10.2307/2193873, pp. 248– 249. 128 Kassoti 2017c, p. 50. 129 European Parliament 2011, pp. 11–12. See further the discussion in Kassoti 2017c, pp. 47–49. 127

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The EU aided and assisted through its active role in the conclusion and implementation of the agreement. In particular, the EU requests and receives fishing licenses from the Moroccan authorities, which are subsequently distributed to EU vessels. The EU was also well aware of the circumstances of the wrongful act, as the matter has been brought at the UN level and could not be ignored by the EU.130 Furthermore, it can be said that the EU acted knowingly, as it was aware of the very low probability of any benefits stemming from the fisheries agreement to be distributed to the actual people of Western Sahara, as evidenced above in the 2011 Opinion. Another rule that the EU may have violated is the duty of non-recognition. According to the ICJ, States must not conclude international agreements with other States if those agreements would imply the recognition of the illegal situation as lawful.131 The same would apply to international organisations, including the EU. The EU’s acceptance and cooperation with respect to the application of the access agreement and its protocol to Western Sahara appears as such recognition, as also indirectly pointed out by the ECJ in the WSC case.132 Under EU law, the EU’s past conduct could be problematic not only due to the EU law obligation to respect international law, but also due to EU law-specific obligations. These obligations relate to respecting fundamental rights in light of the GC’s pronouncements in the Front Polisario case. There the GC appears to accept that fundamental rights are applied extraterritorially. The GC considered that “the Council should have satisfied itself that there was no evidence of an exploitation of the natural resources of the territory of Western Sahara under Moroccan control likely to be to the detriment of its inhabitants and to infringe their fundamental rights”.133 The GC rejected the Council’s argument that the question of whether or not the exploitation was conducted to the detriment of the local population concerned only Morocco. According to the GC, “the Council failed to fulfil its obligation to examine all the elements of the case before the adoption of the contested decision”.134 Since the ECJ side-stepped the substantive legality question, it did not comment on that part of the GC’s ruling. Putting the fundamental rights question in the broader perspective of access agreements, it is important to ask, if the GC’s pronouncement is correct, whether it should be limited only to exceptional cases such as Western Sahara or can it have broader applications. Is the EU obliged to ensure that its fisheries access agreements observe fundamental rights? According to Article 37 of the Charter of Fundamental Rights (CFR), “[a] high level of environmental protection 130

GC, Case T-512/12 Front Polisario v Council, Judgment, 10 December 2015, EU:T:2015:953, paras 242–245. 131 ICJ, Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, 21 June 1971, ICJ Reports 1971, p. 16, paras 121–124. 132 ECJ, Case C-266/16 Western Sahara Campaign UK v Commissioners for HMRC and Secretary of State for Environment, Food and Rural Affairs, Judgment, 27 February 2018, EU:C:2018:118, para 71. 133 GC, Case T-512/12 Front Polisario v Council, Judgment, 10 December 2015, EU:T:2015:953, para 241. 134 Ibid., para 247.

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and the improvement of the quality of the environment must be integrated into the policies of the Union and ensured in accordance with the principle of sustainable development”. The text is neither limited to internal policies, nor to EU citizens or territory. While this provision largely mirrors Article 11 of the Treaty on the Functioning of the European Union (TFEU), it adds a fundamental rights dimension as it is coached in terms of a right and is part of the CFR. Thus, if the GC is correct, fundamental rights may become a lever for increasing the normativity of the EU’s access agreements. Since the ECJ decision, the EU has negotiated and concluded new agreements with Morocco, also on fisheries, that expressly include Western Sahara in their scope. Considering that the ECJ repeatedly stated as one of its reasons for finding Western Sahara beyond the scope of the relevant agreements, that such inclusion would be a breach of EU’s international obligations, this EU conduct is baffling. In its attempt to make the new agreements legally compliant, the EU tried to show that this inclusion happened with the agreement of the people of Western Sahara. However, whether this was really the case is highly doubtful. In particular, Sweden has been quite vocal about its objections that the “consultation process can be said to constitute the free and informed consent of the people of Western Sahara”.135 The Legal Service of the European Parliament also echoed that view.136 Also, most of the stakeholders that were said to have participated in the consultation process have denied taking part.137 The consultations point aside, it is not clear that the actual people of Western Sahara would benefit from the agreement. This is because the reference to “people concerned” that is used by the EU institutions with respect to the new agreements is vague. As the Commission acknowledged “the term ‘people concerned’ is liable to different or even divergent interpretations […] In any event, we decided to start by assessing whether the agreement helped trade between Western Sahara and the EU”.138 As Kassoti concludes, this statement shows that the Commission’s examination largely includes Moroccan settlers since “[i]t is clearly impossible to say that the overall economic impact […] would systematically and directly benefit indigenous people. It can only be assumed that they would benefit, at least indirectly”.139 This attitude of the EU institutions can hardly be considered in compliance with the international law obligation to ensure that the exploitation of the territory’s natural resources benefits the people of Western Sahara.140 Calls from European Parliament members for the legality of the new agreements to be examined by the ECJ under Article 218 TFEU were also eventually rejected in the European Parliament

135

Council 2018c. European Parliament 2018, para 26. 137 Network of 93 Saharawi civil society actors 2018, p. 2; Kassoti 2019b, p. 315. 138 European Commission 2018, p. 9. 139 Ibid., p. 18; Kassoti 2019b, p. 316. 140 Ibid. 136

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plenary.141 Front Polisario indicated its willingness to challenge the new agreements142 and followed up on that. The GC largely followed the established line of case law and reached the correct and expected legal conclusion annulling the Council Decisions concluding the new agreements. However, the GC again omitted to include in its considerations the crucial point on the law on occupation, as observed by Kassoti.143 It is now for the ECJ to again try put the issue to rest,144 though judging by the previous round of cases, even if the ECJ respects international law and confirms the annulment, the recent developments of a shift in Spain’s Western Sahara policy145 and the Commission still unwavering in its support for the agreements,146 we may see another round of agreements and a challenge. One may wonder how many strikes the EU gets before ‘it is out’. These pre- and post-ECJ decision actions of the relevant EU institutions raise serious legality concerns damaging the EU’s normativity. The EU’s conduct is greatly undermining the rights of the Saharawi people and is, thus, prejudicing the application of universally accepted norms such as the right to selfdetermination and sovereignty over natural resources. These actions also give rise to a number of other normativity concerns as shown below. Coherence and Consistency The EU institutions’ actions also suffer from serious coherence and consistency deficiency. This deficiency largely relates to the resulting difference in the EU’s treatment of occupied territories but also, with respect to Western Sahara, the EU’s position of non-recognition of Morocco’s claims, while acting in a way that is effectively supporting these claims. Currently, there are several occupied territories in or in the vicinity of Europe. While the EU formally acts as if it does not recognise them, it does not maintain a consistent behaviour ‘on the ground’ with respect to them.

141

European Parliament 2019b. Sidati M (2019) Polisario condemns new EU-Morocco trade deal. https://wsrw.org/a105x4415. Accessed 18 July 2020. 143 Kassoti E (2021) The Long Road Home: The CJEU’s Judgments in Joined Cases T-344/19 and T-356/19 and in Case T-272/19—Front Polisario v Council. https://verfassungsblog.de/the-longroad-home/. Accessed 2 August 2022. 144 https://curia.europa.eu/juris/liste.jsf?lgrec=fr&td=%3BALL&language=en&num=C-798/21% 20P&jur=C. Accessed 2 August 2022; https://curia.europa.eu/juris/liste.jsf?lgrec=fr&td=% 3BALL&language=en&num=C-799/21%20P&jur=C. Accessed 2 August 2022; https://curia. europa.eu/juris/liste.jsf?lgrec=fr&td=%3BALL&language=en&num=C-778/21%20P&jur=C. Accessed 2 August 2022; https://curia.europa.eu/juris/liste.jsf;jsessionid=8198539B5A6EE39547 E11DA355DE7C97?num=C-779/21&language=en. Accessed 2 August 2022. 145 Heller F (2022) Shift in Spain’s policy on Western Sahara triggers government tensions. https://www.euractiv.com/section/politics/short_news/shift-in-spains-policy-on-western-sahara-tri ggers-government-tensions/?utm_source=piano&utm_medium=email&utm_campaign=19683& pnespid=quh7VTYbO.sCxePErGXsEZnUuAK_DYN3JOOl2bQ0tB1mOMBzhLH6nnu422GCR W1ibxVoNckM. Accessed 2 August 2022. 146 Sinkeviˇ cius 2022. 142

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Kassoti explored this inconsistency at length with specific reference to the difference in treatment between Western Sahara and Palestine.147 In particular, the EU has refused products originating from the territories occupied by Israel to be labelled as coming from Israel and at same time it accepts products originating from Western Sahara to be labelled as Moroccan.148 The EU’s conduct in engaging with Morocco and not explicitly excluding Western Sahara from its agreements gives Morocco comfortable support for its claims. If one wishes to be provocative, a question can be posed, namely if Crimea (before Russia invaded Ukraine again in 2022) had rich fishing grounds with strong vested EU fishing interests, whether the EU would have concluded a fisheries agreement with Russia in order to fish in Crimean waters. These provocative thoughts simply put into perspective the EU’s inconsistent approach. Such an approach has a seriously damaging effect on the EU’s normativity because it shows that the EU is not truly adhering to its positions and that it does not treat all its partners equally. The reason for such difference in treatment is the EU’s protection of its self-interests, which is explored below. Interest The EU’s conduct in the Western Sahara saga shows an alarming emphasis (for an aspiring normative power) on self-interest. The EU’s conduct appears to be driven by a mixture of interests, the two most identifiable being fisheries and security. With respect to fisheries, the EU has a very strong interest in Western Sahara waters. More than 90% of the fishing activity under the fisheries agreement with Morocco has been conducted in Western Sahara waters.149 The overwhelming majority of the EU vessels fishing there are also Spanish. Maintaining this situation is important for the EU as it is also the result of delicate interest brokering going back to Spain’s EU accession. When Spain and Portugal joined the EU, their vessels were heavily restricted from the waters of the other EU Member States through an exception to the CFP principle of equal access. In order to appease both new members, new fishing opportunities were to be found in foreign waters.150 In the context of this compensation, it was impossible to put in question the foreign access the new members had already secured through their pre-existing access agreements. Spanish fishing in Western Sahara waters was one of those instances. A similar demand for preserving existing access is presenting with the advent of Brexit and the possibility of excluding EU vessels from the UK waters. Thus, the EU’s original failure to deal with the overcapacity of its fleet and its designated solution to ‘export the problem’ to foreign waters and the further complication of the Spanish situation has led the EU to excessively protect its self-interest. With respect to security, the EU has strong vested interests with Morocco as a neighbouring State and the other coastal State on the strait of Gibraltar. Migration and 147

Kassoti 2017c. Ibid., p. 51. 149 Faraj et al. 2015, p. 51. 150 Churchill and Owen 2010, p. 342. 148

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counterterrorism are the two most important areas of cooperation in that regard.151 The security cooperation was heightened in recent years in the wake of the migration crisis in Europe. Spain became one of the entry points for migrants and Morocco’s cooperation became of even greater political importance. Following the Front Polisario case, Morocco threatened to reduce its cooperative effort, which was followed by a few sizable border incursions by migrants,152 managing to hit the right places in Europe. The last thing the EU needed was for the overly-politicised migration issue to be fuelled even further in advance of the 2019 European Parliament elections and give far-right groups more political ammunition. Recent developments reconfirm the importance of migration cooperation with Morocco.153 Accordingly, the EU’s failed attempts to resolve internal situations led the EU to ‘export’ its problems, which has created certain sensitive external interests. The sensitivity of these interests has led to undue emphasis on its self-interests, which has considerably damaged the EU’s normativity. The normativity has been damaged because, while a normative power is not expected to be completely altruistic and ignoring its self-interests, it is expected to act in a principled way by respecting universal (binding and non-binding) norms that it itself promotes and to treat similar situations similarly. Doing this even in the face of sacrificing certain interests is an important part of what makes a power normative. The EU’s conduct in the Western Sahara saga speaks volumes about EU’s normativity in accessing foreign waters in general notwithstanding the uniqueness of the saga. This is because it shows how the EU acts and the choices it makes when it is faced with true normative dilemmas between upholding its principles and protecting its own interests.

7.5 Conclusion This chapter discussed the EU’s normativity in the context of its bilateral action of accessing foreign fisheries resources. This practice plays an important role in the EU’s external action in the area of fisheries and is a cornerstone of the external CFP. The access agreements the EU uses allowed for an interesting analysis of the EU’s normativity as they have become a focal point for EU’s normative aspirations, on the one hand, and the protection of EU’s commercial interests, on the other hand. The 151

Edwards S (2017) Are Morocco and EU heading towards a political impasse? https://www.alj azeera.com/indepth/features/2017/03/morocco-eu-heading-political-impasse-170301102342685. html. Accessed 2 August 2022. 152 Peregil F, Cañas J (2017) Incursions at Spain’s North African exclaves triple after Moroccan threats. https://elpais.com/elpais/2017/02/27/inenglish/1488185422_295555.html. Accessed 2 August 2022. 153 Heller F (2022) Spain resumes world’s largest migration operation with Morocco. https://www. euractiv.com/section/politics/short_news/spain-resumes-worlds-largest-migration-operationwith-morocco/?utm_source=piano&utm_medium=email&utm_campaign=21932&pnespid=r71 mVy1abboT1.nH_iSlGpOP5RGrRcNqKuSsm.dvrk1mSPnMEae5GtCYJusN90eFOS8AYaOP. Accessed 2 August 2022.

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analysis of the EU’s general practice and the more detailed case study of the Western Sahara saga show that the EU’s normativity in seeking access to foreign fishing resources is considerably damaged. While much has been done towards improving that normativity, the strong emphasis on protecting the EU’s interests in accessing foreign resources still prevents the EU from truly acting normatively. This is most evident where the EU chooses to protect those interests at the expense of its normativity where the two do not overlap, that is, where the EU is forced to make a choice between the two, as in the Western Sahara case. Within the more general framework of the book, this chapter analysed action where the EU does not experience participation limitations, as it is fully recognised by its partners as the relevant actor. Often the EU also has a much stronger bargaining position due to the financial importance of the agreements to the EU’s partners. Furthermore, the EU Member States have early-on vested the EU with exclusive powers in that regard. Today, under EU law, EU fishing vessels may be authorised to fish in third State waters if inter alia “no SFPA or agreement on exchange of fishing opportunities or joint management with the third country concerned is in force or provisionally applied”.154 Considering the wide net of EU fishing agreements, such direct authorisations would be exceptional. Accordingly, in its bilateral action on accessing foreign fisheries resources, the EU has much greater freedom to act normatively, as also required by the relevant EU instruments. However, the failure to do so to the fullest, shows that economic interests can affect the EU’s normativity just as participation limitations do. This chapter showed that the EU and international law frameworks have paved the way for the EU to act normatively. However, the EU has not operationalised them in that way.

References Beckman R, Davenport T (2013) The EEZ Regime: Reflections after 30 Years. In: Scheiber H, Kwon M (eds) Securing the Ocean for the Next Generation. University of California, Berkeley Carroz J, Savini M (1983) ANNEX 2 - The Practice of Coastal States Regarding Foreign Access to Fishery Resources: An analysis of bilateral agreements. In: FAO, Report of the Expert Consultation on the conditions of access to the fish resources of the exclusive economic zones. FAO, Rome. https://www.fao.org/3/x5608e/x5608e0a.htm. Accessed 2 August 2022 Chapaux V (2007) The question of the European Community – Morocco Fisheries Agreement. In: Arts K, Pinto P (eds) International Law and the Question of Western Sahara. International Platform of Jurists for East Timor, Leiden, pp 217–237 Churchill R, Owen D (2010) The EC Common Fisheries Policy. Oxford University Press, Oxford Corell H (2010) The legality of exploring and exploiting natural resources in Western Sahara. In: Botha N, Olivier M, Van Tonder D (eds) Multilateralism and International Law with Western Sahara as a Case Study. University of South Africa Press, Pretoria, pp 231–247 Council (1997) Conclusions on European Community Fisheries Agreements with Third Countries, 11784/97 Council (2007) Decision 2007/854/EC concerning the conclusion of the Agreement in the form of an Exchange of Letters on the provisional application of the Protocol setting out the fishing 154

European Parliament, Council 2017, Article 17.

References

223

opportunities and financial contribution provided for in the Fisheries Partnership Agreement between the European Community and the Republic of Guinea-Bissau for the period 16 June 2007 to 15 June 2011, OJ L342/1 Council (2008a) Decision concerning the conclusion of the Agreement in the form of an Exchange of Letters on the provisional application of the protocol setting out the fishing opportunities and financial contribution provided for in the Fisheries Partnership Agreement between the European Community and the Republic of Côte d’Ivoire on fishing in Côte d’Ivoire’s fishing zones for the period from 1 July 2007 to 30 June 2013, OJ L48/37 Council (2008b) Regulation (EC) 1005/2008 establishing a Community system to prevent, deter and eliminate illegal, unreported and unregulated fishing, OJ L286/1 Council (2012) Decision 2012/497/EU on the conclusion of an Agreement in the form of an Exchange of Letters between the European Union and the Kingdom of Morocco concerning reciprocal liberalisation measures on agricultural products, processed agricultural products, fish and fishery products, the replacement of Protocols 1, 2 and 3 and their Annexes and amendments to the Euro-Mediterranean Agreement establishing an association between the European Communities and their Member States, of the one part, and the Kingdom of Morocco, of the other part, OJ L241/2 Council (2018a) Decision 2018/1893 regarding the signature, on behalf of the European Union, of the Agreement in the form of an Exchange of Letters between the European Union and the Kingdom of Morocco on the amendment of Protocols 1 and 4 to the Euro-Mediterranean Agreement establishing an Association between the European Communities and their Member States, of the one part, and the Kingdom of Morocco, of the other part, OJ L310/1 Council (2018b) Decision 2018/2068 on the signing, on behalf of the Union, of the Sustainable Fisheries Partnership Agreement between the European Union and the Kingdom of Morocco, the Implementation Protocol thereto and the exchange of letters accompanying the Agreement, OJ L331/1 Council (2018c) Statement by Sweden, 10891/18 ADD2. https://data.consilium.europa.eu/doc/doc ument/ST-10891-2018-ADD-2/en/pdf. Accessed 2 August 2022 Council (2019a) Decision (EU) 2019/217 on the conclusion of the agreement in the form of an Exchange of Letters between the European Union and the Kingdom of Morocco on the amendment of Protocols 1 and 4 to the Euro-Mediterranean Agreement establishing an association between the European Communities and their Member States, of the one part, and the Kingdom of Morocco, of the other part, OJ L34/1 Council (2019b) Decision (EU) 2019/441 on the conclusion of the Sustainable Fisheries Partnership Agreement between the European Union and the Kingdom of Morocco, the Implementation Protocol thereto and the Exchange of Letters accompanying the Agreement, OJ L77/4 Council (2019c) Regulation (EU) 2019/440 on the allocation of fishing opportunities under the Sustainable Fisheries Partnership Agreement between the European Union and the Kingdom of Morocco and the Implementation Protocol thereto, OJ L77/1 Council (2019d) Decision (EU) 2019/1332 on the signing, on behalf of the Union, and provisional application of the Sustainable Fisheries Partnership Agreement between the European Union and the Republic of The Gambia and of the Protocol on the implementation of that Partnership Agreement, OJ L208/1 Council, Commission (2000) Decision 2000/204/EC, ECSC on the conclusion of the EuroMediterranean Agreement establishing an association between the European Communities and their Member States, of the one part, and the Kingdom of Morocco, of the other part, OJ L70/1 Dahak D (1986) Les Etats Arabes et le Droit de la Mer. Les Editions Maghrébines, Rabat Dawidowicz M (2013) Trading fish or human rights in Western Sahara? Self-determination, nonrecognition and the EC-Morocco Fisheries Agreement. In: French (ed) Statehood and SelfDetermination: Reconciling Tradition and Modernity in International Law. Cambridge University Press, Cambridge. DOI: https://doi.org/10.1017/CBO9781139248952.015 Eckert R (1979) The Enclosure of Ocean Resources: Economics and the Law of the Sea. Hoover Institution Press, Stanford

224

7 Challenges to the EU’s Normativity in Gaining Access to Foreign …

European Commission (1974) Communication de M. Lardinois, Objectifs d’action communautaire proposes dans le secteur de la pêche maritime à la suite de la 2eme session de la 3eme conférence sur le droit de la mer (Caracas, 20 juin au 29 aout 1974), SEC(74) 4400 European Commission (1975a) Document de travail des services de la Commission, Premier examen des incidences économiques sur le secteur de la pêche des états membres, consécutives a la décision islandaise de créer une zone de pêche exclusive de 200 milles, SEC(75) 3132 European Commission (1975b) Document de Travail des Services de la Commission, Problèmes poses à la Communauté dans le secteur de la pêche par l’instauration de zones économiques maritimes de 200 milles, SEC(75) 4503 European Commission (1976) Communication Future of external fisheries policy and an internal fisheries system, COM(76) 500 final European Commission (1996) Communication, Fisheries agreements: current situation and perspectives, COM(96) 488 final European Commission (2002) Communication on an Integrated Framework for Fisheries Partnership Agreements with Third Countries, COM(2002) 637 final European Commission (2011) Communication on External Dimension of the Common Fisheries Policy, COM(2011) 424 final European Commission (2012) Non Paper, Using EU Trade Policy to promote fundamental human rights: Current policies and practices. http://trade.ec.europa.eu/doclib/docs/2012/february/tra doc_149064.pdf. Accessed 2 August 2022 European Commission (2018) Staff Working Document, Report on benefits for the people of Western Sahara and public consultation on extending tariff preferences to products from Western Sahara of 15 June 2018, SWD(2018) 346 final European Commission (2019) Communication on the State of Play of the Common Fisheries Policy and Consultation on the Fishing Opportunities for 2020, COM(2019) 274 final European Court of Auditors (2015) Are the Fisheries Partnership Agreements well managed by the Commission? European Parliament (2006) Proposal for a Council Regulation on the Conclusion of the Fisheries Partnership Agreement between the European Community and the Kingdom of Morocco: Compatibility with the principles of international law, SJ-0085/06 European Parliament (2009) The Fisheries Partnership Agreement between the European Community and the Kingdom of Morocco, SJ-0269/09 European Parliament (2011) Recommendation on the draft Council decision on the conclusion of a Protocol between the European Union and the Kingdom of Morocco setting out the fishing opportunities and financial compensation provided for in the Fisheries Partnership Agreement between the European Community and the Kingdom of Morocco, A7-0394/2011 European Parliament (2013a) Protocol between the European Union and the Kingdom of Morocco setting out the fishing opportunities and financial contribution provided for in the fisheries Partnership Agreement in force between the two parties, SJ-0665/13 European Parliament (2013b) Resolution on EU-Morocco fisheries partnership agreement, OJ CE168/155 European Parliament (2015) Resolution on the external dimension of the Common Fisheries Policy, OJ C419/175 European Parliament (2018) Note for the attention of Mr Bernard Lange, SJ-0506/18 European Parliament (2019a) Resolution on EU-Morocco Agreement on the amendment of Protocols 1 and 4 to the Euro-Mediterranean Agreement, OJ C411/298 European Parliament (2019b) Seeking an opinion from the Court of Justice on the compatibility with the Treaties of the proposed EU-Morocco Sustainable Fisheries Partnership Agreement, 2019/2565(RSP) European Parliament, Council (2013) Regulation (EU) 1380/2013 on the Common Fisheries Policy, amending Council Regulations (EC) No 1954/2003 and (EC) No 1224/2009 and repealing Council Regulation (EC) No 2371/2002 and (EC) No 639/2004 and Council Decision 2004/585/EC, OJ L354/22

References

225

European Parliament, Council (2017) Regulation (EU) 2017/2403 on the sustainable management of external fishing fleets, and repealing Regulation (EC) 1006/2008, OJ L347/81 FAO (1995) Code of Conduct for Responsible Fisheries. https://www.fao.org/3/v9878e/v9878e.pdf. Accessed 2 August 2022 Faraj A, García Isarch E, Daniel P (eds) (2015) Rapport de la Réunion Scientifique conjointe annuelle relative à l’Accord de Pêche signé entre le Royaume du Maroc et l’Union européenne. https://ec. europa.eu/fisheries/sites/fisheries/files/docs/body/report-morocco-2015_fr.pdf. Accessed 18 July 2020 Franck T (1976) The Stealing of the Sahara. American Journal of International Law. DOI: https:// doi.org/10.2307/2200382 Gegout C (2016) Unethical power Europe? Something fishy about EU trade and development policies. Third World Quarterly. DOI: https://doi.org/10.1080/01436597.2016.1176855 Harrison J (2011) Making the Law of the Sea: A Study in the Development of International Law. Cambridge University Press, Cambridge Haynes B (2003) European Community Third Party Fisheries Agreements and the Future of Partnership Agreements within the Common Fisheries Policy. http://jncc.defra.gov.uk/pdf/TPFA2.PDF. Accessed 15 April 2020 Hodges T (1983) Western Sahara: The Roots of a Desert War. Lawrence Hill & Company, Westport, Connecticut ICES (1978) Reports of the Liaison Committee of ICES, November 1976 to October 1977. https:// www.ices.dk/sites/pub/Publication%20Reports/Cooperative%20Research%20Report%20(CRR )/CRR073.pdf. Accessed 2 August 2022 Kaczynski V, Fluharty D (2002) European Policies in West Africa: Who Benefits from Fisheries Agreements? Marine Policy. DOI: https://doi.org/10.1016/S0308-597X(01)00039-2 Kassoti E (2017a) The Council v. Front Polisario Case: The Court of Justice’s Selective Reliance on International Rules on Treaty Interpretation (Second Part). European Papers. DOI: https://doi. org/10.15166/2499-8249/147 Kassoti E (2017b) The Front Polisario v. Council Case: The General Court, Völkerrechtsfreundlichkeit and the External Aspect of European Integration (First Part). European Papers. DOI: https://doi.org/10.15166/2499-8249/122 Kassoti E (2017c) The Legality under International Law of the EU’s Trade Agreements covering Occupied Territories: A Comparative Study of Palestine and Western Sahara. CLEER Paper Series, 2017/3, T.M.C. Asser Institute for International & European Law 2017-3 Kassoti E (2017d) Trading with Settlements: The International Obligations of the European Union with Regard to Economic Dealings with Occupied Territories. T.M.C. Asser Institute for International & European Law, Policy Brief 2017-02 Kassoti E (2018) The EU and Western Sahara: An Assessment of Recent Developments. European Law Review 43:751–769 Kassoti E (2019a) The ECJ and the art of treaty interpretation: Western Sahara Campaign UK. Common Market Law Review. DOI: https://doi.org/10.54648/COLA2019009 Kassoti E (2019b) The Empire Strikes Back: The Council Decision Amending Protocols 1 and 4 to the EU-Morocco Association Agreement. European Papers. DOI: https://doi.org/10.15166/24998249/283 Le Manach F, Andriamahefazafy M, Harper S, Harris A, Hosch G, Lange G, Zeller D, Sumaila U (2013) Who gets what? Developing a more equitable framework for EU fishing agreements. Marine Policy. DOI: https://doi.org/10.1016/J.MARPOL.2012.06.001 Long R, Curran P (2000) Enforcing the Common Fisheries Policy. Blackwell Science, Malden Milano E (2006) The new fisheries partnership agreement between the European community and the Kingdom of Morocco: fishing too south? Anuario Espanol de Derecho Internacional 22:413–457 Mundt M (2012) The Effects of EU Fisheries Partnership Agreements on Fish Stocks and Fishermen: The Case of Cape Verde. https://www.econstor.eu/obitstream/10419/59310/1/718106679. pdf. Accessed 2 August 2022

226

7 Challenges to the EU’s Normativity in Gaining Access to Foreign …

Network of 93 Saharawi civil society actors (2018) EU-Morocco Trade Agreement on Western Sahara: The Commission Ignoring the EU Court, Misleading Parliament and Member States and Undermining the UN. https://www.wsrw.org/files/dated/2018-07-03/02072018-sahrcivilsoc ietyappeal.pdf. Accessed 2 August 2022 Océanic Développement (2010) Evaluation ex-post du protocole actuel d’accord de partenariat dans le domaine de la pêche entre l’Union Européenne et le Royaume du Maroc, Etude d’impact d’un possible futur protocole d’accord. https://www.fishelsewhere.eu/files/dated/2012-03-05/eva luation-app-maroc-2010.pdf. Accessed 2 August 2022 Okafor-Yarwood I (2015) The Guinea-Bissau–Senegal maritime boundary dispute. Marine Policy. DOI: https://doi.org/10.1016/J.MARPOL.2015.08.008 Okafor-Yarwood I, Belhabib D (2019) The duplicity of the European Union Common Fisheries Policy in third countries: Evidence from the Gulf of Guinea. Ocean and Coastal Management. DOI: https://doi.org/10.1016/J.OCECOAMAN.2019.104953 Orellana M (2007) EEZ Fisheries Access Arrangements and the WTO Subsidies Agreement: Legal Analysis and Options for Improved Disciplines. https://www.ciel.org/Publications/UNEP_Fish eries_Dec07.pdf. Accessed 2 August 2022 Popescu I (2015) Beyond the European seas: The external dimension of the Common Fisheries Policy. https://www.europarl.europa.eu/thinktank/en/document/EPRS_IDA(2015)571323 Accessed 2 August 2022 Prickartz A (2019) The European Union’s Common Fisheries Policy, the Right to Self-determination and Permanent Sovereignty over Natural Resources. The International Journal of Marine and Coastal Law. DOI: https://doi.org/10.1163/15718085-23343068 Sinkeviˇcius V (2022) Answer given by Mr Sinkeviˇcius on behalf of the European Commission, E-005271/2021. https://www.europarl.europa.eu/doceo/document/E-9-2021-005271-ASW_EN. pdf. Accessed 2 August 2022 Smith J (2010) From the Desert to the Sea: The Maritime Jurisdiction of an Independent Western Sahara. https://dl.tufts.edu/downloads/5h73q642q?filename=wd376727w.pdf. Accessed 2 August 2022 Smith J (2020) A Four-Fold Evil? The Crime of Aggression and the Case of Western Sahara. International Criminal Law Review. DOI: https://doi.org/10.1163/15718123-02002007 Treves T (1976) La Communauté européenne et la zone économique exclusive. Annuaire français de droit international 22:653–677 UN General Assembly (1976) Letter dated 26 February 1976 from the Permanent Representative of Spain to the United Nations, addressed to the Secretary-General, UN Doc.A/31/56-S/11997 UN General Assembly (1979a) Letter dated 18 August 1979 from the Permanent Representative of Mauritania to the United Nations, addressed to the Secretary-General, UN Doc.A/34/427-S/13503 UN General Assembly (1979b) Question of Western Sahara, UN Doc.A/Res/34/37 UN General Assembly (1990) Question of Western Sahara, UN Doc.A/Res/35/19 UN General Assembly (1992) Activities of those foreign economic and other interests which impede the implementation of the Declaration on the Granting of Independence to Colonial Countries and Peoples in Territories under colonial domination and efforts to eliminate colonialism, apartheid and racial discrimination in southern Africa, UN Doc.A/Res/47/15 UN General Assembly (2016) Question of Western Sahara, UN Doc.A/Res/71/106 UN General Assembly (2017a) Letter dated 14 July 2017 from the Permanent Representative of Namibia to the United Nations addressed to the Secretary-General, UN Doc.A/71/988 UN General Assembly (2017b) Report of the Secretary General on information from non-selfgoverning territories transmitted under article 73e of the Charter of the United Nations of 3 February 2017, UN Doc.A/72/62 UN Security Council (2002) Letter dated 29 January 2002 from the Under-Secretary-General for Legal Affairs, the Legal Counsel, addressed to the President of the Security Council, UN Doc.S/2002/161 UN Security Council (2017) UN Doc.S/Res/2351

References

227

United Nations Conference on the Law of the Sea (1982) Final Act of the Third UN Conference on the Law of the Sea, UN Doc.A/CONF.62/121. https://treaties.un.org/doc/source/docs/A_CONF. 62_121-E.pdf. Accessed 2 August 2022 Van der Burgt N (2013) The Contribution of International Fisheries Law to Human Development: An Analysis of Multilateral and ACP-EU Fisheries Instruments. Martinus Nijhoff, Leiden Wakefield J (2016) Reforming the Common Fisheries Policy. Elgar, Cheltenham. DOI: https://doi. org/10.4337/9781785367663 Wise M (1984) The Common Fisheries Policy of the European Community. Methuen, London Zimmermann H (2016) Balancing Sustainability and Commerce in International Negotiation: The EU and Its Fisheries Partnership Agreements. Journal of European Public Policy. DOI: https:// doi.org/10.1080/13501763.2016.1146324

Chapter 8

Conclusion

Contents 8.1 The EU’s Power in the Area of Fisheries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.2 Normativity Characteristics . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.2.1 The EU’s Fishing Power Is Dispersed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.2.2 The EU’s Normative Conduct Is Multileveled . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.2.3 The EU’s Normativity Requires Flexibility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.3 Law and Normativity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.3.1 Acting Normatively Has Important Legal Consequences . . . . . . . . . . . . . . . . . . . 8.3.2 The International Law Framework Still Limits the EU’s Conduct . . . . . . . . . . . . 8.3.3 The EU Member States Are Central to Addressing These Limitations . . . . . . . . 8.3.4 The EU’s Distinctiveness Helps and Hinders Normativity . . . . . . . . . . . . . . . . . . 8.4 Towards Achieving Normativity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

230 231 231 232 233 234 234 235 236 238 238 239

Abstract This chapter provides the conclusions. It shows that the EU faces significant challenges to acting normatively. Most visibly, in fora in which it lacks membership, these challenges stem from its incomplete powers as a non-State actor. At the same time these challenges predominantly relate to and are aggravated by obstructions from EU Member States at different levels (enforcing EU law, acting in the Council, and acting in international institutions). Even where the EU enjoys strong powers of action (exclusive competence and/or enjoying membership in relevant international institutions), it fails to act normatively again because of its Member States. The Member States’ involvement at different levels in the area of fisheries allows them to protect their interests, leading to incoherence and inconsistency, reliance on short-term self-interest and in some cases even possible illegality in the overall EU action. Thus, while the EU’s normativity depends greatly on having internal and external powers, it is its inability to freely wield the powers it already has that mostly damages its normativity. For the EU to act normatively it needs first and foremost to be fully supported by its Member States for its present constitution prevents it from acting fully to their exclusion and independently from them. Keywords Normativity · EU’s normativity · EU leadership · Law and normativity · EU Member States · Food security

© T.M.C. ASSER PRESS and the author 2023 M. Vatsov, Fishing Power Europe, Global Europe: Legal and Policy Issues of the EU’s External Action 3, https://doi.org/10.1007/978-94-6265-583-6_8

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8.1 The EU’s Power in the Area of Fisheries The European Union’s (EU) power and the way it is exercised are topics of wide interest. As the discussion in this book has shown, the EU’s power and its exercise are subjects of comprehensive academic debate. Political statements fuel that debate by claiming EU leadership in various areas.1 Non-governmental organisations (NGO) and the civil society are also involved in this debate by advocating for certain EU action and arguing that the EU should take the lead.2 Using legal analysis, this book contributes to this debate by shedding more light on the EU’s power in the area of fisheries internationally, which has been largely and undeservedly overlooked. This book focused on the EU as a powerful actor in the area of fisheries and examined the exercise of that power through the lens of normativity. The book examined how the frameworks of EU and international law impact the EU’s ability to act normatively in its external action in the area of fisheries. Chapter 2 adapted the political science Normative Power Europe (NPE) narrative to be used as an analytical framework for a legal discussion. A normative power is understood throughout the book as a powerful actor that acts in a principled way. Through its conduct, a normative power influences other actors by convincing them in the principled position it takes, as opposed to forcing them to adopt the said position. The analysis of whether the EU acts normatively focused on three main elements— universality, use of instruments, and legitimacy, which, respectively, relate to three main questions that guided the analysis. First, what norms and principles the EU supports—are they universally agreed or are they of universalizable character (i.e. in the process of becoming universally agreed)? Second, what type of instruments the EU can and does use to support those norms and principles—is it seeking multilateral approaches and prioritising negotiated solutions through them? Third, what is the substance of that support—is it lawful, does it further common long-term interests, and is it coherent and consistent with other actions? Chapter 3 contextualised the analytical framework in the multidimensional area of fisheries, which covers several EU policies (trade, environment, development cooperation, transport, social, etc.) going far beyond the core Common Fisheries Policy. This multidimensionality set the broad policy background of the analysis. Chapter 3 also showed that all NPE elements feature within the EU legal framework governing the area of fisheries. Accordingly, this book examined the EU’s use of its power not just in light of academically-constructed normativity criteria, but in light of a set of EU law-based legal requirements. The following sections set out 1

Interview with Commission President Barroso in Peterson 2008; EESC (2019) Europe must become a global leader in sustainable development. https://www.eesc.europa.eu/en/news-media/ press-releases/europe-must-become-global-leader-sustainable-development. Accessed 2 August 2022; Finnish Presidency (2019) The EU as a global leader in climate action. https://eu2019.fi/en/pri orities/climate-leadership. Accessed 2 August 2022; Fortuna (2019) Vella: EU leadership on oceans governance is a priority for my successor. https://www.euractiv.com/section/agriculture-food/interv iew/vella-eu-leadership-on-oceans-governance-is-a-priority-for-my-successor/. Accessed 2 August 2022; European Commission 2019. 2 E.g. WWF 2015; Guggisberg 2017.

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main conclusions that can be drawn with respect to the EU’s normativity in the area of fisheries. Section 8.2 provides conclusions on certain normativity characteristics of the EU in the area of fisheries stemming from its conduct. Section 8.3 provides conclusions on how law and normativity impact each other and, specifically, on how the EU and international law frameworks impact the EU’s normativity. Section 8.4 provides a broader outlook for the EU’s normativity and whether it is at all achievable.

8.2 Normativity Characteristics 8.2.1 The EU’s Fishing Power Is Dispersed In examining the EU’s normativity as an international actor, a broader view must be adopted with respect to who the EU is. Greater attention needs to be paid to the Member States’ conduct. This book showed a tension between mainly the Commission and the Member States acting on their own and within the Council. While the EU is ultimately a singular legal person under international law and is represented externally by the Commission, it has a complex institutional framework with a complex power and competence relationship, as Chap. 3 showed. The book further showed that an examination of the EU’s normativity cannot disregard the Member States’ conduct. This is because, after all, the EU and the Member States do not have separate populations and fleets—the EU is made up of the Member States and for the benefit of the Member States and their populations. Furthermore, the Member States are represented in the Council, which is a main decision-maker, and the European Council, which provides the EU’s overarching political guidance. Thus, the Commission, as the EU’s international representative and the institution responsible for developing proposals and implementing policies, can hardly define an EU interest that the Member States disagree with in the area of fisheries. The EU’s separate legal personality and its autonomy of action, as developed by the Court of Justice of the European Union (CJEU), to be separate from the Member States, can hardly work in practice if they lead to results with which the Member States or a sizeable majority thereof disagree. The analysis showed that the Commission, as the institution tasked with protecting the EU’s interests in its international action, cannot independently decide on a truly autonomous EU interest and when it tries to do that against Member States’ wishes dissonances appear, leading to normativity concerns, mainly under the legitimacy element. The Commission may shape the EU’s action but only after having Member States’ support for the core of that action. Similarly, the Commission and the European Parliament may influence the Member States politically to turn in a certain direction, as it has been done for years with respect to sustainable fishing. However, that influence will always be limited, and the agreement of the Member States will be needed. The agreement of the Member States on fisheries matters appears hard to obtain, especially when it is needed for adopting more progressive actions designed to break away from unsustainable past practices

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and taking away control from the Member States. Indeed, fisheries matters have proven to be very sensitive and problematic over the years, relative to their economic weight. This is because for the Member States fisheries matters have much more than economic significance. Fisheries maters are also about control over or access to waters and resources with all the social, economic, political and legal consequences flowing from that; they are also about food security, culture and traditions. This book discussed the Western Sahara saga in Chap. 7 and it showed how a long-standing sovereignty dispute was sought to be addressed through the prism of fisheries rights and that a complicated set of interests prevail over principles. The Western Sahara saga, however, is not an exception when it comes to fisheries matters being used as precursor to greater legal and political battles. It is no coincidence that fisheries were a main sticking point in the debate over the freedom of the seas in the 1600s.3 Just from current developments one can think of the territorial dispute between Slovenia and Croatia4 and Brexit.5 This is to show that where strong Member State interests exist, they will likely prevail over a normative goal the Commission pursues internationally on behalf of the EU if they conflict with each other. The precedence that individual and occasionally even common Member State interests take over broader interests beyond the European context creates serious legitimacy problems for the EU if it wishes to be normative, as it is required to be. Thus, it can be concluded that the fishing power in Europe is dispersed. Formally, the EU has a wide array of competences in the area of fisheries, some of them exclusive and others shared, which have been extensively used and, thus, pre-empt Member State action. Nevertheless, the Member States still play a very important role at every stage of EU action in the area of fisheries and, in practice hold a sizable part of the fishing power in Europe. Therefore, the identified failures to act normatively in this book must be read as a criticism towards the way the EU operates, as a whole, with the Member States playing a central role.

8.2.2 The EU’s Normative Conduct Is Multileveled The analysis showed that, in the area of fisheries, the EU acts at every possible level and through any possible type of fora in its own name or through its Member States. In the various chapters the book showed examples of EU conduct at global fora (where it lacked membership as well as where it enjoyed membership), at regional fora, through bilateral agreements, and through autonomous instruments. This conduct was based on many and different (exclusive, shared and complementary) EU competences. It also involved participation in international negotiations and cooperative efforts as well as the use or the threat of use of coercion through trade restrictions. This means 3

Baird 1996. ECJ, Case C-457/18 Republic of Slovenia v Republic of Croatia, 31 January 2020, EU:C:2020:65. 5 Sim (2018) Brexit: Why is everyone talking about fishing? https://www.bbc.com/news/uk-sco tland-scotland-politics-46372153. Accessed 2 August 2022. 4

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that the EU seeks to act in every possible way at its disposal on the international plane. This wide variety of conduct and fora at which it is undertaken showed to be of great importance for the EU’s normativity. In particular, the analysis showed that the EU’s conduct requires a much greater deal of coherence and consistency if it is to operate in such comprehensive fashion. This applies most strongly with respect to the coherence and consistency between what happens within the EU and what the EU requires of others. All chapters provided examples of such discrepancies. Accordingly, an important conclusion in that regard is that the EU’s conduct at all levels is important if it is to act normatively in the area of fisheries. Purely domestic matters can barely exist in such an internationalised area of action. This conclusion builds on the previous one because the Member States play an equally central role in the intra-EU matters.

8.2.3 The EU’s Normativity Requires Flexibility Through its widespread and comprehensive action in the area of fisheries, the EU has mainly sought to achieve its objectives through negotiations and cooperative action. However, the analysis showed that in doing so, the EU mainly seeks to export its norms and ensure that any negotiated result does not affect its acquis or if it does that it affects it as little as possible. This transpires from the EU’s conduct examined at every level and under any competence. Usually, the negotiating mandates that the Commission request from the Council for any international negotiation that may have law-making and standard setting consequences feature a point about the protection of the acquis. That protection is also the cornerstone of the understanding of the duty to cooperate of Member States when they act at fora the EU is not formally represented. The Member States must not act unilaterally in a manner that would affect the acquis. The same goes for the EU’s bilateral action with which it seeks to export its standards in fisheries governance through trade and fisheries access agreements. Where the EU acts autonomously it again seeks to export its own norms directly or indirectly.6 On the one hand, this conduct is understandable. The EU wants to be a leader. Its acquis is the result of difficult negotiations between many States and even carries certain democratic authority where the European Parliament has been involved. With respect to the duty to cooperate, it is a logical requirement in order to dissuade the Member States from circumventing internal EU decision-making rules and ensuring coherence and consistency in the EU representation, which is important for normativity. When the EU acts autonomously, by definition, it is its standards that are projected to the rest of the world if access to the EU market or other types of beneficial treatment from the EU is sought. However, on the other hand, this conduct does not bode all too well with the idea of normativity. As observed in Chap. 2, the universality of a norm is based on everyone voluntarily agreeing to it on the basis that the advantages outweigh any disadvantages. In creating such norms, under the 6

Bradford 2020.

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use of instruments element, negotiation and compromise needs to take place. The idea is that the eventual norm is forged by everyone in order to consider everyone’s concerns and interests. When the EU seeks to mainly export its own norms even where it formally meets the normativity requirements, it shows unwillingness to learn from the others and develop its own norms, thus assuming superiority of its own norms. Examples of this can be found in negotiating mandates the Commission has sought from the Council or coordination documents for negotiations at the International Labour Organization (ILO) or International Maritime Organization (IMO) discussed in Chap. 4, the insistence on the illegal, unreported, or unregulated (IUU) fishing Regulation standards discussed in Chap. 6, and the attempts to export EU fisheries standards through Sustainable Fisheries Partnership Agreements (SFPA), discussed in Chap. 7. Indeed, the EU norms are the result of intergovernmental negotiations and depending on the competence and legal basis are imbued with greater democratic force through the European Parliament’s involvement. However, this does not mean that any and all concerns are addressed, especially of non-European stakeholders. The EU, thus, appears unwilling to learn from the others and create truly universal norms, which damages its normativity. Even if the EU can reach an agreement with others on the international plane, if it is not willing to sacrifice its acquis, it will not act normatively. This is because its acquis is overwhelmingly based on a particular set of intra-EU interests and if the acquis is not sacrificed, the interests will not be sacrificed either and eventually any new norm will not be universal or if it becomes universal it will lack some normative foundation. Accordingly, the EU’s conduct will hold stronger normative force if it is more flexible with exporting its acquis in order to account for the circumstances of its partners in order to build and promote normatively based universal norms and principles.

8.3 Law and Normativity The book showed that law and normativity can mutually impact each other greatly. Several specific conclusions clarifying this impact can be drawn, showing how the EU’s normativity in the area of fisheries is affected.

8.3.1 Acting Normatively Has Important Legal Consequences Whether the EU acts normatively has important implications for the way law is created and applied. First, acting normatively impacts the shape and substance of the legal instruments the EU uses. When the EU acts normatively, unilateral actions involving sanctions would be the exception and, when used, would be well-founded in international law and would seek to uphold an internationally agreed norm or principle. Negotiations and multilateral agreement (whether resulting in soft-law or

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binding obligations) would be the main type of actions. Second, acting normatively impacts the way in which the EU implements and enforces those instruments. When acting normatively, the EU would implement agreements in compliance with the applicable law and it would enforce them without discrimination, i.e. without treating some of its partners less favourably than others or being more lenient internally than against its external partners. Third, acting normatively impacts the way and the degree to which the EU’s partners observe their commitments and cooperate with the EU. When the EU acts normatively it creates a trust relationship with its partners based on predictability of actions and consequences. The EU’s partners would be more willing to observe their commitments and cooperate when they see the EU is doing so as well, treats all its partners similarly and does not protect its short-term self-interest at the expense of the long-term common interests. Fourth, acting normatively impacts the ease with which the EU gathers support for legal developments internationally. Such developments may be substantive and technical rules and standards in the shape of concluding treaties or soft-law instruments as well as for the formation of customary international law. When acting normatively, the EU stands to be more convincing in seeking support than when it does not, as in situations where the EU itself is not doing what it asks others to commit to.

8.3.2 The International Law Framework Still Limits the EU’s Conduct The EU, as a non-State actor on the international plane, has faced many external challenges relating to its ability to act in its own name and separate from its Member States. It took strong efforts for the EU to secure a seat on the Third United Nations Conference on the Law of the Sea (UNCLOS III) negotiating table. Much throughout the Cold War, it was not being recognised as an interlocutor in fisheries negotiations by many in its neighbourhood from the Eastern European States (the Soviet Union and fellow members of the Council for Mutual Economic Assistance).7 The EU is still being refused membership in some organisations. In fora that discuss inter alia fisheries matters the EU is still being only an observer, albeit with enhanced status, such as the ILO, the IMO, the UN, and others. In the Bering Sea Convention the whole of the EU is trying to fit in the chair of Poland as the only contracting party Member State. These limitations, as the book showed, create important legal consequences, especially in standard setting fora such the ILO and the IMO. These legal consequences relate to the EU’s inability to formally participate in the conclusion and ratification of agreed instruments, which prevents it from supporting their speedy entry into force and even stalls or prevents EU law developments that are linked to that entry into force. These consequences damage the EU’s normativity under the use of instruments and legitimacy elements because the EU cannot fully assert itself as an actor and cannot ensure coherence and consistency. 7

Churchill 1987, pp. 557–558.

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Even where the EU manages to secure membership, its non-State nature still often transpires in the shape of some sort of participation limitations and having to share its membership with its Member States, as in the Food and Agriculture Organization (FAO). That is, as Chap. 5 explained, the EU memberships in international fora, while important for its normativity under the use of instruments element, holds an unfulfilled promise of normativity. In all these cases, due to external challenges, the EU and its Member States are constantly embroiled in coordination procedures loosing precious time and arguing who should be speaking/negotiating leaving less time for agreeing on what is to be spoken/negotiated. This damages the EU’s normativity again under the use of instruments and legitimacy elements in analogous, albeit softer, way to the situations where it lacks membership. The book, however, showed that these external challenges themselves are not as insurmountable as they may seem. Chapter 3 showed that, under the EU Treaties, the EU has what it needs to act normatively. That is, first, it has the necessary competences to act in the area of fisheries. Even where they are shared with its Member States, the EU is formally provided with enough powers to act internally and externally in order to support its fisheries objectives. Second, the EU also enjoys the necessary capacity to act internationally under international law and where it is not allowed to act directly it can do so through its Member States. Third, the EU has the necessary institutional framework to operationalise these powers. This framework importantly includes not only proper EU bodies, but also the EU Member States, which are an inextricable part of the EU.

8.3.3 The EU Member States Are Central to Addressing These Limitations Irrespective of the fact that the EU has what it needs to act normatively, as noted, it still suffers from either being excluded from participating in relevant processes or its participation is far from normatively optimal. The existence of participation limitations in some fora has opened the door for the Member States when acting in these fora as sovereign States to ignore their roles as EU Member States or when acting within the Council to focus on preserving their freedom to act at those fora by not adopting proposed positions, providing negotiating mandate to the Commission or even not agreeing to formal rules of cooperation with the Commission. These uncooperative actions of the Member States considerably affect the EU’s normativity, even though the Member States have the freedom to do so mainly because of the existence of the external participation limitations in the first place, which the Member States are also not quick to change. Thus, the reason for that suboptimal normative performance of the EU, while founded in the external challenges, is mostly related to obstructive conduct by the EU Member States. This can be seen because the EU’s normativity is damaged even where it is not facing participation limitations and is acting under its exclusive

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competences. The book showed that even where the EU enjoys strong powers of action under its exclusive competences it fails to act normatively. In particular, the Commission, as the institution representing the EU and its interests internationally, is unable to always ensure coherent and consistent EU conduct, even where exclusive EU competences are involved. The Member States influence the EU’s normativity in three main ways: through their (1) direct standing in international fora, where applicable, (2) position in the Council having to approve legislative acts or EU positions, and (3) exercise of law enforcement powers. Chapter 5 showed that at the World Trade Organization (WTO), the Commission, representing the EU, put strong efforts in the recently concluded round of negotiations on fisheries subsidies and particularly on prohibiting harmful subsidies. However, the negotiations process for the current programming period of the EU’s fisheries structural support and its result veered towards including such subsidies at the insistence of the European Parliament and the Council and contrary to the Commission’s position. This divergence seriously undermined the EU’s efforts at the WTO and damaged its normativity. This example shows that even membership cannot ensure normative action because it cannot prevent undermining actions happening elsewhere, in that case intra-EU and under a different policy (the Common Fisheries Policy). The multidimensional nature of the area of fisheries and the risks it holds for the EU’s normative action are also shown in this example. Chapter 5 also showed that, at Regional Fisheries Management Organisations (RFMO) and relevant consultations, the EU is obliged to present positions based on scientific advice and the Commission is doing so. However, there are still occasions where the negotiated results do not fully respect the scientific advice. More importantly, the EU’s international positions are not fully reflected internally. Although there is a legal obligation for all EU-managed stocks to be within Maximum Sustainable Yield (MSY) levels by 2020 (and a notable development in that direction is registered) there are still stocks that are not managed at these levels. The Member States’ enforcement record is also far from the fisheries control aspirations the EU professes externally. These internally-produced inconsistencies again undermine the EU’s normativity and are closely linked to actions or omissions of the Member States acting separately or together in the Council setting catch levels. These results show that while the EU’s normativity depends greatly on its powers to act, it is the inability to freely wield these powers that damages its normativity the most. This inability stems from the inevitable involvement of the EU Member States at different levels (acting at international fora, acting at the Council, and law enforcement). Through that role the Member States can push through their fisheries interests, leading to incoherence and inconsistency, reliance on short-term self-interest and in some cases even possible illegality in the overall EU action. Accordingly, EU competences in their current constitutional significance do not appear to be the solution to normative action for the EU. Power generally matters but even exclusive competences are ab initio limited, due to the involvement of the Member States.

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8.3.4 The EU’s Distinctiveness Helps and Hinders Normativity The EU is indeed uniquely predisposed to acting normatively because of its unique constitution, as Manners suggests. However, it is that same unique constitution—the EU law framework—that is preventing the EU from truly acting normatively. First, the EU is still facing major legal challenges in its external action due to its non-State nature. It is unable to become a member to important standard-setting organisations, which also prevents its full participation in the agreements reached in these fora. Even where it manages to obtain membership, it may have to share it with its Member States because the forum in question deals with several issues that cover different competences including competences of the Member States. Second, the strong role of the Member States in the decision-making, the policy formation of the EU, and in the implementation and enforcement of EU law hinders the formation of autonomous EU action that is not simply serving certain Member States’ interests. Third, the EU’s distinctiveness and the efforts of the EU institutions such as the Commission and the CJEU to protect it by alluding to certain autonomy may actually isolate the EU and reduce its authority. As with the European Convention on Human Rights (ECHR), that autonomy led to non-participation in the ECHR and providing additional human rights protection within the EU. Another example is the staunch protection of the acquis. Shielding it from external influences normatively isolates the EU. Even if it is accepted by others, it is highly unlikely that it was because they were convinced in its qualities and not because it was a ‘necessary evil’ for certain economic benefits to accrue.

8.4 Towards Achieving Normativity The normativity challenges that arise from the EU and international law frameworks raise an even greater question of whether normativity is nevertheless achievable in practice for the EU. This book showed that for the EU to act normatively it needs first and foremost to be supported by its Member States because, while it is still a nonState actor, it can never fully act to their exclusion and independently from them. That is, the one true cure for the EU’s normativity is not harnessing more State-like power to rise against other influential third States. Instead, the cure is to look inside and try to convince the Member States to support a normative course of action with all their conduct. Indeed, if the EU cannot do that, how is it supposed to convince the rest of the world? This task is not just on the Commission or the European Parliament. It is also on the individual Member States to convince each other. In order to do that, the EU as a whole, EU institutions and Member States need to enjoy strong mutual trust and solidarity and should treat all relevant issues as EU-wide problems and solve them as such. For example, efforts to achieve sustainable fishing should be equal

References

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in the North and in the South. Where (policy, implementation, etc.) failures materialise, the Commission and all other Member States should exert pressure as well as extend helping hand. If such spirit of cooperation, solidarity and taking seriously the interest of the other is lacking in between such closely-tied and integrated group of States, how can the EU mount a normative face for its international partners? If this proves impossible, the normative objectives in the treaties, secondary law and policy documents may even appear unrealistically ambitious and unachievable and, thus, redundant and putting excessively high expectations that the EU is not currently set to meet. However, this author remains an optimist that the EU as a whole can find it in itself to raise above self-interests and act truly normatively!

References Baird R (1996) Political and Commercial Interests as Influences in the Development of the Doctrine of the Freedom of the High Seas. Queensland University of Technology Law Journal. DOI: https:// doi.org/10.5204/QUTLR.V12I0.425 Bradford A (2020) The Brussels Effect: How the European Union Rules the World. Oxford University Press, Oxford. DOI: https://doi.org/10.1093/OSO/9780190088583.001.0001 Churchill R (1987) The EEC’s Contribution to “State” Practice in the Field of Fisheries. In: Brown E, Churchill R (eds) The UN Convention on the Law of the Sea: Impact and Implementation: proceedings Law of the Sea Institute nineteenth annual conference. Law of the Sea Institute, Honolulu, pp 557–568 European Commission (2019) EU as a global leader: The European Green Deal. https://ec.europa. eu/commission/presscorner/detail/en/fs_19_6721. Accessed 2 August 2022 Guggisberg S (2017) Is Europe Ready to Lead on International Fisheries Governance? https://www. wwf.org.uk/sites/default/files/2017-06/Is%20Europe%20Ready%20To%20Lead%20On%20I nternational%20Fisheries%20Governance.pdf. Accessed 2 August 2022 Peterson J (2008) Jose Manuel Barroso: political scientist, ECPR member. European Political Science 7:64–77 WWF (2015) Fair fisheries futures: Why the EU must lead on sustainable international fisheries. http://assets.wwf.org.uk/downloads/3401_internationalfisheriesonline.pdf. Accessed 2 August 2022

Index

A Access agreement, 62, 134, 143, 194–196, 198, 199, 201, 204, 208, 213–215, 217, 218, 220, 221, 233 Antarctic Fisheries cases, 55–57, 87, 120, 124–126, 148 Area of fisheries, 1–6, 9–11, 17, 18, 22–24, 31, 34, 35, 39–43, 45, 48, 52–54, 56, 57, 61–64, 67–70, 76, 78, 81, 84, 95, 107, 115, 116, 120, 126, 132, 143, 148, 157, 158, 194, 221, 229–234, 236, 237 Autonomous measure, 11, 43, 157

B Baltic Sea, 130, 199 Basic Regulation, 41, 52, 53, 63–65, 67, 69, 78, 79, 104, 118, 127, 128, 130, 131, 143–147, 201, 202, 204, 205 Bering Sea Convention, 119, 235 Black Sea, 130 Bluefin Tuna, 127, 129, 130, 132, 133, 176 Blue whiting, 128 Brexit, 131, 220, 232

C Capacity, 10, 27, 32, 39, 40, 42, 45, 61, 62, 67, 70, 76, 84, 102, 118, 125, 126, 131, 135–137, 139, 142–148, 164, 196, 202, 203, 236 Cape Town Agreement (CTA), 82, 94, 95, 98, 103 CETA, 142 Changes in the Geographical Distribution (CGD), 181, 184, 186

Charter of Fundamental Rights (CFR), 217, 218 Climate change, 56, 67, 79 Code of Conduct for Responsible Fishing (CCRF), 3, 160, 161, 164, 179 Coercive action, 10, 11, 25, 28, 35, 41, 65, 157, 158, 163, 167, 168, 194 Coherence, 9–11, 17, 19, 28, 29, 33, 34, 41, 47, 48, 53, 59, 65, 67–69, 75, 76, 80, 92, 97, 99, 115, 116, 125, 126, 128, 131, 138, 144, 157, 162, 163, 170, 174–176, 182, 185, 187, 199, 200, 215, 219, 233, 235 Commission for the Conservation of Antarctic Marine Living Resources (CCAMLR), 118, 120, 124, 125, 159 Committee on Fisheries (COFI), 83, 102, 123 Common Commercial Policy (CCP), 11, 41, 53, 57, 58, 105, 141, 144, 148, 157, 158, 165, 175 Common Fisheries Policy (CFP), 6, 11, 40, 41, 44, 45, 50–59, 63, 65–70, 78, 79, 94–96, 104–106, 119, 122, 124, 127, 128, 132–134, 136, 141–146, 148, 149, 157, 158, 160, 175, 176, 193, 194, 198, 200–202, 204, 211, 220, 221 Common interest, 31, 32, 64–66, 138, 148, 174, 177–179, 184, 235 Common Market Organisation, 52 Common Transport Policy (CTP), 41, 60, 61 Comprehensive and Economic Trade Agreement, 142 Consistency, 9–11, 17, 19, 28, 29, 33, 34, 41, 47, 48, 65, 67–69, 75, 76, 80, 89,

© T.M.C. ASSER PRESS and the author 2023 M. Vatsov, Fishing Power Europe, Global Europe: Legal and Policy Issues of the EU’s External Action 3, https://doi.org/10.1007/978-94-6265-583-6

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242 92, 97, 100, 115, 116, 126, 128, 138, 144, 157, 162, 163, 166, 170, 174–176, 182, 185, 187, 215, 219, 233, 235 Convention for the Conservation of Southern Bluefin Tuna (CCSBT), 119 Corporate sustainability, 169 Countermeasures, 172, 184 Court of Justice of the European Union (CJEU), 2, 20, 84, 87, 92, 123–126, 133, 141, 164–166, 186, 207, 219, 231, 238

D Development Cooperation Policy (DCP), 39, 41, 58, 59 DG MARE, 120, 121, 137, 175 Distant Water Fishing Fleet (DWFF), 197, 198 Draft Articles on the Responsibility of International Organisations (DARIO), 216

E Eastern Atlantic, 127, 130 Environmental policy, 9, 32, 39, 41, 55–58, 60 EU institutional framework, 45 European Convention on Human Rights (ECHR), 20, 238 European Court of Justice (ECJ), 211–215, 217–219 European Fisheries Control Agency (EFCA), 44, 132, 134 European Fisheries Fund (EFF), 144, 145 European Maritime Fisheries and Aquaculture Fund (EMFAF), 146, 147 European Maritime Fisheries Fund (EMFF), 106, 107, 133, 143, 145, 146 Exclusive Economic Zones (EEZ), 2, 177, 179, 180, 194–199, 210, 213, 214

F FAO Compliance Agreement case, 48 Faroe Islands, 120, 178, 180–186, 199 Fisheries Partnership Agreements (FPA), 200, 201, 203, 205, 207, 211–214

Index Fisheries subsidies, 10, 115, 116, 138–144, 147, 160, 237 Fisheries Subsidies Agreement, 139, 140, 147 Fishing Power Europe, 1, 3 Flag State, 45, 54, 78, 131, 161, 168 Food and Agriculture Organization (FAO), 3, 48, 54, 62, 79, 80, 82, 83, 101, 102, 117–119, 122–124, 135, 139, 141, 148, 159–161, 164, 172, 200, 236 Free Trade Agreement (FTA), 57, 58, 164–166, 186 Front Polisario, 208, 209, 211–214, 217, 219, 221

G General Agreement on Tariffs and Trade (GATT), 172, 173, 175, 183 General Court (GC), 207, 211, 212, 217–219 General Fisheries Commission for the Mediterranean (GFCM), 102, 120 Generalised System of Preferences (GSP), 96, 169 Global record, 82, 83, 101, 102 Greenland, 120, 178, 181, 183, 185, 186

H Herring, 130, 178, 183–185 High seas, 3, 51, 118, 121, 123, 126, 134, 136, 160, 177, 214, 215

I Iceland, 102, 178, 181–183, 185, 186, 197 ICES, 128, 130, 131, 182, 197 Idée force, 6 ILO case, 46, 84 IMO I case, 46, 87 IMO II case, 83, 87, 88 IMO number, 101, 102, 106 Indian Ocean, 199 International Commission for the Conservation of Atlantic Tunas (ICCAT), 121, 127, 129, 132, 133, 136, 137, 161–163, 176 International Convention on Standards of Training, Certification and Watchkeeping for Fishing Vessel Personnel (CSTCW-F), 82, 89–91, 94–96, 99

Index International Court of Justice (ICJ), 173, 180, 197, 209, 217 International Labour Conference (ILC), 81, 85 International Labour Organization (ILO), 31, 46, 49, 60, 62, 75–85, 88, 89, 91–93, 96–98, 100, 101, 103–106, 160, 168, 234, 235 International Maritime Organization (IMO), 3, 10, 46, 61, 62, 75, 76, 79–96, 100–103, 105, 106 International Plans of Action (IPOA), 3, 160–162, 172 In the interest of the EU, 81, 87, 94, 137, 175 IUU fishing, 11, 32, 34, 52, 77, 79, 101, 106, 139, 143, 158–164, 167–178, 182, 184, 187, 205, 208, 213–215

K Kramer case, 2, 50, 51, 53, 64, 65

L Labour Organization (ILO), 3, 10 Landing obligation, 52, 133–135 Legality, 9, 17, 18, 26, 28–31, 33, 34, 65, 66, 93, 106, 121, 162, 164, 170, 172–175, 179, 182–184, 187, 194, 205, 211, 213, 215, 217–219 Legitimacy, 9–11, 17, 18, 20, 26, 28–35, 62, 65, 75, 97, 107, 115, 116, 126, 131, 136, 138, 143, 144, 149, 157–159, 162, 166, 167, 170, 178, 182, 186, 187, 193, 194, 202, 207, 215, 230–232, 235, 236 Long Distance Fleet Advisory Council (LDAC), 44, 106

M Mackerel War, 178, 180–183, 186, 187, 204 Management of fish stocks, 10, 115, 117, 126, 138, 164 Marine Protected Areas (MPA), 124 Maximum Sustainable Yield (MSY), 127, 129, 130, 196, 237 Mediterranean, 102, 127, 129–131, 137, 176 Membership, 3, 10, 11, 41, 60, 62, 75, 76, 81–84, 107, 115, 116, 118, 119, 121–125, 137, 148, 158, 229, 232, 235–238

243 Migratory stocks, 121, 177 Mixity, 50, 54, 55, 57, 126 Morocco, 203, 206–221 Mutual benefit, 201, 204, 208 N Non-government Organisations (NGO), 45 Non-Self-Governing Territories (NSGT), 209, 215 Normative Power Europe (NPE), 1, 6–9, 17–19, 21, 27–31, 34, 35, 40, 62, 69, 70, 76, 230 Northern Atlantic, 130 North Pacific Fisheries Commission (NPFC), 119 North Sea, 130, 180 Northwest Atlantic Fisheries Organisation (NAFO), 62, 134, 136, 137 Norway, 128, 178, 181, 185, 186, 199, 203 O Observer, 2, 3, 10, 59, 61, 81, 82, 88, 90, 100, 122, 148, 164, 235 On behalf of the EU, 45, 85, 87, 91, 124, 164, 186, 232 Opinion 1/94, 49, 141 Opinion 2/15, 57, 164–166 Organisation for Economic Co-operation and Development (OECD), 3, 139, 160 P Pacific Ocean, 121, 168 Pacta tertiis, 213 Participation limitations, 9–11, 17, 18, 22, 34, 41, 45–47, 59, 61, 62, 75, 76, 80, 89, 92, 115, 116, 118, 120, 122, 123, 138, 141, 148, 193, 194, 222, 236 PFOS case, 68 Port State, 3, 160, 161, 170 Port State Measures Agreement (PSMA), 3, 160, 162, 164, 168, 170, 179 Pouvoir, 7 Protocol to the Forced Labour Convention (PFLC), 91–94, 101 Puissance, 7 R Red card, 168, 171 Regional Economic Integration Organisation (REIO), 103, 104, 119

244 Regional Fisheries Management Organisation (RFMO), 3, 10, 44, 45, 54, 62–64, 69, 83, 102, 106, 116–122, 124, 126–129, 131–138, 148, 158, 159, 161–164, 167, 172, 173, 179, 180, 237 S Safety, 41, 46, 49, 60, 61, 76–85, 94, 97, 98, 105, 106, 173 Saharawi, 207, 209, 210, 215, 216, 218, 219 Scientific, Technical and Economic Committee for Fisheries (STECF), 44 Self-determination, 209, 210, 212, 215, 219 Self-interest, 9, 11, 17, 19, 28, 29, 31, 32, 131, 138, 148, 149, 167, 174, 177, 184, 187, 197, 206, 220, 221, 229, 235, 237, 239 Sincere cooperation, 45–47, 68, 81, 84, 85, 87, 91, 92, 98, 100 Social policy, 18, 32, 39, 41, 59–61, 90, 91, 93, 97 Soft-law, 3, 7, 23, 81, 82, 117, 135, 234, 235 South Pacific Regional Fisheries Management Organisation (SPRFMO), 62, 121, 136, 137 Straddling stocks, 177, 180 Subsidies, 10, 31, 32, 116, 135, 136, 138–140, 142–144, 146–148, 161, 205, 237 Sustainable Development Goals (SDGs), 58, 59, 63, 139, 147, 160 Sustainable Fisheries Partnership Agreements (SFPA), 201–208, 212, 222, 234 Sustainable fishing, 4, 22, 24, 31, 52, 63, 67, 78, 79, 102, 117, 126, 144, 158, 163, 164, 174, 179, 184, 185, 187, 195, 196, 200, 231, 238 Sustainable Fishing Regulation (SFR), 159, 167, 177–185, 187 Swordfish War, 121 T Tarantelo, 129, 132, 176 Thailand, 101, 105, 106, 168, 169, 173 Third United Nations Conference on the Law of the Sea (UNCLOS III), 2, 235 Torremolinos Protocol, 82, 98, 103

Index total allowable catch (TAC), 22, 117, 126, 128–131, 184, 185, 204 Trade and Sustainable Development (TSD), 104, 164–166 Transboundary stocks, 177, 179 Treaty on European Union (TEU), 43, 46, 61, 63–68, 88, 165, 201, 206, 212 Treaty on the Functioning of the European Union (TFEU), 40, 43, 44, 48–53, 55–61, 63, 66, 67, 84, 85, 88, 95, 96, 124, 126, 130, 133, 137, 141, 145, 146, 165, 218

U Ukraine, 119, 220 Unilateral measure, 158, 167, 172, 187 Unique Vessel Identifier, 101, 102 United Nations Convention on the Law of the Sea (UNCLOS), 2, 3, 51, 54, 61, 62, 65, 78, 117, 121, 164, 177, 179–184, 194–196, 200, 202, 206, 210, 213 United Nations Environment Programme (UNEP), 3, 83, 139 United Nations Fish Stocks Agreement (UNFSA), 3, 54, 61, 62, 65, 164, 179–181, 184 United Nations General Assembly (UNGA), 3, 59, 64, 77–80, 98, 101, 159, 160, 162, 179, 209, 210, 213, 215 Universality, 9, 17–23, 26, 28–31, 35, 62–64, 66, 76, 77, 79, 117, 138, 140, 149, 159, 164, 167, 178, 179, 187, 194, 195, 230, 233 Universalizable, 21, 25, 26, 31, 35, 64, 79, 83, 104, 118, 140, 142, 158–161, 178, 186, 187, 196, 230 UN Security Council, 160, 209, 210, 215 Unsustainable fishing, 11, 130, 157, 158, 172, 186, 187, 196

V Vessel Monitoring Systems, 82 Vienna Convention on the Law of the Treaties (VCLT), 165, 166, 213

W Western Sahara, 11, 193–195, 203, 204, 207–222, 232

Index Western Sahara Campaign (WSC), 211, 213–215, 217 Work in Fishing Convention (WFC), 80, 81, 91, 93, 96–99, 101, 103–105 Working conditions, 76–78, 83, 97, 98, 105, 106 World Trade Organization (WTO), 3, 10, 62, 106, 115, 116, 139–144,

245 146–148, 160, 162, 172–175, 183, 184, 205, 237

Y Yellow card, 168, 171