Helga Law Journal - 01.01.2021, Page 86

Helga Law Journal - 01.01.2021, Page 86
Helga Law Journal Vol. 1, 2021 88 Helga Guðmundsdóttir 89 mackerel stock as the mackerel distribution within Iceland’s EEZ and adjacent waters was very limited and Icelandic fisheries were more focused on other species.38 Indeed, prior to 2007, the mackerel fisheries undertaken by Iceland amounted to less than 0.1% of the total catch.39 Fast-forwarding almost a decade, the radical changes in the mackerel stock’s distribution as of 2008 had a large impact on the fisheries in the area. In particular, Icelandic catches within its EEZ increased by almost 7,000% (from a mere 1,700 tonnes in 2006 to 112,000 tonnes in 2008). In 2009, and following this significant increase in catches, Iceland for the first time complied with is obligation under article 61 to determine the TAC of the stock within its EEZ.40 Despite these radical changes in the migration of the mackerel stock and the resulting increase in fisheries in Icelandic waters, the other interested parties, i.e., Norway, the Faroe Islands and the EU, were reluctant to admit Iceland to their negotiations on the management of the stock. Indeed, in 2008, when the three parties negotiated a new management agreement to supersede the 1999 ad hoc agreement (the “2008 management plan”), they rejected Iceland’s requests to be accepted as a relevant coastal State with regard to mackerel fisheries, arguing that the stock did not, or did only temporarily, occur in Iceland’s EEZ.41 In the following year, Iceland was invited to take part in the negotiations, albeit not with the rights of a ‘relevant coastal State’. This offer of partial participation was rejected by the Icelandic Government which consequently declined to attend a special meeting convened in November 2009 to discuss the (arguably failing) mackerel management for 2010. Following the meeting, however, Iceland was finally invited to take full part in the negotiations on the mackerel management going forward.42 That same year, the Faroe Islands – citing evidence of increased distribution of the mackerel in its EEZ – withdrew from the 2008 management plan and claimed a quota three times bigger than what it had been allocated under that plan.43 These actions were to the great dismay of EU and Norwegian representatives and stakeholders, who claimed that Iceland and the Faroe Islands were responsible for overfishing the stock.44 relevant coastal State on account of its real interest in the fisheries due to the mackerel occurring within its EEZ, albeit on a very small scale at that time. 38 Hotvedt (n 32) 27, 53. 39 Trond Bjørndal and Nils-Arne Ekerhovd, ‘Management of Pelagic Fisheries in the North East Atlantic: Norwegian Spring Spawning Herring, Mackerel and Blue Whiting’ (2013), 13 SNF Working Paper 6. 40 Helgi Áss Grétarsson, ‘Um stjórn veiða á kolmunna og makríl: Hver er réttarstaða Íslands í makríldeilunni?’ (2010) Þjóðarspegillinn 37; ‘Mackerel in the Northeast Atlantic, Advice on Widely Distributed and Migratory Stocks’ (2013) ICES Book 9 12. 41 Grétarsson (n 40) 38; ‘2012 Environmental Report’ (Norwegian Seafood Federation 2013) 17 <https://sjomatnorge.no/app/uploads/2014/04/Environmental_report_2013_EN.pdf> accessed 23 October 2021. 42 ‘Greinargerð unnin fyrir sjávarútvegs- og landbúnaðarráðherra’ (2009) Mackerel Working Paper 21. 43 The 2008 management plan called for the typical allocation of 5% of the stock to the Faroe Islands with the bulk of the TAC allocated to the EU and Norway. Hotvedt (n 32) 25. 44 Grétarsson (n 40) 39; Weissenberger (n 29) 3. including an increase in the stock size and changes in the physical environment, namely higher temperatures in the waters. These environmental influences caused the stock to spawn and feed further in the north-west of the North East Atlantic Ocean, as far as east Greenlandic waters.33 Because mackerel is both a transboundary and straddling stock, its proper management necessarily calls for the collaboration of the parties which fish the stock within their respective EEZs and on the high seas. The management of the mackerel on the high seas has been within the mandate of a regional fisheries organization, the North East Atlantic Fisheries Commission (“NEAFC”),34 while the fisheries within the EEZs of the States bordering the North East Atlantic have been governed by ad hoc management agreements. The value of the mackerel stock and the immense interests vested in the fisheries have played a large role in the impasse in the negotiations on the management of the mackerel fishery, with all parties desiring a large share of the stock and governments facing pressure from stakeholders within their constituencies to drive a hard bargain. The parties’ approach to resolving the dispute, i.e., negotiating it on their own terms instead of subjecting it to third-party settlement, has proven unsuccessful. 3.1 The Emergence of the Mackerel Dispute Since the year 1999, Norway, the Faroe Islands and the EU on behalf of its Member States have been entering into ad hoc agreements for the management of the mackerel stock, determining the TAC and its allocation between the parties. The TAC and its allocation have been determined on the basis of the historical catch and in accordance with the advice given by ICES.35 In those early days, Norway, the Faroe Islands and the EU considered themselves the only so-called relevant coastal States required to (seek to) cooperate under article 63 because the stock’s distribution was largely within their EEZs.36 While Russia and Iceland both objected to the 1999 ad hoc agreement and the NEAFC rules based on it for different reasons,37 this did not create serious concerns for the management of the 33 ‘Mackerel in the Northeast Atlantic, Advice on Widely Distributed and Migratory Stocks’ (2013), ICES Book 9 2 – 3; ‘Stock Annex: Mackerel’ (2017) <www.ices.dk/sites/pub/Publication%20Reports/Stock%20Annexes/2017/mac.27.nea_SA.pdf> accessed 23 October 2021. 34 The Contracting Parties to NEAFC are the EU, Iceland, Norway, Russia and Denmark in respect of the Faroe Islands and Greenland, all of which are currently involved in the mackerel fisheries. ‘About the Work of the NEAFC’ (NEAFC), <www.neafc.org/about> accessed 23 October 2021. 35 ‘Mackerel’ (2013), Seafish Industry Briefing Note January 2013 <www.scribd.com/document/467997919/seafishguidancenote-mackerel-201301> accessed 23 October 2021. 36 Peter Ørebech, ‘The ‘Lost Mackerel’ of the North East Atlantic: The Flawed System of Trilateral and Bilateral Decision-making’ (2013) 28 International Journal of Marine and Coastal Law 343, 347. 37 Russia’s objections were based on its limited allocation of the stock in the high seas where it fishes the stock, while Iceland considered that it should be allowed to participate in the negotiations as a
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