Helga Law Journal - 01.01.2021, Blaðsíða 87

Helga Law Journal Vol. 1, 2021
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Helga Guðmundsdóttir
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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