Helga Law Journal - 01.01.2021, Page 88

Helga Law Journal Vol. 1, 2021
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Helga Guðmundsdóttir
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Islands, Norway, Russia, Greenland and Iceland met to consult on the
management of mackerel. However, the accession to the 2014 Management
Arrangement of Iceland and Greenland was consistently denied by the three
parties to the Arrangement. In 2019, the practice continued when the EU, Norway
and the Faroe Islands negotiated their current agreement, taking the opportunity
to express their regrets over Iceland’s, Greenland’s and Russia’s increases of their
unilateral quotas in the previous year.50 As a result, quotas have continued to be
unilaterally set and exceeding scientific advice, with no foreseeable end in sight.
3.2 The Implications of the Failure to Resolve the Mackerel
Dispute
The impasse in the negotiations has resulted in unilateral quotas and non-inclusive
management agreements, in turn arguably violating both the precautionary
approach and the obligation to seek to reach an agreement, which must be
conducted in good faith. As a consequence, the best scientific advice available, i.e.,
that of ICES, has been significantly exceeded in the past several years. The parties
have all acknowledged the fact that the stock is being over-exploited, but they fail
to take responsibility for their own lack of compliance with their obligation to
conserve the stock in their respective EEZs. The fact of the matter is, however,
that each and every party has the obligation to conserve and manage the stock
within its respective EEZ, an obligation the fulfilment of which necessarily calls
for the collaboration of the parties and due consideration for each other’s interests
in order to devise a durable agreement. Through the course of the past decade it
has, however, become evident that their chosen method of dispute settlement –
negotiation – has failed to settle the dispute. With so much at stake, it is imperative
that the parties seek other means of dispute settlement in order to put an end to
the risk the stock is facing and to comply with their obligations under international
law.

50 ‘Agreed Record of Conclusions of Fisheries Consultations Between the European Union, the Faroe
Islands and Norway on the Management of Mackerel in the Northeast Atlantic for 2020, London, 17
October 2019,
<www.regjeringen.no/contentassets/228f10ce51f049518aaff74b742782c7/makrellavtale.pdf>
accessed 23 October 2021.
In each year that followed, multiple formal and informal negotiations were
held unsuccessfully and the parties continued to set unilateral quotas as they failed
to reach a mutually acceptable agreement on the allocation of the TAC, resulting
in complete disregard of the ICES scientifically recommended catches. In
September 2013, the EU adopted a regulation allowing trade sanctions against
States which it considered to be conducting unsustainable fisheries.45 The
European Parliament’s press release stated that the regulation (which imposed
import bans on fish products from unsustainably fished stocks of common interest
to the EU) should discourage what was referred to as the ‘massive overfishing of
mackerel by Iceland and the Faroe Islands’.46 The Governments of Iceland and
the Faroe Islands issued statements questioning the legality of such sanctions,
citing the joint responsibility of all parties involved in the overfishing and
cautioning against blaming only two parties for unsustainable fisheries. They
implied further that such measures would not solve the problem at the heart of
the matter – i.e., the impasse in reaching an agreement on each party’s share of the
mackerel stock.47
In the autumn of 2013, the EU and Iceland reached an agreement, subject to
the approval of the other parties, entitling Iceland to a long-term quota of 11.9%
of the mackerel TAC, and a quota of no less than 123,000 tonnes for the years
2014 and 2015. However, in March 2014, the delegations of Norway, the EU and
the Faroe Islands signed a new management arrangement to supersede the 2008
management plan, i.e., the Agreed Record on a Fisheries Arrangement between
the European Union, the Faroe Islands and Norway on the Management of
Mackerel in the North East Atlantic from 2014 to 2018 (‘2014 Management
Arrangement’). Iceland was not informed of the ad hoc agreement, under which
the EU, Faroe Islands and Norway claimed most of the quota, setting aside a share
of 15.6% of the TAC to be shared by other States, including Iceland, Greenland
and Russia.48 Based on this arrangement the EU and Norway were allocated the
entire share of the TAC as recommended by ICES at that time and the quotas for
the Faroe Islands and other parties were then added, thus yet again exceeding
scientific advice.49
The 2014 Management Arrangement coordinated the management of the
mackerel stock until 2018. In each year, the delegations of the EU, the Faroe

45 ‘Greinargerð unnin fyrir sjávarútvegs- og landbúnaðarráðherra’ (2012), Mackerel Working Paper 16.
46 ‘Stop Overfishing of Mackerel: MEPs Back Sanctions Against Third Countries
(European Parliament News, 12 September 2012) <www.europarl.europa.eu/news/en/news-
room/content/20120907IPR50823/html/Stop-overfishing-of-mackerel-MEPs-back-sanctions-
against-third-countries> accessed 23 October 2021.
47 ‘Mackerel Fishing Dispute Questions & Answers’ (statements by the Icelandic Ministry of Industry
and Innovation, on file with author).
48 2014 Management Arrangement, article 7(3). ‘The EU, the Faroe Islands and Norway Take Full
Responsibility of Overfishing’ (Undercurrent News, 13 March 2014)
<www.undercurrentnews.com/2014/03/13/iceland-eu-faroe-islands-norway-take-full-responsibility-
for-overfishing/> accessed 23 October 2021.
49 ‘The EU, the Faroe Islands and Norway Take Full Responsibility of Overfishing’.