TED Case Studies


UK and Spain Fishing Dispute


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          CASE NUMBER:          74 
          CASE MNEMONIC:      UKCOD
          CASE NAME:          UK-Spain Cod Fishing Dispute

A.        IDENTIFICATION

1.        The Issue

     Since 1983 the European Union has utilized a Common
Fisheries Policy (CFP) in an attempt to conserve the decreasing
stocks of fish (especially in the North Atlantic) for its
member states.  This policy hopes to conserve stocks and still
provide the fishing industry with product.  The policy has
primarily taken the shape of fish quotas called Total Allowable
Catches (TACs) which member states can bring to port and
attempts to decrease and decommission some of the EC's fishing
fleets.  In fact, the TACs have decreased dramatically since
1983.  EC members recognize that in order to ensure long-term
stocks, it is vital to reduce the TAC's.  However, in the
short-term, when the European Union's economy is in stagnation,
most of the member states are fighting for a bigger share of
the TACs.  Efforts to support the U.K. fishing industry in the
face of the decreased TACs created a dispute over fishing in
the territorial waters of the United Kingdom by Spanish fishing
boats.

2.        Description

     Origins of the Common Fisheries Policy date back to the
1970's when European countries decided to extend their
exclusive fishing zones (EEZs) from 12 to 200 miles offshore. 
The extension of zones was a reaction to other nations, such as
Canada, who had extended their zones as well, thus barring open
fishing by other nations in those waters (see CANCOD case). 
Fearing that foreign fleets would now begin to fish EC waters,
the EC argued the extension of zones was necessary:

     "in order to prevent those non-Union fleets which had
     been denied access to the exclusive fishing zones of
     non-Union countries from switching their activities
     into Community waters, which would have had
     disastrous effects on the fish stocks which thrive
     there and on the Community fleet."  

     With fishing zones extended to 200 miles, the EC
determined that conservation measures would have to be
undertaken by the EC to ensure that over fishing by EC
countries would not destroy the fish stocks.  As mentioned
before, quotas, or Total Allowable Catches, for EC fishermen
have been the major mechanisms in the effort to conserve fish
stocks, especially in the North Atlantic.

     At the same time, however, the EC wants to sustain its
fishing industry that employs over 300,000 fishermen.  Even
though the EC is a net importer of fish products, there are
several countries such as Spain that are significant exporters
of fish and fish products.  Most proposals for TACs by the
Commission state clearly that "if adopted, (this proposal) will
have a short-term adverse impact on the fishing enterprises
concerned."  The proposed reduction of fishing possibilities
is, however, necessary to safeguard the fishery for the
future.  The short-term pain of such policies is well-
acknowledged by fishermen and government officials in the EC.  

     On paper, quotas seem to be an effective way of
controlling over fishing and conserving stocks for the fishing
industry.  However, over fishing has continued.  According to
the World Wildlife Fund, the TAC "meets the political objective
of sharing fish among countries, but does not protect European
fish stocks."  The report goes on to say that many white
fish, such as cod and haddock, swim in the same waters. 
Several migratory species may be caught by fisherman from many
countries.  Even though one species' quota may be met,
fishermen continue to fish the waters for the other species. 
In this way, quotas can be exceeded for some types of white
fish.  

     In order to avoid breaking the quota, fishermen often
throw back the extra fish, which usually die.  A 1990 Dutch
study on Fisheries concluded that "for every ton of fish for
consumption, two to four tons of dead fish were tipped
overboard."  In addition, the report says that "of the 103
TACs set by the Commission for 1991, only 39 were calculated
scientifically, based on fish populations and ages.  The rest
were based on guesses or past fishing practice."  

     TACs have not been efficient in conserving fish stocks. 
In fact, decreasing TACs reflect this partial failure in
conservation.  In 1991, the fishing ministers settled on TACs
of 100,000 tons for cod and 60,000 for haddock in the North
Sea.  "These figures compare with 250,000 tonnes for cod and
260,000 for haddock in 1986."  With the decreasing quotas,
member nations' trade potential has decreased as well. 
Furthermore, several EC countries are attempting to restrict
fishing by other EC nations within 200 mile zones.   

     One example of this is Spain's demand that France open up
its waters to fish for white fish.  With the addition of Spain
to the European Community, the sixth-largest fishing fleet in
the world, quotas had to be re-prioritized.  Shortly after
entering the EEC, a Spanish fleet of over 250 boats blockaded
the Franco-Spanish border for three days to demand greater
access to French waters.  Finally, after three days, the fleet
dispersed, when the French and Spanish governments agreed to
continue talks on the problem.  The dispute indicated that with
decreasing quotas, there are entirely too many ships for too
little fish.  In fact, "while stocks appear to be falling,
measures to control the fleet have failed."

     Responding to the decreased quotas in the EC, in 1988 the
United Kingdom enacted the Merchant Shipping Act.  The Act
stipulated that 75 percent of all ships and fishing industries
operating in UK waters had to be British-owned.  In addition,
75 percent of the crews on all ships registered in the UK had
to also be a citizen.  "The act had been designed to stop boats
from Spain and other countries `quota-hopping' by registering
under the British flag and using the UK's community fishing
quotas."  For many years, the British have complained about
Spanish "poaching" of British quotas.  By registering under the
U.K. flag, the Spanish were unlawfully fishing for part of the
quota set aside by the EC for the United Kingdom.  By doing so,
the Spanish, the U.K. claimed, had an adverse effect on their
fishing industry.  

     The Spanish, on the other hand, claimed that they had not
been poaching or "quota-hopping" in U.K. waters.  Even though
each EC country has had exclusive fishing zones (200 miles from
shore) since 1977, an agreement between the EC and Spain had
allowed for several Spanish boats to be registered under the
British flag.  The Spanish claimed that "many of the vessels
they operated had been acquired from British fishermen who had
ceased operations."  Therefore, the boats had a right to be
fishing in U.K. waters. 

     Spanish fishermen are desperate to catch more fish and
move into other waters.  Because the stocks in their own EEZ
have been severely depleted, Spanish fishing operations have
spread all over the world.  Their regular grounds include
Canada and Morocco, and they had been forced out of Namibian
waters earlier in 1991.  The Spanish also claimed the British
were illegally closing off the U.K. EEZ to Spanish ships, which
had been operating there for many years, because of
nationality.  Thus, the Merchant Shipping Act acts as a
protectionist barrier to the EC fishing trade.

     The Spanish took the United Kingdom to the European Court
of Justice.  On July 25, 1991, the European Court of Justice
sided with Spain in this instance.  The ECJ ruled that some
parts of the Merchant Shipping Act were contrary to EC law. 
According to the Court, "the UK could not demand strict
residence and nationality conditions before granting vessels
British registration."  However, the Court ruled further
that the Merchant Shipping Act was within the law to insist
that companies registered in Britain should have "bona fide"
relations with the government of Great Britain.  The Spanish,
after winning, said that they were going to sue the British
government for compensation of the estimated 20 million pounds
that the act had cost Spanish fishermen.  

     Many British Members of Parliament (MPs), as well as
fishermen, understood the ruling to be an indication of what
was to come in the future for the British fishing industry
under decreased quotas.  Some believed that thousands of
British fishermen would be out of work if boats from other
nations were to be able to continue fishing for Britain's
quotas.  "MP's with fishing interests said the ruling `drove a
coach and horses' through the EC fisheries quota policy,...`If
boats from other countries can get on to our register, they
fish against our quotas to the possible ruination of our own
fishermen.'"

3.        Related Cases

     TURBOT case
     CANCOD case
     LOBSTER case
     SALMON case
     SHETLAND case
     PACTUNA case
     ECDRIFT case

     Keyword Clusters         

     (1): Trade Product            = FISH
     (2): Bio-geography            = OCEAN
     (3): Environmental Problem    = Species Loss Sea [SPLS]

4.        Draft Author: James Benseler

B.        LEGAL Clusters

5.        Discourse and Status: DISagreement and COMPlete

     The issue involved a disagreement regarding whether or not
the Merchant Fishing Act's restrictions towards Spanish
fishermen was legal.  This disagreement was resolved in the
European Court of Justice which sided with Spain.

6.        Forum and Scope: EURCOM and MULTIlateral

     EFTA and EC countries are attempting to create a European
Economic Area (EEA) of nineteen countries.  A major stipulation
of the possible EEA will be that EFTA countries adopt EC trade
laws.  Thus, these countries will be subordinate to ECJ
decisions as well.

7.        Decision Breadth: 12 [EURCOM]

8.        Legal Standing: TREATY

     The amount of fishing in EC waters is determined by a
formula known as Total Allowable Catches or (TACs).  The TACs
limit the number of fish that each country can fish each year. 
These catches serve as a quota which are supposed to also
reflect the importance of fishing for each EC nation.  In other
words, those countries which depend on fishing more vitally
will be allowed a higher percent of the quotas.  The Common
Fisheries Policy of 1983, which was amended in 1991, stipulated
that the TACs would be reevaluated by the Commission of the
European Communities annually by scientific methods.  

     TACs have direct effects on many aspects of EC fishing
industries.  Fishermen are losing jobs because they cannot
catch as many fish as in previous years and because boats are
being decommissioned.  EC deficiency payments are made to the
fishermen in both cases in order to reimburse them for revenue
lost through quotas, but these funds do not cover all potential
losses.  In addition, fish packaging industries, transportation
industries, and other industries are indirectly effected by
lowered TACs.

C.        GEOGRAPHIC Clusters

9.        Geographic Locations

     a.   Geographic Domain : ATLANTIC
     b.   Geographic Site   : Eastern Atlantic [EATL]
     c.   Geographic Impact : UK

10.       Sub-National Factors:  NO

11.       Type of Habitat:  OCEAN

     The habitat is the north-east Atlantic, off the coast of 
Britain.

D.        TRADE Clusters

12.       Type of Measure:  OWNERship

     The measure at issue is a standard on the domestic
ownership of fishing ships.

13.       Direct vs. Indirect Impacts:  INDirect

     Much of the world's catch from international waters is in
fact exported, about 40 percent, and many areas in danger of
being over-fished. 

14.       Relation of Measure to Environmental Impact

     a.  Directly Related     : YES  FISH 
     b.  Indirectly Related   : NO
     c.  Not Related          : NO
     d.  Process Related      : YES  Species Loss Sea [SPLS]

15.       Trade Product Identification: FISH 

     Although there is a focus on cod and haddock, many species
are at risk.

16.       Economic Data

     "The arrival of the huge Spanish fleet (into the EC), in
particular, has increased EEC fishing capacity by 60
percent."  Obviously, the importance of Spanish fishing
fleets to the EC cannot be ignored when designating which
country in the EC will be allowed which percentage of each
year's TAC. 

17.       Impact of Trade Restriction: 50 percent

     The Spanish "obtain access to British quotas for such fish
through their UK registration and may be taking 50 per cent or
60 per cent of the quotas for the species.  The boats are
supposed to land half their catches in the UK and be controlled
from the UK..."  However, many of the Spanish boats are
never checked, according to many British companies, even though
the ECJ said that the rules to enforce quota controls were
legitimate.  

18.       Industry Sector:  FOOD

     The product can be raw or processed products.

19.       Exporter and Importer:  SPAIN and MANY

     Spain is a large importer and exporter of fish products. 
Most products are sold within the EU.

E.        ENVIRONMENT Clusters

20.       Environmental Problem Type: Species Loss Sea, SPLS

     It is impossible to tell how many species are actually
being effected by over fishing.  Many species caught in
driftnets are thrown back, and many bottom-dwelling species are
being destroyed by over fishing and the subsequent scraping of
the seabed by nets.

21.       Name, Type, and Diversity of Species 

     Name:          Cod
     Type:          Animal/Vertibrate/Fish/Bony
     Diversity:     Sustainable yields of
                    11,200,000 metric tons
                    per year (Northeast
                    Atlantic)

22.       Resource Impact and Effect: MEDIUM and SCALE

23.       Urgency and Lifetime: LONG and 10 years

     There is scientific evidence that fish stocks are severely
depleted and spawning activities have been effected.  "Haddock
and Cod, for example, normally live 10 or more years but today
all the older fish have been caught.  Only the newest so-called
"age class" of fish is available, and, as it happens, natural
breeding patterns have reduced this still further this
year."

24.       Substitutes:  FARM products

     Wild ocean fish stocks are being depleted worldwide.  Some
industries, such as salmon, shrimp, and catfish have been
successful in switching to farming operations.

VI.       OTHER Factors

25.       Culture:  NO

26.       Trans-Border:  NO

     The basic question of ownership over the world's oceans
and its resources complicates this issue, despite the progress
under the Law of the Sea treaty.

27.       Human Rights:  NO

28.       Relevant Literature

"Britain Ordered to Open Fishing."  The Guardian (October 11, 
     1989).
The Common Fisheries Policy.  Brussels: Commission of the
     European Communities, 1991.
"European Court Overrules UK Legislation on Fishing."  The
     Financial Times (July 26, 1991).
"European Court Scuppers Law on Fish `Poaching'."  The Guardian
     (July 26, 1991).  
"Europe's Fishing Policy `Full of Holes'."  New Scientist
     (September 1991).  
"Fishing `Causes More Harm to North Sea than Pollution'."  The
     Daily Telegraph (March 8, 1990).
"Fishing Ruling Fails to Make a Splash."  The Financial Times
     (July 26, 1991).
"Net Benefits as Galicians Haul in a Victory."  The Financial 
     Times (July 26, 1991).
Proposal for a Council Regulation (EEC) amending No. 3951/88
     fixing catch possibilities for 1989 for certain fish
     stocks and groups of fish stocks in the regulatory
     area as defined in the NAFO convention.  Brussels:
     Commission on the EC, April 4, 1989.
"Quota Cuts Unavoidable."  The Financial Times (December
     13, 1988).
"Too Many Fishing Boats Hunt for too Few Fish."  The Financial
     Times (December 9, 1988).

                          References



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1/11/97