Who speaks for the fish? The tragedy of Europe's common fisheries policy.

• Author: Self, Emily

ABSTRACT

The Common Fisheries Policy, enacted in 1983 as the European Union's primary overfishing regulation scheme, is widely regarded as a failure. Vast overexploitation in Europe's fisheries persists thirty years later, posing grave ecological consequences as well as economic devastation to Europe's fishing industry. In 2013, the EU overhauled the Common Fisheries Policy and enacted measures that oblige the EU and member states to support ecologically sustainable fishing practices, ban the harmful practice of discarding fish at sea, and give the member states more flexibility to tailor implementation to suit local conditions. While the 2013 reforms were momentous, those changes may not sufficiently address the tension inherent in open access fisheries between short-term economic interests of fishermen and long-term sustainability. This Note proposes that the proper solution to the lingering overfishing crisis in Europe requires expanding the role of Regional Advisory Councils such that they can standardize sanctions for violators across the region and restrict member states' ability to harmfully subsidize their fishing fleets. These changes would help level the playing field among competing fishermen, creating the regulatory conditions necessary to intercept the open access dynamic that perpetuates overfishing.

TABLE OF CONTENTS I. INTRODUCTION II. THE 2002 COMMON FISHERIES POLICY III. THE CHANGING LANDSCAPE OF EUROPEAN UNION LAW IV. ANALYSIS OF THE 2013 REFORMS A. Substantive Reforms for Sustainable Fishing B. Changes to Governance Structure IV. RECOMMENDATIONS A. Expanding the Role of Regional Advisory Councils B. Tighter Restrictions on Harmful Subsidization C. Uniform Sanctions for Illegal Fishing V. CONCLUSION I. INTRODUCTION

"Thirty years ago I worked fewer hours. I had less equipment, less technology.... But I caught more fish." (1)

Fishing is a central feature of life in Europe. (2) Nearly every coastal European state has long depended on the fishing industry as a mainstay of its economy and as a provider of a major food source. (3) As such, the EU and its member states have committed themselves many times to conserving vital fisheries resources. (4) The goal of sustainability remained nominal, however, because European lawmakers falsely believed that fish populations were reliable and plentiful, and they regulated fishing practices under this misconception. (5) Regrettably, the absence of an effective conservation scheme has brought Europe's fisheries to a state of crisis. (6)

In 2009, it was estimated that 88 percent of Europe's fish stocks were being exploited beyond sustainable levels. (7) Thirty percent of fish stocks were being fished beyond safe biological limits, meaning they may not be able to replenish. (8) Still, in 2014, an estimated 75 percent of European fish stocks remained overfished. (9)

Several changes in the dynamics of the fishing industry contributed to the problem of overfishing in Europe. Fishing fleets have become increasingly mobile--European fishermen now face global competition in their fisheries where once the competition was only local. (10) The number of fishermen has greatly increased over the past several decades, and technological advances facilitated fishing on a massive industrial scale. (11) This significant growth in fishing effort has overwhelmed fisheries, as the rate at which fish are harvested has outpaced the fish populations' ability to reproduce, resulting in shrinking fish stocks. (12)

The ecological concerns associated with overfishing are grave. (13) However, not only does overfishing harm the viability of fish stocks and the marine environment more generally, it also threatens to financially devastate the fishing industry. (14) As fish populations dwindle, fishermen must expend more effort and resources to compete with one another for a shrinking number of fish. Eventually, the profit from fishermen's catches will not cover the cost of fishing. One fisherman's account illustrates this distressing sequence of events: "My grandfather and father built that house on the hills with their fishing income ... but I do not have the opportunity to build a house with my earnings, we work five times more and the fish is worth much less." (15)

It seems counterintuitive that fishermen would continue harvesting distressed fish populations when holding back to allow the fish stocks to regenerate could provide them with a reliable livelihood year after year. (16) Herein lies the open access problem, otherwise known as the tragedy of the commons--without an enforceable agreement among fishermen to conserve the common resource, they will overexploit the resource despite the fact that it is not in their long-term interests. The conflict driving this self-defeating behavior centers on the fishermen's short-term incentives. If a fisherman believes his competitors will continue to fish whether or not he conserves, then it makes sense to fish as much as possible now while there are still fish to catch. (17) So the group must collectively agree to conserve or overexploitation will perpetuate, but effective enforcement is just as essential as the conservation agreement itself. If fishermen believe that their competitors can successfully cheat on an agreement to conserve, they will be incentivized to cheat as well.

The Common Fisheries Policy is Europe's collective agreement to conserve its fish stocks. (18) Its stated objective is to facilitate use of marine resources in European fisheries that provides ecological, economic, and social sustainability. (19) In essence, this means aligning fishing effort with available fishing opportunities, such that fish stocks are able to remain at healthy biologic levels. (20) This would enable fishermen to maximize their long-term profits. (21) However, despite its lofty goals, the Common Fisheries Policy ineffectively responds to overfishing.

The centerpiece of the Common Fisheries Policy was the annual Total Allowable Catch limitation, which caps the amount of a given fish species that may be caught. (22) The limits are set at the EU level, and that amount is then allocated among state governments in the form of "quotas." (23) The states in turn allocate fishing opportunities among their domestic fleets. (24) Under the 2002 version of the Common Fisheries Policy, this process was infused with politics. (25) Ministers on the Fisheries Council, (26) a European Council configuration, negotiated on behalf of their domestic fishing fleets for quotas far in excess of scientific advice about sustainability--in some cases up to 48 percent higher than advised. (27) When the decision making process is susceptible to political pressure, representatives compete with one another on behalf of their domestic fishing fleets, perpetuating the open access dynamic at the governmental level. (28)

For a regulatory scheme to truly curb the overfishing epidemic, it must intercept the open access dynamic both among the fishermen and between the member states representing their fleets' interests. (29) That is what past versions of the Common Fisheries Policy failed to do. (30) Avenues were left open for representatives in the EU and member state governments to undermine sustainability in numerous ways. (31) Further, weak compliance and enforcement by member states defeated conservation efforts, inducing widespread disregard for the regulations by fishermen. (32)

The Common Fisheries Policy and its funding provisions underwent massive reforms in 2013 and 20 1 4, (33) and the reformed Fisheries Policy has focused on returning fish stocks to sustainable levels by 2020. (34) These reforms prioritize decision making based on scientific advice, information gathering, reducing the size of European fishing fleets, supporting small scale fishing that is less environmentally destructive, and incentivizing fishermen to be more selective in their fishing practices. (35)

The reformed Common Fisheries Policy is a better conservation mechanism than the 2002 version. However, these changes may not be substantial enough, as the reforms do not effectively guard against cheating on the conservation agreement by member states or fishermen themselves. We should expect the open access dynamic to continue unless further changes are made.

This Note examines the new changes to both the Common Fisheries Policy and the European Maritime and Fisheries Fund. The examination questions whether these reforms will actually bring about real progress in ending overfishing in European waters. Section II of this Note provides a brief history of the Common Fisheries Policy and presents the obstacles facing EU lawmakers. Section III addresses the relevant changes in European Union law that took place in the years since the 2002 version of the Common Fisheries Policy was enacted. Section IY analyzes the new reforms, and finds that they are insufficient to protect fish stocks and the economic viability of the fishing industry. Section V recommends several changes to the Common Fisheries Policy that could more adeptly halt the progression of overfishing in European waters.

2. The 2002 Common Fisheries Policy

   The EU drafted the first Common Fisheries Policy in 1983 as a response to the United Nations Convention on the Law of the Sea (UNCLOS). (36) The Common Fisheries Policy was not originally designed to be the supra-national conservation regime that it now is. (37) Rather, the Common Fisheries Policy originated as a regulatory system attempting to preserve traditional free access fishing in the EU when changes in international law threatened to disrupt this practice. (38)

   UNCLOS, adopted in 1982, acts as a "constitution for the seas." (39) "[T]he Convention is an unprecedented attempt by the international community to regulate all aspects of the resources of the sea and uses of the ocean ...," (40) These issues relate to navigational rights, economic jurisdiction, and territorial sea...