Sigrún Davíðsdóttir's Icelog

Principle of “relative stability” may sound like a concept from international geopolitics but as those, who follow European fisheries, know it is the principle by which the EU allocates fish catches to member states. Based on this principle, the “relative stability key” is the percentage each member state, i.e. those with Northern European fishing grounds, gets of the quotas of various stocks. The quotas are mostly set annually, but the percentage that each member state gets of the quota was fixed in 1983. What is however not commonly known is that neither the Annexes underpinning the principle of relative stability nor the figures behind these “keys” have ever been published – part of an old saga of bitter fisheries dispute in Europe.

“I’m sure it must be (published somewhere) but I don’t know where,” was the answer Icelog got from an insider in one of the UK fisheries organisations in response to an email, asking where the “relative stability keys” could be found.

No, quite intriguingly, the exact percentage each EU country gets, is not published and has never been published since the keys were established in 1983 as the foundation of quota sharing between the EU countries sharing the fishing waters around the UK, Ireland and the North Sea. It is safe to say that the keys only exist within the EU software used to calculate the quota share of each EU country.

Although the so-called Hague Preferences – the other unpublished part of the EU Common Fisheries Policy – was designed to favour the UK and Ireland, the bitter discontent among British interest organisations related to fisheries seems to have had a great influence on support for Brexit. As to the fate of British fisheries, it is interesting to remember that the saga of government compensation for British trawlermen, for the lost fishing grounds around Iceland in the 1970s, dragged on until 2012, almost 40 years.

Now, new ideas for sharing the catches are part of the British Brexit-negotiations, where the British government seems ready to ignore the interests of the much larger car industry to score points for the fisheries. However, the story of the “relative stability” shows that the 1983 Regulation on sharing catches in European waters proved to be a magic formula providing stability. There are certainly various ways of dividing the fishing waters and the catches but as this magic formula has served its purpose and member states’ interests well enough for 37 years, it is not easy to replace it or tinker with, without disrupting the desired stability.

Towards Common Fisheries Policy: the European answer to international trends

In the 1957, Treaty of Rome, which laid the foundation of a cooperation of six European countries, fisheries is only once, as a part of the definition of agriculture: “The common market shall extend to agriculture and trade in agricultural products. “Agricultural products” means the products of the soil, of stock-farming and of fisheries and products of first-stage processing directly related to these products.”

At the time, fishing was in the shadow of agricultural interests of the six countries, but this mention of fisheries later on provided the legal basis for the common fisheries policy, CFP.

Internationally, fishing was a major topic in the late 1950s and 1960s. On one hand, there was a growing understanding that with ever larger and mightier trawlers, overfishing was a threat. On the other, countries were expanding their fishing limits.

The United Nations embraced this cause as it held the first UN Conference on the Law of the Sea, UNCLOS, in 1958. The third UNCLOS, 1973 to 1982, resulted in a treaty, which inter alia stipulated Exclusive Economic Zones, EEZs, of 200 nautical miles, giving costal states the sole right to natural resources within this zone.

The UK had for centuries fished in the waters around Iceland, which had brought prosperity to whole regions in the UK, Humberside in particular. When Iceland moved its fishing limit out from 4 miles to 12 miles in September 1958 the British fishing industry suffered. But there was more to come.

In September 1972 the Icelandic government extended its fishing limit to 50 miles. In November 1975, Iceland made the third and final move, this time to 200 miles. The three extensions gave rise to skirmishes, called the three Cod Wars though Iceland, a country without military, can per definition not go to war. In the summer of 1976, the two countries came to an agreement: the UK acknowledged Iceland’s right to rule over its 200 miles in return for a certain amount of catches within the Icelandic 200 miles for a limited time.

Iceland was the first European country to extend its fishery limits to 200 miles. This unilateral move was inspired by the fact that 200 miles were fast becoming the international norm, as later encompassed in UNCLOS III and the Law of the Sea Treaty in 1982.

The two significant European events June 30, 1970

The 30 June 1970 was the day of two significant events in the European cooperation: the six countries of the European Communities, EC, agreed on a legal basis for a common fisheries policy, published on 20 October 1970 and four nations – the UK, Ireland, Denmark and Norway – formally started accession negotiations with the EC.

From the single mention of fisheries in the Treaty of Rome the CFP was now being developed on the basis of work done in the late 1960s by the six EC countries: Regulation (EEC) no 2141/70, “laying down a common structural policy for the fishing industry;” and Regulation (EEC) no 2142/70, “on the common organisation in the market in fishery product.”

No 2141 stipulated “equal access”: “Whereas, subject to certain specific conditions concerning the flag or the registration of their ships, Community fishermen must have equal access to and use of fishing grounds in maritime waters coming under the sovereignty or within the jurisdiction of Member States.” – In line with other Community matters, fishing regulation in the member states could not lead to a differential treatment of other member states.

This first outline of the structural fishing policy constituted several important principles: measures to safeguard stocks; EC fishermen had access to all maritime waters of Member States, though exemption might be given to local populations dependent on inshore fishing; state aid could be given to ensure fair living in coastal communities; the Community could step in to fund common action in this direction.

Thus, as accession negotiations started, important principles had already been fixed for the new member states. Eventually, Norway voted down membership in a referendum but Ireland, Denmark and the UK joined the EC on January 1^st 1973. The two EC countries where fisheries were now of greatest importance were the UK and Ireland.

As part of the membership agreement, all member states got the right for the next ten years, until 1983, to reserve fishing within 6 miles for those who had traditionally fished there, i.e. local fleets of small fishing boats from the coastal regions. Although in force for all member states, this was especially relevant for the three new member states.

How did British fishermen feel about sharing their waters with foreign fishermen? Importantly, the interest of inshore fishermen and deep-water fishing in foreign waters were wholly different. In 1971, the then Director of the British Trawlers’ Federation stated that inshore fishermen should not look for support among his members, fishing in distant waters. He was clearly wholly unworried about the shared fishing grounds around the British Isles. After all, British trawlers were happily fishing in the fish-rich waters off Iceland, as they had done for centuries, not envisaging or ignoring the international move towards 200-mile fishery limits.

The futile British opposition to the 200 miles principle

With the UK at the Community table from 1 January 1973, the British government was in the right place to influence the further development of the CFP. In forming the new policy, both international trends in fishery management and interests of member states had to be taken into account.

With the decision on shared Community waters in place, the next step was how to share the fishing grounds and the catches. At the same time, the EC had to take into account the move towards 200-mile EEZs and that the North-East Atlantic Fisheries Commission, NEAFC, established in 1959, was setting the fishing quotas, based on advice from International Council for the Exploration of the Sea, ICES.

The next decisive step in the making of the CFP came in January 1976 with a Council Regulation, which further laid “down a common structural policy for the fishing industry.” Again, it was emphasised that “Community fishermen must have equal access to and use of fishing grounds in maritime waters coming under the sovereignty or within the jurisdiction of Member States” – but the question as to how the catches should be allocated between the member states was still unresolved.

At UNCLOS, in other international fora and at home, the UK had opposed the 200-mile fishing limits. The dispute with Iceland, after its unilateral move to 200 miles, was only settled in June 1976 after a pressure from Nato; it was a cause for concern at Nato that two Nato countries were firing at each other, albeit with coastal guard boats on one side.

With that agreement, the UK in principle agreed to a 200-mile fishing limit.  By agreeing to an EC Declaration July 27 1976, confirming the creation of a 200-mile fishing zone for the Community, the UK formally changed sides on the 200-mile limit. By accepting the July Declaration, the UK had finally given up on its opposition to the 200 miles; via the EC, the British limit was now 200 miles.

The UK, partly due to lack of political insight, partly for its interest in deep water fisheries, had tried to oppose an international trend but lost.

1976: the Hague Resolution and its unpublished Annexes

Five months after agreeing on the principle of 200 miles, in the 1976 June agreement with Iceland, EC took the first significant step towards what was to become the principle of relative stability. Rules on how to allocate catches were outlined in the Hague Resolution 3 November 1976, which later became the basis for the so-called Hague Preferences: safeguards to ensure that Ireland and Northern England, where fisheries were of vital interest, would get extra share of the quota. Effectively by giving less to the other fishing countries sharing fishing zones with Ireland and the UK.

This did not all go smoothly: the Resolution was published but seven Annexes, were not published at the time and have never been formally published like other Resolutions nor have the Annexes ever been formally adopted by the Council. In principle, the Annexes did not have the same legal standing as the Resolution but expressed the political will of the Council.*

The published part of the Hague Resolution was only a short text, which took into consideration that fishing limits were moving out to 200 miles; though not mentioning Iceland, the Resolution also indirectly mentioned the loss of British fishing waters around Iceland following Iceland’s unilateral move:

COUNCIL RESOLUTION of 3 November 1976 on certain external aspects of the creation of a 200-mile fishing zone in the Community with effect from 1 January 1977

With reference to its Declaration of 27 July 1976 on the creation of a 200-mile fishing zone in the Community, the Council considers that the present circumstances, and particularly the unilateral steps taken or about to be taken by certain third countries, warrant immediate action by the Community to protect its legitimate interests in the maritime regions most threatened by the consequences of these steps to extend fishing zones, and that the measures to be adopted to this end should be based on the guidelines which are emerging within the Third United Nations Conference on the Law of the Sea.

It agrees that, as from 1 January 1977, Member States shall, by means of concerted action, extend the limits of their fishing zones to 200 miles off their North Sea and North Atlantic coasts, without prejudice to similar action being taken for the other fishing zones within their jurisdiction such as the Mediterranean.

It also agrees that, as from the same date, the exploitation of fishery resources in these zones by fishing vessels of third countries shall be governed by agreements between the Community and the third countries concerned.

It agrees, furthermore, on the need to ensure, by means of any appropriate Community agreements, that Community fishermen obtain fishing rights in the waters of third countries and that the existing rights are retained.

To this end, irrespective of the common action to be taken in the appropriate international bodies, it instructs the Commission to start negotiations forthwith with the third countries concerned in accordance with the Council’s directives. These negotiations will be conducted with a view to concluding, in an initial phase, outline agreements regarding the general conditions to be applied in future for access to resources, both those situated in the fishing zones of these third countries and those in the fishing zones of the Member States of the Community.

Few words, which masked the raging disagreement among the nine fisheries ministers. The UK was not content, to say the very least, of having been expelled from the fishing grounds around Iceland. Impounding that sense of loss and pain, was the fact that the British government, bound by the EC rules, could not turn to its own grounds and expel foreign fishing boats from its own waters. However, this sense of loss, was partly more symbolic than realistic: the deep-water trawlers, which had been fishing around Iceland, could not simply sail home and fish off British shores.

The Resolution acknowledged what was happening internationally, within UNCLOS III, and the fact that the EC was negotiating fishing rights with third countries on behalf of the member states. A case in point is that from 1976, Iceland negotiated fishing rights with the Community, not with individual member states.

The last sentence of the Resolution, innocuous at first sight, is the one that points to what was to come: a permanent decision on the share of each country of the fishing quotas, set for the various stocks – meaning that although the quotas, inevitably, fluctuate annually, each country’s share of that quota would always be the same. In other words, the aim was some sort of stability.

What exactly do the Annexes say?

As stated above, the Annexes have never been published in their entirety, but they have been cited in ECJ rulings in cases related to fisheries. Annex VI and VII were the most relevant in terms of influencing the member states’ share of catches as they would later be defined by the “relative stability principle.”

Annex VI was published in a 1979 opinion by the Advocate General:

Pending the implementation of the Community measures at present in preparation relating to the conservation of resources, the Member States will not take any unilateral measures in respect of the conservation of resources.

However, if no agreement is reached for 1977 within the international fisheries commission and if subsequently no autonomous Community measures could be adopted immediately, the Member States could then adopt, as an interim measure and in a form which avoids discrimination, appropriate measures to ensure the protection of resources situated in the fishing zones off their coasts.

Before adopting such measures, the Member State concerned will seek the approval of the Commission, which must be consulted at all stages of the procedures.

Any such measure shall not prejudice the guidelines to be adopted for the implementation of Community provisions on the conservation of resources.

Annex VII is found in an ECJ case from 1998 (emphasis mine):

The Council considers that the reconstitution and protection of stocks in order to permit an optimum yield from potential Community resources require strict control and Community-wide measures to that end.

The Council recognises that the protection and the control of the fishing zone off Ireland must not result, because of the size of this zone, in a charge, for that Member State, which is disproportionate to the volume of Community fish resources which can be exploited in that zone by the fishermen of that Member State. It agrees that the implementation of available means of surveillance or those to be foreseen must be accompanied by appropriate measures to ensure that the charges which ensue will be shared equitably.

Having regard to the economic relationships which characterise fishing activity in Ireland, it declares its intention so to apply the provisions of the Common Fisheries Policy, as further determined by the Act of Accession, and adapted to take account of the extension of waters to 200 miles, as to secure the continued and progressive development of the Irish fishing industry on the basis of the Irish Government’s Fisheries Development Programme for the development of coastal fisheries.

The Council furthermore recognises that there are other regions in the Community, inter alia those referred to in the Commission’s proposal to the Council, (1) where the local communities are particularly dependent upon fishing and the industries allied thereto. The Council therefore agrees that in applying the Common Fisheries Policy, account should also be taken of the vital needs of these fishing communities.

The decisions and the guidelines set out in the preceding paragraphs and the directives adopted for negotiations with third countries in no way prejudice the specific provisions which it is necessary to adopt without delay in order to solve the problems of coastal fishing activity, in particular in economically disadvantaged regions, and to regulate fishing activity within a coastal belt.

In summary, Annex VI allowed for a certain degree of independent action by member states in preserving resources, in reality deciding on catches, for 1977 (indeed until 1983, when the new rules were formed) whereas Annex VII stipulated that Ireland would, due to the relevance of fisheries, always get extra quotas, as would certain local communities, “particularly dependent upon fishing.” ­– Intriguingly, the UK was not mentioned by name, but everyone involved knew Annex VII would only ever be used for the benefit of the UK.

The purpose of the unpublished Annexes

The British government, at the time, was fighting a rather misunderstood battle within the EC, as a 1996 House of Commons Library research paper did indeed conclude. The British fishing industry insisted on a UK-exclusive zone of 50 miles from the British coast, from which foreign fishermen could be expelled. This however went against what was being discussed in the EC and did inevitably not find any support there.

The line of thought in the EC was instead that the share of catches would be based on earlier fishing. This was partly catastrophic for British interests: British trawlers had not been fishing in these waters, which meant that the British government could not refer to historic catches.

Instead, fishermen from other EC countries had been fishing off the British coast and thus had history on their side. With historic catches and Community law, the British hopes were entirely unrealistic. It was this disagreement that was being resolved with the Resolution – or rather, in the Annexes, which attempted to make good for the British loss of fishing in Icelandic waters.

The published Resolution was vague, but the Council came to rescue with the unpublished Annexes, which meant that the British government could live with the published Resolution. The Resolution and the seven Annexes expressed the political will of the fishery ministers. Or rather, an attempt to make up to the UK its loss of fishing waters around Iceland and the fact that the UK had fought the 200-mile limit and not really taken into account, for example in the accession treaty, that 200 miles would prevail, whether the UK wanted it or not.

The Hague Resolution becomes the Hague Preferences

The Annexes, not the vague Resolution, became the reference for the so-called “Hague Preferences,” used to increase the share Ireland and the UK would get of the annual catches, calculated on historic catches in 1973 to 1978. This meant that already in 1976, it had been agreed that in the group of nine equals, the UK and Ireland would be more equal than the others when it came to fishing quotas.

As pointed out in the ECJ 1998 ruling, the importance of the Hague Resolution was its recognition of “the special needs of those regions where the local communities are particularly dependent on fishing and allied industries.” In practice, a recognition of benefits allotted on these grounds to Ireland and the UK.

A clear indicator of how crucial the Hague Resolution turned out to be was that in June 1980, the EC Commission proposed to the Council “that, for each fish stock, Ireland should be ensured a doubling of its 1975 catch and the United Kingdom catches of a volume equivalent to that of landings in 1975 by vessels of less than 24 metres in its northern regions (the ‘Hague Preference’ system). In terms of annual tonnage, these parameters, according to the Commission, represent 6 954 tonnes of cod and 7 196 tonnes of whiting for Ireland, and 1 223 tonnes of cod and 2 334 tonnes of whiting for the United Kingdom.”

But did it matter that the Hague Resolution was never published in full? The 1998 ECJ ruling concluded that although it “was not published or made available” it did not matter because it later became part of subsequent fishing Regulations.

From the Hague Preferences to the relative stability and more explosive decisions

Having decided in 1976 that historic catches should be the decisive factor in allocating catches it now took until 1983 to formulate the magic formula in order to calculate the share of each member state of the total allowable catches, TACs, which vary from year to year depending on the standing of the various fish stocks.

The word “stability” is not used in the Hague Resolution, but the understanding was clearly that the Resolution expressed the notion of stability.

The principle of relative stability became the basis for that magic formula, as expressed in Regulation No 170/83 of 25 January 1983: “conservation and management of resources must contribute to a greater stability of fishing activities.”

It referred to the Council’s Hague Resolution, in particular Annex VII (nota bene without publishing it!) in that “stability, given the temporary biological situation of stocks, must safeguard the particular needs of regions where local populations are especially dependent on fisheries and related industries” and that this was the “sense that the notion of relative stability aimed at.”

This was how “the notion of relative stability aimed at must be understood” according the 1983 Regulation.

Article 4.1. of Regulation No 170/83 states: “The volume of the catches available to the Community referred to in Article 3 shall be distributed between the Member States in a manner which assures each Member State relative stability of fishing activities for each of the stocks considered.”

This Regulation established the rules for the distribution of the total allowable catches every year among the member states. The concept of relative stability was meant to safeguard the needs of local populations in regions particularly dependent on fisheries.

Regulation no 172/83, published at the same time as Regulation no 170/83, set out how this principle was used for “fixing for certain fish stocks and groups of fish stocks occurring in the Community’ s fishing zone, total allowable catches for 1982, the share of these catches available to the Community, the allocation of that share between the Member States and the conditions under which the total allowable catches may be fished.”

The unpublished “relative stability keys”

When fisheries minister Peter Walker made a statement to the House of Commons 26 January 1983, the day after the new Regulation was public, Walker said the agreement would last for 20 years, providing “a very firm long-term basis for our fishing industry to take advantage of the substantial benefits it receives from it… The quotas agreed for the seven main species of edible fish, which are the species of dominant importance to the United Kingdom fishing industry, provide Britain with 37.3 per cent. of the stocks in European waters, a figure higher than our actual catch for most stocks even in exceptional years.”

Walker also stated that this percentage was a whole lot better than the first EEC offer of 31%. What he did not mention, but some opposition MPs did, was that the UK’s demand had been 45%. Also, Walker wanted “to take into consideration the real difficulties that the long-distance fleet has had over the years as a result of the loss of Icelandic waters.” – The Parliamentary debate was however slightly misleading: the quotas were not overall figures but based on the different fishing waters. And Walker did not mention the Hague Preferences.

The concrete expression of the “relative stability” is the exact percentage each member state should be allocated of the catches in different fishing zones every year. These percentages are called “relative stability keys” – but again, they have never been published. Or rather, the keys for the Community member states in 1983 have never been published; when new countries joined, their relative stability figures were published in their Accession Treaty (For Sweden, see art. 121)

The allocation procedure was described in the 1998 ECJ ruling, stating that allocation according to the 1983 Regulation took account of average catches landed by member states during the period 1973 to 1978. In addition, the needs of areas particularly dependent on fishing, as defined by the Hague Preferences, were also taken into account – and the loss of fishing in the waters of non-member countries, a reference to loss of fishing grounds around Iceland, based on catches in 1973 to 1976.

Here, an example of the allocations keys was given: for the Irish sea, “the allocation keys were, for Ireland, 46.67% for cod and 39.625% for whiting, and, for the United Kingdom, 42.67% for cod and 52.83% for whiting (`the 1983 allocation keys’).”

The Hague Preferences meant that every year, the UK and Ireland are favoured. This has happened much to the irritation of countries like Denmark, Netherlands, Belgium, France and Germany since it means that they get less quota. The 1983 Regulation has been revised regularly, last in 2013, but the relative stability has never been changed, i.e. the percentages agreed on in the 1983 Regulation have stayed the same. Over the years, the Commission has tried to come up with solutions but nothing has been good enough for the member states to revise the “relative stability principle” and the accompanying keys.

The sorry saga of the end of British fishing around Iceland

Whenever I have met anyone with knowledge of British fishing, and the Cod Wars have been mentioned, I have never heard but the fullest understanding of the Icelandic actions. “We are not upset with Iceland but with British politicians,” was what one MP said to me many years ago. He fully understood why Iceland expanded its fishing limit to 200 miles. After all, Iceland was taking note of an international trend, though acting unilaterally and earlier than moster other nations.

His point was that all the promises by British politicians of acknowledging the loss of jobs and livelihoods in Humberside and elsewhere, had not materialised until decades later.

The first compensation scheme, operated from 1993 to 1995 when 9,000 former trawlermen received in total £14m, was found to be inadequate. In 2000, 25 years after Iceland announced their 200-mile limit, the British government agreed that trawlermen would each get £20,000 as a compensation for their loss of work in the 1970s. By 2002, £43m had been paid towards 4,400 claims from trawlermen.

However, these schemes were inadequately managed and yet another scheme followed in 2009. Also that was judged to have been badly managed, as pointed out in a report by the Parliamentary Ombudsman in 2012. Following that report, the Department for Business, Innovation and Skills, responsible for the 2009 scheme, apologised for the 2009 scheme.

The “relative stability keys”: the formula working its magic for 37 years

Though there have been some changes to the CFP over the decades, the relative stability keys have now been used for almost four decades and been the basis of the CFP. Never published, they can be said to only exist within the EU software used. And they can to a certain degree be calculated from the annual overview of catches allotted to each country, though the Hague Preferences skews the British and Irish shares. These annual overviews mention stability as a principle but do neither refer to “relative stability keys” nor to the Hague Preferences (see here the last one, for 2020).

In a Defra report from 2018, Sustainable Fisheries for Future Generations, the course is set for a sustainable fisheries policy for the UK after Brexit. The Hague Preference is only mentioned once en passant with no explanation of its purpose.

The report states that relative stability has been “a poor deal for the UK,” since it “does not accurately reflect the quantity of fish found and caught within the UK’s Exclusive Economic Zone.” Further the report points out that under “the CFP’s principle of ‘relative stability’, the UK receives a fixed share of fishing opportunities based on historical fishing patterns in 1973 – 1978. This is unrepresentative of the fish now in UK waters.”

Quite correct, the principle of “relative stability” may well be unrepresentative of present stocks – but “relative stability” was not based on present stock; it was based on what the countries had fished in the years before the principle was decided on.

The UK is entirely right that quotas can be allocated in many different ways. But it will need to be a really sound system for the EU to throw aside a system that has served Union well enough for 37 years to keep the system in place.

The UK did not understand the principle of 200-mile fishing limits in the 1970s. Perhaps it does not have a full understanding of, or prefers not to acknowledge, the interest the EU has in conserving a system that has worked for 37 years, ironically with extra quota for the UK built into the system.

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