The relationship between the Marine Strategy Framework Directive and ICCAT recommendation 09-06: implications for ICCAT negotiations

Transcription

1 The relationship between the Marine Strategy Framework Directive and ICCAT recommendation 09-06: implications for ICCAT negotiations Legislative briefing November 2010 Summary This briefing is intended to address questions that have arisen regarding the obligations for the EU to achieve MSY (maximum sustainable yield) in Eastern Atlantic and Mediterranean bluefin tuna stocks by 2015, 2020 and 2022 under international agreements and EU law. This briefing focuses in particular on the relationship between the Marine Strategy Framework Directive 1 and ICCAT recommendation and explains that: There is no conflict between the provisions of the Marine Strategy Framework Directive and the requirements in ICCAT recommendation 09-06; ICCAT recommendation sets a minimum standard of protection for bluefin tuna stocks that must be secured in the three year recovery plan that will be adopted in 2010 but does not prevent more stringent protective measures from being adopted; The EU is legally obliged to comply with the requirements to secure fish stock recovery by 2020 at the latest under the Marine Strategy Framework Directive; and Complying with the requirements of the Marine Strategy Framework Directive will secure compliance with the targets agreed at the World Summit on Sustainable Development. As a result, in order to comply with all the EU s legal obligations in relation to bluefin tuna stock management, the EU is legally obliged to request that ICCAT adopts a recovery plan that will allow bluefin tuna stocks to recover to levels capable of producing MSY by In light of recent scientific advice from the Standing Committee on Research and Statistics, 2 the EU is therefore obliged to request the TAC for bluefin tuna is set at zero for at least the next three years (the period of the recovery plan to be adopted at ICCAT 2010). 3! "#$%&'($)&"*++,-./-012"&3(&%&4"$3(5"65%'&"53"!."789:"*++,;" * "<(=34$3>"15??$((&&"53"@&A&=%'B"=34"<(=($A($'A"C<1@<D"*+!+"%&E5%(F"<1GH+!,I"-"*+!+;"

2 1. Introduction The EU s position in relation to bluefin tuna is governed by a combination of legal obligations derived from the EU Treaties, international agreements and secondary EU legislation (for example Regulations, Directives and Decisions). 4 These include obligations to apply the integration and precautionary principles and obligations to manage fish stocks to meet maximum sustainable yield (MSY) requirements. This briefing is intended to address questions that have arisen regarding the status of obligations to achieve stock levels capable of producing MSY under EU law and ICCAT recommendations (in particular ICCAT recommendation adopted at the 2009 ICCAT meeting) and the dates by which this should happen: 2015, 2020 and In response to these questions this briefing explains why there is no conflict between the legal obligations contained in the Marine Strategy Framework Directive (which requires the EU to take action to achieve MSY by 2020), and in ICCAT recommendation which requires ICCAT, at its 2010 meeting, to agree on a recovery plan to achieve at least a 60% likelihood of reaching MSY by This briefing goes on to explain why the EU must comply with the requirements of the Marine Strategy Framework Directive and act to secure the recovery of bluefin tuna stocks to levels capable of producing MSY by 2020 in order to comply with all the legal obligations relating to MSY that are binding on the EU. Further details of the EU s obligations to protect bluefin tuna under EU and international law (including obligations to support the creation of spawning grounds and obligations to enforce quota deductions) are set out in ClientEarth s October 2010 briefing Legal requirements to protect bluefin tuna under EU law: implications for ICCAT negotiations The relationship between the Marine Strategy Framework Directive 6 and ICCAT recommendation a. Obligations established by ICCAT Recommendation In 2009 the ICCAT Commission agreed, in recommendation 09-06, that at its 2010 meeting it will establish...a three-year recovery plan for with the goal of achieving BMSY through 2022 with at least 60% of probability... 7 J "<&&"19$&3(0=%(B"K%$&6$3>"LM&>=9"%&N8$%&?&3(A"(5"E%5(&'("K98&6$3"(83="834&%"0O"9=PF"$?E9$'=($53A"65%"G11QRS"65%" 68%(B&%"4&(=$9AF""B((EF--PPP;'9$&3(&=%(B;5%>-%&E5%(A-K98&6$3H(83=HK%$&6$3>H*/H5'(5K&%H*+!+;E46;" T "<&&"655(35(&"J;". "<&&"655(35(&"J;" / "<&&"655(35(&"!;" U "G11QR"@&'5??&34=($53"+VH+/W"E=%=>%=EB"J;" 2

3 B is a measure of the sum of the population weight (the biomass) of a fish stock and BMSY is a measure of the biomass associated with the maximum sustainable yield (MSY) of the fish stock. B is often used interchangeably with SSB (a measure of the sum of the reproductive population weight - the spawning stock biomass) in advice produced by fisheries scientists. 8 As such, targets to achieve BMSY and SSBMSY are directly comparable. Importantly, the wording of the ICCAT 2009 recommendation requires that the recovery plan that is to be adopted this year should achieve at least a 60% probability of fish stocks reaching BMSY by This is a minimum requirement, rather than a restrictive absolute or maximum obligation and clearly envisages the possibility that the recovery plan, or actions taken by Contracting Parties during the period of the recovery plan, could secure a higher probability of reaching BMSY by ICCAT Contracting Parties must therefore ensure that the three-year recovery plan that will be established at the next ICCAT meeting in 2010 secures this minimum level of protection for bluefin tuna. The EU is bound to comply with the minimum targets set out in recommendation because, as has been confirmed by EU case law, 9 ICCAT recommendations are binding on the EU. However, ICCAT recommendation 09-06, as it stands, does not stop the EU from proposing and implementing stricter obligations. In fact such an approach is required by EU law (see below). At the same time it is crucial that any new ICCAT recommendation agreeing on the bluefin tuna management plan is also expressed in a way that still allows a stricter approach by the EU (or that it sets stricter limits that comply with EU law in any case). b. The Marine Strategy Framework Directive and EU law obligations The Marine Strategy Framework Directive requires Member States to take the necessary measures to achieve or maintain good environmental status by the year 2020 at the latest. 10 The EU has established a set of descriptors and criteria that Member States must use to determine whether or not they have achieved good environmental status. 11 One of these descriptors requires commercially exploited fish stocks to be within safe biological limits, and this, in turn, includes an indicator which calls for [a]ny observed SSB [spawning stock biomass] value [to be] equal to or greater than SSBMSY The requirement under the Marine Strategy Framework Directive, to adopt measures to achieve SSBMSY by 2020 as one component of good environmental status, requires that all measures adopted must be aimed at ensuring that SSBMSY is actually reached in 2020, rather than at securing a lower likelihood of achieving SSBMSY or achieving SSBMSY later than The obligations contained in the Marine Strategy Framework Directive are binding on the EU as to the result to be achieved. 13 This means that the requirements contained in the Directive are, "<&&"65%"&X=?E9&"G10<"Y=:"*+!+"=4)$'&F" B((EF--PPP;$'&A;4Z-'5??$((&-='5?-'5?P5%Z-%&E5%(-*+!+-*+!+-G3(%548'($53[*+65%[*+Q4)$'&;E46" V "!"#$%#&'()*+,$%-'.'/0+&-%$'01'"2)'3+40*)#&'5&%0&2"1=A&"1H!*+-VV2"E=%=>%=EB"T/;"!+ "#$%&'($)&"*++,-./-01W"Q%($'9&"!C!D;"!! "15??$AA$53"#&'$A$53"*+!+-TUU-0O;"!* "15??$AA$53"#&'$A$53"*+!+-TTU-0O2"Q33&XW"#&A'%$E(5%"J;*;"!J "Q%($'9&"*,,W"R\0O;" 3

4 intended to prompt the Member States (rather than the EU institutions) to take action. However, because the Marine Strategy Framework Directive aims to achieve Union objectives relating to its environmental policy, the EU is obliged to support the Member States in complying with their obligations under the Directive. 14 In addition under Article 7, TFEU the EU is required to ensure consistency between its policies and activities. As the Marine Strategy Framework Directive forms part of the EU s environmental and maritime policies, 15 this obligation to ensure consistency prohibits the EU from adopting any policy or taking any action which would be inconsistent with the Marine Strategy Framework Directive. 16 The EU is also obliged to integrate environmental protection requirements into the definition and implementation of all other EU policies and activities, applying the integration principle contained in Article 11, TFEU. This is a binding requirement of EU law 17 and must be read closely in conjunction with Article 3(3) TEU which sets out sustainable development as one of the objectives of the EU, containing particularly the aim to ensure a high level of protection and improvement of the quality of the environment. Both these objectives (to integrate environmental protection requirements and to ensure a high level of environmental protection) also expressly apply to EU policies adopted in international negotiations 18 such as at ICCAT. 3. The obligation to restore fish stocks to MSY by 2015 It is important to note that in addition to the obligations contained in ICCAT recommendation and the Marine Strategy Framework Directive, since 2002 the EU has been committed to maintain or restore fish stocks, including bluefin tuna, to levels capable of producing MSY on an urgent basis and where possible not later than The most recent scientific advice on bluefin tuna from the ICCAT Standing Committee on Research and Statistics (SCRS) has indicated that is unlikely to be possible to secure the recovery of bluefin tuna stocks to MSY by However, the obligation to achieve MSY on an urgent basis and, where possible, by 2015 is nonetheless a goal that is binding on the EU and that should influence the EU s position at ICCAT.!T "Q%($'9&"TCJD"R0OF"]^8%A8=3("(5"(B&"E%$3'$E9&"56"A$3'&%&"'55E&%=($53W"(B&"O3$53"=34"(B&"Y&?K&%"<(=(&A"AB=99W" $3"6899"=34"?8(8=9"%&AE&'(W"=AA$A("&='B"5(B&%"$3"'=%%:$3>"58("(=AZA"PB$'B"695P"6%5?"(B&"R%&=($&A;_"!. "#$%&'($)&"*++,-./-01"65%?A"(B&"&3)$%53?&3(=9"E$99=%"56"(B&"0O"G3(&>%=(&4"Y=%$($?&"^59$':2"A&&"15??$AA$53" 15??83$'=($53"1`YC*++UD".U."!/ "Q%($'9&"UW"R\0O"!U "<&&"@")"Y$3$A(&%"56"Q>%$'89(8%&"H"1=A&"1H!.U-V/"=("E=%=A"/JH/T2"a%&&'&")"1583'$9"H"1=A&"1H/*-,,W"=("E=%="*+"!, "Q%($'9&"!!W"R\0O"=34"Q%($'9&A"*!C*DC6D"=34"*!CJDW"R0O"!V "^9=3"56"G?E9&?&3(=($53"=45E(&4"K:"(B&"b5%94"<8??$("53"<8A(=$3=K9&"#&)&95E?&3(2"E=%="J!C=D;" *+ "<(=34$3>"15??$((&&"53"@&A&=%'B"=34"<(=($A($'A"C<1@<D"*+!+"%&E5%(F"<1GH+!,I"-"*+!+"$34$'=(&4"53"E=>&"VU" (B=("&)&3"$6"(B&"K98&6$3"(83="RQ1"$A"A&("=("c&%5"&)&%:":&=%"83($9"*+!."(B&%&"$A"539:"="!T["'B=3'&"(B=("(B&"A(5'Z" P$99"%&'5)&%"(5"IY<d"K:"*+!.;" 4

5 4. Conclusions: implications for the EU s position at ICCAT 2010 Both recommendation and the Marine Strategy Framework Directive are binding on the EU. Because there is no inherent conflict between the provisions of ICCAT recommendation and the Marine Strategy Framework Directive, it is not necessary to consider issues of the hierarchy of different sources of EU law (in this case international obligations and secondary legislation) in any detail. As established above, recommendation sets a minimum requirement for, rather than limiting, the scope of the recovery plan to achieving a 60% likelihood of stock recovery by This means that the EU (and other parties to the ICCAT Convention) are free to request that more stringent protective measures are incorporated into the recovery plan. This means that the stricter requirements under the Marine Strategy Framework Directive set out above can be implemented without contradicting ICCAT recommendation These protective requirements (to ensure fish stock recovery by 2020) must be implemented to comply with EU law. The EU, its institutions and its Member States, must therefore take action to protect Eastern Atlantic and Mediterranean bluefin tuna stocks and to ensure they recover to MSY by 2020 at the latest. This both meets and exceeds the minimum level of protection required in ICCAT recommendation The scientific advice on bluefin tuna recognises that it is unlikely to be possible for bluefin tuna stocks to recover to MSY by 2015 and that the stock is unlikely to recover to MSY any sooner than Any position adopted by the EU at ICCAT that aims to secure the recovery of the bluefin tuna stock by 2020 will therefore, by default, comply with the requirements of the World Summit on Sustainable Development plan of implementation. It should also be noted that the EU s obligations do not apply only to the EU s negotiating position in the next ICCAT negotiations. If ICCAT does not adopt a recovery plan with sufficiently high levels of protection to secure stock recovery to MSY by 2020, the EU remains obliged to comply with the Marine Strategy Framework Directive when allocating quota within the EU. To comply with the legal obligations imposed by ICCAT recommendation and the Marine Strategy Framework Directive, the EU s position at ICCAT must therefore be to request bluefin tuna TACs are set at a level that will secure stock recovery by If ICCAT fails to adopt measures that will secure the recovery of bluefin tuna by 2020, the EU must adopt a higher level of protection when allocating quotas within the EU to guarantee compliance with the legal obligations contained in the Marine Strategy Framework Directive. *! "Q''5%4$3>"(5"(B&"<(=34$3>"15??$((&&"53"@&A&=%'B"=34"<(=($A($'A"C<1@<D"*+!+"%&E5%(F"<1GH+!,I"-"*+!+"(B&" A(5'Z"$A"539:">8=%=3(&&4"(5"%&'5)&%"(5"<<IY<d"=6(&%"*+**;" 5

6 Note: ClientEarth s briefing Legal requirements to protect bluefin tuna under EU law: implications for ICCAT 22 explains why, in the light of the most recent scientific advice on the bluefin tuna stocks, the EU must request that the TAC is set at zero for at least the period of the recovery plan that will be adopted at ICCAT 2010 (which will apply for three years) to give stocks the best possible chance of recovering to MSY by ClientEarth 5 November 2010 Contact details Sandy Luk Senior Lawyer Marine Programme t +44 (0) m +44 (0) e sluk@clientearth.org Rowan Ryrie Marine Biodiversity Lawyer Marine Programme t +44 (0) m +44 (0) e rryrie@clientearth.org ** "<&&"655(35(&"J;" 6