The interpretation of 'precaution' in the European community common fisheries policy

Journal of Environmental Law

Volumn 20, Issue 2, 2008, Pages 213-244

  Howarth, William ^a  

^a UNIVERSITY OF KENT   (United Kingdom)

Author keywords

[No Author keywords available]

Indexed keywords

COMMON FISHERIES POLICY; ECOSYSTEM APPROACH; ENVIRONMENTAL LEGISLATION; ENVIRONMENTAL POLICY; EUROPEAN UNION; POLLUTION CONTROL; PRECAUTIONARY PRINCIPLE;

EID: 48949116593     PISSN: 09528873     EISSN: 1464374X     Source Type: Journal    
DOI: 10.1093/jel/eqn006     Document Type: Article

References (169)

1. Under Art 174 EC Treaty.
2. For general discussions of the role of environmental action principles in the Community Environmental Policy see, N de Sadeleer, Environmental Principles (OUP, Oxford 2002)
3. G Winter, 'Environmental Principles in Community Law' in JH Jans (ed), The European Convention and the Future of European Environmental Law (Europa Law, Gronigen 2003) 3
4. L Kramer, EC Environmental Law (5th edn Sweet & Maxwell, London 2003) 7
5. and R Macrory (ed), Principles of European Environmental Law (Europa Law, Gronigen 2004).
6. See, for example, O McIntyre, 'The Guiding Principles of European Community Environmental Law-Making' (1994) 4 European Environment 23
7. S Tromans,'High Talk and Low Cunning: Putting Environmental Principles into Legal Practice' [1995] JPEL 779
8. J Holder, 'Safe Science? The Precautionary Principle in UK Environmental Law', in J Holder (ed), The Impact of EC Environmental Law in the United Kingdom (Wiley, Chichester 1997)
9. M Doherty, 'The Judicial Use of the Principles of EC Environmental Policy' [2000] Environmental Law Review 251
10. E Fisher, 'Is the Precautionary Principle Justiciable?' [2001] JEL315
11. R Lee, '(Pre)cautionary Tales: Risk, Regulation and the Precautionary Principle' in J Boswell and R Lee (eds), Economics Ethics & the Environment (Cavendish, London 2002) 87
12. M Doherty, 'Hard Cases and Environmental Principles: An Aid to Interpretation?' (2003) 3 Yearbook of European Environmental Law 57
13. J Scott, 'The Precautionary Principle before the European Courts' in Macrory (n 2) 51
14. and A Epiney, 'Environmental Principles' in R Macrory (ed), Reflections on 30 Years of EU Environmental Law (Europa Law, Gronigen 2006) 17.
15. Article 6 EC Treaty. Sectoral policies at issue under Art 3(1) encompass the Community's Common Policy in the sphere of agriculture and fisheries.
16. Commission (EC), 'Partnership for Integration - A Strategy for Integrating Environment Into EU Policies' COM(98) 333 final, 27 May 1998.
17. See L Kramer 'The Genesis of EC Environmental Principles, in R Macrory (2004) (n 3) 37.
18. On integration in the fisheries sector, see House of Lords Select Committee on the European Union, 'Unsustainable Fishing: What is to be done with the Common Fisheries Policy?' (2000) Third Report, Session 2000-01, HL13, para 88 and Commission (EC), 'Elements of a Strategy for the Integration of Environmental Protection Requirements into the Common Fisheries Policy' COM(2001) 143 final, 16 March 2001.
19. For international comparisons, see G Sant, 'The Evolution and Impact of Precautionary Fisheries Law and Policy in Australia: An Environmental NGO Perspective' in Cooney and Dickinson (n 14) 97
20. and W Gullett, 'The Threshold Test of the Precautionary Principle in Australian Courts and Tribunals: Lessons for Judicial Review' in Fisher, Jones and von Schomberg (n 14) 182.
21. See D Grimeaud, 'The Integration of Environmental Concerns into EC Policies: A Genuine Policy Development' [2000] EELR 207
22. N Dhondt, Integration of Environmental Protection into other EC Policies (Europa Law, Gronigen 2003)
23. and V Heyvaert, 'Guidance Without Constraint: Assessing the Impact of the Precautionary Principle on the European Community's Chemicals Policy' (2006) 6 Yearbook of European Environmental Law 27.
24. Article 174(1) EC Treaty.
25. Article 174(2) EC Treaty. The 'rectification at source principle' might also be added though it is most relevant to 'end of pipe' discharges of pollutants.
26. Hence, 'the precautionary principle ... would appear to be concerned with the minimisation of the risk of pollution', McIntyre (n 3) 26.
27. The role of the action principles in addressing pollution-related environmental problems was clearly an influential factor in their early development: See Kramer (n 6).
28. The text of the Rio Declaration on Environment and Development (A/ CONF.151/26) is available at http://www.un.org/documents/ga/conf151/ aconf15126-1annex1.htm.
29. See also the Preamble to the Convention on Biological Diversity, stating 'where there is a threat of significant reduction or loss of biological diversity, lack of full scientific certainty should not be used as a reason for postponing measures to avoid or minimize such a threat', available at www.biodiv.org.
30. Commission (EC), 'On the Precautionary Principle' COM(2000) 1 final, 2 February 2001.
31. See A Trouwborst, Precautionary Rights and Duties of States (Martinus Nijhoff, Leiden 2006) 30.
32. General books on legal aspects of the precautionary principle are T O'Riordan and J Cameron (eds), Interpreting the Precautionary Principle (Earthscan, London 1994)
33. A Deville and R Harding, Applying the Precautionary Principle (Federation, Sydney 1997)
34. R Harding and E Fisher, Perspectives on the Precautionary Principle (Federation, Sydney 1999)
35. J Morris (ed), Rethinking Risk and the Precautionary Principle (Butterworth-Heinemann, Oxford 2000)
36. T O'Riordan, J Cameron and A Jordan (eds), Reinterpreting the Precautionary Principle (Cameron May, London 2001)
37. E Fisher, J Jones and R von Schomberg (eds), Implementing the Precautionary Principle: Perspectives and Prospects (Edward Elgar, Cheltenham 2006)
38. and Trouwborst (n 13).
39. In contrast to these, R Cooney and B Dickinson (eds), Biodiversity and the Precautionary Principle: Risk and Uncertainty in Conservation and Sustainable Use (Earthscan, London 2005) (incorporating Guidelines for Applying the Precautionary Principle to Biodiversity Conservation and Natural Resource Management) appears to be the only work focussing specifically on the application of the principle to conservation and natural resource management issues.
40. See, for example, de Sadeleer (n 2) ss 2.2.3.1 and 2.2.3.2
41. and Lee (n 3) 87.
42. See, for examples, Parliament and Council (EC) Directive 2001/18/EC of 12 March 2001 on the deliberate release into the environment of genetically modified organisms and repealing Council Directive 90/220/ EEC [2001] OJ L106/1 and Parliament and Council Regulation (EC) 1907/ 2006 of 18 December 2006 concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH), establishing a European Chemicals Agency, amending Directive 1999/45/EC and repealing Council Regulation (EEC) No 793/93 and Commission Regulation (EC) No 1488/94 as well as Council Directive 76/769/EEC and Commission Directives 91/155/EEC, 93/67/EEC, 93/105/EC and 2000/21/EC [2006] OJ L396/1 (the 'REACH' Regulation).
43. See GJ Hewison, 'The Precationary Approach to Fisheries Management: An Environmental Perspective' (1996) 11 International Journal of Marine and Coastal Law 301, noting that the Food and Agriculture Organization of the United Nations argued (in 1992) that the practical application of precaution 'raises serious socio-economic concerns and technical difficulties, particularly in the complex marine ecosystems' (at 308) and the EC maintained (in 1993) that precautionary approaches should be limited to addressing ocean pollution (at 310).
44. On the case for extending the application of the principle beyond marine pollution control contexts, see JS Gray and JM Brewers, 'Towards a Scientific Definition of the Precautionary Principle' (1996) 32 Marine Pollution Bulletin 768.
45. For an early discussion of the implications for biodiversity conservation, see N Myers, 'Biodiversity and the Precautionary Principle' (1993) 22 AMBIO, 74.
46. Generally, see Trouwborst (n 13) 130.
47. R Cooney, A Long and Winding Road? Precaution from Principle to Practice in Biodiversity Conservation in Fisher, Jones and von Schomberg (n 14) 223 at 229.
48. Although concerns have also been addressed about the unknown effects of fishing upon the genetic variability of fish stocks reducing the long-term stability of ecosystems, see Commission (EC), 'Biodiversity Action Plan for Fisheries' COM(2001) 162 final, 27 March 2001 and Royal Commission on Environmental Pollution (RCEP), 'Turning the Tide: Addressing the Impact of Fisheries on the Marine Environment' (2004) 25th Report Cm6392 para5.58.
49. See Ibid. para 5.43 and Box 5B on'Cod Collapse on Grand Banks' (Newfoundland).
50. See N Haigh, "The Introduction of the Precautionary Principle into the UK' in O'Riordan and Cameron (n 14) 241
51. Deville and Harding (n 14) 31
52. and de Sadeleer (n 2) 14; though contrast the view that the precautionary principle constitutes the 'most developed form' of prevention in Trouwborst (n 13) 94.
53. Lee (n 3) 90.
54. ER Stokes, 'Liberalising the Threshold of Precaution - Cockle Fishing, the Habitats Directive, and Evidence of a New Understanding of Scientific Uncertainty' [2005] Environmental Law Review 206, at 210, suggesting that courts 'are increasingly willing to extend the scope of its application, broadening the meaning of 'uncertainty in relation to which the precautionary principle operates'.
55. On the inaccuracies of this see M MacGarvin, 'Precaution, Science and the Sin of Hubris' in O'Riordan and Cameron (n 14) 69 at 83 and J Hunt, 'The Social Construction of Precaution' Ibid., 117 at 119.
56. DS Butterworth, 'Taking stock: Science and fisheries management entering the new millennium (1999) discussed by SM Garcia, 'The Precautionary Approach to Fisheries 1995-2000: Progress Review and Main Issues', Appendix to ICES Advisory Committee on Fisheries Management Report ICES CM2000/ACFM:17, 40, available at www.ices.dk/reports/acfm/2000/cwp/ cwp00.pdf.
57. M McGarvin, 'Science, Precaution, Facts and Values' in O'Riordan, Cameron and Jordan (n 14) 35 at 43.
58. See B Wynne, 'Uncertainty and Environmental Learning: Reconceiving Science and Policy in the Preventative Paradigm' (1992) 2 Global Environmental Change 111; Trouwborst (n 13) s 4.1; and Cooney (n 19) 229.
59. Commission (EC) (n 12) 18 and see R von Schomberg, 'The Precautionary Principle and its Normative Challenges' in Fisher, Jones and von Schomberg (n 14) 19 at 26.
60. See Holder (n 3) 125.
61. For an illustration of the application of strict precaution in a related nature conservation context see Case C-127/02 Landelijke Vereniging tot Behoud van de Waddenzee and Nederlandse Vereniging tot Bescherming van Vogels v Staatssecretaris van Landbouw, Natuurbeheer en Visserij, [2004] ECR I-7405 (the Wadden Sea Shelffishery case) and for commentary on this, see J Verschuuren, 'Shellfish for Fishermen or for Birds? Article 6 Habitats Directive and the Precautionary Principle' [2005] JEL 265 and Stokes (n 24). The Court found that granting annual licences for mechanical cockle fishing constituted a 'plan' or 'project' [under Art 6(3) of the Council (EC) Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats of wild fauna and flora [1992] OJ L206/7] requiring an 'appropriate assessment' of significant effects upon a special protection area designated for shellfish-eating birds. Moreover, an appropriate assessment was needed if any reasonable scientific doubt remained as to the adverse effects of shellfish harvesting on the food supply of the protected birds (para 44). This illustrates a particularly strong interpretation of 'precaution, which requires the use of ecological information positively to exclude risk to the conservation objectives of a designated site. In effect, this places the burden of showing no significant harm upon the party seeking to undertake an activity or to grant a licence to allow the activity to be undertaken.
62. See United Nations General Assembly Resolution 44/255 (of 22 December 1989) concerning high seas driftnet fishing: Large-Scale Pelagic Fishing and Its Impacts on the on the Living Resources of the World's oceans and Seas' (operative from 30 June 1992) [(1990) 29 ILM 1556 and www.un.org/ documents/resga.htm]. Subsequently, see Resolutions 45/197 of 1990. 46/ 215 of 1991, 47/443 of 1992 and 48/445 of 1993 and for discussion of these see Hewison (n 17) 305. As another possible illustration of strict precaution, see also the advice of ICES, calling for the complete closure of fisheries, discussed at p 25 below.
63. For a discussion of contrasting views, see D Hunter, J Salzman and D Zaelke, International Environmental Law and Policy (2nd edn Foundation Press, New York 2002) 699-707.
64. On the driftnet ban and other examples of precaution in international fisheries law, see D Freestone, 'International Fisheries Law Since Rio: The Continued Rise of Precaution' and W Edson, 'Towards Long-term Sustainable Use: Some Recent Developments in the Legal Regime for Fisheries' in A Boyle and D Freestone (eds), International Law and Sustainable Development: Past Achievements and Future Challenges (OUP, Oxford 1999) at 135 and 165, respectively.
65. Garcia (n 26) 103.
66. Case C-405/92 Etablissements A Mondiet SA v Armement Islais SARL [1993] ECR-I 6133.
67. Council (EC) Regulation 345/92, amending Regulation 3094/86 laying down certain technical measures for the conservation of fishery resources [1992] OJ L42/15, made reference to United Nations General Assembly Resolution 44/255 (see 14th recital). For more recent developments in EC legislation concerning regulation of drift nets see Commission (EC), 'Proposal for a Council Regulation amending Regulations (EC) No 894/97, (EC) No 812/2004 and (EC) No 2187/2005 as Concerns Drift Nets' COM(2006) 511 final, 19 September 2006 and Council (EC), 'Regulation 809/2007 of 28 June 2007 amending Regulations (EC) No 894/97, (EC) No 812/2004 and (EC) No 2187/2005 as Concerns Drift Nets' [2007] OJ L182/1 giving effect to this proposal.
68. Council (EEC) Regulation 345/92 of 27 January 1992 amending for the eleventh time Regulation (EEC) No 3094/86 laying down certain technical measures for the conservation of fishery resources [1992] OJ L42/15 amended Council (EEC) Regulation 3094/86 of 7 October 1986 laying down certain technical measures for the conservation of fishery resources [1986] OJ L288/1, which made reference to Council (EEC) Regulation 170/83 of 25 January 1983 establishing a Community system for the conservation and management of fishery resources [1983] OJ L24/1, initially establishing the CFP Reg 170/83 was adopted under the Agriculture Title of the EC Treaty, then Art 43, nowArt 37. Dhondt (n 7) 169.
69. RCEP (n 20) para 7.59.
70. J Cooke and M Earle, 'Towards a Precautionary Approach to Fisheries Management' (1993) 2 RECIEL 252, at 258 and Hewison (n 17) 301 at 318-29. Compare Commission (EC), 'Fishing Opportunities for 2008 Policy Statement from the European Commission' COM(2007) 295 final 10, 6 June 2007, where it is suggested that, for stocks no biological advice or information is available, the precautionary approach can be applied without reference to scientific advice, but the guiding principle is that no expansion of the fishery should be foreseen without scientific data showing that such an expansion could be sustainable.
71. Garcia (n 26) 107.
72. Commission (EC) (n 20) para 66.
73. Garcia (n 26) 103, quoting, with added emphasis, MC James, 'Fishery Administrators' Problems', Proceedings of the Gulf of Caribbean Fisheries Institute, Third Annual Session (November 1950) 13.
74. Commission (EC) (n 12) 19.
75. See Deville and Harding (n 14) 44. On the potentially 'paralysing' effect of precaution and the danger of lost 'opportunity costs' to which it gives rise see CR Sustein, 'Beyond the Precautionary Principle' (2003) 151 University of Pennsylvania Law Review 1003 and, for a range of critical views, see Morris (n 14).
76. B Dickinson, 'Fairness and the Costs and Benefits of Precautionary Action' in Cooney and Dickinson (n 14) 275 at 282.
77. The first Basic CFP Regulation establishing the CFP and setting its objectives was Council (EEC) Regulation 170/83 of 25 January 1983 establishing a Community system for the conservation and management of fishery resources [1983] OJ L24/1, though earlier provision had been made under Council (EEC) Regulation 2141/70 of 20 October 1970 laying down a common structural policy for the fishing industry [1970] OJ L236/ 5. For discussion of the origins and early development of the CFP see M Wise, The Common Fisheries Policy of the European Community (Methuen, London 1984)
78. J Farnell and J Elles, In Search of a Common Fisheries Policy (Gower, Aldershot 1984)
79. RR Churchill, EEC Fisheries Law (Martinus Nijhoff, Dordrecht 1987)
80. and M Holden, The Common Fisheries Policy (Fishing News, Oxford 1994).
81. Articles 32-38 EC Treaty, previously Arts 38-46. The Treaty contains no article specifically concerned with fisheries.
82. Article 33(1) EC Treaty.
83. House of Lords, Select Committee on the European Communities, 'Review of the Common Fisheries Policy' (1992) 2nd Report, Session 1992-93, HL Paper 9, para 39 and House of Commons, Agriculture Committee, 'The Effects of Conservation measures on the UK Sea Fishing Industry' (1993) 6th Report, Session 1992-93, HC 620, para 6.
84. See Johannesburg Declaration on Sustainable Development (2002), para 5, which identifies the 'interdependent and mutually reinforcing pillars' of sustainable development as 'economic development, social development and environmental protection', available at http://www.un.org/esa/sustdev/documents/WSSD-POI_PD/English/POI_PD.htm.
85. On the implications of the 'three-pronged' approach, see A Ross-Robertson, 'Is the Environment Getting Squeezed out of Sustainable Development?' [2003] Public Law 249.
86. There is a vast literature on sustainable development, but a good recent introduction to the issues is J Holder and M Lee, Environmental Protection, Law and Policy: Text and Materials (2nd edn CUP, Cambridge 2007) ch 6.
87. Commission (EC), 'The Future of the Common Fisheries Policy' (Green Paper) COM(2001) 135 final, 20 March 2001, 6.
88. House of Commons, Agriculture Committee, 'The Effects of Conservation measures on the UK Sea Fishing Industry' (1993) 6th Report, Session 1992-93, HC 620 para 35.
89. See Y-H Song, 'The ECs Common Fisheries Policy in the 1990s' (1995) 26 Ocean Development and International Law 31
90. TS Gray, 'The Tragedy of the Common Fisheries Policy: UK Fisheries Policy in the 1990s' in TS Grey (ed), UK Environmental Policy in the 1990s (Macmillan, London 1995) 263
91. and C Coffey, 'Introduction to the Common Fisheries Policy: An Environmental Perspective' [1996] International Environmental Affairs 287.
92. See Council (EC) Decision 97/413/EC of 26 June 1997 concerning the objectives and detailed rules for restructuring the Common fisheries sector for period from 1 January 1997 to 31 December 2001 with a view to achieving a balance on a sustainable basis between resources and their exploitation [1997] OJ L175/27, which classifies the state of fish stocks under four categories, 'under-exploited, 'fully exploited, 'over-exploited' and 'depleted [since amended by Council (EC) Decision 2002/70/EC of 28 January 2002 amending Decision 97/413/EC concerning the objectives and detailed rules for restructuring the Community fisheries sector for the period from 1 January 1997 to 31 December 2001 with a view to achieving a balance on a sustainable basis between resources and their exploitation [2002] OJ L31/7].
93. Commission (EC) (n 50) 4. More recently, of the assessed commercial fish stocks in the north-east Atlantic, up to 53% are now considered to be outside safe biological limits, European Environment Agency, The European Environment - State and Outlook (EEA, Copenhagen 2005) 380.
94. Commission (EC) (n 50) 4.
95. For a recent discussion of the issues, see Commission (EC), A Policy to Reduce Unwanted By-Catches and Eliminate Discards in European Fisheries' COM(2007) 136 final, 28 March 2007.
96. RCEP (n 20) para 1.9.
97. Compare, House of Lords, Select Committee on the European Communities, 'Review of the Common Fisheries Policy' (1992) 2nd Report, Session 1992-93, HL Paper 9, para 44: 'there are quite simply too many boats chasing too few fish.
98. The potential oversimplification involved in this classification is recognised. Contrast Art 4(2) Council (EC) Regulation 2371/2002 of 20 December 2002 on the conservation and sustainable exploitation of fisheries resources under the Common Fisheries Policy [2002] OJ L358/59, which lists '10' kinds of measures which may be established to achieve the objectives of the Policy. Compare Department for Environment, Food and Rural Affairs, Review of Marine Fisheries and Environmental Enforcement (The 'Bradley' Report) (DEFRA, London 2004) Annex 7 para A7.5, which classifies CFP regulations under seven enforcement areas.
99. See House of Commons, Environment, Food and Rural Affairs, 'Reform of the Common Fisheries Policy' (2002) 1st Report, Session 2002-03 para 27.
100. For the limitations of the TAC approach, see House of Commons, Agriculture Committee, 'The Effects of Conservation Measures on the UK Sea Fishing Industry' (1993) 6th Report, Session 1992-93, HC 620 paras 40 and 43 and House of Lords, Select Committee on the European Communities, 'Review of the Common Fisheries Policy' (1992) 2nd Report, Session 1992-93, HL Paper 9, paras 48-52.
101. Contrast, House of Lords, Select Committee on the European Community, 'Progress of Reform of the Common Fisheries Policy' (2003) 25th Report, Session 2002-03, HL Paper 109 para 28, where it is suggested that management based on effort control, rather than TACs, would be a preferable approach.
102. Generally, see Food and Agriculture Organization of the United Nations, The State of World Fisheries and Aquaculture 2006 (FAO, Rome 2007) at http://www.fao.org. Contrast C Clover, The End of the Line (Ebury, London 2004) 34-35, which casts doubt on the FAO figures.
103. See also, D Pauly and J Maclean, In A Perfect Ocean (Island, Washington 2003) ch 2.
104. Ibid.
105. Precursors of Hardin's seminal article considered the issues specifically in the context of fishery exploitation. See HS Gordon, 'The Economic Theory of a Common-Property Resource: The Fishery' (1954) 62 Journal of Political Economy 124
106. AD Scott, 'The Fishery: The Objectives of Sole Ownership' (1955) 63 Journal of Political Economy 116
107. and H Frost and P Anderson, 'The Common Fisheries Policy of the European Union and fisheries economics' (2006) 30 Marine Policy 737 at 738.
108. Generally, see D Feeny, S Hanna and AF McEvoy, 'Questioning the Assumptions of the "Tragedy of the Commons" Model of Fisheries' (1996) 72 Land Economics 187.
109. T Daw and T Gray, 'Fisheries Science and Sustainability in International Policy: A Study of Failure in the European Union's Common Fisheries Policy' (2004) 29 Marine Policy 189, s 3.2.
110. Coffey (n 52) at 288.
111. D Nelson, 'The Development of the Legal Regime of High Seas Fisheries' and D Freestone, 'International Fisheries Law Since Rio: The Continued Rise of the Precautionary Principle', in Boyle and Freestone (n 35) at 135 and 165, respectively.
112. The United Nations Convention on the Law of the Sea (UNCLOS), available at http://www.un.org/Depts/los/index.htm.
113. Articles 62 and 119 UNCLOS.
114. Although the limitations of this comparison are evident from Commission (EC), 'Implementing Sustainability in EU Fisheries Through Maximum Sustainable Yield' SEC(2006) 868, 4 July 2006, which acknowledges that the use of TACs has failed to maintain Community fishery exploitation within maximum sustainable yields.
115. Article 116 UNCLOS.
116. Articles 61 and 118 UNCLOS.
117. Garcia (n 26) 105 and Hewison (n 17) 321.
118. Cooke and Earle (n 38) 255, emphasis added.
119. Agreement on the Implementation of the Provisions of the UN Convention on the Law of the Sea of 10 December 1982 relating to the conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks (1995) A/CONF,I64/37, available at http://www.un.org/Depts/los/ index.htm. Hereafter referred to as the 'Fish Stocks Agreement'.
120. Article 4 Fish Stocks Agreement states that 'nothing in this Agreement shall prejudice the rights, jurisdiction and duties of States under the [Law of the Sea] Convention. This Agreement shall be interpreted and applied in the context of an in a manner consistent with the provisions of the Convention'.
121. The meaning of 'straddling stocks' is not defined in the Fish Stocks Agreement, but is generally understood to refer to stocks that occur in the exclusive economic zone of two or more coastal states or in the exclusive economic zone of one state and an adjacent area of the high seas, see FO Vicuna, The Changing International Law of High Seas Fisheries (CUP, Cambridge 1999) 41.
122. Article 6 and Annex II Fish Stocks Agreement. On the general application of 'safety margins', as a precautionary approach that is distinctively applied to natural resource management contexts, see Trouwborst (n 13) 169, but contrast M McGarvin (n 26) 35 at 46 on the different interpretation of fisheries 'precaution.
123. See, FAO, B Kuemlangan 'Fisheries' in Law and Sustainable Development Since Rio: Legal Trends in Agriculture and Natural Resource Management (FAO, Rome 2002) ch 7 (FAO Legislative Study 73) for a discussion of various FAO initiatives in relation to fisheries management.
124. The FAO Code of Conduct for Responsible Fisheries (1995) is available at http://www.fao.org/DOCREP/005/v9878e/0878e00.htm.
125. FAO, Precautionary Approach to Capture Fisheries and Species Introductions (1996) (FAO Technical Guidelines for Responsible Fisheries 2).
126. Under the Convention for the International Council for the Exploration of the Sea, amended in 1964, available at http://www.ices.dk/aboutus/ convention.asp.
127. See OS Stokke and C Coffey, 'Precaution, ICES and the Common Fisheries Policy: A Study of Regime Interplay' (2004) 28 Marine Policy 117,119. The authors draw upon information provided in reports of the ICES Advisory Committee on Fisheries Management. See particularly, H Lassen and H Sparholt, ICES Framework for the Implementation of the Precautionary Approach (2000) an appendix to ICES Advisory Committee on Fisheries Management Report ICES CM2000/ACFM:17 available at www.ices.dk/reports/acfm/2000/cwp/cwp00.pdf.
128. Agenda 21, ch 17, paras 17.1, 17.5 (d) and 17.46(b). Chapter 17 is concerned with the protection of the oceans, all kinds of seas, including enclosed and semi-enclosed seas, and coastal areas and the protection, rational use and development of their living resources. Agenda 21 is available at http://www.un.org/esa/sustdev/documents/ agenda21/english/agenda 21toc.htm.
129. See L Rajamani, 'From Stockholm to Johannesburg: The Anatomy of Dissonance in the International Environmental Dialogue' (2003) 12 RECIEL 23, 31. See ch IV Johannesburg Plan of Implementation, on 'protecting and managing the natural resource base of economic and social development', which requires action to 'maintain or restore stocks to levels that can produce the maximum sustainable yield with the aim of achieving these goals for depleted stocks on an urgent basis and where possible not later than 2015, available at http://www.un.org/esa/sustdev/ documents/WSSDPOIPD/English/POIToc.htm.
130. Commission (EC) (n 50).
131. Most notable, in relation to the general conservation aspects of the CFF, are Commission (EC), 'On a Community Action Plan to Reduce Discards of Fish' COM(2002) 656 final, 26 November 2002; 'Setting out a Community Action Plan to Integrate Environmental Protection Requirements in the Common Fisheries Policy' COM(2002) 186 final, 28 May 2002; and'On the Reform of the Common Fisheries Policy' (the 'Roadmap' Communication) COM(2002) 181 final, 28 May 2002.
132. Commission (EC) Ibid. (the 'Roadmap' Communication) s 4, emphasis added. For more tren-chant criticism of the failings of the CFP see, WWF, Fishing Madness: 101 Reasons Why the CFP Needs Radical Reform (WWF, Godalming 2002).
133. Council (EC) Regulation 2371/2002 of 20 December 2002 on the conservation and sustainable exploitation of fisheries resources under the Common Fisheries Policy [2002] OJ L358/59. Hereafter referred to as the 'Basic CFP Reg 2371/2002'.
134. Article 2(1) Basic CFP Reg 2371/2002.
135. Commission (EC), 'Application of the Precautionary Principle and Multiannual Arrangements for Setting TACs'COM(2000) 803 final, 1 December 2000,3. Alongside this, it must be noted that fishers have a longstanding distrust for scientific information on fish stocks, see House of Commons, Environment, Food and Rural Affairs,'Reform of the Common Fisheries Policy' (2002) 1st Report, Session 2002-03 para 19.
136. Daw and Gray (n 67) s 3.2.
137. Stokke and Coffey (n 85) 122.
138. The Rt Hon John Gummer MP, Chairman of the Marine Stewardship Council and Formerly Minister of Agriculture, Fisheries and Food (1989-93) and Secretary of State for the Environment (1993-97), speaking at a WWF conference in 1998, quoted by House of Lords Select Committee on the European Union, 'Unsustainable Fishing: What is to be Done with the Common Fisheries Poficy?' (2000) Third Report, Session 2000-01, HL Paper 13, para 121. For an analysis of how national rivalries have contributed to the failure of the CFF, see DC Payne,'Policy Making in Nested Institutions: Explaining the Conservation Failure of the EU's Common Fisheries Policy' [2000] Journal of Common Market Studies 303.
139. G Biais, 'An Evaluation of the Policy of Fishery Resources Management by TACs in European Community Waters from 1983 to 1992' (1995) 8 Aquatic Living Resources 241 and A Karagiannakos, 'Total Allowable Catch (TAC) and Quota Management System in the European Union (1996) 20 Marine Policy 235.
140. Daw and Gray (n 66) s 2.
141. Commission (EC), Application of the Precautionary Principle and Multiannual Arrangements for Setting TACs'COM(2000) 803 final,1 December 2000, and Commission (EC),'The Future of the Common Fisheries Policy' (Green Paper) COM(2001) 135 final, 20 March 2001, para 5.1.1.
142. Article 5 Basic CFP Reg 2371/2002.
143. See House of Lords, Select Committee on the European Community,'Progress of Reform of the Common Fisheries Policy' (2003) 25th Report Session 2002-03, HL Paper 109 paras 13-20, though critical comment was made on the delays in putting recovery and management plans into place.
144. Article 5(4)(d) Basic CFP Reg 2371/2002.
145. See Commission (EC) Communications, 'Proposals for Council Regulations Establishing Measures for the Recovery of Cod and Northern Hake Stocks' COM(2003) 237 final, 6 May 2003, and COM(2003) 374 final, 6 May 2003
146. European Commission, Fisheries, Press Release 22 December 2003, Outcome of the Fisheries Council of 17-19 December 2003
147. and Council (EC) Regulation 423/2004 of 26 February 2004, establishing measures for the recovery of cod stocks [2004] OJ L70/8.
148. See Commission (EC), Fisheries Press Release, European Commission's proposal on fishing possibilities: Why and how? 30 November 2005; Joe Borg: Council agreement on fishing possibilities for 2006 confirms gradual but sustained approach to stocks recovery 22 December 2005
149. and Plaice and sole in the North Sea: a long-term plan for healthier stocks and economic returns, 10 January 2006. Most recently, see Commission (EC), 'Proposal for a Council Regulation Establishing a Multi-Annual Plan for the Cod Stocks of the Baltic Sea and the Fisheries Exploiting those Stocks' COM(2006) 411 final, 24 July 2006.
150. House of Lords, Select Committee on the European Community, 'Progress of Reform of the Common Fisheries Policy' (2003) 25th Report, Session 2002-03, HL Paper 109 Box 1.
151. Commission (EC), 'Fishing Opportunities for 2008 Policy Statement from the European Commission' COM(2007) 295 final, 6 June 2007, 4 and 10.
152. Institute for European Environmental Policy, CFP Developments, IEEP Briefing 12 (IEEP, London 2003).
153. Under Art 2(1) Basic CFP Reg 2371/2002.
154. The 1992 Convention on Biological Diversity, available at www.biodiv.org. Particularly, see Decision V/6 of the Fifth Meeting of the Parties (2000) at www.biodiv.org/decisions/default.asp?Ig= O&m-cop-05&d=06 calling for the general application of the ecosystem approach and defining the key elements of the approach.
155. OSPAR Convention on the Protection of the North East Atlantic, available at http://www.ospar.org. See Annex V, on the Protection of the Ecosystems and Biological Diversity of the North East Atlantic, which makes reference to an'integrated ecosystem approach' that the OSPAR Commission is bound to apply, reaffirmed in OSPAR Agreement 2003-21, available at http://www.ospar.org/eng/html/welcome.html. See also the Bremen Statement of the first joint meeting of the OSPAR and Helsinki Commissions in 2003, incorporating a further commitment to the ecosystem approach, at www.northseaconference.no. Subsequently, see Johannesburg Plan of Implementation (2002) Para 30(d) encouraging the application of the ecosystem approach by 2010.
156. House of Lords, Select Committee on the European Community, 'Progress of Reform of the Common Fisheries Policy' (2003) 25th Report, Session 2002-03, HL Paper 109 Para 11. There is an extensive literature onecosystem management'approach to natural resources management, particularly from a United States' perspective. A good starting point is RO Brooks, R Jones and RA Virginia, Law and Ecology: The Rise of the Ecosystem Regime (Ashgate, Aldershot 2002).
157. For international guidelines on the application of the ecosystem approach to fisheries see FAO, Fisheries Management: 2. The Ecosystem Approach to Fisheries (FAO, Rome 2003) (FAO Technical Guidelines for Responsible Fisheries 4, Supplement 2). For a more specific discussion of the application of an ecosystem approach to the CFP see, JG Pope and D Symes, An Ecosystem Based Approach to the Common Fisheries Policy: Defining the Goals (English Nature, Peterborough 2000).
158. Para 1 Decision V/6 of the Fifth Meeting of the Parties to the Convention on Biological Diversity (2000) (n 109).
159. RCEP (n 20) para 7.38.
160. Ibid. para 7.47.
161. Although ecosystem concerns might be seen as relevant to the application of emergency powers under Arts 7-10 Basic CFP Reg 2371/2002. See EM De Santo and PJS Jones, 'Offshore Marine Conservation Policies in the North East Atlantic: Emerging Tensions and Opportunities' (2007) Marine Policy 336, s 5.
162. Decision V/6 of the Fifth Meeting of the Parties to the Convention on Biological Diversity (2000) (n 109) para 4.
163. For discussion of the regulatory difficulties in applying adaptive management see JB Rhul, 'Regulation by Adaptive Management - Is it Possible? (2005) 7 Minnesota Journal of Law, Science and Technology 21 and BC Kirkkainen,'Panarchy and Adaptive Change: Around the Loop and Back Again' (2005) 7 Minnesota Journal of Law, Science and Technology 59.
164. On the feedback loop and other 'decision rules'relating to adaptive management, see Cooke and Earle (n 38) 256.
165. Commission (EC) (n 12) 21. Also, on the role of adaptive management in precaution, see L Emerton and others, 'Economics, the Precautionary Principle and Natural Resource Management: Key Issues, Tools and Practices' in Cooney and Dickinson (n 14) 253 at 270; R Cooney and B Dickinson 'Precautionary Principle, Precautionary Practice: Lessons and Insights', Ibid., 287 at 297
166. Cooney (n 19) 238
167. and J Jones, 'Regulatory Design for Scientific Uncertainty: Acknowledging the Diversity of Approaches in Environmental Regulation and Public Administration' [2007] JEL 347 at 361.
168. See p 26 above.
169. See McGarvin (n 26) 35.