In 2022 the European Union (EU) and New Zealand (NZ) concluded a free trade agreement, signed on 9 July 2023, which has been heralded as a landmark setting instrument for the protection of environmental concerns. The purpose of this blog post is to offer insight into the features of the agreement in matters of marine fisheries and into whether and how it will preserve the EU Single Market form the erosion of existing commercial fishing regulation and control standards.

The Commission had announced prior to signature that the trade deal with New Zealand would not change European standards, and that the agreement would support international environmental commitments already made, while preserving each party’s right to conduct the regulation production and trade processes within their respective jurisdictions. Both the EU and NZ highlighted that the effective implementation of applicable international environmental agreements would be considered a matter of priority. The Commission indicated that attention would be paid to areas where trade and environmental agendas can support each other, including marine fisheries, and that care would be taken to promote trade in legally harvested and sustainable products.[1] Such manifestations imply the importance that the parties have attached to compliance with and implementation of international fisheries-relevant agreements, such as the Convention on International Trade in Endangered Species (CITES), the Agreement for the Implementation of the Provisions of the United Nations 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 (Fish Stocks Agreement or UNFSA), and other relevant treaties.

In the next few paragraphs, I review the fisheries-specific provisions of the EU-NZ trade agreement with a view to unwrapping the ways in which the agreement strengthens fishery governance and, if so, what tools and mechanisms it puts in place.  

That the agreement contains explicit references to fisheries conservation and management and IUU fishing control should not come as a surprise: Firstly, the EU has the ambition to consolidate its presence in the Indo-Pacific, where it sees New Zealand as an important partner.[2] EU strategy in the region has prioritised prosperity alongside ocean governance and security, including maritime security, amongst other areas.[3]  By implication, these priorities involve consolidating the presence and influence of EU in cooperation fora in the region, including fisheries governance institutions, and cooperating with trade partners to cement common approaches.[4] Secondly, sustainable trade and stopping the decline of biodiversity loss are also stated priorities of the EU in the region,[5] and it is clear that the Commission sees trade partnership agreements as an important part in the attainment of such strategy objectives.[6]

The agreement considers fishery products to be ‘wholly obtained’ in one party within the meaning of Art. 3.4(1) if they have been captured inside the territorial sea of that party (subparagraph f), or captured as part of marine fishing operations outside of the territorial sea in accordance with international law by a vessel flagged to a party (subparagraph h), or produced on board of a factory ship flagged to a party provided that the product results from the captures just specified (subparagraph i). Further, as is logical, habitual fishery management mechanisms such as the restriction of captures via the use of quotas, licences, or other tools, are excluded from the prohibition to restrict market access due to the establishment of quantitative limitations on enterprises, transactions, assets, or operations, established in Article 10.5(a) of the agreement.

An important provision is contained in Article 16.4, prohibiting harmful fisheries subsidies, and establishing cooperation mechanisms of a legal and non-legal nature, which include the implementation of the WTO Agreement on Fisheries Subsidies of June 2022. The effect of this is, inter alia, the prohibition of subsidies that contribute to enabling IUU fishing operations, as well as subsidies that sustain overcapacity and overfishing. This complemented by a broad accountability-contributing mechanism contained in Article 16.5, whereby the parties agree to disclose the form, quantum, recipients, and legal bases of subsidies within one year of the entry into force of the agreement and biannually thereafter.

The broadest section of the agreement with regard to fisheries governance is comprised in the series of provisions contained in Article 19.10, concerning trade and sustainable management of fisheries and aquaculture. The article commences with the acknowledgement of the role of trade in the management of fisheries and the broader context of marine resources and ecosystems, and the dependency of the sustainability of trade in fishery products from fishery management, removal of harmful subsidies, and IUU fishing control, highlighting the need for action to attain those ends (respectively subparagraphs 1 and 2). This provides context for a series of further declarations and commitments in subsequent subparagraphs.

Article 19.10(3) in subparagraph (a) sets out conservation and management obligations for the parties to “implement long-term conservation and management measures to ensure sustainable use of marine living resources based on the best scientific evidence available, the application of the precautionary approach and internationally recognised best practices” consistent with the LOSC and with applicable international fisheries law. The purpose of this obligation is stated to be to prevent overfishing and overcapacity, minimise by-catch of on-target species and juveniles, and promote the recovery of overfished stocks (respectively subparagraphs (i), (ii), and (iii)). Subparagraph (b) then establishes obligations in regard to international cooperation, and directs the parties to “participate constructively in the work of the regional fisheries management organisations” of which they are members, observers, or cooperating non-members, with the aim of achieving sustainability and good governance. Lastly, subparagraph (c) requires the parties to “implement an ecosystem-based approach to fisheries management” to minimise the broader impacts of fishing activities, particularly with regard to species recognised as threatened.

Paragraphs (4) and (5) of Article 19.10 address IUU fishing, commencing with an acknowledgement of international cooperation and coordination framed by international instruments, and following with an obligation to support monitoring, control, surveillance, and compliance and enforcement systems and measures serving to deter nationals and registered vessels from engaging or supporting IUU fishing and to responds when this occurs, and to encourage traceability tools, cooperation, and information exchange. Finally, paragraph (7) brings the article to an end by establishing a cooperation duty in trade related matters, whether bilaterally, regionally, or globally, and in all relevant fora, with a view to promoting sustainable fishing and trade practices.

These fisheries-specific provisions are then couched in general rules that are important for the seafood production and trading systems of both parties. For example, in Art. 19.12 the agreement refers to rules of responsible business and trade conduct and related corporate responsibility practices in the context of various relevant international voluntary frameworks that greatly reinforce environmental and social responsibility in the architecture and functioning of custody chains. Further, cooperation commitments are reiterated in various contexts, such as the conduct of trade in paragraph 12, the exchange of scientific and technical information in paragraph 13.

To summarise, the fisheries provisions of the agreement are wholly consistent with the strategic priorities of the EU in the Indo-Pacific region. As such, the agreement reiterates existing commitments made by the EU under international fisheries agreements such as the UNFSA, the 1993 FAO Compliance Agreement, and the 2009 Port State Measures agreement to strengthen the regulation of and oversight over fishing activities, and to exercise cooperation to enhance those ends and attain improved conservation and management of marine fisheries.

Most of the indicated agreement measures do not therefore innovate over existing legislation, or the regulatory status quo in the EU. Firstly, the agreement contextualises the fisheries activities of the parties in its logical UNCLOS framework. While it is rare (though not unknown) for declarations that specific fishery products have been obtained or produced in breach of international law, this first point of contact of the agreement with the need for fishery products to be obtained or produced in a manner that is consistent with international obligations is a welcome statement that reinforces the visibility and importance of international law. The agreement in Article 3.23 enables customs authorities to carry out verification checks to assess the origin the products in question, but stringent regulations dealing with the legality of seafood products from third countries into the internal market of the EU are already in existence,^[7] and the agreement does not really innovate in that respect.

Another reiteration of the state of regulatory affairs is framed in Article 19.10, which restates important duties involving cooperation and conservation and management of marine fisheries resources under existing and well-established international treaty frameworks. Yet, these are nevertheless reinforced by the provisions in Art. 19.12 in which the parties agree to promote responsible corporate practices, which are without doubt an important part of the key undercarriage to the successful implementation of said duties. Also worth highlighting is the provision in Article 16.4, which constitutes the visible implementation of recently made commitments under the WTO Agreement of Fisheries Subsidies by the EU in respect of IUU fishing, a welcome and visible sign of EU policy in this respect, vigorously underscored with transparency commitments that reinforce accountability for both parties.

Hence, overall the agreement consolidates existing commitments but also establishes the direction of travel in respect of some new policies. It further reinforces the role of trade as the strategic pièce de résistance for the EU in matters of fisheries control and conservation and management, now also made explicit in the context of its Indo-Pacific strategies.  

Mercedes Rosello, Leeds 2023

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[1] https://policy.trade.ec.europa.eu/eu-trade-relationships-country-and-region/countries-and-regions/new-zealand/eu-new-zealand-agreement/agreement-explained_en

[2] https://theconversation.com/a-trade-deal-with-the-eu-makes-sense-for-nz-but-whats-in-it-for-europe-symbolically-a-lot-186637

[3] https://ec.europa.eu/commission/presscorner/detail/en/qanda_21_4709 https://www.eeas.europa.eu/sites/default/files/eu-indo-pacific_factsheet_2022-02_0.pdf

[4] https://ecfr.eu/publication/fish-and-ships-chinese-fishing-and-europes-indo-pacific-strategy/

[5] https://www.eeas.europa.eu/sites/default/files/eu-indo-pacific_factsheet_2022-02_0.pdf

[6] See footnote 3, supra. 

[7] See in particular Council Regulation 1005/2008.