333
part, the Faroe Islands took this decision once the NEAFC had rejected its request
for reviewing the allocation of quotas. According to the Faroe Islands, the geographical distribution of herring and mackerel stocks was modified as a result of the
warming of sea waters caused by climate change, leading to a northwards movement of these species. As a consequence, the occurrence of these stocks in its EEZ
had increased, and the quotas determined by the NEAFC could not be regarded
anymore as proportional to their effective quantity within the waters under the jurisdiction of the concerned parties. The reaction by the EU consisted of a ban on
imports of herring and associated species of mackerel as well as of fishery products
containing or made of such fish, and restrictions on the use of EU ports by vessels
fishing for herring and mackerel stocks under the control of the Faroe Islands and
by vessels transporting fish or fisheries products stemming from that fishery.
49
Hence, also in this case, there was the initiation of two parallel proceedings, under
Part XV UNCLOS
50
and the WTO’s DSU
51
(even though this time the claims were
dance with recommendations from the International Council for the Exploration of the Sea (ICES).
On that basis, each year, the member States enter into negotiations to agree an allocation key for
dividing the TAC amongst them.
49 See Commission Implementing Regulation (EU) no 793/2013 of 20 August 2013 establishing
measures in respect of the Faeroe Islands to ensure the conservation of the Atlanto-Scandian herring stock. Under Art. 3 of the Regulation, “caught under the control of the Faeroe Islands’ was
intended as ‘caught by vessels flying the flag of the Faeroe Islands, or by vessels flying the flag of
another State which have been authorised to fish in the Faeroe Islands’ exclusive economic zone or
have been chartered by a Faeroese firm or by Faeroese authorities”. The EU’s initiative was
grounded on a number of regulations aimed at preventing, deterring and eliminating IUU fishing
within the EU waters as well as within maritime waters under the jurisdiction of third countries and
on the high seas. These include Council Regulation (EC) No 1005/2008 of 29 September 2008
establishing a Community system to prevent, deter and eliminate illegal, unreported and unregulated fishing and Regulation (EU) n. 1026/2012 of the European Parliament and of the Council of
25 October 2012 on certain measures for the purposes of the conservation of fish stocks in relation
to countries allowing non-sustainable fishing. According to Art. 4(1)(a) of the latter Regulation, the
Commission may adopt various restrictive measures in respect of countries allowing non-sustainable fishing, such as, among the others, quantitative restrictions on importations of fish caught
under their control and of fishery products made of or containing such fish, and restrictions on the
use of Union ports.
50 On 16 August 2013, Denmark, in respect of the Faroe Islands, initiated arbitration proceedings
against the EU pursuant to Annex VII to UNCLOS with regard to a dispute over the interpretation
and application of Art. 63(1) of the Convention concerning the shared stock of Atlanto-Scandian
herring. Documents relating to the Atlanto-Scandian Herring Arbitration (The Kingdom of
Denmark in respect of the Faroe Islands v. The European Union) may be found on the website of
the Permanent Court of Arbitration at pca-cpa.org/cn/cases/25.
51 On 4 November 2013, Denmark, in respect of the Faroe Islands, requested consultations with the
EU pursuant to Art. 4 DSU and Art. XXIII GATT, alleging that the EU measures violated Articles
I(1), V(2) and XI(1) GATT, setting out the most-favoured-nation (MFN) clause, the freedom of
transit of goods across the territories of the WTO member States and the prohibition of quantitative
restrictions respectively. See European Union-Measures on Atlanto-Scandian Herring: Request
for consultations by Denmark in respect of the Faroe Islands, 7 November 2013. On 8 January
2014, Denmark requested the establishment of a Panel (European Union-Measures on AtlantoScandian Herring: Request for the establishment of a panel by Denmark in respect of the Faroe
Islands, 10 January 2014), which was established by the DSB on 23 February 2014.
The Relationship Between International Trade Law and the Law of the Sea in the WTO…
part, the Faroe Islands took this decision once the NEAFC had rejected its request
for reviewing the allocation of quotas. According to the Faroe Islands, the geographical distribution of herring and mackerel stocks was modified as a result of the
warming of sea waters caused by climate change, leading to a northwards movement of these species. As a consequence, the occurrence of these stocks in its EEZ
had increased, and the quotas determined by the NEAFC could not be regarded
anymore as proportional to their effective quantity within the waters under the jurisdiction of the concerned parties. The reaction by the EU consisted of a ban on
imports of herring and associated species of mackerel as well as of fishery products
containing or made of such fish, and restrictions on the use of EU ports by vessels
fishing for herring and mackerel stocks under the control of the Faroe Islands and
by vessels transporting fish or fisheries products stemming from that fishery.
49
Hence, also in this case, there was the initiation of two parallel proceedings, under
Part XV UNCLOS
50
and the WTO’s DSU
51
(even though this time the claims were
dance with recommendations from the International Council for the Exploration of the Sea (ICES).
On that basis, each year, the member States enter into negotiations to agree an allocation key for
dividing the TAC amongst them.
49 See Commission Implementing Regulation (EU) no 793/2013 of 20 August 2013 establishing
measures in respect of the Faeroe Islands to ensure the conservation of the Atlanto-Scandian herring stock. Under Art. 3 of the Regulation, “caught under the control of the Faeroe Islands’ was
intended as ‘caught by vessels flying the flag of the Faeroe Islands, or by vessels flying the flag of
another State which have been authorised to fish in the Faeroe Islands’ exclusive economic zone or
have been chartered by a Faeroese firm or by Faeroese authorities”. The EU’s initiative was
grounded on a number of regulations aimed at preventing, deterring and eliminating IUU fishing
within the EU waters as well as within maritime waters under the jurisdiction of third countries and
on the high seas. These include Council Regulation (EC) No 1005/2008 of 29 September 2008
establishing a Community system to prevent, deter and eliminate illegal, unreported and unregulated fishing and Regulation (EU) n. 1026/2012 of the European Parliament and of the Council of
25 October 2012 on certain measures for the purposes of the conservation of fish stocks in relation
to countries allowing non-sustainable fishing. According to Art. 4(1)(a) of the latter Regulation, the
Commission may adopt various restrictive measures in respect of countries allowing non-sustainable fishing, such as, among the others, quantitative restrictions on importations of fish caught
under their control and of fishery products made of or containing such fish, and restrictions on the
use of Union ports.
50 On 16 August 2013, Denmark, in respect of the Faroe Islands, initiated arbitration proceedings
against the EU pursuant to Annex VII to UNCLOS with regard to a dispute over the interpretation
and application of Art. 63(1) of the Convention concerning the shared stock of Atlanto-Scandian
herring. Documents relating to the Atlanto-Scandian Herring Arbitration (The Kingdom of
Denmark in respect of the Faroe Islands v. The European Union) may be found on the website of
the Permanent Court of Arbitration at pca-cpa.org/cn/cases/25.
51 On 4 November 2013, Denmark, in respect of the Faroe Islands, requested consultations with the
EU pursuant to Art. 4 DSU and Art. XXIII GATT, alleging that the EU measures violated Articles
I(1), V(2) and XI(1) GATT, setting out the most-favoured-nation (MFN) clause, the freedom of
transit of goods across the territories of the WTO member States and the prohibition of quantitative
restrictions respectively. See European Union-Measures on Atlanto-Scandian Herring: Request
for consultations by Denmark in respect of the Faroe Islands, 7 November 2013. On 8 January
2014, Denmark requested the establishment of a Panel (European Union-Measures on AtlantoScandian Herring: Request for the establishment of a panel by Denmark in respect of the Faroe
Islands, 10 January 2014), which was established by the DSB on 23 February 2014.
The Relationship Between International Trade Law and the Law of the Sea in the WTO…