2. Historic fishing rights: Nature and holders

It has generally been accepted that the term ‘historic rights’ provides a broader umbrella concept which encompasses various rights based on historical usage. The Tribunal in the SCS arbitration noted that:

Historic rights short of sovereignty may take two different and distinct forms: (i) historic rights short of sovereignty which have a quasi-territorial or zonal impact beyond the territorial sea and non-exclusive historic rights,Footnote ¹² and (ii) non-exclusive historic rights which relate to activities performed in a non-exclusive way, do not have a zonal impact, and would thus be recognized in the maritime zones of another state. Passage and fishing rights are examples of the latter category.Footnote ¹³

Historic rights are generally considered to be exceptional rights which deviate from generally applicable rules.Footnote ¹⁴ In this sense, historic rights have been referred to as prescriptive rights. According to Fitzmaurice, these are special rights:

McGibbon points out the overlap among the ‘concepts of prescription, customary right and historic right’.Footnote ¹⁶ Thirlway also suggests that:

Historic fishing rights are, however, of a different nature, as they do not necessarily rely on adverse practice. In many instances, these rights were formed on the basis of lawful practice as part of the exercise of freedom of fisheries on the high seas. In this respect, they are not historic rights in the proper sense of the term (i.e., prescriptive rights).Footnote ¹⁸ The paradox of the use of the term ‘historic rights’ for rights acquired without adverse practice as part of the valid and lawful exercise of a freedom of the high seas was pointed out by some states at the Second UN Conference on the Law of the Sea (UNCLOS II) during the discussion about retention of fishing rights following the expansion of the territorial seaFootnote ¹⁹ and by commentators.Footnote ²⁰ Notwithstanding these terminological discrepancies, historic fishing rights are regarded to be of a non-prescriptive non-exclusive nature, and they do not necessarily require adverse practice for their formation. The practice will, however, become adverse if it continues after the extension of coastal state’s jurisdiction in the fishing grounds. Fitzmaurice argued that fishing rights can be acquired ‘if the fishing vessels of a given country have been accustomed from time immemorial or over a long period, to fish in a certain area, on the basis of the area being high seas and common to all’; he refers to this as ‘a vested interest’ and ‘acquired rights of fishery’ which ‘must continue to be respected if another country asserts a claim to that area as territorial waters, which is found to be valid or comes to be recognised’.Footnote ²¹

Historic rights are local or special customary rightsFootnote ²² relating to a specific maritime area where a shared regime has existed unobstructed for a long period of time. The localized character has been noted by the Eritrea/Yemen Tribunal regarding the fishing regime in the Red Sea. The Eritrea/Yemen Tribunal examined the existence of historic fishing rights in reference to the sovereignty dispute over certain islands in the Red Sea. It concluded that the ‘sovereignty found to lie with Yemen entails the perpetuation of the traditional fishing regime in the region, including free access and enjoyment for the fishermen of both Eritrea and Yemen’.Footnote ²³ With respect to this regime, it found that:

International servitudes relate to a special status/regime over a defined territory created by treaty between the state exercising sovereignty and a third state, and benefitting the latter.Footnote ²⁵ Similarly, historic fishing rights create a ‘burden’ (servitude) over a maritime area (fishing grounds) by custom (not by contractFootnote ²⁶) restricting the sovereignty (or sovereign rights) of a state. This would relate to the continuation of certain elements of a pre-existing regime which ‘has existed for centuries for the benefit of the populations’.Footnote ²⁷ In this way, two states are involved, the one burdened with the servitude, and the one in whose nationals’ favour the servitude operates.

The dictum of the Eritrea/Yemen Tribunal regarding international servitudes was mentioned approvingly by the Tribunal in the Abyei case.Footnote ²⁸ This Tribunal accepted the continuation of traditional grazing rights irrespective of the boundary established.Footnote ²⁹ This Tribunal made the link between customary rights and international servitudes to demonstrate the nature of these rights:

It also referred to the Rights of Passage case in support of its findings concerning the existence of local customary rights:

The SCS Tribunal discussed traditional fishing rights with respect to the Philippines’ claim that ‘China has unlawfully prevented Philippine fishermen from pursuing their livelihoods by interfering with traditional fishing activities at Scarborough Shoal’ (Submission 10).Footnote ³² The SCS Tribunal relied on the findings and reasoning of the Eritrea/Yemen award and noted that:

While the Tribunal in the Eritrea/Yemen case referred to historic and traditional rights interchangeably to describe a regime which had been established by the usage of fishermen in the area for a long period of time,Footnote ³⁴ the SCS Tribunal avoided any reference to historic fishing rights, and referred to these rights as ‘customary rights, acquired through long usage’.Footnote ³⁵ Reference to ‘traditional’ and not historic fishing rights by the SCS Tribunal may have been due to its desire to avoid confusion with the discussion concerning historic rights/titles under the Philippines’ submissions 1–2 which related to the validity of the Chinese claim to the nine-dash line and the existence of historic rights therein.Footnote ³⁶ The Tribunal also preferred the term ‘traditional fishing rights’ to stress the link between fishing rights and the customs and traditions of the local community. It thus used the term ‘traditional’ in a qualitative way linking it with the local customs and traditions.

Does the concept of traditional fishing rights coincide with historic fishing rights? The LOSC does not have any reference to historic fishing rights but refers to ‘traditional fishing rights’ in Article 51 with respect to archipelagic waters providing for the obligation of archipelagic states to ‘recognise traditional fishing rights’ of ‘immediately adjacent neighbouring states in certain areas falling within archipelagic waters’. This provision stems from concerns raised by states neighbouring the two main archipelagic states, namely Indonesia and the Philippines, regarding the uses of the sea in areas which would be enclosed by archipelagic baselines, and would become archipelagic waters where archipelagic states exercise sovereignty. While most states were keen to safeguard navigational rights through archipelagic waters, neighbouring states such as Singapore, Thailand, and Malaysia,Footnote ³⁷ were concerned about the impact these newly-established waters would have on uses of the sea (mainly fishing) performed by their nationals. The term ‘traditional rights’ was preferred to more general and ambiguous suggestions concerning ‘interests and needs’ of neighbouring states,Footnote ³⁸ and was used to denote rights acquired by usage over a long period of time by the fishermen of neighbouring states. There was no indication that this was necessarily linked to the local traditions or to the method or means of fishing (i.e., artisanal fishing).Footnote ³⁹ The scope and content of these rights were to be agreed by bilateral agreements between the interested states. The only bilateral agreement adopted under Article 51 LOSC between Indonesia and Malaysia clarifies traditional fishing with reference to ‘traditional fishermen using traditional methods in the traditional areas’.Footnote ⁴⁰

In both the Eritrea/Yemen and the SCS arbitrations, the Tribunals stressed the link between the activities of fishermen and the local culture. The Eritrea/Yemen Tribunal stressed that ‘this traditionally prevailing situation reflected deeply rooted culturally patterns’, ‘leading to the existence of what could be characterized from a juridical point of view as res communis permitting the African as well as the Yemeni fishermen to operate with no limitation throughout the entire area’.Footnote ⁴¹ The Tribunal referred to the ‘deeply rooted common legal traditions which prevailed during several centuries among the populations of both coasts of the Red Sea’.Footnote ⁴²

The SCS Tribunal also noted that such fishing rights are normally linked to the rights of local people to pursue their livelihood, and relate to the traditions and customs of a community. ^{Footnote 43} It also stressed the need to protect traditional fishing in international law as stemming ‘from the recognition that traditional livelihoods and cultural patterns are fragile in the face of development and modern ideas of interstate relations and warrant particular protection’.Footnote ⁴⁴ While protection of traditional and cultural practices and knowledge (especially indigenous), are protected in international law, for example as part of intangible cultural heritage or via various mainly human rights instruments, this protection is not the legal basis for the entitlement of access to fishing in the maritime zones of another state. It is the historical consolidation that provides the legal basis for these rights and therefore, as long as the requirements for the establishment of historic fishing rights are met, the qualitative elements of fishing, such as methods, gears, etc., are not relevant for the establishment of the entitlement but only to the ascertainment of its content. In this sense, traditional and historic fishing rights coincide.

With respect to the nature and the holders of these rights, the SCS Tribunal referred to these rights as private rights belonging to individuals and their communities but not to the state.Footnote ⁴⁵ It quoted the Tribunal in the Eritrea/Yemen case and endorsed the view expressed therein concerning the non-application of ‘the western legal fiction … whereby all legal rights, even those in reality held by individuals, were deemed to be those of the state’.Footnote ⁴⁶ However, the approach of the Tribunal in the Eritrea/Yemen case was not clear with respect to the nature and holders of these rights. It referred to ‘certain “historic rights” which accrued in favour of both parties’ implying that the rights belong to the states, and then continued to state that ‘this right entitles the fishermen of both states to engage in artisanal fishing’.Footnote ⁴⁷ These rights may be considered to be hybrid rights belonging to the state for the benefit of its nationals but also to the nationals themselves. In contrast to historic titles or exclusive historic rights, historic fishing rights belonging to the state normally arise due to the activities of individuals without necessarily the involvement of the state.Footnote ⁴⁸ These rights are closely associated with the individuals involved in the specific activities but are also linked to the state of their nationality.

The holders and beneficiaries of these rights will depend on the people engaged in the activities. The only criterion invoked by the SCS and Eritrea/Yemen Tribunals concerned the nationality of the fishermen and their links with the local communityFootnote ⁴⁹ which is not static but can be dynamic and evolving. It is not necessary that this community is indigenous. As noted by the Tribunal in the Abyei case, indigenous communities can be holders of historic/traditional fishing rights but these rights are not restricted to indigenous peoples.Footnote ⁵⁰ This approach avoids the problems associated with defining indigeneity, and uses a criterion, that of nationality, which is more easily ascertained.

3. Requirements for the establishment of historic fishing rights

In contrast to title-based historic rights, historic fishing rights do not create entitlement to a maritime area and are based on a shared and non-exclusive use of the sea. Their formation is thus different from historic titles. Historic fishing rights rely on the practice of fishermen in maritime areas often close to the coasts where they live, regardless of the legal status of the maritime zones and of the gradual extension of the jurisdiction of the coastal states. In this respect, the practice may have taken place within the territorial sea of a state, and thus have an adverse element (inconsistent with the legal status of the maritime zone), but also on the high seas (as part of the exercise of freedom of fishing). In both the Eritrea/Yemen and SCS cases, the development of historic fishing rights related to disputed sovereignty over islands which created uncertainty concerning which state exercised sovereignty or sovereign rights in the adjacent sea.

The Eritrea/Yemen Tribunal described the process for the formation of historic fishing rights with reference to the concept of ‘historical consolidation’.Footnote ⁵¹ Though controversial in international law, especially with respect to the acquisition of territory, the concept, as invoked by the ICJ in the Anglo-Norwegian Fisheries case, can provide an indication regarding the process and requirements for the establishment of historic fishing rights.Footnote ⁵² The ICJ found that the straight baseline system applied by Norway to its coasts was ‘a well-defined and uniform system … which would reap the benefit of general toleration, the basis of an historical consolidation which would make it enforceable as against all States’.Footnote ⁵³ The formation of special customary international law is also pertinent.Footnote ⁵⁴ The key requirements for the establishment of these rights are: consistent and clearly-defined fishing activities or ‘common patterns of behaviour’,Footnote ⁵⁵ often linked with local traditions and customs, which are performed uninterrupted and unobjected for a lengthy period of time.

With respect to the length of time, the Eritrea/Yemen Tribunal referred to the existence of the fishing regime for centuries and to its continuous exercise ‘through the ages’.Footnote ⁵⁶ The SCS Tribunal reiterated this and referred to practice ‘over an extended period’.Footnote ⁵⁷ The Tribunal in the Barbados/Trinidad and Tobago arbitration, on the other hand, rejected the existence of a tradition due to the short time of the performance of the practice:

It has been suggested that acquiescence plays an important role in the formation of historic rights/titles since these rights have been performed in an inconsistent way to general rules, and therefore the acquiescence of the affected states is a necessary element for their establishment.Footnote ⁵⁹ However, in the case of non-exclusive historic rights, acquiescence is not necessarily a constituent element for the formation of the rights. To the extent that fishing activities took place in the territorial sea of another coastal state, the practice has an adverse element and acquiescence plays a role. On the contrary, with respect to fishing activities on the high seas, the acquiescence of other states is not required as the practice was lawful in the first place.

The Eritrea/Yemen Tribunal referred to the operations of African and Yemen fishermen ‘with no limitation’ in the area and ‘without encountering difficulties of a political or administrative nature’.Footnote ⁶⁰ The Tribunal also noted that:

This last sentence demonstrates that the practice of these fishermen was unobstructed and not subjected to the jurisdiction of any authorities; there is, however, no mention to whether the authorities were aware of the practice and thus acquiesced. The SCS Tribunal did not refer to the acquiescence of any authorities but to ‘longstanding practice’ and ‘continuous’ activities by fishermen in the area.Footnote ⁶² The element stressed by both Tribunals was therefore the free exercise of these activities regardless of any authority (or legal status of the maritime areas).

The regime of shared exploitation stemmed from the understanding of neighbouring states and the individuals involved that these fishing grounds have historically been fished by the local communities and should therefore continue to be so. Since this relates to a shared ‘res communis’, there needs to be some understanding among the fishermen that these areas are subject to open access for local communities. This was pointed out by the Eritrea/Yemen Tribunal which referred to the fact that the legal tradition stemming from Islamic law regarding the right of all humans as ‘stewards of god’ to ‘sustain their nutritional needs through fishing from coast to coast with free access to fish on either side and to trade the surplus’, ‘remained vivid in the collective mind of Dankhalis and Yemenites alike’.Footnote ⁶³ This demonstrates that it is not only the actual practice that is important but also the understanding of the local people engaged in the activity that these fishing grounds are and should be open to all especially due to the dependence of the local communities on fishing for their livelihood.

The biggest challenge in ascertaining the existence of historic rights is the high threshold of proof required, and providing the required evidence demonstrating lengthy and uninterrupted fishing practice. This is the reason why international (and national) tribunals have very seldom found that historic rights have been consolidated. The Eritrea/Yemen Tribunal referred to ‘the most reliable historical and geographical sources, both ancient and modern’, to ‘a variety of sources’ supporting these ‘historical facts’ as ‘submitted in evidence during the arbitral proceedings’ and specifically referred to books on the history of the area and the Red Sea evidencing these activities.Footnote ⁶⁴ It also referred to ‘statements attributed to fishermen from both coasts of the Red Sea, taken as a whole, which have been submitted by both parties’.Footnote ⁶⁵ The SCS Tribunal referred generally to the ‘record before it’ supporting that ‘Scarborough Shoal has been a traditional fishing ground for fishermen of many nationalities’.Footnote ⁶⁶ The Philippines invoked various sources which allegedly illustrated the existence of traditional fishing rights of Filipino fishermen in the area since ‘ancient times’ and ‘time immemorial’.Footnote ⁶⁷ It referred to the Filipino names of the features which demonstrated the links between the fishing grounds and the fishermen in the nearby coast, a 1784 map showing the feature as part of the Philippines, a book and article from 1953 and 1960 respectively referring to Scarborough Reef as an important fishing ground, and sworn testimonies from local fishermen attesting to direct personal knowledge of local fishing (going back to 1972).Footnote ⁶⁸ In its assessment of the required evidence, the SCS arbitration took into account the nature of the activities and noted that ‘matters of evidence should be approached with sensitivity’ and specifically referred to the fact that the stories of these traditional fishermen ‘have not been the subject of written records’ and ‘that certain livelihoods have not been considered of interest to official record keepers or to the writers of history does not make them less important to those who practise them’.Footnote ⁶⁹ Furthermore, the Tribunal relied on the fact that both the Philippines and China claimed to have traditionally fished at Scarborough Shoal, and the Tribunal found that these claims were ‘accurate and advanced in good faith’.Footnote ⁷⁰

4. Historic fishing rights and the Law of the Sea Convention

This section addresses the question to what extent the Law of the Sea Convention and the validation of the expansion of the coastal state’s fisheries jurisdiction have erased and superseded historic fishing rights.

The Tribunal in the Eritrea/Yemen case found that these fishing rights continue to exist regardless of the maritime zones established by the LOSC, both within and beyond the territorial sea.Footnote ⁷¹ On the contrary, the Tribunal in the SCS arbitration drew a distinction between the territorial sea and the EEZ and found that traditional fishing rights have been preserved only in the territorial sea and not in the EEZ. This Tribunal distinguished the two arbitrations on the basis of the facts and the applicability of Article 293 of the LOSC which, according to its dictum, did not bind the Eritrea/Yemen Tribunal to apply only ‘the Convention and rules of law not incompatible therewith’.Footnote ⁷² Regardless of the validity of this argument,Footnote ⁷³ the question remains whether historic fishing rights are still relevant in the context of the maritime zones established by the LOSC.

The LOSC has only one reference to traditional fishing rights in Article 51 regarding archipelagic waters. There is no reference to such rights in the provisions on the territorial sea or the EEZ. The SCS Tribunal found that the explicit reference to ‘traditional fishing rights’ in Article 51 LOSC and the UNCLOS III negotiations on the EEZ demonstrate that traditional/historic fishing rights have been superseded in the EEZ and are only relevant for access to the surplus according to the conditions of Article 62(3).Footnote ⁷⁴ On the contrary, in the territorial sea, the Tribunal accepted the Philippines’ argument concerning Article 2(3) and the preservation of traditional fishing rights in the territorial sea.Footnote ⁷⁵

The distinction between the territorial sea and the EEZ in terms of recognition of third states’ rights cannot be justified with reference to Article 2(3) of the LOSC as its objective was to ensure that the maximum of state competence, namely sovereignty, is exercised in line with international rulesFootnote ⁷⁶ and not as the coastal state unilaterally desires. What is more, Article 58(2) provides that ‘other pertinent rules of international law apply to the exclusive economic zone in so far as they are not incompatible with this Part’. Neither can this distinction be convincingly explained with reference to the intention of states as this may give rise to the question of why states would accept (and have accepted) such a restriction in a zone in which they exercise sovereignty (and which is very important both for economic and security reasons), but not in a maritime zone further away from their coasts in which they exercise sovereign rights.

The key argument in the SCS Tribunal’s reasoning relies on the nature of these rights as private rights and the consideration of the expansion of the territorial sea by coastal states as ‘equivalent to the adjustment of a boundary or a change in sovereignty’.Footnote ⁷⁷ The SCS Tribunal invoked (land) boundary delimitation and sovereignty cases where vested rights were recognized and preserved.Footnote ⁷⁸ The most relevant case is the Abyei arbitration which examined the potential preservation of traditional grazing rights regardless of the establishment of the land boundary. However, this arbitral award does not justify the narrow construction adopted by the SCS Tribunal concerning the EEZ and the territorial sea; on the contrary, the reasoning and analysis by the Abyei Tribunal may arguably support the preservation of traditional rights regardless of the legal regime of maritime zones. The parties in that case had expressed their ‘intention to protect the exercise of traditional rights’Footnote ⁷⁹ and the Tribunal also found that:

In the maritime domain, boundary delimitation would also relate to the delimitation of the continental shelf and the EEZ in overlapping areas. Indeed, the Abyei Tribunal invoked case law related to the delimitation of the EEZ to provide support for this principle.Footnote ⁸¹ In the 1893 Behring Sea arbitration, the Tribunal was in favour of the continuation of traditional ‘rights of the citizens and subjects of either country as regards the taking of fur-seals in or habitually resorting to the said waters …’Footnote ⁸² and exempted these practices from the legal regime.Footnote ⁸³ At the time of the arbitration, the only recognized maritime zone was the territorial sea, but conclusions cannot be drawn with respect to the applicability of this principle in other maritime zones. On the contrary, what can be surmised from the fore-mentioned cases is that regionally-established traditional fishing rights should be preserved and guaranteed regardless of the maritime boundary or the legal regime of the waters.

What is more, there are some commonalities in the historical development of both the territorial sea and the EEZ with respect to the continuation of pre-existing fishing practices or rights of third states due to the seaward extension of the jurisdiction of the coastal state.Footnote ⁸⁴ The issue of non-exclusive historic fishing rights was discussed at UNCLOS II as part of the regime of the territorial sea especially due to the trend of unilateral expansion of the territorial sea of coastal states in parts of the high seas which used to be open to fishermen from different countries.Footnote ⁸⁵ It was disputed whether these discussions even concerned historic rightsFootnote ⁸⁶ as they focused on nations which had been fishing in the specific areas even for five–ten years legally as part of the freedom of the high seas; this discussion was about continuation of access to the resources despite the expansion of the territorial sea.Footnote ⁸⁷ The discussions were focused on finding a compromise for the transition to the exclusive fishing right of the coastal state ensuring that third states that used to fish in the area would not be adversely affected. Blum notes that following the inability of the Conference to decide on this issue, fishing rights of third states in the territorial sea were subsequently dealt with via bilateral fishing agreements.Footnote ⁸⁸

Similar discussions were held during UNCLOS III with respect to two new maritime zones of extended coastal jurisdiction, namely archipelagic waters and the EEZ. Article 51 of the LOSC is the only provision that explicitly mentions traditional fishing rights. As discussed above, the travaux of the negotiations demonstrate that this provision was a condition for the acceptance of the archipelagic concept by states neighbouring archipelagic states, especially Indonesia and the Philippines, and therefore the scope of application of this provision is quite limited.

There is no reference to traditional or historic fishing rights in the EEZ provisions of the LOSC. Article 62(3) LOSC was the outcome of negotiations on the regulatory and management regime concerning how the coastal state would exercise its sovereign rights to ensure optimum utilization.Footnote ⁸⁹ During the negotiations the majority of states were supportive of this new maritime zone,Footnote ⁹⁰ but concerns were raised about the impact of the extension of coastal state jurisdiction upon existing fishing practices, and also about the potential waste of sources of protein valuable for human consumption due to the inability of mainly developing states to exploit the resources in their newly-established EEZs.Footnote ⁹¹ Important distant-water fishing fleets (such as Japan and Spain) mainly raised the issue of access to the resources by states that habitually fished in the area,Footnote ⁹² which was reflected in Article 62(3) LOSC as access rights to the surplus. Some states made proposals providing for the reciprocal recognition and respect of neighbouring developing states’ fishing rights in the EEZ,Footnote ⁹³ while others referred to ‘traditional subsistence fishing’.Footnote ⁹⁴ These proposals were not discussed in detail, but it was suggested that such rights could be resolved on the basis of regional agreements concluded between the interested states.Footnote ⁹⁵ No relevant mention was made in the single negotiation text and the text of the convention.

The SCS Tribunal argued that the absence of a provision regarding historic fishing rights in the LOSC demonstrates that any such pre-existing rights have been superseded by the LOSC and referred to the Gulf of Maine case in support. ^{Footnote 96} This case addressed the impact of fishing practices on delimitation of the EEZ and not the existence of non-exclusive fishing rights and access rights. The United States had not invoked historic rights, but had referred to fishing and other maritime activities ‘as a major relevant circumstance for the purpose of reaching an equitable solution to the delimitation problem’. ^{Footnote 97} The Chamber of the ICJ did not refer to historic rights either, but mentioned the resemblance between the US claim and historic rights. ^{Footnote 98} It found that the maritime areas had been open to and ‘indeed fished by very many nationals’ of other countries, with the result that any fishing activities by US nationals were part of the freedom of the high seas. ^{Footnote 99} It was noted that the United States ‘may have been able at certain places and times … to achieve an actual predominance for its fisheries’ but that this ‘preferential situation’ did not continue following the adoption of 200 nm fishery zones. ^{Footnote 100} The Chamber thus rejected the relevance of this factor to maritime delimitation. There was no claim to access rights (to common fishing grounds) and a crucial issue was that this shared regime was terminated when coastal states’ jurisdiction was extended. Similarly, in the Trinidad and Tobago/Barbados arbitration, Barbados argued that the maritime delimitation should take into account ‘a centuries-old history of artisanal fishing’. ^{Footnote 101} The Tribunal found that there was no evidence of any traditional fishing rights as the practice was relatively recent ^{Footnote 102} and, therefore, rejected Barbados’s argument for an adjustment of the equidistance line. It pointed out, however, that it ‘does not however mean that the argument based upon fishing activities is either without factual foundation or without legal consequences’. ^{Footnote 103} The Tribunal did not discuss the potential existence of ‘a right of access for Barbadian fishermen to flying fish within the EEZ of Trinidad and Tobago,’ as it found that this was outside its jurisdiction. ^{Footnote 104}

State practice may demonstrate that regardless of the absence of a relevant provision in the LOSC, historic/traditional fishing rights of neighbouring states in the territorial sea and the EEZ have been recognized in bilateral or regional agreements. Most of these agreements were signed at the time when states extended their maritime zones and their jurisdiction regardless of the adoption and entry into force of the LOSC.

The 1974 Maritime Delimitation Agreement between India and Sri Lanka acknowledges the traditional fishing rights of fishing vessels from Sri Lanka and India in the historic fishing grounds of Palk Bay.Footnote ¹⁰⁵ The 1978 Agreement between Papua New Guinea and Australia provides for the continuation of traditional fishing practices regardless of the maritime boundary or the location of the maritime zones of the contracting parties. This agreement establishes a Protection Zone in the Torres Strait whose purpose is to ‘acknowledge and protect the traditional way of life and livelihood of the traditional inhabitants including their traditional fishing and free movement’.Footnote ¹⁰⁶ In this protected zone, the contracting parties ‘shall continue to permit free movement and the performance of lawful traditional activities in and in the vicinity of the Protected Zone by the traditional inhabitants of the other Party’.Footnote ¹⁰⁷ The Treaty also provides for the obligation to allow the continuation of exercise of ‘traditional customary rights of access to and usage of areas of land, seabed, seas, estuaries and coastal tidal areas’, ‘acknowledged by the traditional inhabitants’ ‘in accordance with local traditions’ in and in the vicinity of the Protected area.Footnote ¹⁰⁸ In a Memorandum of Understanding (MOU) between Australia and Indonesia in 1974, Australia undertook to allow operations of Indonesian traditional fishermen in the waters in the Australian Exclusive Fishing Zone and continental shelf around Ashore Reef and Cartier Island.Footnote ¹⁰⁹ Finally, in the 1964 LFC, the participating states mutually acknowledged the right of fishing vessels of other parties which had habitually fished in the area to continue to fish in a maritime area 6–12 nm from the coast.Footnote ¹¹⁰

These agreements are different from transitional agreements to allow fishermen from third states to adjust to the seaward expansion of coastal state jurisdiction,Footnote ¹¹¹ and also different from Article 62(3) access to the surplus arrangements. The state practice reflected in these agreements may demonstrate that the survival of historic fishing rights in the territorial sea and the EEZ of a state will depend on the local circumstances, the fishing history and the intentions and attitudes of the relevant states.Footnote ¹¹²

5. Treaty-based fishing access rights and historic fishing rights with reference to the 1964 London Fisheries Convention and the CFP

This section examines the relationship between historic fishing rights and rights of access to fishing resources recognized within a treaty framework, and in particular, taking into account the question raised by the Brexit process, to what extent historic fishing rights which have been endorsed in a treaty can be terminated by unilateral withdrawal from this treaty.

The objective of the LFC was to validate coastal states’ expansion of fisheries jurisdiction up to 12 nm, but also to deal with existing fishing practices related to shared fishing This was in line with relevant developments and discussions concerning the expansion of fisheries jurisdiction by coastal states at the time of the adoption of this Convention. The LFC does not refer to historic or traditional fishing rights, but recognizes the right of third states to fish in the maritime zone between 6–12 nm from the coast of each contracting party based on pre-existing fishing practices with particular reference to the period between 1 January 1953 and 31 December 1962. There is no reference to relevant fishing practices before 1953. These rights are recognized with the caveat that the states ‘shall not direct their fishing effort towards stocks of fish or fishing grounds substantially different from those which they have habitually exploited’. The Convention also refers to the possibility of the conclusion of further agreements between the contracting parties: first, to provide for a transitional period to allow fishermen to adjust to the new fishing regime in the 6 nm zone ; and second, to recognize further fishing access rights in this zone for fishermen who have habitually fished in the area ‘by reason of voisinage arrangements’ (Art. 9(2)).

Voisinage arrangements also rely on historic practices/rights. Symmons describes the voisinage doctrine as follows:

The key elements of these agreements are reciprocal recognition of long-established and respected fishing practices/rights of fishermen from neighbouring states in waters close to their coasts.Footnote ¹¹⁴ These arrangements recognize pre-existing fishing regimes but also determine the beneficiaries, the conditions for the exercise of these rights (i.e., size of vessels) and the relevant areas.Footnote ¹¹⁵

In the Barlow case,Footnote ¹¹⁶ the Irish Supreme Court examined the validity of a voisinage arrangement concerning the right of vessels registered in Northern Ireland to fish for mussels seeds within 6 nm off the Republic of Ireland’s coast. The arrangement was found to be within the framework of Article 9 para. 2 of the LFCFootnote ¹¹⁷ but had never acquired formal status in the form of a bilateral agreement.Footnote ¹¹⁸ The Supreme Court noted that at the international level this constituted no more than a gentleman’s agreement and could not generate legal consequences in cases of non-compliance.Footnote ¹¹⁹ Despite the fact that the Court stressed the lengthy duration of the practice (more than 50 years), it did not examine the concept of historic rights as the legal basis for the validity of the practice since the scope of its assessment related to national and not international law. The Court did, however, refer to the relationship between voisinage arrangements and tradition: a voisinage agreement was ‘little more than a sensible recognition at official level of practice and tradition whereby fishing boats did not necessarily remain within the national waters but fished neighbouring waters’.Footnote ¹²⁰ Following the Irish Supreme Court’s judgment, Ireland adopted legislation to provide for this arrangement in its national law.Footnote ¹²¹ This arrangement is not to be affected by the UK’s withdrawal from either the LFC or the EU.

Furthermore, some of the fishing arrangements of the LFC have been incorporated into EU law. Regulation 2141/70 which established equal rights of access of all EU fishing vessels to the waters of all member statesFootnote ¹²² was amended for the UK, Denmark, and Ireland after their accession to the EU.Footnote ¹²³ This amendment provided for a ten-year derogation from open access within a limit of 6 nm, and in some instances 12 nm, off the coast, recognizing the dependence of the local population upon fishing,Footnote ¹²⁴ and clarified that this was without prejudice to special fishing rights among certain member states.Footnote ¹²⁵ By virtue of Regulation 170/83 the derogation of equal access was reiterated (for ten more years) with an exception in favour of vessels of certain member states in the 6–12 nm zone as detailed in annex I of the Regulation.Footnote ¹²⁶ As noted by Churchill, for the UK these rights ‘very largely equated to those set out in the designation orders made under the Fishery Limits Act 1964 in implementation of the European Fisheries Convention’.Footnote ¹²⁷ Derogation in the territorial sea and exceptions in favour of certain states in the 6–12 belt of the territorial sea were incorporated in subsequent regulations.Footnote ¹²⁸ Churchill argues that the fishing rights recognized in favour of certain states in the London Convention have been absorbed and replaced by the relevant EU regulations. According to this author, these rights therefore exist not by virtue of the LFC but by virtue of EU law.Footnote ¹²⁹ A key question concerning the impact of the UK’s denunciation of the LFC and withdrawal from the EU upon third states’ fishing rights concerns whether these fishing rights were created by virtue of the Fisheries Convention and subsequently endorsed by the CFP, or whether these rights pre-existed its adoption and were thus acknowledged therein. In the former case, if the rights were established by the agreement, termination of the agreement will also lead to termination of the rights. Historic rights cannot be established by agreement, as this would contradict the concept of historic rights which requires lengthy and uninterrupted custom-based practice. The LFC does not refer to historic fishing rights. It recognizes pre-existing habitual fishing practice which forms the basis for the recognition of fishing rights, but does not clarify the nature of this pre-existing practice.Footnote ¹³⁰

However, if the rights existed irrespective of the LFC and were reflected therein (albeit not explicitly), it can be argued that unilateral withdrawal from the treaty will not erase these historic rights which have continued to exist in parallel to the treaty. A bilateral fisheries agreement cannot extinguish established rights unless there is explicit reference to them or clear indication of the intention of the parties. The understanding may be that the conventionally-recognized rights cover the pre-established rights, but the legal basis is dual – they operate in a parallel way. The same will apply with respect to whether the LOSC has superseded pre-established historic rights; this should be examined not in abstracto but in concreto, that is, based on the specific circumstances and the intention of the parties. These rights will relate to parts of the territorial sea of the states and specifically to the area between 6–12 nm from the coast. This is in line with the discussion in the previous section concerning the post-LOSC survival of historic fishing rights in the territorial sea of neighbouring states.

The case of the EEZ is more complicated. Access of third state vessels to the EEZ fishing resources and the determination of TACs and quotas based on Article 62 para. 3 of the LOSC is crucial in the Brexit debates and negotiations.Footnote ¹³¹ The expansion of coastal states’ fisheries jurisdiction and the introduction of fisheries zones by the member states of the EC raised concerns, during accession negotiations in the 1970s, regarding the application of the CFP that provided for a shared and open access regime. The UK, whose contribution of waters to the CFP exceeded that of other member states, was reluctant to accept that the EC fishing regime would apply to the extended fishing zones of the member states. ^{Footnote 132} The challenges were evident in the negotiations during UNCLOS III where the conflicting interests of the EC member states did not allow the presentation of a uniform position in the negotiations. ^{Footnote 133} During UNCLOS III, Denmark suggested that the implications arising from the adoption of EEZs and the impact upon traditional fishing should be dealt with through regional agreements taking into consideration socio-economic reasons and geographical circumstances. ^{Footnote 134} By the time the LOSC was adopted, the EC member states had already declared 200-nm fishing zonesFootnote ¹³⁵ in which the regime of shared and mutual access applied.Footnote ¹³⁶ Any potential historic shared fishing grounds were covered by this new regime which satisfied pre-existing fishing practices despite the extension of the jurisdiction of coastal states. In this way, the expansion of coastal state jurisdiction did not give rise to claims concerning pre-existing fishing rights as the member states were able to fish in their traditional fishing grounds subject to a regime of TACs and quotas decided by the European Commission.Footnote ¹³⁷ This quota allocation has been based on a ‘relative stability’ key which reflects historical catches and the dependence of local populations in certain regions upon fishing.Footnote ¹³⁸ Could termination of this regime lead to the revival of any pre-existing historic rights in the EEZ of member states? Provided, as argued above, that the EEZ regime has not superseded generally any pre-existing historic rights of neighbouring states, it could be argued that under certain circumstances historic fishing grounds and rights established before the expansion of coastal states’ jurisdiction based on a shared mutual regime could continue to exist. But this according to the relevant caselaw would relate only to neighbouring states and fishing grounds shared by fishermen especially of local fishing communities and only to the extent of historical usage. Since historical usage changed into a centralized management regime of TACs and quotas, this may give rise to the question whether the nature of any potential pre-existing fishing rights changed. The location of historical fishing grounds, historical catches and links with local fishing communities could demonstrate some continuity in fishing practices. This continuity may also be reflected in the ‘relative stability’ key used to determine quota allocation which corresponds to historical catches and practices.Footnote ¹³⁹ However, proving that such historic fishing rights had been established prior to the adoption of EEZs and continued after the introduction of the CFP may be challenging.

6. Conclusion

Historic fishing rights are different from sovereignty-based historic titles/rights as they reflect a continuation of a commons-based regime in the exploitation of marine resources, relying on activities of individuals and non-exclusivity. The two arbitral tribunals which have dealt with the issue of traditional/historic fishing rights have confirmed the existence and relevance of such rights but have accepted a different scope of application. In both cases, the practice concerned artisanal fishing and the practice of fishermen from neighbouring states. Historic or traditional fishing rights concern local communities and fishing grounds which have been fished by local fishermen for an extended period of time, but not long-distance fishing states. It should not, however, be thought that they are specifically restricted to artisanal fishing. The content of the fishing rights will be determined by the practice of the fishermen as it has evolved and developed during the establishment and formation of these rights. Despite the fact that the beneficiaries are individuals of local fishing communities, these are not private rights, but customary rights belonging both to the state of the nationality of the individuals and the individuals of this local community.

The most controversial aspect of historic fishing rights concern their relationship with the LOSC and the maritime zones recognized therein. Whereas any fishing practices of distant-fishing nations have been replaced by the EEZ regime with access rights, the existence of common fishing grounds of local communities which have existed for an extended period of time based on a shared practice and understanding of open access can lead to the establishment of historic/traditional fishing rights which cannot be superseded by the LOSC either in the territorial sea or the EEZ. The rationale of the establishment and preservation of these rights is to respect the long, continuous and uninterrupted practices of the local communities which are dependent upon fisheries for their livelihood. This would normally be in overlapping maritime zones and maritime areas close to the coast of littoral states. This does not mean, however, that this practice is excluded from the regulation and jurisdiction of the coastal state which exercises sovereignty or sovereign rights in that area.

However, the main challenge is to prove the existence of historic fishing rights. Ascertainment of these rights would require evidence demonstrating long, continuous and uninterrupted/unobjected practice and some understanding that the fishing grounds are open to fishermen of all littoral local communities regardless of the legal status of the waters and the state that exercises sovereignty or sovereign rights. As in the Eritrea/Yemen and the SCS cases, this may be linked with disputed sovereignty over islands and the fishing grounds around them. A critical point in time would be the extension of state sovereignty and sovereign rights (i.e., fishing jurisdiction) and either the continuation of this practice regardless of the extension or the recognition of shared fishing rights in agreements between the interested parties.

Historic/traditional rights have been incorporated in bilateral or regional treaties either regulating the fishing regime in a certain area or determining the maritime boundary. These agreements coincided with the expansion of the jurisdiction of coastal states as there was need for the regulation and clarification of third states’ rights following this expansion. These treaties delineate the scope and content of these rights following negotiations between the interested states. However, regardless of whether historic fishing rights are explicitly recognized in these treaties, provided that these rights pre-existed, the treaties cannot replace them without clear intention of the parties. They thus operate in parallel, and unilateral termination of the conventional regime cannot terminate pre-existing historic rights. Therefore, as suggested in this article, the UK’s withdrawal from the LFC and the EU would not automatically lead to the elimination of any historic fishing rights which existed in these waters and were recognized in these conventional regimes.