Abstract
The South China Sea Arbitration is only the fourth case since the entry into force of the UN Convention on the Law of the Sea to touch on the issue of historic rights – in this case, traditional fishing rights. Traditional or artisanal fishing rights are acquired rights. This article reviews the basis and characteristics of a historic rights claim and compares it with the origin and properties of an entitlement-based fishing rights claim, which the Third UN Conference on the Law of the Sea mainstreamed into the body of international maritime law. And in light of this comparison, the article evaluates the Tribunal’s Award on the geographic scope of application of historic or traditional fishing rights in the exclusive maritime zones of a coastal State.
1 Introduction
Non-exclusively exercised historic rights, such as traditional fishing rights, have quietly enjoyed a welcome resurrection of late within maritime international law. In three notable awards delivered since the coming into force of the United Nations Convention on the Law of the Sea (UNCLOS), international tribunals have unequivocally confirmed that such historic rights enjoyed by fishermen of a third State within the exclusive maritime zone of a coastal State are preserved by the convention and compatible with its purposes.
In the two-stage State of Eritrea v. Republic of Yemen arbitration of the late-1990s, the tribunal – alluding to the traditional openness of southern Red Sea marine resources for fishing – observed that there
are important elements capable of creating certain “historic rights” [in maritime zones]1 … These special factors constitute a local tradition entitled to the respect and protection of the law2 … By its very nature, [this traditional fishing regime] is not qualified by the maritime zones specified under the United Nations Convention on the Law of the Sea.”3
A decade-and-a-half later, the tribunal in Republic of Mauritius v. United Kingdom affirmed that “States may possess particular rights … by virtue of bilateral agreements or local custom … [and] that the Articles [of the Law of the Sea Convention] were not intended to interfere with such [local custom or tradition-based historic] rights.”4 The multilingual terms of the convention and its negotiating history suggested in fact that States bore a positive “obligation to exercise their sovereignty subject to the ‘other rules of international law’” – to which traditional or historic fishing rights belong.5
In Philippines v. China, the court re-confirmed this view by noting that “traditional fishing rights constitute a vested right … [that] fall squarely within ‘the other rules of international law.’” Coastal States bore an obligation “to exercise their sovereignty subject to [these] ‘other rules of international law.’”6 Clearly, a third State’s local custom or tradition-based fishing rights within the exclusive maritime zone of a coastal State continue to obtain in prevailing maritime international law.
There exists, however, a discrepancy within jurisprudence over the geographic scope of enjoyment of such non-exclusively exercised historic fishing rights. In Eritrea v. Yemen, the court had observed that traditional fishing rights “were not qualified by the maritime zones specified under the United Nations Convention on the Law of the Sea” and operated in the territorial sea and exclusive economic zone (EEZ) of the coastal State.7 In Philippines v. China, the court took an opposite tack and limited such third-party rights to the territorial sea of the coastal State, observing along the way that it did “not consider it possible that the drafters of the Convention intended for traditional or artisanal fishing rights to survive the introduction of the exclusive economic zone.”8 A legitimate debate clearly remains to be had over this geographic scope and a key purpose of this three-part study is to begin filling this void. As far as possible, the study will lean on notable instances of case law since the entry into force of UNCLOS to buttress its points.
In part one, this paper will deconstruct the basis, characteristics and properties which when tied together go into the formation of a non-exclusive historic rights claim. It will show how such rights are formed and acquired, how they operate in maritime spaces today, and how they have a basis in and co-exist with the provisions of the UNCLOS. It will argue that this legal basis for ‘historic rights’ in foreign exclusive maritime zones derives from the notion of vested rights that attaches to individuals and communities that have pursued their livelihoods over an extended period in these waters. So long as this geographically-defined activity and enjoyment of resources was continuous, reasonable and certain and was exercised over an extended period of time by an inter-generational functional group of individuals, these practices obtain the force of law and crystallize into a private right that is akin to property.
Next, in part two, the study will aim to conceptually account for the surprising degree of resistance among specialists to the notion that such non-exclusively exercised historic fishing rights could continue to prevail within the exclusive maritime zones of a coastal State following the coming into force of the UNCLOS. The study will explain that the ‘sovereign right’ – an entitled right – to explore, exploit, conserve and manage the living resources of the sea that devolved to coastal States in their EEZ at UNCLOS III had its antecedents in the ‘preferential rights’ to adjacent waters that numerous coastal States in a situation of dependence on coastal fisheries had unilaterally declared or were increasingly asserting in the pre-UNCLOS III days. These rights embodied different properties in terms of their legal basis, nature of exercisability, jurisdictional competence, standard of evidence, degree of consent, and effect on maritime delimitation from that of ‘historic fishing rights’. These latter rights, which are of an acquired (than entitled nature), were first invoked in accordance with general international law principles embodied in the High Seas Convention of April 1958 and continue to obtain, residually, as part of “other rules” which are recognized by the general principles of international law.
Lastly, the study will grapple with the question of jurisdictional discrepancy over the geographic scope of exercise of non-exclusive historic rights within the maritime zones of a foreign coastal State. As pointed out earlier, the tribunals in Eritrea v. Yemen and Philippines v. China came down at rival ends on this question. In March 2015, the tribunal in Republic of Mauritius v. United Kingdom had laid out a detailed analysis of the intended scope of the general and “other rules of international law” – historic fishing rights being part of these “other rules” – within the framework of the UNCLOS. This study will lean, in part, on that analysis as well as the prior discussion of entitled rights versus acquired rights (in part two) to evaluate the pros and cons of the competing awards in Eritrea v. Yemen and Philippines v. China. It will argue that the court in Philippines v. China was remiss to equate an acquired right with an entitled right – in this instance, conflating ‘historic fishing’ with ‘habitual fishing’, and on this slim basis infer that the drafters of the UNCLOS intended to extinguish the former’s standing in law within a coastal State’s EEZ. ‘Historical’ fishing and ‘habitual fishing’ are separate kettles of fish in their legal derivation and practical significance and the oceans of the world are filled with instances of ‘habitual fishing practices’ that do not amount to the forming of a ‘historic fishing rights’ claim. Such third-State historic fishing rights can coexist comfortably with the exclusive rights that a coastal State enjoys in its exclusive maritime zones.
The study will close by briefly proposing that especially in waters within a semi-enclosed sea that have since become part of a coastal State’s EEZ, such privately-acquired rights should continue to prevail within each of the sea’s maritime zones. UNCLOS’ Article 123 counsel to bordering States that they “shall endeavor” to coordinate the management, conservation and exploitation of the living resources of the sea should be treated with utmost respect.
2 The Building Blocks of Historic Fishing Rights – Properties, Practice, and Precedents
The term ‘historic rights’ is a general one that describes any rights that a State may possess that would not normally arise under the general rules of international law, absent historical circumstances.
Historic rights in maritime spaces obtain in two forms – as a sovereignty-based right and as a lesser or more limited right that falls well short of a claim of sovereignty. ‘Historic title’ or ‘historic bays’ are examples of the former. They are specific in nature, pertain to maritime areas that are typically adjacent to the coastal State, bear the hallmarks of State sovereignty, and are directly referenced in Article 10(6) and Article 15 of the territorial sea provisions and Article 298 (a)(i) of the dispute settlement provisions, respectively, of the UNCLOS. Traditional or historic fishing rights or rights limited to access or passage are typically examples of the latter. They are by definition more generalized, are not confined to maritime areas that are adjacent to the coastal State, attach to a specific community, activity or resource, and fall well short of a claim of sovereignty. Traditional or historic fishing rights were by-and-large passed over during the fisheries-related deliberations at the Third UN Conference on the Law of the Sea.
Historic rights in maritime spaces are exercisable, too, in two forms – as an exclusively exercised right and as a non-exclusively exercised right. An exclusively-exercised right, such as ‘historic title’-based rights, is one that is indivisible and exclusive to the coastal State; it does not lend itself to being a shared right (that is, unless two or more coastal States consensually agree to a rights-sharing condominium). A non-exclusively exercised right, by contrast, lends itself to its exercise by a third State within the exclusive maritime zone or zones of the coastal State. It can coexist with that coastal State’s exclusively exercised rights within the latter’s exclusive maritime zones. Given that non-exclusively exercised rights, such as traditional fishing rights, constitute a lesser or more limited set of rights, they must likewise be accompanied by an equivalently narrower jurisdictional competency (if any) to regulate.
Nowhere in the Law of the Sea Convention is there a specific allusion to rights that can be exercised non-exclusively, and that too within the exclusive maritime zones of a coastal State. Given the comprehensive scope of the convention, this has left the impression among specialists and observers alike that the ‘sovereign rights’ that a coastal State enjoys to the living or non-living resources of the EEZ and continental shelf is not amenable to qualification or derogation. It has been left to international tribunals instead to confirm the continued preservation and protection of such non-exclusively exercised third State rights within the exclusive maritime zones of a coastal State. As such tribunals have noted, the preamble to the convention strictly affirms that “matters not regulated by the convention continue to be governed by the rules and principles of general international law.” Article 293(1) of its dispute settlement chapter makes provision for the adjudication of cases that reside within the body of “other rules of international law not incompatible with th[e] Convention.” And Article 297(1)(a) of the same chapter enables a dispute concerning the convention’s application or interpretation related to a coastal State’s exercise of sovereign rights and jurisdiction that contravenes the internationally lawful uses of the sea, including lawful uses originating within these “other rules of international law,” to be adjudicated in a LOS-constituted court.
2.1 Constituent Elements, Nature of Exercisability and Jurisdiction Related to Historic or Traditional Fishing Rights
The legal basis for ‘historic rights’ in foreign exclusive maritime zones stems from the notion of vested rights that attach to individuals and communities that have pursued their livelihoods over an extended period in a defined water area. The first stage award in Eritrea v. Yemen provides a cogent encapsulation of the set of elements that are capable of generating such a historic rights claim. These include: (a) the conditions that prevailed over many centuries with regard to the traditional openness of southern Red Sea marine resources for fishing; (b) the role that these conditions played in facilitating unrestricted traffic from one side to the other; (c) the common use that the mid-sea islands were put to by coastal populations without desire, or regard, for sovereign appropriation; and (d) the continuation of these activities in the absence of restrictions or regulations exercised by public authorities – much less the need to obtain authorization from sovereigns on either side of the Red Sea.9 So long as this geographically-defined activity and enjoyment of resources was continuous, reasonable and certain and was exercised without State authorization over an extended period of time by an inter-generational functional group of individuals, these practices obtained the force of law and crystallized into an acquired right that is akin to property.
Crucially, these rights are not the historic rights of States, as the tribunal in Philippines v. China reiterated, but the private rights of individuals, i.e., citizens, which vest with their State. As the eminent jurist Sir Gerald Fitzmaurice had commented:
Whereas claims to exclusive rights founded on the acts of individuals can only be maintained if the individuals were authorized, either in advance or ex post facto by the adoption and ratification of the acts, such would not appear to be the case where all that is involved is a claim of a non-exclusive character. Thus 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 the high seas and common to all, it may be said that their country has through them (and although they are private vessels having no specific authority) acquired a vested interest (emphasis added) that the fisheries of that area should remain available to its fishing vessels …10
Further, these vested rights that obtain to individuals and communities accrue to only that State or States whose nationals have plied their trade in these waters continuously. These vested rights, critically, are not of the order of the classic freedoms of the sea that is universal and available to all States. It is not a generalized right of access or enjoyment. They trace their codification in maritime international law to the other rules of law which are recognized by the general principles of international law and were enshrined in Article 2 of the High Seas Convention of 1958. And because these rules on the treatment of vested rights of foreign nationals fall squarely within these general and “other rules of international law,” these rights are preserved in the preamble and protected by the UNCLOS.
Where private rights are concerned, international law has also long recognized “that developments with respect to international boundaries and conceptions of sovereignty should, as much as possible, refrain from modifying individual rights.”11 This question of the force of acquired rights12 has for the most part arisen in international law in the case of State succession and the status of private rights under a successor dispensation – although it can analogously be extended to a paradigm-shift nature of change within a multilateral treaty regime. Such rights as a matter of legal stability are deemed to have not been extinguished, despite the ceasing in existence of the subject of the law – the prior State or legal regime. Importantly, such privately-acquired, property-like rights cannot be terminated at will and without reparation – and certainly not on the basis of mere implication or inference. As per general international law, “acquired rights are rights, corporeal and incorporeal, properly vested in a natural or juristic person and of assessable monetary value.”13 They cannot be stripped from the right-holder at will and without payment of reparations. Nothing in the text or travaux of the Convention suggests that its drafters intended to alienate such rights from their right-holders in the vast maritime spaces which were henceforth to be subject to a qualified form of enclosure.
Perhaps the most luminous insight to emerge from Eritrea v. Yemen was how – as in what shape and form – such privately acquired rights obtain in maritime spaces. In the same breath where it stated that there “are important elements capable of creating certain ‘historic rights’ [in maritime zones], the court observed that such rights “accrued in favor of both parties … as a sort of ‘servitude internationale’ falling short of territorial sovereignty.”14 An international servitude, or international easement, is a right short of territorial sovereignty under which the territory of one State, the servient State, is subjected to the permanent use of another State, the dominant State, for a specified purpose. It is a proprietary right of use by the dominant State and involves a negative restriction on the territorial rights of the servient or host State. The activity or usage that underlies this proprietary right must however have been exercised continuously, i.e., acquired over a long period of time, and although this property-like right is conferred upon the dominant State, it can never extend to becoming an exclusive right of possession. Typically, therefore, easements take the form of a non-possessory right or interest in access, passage and/or enjoyment of a resource that is held by a third State within the terrestrial space of a sovereign State. It vests only with that third State, or States, which can display the acquisition and crystallization of this right over an extended period of time. It is not a generalized right of access or enjoyment available to all States in the jurisdictional domain of the servient State.
Traditional or historic fishing rights of a third or dominant State within the exclusive maritime zones of a coastal or servient State constitute, correspondingly, a “sort of servitude internationale” in maritime spaces that have been subject to enclosure. Such rights are acquired, private rights which take a long period of time to form; once formed, they cannot be stripped at will from the rights-holder. Such rights bear property-like characteristics but can never become a possessory right; as such, they amount to a right of access to the living resources of the coastal State. Such rights are a vested right that accrue to only those States whose nationals have plied the relevant waters; as such, they are not a right of the order of the classic freedoms of the sea that is available to all. Such rights are non-exclusively exercisable rights; as such, they coexist with the coastal State’s exclusive rights and amount to a negative restriction or qualification of the sovereignty of the coastal or servient State. And insofar as issue of jurisdiction is concerned, Law of the Sea-constituted courts have corroborated the view of prior PCIJ and ICJ awards (in land-territorial instances) on international servitudes by circumscribing the exercise of this local tradition-based acquired right.15 Specifically, they have placed limitations on the historic fishing rights of the dominant State within the exclusive maritime zone of a coastal State and upheld the latter’s right to regulate.16
Traditional fishing rights are not the co-equal of the ‘sovereign rights and jurisdiction’ enjoyed by the coastal State in its exclusive maritime zones nor are they impervious to the latter’s regulation. They are a lesser or limited set of rights which, construed narrowly and by way of non-exclusive exercise, can coexist seamlessly with these sovereignty-based rights enjoyed by a coastal State in these zones.17 On these and other attributes, ‘historic fishing rights’ differ discernibly from the ‘preferential fishing rights’ that numerous coastal States in a situation of dependence on coastal fisheries had declared or were asserting beyond their territorial sea in the pre-UNCLOS III era. It is to these entitled rights that this study now turns.
3 Preferential/Sovereign Rights—Properties and State Practice
The concept of ‘preferential rights’ to the living resources of the sea can be traced to an Icelandic proposal tabled at the First UN Conference on the Law of the Sea in 1958 to allow coastal States to enforce (fish) catch-limitation and related conservation measures in the high seas adjacent to its territorial sea. At UNCLOS II, this concept of preferential rights was embodied in a joint amendment presented by Brazil, Cuba and Uruguay, which was subsequently incorporated by a sizeable vote into a joint U.S.-Canadian proposal concerning a 6-mile territorial sea and an additional 6-mile fishing zone, thus totaling a 12-nautical mile (nm) exclusive fishing zone, subject to a phasing-out period. Independent of this 12-mile exclusive zone, a Brazil-Cuba-Uruguay amendment also provided that the coastal State should enjoy
the right of claiming preferential fishing rights in any area of the high seas adjacent to its exclusive fishing zone when it is scientifically established that a special situation or condition makes the exploitation of the living resources of the high seas in that area of fundamental importance to the economic development of the coastal State or the feeding of its population.18
Although the fisheries and territorial sea question failed to pass by a single vote at UNCLOS II, both the Icelandic resolution (1958) and the joint South American countries’ amendment (1960) began to be overwhelmingly embodied in subsequent State practice to the point that States started to unilaterally declare exclusive fishing zones of varying breadths up to 200 nautical miles. This unregulated propagation of preferential claims to maritime rights and jurisdiction led in turn to friction over ‘high seas’ navigational freedoms with traditional maritime States but also fishing rights-related quarrels with other States that had habitually fished in these adjacent ‘high seas’ areas or held “historic fishing rights” thereto by way of long, uninterrupted practice. From a jurisprudential point of view, the most notable of these quarrels was the Federal Republic of Germany’s as well as the United Kingdom’s with Iceland’s exercise of unilateral and exclusive long-arm fisheries jurisdiction in the early-1970s.19
In the Fisheries Jurisdiction (Federal Republic of Germany v. Iceland) Case, the Federal Republic (West Germany) petitioned the court to compel Iceland to withdraw a unilateral regulation issued by its fisheries ministry in July 1972 that extended the latter’s zone of exclusive fisheries jurisdiction to 50-nautical miles from its then-present baselines. Germany did not seek to eject Iceland entirely from this zone which was at the time technically a part of the high seas; Iceland did enjoy “preferential fishing rights” in these adjacent waters, it admitted. Rather, Germany argued, Iceland as a coastal State dependent on fisheries and needing to establish conservation measures in respect to fish stocks in waters adjacent to its territorial sea that was common to all, compulsorily needed to do so on the basis of consultation and agreement, bilaterally or within a multilateral framework.20 By its failure to do so and subsequent acts of interference by its coastal patrol boats, Iceland had denied the “historic fishing rights” of German fishing vessels in these adjacent waters. These “historic fishing rights” were in accordance with the generally recognized principles of international law embodied in Article 2 of the High Seas Convention of 1958, and Iceland was obliged to pay “reasonable regard” to these German rights.21
In its ruling, the International Court of Justice (ICJ) supported Germany’s argument and proceeded to make important observations regarding the nature and properties associated with ‘preferential rights’ and the functional limits of jurisdiction that the coastal State was obliged to observe in these waters that were adjacent to its territorial sea. It noted that the concept of preferential rights was incompatible with the exclusion of all fishing activities of other States. Preferential rights, having become part of customary law at the time, did entitle the coastal State to a certain ‘priority’ in the exploitation and management of the living resources of the said waters; it did not confer exclusivity however. State practice, too, required that such rights could only be implemented on the basis of consultation and agreement.
Next, the court turned to the subject of Germany’s “historic fishing rights” within Iceland’s extended 50-nautical mile zone. Noting that the former’s vessels had started fishing in the Icelandic area by the end of the 19th century and that the total catch of these vessels had remained relative stable, the court laid down three important points. First, it concurred that the continuous, reasonable and certain exercise of traditional fishing over a duration of a bit under a century (since the late 19th century) was adequate to confer a ‘historic fishing right’ on Germany.22 Second, Germany’s “established right with regard to the fishery resources” was traced to the general principles of international law enshrined in Article 2 of the High Seas Convention and the coastal State (Iceland) was required to pay due regard to these rights.23 Third, Iceland’s preferential rights and Germany’s historic rights were not in conflict and could co-exist “concurrently” in this adjacent zone. Having said that, Iceland, the coastal State, enjoyed a priority in designing the regulations in the zone but needed to do so in consultation with Germany. Finally, the court proceeded to weigh-in on the linkage between preferential fishing rights and livelihood interests. Iceland’s preferential rights did not entitle it to unilaterally and according to its own discretion determine the extent of these rights. To the contrary, such preferential rights needed to be reconciled with the established rights, including historic fishing rights, of user States on the basis of equitability.24
By the late-1960s, the haphazard propagation of preferential claims to maritime rights and jurisdiction for fisheries purposes was gradually eclipsed by the discussions that led to the twin concepts of the exclusive economic zone (EEZ) and the ‘sovereign right’ of the coastal State to exploit, manage and conserve the living resources within this zone. The record of proposals advanced within the Ad Hoc and Permanent Sea-Bed Committee that was tasked to craft a regime to accommodate the interests of coastal and traditional user States reveals a fair amount of to-and-fro between ‘preferential rights’ proponents and ‘sovereign rights’ champions. The exclusive ‘sovereign right’ that did devolve in favor of the coastal State at the Third UN Conference ultimately settled the debate. In exchange, all exclusive coastal State entitlements to the living resources of the sea that were based on livelihood and economic development considerations beyond 200-nautical miles was extinguished. Livelihood considerations also ceased to be a relevant or special circumstance that could merit the shifting of a provisional boundary in the coastal State’s favor during the boundary delimitation process.25
The differences between preferential rights and sovereign rights adherents notwithstanding, one should not lose sight of the continuity and similarities among the two. Both ‘preferential rights’ and ‘sovereign rights’ were the entitled rights of States – as in, an entitlement that accrued to the State by way of a broad-based inter-State consensus and State practice. This was not the private rights of individuals and communities that had devolved to and vested with the State. Equally, States were not content to enjoy ‘preferential rights’ or ‘sovereign rights’ as a generalized fishing freedom. With developments in technology necessitating that coastal States prioritize the safeguarding of their zonal fisheries resources from over-exploitation by distant-water and/or developed-country fishing fleets, States sought to enshrine these freedoms in binding treaty law. This was not the case with traditional or artisanal fishing practices.
Second, both preferential rights and sovereign rights as well as historic fishing rights trace their basis in law to the ‘high seas’ freedoms that are available to States without exception. This having been said, historic fishing rights, as a vested right, traces its particular basis in law to the general and other rules of international law and not – unlike the case of preferential and sovereign rights – to the classic fishing freedoms of the sea that is universal and available to all States. The evolution of rights and jurisdiction associated with preferential and sovereign rights, too, has flowed along a separate stream, having been subsumed within the debates on rules concerning allowable catch, determination of harvesting capacity, utilization of resources, and access to surpluses at the Third UN Conference on the Law of the Sea. By contrast, references to historic or traditional fishing rights barely scratched the surface at UNCLOS III.
Third, States claiming preferential rights – tied as it was to livelihood and economic development considerations – needed to back their claim with scientific evidence and other forward-looking conservation-related measures that would attest to their situation of special dependence on fisheries. Following the confirmation of the vast expanse of the EEZ, this livelihood link was altogether dropped. By contrast, historic fishing rights legally continue to be tied to narrower traditional livelihood (though not economic development) concerns of affected individuals and communities. Evidentiary standards to back this claim is typically also much looser, unscientific, and harking backwards in time.
Finally, (non) requirements of consent operate on altogether different axes for an entitled right and an acquired right. A coastal State’s sovereign rights and jurisdiction in its EEZ is an entitled and standardized right; it does not depend on express proclamation. Historic fishing rights, too, do not depend on prior consent or authorization of a foreign coastal State. Given, however, that it is a residual and non-exclusively exercisable right that is junior to the sovereign rights and jurisdiction enjoyed by the coastal State, the standard of notorious, continuous and acquiesced exercise of State authority does not apply for such a right to obtain in the foreign coastal State’s exclusive maritime zones.
In summary, it is worth restating the court’s view in Tunisia v. Libya on the question of acquired v. entitled rights. In its award, the ICJ had succinctly summarized that history-based rights and continental shelf-based resource rights were governed by entirely distinct legal regimes in international law. “The first regime is based on acquisition and occupation, while the second is based on the existence of rights ‘ipso facto and ab initio’.”26 It stands to reason, then, that the rights and obligations associated with the exercise of such history-based rights should be evaluated too on their own attributes and merits. The yardstick of the convention-created sovereign rights and jurisdiction should not be summarily slapped on historic fishing rights nor should it cloud judgments about the standards and obligations which apply to this acquired right in maritime spaces.
4 Historic Fishing Rights and Geographic Scope of Exercise
The term ‘historic rights’ is general in nature and describes any rights that a State may possess that would not normally arise under the general rules of international law, absent historical circumstances. It is no longer a question of whether these rights are protected and preserved by UNCLOS. They unequivocally are. The key outstanding issue that remains in dispute is the geographic scope of their exercise in foreign exclusive maritime zones. Specifically, from a traditional or artisanal fisheries perspective, do these historic rights operate equally in each of the maritime zones listed in the UNCLOS? Or are they confined only to the territorial sea of the coastal State? The tribunals in Eritrea v. Yemen and Philippines v. China had come down on diametrically opposite sides on this question. During the second stage proceedings in Eritrea v. Yemen, the court had pronounced:
Th[is] traditional fishing regime … By its very nature it is not qualified by the maritime zones specified under the United Nations Convention on the Law of the Sea … [Rather] the traditional fishing regime operates throughout those waters beyond the territorial waters of each of the Parties, (emphasis added) and also in their territorial waters and ports …27
The court in Philippines v. China took the contrary view. It observed that:
having reviewed the extensive attention given to the question of fishing by nationals of other States in the exclusive economic zone …, the Tribunal does not consider it possible that the drafters of the Convention intended for traditional or artisanal fishing rights to survive the introduction of the exclusive economic zone (emphasis added). In this respect, the Tribunal disagrees with the conclusions of the tribunal in Eritrea v. Yemen (which held that the traditional fishing regime in the Red Sea extended throughout the maritime zones of those States) …28
Essentially, the quandary regarding their geographic scope boils down to a single question: Are such historic or traditional fishing rights compatible – as in with regard to their preservation and prevalence – with the convention’s purposes insofar as the rights and duties of States in the exclusive economic zone (EEZ) is concerned? A good place to start answering this question is the award in Republic of Mauritius v. United Kingdom.29 In it, the court provided an exhaustive legal analysis of the intended scope of the general and “other rules of international law” – historic fishing rights being part of these “other rules” – in the context of the UNCLOS.
In Mauritius v. United Kingdom, the tribunal began by agreeing with the view of an International Law Commission (ILC) review of 1956 which had dealt with the intended functional scope of the “other rules of international law” within the territorial sea of a coastal State.30 It concurred that:
… States may possess particular rights in the territorial seas by virtue of bilateral agreements or local custom (emphasis added) [and] that the [Draft Articles on the Law of the Sea prepared by the ILC study] were not intended to interfere with such rights … [While] there was no indication through this provision the [ILC] intended to create an obligation of compliance with any bilateral commitment a State might undertake in the territorial sea, nor [is] there any basis to assume that the intent of the provision changed between the Commission’s formulation of the Draft Articles [in 1956] and the adoption of the Convention in 1982…31
Essentially, a “local custom” or tradition, such as a traditional fishing right, was part of the body of ‘other rules of international law’ and States enjoyed a local custom or tradition-based right on this basis. Further, there is no reason to believe that the drafters of the UNCLOS intended to interfere or limit in any way, by way of the convention’s articles, such “local custom”-based rights of a historical/traditional nature hitherto enjoyed by a State or States within the territorial sea of a coastal State.
Next, the tribunal conducted a deep-dive into the non-English – but equally authentic Arabic, Chinese, French, Russian and Spanish – texts of the convention as well as a renvoi to material beyond the Convention so as to precisely interpret the rights and duties of the coastal State (United Kingdom, in this case) with regard to these ‘other rules of international law’. Looking across the various maritime zones created by the Convention, it noted:
… that each of the territorial sea (Article 2(3)), international straits (Article 34(2)), the exclusive economic zone (Article 56(2)), the continental shelf (Article 78(2)) and the high seas (Article 87(2)) includes a provision to the effect that States would exercise their rights under the Convention subject to, or with regard to, the rights and duties of other States or rules of international law beyond the Convention itself.32
Insofar as to whether the said article of the territorial sea provisions (Article 2(3)) was meant to create a binding obligation to comply with these other “rules of international law” or had been recorded for merely hortatory purposes, the tribunal came down firmly in favor of the former view. It pronounced that:
the multi-lingual ‘terms of the treaty in their context and in the light of its object and purpose’, together with the negotiating history of the Convention, lead to the interpretation that Article 2(3) contains an obligation on States to exercise their sovereignty subject to “other rules of international law (emphasis added).
Turning thereafter to the intended scope of the coastal State’s rights and duties insofar as the “due regard” owed to “other rules of international law” (Article 56(2)) within its EEZ, the tribunal was equally forthright in observing that:
In contrast to Article 2(3) [where the English text was ambiguous and required recourse to the equally authentic Arabic, Chinese, French, Russian and Spanish texts], the English text of Article 56(2) leaves no doubt that the provision imposes an obligation on the coastal State (emphasis added) … Article 2(3) requires the United Kingdom to exercise good faith with respect to Mauritius’ rights in the territorial sea. Article 56(2) requires the United Kingdom to have due regard for Mauritius’ rights in the exclusive economic zone. The Tribunal considers these requirements to be, for all intents and purposes, equivalent (emphasis added).33
The tribunal in Mauritius v. United Kingdom was essentially confirming that the “other rules of international law,” as preserved by the UNCLOS, applied in both these exclusive maritime zones – the territorial sea and the EEZ. A reference to these rules in Article 2(3) and Article 56(2) had not been incorporated in the convention for purely exhortative purposes; they were meant to create a binding obligation on the coastal State. If anything, this obligation to pay “due regard” to a third State’s non-exclusively exercised rights that belonged to the “other rules of international law” and was preserved by the convention applied just as forcefully within the exclusive economic zone.34
It follows, then, that for a historic right to obtain in each of the exclusive maritime zones created by the UNCLOS, it must be shown as per Mauritius v. United Kingdom to belong to the “other rules of international law.” Historic fishing rights easily meets this test. A second qualifying test for such third-State rights to prevail within the exclusive maritime zones of a coastal State was appended by the tribunal in Philippines v. China: the historic right claimed must be “not incompatible” with the convention’s provisions and purposes – as in, it must not directly or explicitly contradict a provision or provisions listed within the various article of the Convention. It is the legal analysis of this latter test to which this study now turns.
4.1 Philippines v. China and Standing of Historic Fishing Rights in Foreign EEZs
In Philippines v. China, the tribunal applied the two-standard test, albeit on its own terms. With regard to the first test, Manila had argued that the text of Article 2(3) of UNCLOS obliges a coastal State to exercise its sovereignty over the territorial sea (in this case, China, in the territorial sea of the Scarborough Shoal) subject to the Convention and “to other rules of international law.” Because traditional fishing, Manila argued, “has always enjoyed a privileged status in international law,” such activities “exercised over a long period of time without interruption or opposition” in another coastal State’s territorial sea, i.e. in the Scarborough Shoal, belonged to and was governed by the “other rules of international law” which Article 2(3) obliged the coastal State to protect.35 The court fully sustained this argument, going so far as to quote the Chagos Marine Protected Area Arbitration’s supporting opinion on this point.
With regard to the second qualifying test – whether a claimed historic right was “not incompatible” with the convention’s provisions, especially insofar as it obtained in the coastal State’s EEZ – the tribunal entertained but did not embrace or confirm the argument laid out by Manila at the November 2015 merits hearing. The Philippines had contended that a right that belonged to “other rules of international law,” such as historic fishing rights, could not obtain in the exclusive economic zone of the coastal State – as opposed to the territorial sea. Pointing to the equivalent provision within UNCLOS’ EEZ regime (Part V of the UNCLOS), Manila noted that Article 56(2) extends only so far as the provisions of the Convention and makes no reference to the ‘other rules of international law’. This is unlike the case with Article 2(3).
The tribunal acknowledged the Philippines’ argument vis-à-vis the (non) standing of China’s historic fishing rights within the former’s EEZ but did not feel obliged to comment or rule on whether the “other rules of international law” applied even in principle in the EEZ of a coastal State. Rather, with the adoption in the UNCLOS of the exclusive economic zone, the tribunal observed that an altogether new calculus now applied. Traditional fishing rights were now to be accorded differing treatments across differing maritime zones. They were to be explicitly preserved in the territorial sea of the coastal State. In archipelagic waters, such fishing rights were also expressly protected by way of Article 51(1). Turning thereafter to the EEZ, it ruled that:
… in contrast, traditional fishing rights are extinguished (emphasis added), except insofar as Article 62(3) specifies that “the need to minimize economic dislocation in States whose nationals have habitually fished in the zone” shall constitute one of the factors to be taken into account by the coastal State in giving access to any surplus in the allowable catch. The Tribunal considers that the inclusion of this provision – which would be entirely unnecessary if traditional fishing rights were preserved in the exclusive economic zone (emphasis added) – confirms that the drafters of the Convention did not intend to preserve such rights.36
The tribunal went on to remark that it:
[did] not consider it possible that the drafters of the Convention intended for traditional or artisanal fishing rights to survive the introduction of the exclusive economic zone (emphasis added). In this respect, the Tribunal disagrees with the conclusions of the tribunal in Eritrea v. Yemen (which held that the traditional fishing regime in the Red Sea extended throughout the maritime zones of those States) and considers that that tribunal was able to reach the conclusions it did only because it was permitted to apply factors other than the Convention itself under the applicable law provisions of the parties’ arbitration agreement.37
Having concluded so, the tribunal went on to rule that “acquired [traditional fishing] rights in the territorial sea … in contrast to the exclusive economic zone … remain protected by international law.”38 The essence of the tribunal’s reasoning, then, in Philippines v. China against the preservation of third-State historic fishing rights in the EEZ of a coastal State was that such rights are not compatible with the provisions (Article 62(3)) and purposes of UNCLOS. They fail the second (of two) qualifying test which requires that for historic rights to obtain in exclusive maritime spaces, they must not deny or rebut a provision or provisions listed within the articles of the convention. Because Article 311 of the convention effectively provides that the convention supersedes prior treaty and other international agreement-based rights that are in conflict with its articles, such third-State non-exclusively exercised rights fail the “[must] not [be] incompatible” test and are permanently extinguished in the EEZ of a coastal State.
The tribunal’s ruling is unsatisfactory from a number of perspectives – almost all of which have to do with its conflation of acquired rights with entitled rights and its blunt equivalation of ‘historic fishing’ with ‘habitual fishing’. The two are not synonymous.
First, Article 62(3) of the EEZ chapter of the UNCLOS which directs the coastal State “to minimize economic dislocation in States whose nationals have habitually fished (emphasis added) in the zone” also instructs the coastal State to take into consideration factors such as the capacity to harvest, access to the surplus of the allowable catch, the rights of land-locked States, and research and identification of stocks to ensure sustainable utilization of resources within its zone. Each of these attributes was part-and-parcel of the debates related to preferential and patrimonial rights, which was subsequently subsumed within the Ad Hoc and Permanent Sea-Bed Committee and later the Third UN Conference negotiations to craft a treaty-based regime of entitled rights. Following UNCLOS III, States could no longer point towards livelihood and economic development or to science-based conservation considerations to claim a basis for additional rights of an entitled nature (or as a factor in maritime boundary delimitation). The historic fishing right of individuals and communities, as an acquired right by contrast, obtains its standing in law by way of immemorial, continuous, reasonable and certain usage. Economic development and conservation considerations have no bearing whatsoever on their preservation or extinction.
Second, and staying with the same point, it was remiss of the panel in Philippines v. China to (a) equate ‘historic fishing’ with ‘habitual fishing’ and (b) proceed to extinguish the former’s standing in law by way of a mere two sentences – and that too on the basis of inference about intent of the convention’s drafters. The operative sentences in this regard are:
… [did] not consider it possible that the drafters of the Convention intended (emphasis added) for traditional or artisanal fishing rights to survive the introduction of the exclusive economic zone;
… considers that the inclusion of th[e Article 62(3)] provision [on the need to minimize dislocation in States whose nationals have habitually fished in the zone] – would be entirely unnecessary if traditional fishing rights were preserved in the exclusive economic zone (emphasis added) – confirms that the drafters of the Convention did not intend to preserve such right.
‘Historically fished” and “habitually fished” are by no means identical. To the contrary, the oceans of the world are filled with plentiful instances of ‘habitual fishing practices’ that do not amount to forming a ‘traditional or historic fishing rights’ claim. In Barbados v. Trinidad and Tobago, the Tribunal had observed that a thirty-year period of Barbadian traditional fishing for flyingfish off the coast of Tobago was too short a time to sufficiently give rise to a local tradition – as in, give rise to a historical right.39 Evidence of such non-exclusive access and usage needed to be shown for a much longer period of time – perhaps a century or more or over multiple generations. Barbadian fishermen were ‘habitual users’ of Trinidadian coastal waters; they were not ‘historic users’ of these waters. Similarly, it is hard to reconcile the Philippines v. China panel’s view that the drafters of the Convention intended to substitute ‘habitual’ usage rights for ‘historic’ fishing rights in the text of Articles 62(2) and 62(3). To the extent that the Third UN Conference did deal with “nationals [who] have habitually fished in the zone,” it did so in the specific context of access to the surplus of the allowable catch and avoidance of wastages in the coastal State’s EEZ. This is very different discussion from affirming – or denying – a generalized right of access that forms from long-standing private acquisition.40
Third, it is an essential principle of law that consequential rights, such as privately-acquired rights, stemming from long-standing access and enjoyment, are not deemed to be – and cannot be – terminated by implication. To make a claim to the contrary, one would have to demonstrate that State Parties to the Convention intended to alienate or terminate the historically-acquired rights of traditional fishermen. Combing through the travaux of the UNCLOS, Reisman and Arsanjani find no compelling evidence that the drafters intended to alienate these traditional rights from their right-holders in the vast maritime spaces that were to be subject henceforth to enclosure. For its own part, the panel in Philippines v. China had recalled that “traditional rights, in the absence of an explicit agreement to the contrary” remain substantially unaffected and that “developments with respect to … conceptions of sovereignty should, as much as possible, refrain from modifying [such] individual rights.”41 The same principle was recognized with respect to jurisdiction at sea in the Bering Sea Arbitration. No such explicit intent is recorded within the text or travaux of the Convention.
Fourth, sovereign rights and jurisdiction over the EEZ, like sovereignty over the territorial sea, can only be exercised subject to the conditions laid down by international law. The limitations which international law imposes on the power of the State in respect of the latter’s ‘sovereign rights’ over the EEZ are greater than those it imposes in respect of the sovereignty over the territorial sea. It stands to reason, then, that a privately-acquired right which does not cease on a change of sovereignty (and obtains fully in the territorial sea, as the panelists themselves ruled), should not cease on the assigning of a newly-created ‘sovereign right’ in favor of the coastal State in its EEZ. To the contrary, it should apply more forcefully in the EEZ. Surely, it cannot be the case that one can clear a hurdle that is six feet tall but cannot clear a similar one that is four feet tall!
Finally, the tribunal offered no satisfying reason, or defense, why the established jurisprudential basis by which non-exclusive ‘historic rights’ form in maritime spaces was, as of 12 July 2016, legally unsustainable. In Eritrea v. Yemen, the court had imaginatively ruled that such rights accrue as a sort of servitude internationale (i.e. as a sort of non-possessory right or interest in access and/or a resource). The tribunal in Philippines v. China pointed instead to key “pertinent factors” listed by Manila in its March 2014 Memorial42 to the court as the reason why the Eritrea v. Yemen panel was empowered to “go beyond the law on traditional fishing as it would exist under the Convention.”43 Traditional Chinese fishing practices in the South China Sea materially satisfy most of these listed “pertinent factors” (historic tradition of joint use of the mid-sea islands and islands’ waters by fishermen; no need for prior authorization; absence of regulations historically on their activity).44 And while it is true that Eritrea and Yemen had a draft agreement prior to their arbitration to share the full extent of their waters to each other’s traditional fishermen, historic fishing rights are not contingent on the consent of the coastal State, as the tribunal in Philippines v. China had itself ruled. More broadly, by failing to engage the servitudes-based argument put forth in Eritrea v. Yemen, the tribunal in Philippines v. China missed a useful opportunity to intellectually deepen the reasoned basis for the existence – or extinction – of historic fishing rights in the EEZ of a coastal State, and proceeded, instead, to tear down an economically useful facility – servitudes/easement – that both the ICJ and the PCIJ, have paid obeisance to in the course of judgments spanning the 20th century.
For these listed reasons, it is not possible to agree that Philippines v. China made a robust and reasoned ruling with regard to the standing of a third-State’s ‘historic fishing rights’ within the EEZ of a coastal State. Privately-acquired and non-exclusively exercised rights ought to be compatible with UNCLOS’ purposes and provisions in each of the exclusive maritime zones created by the Convention. Moreover, they are fit to prevail even more forcefully within the exclusive maritime zones in a semi-enclosed sea.
5 Concluding Observation
UNCLOS’ provisions on (enclosed and) semi-enclosed seas are composed of just two articles. They are unique, nonetheless, in that the drafters of the Convention deemed semi-enclosed seas to be a somewhat-special geographic zone that was more amenable to cooperation and collaboration among its bordering coastal States than the other elaborated maritime zones.45 Article 123 specifically counsels bordering States that they “shall endeavor” to coordinate the management, conservation, exploration and exploitation of the living resources of the sea. Bearing Article 123’s counsel in mind, China and ASEAN should, as a first step, devise a Regional Arrangement for Traditional Fisheries Cooperation and Conservation, which sets aside the question of sovereignty and exclusive sovereign rights while sharing the living resources of this semi-enclosed sea. The perimeter of the South China Sea should be treated as the common perimeter of the historically-consolidated fishing rights of all traditional – not commercial – fishermen of every coastal State that borders this body of water. These third-State fishing rights would be exercised non-exclusively in each of their respective EEZs, with jurisdiction to regulate such traditional fishing activities devised cooperatively but enforced individually by each coastal State in its EEZ. Such an arrangement will be a giant leap for regional functional cooperation. It will also be a fittingly creative way to honor UNCLOS on the approaching 25th birthday of its entry into force.
State of Eritrea v Republic of Yemen, “Award of the Arbitral Tribunal in the First Stage of the Proceedings (Territorial Sovereignty and Scope of the Dispute),” 9 October 1998, at para 126.
State of Eritrea v Republic of Yemen, “Award of the Arbitral Tribunal in the Second Stage of the Proceedings (Maritime Delimitation),” 17 December 1999, at para 95.
Ibid., at para 109.
Republic of Mauritius v United Kingdom of Great Britain and Northern Ireland, “In the Matter of the Chagos Marine Protected Area Arbitration,” 18 March 2015, at para 516.
Ibid., at para 514.
Republic of Philippines v People’s Republic of China, “In the Matter of the South China Sea Arbitration,” 12 July 2016, at para 808.
State of Eritrea v Republic of Yemen (Second Stage), supra note 3 at para. 109.
Republic of Philippines v People’s Republic of China, supra note 7 at para. 803.
State of Eritrea v Republic of Yemen (First Stage), supra note 2 at para. 126.
G. Fitzmaurice, The Law and Procedure of the International Court of Justice, 1951–54: General Principles and Sources of Law, 30 British Yearbook of International Law 1 (1953) 51.
There is substantial State practice too recognizing the survival of such trans-boundary resource rights associated with pre-existing traditional activities following a “disruptive” boundary delimitation agreement. On this point and for an exhaustive listing of European State practice in this regard. See Michael W. Reisman and Mahnoush H. Arsanjani, ‘Some Reflections on the Effects of Artisanal Fishery on Maritime Boundary Delimitation’, in Tafsir Malick Ndiaye and Rudiger Wolfrum (Eds.), Law of the Sea, Environmental Law and Settlement of Disputes: Liber Amicorum Judge Thomas A. Mensah (2007) 634–635.
Acquired-rights doctrine posits that a change in the supreme power in a country cannot affect the interests of individuals. An immediate, fixed right cannot be limited by later laws passed by government.
On this point, see D.P. O’Connell, The Law of State Succession, quoted in Reisman and Arsanjani, supra note 11 at 659.
State of Eritrea v Republic of Yemen (First Stage), supra note 2 at para. 126.
The two notable cases in this regard are the Right of Passage case and the S.S. Wimbledon case. See Portugal v. India, “Case Concerning Right of Passage over Indian Territory,” International Court of Justice, 12 April 1960. See also “Case of the S.S. Wimbledon,” Permanent Court of International Justice, 17 August 1923.
On this point, see Republic of Philippines v People’s Republic of China, supra note 7 at para. 809. See also State of Eritrea v Republic of Yemen (Second Stage), supra note 3 at para. 106.
See also Ted L. McDorman, ‘Rules and Jurisdiction over Resources in the South China Sea: UNCLOS and the ‘nine-dash line’’, in S. Jayakumar, Tommy Koh and Robert Beckman (Eds.), The South China Sea Disputes and the Law of the Sea (Edward Elgar Publishing, 2014) at 158–159.
The Brazil-Cuba-Uruguay amendment deemed “a special situation or condition” to exist when: (a) “the fisheries and the economic development of the coastal State or the feeding of its population are so manifestly interrelated that, in consequence, that State is greatly dependent on the living resources of the high seas in the area in respect of which preferential fishing is being claimed.” And (b) “it becomes necessary to limit the total catch of a stock or stocks of fish in such areas …” See Federal Republic of Germany v. Iceland, “Fisheries Jurisdiction Case,” at para. 49.
Federal Republic of Germany v. Iceland, “Fisheries Jurisdiction Case,” 25 July 1974. United Kingdom of Great Britain and Northern Ireland v. Iceland, “Fisheries Jurisdiction Case,” 25 July 1974. Identical judgments were issued in both cases dis-favoring Iceland.
Germany and Iceland shared such a bilateral arrangement – the Exchange of Notes of July 1961. Iceland’s unilateral abrogation of its terms and extension of fisheries jurisdiction to 50 nautical miles was the trigger for the Federal Republic’s challenge at the ICJ.
Federal Republic of Germany v. Iceland, supra note 19 at para. 46 and para. 59.
Even Iceland did not dispute this point. It admitted the “existence of the Applicant’s – [Germany’s] – historic and special interests” to fishing in the disputed waters.
In this regard, the court went on to proclaim in its award that “Iceland’s unilateral action thus constitutes an infringement of the principle enshrined in Article 2 of the 1958 Geneva Convention on the High Seas.” Federal Republic of Germany v. Iceland, supra note 19 at para. 59.
Federal Republic of Germany v. Iceland, supra note 19 at para. 62.
The two key cases in this regard are the Gulf of Maine case and the Barbados v. Trinidad and Tobago case. See Canada v. United States of America, “Delimitation of the Maritime Boundary in the Gulf of Maine Area,” International Court of Justice, 12 October 1984, at para. 235. Regarding the latter case, see Barbados v. Trinidad and Tobago, 11 April 2006, at para 269.
Tunisia v. Libyan Arab Jamahiriya, “Case Concerning the Continental Shelf,” International Court of Justice, 24 February 1982, at para 100.
State of Eritrea v Republic of Yemen (Second Stage), supra note 3 at para. 109.
Republic of Philippines v People’s Republic of China, supra note 7 at para. 803.
Republic of Mauritius v United Kingdom of Great Britain and Northern Ireland, supra note 5.
While the tribunal in Mauritius v United Kingdom was primarily concerned with the rights and obligations of a coastal state in the territorial sea insofar as the general and “other rules of international law” was concerned, it did not limit its observations to the territorial sea. It weighed in on the applicability of these “other rules” in the EEZ too. The UK’s rights and obligations were implicated too in Mauritius’ application to the tribunal.
Mauritius v. United Kingdom, supra note 5 at para. 516.
Mauritius v. United Kingdom, supra note 5 at para. 503.
Mauritius v. United Kingdom, supra note 5 at paras. 519–520.
On this basis, the United Kingdom’s unilateral imposition of the Chagos Marine Protected Area (MPA) was found to be in breach of its Article 2(3) and 56(2) obligations of the UNCLOS.
Philippines v. China, first round submissions by Lawrence Martin, Legal Counsel for the Philippines on Day 2 of the Merits Hearing, 164–170.
Republic of Philippines v. People’s Republic of China, supra note 7 at para. 804 (b).
Ibid., at para. 803.
Ibid., at para. 804(c).
The Republic of Trinidad and Tobago v. Barbados, supra note 43 at para. 266.
On this point, see also Reisman and Arsanjani, supra note 11 at 655.
Republic of Philippines v People’s Republic of China, supra note 7 at para. 799.
See Republic of Philippines v People’s Republic of China, “Memorial of the Philippines,” Vol. I, 30 March 2014, at 96–97.
Republic of Philippines v People’s Republic of China, supra note 7 at paras. 259 and 803.
Manila admitted as much to this when it acknowledged at the Merits Hearing in November 2015 that artisanal fishermen from China have also fished “for as long as anyone can remember” in the northern sector of the South China Sea and “during the 19th and early 20th century” in the southern sector of the South China Sea. See Philippines v. China, Responses to Questions asked by the Tribunal, Lawrence Martin, Legal Counsel for The Philippines, on Day 4 of the Merits Hearing, November 2015, 114–115.
On semi-enclosed seas and cooperative endeavors, see Alfred Hu Nien-Tsu, Semi-enclosed Troubled Waters: A New Thinking on the Application of the 1982 UNCLOS Article 123 to the South China Sea, 41(3) Ocean Development & International Law (2010) 281–314.
