Brexit and fisheries access – Some reflections on the UK’s denunciation of the 1964 London Fisheries Convention

Background

On 2 July 2017 the government of the United Kingdom announced its intention to withdraw from the 1964 London Fisheries Convention (LFC). Plans to reshape the UK’s fisheries policy, including a 2017 Fisheries Bill, had already featured in the Queen’s speech on 21 June 2017. The Common Fisheries Policy (CFP) of the European Union has been unpopular with the UK’s fishing industry – and has been widely perceived as one where the UK may have more to gain than to lose by leaving the EU. The UK’s announcement has triggered mixed reactions. Michel Barnier, the EU’s Brexit negotiator, tweeted that it made no difference for the negotiations. Not all EU Member States are, however, fond of the prospect that the UK might use reciprocal fisheries access as leverage in the Brexit negotiations or –in the worst case scenario– close its waters to foreign fishing. Denmark has reportedly built a case against the UK based on “historic fishing rights” dating back to the 1400s, which it claims it could bring before the International Court of Justice (ICJ) if negotiations fail. This post takes a closer look at the implications of the UK’s denunciation of the LFC for Brexit and the question of historic fishing rights.

The LFC, its status, and the UK’s denunciation

The LFC is often cited as one of the first so-called “fisheries access agreements” – a type of treaty by which coastal States grant other States access to a surplus in fisheries within their territorial sea, exclusive economic zone (EEZ) and/or continental shelf (for the EEZ, see also Article 62(2) of the 1982 United Nations Convention on the Law of the Sea (UNCLOS)). The LFC is of historical interest because its States Parties accepted claims to an exclusive fisheries zone (EFZ) of up to 12 nautical miles (nm) instead of a territorial sea of only 3 nm – in exchange for a preservation of “historic fishing rights” in the other States Parties. (Notably, some later fisheries access agreements repeated the procedure of accepting jurisdiction in exchange for fishing rights with regard to the unilateral establishment of the first EEZs.) These treaty-based “historic fishing rights” refer to rights which are not themselves historic (as they were just created by a new treaty), but to rights which depend on some form of past fishing activity as defined by the treaty. The LFC, for example, confers fisheries access rights to States whose fishing vessels have habitually fished in that belt between 1st January, 1953 and 31st December 1962“ (Article 3). Thus, the LFC disregards fishing activity prior to 1953 and fishing activity in areas other than the belt between 6 and 12 nm. Since 1964, any fishing rights exercised by the parties to the LFC were based on that treaty, although historic fishing rights might be argued to exist in parallel under general international law.

The 12 current parties to the LFC are Belgium, Denmark, France, Germany, Ireland, Italy, the Netherlands, Poland, Portugal, Spain, Sweden, and the United Kingdom – all of which are EU Member States. It expressly allows for the establishment of a special régime in matters of fisheries […] as between States Members and Associated States of the European Economic Community“ (Article 10(a)). Such a special régime has been set up within the CFP, currently in Article 5 and Annex I of the basic CFP framework regulation (Regulation (EU) No 1380/2013). Under the CFP, all EU Member States enjoy equal access to fisheries in the joint EU EEZs, subject to the “relative stability” key for quota allocations. However, Member States may exclude their territorial sea from the application of the equal access principle, with the exception that other EU Member States’ “fishing vessels that traditionally fish in those waters from ports on the adjacent coast” may still fish in the area between 6 and 12 nm. These provisions expire by 31 December 2022.

Elimination of Treaty-Based Historic Fishing Rights

I argue that the CFP has superseded the LFC as lex specialis based on Article 10(a) LFC, and as such, these historic fishing rights derive directly from EU law. Legally, they are entirely separate from the “historic fishing rights” laid down in the LFC. As the UK will no longer be subject to EU law after Brexit (see Article 50(3) of the Treaty on European Union (TEU)), these historic fishing rights will thus cease to exist for the UK.

In a legal opinion commissioned by the Scottish Fishermen’s Federation in 2016, Robin Churchill takes the position that the LFC is in fact no longer in force (paras. 7-13). His arguments are based on Articles 30(3) and 59 of the 1969 Vienna Convention on the Law of Treaties (VCLT) and, broadly speaking, relate to the incompatibility of UNCLOS as a subsequent treaty to the LFC which deals with the same subject matter (see also Article 311(2) UNCLOS). These are interesting legal questions which deserve attention (and I am not sure I fully agree with the outcome), but I will refrain from discussing them here. In any case, the question of whether the LFC is a sleeping or a dead “dinosaur” is now moot with regard to the UK, which notified its denunciation of the LFC in accordance with Article 15 on 3 July 2017. As the Foreign and Commonwealth Office is also the depositary of the LFC, I could not help but notice that it diligently registered the UK’s denunciation notice in the status file the same day. Notably, the denunciation is conditional. It will take effect after the two years period prescribed by Article 15 LFC. If, however, the UK’s withdrawal from the EU pursuant to Article 50 TEU will be completed at a later date, the denunciation will take effect at that later date. For now, Brexit is set to take effect on 29 March 2019 if no agreement is reached until then. The two year period under Article 15 LFC will end in July 2019. Thus, the conditional text of the denunciation notice seems to take into account the possibility of a delayed Brexit. As the historic rights under the LFC are treaty-based, they do not exist independently from the LFC. As such, they will perish when the UK’s denunciation takes effect – as will any fishing rights under the CFP.

Can EU Member States Still Assert Historic Fishing Rights?

So what regime will apply if Brexit and the denunciation of the LFC take effect before the UK and the UK have negotiated a new agreement on reciprocal fisheries access (or if the UK chooses not to do so at all)? And what does this mean for those EU Member States whose vessels have traditionally fished in UK waters? The answer is fairly straightforward. Fisheries access to the UK’s waters will continue to be governed primarily by UNCLOS and –perhaps– historic fishing rights of third States under general international law. I will analyze both these potential sources of EU Member States’ fisheries access rights in turn.

First, coastal States have an obligation under UNCLOS to set an allowable catch and to grant other States EEZ fisheries access if (and only if) they [do] not have the capacity to harvest the entire allowable catch“ themselves (Article 62(2)). As Article 62 is located in Part V, there is no corresponding obligation with regard to the territorial sea. As is also acknowledged in a briefing paper submitted to the House of Commons on 4 July 2017, coastal States are also obliged to take into account, inter alia, the need to minimize economic dislocation in States whose nationals have habitually fished in the zone or which have made substantial efforts in research and identification of stocks“ when they grant EEZ access (Article 62(3)). The wording of that provision confers substantial discretion upon the coastal State.

There is also little in UNCLOS to stop coastal States from setting an allowable catch that exactly matches its fishing capacities. For that reason, one can at best speak of “relative rights” in the context of Article 62(3). If the UK chooses to grant access to other States than the traditionally involved EU Member States in the future, EU Member States could only argue that the UK has acted in bad faith in exercising its discretion. The coastal State’s discretionary decision is, however, excluded from the scope of compulsory dispute settlement under Part XV of UNCLOS (see Article 297(3)(a)) and only subject to conciliation under Annex V (see Article 297(3)(b)(ii)). It may be concluded that EU Member States will have no right to fisheries access to the UK’s territorial sea and EEZ under UNCLOS once the UK has “freed” itself from the CFP and LFC.

Second, EU Member States could try and claim historic fishing rights which have accrued under general international law. In its award on the merits of 12 July 2016, the arbitral tribunal in the South China Sea Arbitration (SCSA) described such historic fishing rights as “any rights that a State may possess that would not normally arise under the general rules of international law, absent particular historical circumstances” (para. 225). Equally, in its judgment of 1951 in the Fisheries Case (United Kingdom v. Norway), the ICJ had stated that a historic right “must […] be recognized although it constitutes a derogation from the rules in force [and] would otherwise be in conflict with international law” (pps. 130-131). As such, historic rights require “the continuous exercise of the claimed right by the State asserting the claim and acquiescence on the part of other affected States” (SCS Arbitration, para. 265).

As Churchill points out, however, EU Member States had access to the UK’s fisheries based on treaty relationships and vice versa (para. 15). As such access is based on consent rather than acquiescence, it arguably does not give rise to historic rights. This also means that, in order to establish historic fishing rights based on acquiescence, we would have to go back to the time before the entry into force of the LFC. Back then, however, coastal States were only entitled to a territorial sea of 3 nm. Even if a State such as, for example, Denmark could produce sufficient evidence supporting a claim to such traditional fishing rights, these rights would necessarily have been extremely limited in their geographical and substantive scope. Worse even, they might have been extinguished by the LFC given that it did not provide access within 6 nm of the coast.

Finally, most commercial fishing in the EU is nowadays industrial rather than artisanal and few individual fishermen and vessels (as opposed to States) can claim a longstanding tradition of fishing in UK waters. Therefore, any finding on historic fishing rights might potentially also conflict with the SCSA tribunal’s view that “traditional fishing rights extend to artisanal fishing that is carried out largely in keeping with the longstanding practice of the community, […] but not to industrial fishing that departs radically from traditional practices” (para. 798). The nature of the link between traditional fishing rights and artisanal fishing is discussed in more depth by Endalew Lijalem Enyew over at JCLOS Blog.

If one assumes, for the sake of argument, that historic fishing rights existed prior to the entry into force of UNCLOS, the matter becomes more complicated. First, the EEZ is widely considered to have “extinguished” any such rights in the EEZ (Harrison/Morgera, Article 62, in: Proelss, United Nations Convention on the Law of the Sea: A Commentary, 2017, para. 12; SCSA, paras. 243, 804(b)). Second, Churchill contends that this must a fortiori also be the case for the territorial sea as coastal States enjoy sovereignty rather than sovereign rights in this zone (para. 16). However, the arbitral tribunal in the Eritrea/Yemen Arbitration (Phase II, award of 17 December 1999) held that traditional fishing rights do in fact continue to exist in the territorial sea even after the conclusion of UNCLOS (para. 109). This was confirmed by the SCSA tribunal which stated that UNCLOS “continued the existing legal regime largely without change” and which saw “nothing that would suggest that the adoption of [UNCLOS] was intended to alter acquired rights in the territorial sea and conclude[d] that within that zone—in contrast to the exclusive economic zone—established traditional fishing rights remain protected by international law” (para. 804(c)). This outcome is supported by Article 2(3) UNCLOS pursuant to which coastal States exercise their sovereignty in the territorial sea subject to “other rules of international law” (SCSA, para. 808). In my view, this provision would also have accommodated historic fishing rights arising out of the LFC if the UK had not denounced that treaty. In conclusion, in the unlikely event that any historic fishing rights of EU Member States exist in UK waters, they would be restricted to small portions of the UK’s territorial sea. In that case, however, they would be practically irrelevant.

Conclusions and Outlook

This post has argued that with Brexit and the UK’s simultaneous denunciation of the LFC, any fishing rights of EU Member States contained in these instruments will be extinguished. Even without the UK‘s denunciation it would have been unrealistic and wholly impractical to return to applying the LFC to a small territorial sea belt with a breadth of 6 nm. In addition, the EU, which possesses the exclusive competence for the external dimension of the CFP, is not a party to that treaty. It can also be doubted that EU Member States can make a valid case concerning historic fishing rights based on general international law in the UK’s territorial sea and even less so in its EEZ. From a legal point of view, these States may arguably only demand that the UK take their historic fishing activity in its EEZ into account when deciding on fisheries access for third States. There is no legal case to be made if the UK chooses to grant no access to third States at all. That said, fisheries access in European waters is not a one-way street. Both commercial fishing in the EU and the UK would be disrupted in so far as it is currently conducted in each other’s waters. As the EU is the most important market for fish products from the UK, calls to make market access for fish products from UK conditional on reciprocal fishing access carry considerable weight. Beyond these political considerations, there are also obligations to co-operate in the management of both shared and straddling fish stocks (see, respectively, Article 63 UNCLOS and the 1995 United Nations Fish Stocks Agreement). To ignore the nature of these stocks and the importance of these obligations would likely lead to mismanagement and overfishing. Based on all these considerations, a negotiated solution between the UK and the EU that involves some form of reciprocal fisheries access seems to be more likely than not. In order to avoid chaos after Brexit, an agreement on reciprocal fisheries access between the UK and the EU should be negotiated at least provisionally. Where vessels from the UK have been fishing in the waters of third States with which the EU has concluded fisheries access agreements, the UK may also have to consider concluding its own access agreements in the future.