Brexit and Jersey Fishing Rights: The International Legal Status of the Crown Dependencies

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Much ink has been spilled on the United Kingdom’s withdrawal from the European Union on 31 January 2020 (which was preceded by a referendum which took place on 23 June 2016, and which was followed by a transition period which ended on 31 December 2020) (“Brexit“). Brexit, whether as a matter of international law, European Union law or UK domestic law, raises many issues to be dealt with: one of those issues, which has perhaps been given a disproportionately central prominence in public discourse, has been fishing rights – of British vessels in European Union waters, and of European Union vessels in British waters.

Tensions in Jersey: background and causes

For a short period in May 2021, the island of Jersey was the epicentre of these tensions over fishing rights, which bubbled over into a full-blown diplomatic crisis when dissatisfied French fishermen, who complained about the new and, to their minds, overly-restrictive fishing licensing system that had been brought into force in Jersey, blockaded St Helier harbour (albeit for all of four hours). The incident involved French politicians threatening to cut off the island’s electricity supply and British Prime Minister Boris Johnson deploying the Royal Navy to the island’s waters – perhaps intentionally seeking to echo aspects of then-Prime Minister Margaret Thatcher’s forceful reaction to the Argentine invasion of the Falkland Islands (Las Malvinas) nearly four decades ago.

Historically francophone and visible from the coast of Normandy, Jersey (alongside its fellow Channel Island of Guernsey and the Isle of Man located in the Irish Sea) is one of the three British Crown Dependencies which are not part of the United Kingdom but which are considered “self-governing possessions of the British Crown“. Monetarily, fishing is not a pivotal industry for Jersey (relative to finance or even tourism or agriculture). As a result of their unique constitutional status (and, indeed, cultural distinctness from their metropolitan power), for centuries, the Crown Dependencies have enjoyed a high degree of autonomy in running their internal affairs. In recent decades, this has enabled all three jurisdictions to grow in international prominence as offshore financial centres.

Regardless of Brexit, Jersey was never part of the European Union (although it was in a customs union with the bloc) or subject to its Common Fisheries Policy (although the United Kingdom was). Perhaps controversially, the majority of British citizens residing in the Crown Dependencies did not get a say in the 2016 Brexit referendum. As such, with the permission of the United Kingdom (as the sovereign State with international responsibility for Jersey), Jersey has previously regulated its fishing arrangements with its Norman and Breton neighbours independently of its metropolitan power via the Bay of Granville Treaty 2000.

Accordingly, it might be asked: what do post-Brexit fishing arrangements have to do with a jurisdiction like Jersey, which has never been part of the European Union, and which in fact had negotiated its own treaty with France independently of the United Kingdom? In essence, the Jersey legislature voted in favour of acceding to the Trade and Co-operation Agreement agreed by the United Kingdom and the European Union, which involves a licensing system and is more restrictive in the access to British waters enjoyed by European Union vessels than was the case prior to Brexit.

Bespoke arrangements for Jersey?

Crucially, this incident underlines the potential tensions inherent in the relationship which a metropolitan power may have with its dependent territories. The interests of a State as a whole are not necessarily the same as those of its dependent territories (which therefore clashes with the notion of the unitary State in international law) – therefore, the United Kingdom, as a matter of practice, does not enter into international treaties on behalf of the Crown Dependencies without consulting the respective islands’ governments. While, theoretically, Jersey could have refused to accede to the Trade and Co-operation Agreement, it would have been politically unwise and economically reckless for an island of just over 100,000 people to attempt to negotiate its own, separate agreement with the European Union. While the Crown Dependencies were never part of the bloc, their constitutional relationship with the United Kingdom as the State with responsibility for their international affairs, and the economic importance of the European Union in their cross-border trade, meant that Jersey’s adoption of the Trade and Co-operation Agreement was near-inevitable.

However, had Jersey insisted on striking out on its own and continuing to maintain its own arrangements with its French neighbours in relation to fishing rights, it would have been bound by the general regime of international law. The Convention on the Law of the Sea (“UNCLOS“) has been extended to Jersey. Given Jersey’s location in the Bay of Granville, it controls an enclave of British territorial waters surrounded by French territorial waters. It would therefore be possible for Jersey to apply its own licensing regime within the British territorial waters which it administers, but, potentially, this would be subject to any applicable historic or customary fishing rights which might apply. As explained in the Minquiers and Ecrehos Case (France v United Kingdom) (1953), centuries-long maritime co-operation has existed between Jersey and its French neighbours – and, indeed Jersey originated as a rump remnant of the Duchy of Normandy (all of which was once controlled by the English Crown): while notions of historic or customary fishing rights can be nebulous, there would be a potentially strong argument for saying that such rights would be applicable by France as against Jersey.

Nevertheless, Jersey may seek to tweak the Trade and Co-operation Agreement as applicable in the British territorial waters surrounding Jersey in connection with fishing, perhaps to relax licensing conditions in exchange for greater access for Jersey vessels to French waters. Whether this would be feasible in practice is a separate matter; regardless, alongside the other Crown Dependencies and with the support of the United Kingdom, Jersey has been seeking to develop and strengthen its international identity in recent years. While Jersey is clearly not a State, one might seek to argue that the island has an international legal personality separate from that of the United Kingdom. Colonial territories have international legal personality separate from that of their sovereign States, and have an ergo omnes right to self-determination. However, Jersey is not – and has never been – formally considered a colony of the United Kingdom, although its relationship with the United Kingdom has been described as quasi-colonial. Unlike the vast majority of the current British Overseas Territories (such as the Falkland Islands / Las Malvinas), the Crown Dependencies have never been included on the United Nation’s list of Non-Self Governing Territories.

Some thoughts on self-determination and Jersey

Regardless, it could be argued that the right to self-determination ought to evolve beyond the scope of “traditional” saltwater colonialism: even if this does not translate into an (automatic, or indeed remedial) right to independence in the case of Jersey (which already enjoys a very high degree of autonomy), the United Kingdom ought to support Jersey in forging its own bespoke arrangements in the realm of international law. In a way, Jersey has already done this in other areas. In practice, the Crown Dependencies are often issued Letters of Entrustment by the UK, which allows them to negotiate their own Tax Information Exchange Agreements (“TIEAs“) and Double Taxation Treaties (“DTTs“). Currently, Jersey has entered into nearly 40 TIEAs and has full DTTs with 14 jurisdictions. As of this year, Jersey negotiated its very first bilateral investment treaty with the United Arab Emirates (the existing United Kingdom-United Arab Emirates treaty was never extended to the island).

While fishing rights in the Bay of Granville would appear to be a relatively narrow issue, one could say that the difficulties which culminated in the blockade of St Helier harbour earlier this year did put a spotlight on Jersey, whose unique history and constitutional relationship with the United Kingdom mean that it has a perhaps amorphous and fluid identity in the realm of international law. Not quite a colony, not quite a State, and certainly not an oppressed people-group, Jersey is nevertheless a jurisdiction with a distinct identity that can and does manage its international relations independently from that of its administering State. How the fishing tensions (currently subject to something of a standstill agreement until 30 September 2021) ultimately play out remains to be seen, but this is an area to watch.

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Valentin Schatz says

September 29, 2021

Thank you for this interesting piece on Jersey, which contains helpful clarifications of the constitutional status of the Bailiwick. However, given the title of the post, it would have been interesting to read something about the actual dispute, namely the interpretation of Article 502 TCA. Moreover, I wonder what the author's arguments in favour of historic fishing rights in the waters of Jersey would be given that the fisheries in these waters have been governed entirely by treaties (now the TCA) for a very long time without a trace of fishing not based on these treaties.

Tom Wherry says

September 29, 2021

I thank the author for an interesting contribution on an interesting topic. I wholeheartedly agree that the concept of CD self-determination (shall I say independence?!) has not been explored thoroughly enough at international level.

As EJIL: Talk! is a very well respected source, and may well be used by others as a reference point in the coming weeks, months and years, I thought I would add a few points.

1. The author states that Jersey “in fact had negotiated its own treaty with France independently of the United Kingdom”. This is incorrect. The Bay of Granville Agreement 2000 is an international agreement with the two parties being the UK and France. Jersey was fully involved in the negotiations of the Agreement and was the day-to-day implementor of it, but was not a party.

2. Jersey’s adoption of the TCA was not necessarily “near inevitable”. Jersey has very little cross-border trade with the EU, the UK instead being by far the larger trading partner. There is as such little direct economic gain from being part of the agreement. In addition, there was always the chance that the final text of the TCA would contain unpalatable results for the CDs (perhaps in fish, but perhaps also in international tax policy), in which case they might have rejected it.

3. Had Jersey struck “out on it's own” and rejected the TCA, then UNCLOS would not have been the fallback. Had the States of Jersey (Jersey’s parliament) rejected participation in the TCA, the mechanism for the UK to remove Jersey from the deal is outlined in Article 502 of the TCA. If Article 502 is activated, then the second half of Article 510(2) comes into play which essentially revives the Bay of Granville Agreement. All parties would have found themselves back at square one.

I place no blame on the author for these inaccuracies; there is often difficulty in obtaining the full story from governments, especially small administrations such as Jersey’s. In the interests of transparency, I have unusual knowledge of the situation, being during the time of the negotiations and disputes, Government of Jersey’s Head of European Relations. I have since left post.