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HISTORIC FISHING RIGHTS

1. In relation to claims that historic fishing rights may be revived in the event that the UK & EU fail to reach an agreement on fishing opportunities post Brexit.

2. The European Fisheries Convention of 1964 was a treaty ratified by 12 countries: UK, Ireland, France, Belgium, Germany, Netherlands, Italy, Portugal, Spain, Denmark, Sweden & Poland.

3. The Convention made provision for 12 mile Exclusive Fishery Zones from a country's coastline. Member countries with pre-existing agreements with another member country could continue fishing in the 6 - 12 mile zone on similar terms previously agreed.

4. The UK gave effect to the Convention through the Fishery Limits Act 1964 & duly granted continuing fishing opportunities to Germany, France, Belgium, Ireland & Netherlands.

5. When the UK, Denmark & Ireland entered into membership negotiations with the EEC, a Common Fisheries Policy (CFP) was adopted in which the EU (or EEC as it was then) had exclusive competence to allocate & regulate fishing opportunities to & on behalf of members.

6. The 12 members of the European Fisheries Convention, all, over time, became members of the EU & were subsequently allocated fishing opportunities under the CFP & were subject to its fisheries regulatory framework.

7. In other words the CFP replaced the agreements set out in the European Fisheries Convention.

The following provides those original, abandoned 1964 Convention rights cannot be revived:

8. Under the Vienna Convention on the Law of Treaties, earlier treaties are impliedly repealed where a later treaty is entered into on the same subject matter.

9. Article 59 may be construed under the Treaties of the EU & its CFP & also in relation to the United Nations Convention on the Law of the Seas (UNCLOS), which redefined Exclusive Economic Zones, maritime laws in relation to fisheries & conservation & came into effect in 1994.

10. As a general principle in law, once something has been abandoned for a substantial length of time, it is very difficult to revive those rights.

11. But even if it could be established that parts of the European Fisheries Convention survive, the UK has a right to withdraw from the 1964 Convention by giving 2 yrs notice.

12. Acquiescence doesn't apply to this scenario either. Our waters were always under our control pre EU, in the sense that a regulatory framework existed to include landing requirements & adherence to quotas etc. A requirement of consent rather than unfettered access existed.

13. UNCLOS case law supports this. The South China Seas litigation involving the Philippines & China. The case established the requirement of a continuous exercise of a right by the State asserting rights & acquiescence of the affected State.

14. Express consent does not amount to acquiescence.

There's little point in me going back further, to more historic treaties as the doctrine of implied repeal nullifies their provisions.

15. As far as I'm aware only one small historic right subsists in relation to a French village & fishing opportunities around a small section of water surrounding the Channel Isles.

16. So to summarise, it's my view that the 5 countries: Germany, France, Belgium, Ireland & Netherlands have no surviving rights to fishing opportunities in the UK's 200 mile EEZ. There has been no continuous exercising of rights to the 1964 Convention.

17. This is particularly so in relation to the CFP as it is the EU which has exclusive competence under its own treaties to regulate & allocate fishing opportunities.

18. *Correction*: The UK gave formal notice of its withdrawal from the European Fisheries Convention on 3 July 2017.