II.

THE EXERCISE OF RATONAS SOVEREIGN RIGHTS PREVAILS OVER ASTERIAN

TRADITIONAL FISHING RIGHTS

A. Sovereign rights of a coastal state in EEZ weighs superior than the

historic/traditional fishing rights accorded by customary international law

The Law of the Sea Convention was clearly drafted so that the economic rights of

coastal states in their EEZ may have greater weight than any rights accorded to other states by

customary international law. This means that when it comes to another states claim to historic

fishing rights within waters 200nm off the coast of another state, such claim is subject to the

coastal states exclusive sovereign rights in that zone as accorded by the Law of the Sea

convention.

Well settled is the fact that both Ratona and Asteria are original parties to the UNCLOS.

Under international law, once a state ratified or acceded to a treaty, the state concerned is bound

by the rules laid down in that treaty. The EEZ regime in UNCLOS limits the application of

historic claims, as the EEZ regime puts a large area of the ocean under the coastal states

jurisdiction, despite the traditional practice of other states in the same area. Asteria and Ratona

ratified UNCLOS, therefore, agreeing to be bound by the rules UNCLOS created, including

the rules regarding historic titles and EEZ regime. Moreover, States have the sovereign right

to exploit their natural resources pursuant to their environmental policies and in accordance

with their duty to protect and preserve the marine environment. 1 Hence, other states shall have

due regard to the rights and duties of the coastal State and shall comply with the laws and

regulations adopted by the coastal State.2 Stated likewise, it is within the duty of Nationals of

other States fishing in the exclusive economic zone to comply with the conservation measures

1
Article 56. Rights, Jurisdiction and Duties of the Coastal State in the Exclusive Economic Zone
2
Article 58. Rights and Duties of other States in the Exclusive Economic Zone
and with the other terms and conditions established in the laws and regulations of the coastal

State.3 In recognizing these sovereign rights, the authority to determine access to resources

rests upon the national government of a State, subject to its national legislation.4 Hence, Ratona

may create conditions to facilitate access to these resources for sound uses by Asteria5 which

relates to the fact that a coastal states sovereign rights prevails.

Further, traditional fishing rights are not absolute or impervious to regulation, thus,

must necessarily be regulated to conserve the environment and prevent it from over-

exploitation.6 This means that historic fishing rights are not exclusive, and thus, its non-

exclusivity does not raise a legitimate claim to sovereignty or title to territory, but only gives

rise to the right of a state making the claim to continue fishing within the EEZ, subject to the

discretion of a coastal state. Customary international law, in this respect, does not restrict the

coastal state from reasonable regulation7 nor would it prevent the costal state from assessing

the scope of traditional fishing to determine, in good faith, the threshold of scale and

technological development beyond which it would no longer accept that fishing by foreign

nationals is traditional in nature.8

However, historic or traditional fishing rights should be taken into consideration in

exceptional circumstances as laid down in the Gulf of Maine Case, which provides for

catastrophic social and economic repercussions if fisheries rights are ignored. 9 The same is

reiterated in the case between Barbados and Trinidad and Tobago where it was held that

fishing activities are deemed relevant only in such exceptional circumstances.10 In Philippines

3
Article 62(4) of UNCLOS
4
Article 15(1) of Convention on Biodiversity
5
Article 15(2) of Convention on Biodiversity
6
Philippines v. China par. 809
7
North Atlantic Coast Fisheries Case
8
Chagos Arbitration Case
9
Gulf of Maine Case
10
Barbados/Trinidad and Tobago Case
v. China, any historic rights China may have had in the waters of South China Sea beyond its

territorial sea were extinguished by the adoption in the Convention and in customary law of

the concept of the exclusive economic zone.11

Thus, both Ratona and Asteria are original members of the UNCLOS and being so, they

are bound by the rules UNCLOS created, including the rules regarding historic titles and EEZ

regime. Therefore, any historical claim, such as traditional fishing rights that Asteria may have

in Delfino Archipelago, will not prevail over Ratonas sovereign rights as Ratona being a

coastal state, is under no obligation to recognize them since by accepting the EEZ regime,

Asteria has given up any claims it may have had based on traditional or historic fishing rights.

B. Ratona is not bound to recognize the traditional fishing rights of Asteria as there

exist no bilateral agreement between the two states

In the exclusive economic zone, the coastal State has sovereign rights for the purpose

of exploring and exploiting, conserving and managing the natural resources, whether living or

non-living, of the waters superjacent to the seabed and of the seabed and its subsoil, and with

regard to other activities for the economic exploitation and exploration of the zone, such as the

production of energy from the water, currents and winds.12 As an incident of the sovereign

rights of a coastal state, Ratona is not bound to recognize the traditional or historic rights of

Asteria, unless these parties will enter into an agreement. The delimitation of the exclusive

economic zone between States with opposite or adjacent coasts shall be effected by agreement

on the basis of international law.13 In most cases, bilateral agreement as to delimitation of

maritime boundaries includes the traditional fishing rights of another state, however, in the

11
Philippines v. China
12
Article 56(1)(a) of UNCLOS
13
Article 74(1) of UNCLOS
foregoing, the agreement between Asteria and Ratona was only about the delimitation of

boundaries itself, without reference as to the issue of fishing rights.

Moreover, it is established that Ratona shall have due regard to the rights and duties of

other states14 thus, it must be limited only to the nature of the rights held by Asterian

Fisherfolks. Further, States, as far as practicable, shall promote, on the basis of reciprocity,

notification, exchange of information and consultation on activities under their jurisdiction or

control which are likely to significantly affect adversely the biological diversity of other States

or areas beyond the limits of national jurisdiction, by encouraging the conclusion of bilateral,

regional or multilateral arrangements.15

In Mauritius v. United Kingdom, the ordinary meaning of due regard calls for the

United Kingdom to have such regard for the rights of Mauritius as is called for by the

circumstances and by the nature of those rights. The Tribunal declines to find in this

formulation any universal rule of conduct. The Convention does not impose a uniform

obligation to avoid any impairment of Mauritius rights; nor does it uniformly permit the

United Kingdom to proceed as it wishes, merely noting such rights. Rather, the extent of the

regard required by the Convention will depend upon the nature of the rights held by Mauritius,

their importance, the extent of the anticipated impairment, the nature and importance of the

activities contemplated by the United Kingdom, and the availability of alternative

approaches.16

It was further held in Icelandic Fisheries Jurisdiction that where historic fishing rights

of a third state continues to exist within the EEZ of a coastal state, such rights were usually

recognized through bilateral agreements between the states concerned.17 Hence, the most

14
Article 56(2) of UNCLOS
15
Article 14(1)(c) of Convention on Biodiversity
16
Chagos Arbitration Case
17
Icelandic Fisheries Jurisdiction Case
appropriate solution to disputes concerning rights of a coastal state based on EEZ and rights of

another state based on their historical claim is not just mere negotiation, but an agreement as

to that matter, where both states are bound.

Assuming Asteria has traditional fishing rights, in order to ensure the continuity of such,

one State should have a bilateral agreement with the State concerned, in this case, Ratona and

Asteria. Each state shall take all practicable measures to promote and advance priority access

on a fair and equitable basis on mutually agreed terms.18 In general, bilateral agreements do

not specifically mention traditional fishing rights, but contain clauses concerning fishing rights

and various issues.19

There happened several negotiations between Ratona and Asteria, however, the only

agreement established was about the delimitation of the maritime boundary, by which both

states decided that Delfino Archipelago is within the EEZ of Ratona. There was no reference

as to the issue concerning the fishing rights of the Asterian fisherfolk. Since ratification of this

agreement, Asteria and Ratona have not negotiated the fishing operations of the Asterian

fisherfolk in the EEZ surrounding the Delfino Archipelago. In conclusion, there was no

bilateral agreement entered into between these States, thus, Ratona is not bound to recognize

Asterias claim on traditional fishing rights.

C. Ratona has no obligation under UNCLOS to recognize historic rights, unlike for

archipelagic states

It has been generally emphasized that the EEZ regime, which is now widely accepted

as customary international law, precludes States from making claims to traditional or historic

18
Article 19(2) of Convention on Biodiversity
19
Article 72(1). Rights provided under articles 69 and 70 to exploit living resources shall not be directly or
indirectly transferred to third states or their nationals by lease or license, by establishing joint ventures or in
any other manner which has the effect of such transfer unless otherwise agreed by the States concerned.
fishing rights in the EEZ of other States, thereby maintaining the argument that no obligation

is expressly provided for under UNCLOS that Coastal States have to recognize historic rights

unlike for archipelagic states. In the latter, any traditional right and interest which has been

applied by the bordering state on any part of the archipelagic waters of archipelagic state

regulated by the bilateral agreement among those states shall be continued and respected.20

Further, archipelagic state shall respect the agreement with other states and shall recognize

traditional fishing rights of bordering state within any part of the archipelagic waters.21

In Philippines v. China, the court emphasized the different treatments of traditional

fishing rights with regard to the archipelagic waters, exclusive economic zone and territorial

sea.22 Meanwhile, the requirements and conditions of the rights shall be based upon the related

states and regulated within the bilateral agreement. In a coastal state, historic title has not been

expressly reserved in the provisions dealing with the EEZ. However, a consideration for

traditional fishing in the EEZ is provided under Article 62 of UNCLOS, although the terms

traditional and historic are not used.23 Hence, Ratona is solely responsible for determining

its own total allowable catch, and therefore the surplus, if any. The provision only requires for

Ratona to consider. Fishing practices of other States within EEZ are merely considerations to

be taken into account by Ratona as a Coastal state, and thus it is within its discretion. The

concept of historic rights remains relevant only to the extent that it is among the factors to be

taken into account in giving access to surplus fish.24

20
Article 47(6)
21
Article 51(1)
22
Philippines v. China
23
Article 62(2)
24
Article 62(2) the coastal state shall determine its capacity to harvest the living resources of the EEZ. Where
the coastal state does not have the capacity to harvest the entire allowable catch, it shall, through agreements
or other arrangements, give other states access to the surplus of the allowable catch.