Study On The Issues Of Historic Fishing Rights

Marine fishery was the pioneering industry in the field of marine exploitation. It is and will continue to be a major way of living marine resources utilization during some periods of time in the future. Seafood provided by fisheries is one of the main food and nutrition sources, therefore fisheries play an important role in global food security. Fishery jurisdiction system had a profound impact on the evolution of international law of the sea. It’s even fair to say that the early history of the regimes of international law of the sea evolved around the range of exclusive fishery jurisdiction claimed or enjoyed by the coastal states. Since the signing of the United Nations Conventions on the Law of the Sea(hereinafter referred to as UNCLOS) in 1982, fierce competition has been launched in the field of living marine resources utilization. The international regulation system in this area remains to be the fastest growing and most active part of international law of the sea.The international and regional situation for the development of China’s marine fisheries has significantly changed since the entry into force of UNCLOS. The 200-mile exclusive economic zone(EEZ) system established by UNCLOS greatly expanded the sea areas within which the coastal states enjoy exclusive jurisdiction over natural resources including fishery resources. The statistics show that 95% of the world’s marine fisheries catches is from EEZ, so this system profoundly affect the allocation of global fisheries resources, including the historic fishing rights historically formed and transmitted by way of long-usage.The controversy on the historic fishing rights(also known as traditional fishing rights) in academia has remained for a long time. Especially after the implementation of the EEZ regime, some scholars even argued that UNCLOS has “denied” or “superseded” the historic fishing rights. In-depth theoretic consideration on this topic is more meaningful because of the existence of controversy. Moreover, historic fishing rights carry great practical significance for China. For a long time, Chinese fishermen have habitually fished in the East China Sea, Yellow Sea and especially in the South China Sea. Under the EEZ regime, China has signed bilateral fishery agreements respectively with Japan, South Korea and Vietnam during 1997-2000. After the entry into force of the said fishery agreements, traditional fishing grounds of China were reduced substantially, and contradictions of excessive fishing capacity and declined fishery resources are intensified. From a longer-term point of view, after the implementation of 200-nm EEZ regime, there are issues of EEZ demarcation between China and North Korea, South Korea, Japan, the Philippines, Indonesia, Malaysia and Vietnam and other countries. In the East China Sea, Yellow Sea and South China Sea, China’s traditional fishing grounds located close to neighboring countries. Analysis of the effectiveness of historic fishing rights and its place in EEZ, carries great practical significance for both the use of fishery resources and maritime demarcation.To be specific, theoretical and practical significance of this study includes the following points. Firstly, from the legal perspective, the core mission of this paper is to explore the legal status of the historic fishing rights under the auspices of the modern system of international law of the sea, which is dominated by UNCLOS. To achieve this, two questions need to be answered. This first is whether the historic fishing rights can fulfill the two legal requirements of customary international law rules, which are state practice and opinion juris. The second question is whether the historic fishing rights conflict with the EEZ regime established by UNCLOS.Secondly, in terms of practical significance, this study concerns the historic fishing rights of Chinese fishermen in the surrounding waters. Efforts are addressed to discuss the issue of coordination between historic fishing rights and EEZ regime, with the purposes of equitable fishery resources utilization and reduction of fisheries disputes.Thirdly, controversy regarding the validity of the historic fishing rights in international law has been long lingering in academia and the differences are apparent. This study will try to analyze the state practices on historic fishing rights, and to explore the legal status of this rule using the theory of customary international law. This study will also endeavor to propose new thoughts on the issue of historic fishing rights within the South China Sea U-shaped line with the purpose to contribute to related discussions.This paper explores the effectiveness of historic fishing rights from the perspective of international customary law or general principles of law and tries to clarify its meaning and scope as well as constituent elements. This study combines the methodology of combination of comparative and systematic research, as well as theory and practice. The format of this study is to analyze the development context of historic fishing rights including related conventions, agreements, the coastal state practice and international jurisprudence, especially after the entry into force of UNCLOS. This paper tries to propose policy suggestions in the international context of exclusive jurisdiction to fishery resources in EEZ by coastal states and the sustainable utilization of fishery resources.The main content of this paper is divided into eight chapters. The first chapter explores the historical context of formation and evolution, and to reveal the cause and basis of historic fishing rights. The second chapter discusses the relationship between historic fishing rights and historic rights. The third chapter discusses the relationship between the historic fishing rights and UNCLOS. Titled with the legal practice of historic fishing rights, Chapter IV will summarize the related practice of nations and international judicial bodies, in the context of new regime of the international law of the sea. This will play a fundamental role for more in-depth discussion in later chapters. Chapter V will be contributed to discussing the theory of customary international law, focusing on elements theory of the customary international law rules. Chapter VI is titled as the effectiveness of historic fishing rights in international law. This study will test whether historic fishing rights have the effect of customary international rules, according to the theory of customary international law. The relations between this right as a customary rule and the UNCLOS as a treaty law will also be explored here. Chapter VII will present historic fishing activities of Chinese fishermen in the surrounding waters, taking the Yellow Sea and the South China Sea as examples. On the basis of the above research, this paper will propose several policy recommendations: strengthen policy support, maintain the continuity of the historic fishing activities; increase consultation efforts for more possible fishing share; strengthen academic research to lay a solid foundation for any legal and media contest.According to the theory of two constituent elements for the rules of customary international law, which are state practice and opinion juris, this paper investigates whether the historic fishing rights fulfill these two key requirements, and holds that this right has the legal status of international custom. The historic fishing rights have been widely used by many countries since the 1960 s till the present. The legal effectiveness of this right is proved by wide state practice, recognition of international jurisprudence in the formats of conventions, judicial merits and national legislation. Moreover, most of the relevant practices on the historic fishing rights take the form of treaty practice and domestic legislation with binding power. This is the proof that the historic fishing rights fulfill the requirement of opinion juris as an international customary rule.In terms of the relationship between the historic fishing rights and the UNCLOS, contemporary international law of the sea with the UNCLOS as the main content does not negate the historic fishing rights. Although UNCLOS does not make explicit arrangements for the historic fishing rights in other countries’ EEZ, the judgment can still be made that UNCLOS realized the significance of historic fishing rights. This is reflected in relevant provisions in the UNCLOS in the distribution of the remaining allowable catch EEZ and territorial waters and exclusive economic zone demarcation. Historic fishing rights are empowered as a special/ relevant circumstance in maritime demarcation cases. Of course, the rule of law is constantly evolving, so is the connotation of historic fishing rights in the new framework of international law of the sea, as well as in the background of strengthening the conservation of biological resources. This change is mainly reflected in coordination with the EEZ regime.Overall, the UNCLOS took an evasive position, and relevant arrangements are ambiguous. The provisions of UNCLOS on historic rights are not adequate. It is a regret that UNCLOS failed to make due and clear arrangements on the historic fishing rights, and then failed to resolve the conflicts between the coastal states and relevant fishing countries with historic fishing activities, which has been the cause of quite a number of international fishery disputes. Historic fishing rights are objective existence from long-term uses, they involve the interests of concerned coastal states, and livelihoods of many fishermen and their families, and should not be easily denied. Based on the effectiveness as an international customary law rule, relevant provisions of UNCLOS, and practice of the coastal states and international judicial institutions, this paper argues that historic fishing rights could be used as an important supplement to the EEZ regime and promote fair and reasonable fishery resources allocation. While allocating the surplus TACs, the coastal states should give priority to historic fishing rights, and permit “States whose nationals have habitually fished in the zone” to fish in their EEZ. Moreover, historic fishing rights should have important weights in maritime demarcation.