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
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
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
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
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
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
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,
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,
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
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
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
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
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
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
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.