Ratona has no obligation to recognize the traditional

fishing rights of Asteria as the same have already been

extinguished owing to its ratification of UNCLOS

Asteria opined that Ratona failed to acknowledge its traditional fishing rights
when the latter unilaterally declared Marine Protected Area within the Delfino
Archipelago. However, we find this contention erroneous. Ratona has no obligation to
take into consideration its fishing rights as the same have already been extinguished
owing to its ratification of UNCLOS. We would like to remind Asteria that when it
became a party to UNCLOS, it consents to the provisions therein regarding the
entitlement of States to their maritime zones as provided for by the said Convention.
The term historic rights is general in nature and can describe any rights that a State
may possess that would not normally arise under the general rules of International law,
absent any particular historical circumstances. It may include sovereignty, but may
equally include more limited rights, such as fishing rights or right of access, that fall well
1
short of sovereignty. Thus, the Tribunal considers that the Convention is clear in
according sovereign rights to the living and non-living resources of the exclusive
economic zone to the coastal State alone. The notion of sovereign rights over living and
non-living resources is generally incompatible with another State having historic to the
same resources. This is clearly contemplated under Article (1) of the Convention which
2
provides for the sovereign rights of the coastal State. Meanwhile, the rights of other

1In the Matter of South China Sea Arbitration (The Republic of the Philippines v. The
Peoples Republic of China

2 Article 56. Rights, jurisdiction and duties of the coastal State in the exclusive
economic zone.In the exclusive economic zone, the coastal State has:
(a) 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:
xxx
States in the exclusive economic zone are provided for in Article 58 which gives them the
freedom of navigation, overflight, and of laying of submarine cables and pipelines, and
other internationally lawful uses of the sea related to these freedoms. Likewise, in Article
62, the rights of national of other State who have habitually fished in the zone are laid
down. Under this article, they are given access to the surplus of the allowable catch of the
living resources in the EEZ of a coastal State, however, subject to agreements or other
arrangements. To put it differently, this consolation procured to them by the Convention
is not automatic, rather, subject to the discretion of the coastal State. Verily, while the
rights of other States and the coastal State itself in the exclusive economic zone are
specifically provided for by the Convention, the latter does not include any express
provisions as to the preservation or protection of historic rights, which commonly
pertains to fishing rights. No article of the Convention expressly provides for or permit
the continued existence of historic rights to the living or non-living resources of the
exclusive economic zone. Similarly, nothing in the Convention expressly provides or
permits a State to maintain historic rights over the living and non-living resources of the
continental shelf, the high seas, or the Area. 3 On the contrary, the Convention supersedes
earlier rights and agreements to the extent of any incompatibility. In the Gulf of Maine
case (Canada v. US), the United States sought to take into consideration its fishing rights
as a factor in determining the maritime delimitation in the Gulf of Maine, however, the
Court rejected this and emphasized that it would only consider fisheries as relevant
circumstances if it likely entails catastrophic repercussions for the livelihood and
economic well-being of the population of the countries concerned. The Court did not only
render its decision about the US traditional fishing practices with respect to the
delimitation but also with respect to the nature of the US fishing rights. The Court ruled
that whatever preferential situation the United States may previously have enjoyed, this
cannot constitute in itself a valid ground for the exclusive fishery zone which the latter is

3 supra note 1
claiming has now become part of Canada. Hence, no reliance could any longer be placed
on this predominance. 4
It seems to us that Asteria would like their fishing rights to be recognized when in fact,
the same have already been waived through accepting the EEZ regime as reflected in
UNCLOS. We wish to reiterate that by ratifying the Convention, States have given up any
claims they may have had with regard to fishing rights in the EEZ of other States. In
other words, most of historic fishing rights claims that existed immediately post 1982
were absorbed into the EEZ regime.5

4 Case Concerning Delimitation of the Maritime Boundary in the Gulf of Maine Area
(Canada v. US), Judgment, ICJ Reports 1984

5 Leonardo Bernard, The effects of Historic Fishing rights In the Maritime

Boundaries Delimitation