“Fishery Rights for Flemish Fishermen in British Maritime Waters post Brexit

and the Royal Charter of King Charles II of 1666.”

Em. Prof. Dr. Eduard Somers, Ghent University and Antwerp University
President Royal Belgian Marine Society

I. Introduction

1. In his speech1 during the solemn opening session of the Conference of

the Young Bar Association in Bruges in 1962, Mr. Fernand Traen
examined the position of the Bruges fishery fleet in the light of the
"Privilegie der Visscherie"2 , a royal privilege (Royal Charter) granted in
1666 by the English King Charles II to a limited number of fishermen
from Bruges, giving them the perpetual right to fish in British waters.
Then, in the summer of 1963, Victor Depaepe (alderman of Zeebrugge)
will try, by an illegal action with a fishing vessel in British waters, to
actualize the operation of the Privilege 1666. He thus wants to force the
British courts to take a position on the continuing validity of this royal
charter. Unfortunately, the whole thing ended in a stalemate because
the British government wanted to avoid at all costs that a court case
might come to the conclusion that the Privilege 1666 was still valid.
Apparently, internal British documents would lead to the conclusion
that there was a good chance that the charter could still apply (see infra
nr. 38).
2. We should of course be well aware that this episode took place in the
early 1960's and that the international legal order, in particular
concerning the international law of the sea, was based on different
principles than today3 . Nevertheless, during the Brexit negotiations, the
Flemish government repeatedly suggested that the Privilege had lost
none of its validity and that it could be invoked without question against
British sovereign claims regarding the access and activities of foreign

1
“Het Mare Liberum en de privilegies van de Brugse visserij”, Rechtskundig Weekblad 1962, 525-536.Also
published in Koninklijke Belgische Marine Academie, Mededelingen/Communications 1963, vol XV. Mr. Traen’s
contribution provides a particularly interesting overview of the developments associating with the rights
granted by the Privilege of 1666.
2
Text in Chambre des Représentants, Documents, séance 27 mars 1852, 1052.
2

3
Generally see: : E. Somers, Inleiding tot het internationaal zeerecht, vijfde herwerkte uitgave, Mechelen,
Kluwer, 2010,
 fishermen, or Flemish fishermen, in British waters. These activities of
foreign fishermen were indeed threatened by the British positions taken
in the context of the British exit from the European Union (Brexit). As of
January 31, 2020, the Brexit hic et nunc has become a reality and the
British government effectively regulates the operation and access of
foreign fishermen. Nevertheless, it remains interesting - be it essentially
academic - to examine whether Privilege 1666 would still be legally valid
today and therefore still allow Flemish/Belgian fishermen access to
British waters even now that the United Kingdom has left the EU and
the rules of the Common Fisheries Policy4 no longer apply vis-à-vis the
United Kingdom.

II. The international law status of the 1666 Privilege.

3. Initially, the international law status of this document should be

specified. Is it a (bilateral) treaty between the United Kingdom and
Flanders/Bruges or a unilateral decision of the English king in favor of
the fishermen of Bruges?

4. If the document has the legal status of a treaty, its legal validity will
have to be assessed today according to the applicable treaty law
provisions as laid down in the 1969 Vienna Convention (VC)5 . Based on
the text of the document, it does not appear to be in any way
established that it is a treaty as defined in the Vienna Convention, being
an international agreement concluded in writing between States and
governed by international law (art.2 VC). In a treaty, the contracting
parties will confer rights or assume obligations to each other. The
question is but whether the Privilege of 1666 was effectively concluded
between two (States) parties which should at least be evident from the
text. There are no antecedents known that indicate prior treaty
negotiations between the English king and the Flemish government
concerned or the city of Bruges. Consequently, it seems difficult to
conclude that this would be a (bilateral) treaty. On the other hand, one
could consider the Privilege as a kind of simplified (executive)
4
Regulation (EU) No 1380/2013 of the European Parliament and of the Council of 11 December 2013 on the
Common Fisheries Policy, Official Journal 28 December 2013, L354/22.
5
Vienna Convention on the Law of Treaties of May, 23 1969. Text in Belgisch Staatsblad 25 december 1993.
 agreement and still conclude that it is a treaty as stipulated in the
Vienna Convention. Indeed, executive agreements as concluded by the
Head of State e.g. will be regarded as an international treaty. The
question is whether this was recognized as such in 17th century British
constitutional law. Consequently, this course of action also seems
unconvincing in order to conclude that the Privilege of 1666 would be a
treaty in the sense of the Vienna Convention.

5. A possibly more plausible explanation regarding the legal status of the

document is to consider it as a unilateral act of the English king in which
he included legally valid obligations towards the fishermen of Bruges 6.
Thus, legally valid norms of international law are also created for the
benefit of the Flemish/Belgian fishery. The continued validity of such
norms of international law will of course also have to be tested against
the applicable rules of international law, in particular the 1982 Law of
the Sea Convention (LOSC 1982). Whatever the legal status of the
document, the key question remains, of course, whether it has stood
the test of time and still carries obligations today on behalf of the British
government as the legal successor of the King of England. The answer to
this question will possibly differ depending on the document's status as
a treaty or as a unilateral declaration. Let us examine the two
possibilities.

6. If the Privilege of 1666 is to be considered a treaty, the Vienna

Convention will apply to it. In particular, attention will have to be paid
to art. 59 VC according to which a treaty may be terminated by a later
concluded treaty whose provisions are not compatible with the first
treaty. Art. 59 VC presupposes that three conditions are met. First, they
must be the same treaty parties. Specifically, this concerns the Privilege
of 1666 and the 1982 Convention on the Law of the Sea7 . In both cases
we are talking about the same contracting parties, i.e. the United
Kingdom and Belgium (Flanders). The second condition is that the later
treaty (1982 Convention on the Law of the Sea) covers the same subject
matter as the earlier treaty (Privilege 1666), i.e. fishing rights within

6
On unilateral actions see: Nuclear Test Cases, ICJ Reports 1974, 267-268; M. Shaw, International Law,
Cambridge, Cambridge University Press, 2008, 121-122.
7
United Nations Convention on the Law of the Sea, Montego Bay 10 December 1982, text in International
Legal Materials 1982,1245-1354.
 waters under the jurisdiction of the coastal state. Part V of the 1982
Convention provides for the establishment of an Exclusive Economic
Zone (EEZ) and regulates the rights and duties of coastal States in this
maritime area (Art. 56 et seq. 1982 Convention). The coastal State
acquires sovereign economic rights for the exploration and exploitation
of, inter alia, living resources within the EEZ, i.e. up to a distance of 200
nautical miles from the baselines. In this zone, it is the coastal State that
will determine the allowable catch of living resources. The conduct of
fishing activities in the British territorial sea can be disregarded since
the coastal State exercises sovereignty in its territorial sea (up to 12
nautical miles from the baselines) which is limited only by the right of
innocent passage. Access to fishing in this maritime area thus remains
entirely dependent on the coastal State (see further the status of this
zone in the EU Common Fisheries Policy - CFP).
7. The third condition states that the arrangements of the treaty
concluded later are not compatible with the provisions of the treaty
concluded first. The rights granted in the Privilege of 1666 obviously
limit the sovereign power of the United Kingdom to set catch quotas in
its EEZ and generally regulate fishing. Thus, there is non-compatibility
between the Privilege of 1666 (viewed as a treaty) and the 1982 Law of
the Sea Convention. Since the conditions of application of art. 59 VC are
met and the provisions of both treaties are not compatible, it can be
decided that the first treaty should be considered terminated and the
provisions of the second treaty will apply.
8. The 1982 Law of the Sea Convention also itself determines the
relationship between the Convention and other international
agreements. Art. 311, 2 LOSC 1982 provides that it shall not modify the
rights and duties of States under other international agreements
compatible with this Convention . Sovereign rights granted to the
coastal State within the EEZ are obviously incompatible with the
provisions of the Privilege of 1666, as the latter impinges on the
sovereign rights provided for in Art. 56 et seq. LOSC. Therefore, the
1982 Law of the Sea Convention will take precedence over the rights
granted in the Privilege of 1666 and these cannot be invoked against
the jurisdiction of the United Kingdom to exclusively determine the
exploitation of fisheries in its EEZ. Of course, the United Kingdom is free
to suspend or modify the operation of the jurisdiction provisions in the
 EEZ (Art. 311.3 LOSC 1982) and still safeguard the rights granted in the
Privilege of 1666. This is obviously a political rather than a legal
consideration whose application in practice remains highly uncertain
and has actually already been overtaken in time by British policy on the
matter.
9. If necessary, reference may also be made to article 30,3 VC. This
provides that if, in the case of successive treaties with the same
contracting parties, the later treaty is not rendered inoperative in
accordance with article 59 VC, the first treaty remains applicable only if
its provisions are compatible with those of the later treaty. It appears
from the foregoing that this is not the case and that, consequently,
article 30, 3 VC will equally render inoperative the application of the
provisions of the Privilege of 1666.
10.In the event that the Privilege of 1666 is not to be considered a treaty
but a unilateral declaration of the English king, the legal situation is
different. If so, it could be argued that through the centuries-long
practice of fishing by the fishermen of Bruges in British waters, historic
rights to fishing have been acquired. With regard to the concept of
"historic rights"8, explicit reference should be made to the Arbitral
Sentence of July 12, 2016 of the Arbitral Tribunal instituted under
Annex VII LOSC 1982 in the case of the South China Sea9 .
11.In this case, the Arbitral Tribunal discussed at length the concept of
historic rights. Mostly, historic rights are exceptional rights that a State
would not normally possess unless as a result of a historical process by
which such rights arise and with the acquiescence of the other States.
The concept of "historic rights" is a general concept and may include
several rights that a State would not normally possess in accordance
with general rules of international law, except in the case of special
historical circumstances. Such rights may include fishing rights as well as
access rights to reserved maritime areas. In contrast, the concept of
"historic title" is used specifically in reference to historic sovereignty
over land or sea areas.
12.In particular, the Arbitral Tribunal addressed the question of whether
the 1982 Law of the Sea Convention permits the retention of rights to

8
Historic rights; see UN Secretariat 1962, Memorandum on the Juridical Regime of Historic Waters, Including
Historic Bays; C.R. Symmons, Historic Waters and Historic Rights in the Law of the Sea, Brill, 2019; for a
bibliographical overview see: https://brill.com/view/book/9789004377028/back-2.xml.
9
Permanent Court of Arbitration Case Nº 2013-19, Philippines/Peoples Republic of China.
 exploit (living) resources to the extent that they are inconsistent with
the Convention and were established before the Convention entered
into force. Similarly, in the case of historic rights, their relationship to
the 1982 Convention is subject to art. 311 Law of the Sea Convention
1982 since these historic rights are equally to be regarded as norms of
international law (Award, para. 235). The 1982 Law of the Sea
Convention contains no express provisions allowing historic rights over
living resources in the EEZ to remain unaffected (similarly for the
continental shelf, high seas and the Area). The Arbitral Tribunal
considers on the basis of the text (Part V) and context of the 1982
Convention on the Law of the Sea that this Convention is " ...
superseding any historic rights that a State may once have had in the
areas that now form part of the exclusive economic zone " (Award, para.
247). It is clear that the 1982 Law of the Sea Convention grants
sovereign rights only to the coastal State for the exploration and
exploitation of living natural resources. The concept of sovereign rights
over living resources is not in itself compatible with the exercise of
historic rights over the same living resources in the EEZ.
13.The question remains whether the 1666 Privilege established historic
rights independent of an agreement or unilateral decision and as a
result of a historical process over a substantially long period of time and
with the indirect consent (acquiescence) of the other States. It will be
clear that this is not the case. The fishing rights were irrefutably granted
pursuant to a (unilateral) decision of the English king and thus not the
result of a substantially long historical process. We cannot therefore
speak here of historic rights in the sense of general international law
creating an exceptional state of affairs opposable to the State whose
jurisdiction it restricts. Even if the fishing rights granted were
nevertheless to be considered historic rights, quod non, they cannot
affect the sovereign rights held by the coastal State over its EEZ, as
demonstrated above. The fact that the Privilege of 1666 has not so far
been (expressly) revoked by the British government is without
significance given the relevance of the 1982 Convention on the Law of
the Sea in its relationship to other norms of international law. Indeed,
even in the form of a non-revoked unilateral declaration by the British
king, the Privilege of 1666 as a norm of international law will be
 rendered inoperative by a later norm (i.c. the LOSC 1982 treaty rules
regarding sovereign rights of the coastal State in its EEZ).

III. The 1666 Privilege as a single norm of British public law

14. The question now is whether this contention would not contradict
the fact that the Privilege of 1666, as an expression of British
sovereignty by virtue of the King, should be considered purely as a norm
of British (public) law. In that sense, the rights granted in the document
could only be revoked by a subsequent British decision. The question
implies that, if necessary, it should be examined whether or not there
has been a revocation in British law.

15. To my knowledge and after an examination of British (fishing) law in

the 19th century, no such explicit revocation of the 1666 Privilege can
be traced. So far, so good. However, it is perfectly possible that an
implicit revocation would have occurred through the enactment of later
and conflicting legislation.

16. It is clear that the exercise of fishing rights in maritime areas under
national jurisdiction, in particular in the territorial sea, over which the
coastal State exercises sovereignty, must be based on a unilateral
authorization by the coastal State or on an express treaty provision 10. In
the same sense, the British Sea Fisheries Act, 1883 provides that a
foreign-flagged fishing vessel may not sail within the exclusive fishing
limits of the British Isles except for purposes recognized by international
law11 . However, fishing rights held by foreign fishermen may also derive
from a domestic source of law of the coastal State. Any withdrawal of
such rights could be considered a violation of international law 12. This
implies that the granting of fishing rights to foreign fishermen through a
unilateral national law decision by the coastal State inevitably generates
international legal consequences. In his manual, O'Connell refers in
particular to the situation of Bruges fishermen under the Privilege of
166613 . Here he mentions that in 1849 action was allegedly taken

10
See: J. Verzijl, International Law in Historical Perspective, III, Leiden, A.W. Sijthoff, 1970, 57.
11
D.P. O’Connell, The International Law of the Sea, II, Oxford, Clarendon Press, 1984, 1068.
12
D.P. O’Connell, op.cit., I, 538.
13
Ibidem, 538, note 148
 against Bruges fishermen "on the ground that the charter had long since
lapsed." Moreover, following Mr. Depaepe's action in 1963, he
mentions that: " the Prime Minister stated that the charter was no
longer valid having been abolished in 1851 by law". The hearing of the
Depaepe case would have been postponed sine die by the British court.
The problem with these references by O'Connell is that nowhere does
he refer to a specific source of law and consequently it is not possible to
verify.

17. I have found no explicit provision anywhere in 19th century British

legislation that the rights granted in the 1666 Privilege would have been
abolished. From a review of British fisheries legislation from 1807 until
the end of the 19th century (“A Collection of Acts Relative to Fishing
Chiefly on Herring Fishery"), it can be deduced that fishing was
regulated extensively by law (catch quantities, fishing seasons, prices,
identification of vessels...). In particular, the Herring Fisheries (Scotland)
Act, 1860 as well as the Act to amend the Acts relating to the British
White Herring Fishery, July 24, 1851, establish the conditions for herring
fishing and a system of penalties for violations. By these Acts, general
rules on herring fishing are determined. Implicitly, of course, this
replaces previous and conflicting national provisions. Thus, this could
well include the Privilege of 1666. Possibly the Act of 1851 is also the
Act referred to by the British Prime Minister in 1961. In the absence of
specific references the case is by no means clear and obvious.

18. The Privy Council mentions on its website14 a (according to them

incomplete) list of Royal Charters granted since the Middle Ages 15. The
1666 Privilege is not listed. Either this is an "omission" or it leads to a
feeling that the Privilege of 1666 was somehow rendered inoperative.
The Privy Council believes that a Royal Charter cannot simply be
revoked without regard to the interests of the beneficiaries. However, a
Royal Charter can be revoked by a subsequent law, which may have
happened in the case of the 1666 Privilege. Again, no specific express
British law can be identified for this purpose although British (fishing)

14
https://privycouncil.independent.gov.uk/ (consulted on June 27, 2023)
15
https://privycouncil.independent.gov.uk/wp-content/uploads/2021/10/List-of-Charters-Granted.pdf
(consulted on June 27, 2023)
 legislation (supra) can be cited that suggests an implied revocation of
the Privilege of 1666.

19. Notwithstanding several considerations, as cited above, strongly

suggest that the Privilege of 1666 was considered by the British
government to be no longer in force in the mid-19th century, there is no
firm provision. Moreover, the report of the Belgian Foreign Minister
during the discussion in the (Belgian) House of Representatives on the
occasion of the adoption of the law ratifying the 1852 bilateral fisheries
treaty16 shows that during the negotiations with the United Kingdom,
the British government apparently did not assume at all that the
Privilege of 1666 would have lost its validity at that time. It is of course
possible that the Belgian account presents the situation in a somewhat
rosy light and that the British government did indeed assume that with
the treaty the Privilege of 1666 would be no longer valid 17.
Again, there is thus no unambiguous text. Also the statement in 1963
following Victor Depaepe's adventure, that a British court should
actually find a solution for this case, further adds to the confusion since
no such intervention by a British court occurred.

20. Consequently, the crucial question remains to what extent the

Privilege of 1666 should be considered exclusively as British domestic
(public) law which can only be modified by later British domestic law or
whether it creates norms of international law which must be tested
against later norms of international law. In the event that the
consideration of contemporary legality rests solely on the fact that the
Privilege of 1666 is governed exclusively by British domestic law, there
remains considerable initial confusion (see, however, infra).

16
Chambre des Représentants, Documents, séance 27 mars 1852, 1050.
17
See: T. W. Fulton, The Sovereignty of the Sea: An Historical Account of the Claims of England to the Dominion
of the British Seas, and of the Evolution of the Territorial Waters: With Special Reference to the Rights of the
Fishing and the Naval Salute ,Edinburgh-London, W. Blackwood and Sons, 1911, 616-617. Fulton exaggerates
by saying that: “That charter appears to have been generally regarded as fictitious; but, acting on the advice of
the Queen’s Advocate, the Board of Trade directed that for the ensuing season of 1851 Belgians should be
allowed to fish on the same system as before, but that afterwards this liberty should cease, except in the case
of such as had been able to prove special privileges under the asserted charter in the English courts of law. The
dispute was settled by a convention between Great Britain and Belgium in 1852, in which, without mention of
any specified limit, it was stipulated that 617 Belgian fishermen should enjoy the same rights of fishing on the
coasts of the United Kingdom as the most favored foreign nation, and, in like manner, that British subjects
should enjoy corresponding rights on the coast of Belgium.
 21. It is generally accepted that unilateral acts and/or declarations of
States may give rise to legally binding norms on the part of the State
that has made or declared them (see supra). They are thus covered by
the sources of international law, although not by those mentioned in
article 38 of the Statute of the International Court of Justice. If a State,
through a competent authority (e.g. Head of State), unilaterally
assumes certain obligations, it cannot go back on them to the detriment
of the person against whom the commitment was made (principle of
good faith and estoppel). Of course, not all unilateral acts or
declarations will lead to binding consequences. What is required is the
intention to commit oneself legally, in an explicit and public manner.
Once that he who is the subject of the unilateral act or declaration
invokes the obligation entered into, a bilateral legal relationship is
established and therefore an international legal norm is created.
It cannot be doubted that these elements apply to the Privilege of 1666
and that this Royal Charter has thus introduced international legal
norms which must be checked for their further validity against later
conflicting international legal norms.

22. In my view, the following considerations confirm that the Privilege

of 1666 did create international legal norms and that its validity
therefore does not depend purely on national (British) law. In the first
instance, it is indisputable that the delimitation of maritime areas, i.e.
sea areas over which the coastal state exercises a form of national
jurisdiction, will at all times have an international aspect. Such
delimitation can never depend solely on the will of the coastal State as
expressed in its national law. Notwithstanding that delimitation in itself
is necessarily a unilateral act of law, the assessment of its validity
against third States belongs to international law18. Thus, the granting of
fishing rights to other subjects than nationals of the coastal State within
maritime areas under national jurisdiction will always carry
international significance. The restriction of British King Charles II's
sovereignty over "British waters" by the grant of fishing rights to Bruges
fishermen cannot but also have international legal implications. Indeed,
the Charter is not dealing with rights of British subjects but with rights
18
See: Fisheries Case, UK v. Norway, Judgment 18 December 1951, I.C.J. Reports 1951,132.
 of subjects of another State. The fact that the Bruges fishermen in their
activities in waters under British sovereignty will therefore be subject to
British law confirms once again the international scope of the Privilege
of 1666. Moreover : "The Law of Nations does not prevent a State from
exercising jurisdiction...over its subjects travelling or residing abroad,
since they remain under its personal supremacy"19 .

23. Today, therefore, the legality of the Privilege of 1666 must be

assessed for possible conflict with subsequent norms of international
law. Thus, the fact that the Privilege of 1666 was (possibly) as such not
explicitly or implicitly revoked or rendered ineffective in British
domestic law is actually irrelevant since its validity must be assessed
according to norms of international law, i.c. the 1982 Convention on the
Law of the Sea. The later norm, i.e. granting sovereign rights over the
exploitation of living resources within the EEZ, prevails over the earlier
norm limiting such rights.

24. Even if it is held that the legality of the Privilege of 1666 should be
tested solely against British domestic law, the legal norms of the 1982
Law of the Sea Convention, as introduced by a national British Act
(transformation - dualistic legal system)20 will prevail as domestic law
over the earlier conflicting standards of domestic law in the Privilege of
1666. Indeed, in the United Kingdom, treaties must be transformed into
national law which i.c. may lead to a conflict between norms of national
law21.

25. For the sake of completeness, the question may be raised whether
Belgium, by becoming a party to the 1982 Convention on the Law of the
Sea, has thus restricted or even abolished the rights of some of its
nationals as provided in the Privilege of 1666. Obviously, the 1982
Convention on the Law of the Sea will not directly affect specific rights
of individuals. It is the contracting parties who must implement the

19
Lauterpacht’s Oppenheim, International Law. A Treatise, 1947 , I, 217.
20
Cfr. E. Denza, The Relationship Between International and National Law, in M.D. Evans (Ed.), International
Law, Oxford, University Press, 2003, 426-427.
21
Eventually, if need be, the British government--as in the case of the 1964 London Fisheries Treaty--will simply
be able to expressly repeal the Privilege of 1666 by an Act of national law. This would obviously bring complete
clarity and avoid possible further disputes. However, it does not appear that the British government considers
this necessary.
provisions of the Convention in their own national legal order (except in
the case of direct effect). It is not Belgium as a contracting party that
will affect the rights of Flemish/Belgian fishermen. That in itself would
be very curious. Since the United Kingdom can invoke the sovereign
rights granted in its EEZ, it will be this State that may raise restrictions
on these rights, as existing under the Privilege of 1666, in order to
render them inoperative if necessary. Belgium will not be able to
oppose the valid exercise of the British sovereign rights even if this
affects the fishing rights - existing or not - granted under the Royal
Charter of 1666 because these sovereign rights are not compatible with
the restrictions previously granted to them.

26. The granting of fishing rights as stipulated in the Privilege of 1666 to

a limited number of Bruges fishermen and under specific conditions,
does not seem to have in itself the necessary consequence that the
Privilege of 1666 would expire because no more Bruges fishermen
would meet the conditions set. One must take into account the changed
circumstances in relation to the 17th century, such as the political
changes that have occurred since then. However, from a British point of
view, one could of course argue that the category of specific
beneficiaries of fishing rights no longer exists and therefore the scheme
becomes without object, at least rendered inoperative through disuse
(desuetudo). Moreover, it is a characteristic of such royal charters that
they involve special arrangements which cannot be generalized or
extended but must be limited to their specific content.

IV. The 1666 Privilege: still legally valid or not?

27. The test of the contemporary legal validity of the Privilege of 1666
may rest on two premises: either exclusively through British domestic
law or through international law.
In case one considers that the legal validity of the royal charter can only
be tested against British national law norms (quod non), from the
Flemish/Belgian point of view it should be shown that there is no
national law provision that revoked the royal charter. From the British
point of view, of course, the reverse. To my knowledge, there is no
known explicit provision by which the royal charter would have been
revoked. However, there are several elements in British (fisheries) law
that at least indicate that there has been an implicit revocation,
abrogation or setting aside of the royal charter. Absolute clarity cannot
be given on this, however, and the confusion this creates does not
benefit either party involved. However, the specifics of the royal charter
may lead to the conclusion that it is no longer in force.

28. If it is assumed that the validity of the royal charter is to be tested

against subsequent norms of international law in conflict with it, there
can be no doubt that in accordance with the rules of international law
the Privilege of 1666 is rendered inoperative by the relevant legal norms
of the 1982 Convention on the Law of the Sea. This, in my opinion, is the
correct view now that the unilateral declaration of the British King has
effectively created norms of international law. In addition, by
transforming the 1982 Law of the Sea Convention through British
legislation (e.g. Fishery Limits Act, 1976; Marine and Coastal Act 2009;
Exclusive Economic Zone Order, 2013), these international norms will be
transformed into domestic law. Thus, the later national law standard
(which transposes the international standard into national law) will
prevail over the earlier conflicting national standard.

29. Thus, the Privilege of 1666 does not allow Flemish/Belgian

fishermen to assert fishing rights today against the United Kingdom in
maritime areas under British jurisdiction in accordance with the 1982
Convention on the Law of the Sea.

V. Opportunities for Flemish/Belgian fisheries within the norms of

the 1982 Convention on the Law of the Sea

30. Let us now consider briefly whether the 1982 Convention on the
Law of the Sea still leaves a possible way out for Flemish/Belgian
fisheries to engage in fishing in British waters in defiance of existing
British sovereign rights over the living resources in the British EEZ. Art.
61 LOSC 1982 states that the coastal State determines the allowable
catch of living resources in its EEZ (TAC: Total Allowable Catch) . In
setting catch quotas, the coastal State must explicitly take into account
scientific data so as not to cause overexploitation. This is done by
issuing appropriate measures for the conservation and management of
these living resources to bring the population of the species to the
highest possible exploitation level (MSY: Maximum Sustainable Yield).
Importantly, the coastal State, through the measures it takes for
conservation and management, promotes the optimal use of living
resources (Art.62,1). In execution of its sovereign rights, the coastal
State determines the quantity of the living resources of the EEZ that it
can land. If the coastal State does not fully utilize this capacity, it grants
other States access to the surplus of the allowable catch (art.62,2). In
granting access to other States to its EEZ, the coastal State will take into
account a number of factors of an ecological and economic nature. In
the context of the position of non-UK fishermen after the UK's exit from
the EU, there is a need to " minimize the economic dislocation in the
States whose nationals habitually fished in that zone" (Art. 62, 3, in
fine). Undoubtedly, the Flemish/Belgian fishery will potentially be
seriously affected economically by any exclusion or restriction from UK
waters and therefore this provision could allow for a renewal of fishing
activities for the Flemish/Belgian fishing fleet in the future.

31. However, it is premature to hope that this provision, i.e., access to

the surplus of British fishing capacity, is without question the solution.
Although the text is sufficiently clear and Articles 62,2 and 62,3 of the
1982 Convention impose an obligation of access to the surplus ("it
shall...give access"), there must of course first be a surplus and the
coastal State is still free to determine the State or States to which it
grants such access within the possibilities provided by Article 62,3 of the
1982 Convention. Moreover, fisheries policy for the EU Member States
falls exclusively within the competence of the EU itself and, where
appropriate, agreements will therefore have to be made with the EU.
The question then is whether the position of the Flemish/Belgian fishery
will be strong enough in this respect. Rather than legal considerations,
which can nevertheless be partly helpful, the future of the
Flemish/Belgian fishery will have to rely on the negotiating capacity of
the Flemish and Belgian competent authorities within the EU and vis-à-
vis the British government.

VI. Other legal instruments?

 32. For the sake of completeness, let us examine whether there are no
other legal instruments available from which the Flemish/Belgian
fishery can draw rights to continue operating in British waters.

33. Thus, attention can first be paid to the London Fisheries Treaty of
March 9, 196422. This treaty concluded between 12 West European
States (including Belgium and the United Kingdom) provides for the
possibility of establishing exclusive fishing zones of 12 nautical miles by
virtue of the coastal State. The first part of 6 nautical miles from the
baselines is reserved exclusively for the coastal State. In the zone
between 6 nautical miles and 12 nautical miles, fishing is reserved to the
coastal State and the other Contracting Parties who habitually fished
this zone between January 1, 1953 and December 31, 1962. Under
British legislation, i.e. the Fishing Limits Act 1964, Belgian fishermen,
among others, were granted access to the British fishing zone between
6 nautical miles and 12 nautical miles.

34. The question is whether the Contracting Parties other than the
United Kingdom today have access under this Convention to the British
zone between 6 nautical miles and 12 nautical miles from the British
baselines. Treaty law seems to rule this out. Indeed, the provisions of
the 1964 London Fisheries Convention were in fact set aside with
respect to the UK (and moreover to the other Contracting Parties also
since they are all EU Member States) by the European Common
Fisheries Policy after the UK's accession to the EU and since the EU itself
has never been a Contracting Party to this Convention. More
specifically, the possibility of introducing restrictions on access to
waters within 12 nautical miles from the baselines is provided for in Art.
5, 2 of the Common Fisheries Policy Regulation 1380/2013. Member
States may, for a 10-year period (until December 31, 2022), restrict
fishing to fishing vessels that traditionally fish in those waters from
ports on the adjacent coast. The legal basis for granting fishing rights in
the entire 12-mile zone is thus - be it in implementation of Article 10
London Fisheries Convention - based on the European regulation
defining the Common Fisheries Policy. European law, in other words.
22
Text: UN Treaty Series Vol. 581, 57.
 Therefore, once the UK has left the EU, the provisions of the Common
Fisheries Policy will no longer apply (subject to possible transitional
provisions)23.

35. In addition, this Convention will also have to give way to the
provisions of the 1982 Law of the Sea Convention pursuant to Articles
59 and 30 VC and Article 311, 2 Law of the Sea Convention 1982. The
exercise of fishing rights in the zone between 6 nautical miles and 12
nautical miles from the baselines provided for in the 1964 London
Fisheries Convention is plainly no longer compatible with the provisions
of the 1982 Convention. Indeed, the zone of 12 nautical miles from the
baselines now falls entirely within the territorial sea over which the
coastal State exercises sovereignty. Only by an explicit decision of the
coastal State can this sovereignty possibly be limited in favor of third
States (or by the existence of historic rights over this maritime area).
The fact that for a considerable period of time access was granted by
the United Kingdom to third States' fishing fleets within the zone
between 6 nautical miles and 12 nautical miles from the baselines does
not allow one to conclude that this created historic rights in favor of
these third States. Indeed, this is not an indirect approval
(acquiescence) by the United Kingdom to a practice over a considerable
period of time but the fulfilment of a treaty obligation and, after 1973, a
European law standard.

36. Complete certainty is finally provided regarding the opposability of

the London 1964 Fisheries Convention by the UK government's
announcement to denounce the convention from the date the UK
leaves the EU (Act of Denunciation of July 3, 2017). Since the United
Kingdom will cease to be a contracting party from that date (Jan. 31,
2020), the remaining 11 other contracting parties will no longer be able
to invoke the provisions of this treaty against the United Kingdom, and
all fishing rights for the benefit of third parties, as regulated by the
United Kingdom under this treaty, will cease.

23
Extensively discussed in R. Churchill, Possible EU Fishery Rights in UK Waters and Possible UK Fishery
Rights in EU Waters Post-Brexit. An Opinion Prepared for the Scottish Fishermen’s Federation, 2016.
 37. Finally, mention should be made of the bilateral Fisheries Treaty of
22 March 1852 concluded between Belgium and the United Kingdom 24.
This treaty applies the most-favored-nation (MFN) clause with respect
to Belgian fishermen in British waters and British fishermen in Belgian
waters. This basically means that both States will mutually levy the most
favorable import duties on the fish landed. The treaty was originally
concluded for a term of seven years with the possibility for either party
to terminate it after this period. The treaty is no longer valid today and
therefore cannot be invoked to obtain favorable treatment for Belgian
fishermen from the British government. The treaty did not stipulate any
access rights but only the application of the most-favored-nation clause.
Nor does it create historic rights.

38. During the discussion of the bill approving this treaty in the Belgian
House of Representatives25, the Rapporteur (Foreign Minister) points
out that in the preparatory negotiations of this treaty it was requested
by Belgium to include access rights for Belgian fishermen in the coastal
waters of Scotland. The British Government did not respond to this but,
according to the Rapporteur, clearly stated that the Government could
not comment on the legal validity of the Privilege of 1666. The British
government believes that this should be decided by British
jurisprudence proposing that this be settled within a period of one year
from the conclusion of the treaty. To my knowledge, however, there is
no case law on this issue. The validity of the Privilege of 1666 is not
affected by the agreement to apply the MFN clause to the Belgo-British
fisheries. Indeed, the rights provided for in the Privilege of 1666 and the
provisions in the fisheries treaty 1852 are two different aspects of the
fisheries problem between Belgium and the United Kingdom. The 1852
fisheries treaty clearly does not wish to affect what Charles II granted in
his Privilege of 1666. This implies that at the time of the 1852 fisheries
treaty, the Privilege of 1666 was still considered legally valid by the
British government. However, as far as the situation today is concerned,
this no longer has the same meaning (see also supra no.19).

24
Text: Receuil des lois et arrêtés royaux 1852, XIV, 127-129; amended by a commercial and maritime
convention of 1862.
25
Chambre des Représentants, Documents, séance 27 mars 1852, 1050.
39. Lastly, the question can be raised whether the regulation of fisheries
as stipulated in the EU Common Fisheries Policy (CFP), which relies
mostly on the allocation of quotas for certain species and in certain
areas, provides a ground for these activities to continue even after the
UK's withdrawal. Art.5, 1 of the Regulation 1380/2013 provides a right
of equal access for all EU fishing vessels to maritime waters under the
jurisdiction of Member States, with the exception of the 12 nautical
mile zone (art.5,2). In implementation of the CFP, it is irrefutable that
EU Member States have effectively exercised fishing rights in UK waters,
i.e. first in the UK Exclusive Fishing Zone (introduced by the Fishery
Limits Act 1976) and since March 2014 in the UK EEZ covering the same
area (it is only in 2014 that the UK’s EEZ was introduced into UK law).
The key question, of course, is whether these fishing rights have
acquired the status of historic rights under international law. As shown
above, the conditions for the creation of historic rights are also not met
in this case. The effective exercise of fishing rights within the UK
Exclusive Fishing Zone and later the UK EEZ does not rely in any way on
an indirect consent (acquiescence) by the UK government but on a
specific European law regulation, i.c. the Regulation 1380/2013 (or the
previous regulations establishing the CFP). Even if these effective
exercise of fishing rights in British waters are considered historical
rights, quod non, they are cancelled by the grant of sovereign rights
over the living resources in the EEZ, as provided for in Part V Law of the
Sea Convention 1982 (see the arbitral decision in the South China Sea
case cited above).

40. Ultimately, the only conclusion regarding the legal position of

Belgian/Flemish fisheries regarding the exercise of fishing rights in
British waters after the British exit from the EU cannot be positive.
Neither the Privilege of 1666 nor other international law instruments
examined in this brief contribution provide a sufficient legal basis to
allow Belgian fishing activities in British waters, i.e. the British EEZ and
territorial sea, post Brexit without prior agreement with the British
government. Such an agreement will, for one thing, not be within reach
of the Belgian government since the issue of fishing at sea falls within
the exclusive competence of the EU.