The Right of Access to Port and the Impact of Historic Fishing Rights

Abstract

DILA’s 2020 International Conference theme, “Reshaping International Law in the Asian Century”, does not necessitate the challenging or subversion of established norms. Reshaping may equally occur by reflecting on overlapping fragments of international law that were previously only analyzed in silos. This article identifies a previously overlooked contribution to international law by taking historic fishing rights, a predominantly regional or bilateral custom, and assessing the extent to which it refines the lack of customary law rights for vessels to access foreign ports, an established global norm of international law. This article therefore first proceeds with section 2 charting the lack of any general right of access to foreign ports in the law of the sea. The only widely accepted customary law exception concerns vessels in distress, or a situation of force majeure, where access to port is necessary to preserve human life. Section 3 then introduces the contemporary scope of historic fishing rights, and, more specifically, the recognition of associated rights in the Eritrea/ Yemen – Sovereignty and Maritime Delimitation in the Red Sea Award Stage II (Eritrea/Yemen Award).1 The explicit example of an associated right of access to port for historic fishers necessitates a refinement of the findings in section 2. The conclusion shall place this exceptional right of entry within its wider international law context, namely as an affirmative example of bilateral customary international law.2 Finally, this article concerns the practice of international courts and tribunals in conceptually recognizing a historic fisher’s associated right of access to a port in the law of the sea. This article does not provide an exhaustive account of historic fishing regimes in which an associated access right could apply.