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Introduction

Nautical Miles” (M.NM) are internationally agreed at 1.852 meters.  Used as measurements of:

(a)          speed and

(b)          distance (both down and up).

Base line” normally the low water mark along the coast as marked on a large scale chart and officially recognised by the coastal state.

Breadth” means in the Convention (see below) [Section 2 Article 3] how far out from a base line, e.g. “every state has a right to establish the breadth of its territorial sea by a limit not exceeding twelve nautical miles measured from base lines”.

“Control measure” in recent year’s Parliamentary draftsman have issued an Act of Parliament or Standing Order (“the control measure”) under which regulations or controls to follow, e.g. the Food and Environmental Protection Act 2003.

“Depth” a word with different meanings.  At sea it could be:

(a)          the depth of water at any one place or

(b)          the distance from one point (a base line) out in to the sea (such as the width of the inshore region).  In this way used similarly to the word breadth.

“Marine Conservation Zone” (“MCZ”) is a creation of the Marine & Coastal Access Act 2009 (“MCA”) to protect essentially our offshore sea region of the territorial sea.

This is about the use and development of the UK’s “territorial sea”, its marine planning and “marine conservation zones”.   It involves first a look at public international law (the law as between states), then its effect on people.

Attachments

In an attempt to simplify there is attached at:

(a)          a Selected Chronology with

(b)          a Timeframe

(c)           a table of abbreviations

(d)          a list of cases/authorities

Where I can I have tried to use “neutral citation” so the point can be found on the internet.

UK Land Use

The UK was the first modern industrial nation.   For centuries internal control was dependent upon arrangements or cases at common law between owners.  With little real thought of human effect on rivers, estuaries or seas (for example see R. v. Southern Water Services Ltd (pollution in to the Thames) [2014] EWCA Crim 120.

Whilst there were limited planning laws, internally control did not really start until after the Second World War with the Town and Country Planning Act 1948 and the National Parks and Access to the Countryside Act 1949.

However, it has been a gradual thing for the UK to appreciate that what happens on land usually has a direct or indirect effect on our territorial sea (from The Water Resources Act 1963, 1991 and 2003, United Nations Conference on the Human Environment 1972 (also called the “Earth Summit”), Food and Environment Protection Act 1985, the Pollution Prevention and Control Act 1999 where the Water Framework Directive 200/60/EC in 2003, the Food and Environmental Protection Act and Water Acts 2003 to mention a few.

As a result we still have a starting point of our rivers and estuaries releasing material in to the sea. Also affected by our previous land use, such as the attempts in the 1970’s to use waste as a sea defence now causing problems in Essex and Northumberland as coastal erosion starts to take out the very waste intended as a defence.

Adjacent Land Ownership

Our basic land ownership in the UK still has the start at 1066 (a little later for Wales and Scotland). All land used remains a gift from the Crown.  That land can be affected by:

accretion”. Increased as the sea deposits or withdraws [Loose v. Lynn Shellfish EWHC 901 (Ch)] or by “diluvium”.  As the sea or river takes away land [Southern Centre of Theosophy v. State of Southern Australia [1982] 1 AER 204.

When we talk about “sea shore” a great deal of which is either in personal or public authority ownership we usually refer to the landward side of low water [Government of Penang v. Beng Hong Oon [1972] AC 425 at 435 or closer to home Blundell v. Catterall 5 B and ALD 268.  With similar cases from drying nets to taking shell, such as Adams v. National Trust CHD 1997 and/or Scott v. National Trust 1998 EWHC 318 (Ch).

On the seaward side of which we get to the “foreshore”.  Now defined by Schedule 6 (Part I of the Land Registration Act 2002 as “the shore and bed of the sea and any tidal water, below the line of the median high tide between the spring and neap tides”.

Post at least 1066 much of the UK foreshore falls under Crown ownership and/or control, albeit with restrictions (see below). With that Crown control (see the case involving the Severn Estuary) in Roberts v. Swangrove (1), Crown Estates (2), Hanbury-Tennison [2007] EWHC 513 (Ch) and The Crown Estate Act 1961.

Although apart from the Crown controlled land there remains land completely under the Crown’s ownership and control. “Demense” land (under Section 79, 81 and 132 of the Law of Property Act 2002).

From land out in to the inshore waters we have also built structures, such as harbours which in turn fall under their own rules and provisions. See Newhaven Port and Properties Limited v. East Sussex County Council and Newhaven Town Council [2015] SC.

Although our use and development of harbours and ports are themselves being developed, by the Second World War many were in fact either privately owned or controlled by private act of parliament sub-controlled through bylaws and other orders, in addition to the Harbour Act 1964.  However, during the last twenty years those arrangements themselves not being re-organised through the trust ports arrangements.  Along that road we have seen the Health & Safety at Work Act 1974, Water Resources Act 1981, Pilotage Act 1987, Environmental Protection Act 1990, Ports Act 1991 and the Environment Act 1995 amongst many others.

Maritime Zones

States have over centuries agreed either for themselves or their subjects sovereignty use and control of areas covered by the sea.

From the geographics of the sea it is now clearly established that as the sea bed drops down there exists a “territorial sea” (see below) down to the “continental shelf” dropping down further to the “continental slope” to the “continental rise” and eventually the “deep sea”.

Above and across the sea states (not individuals) have established other zones and descriptions.

Mentioned below is the United Nations Convention on the law of the sea which took place at Montego Bay in December 1982 (“Convention”). References to “Art” refers to that Convention.  The UK became a party to it in 1997.

Underlaying that is the UK’s control largely based on the Marine and Coastal Access Act 2009 (“MCA”).  Which itself also reflects our membership of the European Union.  The attempts and discussions over the Environment and Fisheries.

For these purposes there are:

“The Territorial Sea”.  Measured from an appropriate base line under Section 1 – Art 3 of the Convention it can be (it does not have to be) up to “a limit not exceeding twelve nautical miles measured by base lines determined in accordance with this Convention”.

“Contiguous Zone”.  Internationally regarded as a further twelve NM’s from the seaward side of the territorial sea.

Continental Shelf”.  An area technically beyond this work.  This includes the sea bed sub-soil but may include sovereign rights (see Articles 76 – 79 of the Convention).

The Exclusive Economic Zone

Beyond the scope of this work, marine states have extended their interest and control to an area up to 200 nm’s beyond an acceptable base line, under the sea bed, subsoil below together with the water and whatever is in it above. This includes a sovereign right of expiration and exploitation (see Art 55 – 58 of the Convention).

Marine Conservation Zones

At first post-Convention the UK did not seek to adopt such a zone but now does and effectively this covers the same areas as would have covered with the inshore and offshore regions.

Base lines and medians

Around the UK we are now reasonably clear where our sovereign waters start and end together with what we can and cannot do further afield but it was not always the best way:

(a)          issues on how far we could fish which led to how far out the state can exercise control.  Still the main case of bays, islands and base lines was Anglo-Norwegian Fisheries [1951] ICJ Rep 116

(b)          similarly on this and what happens when two state zones collide resulting in the now accepted median lines occurred in Anglo-French Continental Shelf Arbitration [1977] ILM 397 and

(c)           as to the binding effect of Convention agreements the North Sea Continental Shelf case [1969 ICJ] (Germany, Denmark and Netherlands).

For generations (in fact until 1988) the UK took the view (like the USA) that based upon the Dutch Jurist Vynkershoek we only needed control of three nautical miles from our shore based on the “cannon shot” rule although neighbouring states took different views.

The issue was though (often determined by custom) from where was the cannon which developed in to the international understanding of “base lines”.

In 1910 North Atlantic Coast Fisheries Case (UK and USA) together with other that has led to the Hague Convention in 1930 although the great depression and then a Second World War took states off those marine issues until 1948 when Norway sought to establish its control of its fish around its unusual coastline leading to the Anglo-Norwegian fisheries case [1951] ECL where “base lines” where and how formed the main feature, perhaps a prelude to the Convention.

The UK passed its own legislation by the Continental Shelf Act 1964, the Territorial Waters Order of 1964 before commencing discussions to join the European Union (see below) in the 1970’s. Unsurprisingly applying those around the Channel Islands between the UK and France gave rise to the Anglo-French continental shelf arbitration in 1977 and the development of the concept of median lines between rival states.  These cases inevitably were considered at the Montego Bay Convention in 1982.

Under the Convention which was agreed at:

(i)            Section 1 Art 1 the sovereignty of a coastal state extends beyond its land territory and internal waters and … to an adjacent belt of sea, described as the territorial sea”.

(ii)           “this sovereignty extends to the air space over the territorial sea as well as the bed and sub-soil”.

Section 2 Art 3 the breadth of the territorial sea is “up to a limit not exceeding twelve NM measured from base lines determined in accordance with this Convention”.

Section 2 Art 5 explained where the base line should normally be taken from at “the normal base line for measuring the breadth of the territorial sea is the low-water along the coast as marked on large scale charts officially recognised by the coastal state

Section 2 Art 7 (but recognising the Norwegian case) confirmed the usual basis would be a straight base line but “in locations where the coast line is deeply indented and cuts in to, or if there is a fringe of islands along the coast in its immediate vicinity the method of straight base lines joining appropriate points may be employed in drawing the base line from which the breadth of the territorial sea is measured”.

Section 2 Art 15 and 16 introduced the word “median line” although under Article 15 “the above provision does not apply, however, where it is necessary by reason of historic title or other special circumstances to delimit the territorial sea of the two states in a way which is at variance therewith”.

Although median lines are not unknown to the UK. The point has been fixing where they are.  The original Fisheries Limits Act 1976 defined in Section 1 as two hundred miles “from the base line from which the breadth of the territorial sea adjacent to the United Kingdom, the Channel Islands and the Isle of Man is measured ..” and at 1 (4) “the median line is a line every point of which is aquidistant from the nearest points of, on the one hand, the base lines referred to in sub-section (1) and, on the other hand the corresponding base lines of other countries”.

Many states have internal waters. Explained in Art 8 where the issue is “rights of innocent passage”.

River mouths and bays themselves attract different issues. Many of the UK river mouths do not end directly in to the sea but widen in to an estuary which in turns leads to the sea.  Under Article 9 which relates to rivers it was agreed “the base line shall be a straight line across the mouth of the river between points on the low water line of its banks”.

Bays and estuaries vary considerably around the world. This required a few more words under Art 10 although most in the UK will be called by Art 10 (iv) “if the distance between the low water marks on the natural entrance points of a bay does not exceed twenty four nautical miles, a closing line may be drawn between those two low water marks and the waters enclosed thereby shall be considered as internal waters”.  Many of our UK rivers do not drain immediately in to the sea but widen in to tidal estuaries along their way.  The Thames itself runs through London then widens in to an estuary.  This area although tidal falls within the local state control as in Post Office v. Estuary Radio [1968] 2 QB 740.

Low tide elevations are common around the UK coast. “A natural formed area of land which is surrounded by and above water at low tide but submerged at high tide. Where a low tide elevation is situated wholly or partly at a distance not exceeding the breath of the territorial sea from main land or an island the low water line on that elevation may be used as the base line for measuring the breadth of the territorial sea” (Art 13).

The UK also has some small islands just off shore in respect of which every island capable of sustaining life grants its own base line in the territorial sea.

Reefs

When we use the word reef we tend to think of the Southern Hemisphere and coral reefs. That clearly was the subject under Article 6 of the Convention.  As was the focus of Churchill and Lowe “The Law of the Sea”.  However, around our UK coast the word reef has been re-defined as meaning “structures that rise from the sea bed and can be formed of either biogenic concretions (structures created by the animals themselves), or of geogenic origin (where animal or plant communities grow on raised or protruding rocks). A variety of subtidal sea floor features may be included in the reef habitat complex such as vertical rock walls, horizontal ledges, overhangs, pinnacles, gullies, ridges, sloping and flat bed rock, broken rock and boulder and cobble fields”.

For some of us nothing more than rocks under the sea although for others they are natural habitats of wild flora and fauna under the Council Directive 92/433 EEC (“the Habitats Directive”) and Natura 2000.  Such structures justifying in places Special Area of Conservation under the Conservation of Habitats and Species Regulations 2010.

Joining the European Union

In 1973 the UK decided to join the European Union although some at the time thought it was simply a common market.

In nautical terms at least one point was overlooked.   By the 1894 Merchant Shipping Act only a British registered person could own a British registered vessel.  An issue confirmed by the older cases of The Polzeath (1916) P 241. However, that was apparently overlooked leading to the factortame decision [1991] AC 603.

As the EU has developed the effect has been to delegate or accept despite sovereignty control over:

(a)          fisheries planning and distribution of stocks and

(b)          environmental concerns and control.

The effect of our membership of the European Union has extended well beyond simply fisheries effort. For many in a good way either by direct Parliamentary activity or agreed EU provision.  These include the Habitats Directive (92/43/EEC), the Birds Directive (2009/147/AC), our Water Framework Directive (2004/60/EC), the Environmental Liability Directive (2004/35/EC), the important Marine Strategy Framework Directive (2008/56/EC) EIA Directive (2011/92/EU), SEA Directive (2001/42/EC) and may more which in many years are produced by the MCA of 2009 with the introduction of marine planning for our inshore and offshore regions.

Inshore and Offshore Regions and Bylaws

All around the UK are inshore area whilst for generations determined at six NM’s from the low water line.

An area recognised as needing a structure to protect initially the fishermen working in it and evident by the Inshore Fisheries Act 1945.

All around our coast but essentially dealing with fishing effort a number of statutory fisheries committees were formed which had their own power to impose bylaws.

In many cases the creation of a bylaw was a last resort as man of the committee members were themselves fishermen. This gave rise to “gentlemen’s agreements” whereby out at sea fishermen themselves were able to agree potting areas as opposed to trawling areas with other areas where juvenile fish could develop.

The wording of the old Devon Sea Fisheries Committee (later Devon and Severn) were typical “the bylaw shall apply to any part of the district within a line drawn on the seaward of the base lines six nautical miles from the base lines from which the breadth of the territorial sea adjacent to the United Kingdom is measured but shall not include that part of the District which lies the west of a line drawn on a bearing of 243 degrees true from Bolt Tail. For the purpose of this paragraph the base lines mean base lines as they exist at the 25 January 1983 in accordance with the territorial Waters Order in Council in 1964 as amended by the Territorial Waters (Amendments) Order in Council 1979.

Even then the need to protect and preserve was recognised by the fisheries committees and their bylaws, for example, under the Wildlife and Countryside Act 1981 and the creation of the Lundy Island Marine Nature Reserve (now a SAC).  As is an area off the Severn Estuary now called the Severn Estuary Special Area of Conservation (SAC).

Between 1999 and 2000 Europe wide ecologically concerns resulted in “natura 2000” in which member states were required to submit sites worthy of protection as special areas of conservation for the European community.  This was part of the Council Directive 92/43 EUC for the conservation of natural habitats, wild flora and forna.

The 2009 Act through Sections 125 – 129 further established the creation of chosen MCZ’s for protection and bylaw control to protect them.

Under domestic law the Conservation of Habitats and Species Regulations 2010 became law enabling the creation of Special Areas of Conservation (“SAC’s”).  This has led to European commission Sites of Community Importance (“SCI”) within our inshore and offshore waters.

The effective has been to encourage the MMO using IFCA’s to review in areas of SCI or SAC its control of fishing activity for both inshore and offshore (see below).

The operation by fishermen within this area is fairly correctly mentioned by Mr. Justice Cranston in the UK Association of Fish Producer case [2013] EWHC 1959 (Admin) para’s 10 – 13.

The Marine Management Organisation had started to increase its control of the committee’s before the 2009 Act although the establishment of MCZ’s and Section 125 through to 129 of that Act very much set the scene for bylaw control of the MCZ’s.

Devolution

Devolution started in 2009 leading in 2010 to the Marine (Scotland) Act.  The Welsh Zone (Boundaries and Transfer of Functions) Order 2010/760.

The Welsh chose to combine their Northern and Southern Inshore Fisheries committees in to one under the control of the Welsh Regional Assembly (“WAG”).

However, it is important that:

(a)          the law did not change, it was merely a transfer of enforcement and control rights under MCA in 2009 under the 2010 Orders.  With specific reference to the Sea Fisheries Regulation Act 1966 and

(b)          Welsh waters are essentially the same waters as fell under the South Wales Sea Fisheries District (Variation) Order 1980 SI 1980/823 and the Sea Fisheries District (Variation) Order 1993 SI 1993/253.

The effect should be as of 2010 that you should be able to place the old Devon and Severn Fisheries Committee chart with the old South Wales Sea Fisheries Committee plan and they should be the same as the WAG and Devon and Severn charts today.

Base lines for that purpose remain “the base lines” means the base lines as they existed on the 25 January 1983 in accordance with the Territorial Waters Order in Council 1964 as amended by the Territorial Waters (Amendment) Order in Council 1979.

The Convention rules were intended to deal with understandings between states not individual parts of one state. However, even those rules made clear that they will be subject to local and customary application and should apply between England Scotland, England Wales and vice versa.

Right’ of Passage

Vessels rights’ of passage to and from our shores have within limits been a matter of custom. They are, however, mentioned in the Convention dealing with:-

1)            Rights of innocent passage in a territorial sea (AR 17)

2)            The freedom of passage and overflight (Article 17)

3)            Within the EU Common Fisheries Policy (rights to fish and get there).

Marine Planning

Apart from fishing and innocent passage other activities have always taken place within our territorial sea. These have included sand and gravel, aggregate removable by the Crown (Crown Estate Act 1961).  Searching for oil and gas (see Petroleum Act 1998 Section 3, Energy Acts 2004 and 2008.)  For centuries there was dumping at sea.  In addition cable laying in places attempts at aquaculture.  It was in fact in Europe in 2008 that the commission and its then member states (COM 2008 791) determined the need for maritime spatial planning.  That which has been extended by the MMO starting from the Planning Acts 2008 to the establishment of the MCZ’s under the MCA 2009.

The current development of our inshore and offshore areas are extending rapidly in a way that fishing is just a part. The current proposal by Crown Estates to have some eighteen sites (November 2018) for floating wind turbines further explains the gradual development of our territorial sea.

A Short Summary of Fisheries Methods Inshore and Offshore

Like so many things our current fisheries methods and the regulations affecting them in the territorial sea have grown rapidly since the Second World War.

Initially the UK’s approach to our inshore and offshore areas was to rely on the “cannon shot” rule so the areas beyond land were divided between 3 nm and then up to 6 nm (now 6 nm and 6 nm or 12 nm combined).

The ten original Inshore Fisheries and Conservation Authorities were established by statute and bylaw specifically to regulate fishing. The original concerns being:

(a)          balancing the conflicting needs of different types of fishing so as to preserve the fishing grounds.  In many areas that meant balancing those crabbing for a living against those trawling but the trawls could damage the pots

(b)          allowing certain areas and certain times for fish stocks to breed and develop

(c)           protecting inshore waters from overseas boats with greater capacity to catch and/or “hoover up”.

The UK’s membership of the European Community led to those fish stocks being controlled under the EC Common Fisheries Policy. It has in fact been Europe where a good deal of the environmental rules have been negotiated in addition to management of fisheries stock.

With these changes and developments whether European or UK regulations on fishing increased rapidly to the point where the Ministry of Agriculture Fisheries & Food (as they then were) prepared a two volume “blue book” on “Sea Fisheries Legislation & Guide to Enforcement” for its officers.  However, regulations change so quickly as did development that the blue book could not keep up and was taken over by the use of the web.

Oddly as part of this arrangement in 2009 the Marine & Coastal Access Act was passed (MACAA) which resulted in a re-organising of the original fisheries committees (“IFCA’s”) in to ten Inshore Fisheries areas. Although increasingly those committees turning a balance of officers, local politicians and fishermen have fallen under the control of the Marine Management Organisation which effectively assist with training of members.   The old 3 nm and 6 nm became replaced in cases by 6 nm and 12 nm which itself as a consequence of European states extending their inshore and offshore fisheries areas around that coast.

Though the original North and South Wales areas all consolidated post devolution in just one controlled by WAG.

There has developed different types of fishing by different boats of different sizes together with a need to keep certain areas free and safe so juvenile fish or crab can spawn and develop. The effect initially by a gentlemen’s agreement but now by bylaw has resulted in areas:

(a)          for crabbing only

(b)          for trawling only

(c)           for nursery areas for fish stocks

(d)          areas which have been so over fished that fishing is restricted or prevented to enable stocks such as haddock to repair.

But there are new demands over the same sea areas. Increasingly hobby fishermen or hobby boaters or those who simply want to dive and see what is increasingly being called the “reef”.  This takes us back to the Marine & Coastal Access Act 2009.  From it marine protected areas (“MPA’s) the use of the word reef with quite a different understanding and its use when discussing coral reefs given the southern hemisphere.  Off my home village we now have the Eddistone reef (offshore), Plymouth Sound to Bigbury Bay reef (inshore) and West Rutts to Start Point (inshore).  With them  comes the European Commission Directives and Sites of Community Importance (“SCI”) but to preserve those areas the MMO using its powers granted to it under the 2009 Act are now actively restricting the size of vessels, what it can do and when within our inshore and offshore areas.  It is therefore common for demersal toeing gear and controlled both by effort and time.  Typically with many identified areas demersal trawls to be used by a vessel no more than 100 kw whilst vessels using scallop dredges are limited equally to have engines no more than 100 kw using no more than two toe bars.  The smallest vessels are now required to keep a record of their catch and operations in the knowledge that the MMO and/or the IFCA’s can from their land bases observed by satellite what each vessel is doing and when.

Meanwhile the amount which can be caught where, when, in what way and by who itself becomes increasingly measured as the Fish Producer Organisation case [2013] EWHC 1959 explains.

More to follow.

7 February 2019

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