Valentin J. Schatz (UHH)
During last week’s discussions of post-Brexit fisheries access to the United Kingdom’s waters among EU ambassadors in Brussels, Belgian ambassador Willem van de Voorde raised the so-called Bruges Privileges of 1666. They were awarded by King Charles II of England to the city of Bruges as perpetual privileges to permit 50 Bruges fishing vessels to fish off the coast of England and Scotland. The reason for this generous royal privilege was to thank the city for granting him asylum during his exile from England from 1656 to 1659. Unsurprisingly, the Belgian ambassador’s curious move quickly made the news and was controversially discussed on Twitter. As I have previously argued in a detailed article on post-Brexit fisheries access, the United Kingdom legally has nothing to fear from the Bruges Privileges.
Before turning to the legal validity of the Bruges Privileges, we should remind ourselves that the issue of continued access of EU fishers to fisheries in the waters of the United Kingdom remains among the most contentious items of the ongoing Brexit negotiations. In strictly legal terms (as opposed to trade-related political momentum as well as economic and environmental reasonableness), there are not a lot of arguments that EU member States can raise to justify their insistence on continued access to the United Kingdom’s EEZ or territorial sea similar to the status quo under the Common Fisheries Policy (pursuant to the transitional arrangements). Against this background, it is not surprising that EU Member States will consider even less obvious legal bases for continued fisheries access – and be it only to make a point about their historical interest in the fisheries off the United Kingdom’s coast.
The Bruges Privileges are a unilateral act of the British Crown, which was the sovereign in 1666. As such, they fall broadly within the domain of public law. For those inclined to consider the Bruges Privileges as a potentially valid contemporary legal source, several important questions arise. Should the Bruges Privileges be considered as a matter of public international law or domestic law of the United Kingdom? Both views have been taken in the past, and both raise additional questions. Would it still be for the city of Bruges to select the fishers profiting from the Bruges Privileges and to invoke those privileges vis-à-vis the government of the United Kingdom (which arguably has succeeded the British Crown in this matter)? Or has Belgium, the State to which Bruges now belongs, since taken that place? Again, the few authors which have addressed the matter are not in agreement.
Whatever the doctrinal answers to these questions may be, the Bruges Privileges were reportedly not exercised without interruption in the decades following the year 1666. It is known that one fishing vessel resumed fishing in 1835 (potentially leaving the privileges unused between 1674 and 1835), but Belgian fishing in the United Kingdom’s territorial waters in the English Channel was met with enforcement measures in the late 1840s. Fulton reports that in 1852, following Belgian protest and invocation of the Bruges Privileges, the two States concluded a fully reciprocal access agreement (a so-called voisinage agreement) concerning fisheries in each other’s territorial sea. While the agreement made no explicit mention of the Bruges Privileges, Belgian sources claim that it was without prejudice to the Bruges Privileges, whereas British sources claimed that the voisinage agreement replaced those privileges. So if the government of Flanders wants to raise the Bruges Privileges in the Brexit negotiations, it should be aware that this card may already have been played a long time ago, resulting in its replacement with a different legal document.
A final blow was arguably given to the Bruges Privileges soon after, when the fishers of Bruges had to cease fishing entirely following the silting up of the port of Bruges. Unsurprisingly, this situation (perhaps in addition to the voisinage agreement) led to a lack of political interest in Belgium in pursuing any claims based on the Bruges Privileges. It was only in the 1960s (about a century later) that a Belgian national from Bruges tried to invoke the Bruges Privileges in English courts by having himself arrested by the authorities for fishing in the waters of the United Kingdom without a valid license. Reportedly, the authorities did not pursue the matter any further because they feared the Bruges Privileges could still be valid, but there are no publicly available documents that would support either this theory or the potential legal arguments behind it.
A few years later, in 1964, the United Kingdom and Belgium – together with several other European States – concluded the London Fisheries Convention, which thereafter regulated matters of fisheries access among them. Article 9(1) of the London Fisheries Convention extinguished any pre-existing access rights in coastal waters beyond 3 nautical miles and replaced them with transitional rights that could be phased out. Article 9(2) allowed (but did not require) States Parties to continue to grant access to the 0-3 nautical mile belt of the territorial sea to other States “of which the fishermen have habitually fished in the area by reason of voisinage arrangements.” This new set of rules certainly put an end to whatever uncertain legal bases of access rights might have existed by then. Needless to say that the even more detailed access rules of the Common Fisheries Policy that succeeded the London Fisheries Convention rendered a continued validity of the Bruges Privileges even more unlikely.
The conclusion of this brief journey into the hazy waters of the contemporary operationalization of historical royal privileges is clear in its consequence, if not in all aspects of its doctrinal reasoning: If the Bruges Privileges are a matter of public international law, they are most certainly no longer valid because they were not exercised for extended periods of time and were likely replaced by subsequent treaties governing the fisheries access relationship between the United Kingdom and Belgium. However, if the Bruges Privileges are confined to the domestic law of the United Kingdom, they can – even if they should still be valid – simply be repealed by an act of parliament. To give no hostage to fortune, the United Kingdom could do so even if it considered the Bruges Privileges to be longer valid. Indeed, in 2017 the United Kingdom denounced the 1964 London Fisheries Convention for similar reasons.
Valentin J. Schatz is a Research Associate at the Institute for the Law of the Sea and Maritime, Faculty of Law, University of Hamburg (UHH)