Published online by Cambridge University Press: 16 September 2019
The United Kingdom’s withdrawal from the 1964 Fisheries Convention and from the European Union has raised questions concerning the potential existence of third states’ fishing rights in the UK’s maritime zones post-Brexit. Historic fishing rights are a complex and controversial issue in the law of the sea. Uncertainty remains regarding their nature, the process for their formation and ascertainment, as well as their contemporary relevance in the light of the Law of the Sea Convention (LOSC) and other fisheries agreements. This article explores the concept of historic fishing rights in the law of the sea. First, it examines the nature and scope of historic fishing rights as discussed in the jurisprudence of international courts and tribunals and their relationship with other akin terms such as ‘customary’ and ‘traditional’ fishing rights. Issues related to the formation and establishment of these rights are also explored. The article also examines whether these rights have been superseded by the LOSC in the territorial sea and exclusive economic zone (EEZ), or whether they are still relevant in the post-LOSC era and maritime zones. It finally explores the relationship between historic fishing rights and treaty-based fishing access rights, and addresses the question posed by Brexit whether withdrawal from a fishing access treaty can unilaterally eliminate any related pre-existing historic rights. This discussion will provide an answer to the question whether it is possible for other states to have historic fishing rights in the UK’s territorial sea and EEZ following its withdrawal from the London Fisheries Convention and the European Union.
I would like to express my thanks to the anonymous reviewer for his very useful comments.
1 House of Lords Paper 78, EU Committee, 8th Report of Session 2016-17, Brexit: Fisheries (December 2016), 12.
3 Fisheries Convention (adopted on 4 March 1964), UN Treaty Series No 8432 (1966).
5 Fisheries Limits Act 1964, available at www.legislation.gov.uk/ukpga/1964/72/enacted. Having maintained an Exclusive Fisheries Zone for many years, the UK established an EEZ in 2014 by virtue of the EEZ Order, SI No. 3161 of 2013.
6 R. R. Churchill, ‘Possible EU Fishery rights in UK waters and possible UK fishery rights in EU waters post-Brexit’, Opinion prepared for the Scottish Fishermen’s Federation, 4, available at www.sff.co.uk/wp-content/uploads/2017/03/Opinion-for-SFF-2016.pdf.
7 Treaty of Accession of Denmark, Ireland and the United Kingdom (1972) OJ L 73 (27.3.72); see Art. 100 on Fishing Rights.
8 Regulation (EU) No 1380/2013 of the European Parliament and of the Council of 11 December 2013 on the Common Fisheries Policy, amending Council Regulations (EC) No 1954/2003 and (EC) No 1224/2009 and repealing Council Regulations (EC) No 2371/2002 and (EC) No 639/2004 and Council Decision 2004/585/EC, OJ L 354 (28/12/13), 22–61. The CFP was first introduced in the 1970s but was consolidated by virtue of Council Regulation (EEC) No 170/83 of 25 January 1983 establishing a Community system for the conservation and management of fishery resources. Its aim was to create an equal access regime for all European fishing fleets in the waters of the member states of the EU and to establish rules for the conservation and management of fishery resources (through the determination of Total Allowable Catches and quotas) so as to ensure their sustainable use and exploitation.
9 See F. Perraudin, ‘UK to “take back control” of waters after exiting fishing convention’, 2 July 2017, Guardian, available at www.theguardian.com/environment/2017/jul/02/uk-take-back-control-london-fisheries-convention-michael-gove. See also Department for Food, Environment and Rural Affairs, ‘Sustainable fisheries for future generations’, Cm 9660, presented to Parliament by the Secretary of State for Environment, Food and Rural Affairs by Command of Her Majesty (July 2018), 16.
10 See D. Boffey, ‘Denmark to contest UK efforts to “take back control” of fisheries’, 18 April 2017, Guardian, available at www.theguardian.com/politics/2017/apr/18/denmark-to-contest-uk-efforts-to-take-back-control-of-fisheries; ‘Brexit fish wars: Denmark claims “ancient rights” in British waters’, 18 April 2017, RT, available at www.rt.com/uk/385185-denmark-brexit-fishing-eu/.
11 The Republic of the Philippines v. the People’s Republic of China, PCA Case Nº 2013-19 in the matter of the South China Arbitration, Award of 12 July 2016 (merits), para. 225. See similarly F. Dupuy and P. -M. Dupuy, ‘A legal analysis of China’s historic rights claim in the South China Sea’, (2013) 107(1) AJIL 137.
13 Y. Z. Blum, Historic Titles in International Law (1965), 315.
14 See an overview of this debate in D. P. O’Connell, The Law of the Sea, vol. I (1982), 420–3. Blum, supra note 13, at 247. See also UN Study on Historic Waters with respect to the views of scholars; Study prepared by the UN Secretariat, ‘Juridical Regime of Historic Waters, including Historic Bays’ Doc. A/CN.4/143. (March 1962), 7–9.
15 G. Fitzmaurice, ‘The law and procedure of the ICJ, 1951–54: General Principles and sources of Law’, (1953) 30 British Yearbook of International Law 68.
16 McGibbon, I. C., ‘Customary International Law and acquiescence’, (1957) 33 British Yearbook of International Law 122 Google Scholar.
17 Thirlway, H., ‘The law and procedure of the ICJ: 1960-1989 (Part II)’, (1990) 61 British Yearbook of International Law 82 Google Scholar.
18 See Blum, supra note 13, at 318.
19 Second UN Conference on the Law of the Sea, Official Records, UN Doc. A/CONF.19/8, 82 (Australia), 118 (France).
20 Bowett referred to the use of the term historic as an ‘unfortunate choice’ as they do not have ‘any relation with the doctrine of prescription’; Bowett, ‘The Second United Nations Conference on the Law of the Sea’, (1960) 9 ICLQ 424. See also Blum, supra note 13, at 318.
21 Fitzmaurice, supra note 15, at 51.
22 Blum considers historic rights to be a category of special customary rights, Blum, supra note 13, at 52–7.
23 Territorial Sovereignty and Scope of the Dispute (Eritrea/Yemen), Award of 9 October 1998, RIAW Vol. XXII, para. 527.
25 See O’Connell, D. P., ‘A reconsideration of the doctrine of international servitude’, (1953) XXX Canadian Bar Review 807–8 Google Scholar.
26 Reid refers to transit passage rights; H. Dwight Reid, International Servitudes in Law and Practice (1932), 168.
27 Eritrea/Yemen case (first stage), supra note 23, para. 126.
28 In the matter of an arbitration before a Tribunal constituted in accordance with Art. 5 of the arbitration agreement between the government of Sudan and the Sudan People’s Liberation Movement/Army on delimiting Abyei Area, Arbitral Tribunal, Final Award (2009), para. 754, fn. 1255.
32 SCS arbitration (merits), supra note 11, para. 112.
34 The Tribunal referred to ‘“historic rights” which accrued in favour of both parties through a process of historical consolidation’ (Eritrea/Yemen case (first stage), supra note 23, para. 126), but also to the ‘traditional fishing regime’ that should be preserved (ibid., para. 526, and Second stage of the proceedings between Eritrea and Yemen (Maritime Delimitation) Award of 17 December 1999, RIAW Vol. XXII, paras. 92, 109); it also noted that ‘traditional fishing covers those entitlements that all the fishermen have exercised continuously through the ages’, Eritrea/Yemen case (second stage), ibid., para. 104.
35 SCS arbitration (merits), supra note 11, para. 806.
36 In that part of its award, the Tribunal found that the LOSC had superseded any historic rights not explicitly recognized in the LOSC (i.e., Art. 10 on historic bays and Art. 15 on historic titles in the territorial sea); ibid., para. 225.
37 The law of the sea: archipelagic states: legislative history of part 4 of the United Nations Convention on the Law of the Sea, (1990), 45–6 (Thailand), 52 (Malaysia), 61 (Singapore).
38 A. Proelss (ed.), UN Convention on the Law of the Sea: a Commentary (2017), 384; the introduction of the ‘concept of “traditional fishing rights” in the Informal Single Negotiating Text took into account Indonesia’s concerns about Thailand’s proposal which referred to “the interests and needs of its neighbouring states with regard to the exploitation of living resources in these areas”’. See M. Nordquist, S. Nandan and A. Rosenne (eds.), UNCLOS 1982: A Commentary, vol. II (2002), 450.
39 Commentators have noted that ‘there is nothing to indicate whether [reference to traditional fishing rights] means traditional in method, in means, or otherwise’, Nordquist, Nandan and Rosenne, ibid., at 453.
40 Treaty Between Malaysia and Indonesia Relating to the Legal Regime of Archipelagic State and the Rights of Malaysia in the Territorial Sea and Archipelagic Waters as well as in the Airspace above the Territorial Sea, Archipelagic Waters and the Territory of the Republic of Indonesia Lying Between East and West Malaysia, Jakarta, 25 February 1982, entered into force 25 May 1984, in UN Office for Ocean Affairs and the Law of the Sea, The Law of the Sea: Practice of Archipelagic States (1992), 144–55.
41 Eritrea/Yemen case (first stage), supra note 23, para. 128.
42 Second stage of the proceedings between Eritrea and Yemen (Maritime Delimitation) Award of 17 December 1999, RIAW Vol. XXII, para. 92.
43 SCS arbitration (merits), supra note 11, para. 798.
44 Ibid., para. 794. The Tribunal also referred to various international organizations and fora where the need for the protection of artisanal fishing has been discussed, para. 797.
46 Eritrea/Yemen arbitration (second stage), supra note 42, para. 101.
47 Eritrea/Yemen arbitration (first stage), supra note 23, para. 126. This Tribunal referred to the application of the legal tradition prevailing in the area with respect to openness of fishing grounds to people irrespective of their origin, not only to individuals but also to states: ‘Although the immediate beneficiaries of this legal concept were and are the fishermen themselves, it applies equally to States in their mutual relations’. Eritrea/Yemen arbitration (second stage), supra note 42, para. 93.
48 Fitzmaurice, supra note 15, at 51; he states (p. 53): ‘by the exercise of the right on the part of its nationals a State may acquire a vested right in respect of a particular area to its continued exploitation by the nationals of that State’. See also Blum, supra note 13, at 314.
49 See similarly Treaty between Australia and the Independent State of Papua New Guinea concerning Sovereignty and maritime Boundaries in the area between the two Countries, including the area known as Torres Strait, and related Matters (adopted in 1978, entered into force 1985) Australian Treaty Series 1985 No 4, Department of Foreign Affairs, Canberra, available at www.austlii.edu.au/au/other/dfat/treaties/1985/4.html: ‘traditional inhabitants’ in relation to Papua New Guinea, ‘means persons who (i) live in the Protected Zone or the adjacent coastal area of Papua New Guinea, (ii) are citizens of Papua New Guinea, and (iii) maintain traditional customary associations with areas or features in or in the vicinity of the Protected Zone in relation to their subsistence or livelihood or social, cultural or religious activities’, Art. 1(m).
50 Abyei arbitration, supra note 28, para. 763.
51 Eritrea/Yemen arbitration (first stage), supra note 23, para. 126.
52 South China Sea Arbitration Award (merits), supra note 11, para. 806.
53 Fisheries case (United Kingdom v. Norway),  ICJ Rep. 138.
54 The SCS Tribunal referred to ‘customary rights acquired through long usage’; SCS Tribunal (merits), supra note 11, para. 806. See also the Rights of Passage case where the ICJ referred to local custom as follows: ‘The Court sees no reason why long continued practice between two States accepted by them as regulating their relations should not form the basis of mutual rights and obligations between the two States’; Case concerning the Right of Passage over Indian Territory (Portugal v. India, Judgment of 12 April 1960), 1960 ICJ Rep. 39.
55 Eritrea/Yemen arbitration (first stage), supra note 23, para. 129. Activities might also entail fishing-related activities, i.e., the Eritrea/Yemen Tribunal referred to ‘cross-relationships which are marked by eventual recourse to professional fishermen’s arbitrators (aq’il) in charge of settling disputes in accordance with the local customary law’.
56 Eritrea/Yemen case (second stage), supra note 42, para. 104.
57 SCS arbitration (merits), supra note 11, para. 798.
58 Arbitration between Barbados and the Republic of Trinidad and Tobago, relating to the delimitation of the exclusive economic zone and the continental shelf between them, decision of 11 April 2006, RIAW Vol XXVII, para. 266.
59 Fitzmaurice, supra note 15, at 28, 68–9. McGibbon, supra note 16, at 123. See Blum for an account of the views of international scholars, international bodies and tribunals on the prominent role of acquiescence as the juridical basis of historic rights, Blum, supra note 13, at 60–89.
60 Eritrea/Yemen case (first stage), supra note 23, para. 128.
62 SCS arbitration (merits), supra note 11, para. 798. ‘The Philippines referred to this practice as ‘‘longstanding”, “long”, “deep”, “peaceful”, “uninterrupted”, “ancient” and having occurred “since times immemorial”’, ibid., para. 779.
63 Eritrea/Yemen arbitration (second stage), supra note 42, para. 92.
64 Eritrea/Yemen arbitration (first stage), supra note 23, paras. 127, 129.
65 Ibid., para. 315: ‘numerous witness statements were submitted by both sides as to the longevity and importance of their respective fishing practices and the significance of fishing in the lives of their people’.
66 SCS arbitration (merits) supra note 11, para. 805.
67 Philippines’ Memorial, paras. 6.39–6.47, at 171–4.
68 SCS arbitration, Hearing, Day 2, 174-187; Philippines’ Memorial, paras. 6.41, 172.
69 SCS arbitration (merits), supra note 11, paras. 805–6.
71 Eritrea/Yemen arbitration (second stage), supra note 42, para. 109.
72 SCS arbitration (merits), supra note 11, at 259.
73 On this issue see Kopela, supra note 12, at 194.
74 The Tribunal considered that ‘the inclusion of this provision – which would be entirely unnecessary if traditional fishing rights were preserved in the EEZ – confirms that the drafters of the Convention did not intend to preserve such rights’. See also similar argument with respect to Art. 51(1) on archipelagic waters; South China Sea Arbitration Award (merits), supra note 11, para. 804(a). See similarly C. Symmons, ‘Historic waters and historic rights in the South China Sea: a critical appraisal’, in S. Wu and M. Valencia (eds.), UN Convention on the Law of the Sea and the South China Sea (2015), at 195–6; R. Beckman, ‘The UN Convention on the Law of the Sea and the maritime disputes in the South China Sea’, (2013) 107 AJIL 158; Proelss, supra note 38, at 550.
75 SCS Arbitration, Hearing Day 4, 110; Hearing, Day 2, 164. Art. 2, para. 3 provides that ‘the sovereignty over the territorial sea is exercised subject to this Convention and to other rules of international law’.
76 The provision was transferred verbatim from Art. 2 of the Geneva Convention on the Territorial Sea and Contiguous Zone. See Nordquist et al., supra note 38, at 72–3.
77 SCS Arbitration (merits), supra note 11, para. 802.
79 Abyei arbitration, supra note 28, para. 751.
82 Award between the United States and the United Kingdom relating to the rights of jurisdiction of United States in the Bering’s sea and the preservation of fur seals (15 August 1893) Reports of International Arbitral Awards Volume XXVIII, 266.
84 On these issues and bilateral agreements dealing with this extension of maritime jurisdiction see D. W. Windley, ‘International practice regarding traditional fishing privileges of foreign fishermen in zones of extended maritime jurisdiction’, (1969) 63(3) American Journal of International Law 490–503.
85 See Blum, supra note 13, at 316 et seq.
86 See comments by France and Australia: Blum, ibid., at 318–19; ‘The Peruvian delegate opposed the five-year deadline on the ground that historic rights could not be acquired in ten, let alone five years, because only in the context of centuries could the term historic rights be meaningful.’ See also D. W. Bowett, ‘The Second UN Conference on the Law of the Sea’, (1960) 9 International and Comparative Law Quarterly 424.
87 Some delegations opposed the recognition of existing fishing practices/rights as this would discriminate against newly-emergent states and states without distant fleets due to lack of economic resources; Blum, supra note 13, at 317.
89 Proelss, supra note 38, at 465.
90 See M. Dahmani, The Fisheries regime of the EEZ (1987), 53.
91 Proelss, supra note 38, at 496; Anand and Nordquist, supra note 38, at 616.
92 Conservation and Utilisation of the Living Resources of the EEZ, Legislative History of Articles 61 and 62 of the UN Convention on the Law of the Sea (UN, 1995), at 85–6; the Japanese delegate referred to the ‘rights of states which had traditionally engaged in fishing, and in whose economy fishing and related industries naturally played an important part’ and to ‘traditional fishing states’; Spain referred to ‘preferential treatment that might be granted to specific states’ and stressed that ‘special account should be taken of states whose vessels had habitually fished in the waters of the zone’.
93 Some draft provisions referred to the recognition of the right of nationals of neighbouring developing states to fish ‘on the basis of long and mutually recognised usage and economic dependence on exploitation of the resources of that area’; see Legislative history, supra note 92, Draft articles on fisheries submitted by Canada, India, Kenya and Sri Lanka (pp. 46–7), Draft articles on fishing submitted by Zaire (p. 51).
96 South China Sea Arbitration Award (merits), supra note 11, para. 256. See also similar arguments by C. Symmons, Historic Waters in the Law of the Sea: A Modern Reappraisal (2008), 28, note 28, and Limits in the Seas No 143: China: maritime claims in the South China Sea (US Department of State, 2014), at 20.
97 Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada/United States of America),  ICJ Rep. para. 233.
98 The Chamber noted that the US reasoning was ‘somewhat akin to the invocation of historic rights, though that expression has not been used’. Ibid., para. 233.
101 Barbados/Trinidad and Tobago arbitration, supra note 58, paras. 125–9, also arguments paras. 133–42.
105 Agreement between Sri Lanka and India on the Boundary in Historic Waters between the two Countries and Related Matters, 26 and 28 June 1974, entry into force 10 July 1974, available at www.un.org/Depts/los/LEGISLATIONANDTREATIES/PDFFILES/TREATIES/LKA-IND1974BW.PDF; Art. 6 ‘The vessels of Sri Lanka and India will enjoy in each other’s waters such rights as they have traditionally enjoyed therein’.
106 Treaty between Australia and the Independent State of Papua New Guinea, supra note 49, Art. 10.
108 Art. 12 Traditional Customary Rights ‘Where the traditional inhabitants of one Party enjoy traditional customary rights of access to and usage of areas of land, seabed, seas, estuaries and coastal tidal areas that are in or in the vicinity of the Protected Zone and that are under the jurisdiction of the other Party, and those rights are acknowledged by the traditional inhabitants living in or in proximity to those areas to be in accordance with local tradition, the other Party shall permit the continued exercise of those rights on conditions not less favourable than those applying to like rights of its own traditional inhabitants.’
109 Memorandum of Understanding between the Government of Australia and the Government of the Republic of Indonesia regarding the operations of Indonesian traditional fishermen in areas of the Australian Exclusive Fishing Zone and Continental Shelf (1974), available at www2.ecolex.org/server2neu.php/libcat/docs/TRE/Full/Other/TRE-151704.pdf, the Australian Government decided to recognize the long tradition of Indonesian traditional fishing through a series of bilateral arrangements, namely MOUs in 1974, 1981, 1988, and 1989.
110 Fisheries Convention, supra note 3.
111 On these transitional agreements see Windley, supra note 84, at 490–503; these bilateral agreements provided for a transitional period of phasing out of ‘fishing privileges’ of foreign states in the zones of extended jurisdiction (either territorial sea or exclusive fisheries zones).
112 Bernard argues that ‘it is clear that although historic/traditional fishing rights of a third State in the EEZ regime continue to exist, the rights are subject to recognition and approval by the coastal States’; L. Bernard, ‘The effect of historic fishing rights in maritime boundaries delimitation’, in Proceedings from the 2012 LOSI-KIOST Conference on Securing the Ocean for the Next Generation, available at www.law.berkeley.edu/files/Bernard-final.pdf. McDorman referring to the Eritrea/Yemen arbitration argues that the award ‘supports the view that historic fishing rights by a third state in waters otherwise under the jurisdiction of a coastal state are not necessarily extinguished by UNCLOS’ and concludes that ‘as the Eritrea/Yemen arbitration makes clear, historic rights in limited circumstances may exist that, while they do not undermine the sovereignty of the adjacent coastal state, require tolerance and attention to be paid by the coastal state’; this author does not seem to differentiate between the regimes in the territorial sea and EEZ. T. McDorman, ‘Rights and jurisdiction over resources in the South China Sea: UNCLOS and the nine-dash line’, in Jayakuman et al. (eds.) South China Sea Disputes and the Law of the Sea (2014), 158.
114 See, for example, the Exchange of Notes between the UK and France concerning the activities of fishermen in the vicinity of the Channel Islands and the French Coast on the Cotentin Peninsular and, in particular, on the Schole Bank, 20 July 1992 which provides for a transitional regime for the continuation of French fishermen’s activities in the Schole Bank (under certain conditions and until their retirement or January 2010) (para. 2) and the continuation of existing fishing practices ‘by coastal fishermen from France and the Bailiwick of Guernsey in the waters in the vicinity of the Channel Islands and the French coast of the Cotentin peninsula’ (para. 3); 1772 U.N.T.S., 80.
115 For example, the Canada/France mutual fishing relations agreement provided for the reciprocal and ‘on an equal footing’ recognition of the right of vessels registered in St Pierre and Miquelon and Newfoundland coastal fishing boats to ‘continue to fish in the areas where they have traditionally fished’ under certain conditions. Agreement between the Government of Canada and the Government of the French Republic on Their Mutual Fishing Relations, 27 March 1972, available at www.un.org/Depts/los/LEGISLATIONANDTREATIES/PDFFILES/TREATIES/CAN-FRA1972FR.PDF. On this see also Case concerning filleting within the Gulf of St. Lawrence between Canada and France, Decision of 17 July 1986, Reports of International Arbitral Awards, Volume, at 225–96.
116 Barlow and others v. Minister of Agriculture, Supreme Court of Ireland, 27 October 2016, Appeal No. 466/2014,  IESC 62.
118 The arrangement was reflected in the correspondence between civil servants in Dublin and Belfast in 1964–65. Ibid., paras. 11–13.
121 Sea-Fisheries (Amendment) Act 2019, Number 9 of 2019, available at data.oireachtas.ie/ie/oireachtas/act/2019/9/eng/enacted/a0919.pdf.
122 Regulation (EEC) No 2141/70 of the Council of 20 October 1970 laying down a common structural policy for the fishing industry, OJ No L 236/1 (27.10.1970).
123 Act concerning the Conditions of Accession and the Adjustments to the Treaties (Arts. 100, 101), attached to the Treaty of Accession, supra note 7.
124 Art. 100(1) Accession Treaty; Churchill, supra note 6, at 5.
125 Art. 100(2) Accession Treaty.
126 Council Regulation (EEC) No 170/83 of 25 January 1983 establishing a Community system for the conservation and management of fishery resources, OJ L24/1 (27.1.83), Art. 6.
127 Churchill, supra note 6, at 5.
128 Regulations 3760/92, 2371/2002 and more recently 1380/2013 (extension of derogation until 2022), supra note 8.
129 Churchill, supra note 6, at 3–6. In a number of cases related to Spain’s accession to the EU, the ECJ found that the new fisheries regime established between the EU and Spain prevailed over prior international agreements (such as the LFC) ‘in the event of any incompatibility between the two categories of provisions’; see C-181/80 Procureur General v. Arbelaiz-Emazabel Judgment of 8 December 1981, European Court Reports 1981. Joined cases 180 and 266/80 Crujeiras Tome v. Procureur de la Republique, Judgment of 8 December 1981, European Court Reports 1981.
130 In most agreements dealing with pre-existing fishing practices there is no explicit reference to historic fishing rights. Only in cases of reciprocal recognition of relevant practices in overlapping maritime areas is there mention to historic/traditional fishing rights; see India-Sri Lanka bilateral agreement, supra note 105. This may be due to political reasons and consequent compromises (i.e., reluctance of coastal state to recognize pre-existing rights and obligations) and not to the absence of such rights.
131 See the House of Lords paper on Brexit, supra note 1.
135 Following a proposal by the European Commission, all members states extended their fishing jurisdiction to 200 nm in 1977; R. Churchill and D. Owen, The EC Common Fisheries Policy (2010), 8.
136 Regulation (EEC) No 2141/70, supra note 122, Art. 2(1) and Council Regulation (EEC) No 101/76 of 19 January 1976 laying down a common structural policy for the fishing industry, OJ L 20, 28.1.1976, Art. 2(1) (both no longer in force).
137 See comments regarding Denmark in Laursen, supra note 132, at 94; ‘The CFP creates a common EC fishing zone. Although the EC Commission established total allowable catches (TACs) and national quotas, Denmark has been able to retain access to most of its traditional fishing waters, especially around the coasts of the United Kingdom’.
138 House of Lords paper on Brexit, supra note 1, at 8.