1
ABSTRACT
Title of thesis: To what extent do historic rights subsist within the
legal framework of maritime delimitation and are these rights
consistent with the aims of UNCLOS?
Duncan Anderson, Masters in Public International Law, 2017
Submitted: 28
thJuly 2017
Thesis supervised by: Dr Catherine M. Brölmann
Abstract:
Historic rights have existed long before the introduction of the United Nations Convention on the Law of the Sea (UNCLOS) as a means for States to assert their claims over territorial seas and internal waters, with continued stability, peace, security and respect for traditional rights characterising its usage. In the South China Sea case, the Tribunal ultimately nullified historic rights in line with the reasoning of the Philippines claims’: any kind of historic rights that China possessed previous to ratifying the UNCLOS had been superseded by the Convention following the
ratification of the latter. This was expressed as a matter of law and as a matter of fact. Under the UNCLOS, it is only those pre-existing rights expressly protected by Article 10 (historic base), Article 15 (delimitation of the territorial sea and potential
circumstances with respect to historical titles), which are compatible with the UNCLOS and thus reserved.
Although the UNCLOS does refer to rights of a similar nature to historic right,
historic rights are only mentioned within Article 15, and referred to in Articles 10 and 298. The findings of the Tribunal in the Award of the South China Sea Arbitration have been the source of debate within the arena of public international law, with certain academics putting forth the argument that historic rights do exist separately from the UNCLOS within customary international law in regards to maritime
delimitation, as is evident from the jurisprudence of the ICJ. The focus of this thesis is to question to examine to which extent these pre-existing historic rights, or any type of historic rights, have been superseded or preserved. If they still exist, it is possible that they may do so still within the framework of maritime delimitation, parallel to the UNCLOS yet governed by general international law.
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To what extent do historic rights subsist within the legal framework of
maritime delimitation and are these rights inconsistent with the aims of
UNCLOS?
By
Duncan Anderson
Thesis submitted to the Faculty of Law at the Universiteit van Amsterdam for the requirements for the degree of Masters of Law - European and International Law:
Public international Law. 2017
Thesis Committee:
Dr Kiki Brohlmann Dr Den Heijer
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Acknowledgements
First of all, I would like to thank my supervisor, Dr Kiki Brohlmann. Your support, and enthusiasm has been key in my ability to complete this paper. I would also like to thank Prof. Volker Reuben for inspiring me and offering me the opportunity to prove my potential.
Finally, I would like to thank Laurel, Georgia, Cait, Carlotta, Federico and Mariam for your never-ending support, encouragement and compassion throughout the highs and lows. Lastly, I would like to thank my parents and my brother Gordon for their support and belief in me, and for having truly helped me accomplish what I never knew was possible.
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Table of Contents
Abstract……….1 Title………..2 Acknowledgements ... Error! Bookmark not defined. Table of Contents ... Error! Bookmark not defined. List of Cases ... Error! Bookmark not defined. Chapter 1: Introduction...6 A historic claim: Summary of the South China Sea Case in regards to historic rights and the Tribunal’s Award ... Error! Bookmark not defined.
Chapter 2: The notion of historic title and historic rights in international law ... Error!
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Historic Claims as viewed in the South China Sea Arbitration .... Error! Bookmark not
defined.
The relationship between historic claims and the UNCLOS ... Error! Bookmark not
defined.
Chapter 3: The Compatability of Historic Rights with the UNCLOS...21 Problems in the tribunals approach ... Error! Bookmark not defined. Shortcomings relating to the nature of historic rights ... Error! Bookmark not defined.
Chapter 4: Jurisprudence of Historic RIghts...26 Criteria for the valid application of historic rights or historic titles in light of the SCS Arbitration ... Error! Bookmark not defined. Article 298 (1) (a) (i): Optional Exceptions to Jurisdiction and Disputes involving Historic Titles... Error! Bookmark not defined.
Conclusion...33 Bibliography ... Error! Bookmark not defined.
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List of Cases
The Republic of the Philippines v the People’s Republic of China, PCA Case N 2013-19 in the matter of the South China Sea Arbitration, Award on Jurisdiction and Admissibility of 29 October 2015
The Republic of the Philippines v the People’s Republic of China, PCA Case N 2013-19 in the matter of the South China Sea Arbitration, Award of 12 July 2016 (Merits) Case Concerning the Continental Shelf (Tunisia/Libyan Arab Jamahiriya), [1982] I.C.J. Reports
Case Concerning Land, Island and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua Intervening), [1992] I.C.J. Reports
Maritime Delimitation and Territorial Questions Between Qatar and Bahrain (Qatar v. Bahrain), [2001] I.C.J. Reports 40.
Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada/United States), [1984] I.C.J. Reports 246.
Second Stage of the Proceedings between Eritrea and Yemen (Maritime Delimitation) Award of 17 December 1999, U.N. Reports of International Arbitration Awards, Vol. XXII
Territorial Sovereignty and Scope of the Dispute (Eritrea/Yemen), Award of 9 October 1998, U.N. Reports of International Arbitration Awards, Vol. XXII
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, U.N. Reports of International Arbitral Awards, Vol XXVII
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Chapter 1: Introduction
‘The term “historic rights” is general in nature and can describe any rights that a state may possess that would not normally arise under the general rules of international law, absent particular historical circumstances. Historic rights may include sovereignty, but may equally include more limited rights, such as fishing rights or rights of access that fall well short of a claim of sovereignty’1
South China Sea Arbitration Award (Merits)
In theory and in praxis, the issues of historic rights and historic titles have been complex with regards to the Law of the Sea. The South China Sea Arbitration2 (SCS Arbitration) between the Philippines and China raised issues in relation to the modern relevance and validity of historic claims, and the relationship between historic rights and the United Nations Convention on the Law of the Sea3 (UNCLOS). Ultimately, the Tribunal’s judgment narrowed both the scope and contemporary use of historic claims, finding that the UNCLOS supersedes any previous historic titles or rights apart from those explicitly recognised within Articles 10 (6) and 15 of the UNCLOS (historic bays and historic titles in the territorial sea/internal waters). It may, however, be argued that to do so would be counter to the spirit of the Convention, which aims for the continuance of peace and stability in international waters.
The purpose of this thesis is to demonstrate that historic rights operate in a separate sphere to the UNCLOS framework and can co-exist in relation to something which the UNCLOS does not explicitly but only generally covers. In order to do this, I will first need to examine the Tribunal’s findings in the South China Sea Arbitration, wherein the Tribunal stated that historic rights have been superseded by the UNCLOS, and to further outline its position in international law. In doing so, this thesis will look to the potential arguments for and against the inclusion of historic rights in future UNCLOS dispute settlement procedures, with a view to illustrating the advantages of stability which the inclusion of historic rights could bring.
The first chapter of this thesis outlines the methodology and aims of this thesis, and introduces historic rights and historic titles as they are found within the UNCLOS. It focuses mainly on summarising the SCS Arbitration and the claims which were made under China’s supposed historic rights.
The second chapter of the thesis explains the legal relevance of the research question, outlining the notions of historic rights and historic titles both historically, and within the framework of maritime delimitation, as it was explained in the SCS Arbitration. It defines different types of historic claims, and highlights the types of historic rights which were identified by the Tribunal. It illustrates these rights and shows how they
1
South China Sea Arbitration Award (Merits), para. 225 2
The Republic of the Philippines v the People's Republic of China, PCA Case N° 2013– 19 in the matter of the South China Arbitration, Award of 12 July 2016 (Merits) 3
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have been defined and developed in their application to the UNCLOS. Having first illustrated these rights, I will outline the reasoning the Tribunal used in the SCS case and how they arrived at the conclusion that all previous historic rights are superseded by the UNCLOS. To do this, I will directly refer to the UNCLOS Articles used by the litigants, and I will also highlight the Articles which refer to historic rights in an explicit or general manner.
In Chapter 3, I present the compatibility of historic rights with the UNCLOS and its aims with the intentions of its drafters, after having briefly touched on this at the conclusion of the second chapter. The chapter then focuses on certain problems with the Tribunal’s approach in the SCS Arbitration, accounting the nature of historic rights in particular, wherein I use legal excerpts from jurisprudence and general principles of international law to illustrate historic rights’ compatibility.
Chapter 4, penultimate to the conclusion, analyses the previous jurisprudence of the ITLOS and the ICJ in regards to cases which involve a claim of historic rights. In order to prove my argument, I will refer to criteria for the valid application of historic rights and historic titles which has been developed via the jurisprudence of the ICJ and the ITLOS, as well as the criteria outlined in the SCS Arbitration. This chapter also puts forth that historic rights are not only compatible with the UNCLOS, but that they may exist beyond the optional exception enshrined in Article 298 UNCLOS. In the conclusion, I analyse the findings of the thesis and, using the legal arguments already made, form a logical conclusion that historic rights must be examined on a case-by-case basis as it is shown by successful claims. Referring to the different types of historic rights, I note that they may exist parallel to the UNCLOS and are compatible to its aims.
First, however, in order to understand the context in which we will consider historic title and historic rights, it would be prudent to summarise China’s claims of
sovereignty and sovereign rights in relation to its supposed “historic rights” over the islands and maritime features in the SCS Arbitration.
A historic claim: Summary of the South China Sea Case in regards to historic rights and the Tribunal’s Award
There have been few cases in recent times which have invoked such high interest in matters of the Law of the Sea than the SCS Arbitration and its award in 2016. In 2009, Vietnam and Malaysia made a joint submission to the Commission on the Limits of the Continental Shelf, seeking recommendations with regards to the outer continental shelf limits of each country within the south of the South China Sea. The following day, the Permanent Mission of the People’s Republic of China to the UN submitted their first note verbale. This submission protested the joint submission, wherein China claimed indisputable sovereignty over the islands both in the South China Sea and its adjacent waters, as well as eventually appending the Chinese
‘nine-8
dashed line’ map4 (see below), claiming sovereign rights and jurisdiction over the aforementioned waters and seabed.
Figure 1
This sparked protests from neighbouring States; Vietnam, the Philippines and
Indonesia whom all submitted notes verbale, inter alia5, and separate submissions of notes verbale from Vietnam and Malaysia which stated the legitimacy of their joint submission under the pretence that it was did not prejudice issues which relate to the
4
Figure 1: Extracted from <www.bbc.com/news/world-asia-pacific-13748349>, accessed 21 July 2017.
5
D Dzarek, ‘The Spratly Islands Disputes: Who’s On First?’, IBRU Maritime Briefing, Vol 2, No 1, 1996, p.12.
Although Indonesia is a non-claimant to the Spratlys Islands dispute, which Vietnam and the Philippines have made claims to, Indonesian interests within the South China Sea as well as their maritime boundaries could be negatively affected by China’s claim.
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delimitation of boundaries between States with adjacent or opposite coasts6. However, the result of this was confusion over the meaning of the nine-dashed line and what it represents, and the possible indefinite deferral of the various issues brought up in the notes verbale7.
While articles on the nine-dash line’s history and the history of the map itself have been published, China has not given an official explanation for the basis of the nine-dashed line. Only in China’s second note verbale (14/04/2011) did they refer to ‘[…] abundant historical and legal evidence’8
, to support their claims of sovereign rights in the South China Sea. China is undoubtedly the most proactive claimant in the region, and their claim is based on history, with the assertion that their discovery of the islands in the South China Sea can be found as far back as 220BC during the Han Dynasty9. Taking this into account with the nine-dashed line, China’s claim extends beyond the Exclusive Economic Zone (EEZ) and territorial waters of that claimed by the Philippines and the other claimant states10. The nine-dashed line was first drawn in 1946 and later published in the following year by the Chinese government11. According to Chinese scholars, the map is the result of changes to older maps on Chinese land and maritime borders which identified islands that China considers to be under its sovereignty12. The version of the map, published in 1947, specified China’s territorial borders to include the islands of the Pratas, Paracel, Spratlys and the
Macclesfield Bank within an eleven-dashed line13. Upon the map’s publication, China
6 Malek, “A legal assessment of China’s historic claims in the South China Sea”, Australian Journal of Maritime and Ocean Affairs (2013), Vol. 5(1), page 28 7Ibid.
8
United Nations, Note verbale dated 14 April 2011 from the Permanent Mission of the People’s Republic of China to the United Nations to the United Nations Office and other International Organisations in Geneva addressed to Secretary-General Mr Ban Ki-Moon, CML/8/2011 9 Supra note 6 10 Ibid 11 Ibid 12
Chinese scholars have oft debated the origin of the ‘nine-dash line’. For examples, see K Zhou, ‘The Chinese Traditional Maritime Boundary Line in the South China Sea and its Legal Consequences for the Resolution of the Dispute over the Spratly Islands’, Internaitonal Journal of Marine and Coastal Law, Vol 14, No. 1, 1999, pp27-55; Li Jinming & Li Dexia, ‘The Dotted Line on the Chinese Map of the South China Sea: A Note’, Ocean Development and Internaitonal Law, Vol 34, No’s 3-4, 2003, pp. 287-295; N A Hu, ‘South China Sea: Troubled Waters or a Sea of Opportunity?’, Ocean Development and Internaitonal Law, Vo 41, No 3, 2010, pp 203-213; and K Wang, ‘The ROC’s Maritime Claims and Practices with Special Reference to the South China Sea’, Ocean Development and International Law, Vol 41, No 3, 2010, pp. 237-252.
13
It is theorised that a s a result of the transfer of sovereignty of Bai Long Wer Island (called Bach Long Vi in Vietnamese) from China to Vietnam (1953), two of the dashes which mark the Gulf of Tonkin were removed. This is illustrated by Li & Li in, ‘The Dotted Lin on the Chinese Map of the South China Sea: A Note’, and Zhou in, ‘The
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contests that the international community did not express dissent, nor did any state protest. Of course, it is debateable whether the international community was given an effective notice to which a response would be appropriate. Nonetheless, China has reinforced its claim in recent years via fisheries operations in the SCS, as well as by carrying out maritime policing14, creating domestic legislation enforcing the historic claim15, establishing Sansha City on Yongxing Island16 and producing the
nine-dashed line on the watermarked map contained in the new official Chinese passport17. Besides their claims in the SCS, China has also invoked their historic title in
international law, claiming Pohai Bay as a historic bay in 195818. They have also pursued legislative attempts to put forth their claim in Article 2 of its Law on the Territorial Sea and the Contiguous Zone (1992)19, Article 14 of the Law on the Exclusive Economic Zone and the Continental Shelf (1998)20, and Article 2 of their revised Law on Marine Environmental Protection (1999)21. In addition to these Chinese Traditional Maritime Boundary Linein the South China Sea and Its Legal Consequences for the Resolution of the Dispute over the Spratly Islands’.
14 Chinese maritime law enforcement agencies include the ‘China Coast Guard’, the ‘China Maritime Safety Administration’, the ‘ China Marine Surveillance’, the ‘China Fisheries Law Enfrocement Command’, and the ‘General Administration of Customs’. The jurisdiction of these operation extends from the mouth of Yalu River to James Shoal, equivalent to that covered by the ‘nine-dash line’.
15 Examples of this include: Article 2 of the Law on the Territorial Sea and the Contiguous Zone (1992); Article 14 of the Law on the Exclusive Economic Zone and the Continental Shelf (1998); and, Article 2 of the revised Law on Marine
Environmental Protection (1999). 16
Malek, “A legal assessment of China’s historic claims in the South China Sea”, Australian Journal of Maritime and Ocean Affairs (2013), Vol. 5(1), p.30
17
For illustration of the image, see the article ‘Here’s the Chinese passport map that’s infuriating most of Asia’ by Max Fisher of The Washington Post, located at [https://www.washingtonpost.com/news/worldviews/wp/2012/11/26/heres-the-chinese-passport-map-thats-infuriating-much-of-asia/] (extracted 05/2017) 18
K Zhou, ‘Historic Rights in International Law and in China’s Practice’, Ocean Development and Intenraional Law, Vol 32, No 2, 2001, pp. 149-168
19
This article provides, inter alia, that ‘[t]he People’s Republic of China’s territorial land includes the mainland and its offshore islands, Taiwan and the various affiliated islands including Diaoyu Island, Penghu Islands, Dongsha Islands, Zisha Islands, Nansha Islands and other islands that belong to the People’s Republic of China.’ 20
This article provides that, ‘the provisions of this Law shall not affect the historic rights enjoyed by the People’s Republic of China’. Malek notes in her paper titled, ‘A legal assessment of China’s historic claims in the South China Sea’, that it can be argued that this provision was the undesired result of making an exception, for China’s supposed ‘historic rights’, from the EEZ and continental shelf regimes
permitted under the UNCLOS. Further, ‘modifying’ the legal effect of the legal effect of the aforementioned provisions in their application, contrary to Articles 309 and 310 of the UNCLOS.
21
This article provides that ‘the Law shall provide to internal waters, territorial sea, contiguous zone, exclusive economic zone, continental shelf of the People’s Republic
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legislative efforts, China has also used history to support its claim, as mentioned above. A prime example of this would be China’s claim of sovereignty over the Spratly Islands, which is supported in threefold by historical Chinese evidence: first, China’s discovery and naming of the Nansha Islands; secondly, China’s role as the first to develop the islands, and thirdly, China being the first State to exercise jurisdiction over the islands22. These claims have further been reinforced by the Taiwanese government in their South China Sea Policy Guidelines. Besides making their own individual claim to sovereignty, sovereign rights and historic rights in regards to areas within the nine-dashed line, the Guidelines also stated that, ‘the South China Sea area within the historic water limit is the maritime area under the
jurisdiction of the Republic of China, in which the Republic of China possesses all rights and interests’23.
Thus, one can see that there is ample, though somewhat vague, evidence of claims which refer to the aspect of ‘history’ in a supportive or foundational manner for China’s claims within the South China Sea. These claims can be accounted for in two broad categories: first, there are claims formed on the ‘historic basis of sovereignty’ in regards to the islands in the South China Sea; and second, there are historic claims in regards to the activities and maritime areas in the South China Sea.
Having summarised the historic claim made by China and the basis on which their claim has been made, the next chapter will focus on the Tribunal’s definition of historic rights and consideration of the Chinese claim.
of China and other sea areas under the jurisdiction of the People’s Republic of
China’. This was adopted 25/12/1999 and came into force on 01/04/2000. 22
Supra note 17 23
K M Sun, ‘Policy of the Republic of China towards the South China Sea’, Marine Policy, Vol 19, No 5, 1995, p. 408
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Chapter 2: The notion of Historic
Rights and Titles
Before going into the intricacies of the Tribunal’s reasoning for narrowing the scope of historic rights in the SCS Arbitration, it is necessary to take a more in depth look at the notion of what a “historic claim” is, and, the meaning of the terms ‘historic title’ and ‘historic right’ within the framework of maritime delimitation. This chapter will then look to the view of the Tribunal in its Award to the SCS Arbitration, and detail the Tribunal’s view to the historic claims made by the Philippines and China using excerpts from the Award and Merits.
The notion of historic title and historic rights in international law
China’s claims include the discovery of the islands and maritime areas around them, along with their uninterrupted peaceful control, using historical evidence to support their claim to the Spratly Islands. Within the sphere of international law, there are five ways24 wherein sovereignty over territory can be gained:
I) Occupation of a terra nullius25,
II) Prescription, or the maintenance of effective control for a sufficiently long period of time,
III) Cession, or transfer by treaty,
IV) Accretion, or growth of territory by acts of nature,
V) Conquest – however this method has theoretically been placed outside of the law by Article 2 of the UN Charter26.
Separate to the more general notion of “historic waters”27, is the idea of a State acquiring “historic rights”. To present, not only is there little research on the concept, but it also continues to lack clarity in its application and community acceptance.
24
R Jennings, The Acquisition of Territory in International Law, Manchester, University Press 1963, pp6-7; and A Burghardt, ‘The Bases of territorial Claims’, Geographical Review, Vol 63, No 2, 1973, p.225
25
“Nobody’s Land” – this principle is used in international law to describe territory which has never been subject to the sovereignty of any State.
26
Article 2 of the UN Charter stipulates that ‘All Members shall refrain in their internaitonal relations from the threat or use of force against the territorial integrity or political independence of any State. Nothing contained in the present Charter shall authorise the United Nations to intervene in matters which are essentially within the domestic jurisidciton of any State.’
13
One of the ICJ’s early definitions of ‘historic waters’ came about in the Fisheries case (1951), wherein they provided that the term means “waters which are treated as internal waters but which would not have that character were it not for the existence of an historic title”28
. The term, ‘historic rights’ is broader than ‘historic waters’, and implies a State asserting its exercise of certain jurisdictional rights in international waters, most often fishing rights29. These rights must satisfy the same, or at least similar, requirements as that of ‘historic waters’. In particular, this relates to those of “continuous and long usage” with the acquiescence of other States30
.
The successful jurisprudence of claims of ‘historic waters’ are most often in reference to claims of historic bays31, gulfs32 and straits33. Successful claims allow the coastal State to treat the relevant waters as internal waters, regardless of whether the area exceeds the legal limits of the regimes permitted by the law of the sea34. However, the exception of ‘historic waters’ to the normally applicable rules is not wholly relevant to the scope of this thesis, and while opportune to glance at, will thusly not be further referred to unless necessary.
The jurisprudence on historic claims which exists is reinforced by discussion in UN documents, U.S. case law, and in the work of commentators. Besides the 1957
Memorandum, one document of particular importance is a study conducted by the UN 27 Perhaps the best definition of ‘historic waters’ besides the authoritative definition given by the ICJ in the Fisheries case, is that given by Bouchez: “waters over which the coastal State, contrary to the generally applicable rules of international law, clearly, effectively, continuously, and over a substantial period of time, exercises sovereign rights with the acquiescence of the community of States” (L.J. Bouchez, The Regime of Bays in International Law, Sythoff, Leyden, 1964, at 281). Note that the statement refers to the generally recognised or applicable rules of international law.
28
[1951] ICJ Reports 116, p.130 29
Discussed in the Fisheries Jurisdiction and Tunisia/Libya cases (ICJ Reports 3 [1973]; and, ICJ Reports 18, at 32, 63 and 71 (para 97.) [1982]), the Tunisian claim was referred to in that it claimed possession of long-established historic rights, which included “fixed and sedentary fisheries” in certain sea areas. This relates to historic rights from “long-established fishing activites”. The Court also noted (id., para. 98) both the “antitiquity” and “continuous exercise” of this use of “fixed fisheries”; and (para. 99) they further noted that Tunisia asserted that htese rights had been “recognised for centuries by other States”. Bouchez labels these rights as “non-exclusive historic rights”.
30
Y. Blum in ‘Historic Rights’ in Encyclopaedia of Public International Law, vol. 2 (Amsterdam, Elsevier), 710-15.
31
E.g. Peter the Great Bay, or Bohai Pay 32
E.g. Gulf of Fonseca, or the Gulf of Sidra 33
E.g. the Dardanelles; however, modern principles of the law of the sea would place these areas (ibid footnote 16 and 17) outside of the national jurisdiction of the coastal State which asserts a claim under historic title.
34
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Codification Division of the Office of Legal Affairs35. This study, which was requested by the International Law Commission, outlines three aspects which one should take into consideration when determining whether a State has gained historic title to a maritime area. A fourth consideration is also included, as other notable sources provide36:
I) Does the State claiming the historic right exercise authority over the area in question?
There must be continuous and effective control exercised over the waters, in the form of sovereignty, should a State claim adjacent to its coast as historic waters. This is vital, as the State in question is asserting its claim that the maritime area is part of its territory.
II) Is this authority continuous in nature?
‘Continuous usage of long standing’ must be proven as well, as the historic claim must be based on the effective exercise of sovereignty by the State in question. Further, the activity which the usage derived from is either a repeated or continued activity of the State. Finally, although there is no communal agreement regarding how long a passage of time should pass for a historic claim, the exercise of sovereignty must have lasted for a considerable amount of time.
III) After receiving knowledge of the claim, what attitude have foreign States taken?
That is to say, is there acquiescence from other States to the historic claim? It follows that, as ‘historic waters’ exist as an exception to the general rules, there is an ‘adverse acquisition’ wherein for a coastal State claiming
sovereignty over the maritime area requires the acquiescence of other States for a valid claim. Otherwise, as part of the high seas, the maritime area would belong to res communis omnium (to all as the common heritage of mankind) and not res nullius (an object which has no owner until a specific subject asserts its rights).
IV) Is there necessity for the publicity for the historic claim’s publication, or, notification of the claim to other States?
The nature or the extent of the historic claim must be known by other States in order for them to acquiesce or protest. In US v Alaska, it was stated that given
35
Jurididcal Regime of Historic Waters, including Historic cBays. Document
A/CN.4/143, Yearbook of International Law Commission 1962, Vol 2, Documents of the fourteenth session including the report of the Commission to the General Assembly
36
Symmons, Historic Waters in the Law of the Sea: A Modern Re-appraisal, pp. 139-160
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the ambiguity of the federal government’s position in that case, ‘something more than the mere failure to object must be shown’, as the ‘failure of other countries to protest is meaningless unless it is shown that the governments of those countries knew or reasonably should have known of the authority being asserted.
Traditional activities, such as fishing, may be used in application for ‘historic rights’, however this does not result in the State gaining sovereignty over the area. In
Tunisia/Libya Arab Jamahiraya (Continental Shelf), Tunisia claimed having well-established historic rights which included ‘fixed and sedentary fisheries’ from long-established fishing activities in acquiescence of other relevant States37. This right, which is usually recognised by an agreement between the States, is laid out in Article 62 (3) UNCLOS, which gives access to fish stock in the exclusive economic zone (EEZ) to States whose nationals have habitually fished there. Furthermore, The ICJ also confirmed in the Tunisia/Libya case that customary international law governs historic title38.
In similar fashion to ‘historic waters’, ‘historic rights’ are characterised by long, continued, peaceful usage with acquiescence from other States. The biggest difference between the two exists in the nature of their claims. For example, historic fishing rights only have a quoad hunc (certain other neighbouring State(s)) effect rather than an erga omnes (towards all) effect. And, as stated earlier, historic rights claims do not confer sovereignty to a State over the EEZ of other States or over the high seas. IN the Fisheries Jurisdiction (United Kingdom v Iceland) cases, Judge De Castro stated that the historic rights of States concerned with ‘high seas fishing’ do not give them ‘acquisition over the sea by prescription’; they merely ‘respected’ rights by ‘long usage’39
. This was reinforced in Qatar/Bahrain wherein the ICJ stated, in regards to Bahrain’s alleged historic rights over disputed pearling banks in the concerned seabed, that these rights had never led to the recognition of a quasi-territorial right to the fishing grounds or the superjacent waters40.
Malek also notes that a third possible difference between historic rights and historic waters exists, in that the claimed historic waters must be adjacent to the claimant State. This is supported by Bouchez, who believes that it is ‘impossible for a non-coastal State to be entitled over a historic sea area situated near the coast of other States’41 . 37 [1982] ICJ Reports 18, pp. 32, 63, 71 38
[1982] ICJ Reports, at pp. 73/74, para. 100 (emphasis added). It was noted by the Court that the draft of the UNCLOS contained no “[…] detailed provisions on the ‘regime of historic waters”, nor “a definition of the concept [or] an elaboration of the juridical regime” of such.
39
[1974] ICJ Reports 3, p.29; this is also touched on by Symmons in Historic Waters in the Law of the Sea: A Modern Re-Appraisal, p.4
40
[2001] ICJ Reports 40, p.112 41
Bouchez, The Regime of Bays in International Law, p.238; also Symmons, Historic Waters in the Law of the Sea: A Modern Re-Appraisal, p.6
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Historic Claims as viewed in the South China Sea Arbitration
In their notification and their statement of claim, the Philippines asked the Tribunal firstly to declare the parties’ respective rights and obligations in regards to the waters, seabed and maritime features of the SCS to be governed by the UNCLOS, andsecond, that China’s claims based on the “nine-dashed line” are inconsistent with the Convention and thus invalid42. The Philippines later further clarified its request in the first two submission points of its memorial:
I) China’s maritime entitlements in the SCS, like those of the Philippines, may not extend beyond those permitted by the UNCLOS.
II) China’s claims to sovereign rights and jurisdictions and to historic rights with respect to the maritime areas of the SCS encompassed by the so-called nine-dash line are contrary to the Convention and without lawful effect to the extent that they exceed the geographic and substantive limits of China’s maritime entitlements under the UNCLOS.43
The Tribunal clarified certain issues related to the existence of the historic rights dispute and its scope in the Jurisdiction Award. In regards to the interpretation and subsequent application of the UNCLOS, as required by Article 297 UNCLOS, the Tribunal found:
“This is accordingly not a dispute about the existence of specific historic rights, but rather a dispute about historic rights in the framework of the Convention. A dispute concerning the interaction of the Convention with another instrument or body of law, including the question of whether rights arising under another body of law were or were not preserved by the Convention, is unequivocally a dispute concerning the interpretation and application of the Convention.”44
The Tribunal later found that “the existence of a dispute over these issues is not diminished by the fact that China has not clarified the meaning of the nine-dash line or elaborated on its claim to historic rights”.45
However, the Tribunal also linked its jurisdictional competency to deal with this issue with the merits of the case, and the nature of China’s historic claim in particular whilst they reserved a decision on the jurisdiction for the merits.46
42
The Republic of the Philippines v the People's Republic of China, PCA Case N° 2013– 19 in the matter of the South China Arbitration, Award of 12 July 2016 (Merits), para. 28
43
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 on Jurisdiction and Admissibility of 29 October 2015, supra note 2, para. 101
44 Ibid., para 168 45 Ibid., para 167 46 Ibid., para 398
17
In the Award on the merits, the Tribunal began assessing its jurisdiction to address the Philippines submissions by first examining the nature and scope of China’s claim to historic rights. The Tribunal noted that “China has never expressly clarified the nature or scope of its claimed historic rights. Nor has it ever clarified its understanding of the meaning of the ‘nine-dash line’”.47
The Tribunal examined China’s legislation, activities and official statements48, paying particular attention to “China’s commitment to respect both freedom of navigation and overflight.”49
Finally, the Tribunal concluded with the following:
On the basis of China’s conduct, the Tribunal understands that China claims rights to the living and non-living resources within the ‘nine-dash line’, but (apart from the territorial sea generated by any islands) does not consider that those waters form part of its territorial sea or internal waters.50
These claims were found to be historic rights short of sovereignty. Despite the widely differing views which have been expressed in academia in regards to the scope of the Chinese historic claim and its link to the nine-dash line, which range from views that there is a lack of any historic claim over the waters51, to the view that there is a claim of ‘historic rights with tempered sovereignty’52
over an EEZ. Kopela believes the conclusion of the Tribunal to be justified53, as the fact that China has never desired to restrict freedom of navigation in practice in the region54 could lead to the conclusion that the historic claim is not a claim of sovereignty over territorial sea or internal waters.
47 Ibid., para 160, and South China Sea Arbitration Award (Merits), supra note 2, para. 180.
48
South China Sea Arbitration Award (Merits), supra note 2, paras. 207–214. 49
Ibid., para. 213. 50
Ibid., para. 214 51
M. Sheng-Ti Gau, “Issues of Jurisdiction in Cases of Default of Appearance,” in S. Talmon and B.B. Jia, (eds.), The South China Sea Arbitration: A Chinese Perspective (Hart, 2014) pp.88-89
52
Zou, “Historic Rights in International Law, and in China’s Practice,” 32 Ocean Development and International Law (2001), p.160: “since it is referable to the EEZ and continental shelf regimes, such a claim involves sovereign rights and jurisdiction but not full sovereignty. Z. Gao and B.B. Jia also offer a similar view in, “The Nine-Dash Line in the South China Sea: History, Status and Implications,” 107 American Journal of International Law (2013), p.108. Gao and Jia, in regards to the UNCLOS refer to additional “historic rights of fishing, navigation, and other marime activities (including the exploration and exploitation of resources, mineral or otherwise).” 53
S. Kopela, “Historic Titles and Historic Rights in the Law of the Sea in the Light of the South China Sea Arbitration”, Ocean Development & International Law, Vol. 48, Issue 2 (2017)
54
Statement of Chinese Foreign Ministry Spokesman Chan Jian, “News Briefing by Chinese Foreign Ministry,” cited in S. Yann-Huei and K. Zou, “Maritime Legislation of Mainland China and Taiwan: Developments, Comparison, Implications and Potential Challenges for the US,” 31 Ocean Development and International Law (2000), p. 322.
18
In regards to the scope of the exception within Article 298 (1) (a) (i) UNCLOS, the Tribunal concluded that they had jurisdiction because China’s claim was not one of historic title – these claims refer to claims of sovereignty. In fact, the Tribunal highlighted three separate, although related, question which formed part of the reasoning for addressing the Philippines’ Submissions No. 1 and 2. The first question addressed the relationship between the UNCLOS and pre-existing rights to living and non-living resources:
Does the Convention, and in particular its rules for the EEZ and continental shelf, allow for the preservation of rights to living and non-living resources that are at variance with the provisions of the Convention and which may have been established prior to the Convention’s entry into force by agreement or unilateral act?55
The second and third questions were in regards to whether China had acquired “historic rights and jurisdiction over living and non-living resources in the waters of the South China Sea beyond the limits of the territorial sea”, both prior to the Convention’s entry into force56, and “in the years since the conclusion of the Convention”57
.
The relationship between historic claims and the UNCLOS
Relying on Article 293 (1) and 311 of the UNCLOS, the Tribunal concluded that “upon China’s accession to the Convention and its entry into force, any historic rights that China may have had to the living and non-living resources within the ‘nine-dash line’ were superseded, as a matter of law and as between the Philippines and China, by the limits of the maritime zones provided for by the Convention.”58
With regards to Article 311, it was noted that the Tribunal “considers that this provision applies equally to the interaction of the Convention with other norms of international law, such as historic rights, that do not take the form of an agreement”.59
According to the Tribunal, “these provisions mirror the general rules of international law concerning the interaction of different bodies of law, which provide that the intent of the parties to a convention will control its relationship with other instruments.”60 The Tribunal also stated that a combination of Articles 311 and 293 (1) UNCLOS would demonstrate only that those pre-existing rights which are either expressly “permitted or preserved such as in Article 10 and 15”, or are compatible with the UNCLOS, would be preserved. The Tribunal further clarified how such
incompatibility was to be devised:
55
South China Sea Arbitration Award (Merits), supra note 2, para. 229 56 Ibid. 57 Ibid. 58 Ibid., para. 262 59 Ibid., para. 235 60 Ibid., para. 237
19
Such prior norms will not be incompatible with the Convention where their operation does not conflict with any provision of the Convention or to the extent that interpretation indicates that the Convention intended the prior agreements, rules or rights to continue in operation.61
The Tribunal also noted that, “where independent rights and obligations have arisen prior to the entry into force of the Convention and are incompatible with its
provisions, the principles set out in Article 30 (3) of the Vienna Convention on the Law of Treaties (VCLT) and Article 293 of the UNCLOS provide that the Convention will prevail over the earlier, incompatible rights or obligations”.62
This indicates that, where compatible with the provisions of the UNCLOS, such “independent rights and obligations” (referring to historic rights) may prevail over the Convention. The Tribunal went on to identify to categories of historic rights, which I will address in greater detail in the following chapter. These categories are:
(1) Historic titles entailing sovereignty – usually referred to as historic waters
(2) Historic rights short of sovereignty – the Tribunal found that the Chinese claim is within this category, but did not clearly identify the sub-categories of these rights, of which there are two:
(a) Rights which have a quasi-territorial or zonal impact beyond the territorial sea. This is how the Philippines and the Tribunal perceived China’s claim. (b) Non-exclusive historic rights.
This chapter has illustrated the notion of ‘historic titles’ and ‘historic rights’ in relation to ‘historic claims’ over ‘historic waters’. While the Tribunal quashed the claims of historic right which China asserted in the SCS Arbitration, there may be room for the existence of certain historic titles alongside the UNCLOS, providing their compatibility with the Convention. The following chapter addresses to what extent these rights may be compatible with the Convention and refers to the nature of historic rights with use of commentary from established authors on the law of the sea.
61
Ibid., para. 238 (b) 62
20
Chapter 3: The Compatibility of
Historic Rights with the UNCLOS
The intention of the drafters of UNCLOS is key to determining the extent to which the historic rights that States previously enjoyed have been superseded, and this was examined in the SCS case. The Tribunal found that while there is limited mention to historic rights in the UNCLOS, the intention of the UNCLOS was to establish a comprehensive regime with regards to the Law of the Sea; however, the Tribunal failed to take into account the history and nature of historical rights.
Historic rights’ nature and rationale are not to disturb, but rather to continue a
continuous, long-established and accepted situation with a view to providing stability. The drafters’ intention is the same as that of historic rights – to accept and respect a long-established situation with a view to providing stability.
There is no explicit provision phasing out these pre-established rights, and there was not even a general reference to pre-existing historic rights in the Third Conference of the UNCLOS. Historical rights are not compatible with the UNCLOS convention; this much is clear from the SCS Award. They are, however, compatible with existing international law as long as the conditions for it are met. Historical rights refer to a lex specialis, and a particularised regime – this regime cannot be waived in extracto without specific reference to that.
Problems in the tribunals approach
There are several aspects in which the approach of the Tribunal appears to be problematic. Firstly, the Tribunal does not offer explanation to its reasoning in regards to why Article 311 UNCLOS63 could be applied analogically to the relationship between the UNCLOS and historic rights as rules of customary international law.
It is also uncertain why the Tribunal considered Article 30 (3) VCLT would be applicable when that article plainly refers to “successive treaties relating to the same subject matter”.64
Furthermore, Article 293 UNCLOS concerns dispute settlement and the applicable law – not the relationship between the UNCLOS and other rules of international law, which would include historic rights.65 As most lawyers who deal in public international law will know, the relationship between treaties and customary international law is not simple. As codification of such has largely been avoided, the
63
This article refers explicitly to the relationship between the UNCLOS, conventions and international agreements
64
Vienna Convention on the Law of Treaties, 1155 U.N.T.S. 332 65
S. Kopela, “Historic Titles and Historic Rights in the Law of the Sea in the Light of the South China Sea Arbitration”, Ocean Development & International Law, Vol. 48, Issue 2 (2017)
21
relationship is regulated by customary international law and general principles of international law66.
One can say that the principles regarding the relationship between treaties (such as lex posterior, lex specialis) can be applied in the relationship between treaties and
custom, however, it does not follow that the relevant provisions of the VCLT, which explicitly regulates treaties, and the UNCLOS provisions which relate to its
relationship with other agreements, would also apply to its relationship with
customary international law or with pre-established rights. Kopela indicates that the sole relevant provision which the UNCLOS provides with respect to customary international law, and which the Tribunal did not reference, is contained within its Preamble67:
“Affirming that matters not regulated by this Convention continue to be governed by the rules and principles of general international law”68
The Philippines, however, argued this matter is regulated by the Convention69. Yet, nowhere in the UNCLOS is there an explicit provision which forbids the preservation of such rights, nor is there a provision which explicitly nullifies them. Historic rights are established on the basis of a particularised regime, and Kopela thus postulates that they can thusly be regarded as lex specialis derogat legi generali, and therefore cannot be superseded by a general treaty without explicit reference to them.70
In their examination, the Tribunal questioned “whether the Convention nevertheless intended the continued operation of such historic rights, such that China’s claims should be considered not incompatible with the Convention”71. To answer this, the Tribunal examined the regime of the EEZ, finding that
As a matter of ordinary interpretation, the (a) express inclusion of an article setting out the rights of other States and (b) attention given to the rights of other States in the allocation of any excess catch preclude the possibility that the Convention intended for other States to have rights in the EEZ in excess of those specified72.
The Tribunal would later clarify:
The notion of sovereign rights over living and non-living resources is generally incompatible with another State having historic rights to the same
66
H. Thirway, “The Sources of International Law,” in M. D. Evans (ed.), International Law (4th ed., Oxford University Press, 2014), p. 109
67
supra footnote 65 68
Convention on the Law of the Sea, Dec. 10 1982, 1833 U.N.T.S. 397, p.25 69
The Philippines had argued that this is a matter regulated by the Convention. Philippines' Memorial, para. 4.74, supra note 2
70
supra footnote 65 71
South China Sea Arbitration Award (Merits), supra note 2, para. 239. 72
22
resources, in particular if such historic rights are considered exclusive, as China’s claim to historic rights appears to be.73
In regards to the continental shelf, the Tribunal came to a similar conclusion, finding that “the provisions of the Convention concerning the continental shelf are even more explicit that rights to the living and non-living resources pertain to the coastal State exclusively.”74
The comprehensiveness of UNCLOS’ regulatory regime was also stressed, with reference to the intention of the drafters to settle all issues related to the law of the sea, particularly claims relating to jurisdiction, and to provide stability and order – as proclaimed in the closing statement of the President of UNCLOS III and the UNCLOS Preamble.75 Having accepted the Philippines’ argument in this regard, the Tribunal further found that the same objective of limiting exceptions to the Convention to the greatest extent possible is also evident in Article 309, which provides that “no reservations or exceptions may be made to this Convention unless expressly permitted by other articles of this Convention.”76
This view has also been expressed in academia, particularly in literature relating to historic rights in the EEZ and the continental shelf.77
Shortcomings relating to the nature of historic rights
The Tribunal failed to consider the nature and rationale of historic rights which are linked to the non-disturbance, and preservation of a continuous, long-established, and accepted situation with the view to providing stability.
This, of course, is different from existing treaties which the Tribunal used as analogy. In this respect, historic titles or historic rights share elements with the concept of historic consolidation. According Jennings, this relates to the “fundamental interest of the stability of territorial situations from the point of view of order and peace.”78
In Gisbadarna Arbitration, the Tribunal noted the desired stability, noting that “it is a 73 Ibid., para. 243 74 Ibid., para. 244 75 Ibid., para. 245 76 Ibid., para. 245 77
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, (Routledge, 2015), pp. 195-196, 204-205. One can also find support of this in the UN Study on Historic Waters: Study Prepared by the U.N. Secretariat, “Juridical Regime of Historic Waters, Including Historic Bays,” Doc. A/CN.4/143 (March 1962), para. 75-77, “if the provisions of an article should be found to conflict with a historic title to a maritime area, and no clause is included in the article safeguarding the historic title, the provisions of the article must prevail as between the parties to the convention. This seems to follow a contrario from the fact that Article 7 and 12 have express clauses reserving historic rights; articles without such a clause must also be considered not to admit an exception in favour of such rights.”
78
R. Y. Jennings, The Acquisition of Territory in International Law (Manchester University Press, 1963), p. 24.
23
well-established principle of the law of nations that the state of things that actually exists and has existed for a long time should be changed as little as possible.”79 Although it is still debated, historic titles have typically be thought to be related to acquisitive prescription whose rationale is also to “preserve international order and stability”.80
Although the UN Study on Historic Waters refuted the exceptional nature of historic rights, at the time relying on the lack of clear and certain rules concerning maritime delimitation, the prevalent view supported by commentators accepts historic rights as exceptional rights which deviate from the generally applicable rules. Certain authors have brought attention to the overlap between concepts like prescription, customary rights and historic rights. Fitzmaurice refers to them as special rights:
“Different from, and in principle contrary to, the ordinary rules of law applicable, […] built up by a particular State or States through a process of prescription – leading to the emergence of a usage of customary or historic rights in favour of such State or States”81
Commenting on Fitzmaurice’s suggestion, McGibbon has stated that “the concept of prescription, customary right and historic right overlap”82
. That is to say, that they may be cases of special customary law which refer to and regulate a particular, singular situation. The UN Study on historic waters notes that historic claims derive from the fact that States “laid claim to and exercised jurisdiction over such areas of the sea adjacent to their coasts as they considered to be vital to their security or to their economy.”83
Thus, one can stipulate that historic rights should be perceived not as ‘incompatible with the UNCLOS’, but as exceptions recognised in general
international law. Talmon reinforces this point, arguing that “the rules on historic legal title and historic rights are quasi-superimposed as a separate layer of normativity over UNCLOS”.84
As the Tribunal noted, the UNCLOS intended to codify a comprehensive regime for the regulation of ocean affairs. This does not, however, assume that all previously established regimes were eliminated, particularly because there is no explicit provision included which would allude to this effect.85 Although the jurisdictional
79
Grisbadarna Case (Norway v Sweden), Award of the Tribunal of 23 October 1909, p. 6
80
Y. Z. Blum, Historic Titles in International Law (Nijhoff, 1965), p. 12 81
G. Fitzmaurice, “The Law and Procedure of the ICJ, 1951-54: General Principles and Sources of Law,” 30 British Yearbook of International Law (1953), p.68
82
I.C. McGibbon, “Customary International Law and Acquiescence,” 33 British Yearbook of International Law (1957), p. 122. In reference to historic rights as a category of special customary rights, see Blum, supra note 65, pp. 52-57. 83
U.N. Study on Historic Waters, supra note 62, pp. 6–7, para. 36. 84
S. Talmon, “Possible Preliminary objections to the Philippines' claims” in Talmon and Jia, supra note 36, p. 51.
85
Barbados’s argument refers to this in Arbitration Between Barbados and the Republic of Trinidad and Tobago, Relating to the Delimitation of the Exclusive
24
regime of the UNCLOS validated rights where may have been previously claimed as historic in nature, it cannot be derived neither from the Convention nor from its travaux preparatoires that the contracting States intended or desired to generally waive any pre-established historic rights. Further, this could also not be derived a contrario from Article 15 UNCLOS – this provision relates to delimitation of the territorial sea and not to the preservation of historic rights in a general manner.
In this chapter, I have formed an argument that historic rights may exist as a case of special customary law, which refers to and regulates a particular singular situation. Collating the comments of noted authors, I put forth the argument that historic rights should, instead of being viewed as ‘incompatible to the UNCLOS’, be viewed as exceptions which are recognised in international law. The sole reference which the UNCLOS provides with respect to customary international law affirms that matters not regulated by the Convention will continue to be governed by the rules and
principles of general international law, and this was not mentioned by the Tribunal in the SCS Arbitration. Being compatible with existing international law, providing conditions are met, historic rights refer to a lex specialis – a regime which cannot be waived without specific reference being made. The following chapter will look to the case law of claims relating to historic rights within the framework of maritime
delimitation, analysing the clear history of a regime wherein historic rights have been upheld and provided stability to certain States and the law of the sea.
Economic Zone and the Continental Shelf Between Them, decision of 11 April 2006, U.N. Reports of International Arbitral Awards, Vol XXVII, para. 140; also para. 138: “it would be contrary to established methods of interpretation of treaties to read into a treaty an intention to extinguish pre-existing rights in the absence of express words to that effect” and that acquired rights such as historic rights “survive unless
25
Chapter 4: Jurisprudence of historic
rights
One can see from international jurisprudence that there are international courts and tribunals which have accepted the preservation of historic rights, parallel to the jurisdictional regime established in the UNCLOS. The ICJ stated in Tunisia/Libya that “historic titles must enjoy respect and be reserved as they have always been by long usage”86
. The ICJ would later repeat this statement in the Gulf of Fonseca case, noting that it was “clearly necessary […] to investigate the particular history of the Gulf of Fonseca to discover what is the ‘regime’ of the Gulf resulting therefrom.”87
In Tunisia/Libya, the Court made explicit reference to, what at the time was, the draft version of the UNCLOS, noting:
“Nor does the draft convention of the Third Conference on the law of the Sea contain any detailed provisions on the “regime” of historic waters: there is neither a definition of the concept nor an elaboration of the juridical regime of “historic waters” or “historic bays”. There are, however, references to
“historic bays” or “historic titles” or historic reasons in a way amounting to a reservation to the rules set forth therein.”88
The ICJ then continued:
“It seems clear that the matter continues to be governed by a general
international law which does not provide for a single “regime” for “historic waters” or historic bays but only for a particular regime for each of the concrete recognised cases of “historic waters” or “historic bays”.89
Symmons observes, referring to these statements, that “the Court thus endorsed a potential particularised regime for each historic claim, and so for some diversity of types of historic regimes”90. In this regard, one cannot answer the question of the superseding of historic rights by the UNCLOS in abstracto.91 Because historic rights
86
Case Concerning the Continental Shelf (Tunisia/Libyan Arab Jamahiriya), [1982] I.C.J. Reports, para. 100.
87
Case Concerning Land, Island and Maritime Frontier Dispute (El
Salvador/Honduras: Nicaragua Intervening), [1992] I.C.J. Reports, p. 589, para. 384. 88
Tunisia/Libya Case, supra note 71, para. 100. 89
Ibid., para. 100. 90
Symmons, supra note 21, p. 200. 91
T. Cottier, Equitable Principles of Maritime Boundary Delimitation: The Quest for Distributive Justice in International Law (Cambridge University Press, 2015), p. 486, discusses the relevance of historic rights in maritime delimitation, noting that “the problem cannot be dismissed in summary terms. Neither would predomination or subjection in abstracto of such rights provide a satisfactory answer. Conclusive answers have to rely upon the legal nature of the shelf and the EEZ and the doctrine of intertemporal law.”
26
and historic titles create a special regime which relates to the specific circumstances in each case, it cannot be considered that historic claims can be wholly phased out – the history must be examined on a case-by-case basis when taking the UNCLOS into account. This is dependent on the historic claim meeting the requirements for
establishing historic rights in the specific maritime area.
In the SCS Arbitration, the Philippines placed emphasis on the fact that never before had there been a claim of such an expansive scale of maritime area92. This attempt to illustrate that international law has never recognised a claim on this scale founded on historic reasons has also been found expressed in academic literature.93
On the one hand, Symmons argues “the historic ‘EEZ-claim’ ignores precedents of history on exaggerated claims in the past”, giving the example of Czar Alexander’s 100-mile ‘no-go’ zone near Alaska (1815), which was “stymied at birth by immediate protests from the major powers, causing it to be almost immediately withdrawn.”94 On the other hand, Talmon proposes that such substantial historic claims are not so rare; even the Philippines raised a claim of historic rights which covers the waters of its archipelago.95 Blum notes, “the common feature of all these claims seems to be the belief that a special relationship exists between the water area concerned and the land territory enclosing it,” but, “the legality of such an historic claim is to be measured, in the words of Jessup, ‘not by the size of the area affected, but by the definitiveness and duration of the assertion and acquiescence of foreign powers.’”96 A valid and
successful claim is dependent on the fulfilment of the requirements for historic titles, as outlined above in Chapter 2. Acquiescence of other States stands out in particular as a crucial criterion, as it is so unlikely that States would consent to such expansive claims. However, certain authors acknowledge the “uniqueness” of China’s claim, yet believe it to be a particularised regime of historic rights which could be
established in customary international law.97 Talmon has also advised that “the
92
South China Sea Arbitration, Merits Pleadings, Day 1, pp. 59–63, supra note 2: “In short, from the time of Grotius through the widespread acceptance of the UN Convention on the Law of the Sea, international law has not preserved, admitted or accepted claims to control vast areas of the sea in derogation or either the freedom of the seas or the rights of the immediately adjacent coastal state.”
93
T. McDorman, “Rights and Jurisdiction Over Resources in the South China Sea: UNCLOS and the Nine-Dash Line,” in S. Jayakumar et al. (eds.), South China Sea Disputes and the Law of the Sea (Elgar, 2014), p. 155, notes that “such a claim beyond near-shore waters would be exceptional and inconsistent with the history of the law of the sea where, until recently, what existed were narrow bands of national waters along a coast and wide expanses of high seas with which high seas freedom existed.”
94
Symmons, supra note 23, p.206 95
Talmon, supra note 71 96
Blum, supra note 67, p. 256, quoting Jessup, The Law of Territorial Waters and Maritime Jurisdiction (1927), p. 382.
97
Zou, “Historic Rights in International Law,” supra note 39, p. 160, has noted that “China has set a precedent in the state practice relating to historic rights. It is not clear whether China's practice establishes a rule in international law, but it may
27
Chinese claim to sovereignty over the islands in the South China Sea and the adjacent waters could be regarded as such a ‘particular regime’.”98
Without referring to the specifics of the Chinese claim in this area of the Award, the Tribunal took a wider view in regards to the impact of the UNCLOS on all pre-established historic rights/titles in areas beyond the territorial sea within the framework of the historic development of these zones.
The matter of historic rights was also discussed by the ICJ in the Qatar/Bahrain case99, and in the Gulf of Maine case in an indirect manner in regards to maritime delimitation100. Although the Court rejected the arguments which related to the impact of any historic rights upon the maritime boundary, on the basis of the facts in the cases, the Court relented to express their views regarding the gradual diminishing of historic rights in the post-UNCLOS époque. It is important to specify that these cases dealt with different, specific types of historic rights which were invoked, and then later discussed by the Court. In the Eritrea/Yemen case, the Tribunal dealt with the issue of non-exclusive historic rights. The Tribunal accepted both the relevance and the applicability of historic rights despite the introduction of the UNCLOS and the adoption of the relevant maritime zones. The claims made in both the territorial sea and the areas beyond were accepted.101 On the face of it, the reasoning in this case appears to support the hypothesis that historic rights do not exist in a contradictory fashion to the UNCLOS, but are complementary to it. The Tribunal even implied their acceptance in international law with a view to preserving the current, existing regime for the reason of stability, thus serving reference to ‘servitude internationale’.102
Criteria for the valid application of historic rights or historic titles in
light of the SCS Arbitration
The criteria for the valid application of historic rights were only briefly discussed in the SCS Arbitration. Although the Tribunal had given an answer to the Philippines’ submissions and had also accepted that any historic rights within the EEZ and continental shelf are superseded by the UNCLOS, the Tribunal found it necessary to “consider what would be required for it to find that China did have historic maritime rights to the living and non-living resources within the nine-dash line”.103
already be influencing the development of the concept of historic rights.” Similarly, see N. Hong, UNCLOS and Ocean Dispute Settlement: Law and Politics in the South China Sea (Routledge, 2012), pp. 70–71.
98
Talmon, supra note 38, p.53 99
Maritime Delimitation and Territorial Questions Between Qatar and Bahrain (Qatar v. Bahrain), [2001] I.C.J. Reports 40.
100
Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada/United States), [1984] I.C.J. Reports 246.
101
Second Stage of the Proceedings between Eritrea and Yemen (Maritime
Delimitation) Award of 17 December 1999, U.N. Reports of International Arbitration Awards, Vol. XXII, para. 109.
102
Territorial Sovereignty and Scope of the Dispute (Eritrea/Yemen), Award of 9 October 1998, U.N. Reports of International Arbitration Awards, Vol. XXII, para. 126. 103
