Seeking an Appropriate Expression of 'Historic Rights' in the Law of the Sea - Investigating historic rights in the South China Sea

• Author: Jing Ming
• Position: Ph.D. candidate in Law School of Dalian Maritime University, China. The paper was finished under the supervision of Professor Jerome Cohen and Professor Peter Dutton
• Pages: 84-101

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Seeking an Appropriate Expression of “Historic Rights” in the

Law of the Sea

-- Investigating historic rights in the South China Sea

Jing Ming*

Abstract: The definition and scope of “historic rights” remains ambiguous in the law of

the sea, although many scholars have attempted to bring clarity. The absence of an indisputable

interpretation makes the dialogue between different linguistic backgrounds problematic and

obstructs the peaceful resolution of maritime disputes. International Law Commission’s (“ILC”)

attempt on codification and progressive development of international law, based on existing

practices, offers some essential input but the wording in rulings of international judicial bodies

hardly illustrates a general route. The limitations of textualism are exposed when confronted

with similar concepts such as “historic rights”, “historic title”, “historic waters” and “historic

bays”. Observing the origin of each term at its conception is necessary for clarifying their

respective meanings and implications. Historic rights encompass both sovereign and functional

right; sovereign rights include, but are not limited to, historic waters and historic bays, while

functional rights mainly refer to traditional fishing, navigation and other activities. “Historic

title” is derived from territory law and was sometimes used in previous practices to refer to

sovereign rights. Historic rights are recognized as exceptional rights under United Nations

Convention for the Law of the Sea (“UNCLOS”) and are compatible with the contemporary

regime. The ignorance to China’s historic rights in the South China Sea by the tribunal resulted

from the ambiguity of the concept to some extent. The “historic rights” in the South China Sea

could be suitably expressed as a chapeau with specific contents of historic waters within a nine-

dash line or U-shaped line, and all functional rights concerned including fishing, navigation

and all other maritime activities.

Key Words: Historic Rights; Expression; UNCLOS; South China Sea

1. Introduction

Concepts embodying historic rights catch the attention of international scholarship, partly

because they frequently appear in territorial boundary and maritime entitlement disputes.

1

However, the expression of historic rights in international law, including its literal meaning

and its normative value, are still confronted with a variety of problems. When the South China

Sea arbitration brought this issue to the forefront, yet again, the first and most direct issue came

from the confusion in the translation between English and Chinese lacking a unifying context.

"Which term is the correctly corresponds to the common saying of “li shi xing quan li”(written

as “



”) in Chinese? Should litigators define it as historic rights, historic title, or

something else entirely?"

It is far more complicated than a mere translation issue. Instead it is significant work to

express the concept of “li shi xing quan li” in international law so that the international

community is able to comprehend its contents and scope. International law theorists,

* Jing Ming, Ph.D. candidate in Law School of Dalian Maritime University, China. The paper was finished under

the supervision of Professor Jerome Cohen and Professor Peter Dutton. The original idea of the paper was inspired

by a conference presentation of Professor Ma De-yi. The author received some valuable suggestions from

Professor Ma De-yi and Professor Zheng Zhi-hua in the progress of writing. She is sincerely grateful for all.

1

See Sophia Kopela, Historic Titles and Historic Rights in the Law of the Sea in the Light of the South China Sea

Arbitration, 48 Ocean Development & International Law 2, 181, 195 ( 2017).

85

international judicial decisions and even state practices struggle to depict the full picture of its

sources

2

and its values. Recent development in the legal scholarship has further proved the

difficulty and complicacy of this task.

3

Unavoidably, the majority of disputes on territorial boundary and maritime entitlements

enroll some historic rights. The parties of previous cases disagree on two points. First, a unified

definition of historic rights, requiring a detailed observation of the contents it may cover;

second, its significance to the claiming states, which requires deeper research into its

entitlements within international law.

4

Specifically, in the South China Sea dispute, the core

issue was how China expressed their “historic rights” within the nine-dash line in its position

paper.

5

From a Chinese perspective, one must argue both, that the analysis in the arbitration

award on historic rights is defective, and additionally express to the international community

the jurisprudence behind it and its application in regards to the specific contents and scope.

This, if successfully done, may largely contribute to its recognition by the international

community as a whole.

While reviewing the literature on historic rights, difficulties in comprehension arise in an

obvious manner. Firstly, the meaning of “li shi xing quan li” in Chinese context is itself

ambiguous,

6

which makes it difficult in finding an appropriate and corresponding translation

in English. Disagreements between Chinese scholars and those from outside China, have

surfaced to a large extent from these conflicting comparisons. Secondly, disagreements have

exacerbated as territorial sovereignty and maritime entitlement arguments automatically relate

to geopolitics and national emotions

7

in most scenarios. Without written rules in existing

international law, the limited decisions of international judicial bodies vary. Some

2

See Bouchez L J., The Regime of Bays in International Law, Sythoff A W, (1964). Strohl M. P., The International

Law of Bays, Martinus Nihoff Publishers (1963). Blum Y Z, Historic Titles in International Law, Martinus Nijhoff

Publishers (1965). Clive R. Symmons, Historic Waters in the Law of the Sea – A Modern Re-Appraisal, Martinus

Nijhoff Publishers (2008). Natalie Klein, Dispute Settlement in the UN Convention on the Law of Sea, Cambridge

University Press (2005).

3

See Tan Zhong-zheng, The Legal Status of the “Historic Titles” in the United Nations Conventions on the Law

of Sea: with Special Reference to the Philippines’ Relevant Claims in the South China Sea Arbitration, 3 Chinese

Review of International Law 3, 22 (2016). Li Yong & Zhang Li-na, On Dual Nature of legal Base of “Historic

Rights”, 36 Hebei Law Science 2, 62, 71 (2018). Gao Zhi-hong, Multidimensional View on Historic Right, 17

Journal of Nanjing University of Aeronautics and Astronautics (Social Sciences) 1, 44, 50 (2015). Qu Bo, Historic

Rights: From the Perspective of In ternational Law, 55 Jilin University Journal Social Sciences Edition 5, 69, 78

(2015).

4

See PCA Case Resources, Anglo-Norwegian Fisheries (United Kingdom v. Norway), R.I.C.J. (Dec.18, 1951).

Continental Shelf Delimitation, Tunisia v. Libyan Arab Jamahiriya, R. I.C.J. (Feb.24, 1982). Eritrea v. Yemen,

Maritime Delimitation (Second Stage), R.I.A.A. (Dec.17, 1999). El Salvador v. Honduras, Nicaragua interv enin

g, Land, Island and Maritime Frontier Dispute, R.I.C.J. (Sep.13, 1990). Maritime Boundary Arbitration (Barbad

os v. Trinidad & Tobago), R. I. A. A. (Apr.11, 2006). South China Sea Arbitration, the Philippines v. China, R.

I.A.A. (Jul.12, 2016), https://www.icj-cij.org/en/list-of-all-cases and https://pca-cpa.org/en/cases (accessed on D

ecember 29, 2019).

5

According to the statements of the Ministry of Foreign Affairs of P.R.C., there is no clear contents and scope

of “historic rights” either. Position Paper of the Government of the People’ s Republic of China on the Matter of

Jurisdiction in the South China Sea Arbitration Initiated by the Republic of the Philippines (Dec.7, 2014),

http://www.chinadaily.com.cn/china/2014-12/07/content_19037946.htm (accessed on December 26, 2019) .

Some scholars regard this as “constructive ambiguity” in diplomatic statement, which may confer benefits if

subtly interpreted. See Han Yi-chou, Research on “Constructive Ambiguity” in International Law, 32 Studies in

Law and Business 171, 179 (2015).

6

See Chinese Society of International Law, The South China Sea Arbitration Awards: A Critical Study, Foreign

Languages Press, p.113 (2018).

7

See Tuomas Forsberg, Explaining Territorial Disputes: From Power Politics to Normative Reasons, 33 Journal

of Peace Research 433, 449 (1996).