10 Maritime historic rights and China’s practice
On 26 June 1998, China (PRC) officially promulgated the Law on the Exclusive Economic Zone and the Continental Shelf (hereinafter referred to as the EEZ Law), of which Article 14 provides that “the provisions of this Law shall not affect the historic rights enjoyed by the People’s Republic of China”.1 This provision gives rise to several legal issues. What is meant by historic rights? How are they defined in international law? Where can China enjoy its historic rights? What are the consequences of such “historic rights” in the context of potential maritime conflicts between China and its neighbors? Are such historic rights claimed by China valid in international law? The present chapter attempts to answer these questions.
Historic rights in international law
In studying the issue of historic rights, one inevitably encounters two major difficulties: (1) this issue has never been thoroughly researched in international law; and (2) there are a number of legal terms in the historical context, such as “right”, “title”, and “consolidation”2 which may cause confusion. It is even more complicated when one tries to explore so-called historic rights in the maritime area, particularly when the term is used along with other related terms such as historic waters and historic bays. Despite all these difficulties, such studies are important as a contribution to the development of international law. Meanwhile, one thing has to be pointed out: whereas the term historic rights refers not only to maritime but also to land areas, the present chapter limits it, to a large extent, to the maritime domain without any prejudicial consideration of its application to the land domain.
The term historic rights is usually related to the acquisition of territory in international law. There is no established definition of the term under international law. However, some scholars have attempted to explain it in various ways. For example, according to Blum,
the term “historic rights” denotes the possession by a State, over certain land or maritime areas, of rights that would not normally accrue to it under the general rules of international law, such rights having been acquired by that State through a process of historical consolidation.3
Blum further explains that
historic rights are a product of a lengthy process comprising a long series of acts, omissions and patterns of behavior which, in their entirety, and through their cumulative effect, bring such rights into being and consolidate them into rights valid in international law.4
According to other scholars, the term historic rights is used to indicate “those rights which a state has acquired vis-à-vis one or more other states by effectively exercising those rights, with the acquiescence of the state or states concerned”.5 The second definition is simply identical with the definition of “historic waters” given below when it is used in the context of maritime zones. It can be seen, therefore, that the concept of historic rights has a close relationship with maritime zones from its emergence.
The evolution of the concept
The concept of historic rights originated in the maritime context, particularly relating to bays and gulfs. Historic bays are defined as “those bays over which a coastal nation has traditionally asserted and maintained dominion with the acquiescence of foreign nations”.6 They are one form of the historic waters. As Bouchez put it, “[h]istoric bays are a species of the genus of historic waters. In other words, historic waters are the category of which historic bays form a part”.7 Another definition is given by the Japanese delegation to the United Nations, where “the term ‘historic bays’ means those bays over which coastal State or States have effectively exercised sovereign rights continuously for a period of long standing, with explicit or implicit recognition of such practice by foreign States”.8 As Strohl explains, the reason why some bays are historic bays is “because the littoral States claiming title to them have been generally considered to enjoy the title through long, uninterrupted and peaceful possession, and sometimes by reason of some relatively ancient symbolic act of claim which has gone uncontested”.9 Despite several suggestions made by legal scholars, learned societies, and international organizations, the world community failed to come up with a workable definition of what an historic bay is,10 and therefore, “there is no definition of ‘historic bay’ in any of the LOS conventions”.11
Due to the fact that
historic rights are claimed not only in respect of bays, but also in respect of maritime areas which do not constitute bays, such as the waters of archipelago and the water area lying between an archipelago and the neighboring mainland; historic rights are also claimed in respect of straits, estuaries and other similar bodies,12
the new term historic waters is gradually emerging to embody, if not to replace, the term historic bays. Like the concept of historic bays, the concept of historic waters is not definitive in international law. A scholarly definition was offered by Bouchez:
[h]istoric waters are 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.13
In international judiciary practice, the ICJ offered a definition of historic waters in the Fisheries Case: “[b]y ‘historic waters’ are usually meant waters which are treated as internal waters but which would not have that character were it not for the existence of an historic title”.14 According to O’Connell, there are three types of waters that could be considered historic waters: (1) bays, claimed by states which are “greater in extent, or less in configuration”, than standard bays; (2) areas of “claimed waters linked to a coast by offshore features but which are not enclosed under the standard rules”; and (3) areas of claimed seas which “would, but for the claim, be high seas because not covered by any rules specially concerned with bays or delimitation of coastal waters” (maria clausa).15 Accordingly, the concept of historic waters is usually applicable to bays and gulfs. Once established as historic waters, the waters in question are then regarded as internal waters. There may be exceptions to this, for example, some historic waters claimed by states are not bays or gulfs, but open seas, and might not therefore be regarded as internal waters.
The United Nations International Law Commission (ILC) discussed the concept of historic waters in the 1950s, and in 1962 the UN Secretariat, upon the request of the ILC, prepared a study on the juridical regime of historic waters, including historic bays. The study examined the elements of title to historic waters, the issues of burden of proof, the legal status of waters regarded as historic waters, and the settlement of disputes. However, it did not give a conclusive concept of historic waters, nor criteria nor standards by which this concept could be applied.16 So the theoretical controversy over the concept of historic waters has not yet been resolved. Because of the controversial nature of this issue, the Third UN Conference on the Law of the Sea (UNCLOS III) simply dropped it from the agenda, leaving only a few tantalizing references in the 1982 United Nations Convention on the Law of the Sea (LOS Convention). Generally speaking, there should be three conditions needed to be fulfilled to sustain an historic waters claim: (1) the exercise of the coastal state authority over the area; (2) the continuity over time of this exercise of authority; and (3) the attitude of foreign states to the claim.17
The ILC study stated that it was a common perception that
the State which claims “historic waters” in effect claims a maritime area which, according to general international law, belongs to the high seas. As the high seas are res communis omnium and not res nullius, title to the area cannot be obtained by occupation. The acquisition by historic title is “adverse acquisition”, akin to acquisition by prescription; in other words, title to “historic waters” is obtained by a process through which the originally lawful owners, the community of states, are replaced by the coastal state. Title to “historic waters”, therefore, has its origin in an illegal situation which was subsequently validated. This validation could not take place by the mere passage of time; it must be consummated by the acquiescence of the rightful owners.18
Although the study admitted that the title to “historic waters” was a form of acquisition of territory by prescription, it suggested that it would be preferable not to refer to the concept of prescription in connection with the regime of historic waters.19 There are other criteria or elements contributing to the concept of historic rights, such as acquiescence by other states, notoriety of possession, the role of time and geographical factors, and proof of historic rights.20
In brief, the term historic rights is a generic concept; under it is the term historic waters, which in turn embodies the more specific concept of historic bays. It is interesting to note that in the evolution of the generic concept of historic rights, the term historic bays first appeared, then expanded into a larger concept of historic waters, and finally into the even larger concept of historic rights. However, if we regard the term historic title as the same as historic rights, then we should acknowledge that the term historic rights came first. In addition, we have to realize that the term historic rights is not equivalent to that of historic waters or historic bays, though the former may carry a broader meaning also covering historic waters and bays. The term historic rights also covers certain special rights without involving a claim of full sovereignty, such as historic fishing rights, which a state might have acquired in particular areas of the high seas.21 It is not clear whether such expansion is still underway in China’s practice through its inclusion of the term historic rights in its EEZ Law. The second point resulting from our observation is that all these terms above are often used interchangeably in maritime contexts.
UNCLOS III did not discuss the issue of historic rights or historic waters.22 However, a variant term of historic bay and/or historic title is mentioned in provisions of the LOS Convention relating to bays, delimitation of the territorial sea between states with opposite or adjacent coasts, and limitations and exceptions in the settlement of disputes. Article 10 (6) provides that “[t]he foregoing provisions [on bays] do not apply to so-called ‘historic’ bays”. Article 15 does not allow the median line to apply to special circumstances such as “by reason of historic title” for the delimitation of the territorial seas of the two states. The last provision in the LOS Convention which mentions the historic bays or titles is Article 298, which permits the contracting states to exclude the compulsory procedure provided for in the LOS Convention from applying to the disputes “involving historic bays or titles”. It is obvious that the LOS Convention deliberately avoids the issue of historic rights or historic waters, leaving it to be governed by customary international law as reaffirmed by its preamble.23 On the other hand, the Convention does have some bearing on the concept of historic waters in territorial seas or internal waters since it appears only in the sections on territorial sea regime and the settlement of disputes.
As shown above, the concept of historic rights has grown out of historic bays, so that most of the existing cases are related to bays and gulfs. A number of judicial awards support and elaborate the concept of historic waters. One historic claim was accepted in 1951 by the ICJ in the Norwegian Fisheries case.24 The issue before the court was whether the Norwegian method of delimiting territorial waters was valid on the basis of historic title, even if the method violated international law. After examining the past Norwegian practice, the court found that the Norwegian system of delimitation had been applied consistently and without interruption for some 60 years and that this practice had not been opposed by other states and instead tolerated by them. Based on these facts, the court ruled that the Norwegian system was not contrary to international law, thus upholding the validity of the Norwegian claim to historic title.25 The same court also accepted the Gulf of Fonseca as a historic bay and its waters as historic waters in the Gulf of Fonseca case in 1992.26
The general standards relating to historic waters are usually applicable for a bay or gulf owned by a single state. For the gulfs and bays owned by more than one country, however, it may be difficult to prove recognition of such areas as historic waters. The legal doctrine in this respect is rather amorphous. Oppenheim states that “as a rule, all gulfs and bays enclosed by the land of more than one littoral State, however narrow their entrance may be, are non-territorial. They are parts of open sea, the marginal belt inside the gulfs and bays excepted.”27 Blum shares this view and points out that historic bays lose that character when they become multinational.28 Few exceptions exist in state practice. The most notorious example is the Gulf of Fonseca situated in Central America, shared by Nicaragua, Honduras, and El Salvador.29 The significance of this case is that it has confirmed that a historic title to certain waters can be shared by more than one country. It has thus made a precedent in international law as well as in state practice.
In state practice, the concept of historic waters has been established as a criterion to determine the jurisdictional extent of coastal state waters. According to Churchill and Lowe, there are about 20 claims in the world to historic bays.30 Some historic waters are recognized within the international community without controversy, while others are of a controversial character and are subject to protest by other countries. For example, the former Soviet Union claimed the Peter the Great Bay as its historic bay, and the length of the bay’s closing line of 108nm;31 the claim was opposed by the Western countries led by the United States. However, China expressly recognized the claim in 1957 at a time of close Sino-Soviet solidarity.32 The most controversial example was set by Libya who claimed the Gulf of Sidra in 1974 as its historic bay with a closing line of 296nm in length. The claim was challenged by the Western countries, as well as the former Soviet Union, leading to a conflict between Libya and the United States.33 Finally, it is worth mentioning that since 1887 Tonga has maintained a historic waters claim which covers a rectangle of high seas areas around several groups of its islands. Tonga’s claim has been defended on the ground that “[h]istory might validate the claim to the rectangle, as an exception to the law relating to the high seas, but only as broadening of the area which could be claimed under the standard rules”.34 It is not clear whether Tonga’s claim has ever been challenged, since it is located in a relatively remote area.35
The case of most relevance to historic rights, rather than historic waters and historic bays, is that of Tunisia’s historical claims, which were evaluated in the 1980s by an Italian scholar.36 In addition to its historic claim to the Gulf of Tunis37 and the Gulf of Gabès,38 Tunisia also claimed historic rights beyond its territorial sea, particularly historic fishing rights. In reply to Libya’s objections to this claim, Tunisia stated that historic rights acquired in bygone ages could extend over areas of sea or seabed that would be characterized today as internal waters, territorial waters, a fishing zone, or an area of the continental shelf.39 But this view was contested by the arguments that
a state cannot claim a vast area of sea as internal waters on the sole basis of “historic rights” previously acquired for fishing purposes, unless it is possible to consider that those “historic rights” were in fact indicative of a right of full sovereignty.40