The Legal Dimension
Edited by S. Jayakumar, Tommy Koh, Robert Beckman, Tara Davenport and Hao D. Phan
Chapter 5: Historic rights in the light of the Award in the South China Sea Arbitration: what remains of the doctrine now?
The decision of the Arbitral Tribunal in Philippines v China on the issue of historic rights has clarified the formerly vague and interchangeable terminology in international customary law relating to maritime historic claims: showing that the term ‘historic rights’ has a broad meaning but also narrower ones relating to sovereign or non-sovereign historic rights (such as historic fishing rights). More specifically, the term ‘historic title(s)’ (used twice in UNCLOS) signifies a historic claim to sovereignty rights to near-shore areas only as in Article 298 and essentially takes in only historic waters claims as in Article 10(6)—which doctrine consequently remains unaffected by the UNCLOS regime. The Arbitral Tribunal also stressed the dominance and comprehensiveness of UNCLOS in this regard, and in so doing clarified the inter-relationship of the doctrine of historic rights with a supposedly ‘comprehensive’ UNCLOS regime. Thus the Tribunal has shown clearly that past historic non-sovereign rights claims, even insofar as they were allegedly ‘exceptional’, are now effectively legally otiose and, indeed, superseded, if they lie within the EEZ/continental shelf area of another state.
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