Dr. Nong Hong Vang Tau City, November 24, 2015

Transcription

1 Dr. Nong Hong Vang Tau City, November 24, 2015

2 Historic Concepts vs. New Maritime Regimes * Historical demands * Modern demands (EEZ, CS, the islands regimes) Debate: Historic doctrine: still relevant in contemporary international law? 2

3 Definition * Article 10 (historic bays), Article 15 (historic titles), Article 298 1(a) * Historic water : 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 (Bouchez, 2008) * Historic right:a State claiming to exercise certain jurisdictional rights in what usually basically satisfy the same, or at least similar, supposed requirements for establishing historic waters claims per se, particularly those of continuous and long usage with the acquiescence of relevant other States (Y. Blum, 2008 ) * Difference: * 1/ claimed historic waters must necessarily be adjacent to the claimant State * 2/ Historic right, broader than historic waters, do not amount to zonal claims of jurisdiction or sovereignty. (merely respected rights by long usage. )

4 Historic concepts and maritime delimitation * The delimitation of the territorial sea specifically requires an adjustment of the median line where it is necessary to take account of historic title or other special circumstances (Article 15) * Historic rights were recognized in the determination of maritime boundaries by third parties in Grisbadarna and Anglo-Norwegian Fisheries * historic rights, even if considered irrelevant to delimitation issues, may still be independently taken into account by special agreement as to access (Barbados/Trinidad & Tobago Arbitration )

5 Historic concepts related dispute settlement under UNCLOS * Compulsory dispute settlement under Section 2 in Part XV of UNCLOS is available for States for disputes relating to the delimitation of the territorial sea, EEZ, continental shelf, and to historic title unless States have opted to exclude these disputes (virtue of Article 298 (1) (a) * Competing claims over the existence and opposability of historic title cannot easily be resolved under the terms of UNCLOS. * Specificity on the standard to be applied in determining claims to historic title was avoided in UNCLOS for similar reasons as maritime delimitation.

6 Historic doctrine: still relevant in contemporary international law? * Longstanding practice evidenced by a strong historic presence should not be disturbed. Judicial bodies are ill-advised to disregard a situation that has been peacefully accepted over a long period of time. ( Fentress, 1985) * it is arguable that historic rights should be admitted in a more restricted fashion now that coastal states have much broader entitlements to maritime jurisdiction (Klein, 2005) * States might be inclined to challenge declarations of historic title in certain areas if such a declaration impinges on inclusive uses of that region. * Alternatively, a challenge may arise in a bilateral delimitation where the historic claim has the effect of enlarging the entitlement of States with an adjacent or opposite coast.

7 China s historic claim in the SCS * The prevailing basis for China s historic claims to the SCS is the U- shaped line officially drawn on the Chinese map in 1947 by the then Chinese Nationalist Government. * The Taiwan authorities gave the status of historic water to the water areas within the U-shaped line in 1993 when it issued the SCS Policy Guidelines * 1998 China s EEZ Law

8 Historic concepts vs. new maritime regimes in the SCS * In China s view, a claim derived from historic rights may seem more forceful and valid in law than claims simply based upon the EEZ concept. * since there are no definitive rules in international law which govern the status of maritime historic rights, China s claim is not a violation of international law. Similarly, since there are no such rules, it is doubtful whether China s claim could be established in international law * whether the doctrine of historic bays and historic waters had become obsolete with the development of new, alternative concepts of national maritime expansion such as the EEZ and the continental shelf.

9 What, is the best way to view past claims? ² When International law encounters national interest ² Balanced ² Non-exclusive