I. ON WHETHER THE CONVENTION IS EXHAUSTIVE OF RULES OF MARITIME RIGHTS

With regard to the scope of the Convention, the Tribunal holds that:

It further pronounces that “the Convention … comprehensively addresses the rights of other States within the areas of the EEZ and continental shelf and leaves no space for an assertion of historic rights”.Footnote ⁴

In making the above rulings, the Tribunal treats the Convention as the sole legal source of maritime rights, which aims to deny China’s historic rights under general international law, including customary international law.Footnote ⁵ Nevertheless, the Tribunal’s assertions and the reasoning behind them are groundless.

First, the Tribunal erroneously interprets the Preamble of the Convention. The settlement of “all issues relating to the law of the sea” and the establishment of “a legal order for the seas”, which the Tribunal cites from the Preamble of the Convention, merely reflect a “hope” of States Parties rather than the status quo. The Convention, significant as it is, is just one of the treaties in international law of the sea and does not address all issues relating to it. While often famed as the “constitution of the oceans”, the Convention is regarded by McDorman as “not exhaustive of the rights and jurisdiction that a State may have respecting waters and resources”.Footnote ⁶ Treves further holds that “in an area of international law dominated by a convention whose ambition is to function as ‘the constitution of the oceans’, customary law continues to play a relevant role”.Footnote ⁷ As an important part of customary international law of the sea, historic rights, including historic waters, are indispensable. O’Connell asserts that “the historic waters concept was seen as ‘necessary in order to maintain a State’s title to some areas of water which might escape the codification formula’”.Footnote ⁸

Second, the Convention itself recognizes the status of general international law. Its preambular paragraph 8 states that “matters not regulated by this Convention continue to be governed by the rules and principles of general international law”.Footnote ⁹ It indicates that both general international law, including customary international law, and the Convention are sources of maritime rights, and general international law continues to play a role in governing “matters not regulated by the Convention”. A number of provisions under the Convention also treat general international law as a source of maritime rights. According to Wood’s research, some forty provisions under the Convention have express reference to general international law.Footnote ¹⁰ Examples are Articles 2(3), 19, 22, 74, 83, 87(1), and 293. These provisions refer to terminologies that encompass general international law, such as “other rules of international law”, “Article 38 of the Statute of the International Court of Justice”, and “other rules of international law not incompatible with this Convention” when dealing with such issues as territorial sea, the delimitation of an EEZ and continental shelf, freedom of the high seas, and the applicable law in compulsory procedures. It is true that Paragraph 8 per se does not address the hierarchy of applicable rules where there is a conflict between the Convention and general international law. But it is apparent that in principle “matters not regulated by the Convention” should be governed by general international law, whether or not they are compatible with the Convention.

The above views have been supported by the practice of international judicial and arbitral bodies under the Convention. The International Tribunal for the Law of the Sea, when addressing “exhaustion of local remedies” under Article 295 of the Convention, held that “[t]he Tribunal must, therefore, refer to international law in order to ascertain the requirements for the application of this rule”.Footnote ¹¹ A similar view was held by the Tribunal constituted under Annex VII of the Convention.Footnote ¹²

General international law, including customary international law, continues to play a role, in parallel with the Convention, in the law of the sea. As Treves wrote, “not all law of the sea questions are regulated by UNCLOS, and not all States are Parties to UNCLOS”, and “among non-parties, and in relations between Parties and non-parties, customary rules apply”.Footnote ¹³ Therefore, historic rights, as a legal regime governing maritime areas, resources, and activities, are indispensable in the maintenance of the international order of the sea.

II. THE TRIBUNAL ERRS IN DEFINING THE RELATIONSHIP BETWEEN THE CONVENTION AND GENERAL INTERNATIONAL LAW

Having established the Convention as the sole basis for maritime rights, the Tribunal examines the relationship between the Convention and general international law. By reference to Articles 311 and 293 of the Convention and Article 30 of the Vienna Convention on the Law of Treaties [VCLT], the Tribunal draws the following four propositions:

1. (a) Where the Convention expressly permits or preserves other international agreements, Article 311(5) provides that such agreements shall remain unaffected …

2. (b) Where the Convention does not expressly permit or preserve a prior agreement, rule of customary international law, or historic right, such prior norms will not be incompatible with the Convention where their operation does not conflict with any provision of the Convention or that interpretation indicates that the Convention intended the prior agreements, rules, or rights to continue in operation.

3. (c) Where rights and obligations arising independently of the Convention are not incompatible with its provisions, their operation remain unaltered.

4. (d) Where independent rights and obligations have arisen prior to the entry into force of the Convention and are incompatible with its provisions … the Convention will prevail over the earlier, incompatible rights or obligations.Footnote ¹⁴

The Tribunal establishes two standards to address the relationship between the Convention and general international law. First, general international law shall remain unaffected where it is expressly or implicitly permitted by the Convention. Second, general international law shall remain unaffected where it is not incompatible with the Convention. The standards are not well founded in positive law.

Article 311 of the Convention, as its title and text clearly indicate, deals with the relationship between the Convention and “other conventions and international agreements”. This provision provides two situations where the Convention shall prevail and three exceptions to the priority of its application.Footnote ¹⁵ The two prevailing situations include its prevalence over the Geneva Conventions on the Law of the Sea of 1958 (Article 311(1)) and the prevalence of Article 136 of the Convention relating to the common heritage of mankind (Article 311(6)). However, the prevalence of the Convention does not mean the termination of other treaties. It follows that Article 311 of the Convention does not deal with the relationship between the Convention and general international law. Furthermore, the Convention does not prevail over, terminate, or replace general international law. Without any analysis, the Tribunal makes a straight conclusion 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”.Footnote ¹⁶ Based on the rule in Article 311 that “the Convention prevails over other conventions and international agreements”, the Tribunal erroneously infers that the Convention also prevails over general international law.

Article 30 of the VCLT,Footnote ¹⁷ entitled “application of successive treaties relating to the same subject matter”, deals with the relationship between treaties rather than that between treaties and general international law. Pemmaraju asserts that the Award “give[s] the provisions of [the Convention] hierarchically a status higher than the general or customary law … a status which is not evident from any of its provisions”.Footnote ¹⁸ Chircop takes the view that “there is nothing to suggest that [Article 311(2) of the Convention] extends to general international law”, and “[c]ustomary international law is a separate source of international law”. Furthermore, “there must be clear evidence that the treaty in question intended to abrogate the custom”.Footnote ¹⁹

The Tribunal also refers to Article 293 of the Convention, whereby a court or tribunal having jurisdiction “shall apply this Convention and other rules of international law not incompatible with this Convention”, to assert that rules of international law incompatible with the Convention are invalid. But Article 293 does not address the relationship between UNCLOS and other rules of general international law, including historic rights. Even assuming the above provision indicates the priority of applying the Convention, this application is conditional. First, this priority is only applicable after relevant courts or tribunals have established their jurisdiction. Second, this application does not mean the termination of rules of general international law that are incompatible with the Convention. Therefore, the prioritized application of the Convention and the termination of other rules of international law are different issues. Although “[i]t is universally accepted that—consideration of jus cogens apart—a treaty as lex specialis is law between the parties to it in derogation of the general customary law which would otherwise have governed their relations”,Footnote ²⁰ it does not mean that rules of general international law are abolished. As the International Court of Justice [ICJ] held in the Nicaragua case, “customary international law continues to exist and to apply, separately from international treaty law, even where the two categories of law have an identical content”.Footnote ²¹

Preambular paragraph 8 of the Convention provides some guidance on dealing with the relationship between the Convention and general international law. This expression was borrowed from preambular paragraph 8 of the VCLT.Footnote ²² Regarding the interpretation of this paragraph, it is held that “[t]he 8th recital cannot be taken as evidence for a hierarchical structure between the different sources of treaty law, e.g. by giving the Convention superiority over customary treaty law”.Footnote ²³ The above interpretation, which applies to the relationship between the VCLT and customary treaty law, applies to the relationship between general international law and the Convention by inference.

The Convention does not explicitly regulate the relationship between the Convention and general international law, and there are no uniform rules on this in positive law. In practice, the relationship between the Convention and general international law has been avoided in international instruments and is regulated by customary international law and general principles of law. The International Law Commission concluded that conflicts between customary international law and treaties should be resolved in accordance with such principles as lex specialis derogat lege generali, lex posterior derogat lege priori, and jus cogens.Footnote ²⁴

III. HISTORIC RIGHTS UNDER GENERAL INTERNATIONAL LAW WERE NOT SUPERSEDED BY REGIMES OF THE CONVENTION ON THE EEZ AND CONTINENTAL SHELF

The Tribunal considers the historic rights that China claims over the living and non-living resources in the South China Sea as exclusive rights but short of sovereignty. It is also inferred that China’s claim of historic rights extends to the EEZ and continental shelf of the Philippines. The Philippines’ Submissions No. 1 and 2 are thus addressed in the light of the provisions of the Convention regarding the EEZ and continental shelf. The Tribunal takes the view that:

With regard to sovereign rights over the continental shelf, the Tribunal considers that the provisions of the Convention are “even more explicit that rights to the living and non-living resources pertain to the coastal State exclusively”.Footnote ²⁶ It is thus concluded that with the entry into force of the Convention, “any historic rights that a State may once have had to living and non-living resources in the areas now form part of the exclusive economic zone and continental shelf of another State” were superseded by its regimes of the EEZ and continental shelf.Footnote ²⁷ The Tribunal’s views above are groundless in fact and law.

First, the Tribunal fails to draw a distinction between two separate legal regimes in the application of law. Historic rights in maritime areas, which are regulated by rules of general international law, may overlap with sovereign rights of the EEZ and continental shelf under the Convention. It relates to the relationship between general international law and the Convention, which are two distinct legal regimes, rather than an issue of incompatibility between different rules on the same subject matter under the Convention. When examining historic rights, which are regulated by general international law, the Tribunal erroneously applies provisions of the EEZ and continental shelf in the Convention. As a matter of fact, the Convention does not eliminate any previously established regimes, since “no explicit provision was included to this effect”.Footnote ²⁸ Neither the Convention nor the travaux preparatoires indicates that “States intended or were willing to generally waive any preestablished historic rights”.Footnote ²⁹ During UNCLOS III, it was recognized by some states that the establishment of coastal states’ exclusive rights in the EEZ and continental shelf is bound to conflict with historic rights of other states.Footnote ³⁰ During the preliminary discussions, it was proposed by the former Yugoslavia, Sierra Leone, and Mexico that the potential conflict should be addressed by regional regimes and bilateral treaties.Footnote ³¹ The relationship between exclusive rights in the EEZ and continental shelf and historic rights was not discussed in depth and no agreement was reached. With respect to the continental shelf, although the ICJ held in the Tunisia/Libya case that the regime of the continental shelf is based on the existence of rights “ipso facto and ab initio”,Footnote ³² it did not say historic rights cannot play a role in the delimitation of the continental shelf.Footnote ³³ One of the judges explicitly argued that a legal concept such as the the continental shelf “cannot by itself have the effect of abolishing or denying acquired or existing rights”.Footnote ³⁴

Second, the Tribunal errs in the identification of fact. Without identifying the coastal state of entitlements to relevant maritime areas, the Tribunal identifies the relevant maritime areas as part of the Philippines’ EEZ. Its finding, based on this false assumption, that the historic rights that China claims are rights falling short of full sovereignty to living and non-living resources is inaccurate. There is no evidence showing that in the South China Sea, China only claims historic rights to natural resources, or that China’s claim is limited to the areas within 200 nautical miles [M] provided under the Convention. The rights and obligations of the EEZ and continental shelf under the Convention and historic rights that China claims in the South China Sea are regulated by different sources of international law. There are fundamental differences between them in terms of substance, nature, and applicable maritime areas. Therefore, historic rights shall not be considered to be superseded by rules of the EEZ and continental shelf.

IV. HISTORIC RIGHTS ARE WELL ESTABLISHED IN GENERAL INTERNATIONAL LAW

Based on the above findings that the Convention is the sole source of maritime rights, that the Convention prevails over general international law incompatible with its provisions, and that the historic rights to living and non-living resources were superseded by the regimes of the EEZ and continental shelf in the Convention, the Tribunal denies the existence of historic rights in general international law.

The Convention only explicitly refers to “historic bays” and “historic titles”; some of its provisions, such as Articles 7(5) and 46(b), also involve historic elements. It does not include, however, detailed rules on the above terms, nor does it mention historic rights or historic waters. That historic rights are not regulated by the Convention is also supported by the fact that there was no discussion on the general question of historic rights during UNCLOS III. The issue of historic waters was raised and discussed, but no consensus was reached. During the UNCLOS III, “Historic Waters” was listed as a sub-item under Item 2 “Territorial Sea”, which was allocated to the Second Committee. In relevant debate, several formal proposals were made by countries including the Philippines and Indonesia. But unfortunately, no further discussion of historic waters took place in the formal meetings of the Second Committee.Footnote ³⁵ These two issues, as well as those mentioned in the Convention without detailed regulations, are “matters not regulated by this Convention”, and shall continue to be governed by general international law, pursuant to the Preamble of the Convention. As found by the ICJ, “[n]or does the draft convention of the Third Conference on the Law of the Sea contain any detailed provisions on the ‘régime’ of historic waters: there is neither a definition of the concept nor an elaboration of the judicial régime 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. It seems clear that the matter continues to be governed by general international law …”, “the notion of historic rights or waters … are governed by distinct legal regimes in customary international law”, and “[h]istoric titles must enjoy respect and be preserved as they have always been by long usage”.Footnote ³⁶

There are no provisions in UNCLOS which explicitly refer to historic rights. Instead, there are references to “historic bays” and “historic title” in Article 10(6), Article 15, and Article 298(1)(a). In general international law, “historic rights”, “historic waters”, and “historic titles” are closely related terms. As indicated by international practice, rules of historic rights have been evolving constantly and have not given rise to a uniform regime. The ICJ points out that “[general international law] does not provide for a single ‘régime’ for ‘historic waters’ or ‘historic bays’, but only for a particular régime for each of the concrete, recognized cases of ‘historic waters’ or ‘historic bays’”.Footnote ³⁷

“Historic rights” is a framework term which has been supported by international jurisprudence and state practice.Footnote ³⁸ It could provide a legal source for maritime rights; it could also be a class of concrete maritime rights. As far as concrete maritime rights are concerned, historic rights can be divided into three categories. The first category is historic titles regarding territorial sovereignty, such as “historic bays” and “historic waters”. The Convention, in its Articles 10 and 15, preserves historic bays and historic title in the territorial sea.Footnote ³⁹ Such rights are exclusive and concern sovereignty and jurisdiction over land and maritime areas.Footnote ⁴⁰ Historic titles are of two kinds: one is “ancient title” or original title, a title that has so long been established by common repute that this common knowledge is itself a sufficient title; the other is historic consolidation of title or prescriptive title, a title that has been created, or consolidated, by a process of prescription, or acquiescence, or by possession so long continued as to have become accepted by the law as a title.Footnote ⁴¹ The second category is “exclusive historic rights”,Footnote ⁴² regarding sovereign rights. It primarily includes sovereign rights and jurisdiction over resources and activities, and is regarded as having “a quasi-territorial or zonal impact beyond the territorial sea”.Footnote ⁴³ The third category is “non-exclusive historic rights”,Footnote ⁴⁴ such as historic fishing rights in the high seas. The latter two categories are thought to be “historic rights short of sovereignty”.Footnote ⁴⁵

In the present case, the Tribunal makes a distinction between historic title and historic rights, and defines historic title as “[being] used specifically to refer to historic sovereignty to land or maritime areas”.Footnote ⁴⁶ But it limits “historic titles” in Article 298(1)(a) to “claims of sovereignty over maritime areas derived from historical circumstances”,Footnote ⁴⁷ without any reasoning. Unlike the singular form of the term “historic title” appearing in Article 15, Article 298 uses the plural form of “historic titles”, which indicates that “historic titles” are not limited to those in the territorial sea, but may also include historic titles and exclusive historic rights in areas beyond territorial sea. McDorman takes the view that “[h]istoric title in Article 298, which is a permissible basis for a State to exempt itself from compulsory dispute settlement, must have a broader meaning than the term historic title in Article 15 …”.Footnote ⁴⁸

The formation of historic rights depends on the long-term exercise of authority, in particular long-term occupation and use. Historic rights are “rationalized and justified on a unique set of historical circumstances”.Footnote ⁴⁹ It has been widely accepted among international lawyers that the formation of historic rights, similar to the formation of title to historic waters,Footnote ⁵⁰ requires continuous exercise of the right by the claiming state and recognition or acquiescence on the part of other affected states. These two elements, however, do not exhaust all circumstances of the formation of historic rights. As a matter of fact, the formation, apart from acquisitive prescription, may also take the form of original titles based on occupation. Historic rights are acquired by the process of historic consolidation, the core of which is long usage. In the Continental Shelf (Tunisia/Libya) case, the ICJ ruled that “[i]t is clearly the case that, basically, the notion of historic rights or waters (and that of continental shelf) are governed by distinct legal régimes in customary international law. The first régime is based on acquisition and occupation, (while the second is based on the existence of rights ‘ipso facto and ab initio’).”Footnote ⁵¹ As Blum asserts, the term “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”.Footnote ⁵² Consolidation differs from occupation which applies to res nullius, and from presciption which applies to territory subject to the sovereignty of another state. As Charles De Visscher distinguished it from similar concepts, consolidation can apply to territories that could not be proved to have belonged formerly to another state, can be admitted in relation to certain parts of the sea as well as on land, and can be held to be accomplished by a sufficiently prolonged absence of opposition.Footnote ⁵³

It is important to note that claims to historic rights have to be examined in the light of the law in existence at the time the claims were made—i.e. “intertemporal law”, which is a long-established rule of customary international law and a general principle of law—rather than rules established thereafter. In the Island of Palmas case, Judge Huber declared that “a judicial fact must be appreciated in the light of the law contemporary with it, and not of the law in force at the time when the dispute in regard to it arises or falls to be settled”.Footnote ⁵⁴ In a similar vein, a claim of maritime rights must be examined in the light of the law in existence at the time the claim was made, rather than rules of the law of the sea established thereafter. Therefore, to decide upon the acquisition of historic rights in the South China Sea, one should apply the law in effect when the rights were claimed.

The maritime areas in which historic rights can be claimed are not limited to, as the Tribunal holds, “historic waters” in the territorial sea and internal waters of coastal states.Footnote ⁵⁵ As a matter of fact, states are entitled to claim historic rights in maritime areas within their sovereign rights and jurisdiction, and even the high seas, or maritime areas within other states’ jurisdictions. The geographical scope depends on international practice, and there is no uniform rule on this matter. The Secretariat of the United Nations pointed out that historic rights or historic titles are claimed not only in respect of bays, but also in respect of maritime areas that do not constitute bays, such as the waters of archipelagoes, the water area lying between an archipelago and the neighouring mainland, straits, and all those waters which can be included in the maritime domain of a state.Footnote ⁵⁶ It is the claiming state that decides the scope of historic rights. For instance, Sri Lanka defines the limits of its historic waters in its Maritime Zones Law of 1976 and Presidential Proclaimation of 1976. Section 9(2) of the Law provides that “[t]he Republic of Sri Lanka shall exercise sovereignty, exclusive jurisdiction and control in and over the historic waters, as well as in and over the islands and the continental shelf and the seabed and subsoil thereof within such historic waters”.Footnote ⁵⁷ It appears that Sri Lanka takes its historic waters at the Gulf of Mannar as part of its territorial waters, but it apparently extends beyond 12 M measured from the baselines. Sri Lanka and India reached an agreement on the limits of the above historic waters that the former claims.Footnote ⁵⁸

Leading publists also hold that historic rights and historic waters in geographical scope may go beyond the internal waters and territorial sea. Gidel observed that certain states have claimed as part of their maritime domain waters which under the generally accepted rules applicable in principle to such areas would have had to be considered as part of the high seas, and that such claims have often been recognized by other states.Footnote ⁵⁹ Gioia opines that “there is in principle no reason why a historic title could not be invoked in order to acquire sovereignty over a wider belt of territorial sea, or even special sovereign rights falling short of full territorial sovereignty beyond the territorial sea”.Footnote ⁶⁰ McDorman also comments that “UNCLOS is not exhaustive of the rights of jurisdiction that a State may have respecting waters and resources”, and “there is flexibility in the rights exercisable by a State that successfully maintains a claim to historic waters”.Footnote ⁶¹ According to Professor O’Connell, the following three categories of seaward areas have been claimed as historic waters: (1) bays which are greater than standard bays provided for in Article 10 of UNCLOS; (2) areas of waters linked to a coast by an offshore feature but which are not enclosed under the standard rules; and (3) areas of seas which would, but for the claim, be high seas because they are not covered by any rules especially concerned with bays or the delimitation of coastal waters.Footnote ⁶² It is obvious that the above three categories of areas, in their geographical scope, are all beyond internal waters and territorial sea under UNCLOS.

The current practice and doctrines of international law indicate that historic titles to maritime spaces and other historic rights exist in different parts of the sea. As the development of state practice, one can anticipate that the historic titles and other historic rights in general international law will be enriched and further developed, keeping pace with the times.