Validity of International Law over Historic Rights: The Arbitral Award (Merits) on the South China Sea Dispute

Validity of International Law over Historic Rights:
The Arbitral Award (Merits) on the South China Sea Dispute*
Atsuko Kanehara**

Abstract
This article examines validity of international law, UNCLOS, over historic rights, particularly
focusing upon the Award on the South China Sea dispute.
The arbitral tibunal found that Chinaʼs historic rights are contrary to UNCLOS by mainly
emphasizing “comprehensiveness” of UNCLOS. This logic adopted by the arbitral tribunal
seems different from the two kinds of logics that are to be applied to historic waters: first,
to establish a general rule in permitting exceptions to it; and second, to deny a generalrule due to varieties of international practices. As a third logic, in the 1951 Fishery Case,
ICJ demonstrated logic that the Norwegian straight baseline method is an application of ageneral rule. By doing so, ICJ kept the sphere of legal regulation of a general rule over the
Norwegian specific case.
For Chinaʼs historic rights the arbitral tribunal did not adopt any of these kinds of logics.
The tribunalʼs logic is critically analysed from the perspective of ensuring regulation ofinternational law, UNCLOS, over those claims challenging against its regulation, such asclaims to historic waters and historic rights.
From the same perspective, namely, keeping the sphere of international regulation overchallenging phenomena, several findings in the Award are also considered. Since judicial
and arbitral procedures that interpret and apply international law have close relation tomaintenance of legal regulation of international law, particularly the tribunalʼs findings
concerning its jurisdiction are also examined.

1. IntroductionO(1) Purpose of this Article

n the 12th of July, 2016, the arbitral tribunal (tribunal) rendered its award (Award)1
on the merits concerning the South China Sea dispute2 between the Philippines andChina. The Award mainly dealt with three points: first, legal effect of the so-called
nine-dash line3 of China under international law; second, legal statuses of maritime
features; and third, legal evaluations of Chinese activities, such as fishing, marine pollution, andlaw enforcement in a dangerous manner.
This paper will focus upon the first point. This is because it touches upon the fundamental*

This article was originally published on Jochi Hogaku Ronshu (Sophia Law Review), Vol.61, No.1-2,
2017, pp. 27-76.

** Atsuko Kanehara is a Professor at Sophia University, Faculty of Law.
1
The South China Sea Arbitration (The Republic of Philippines v. The Republic of China), Award of 12
July 2016, https://pca-cpa.org/wp-content/uploads/sites/175/2016/07/PH-CN- 20160712-Award.pdf.
All URLs cited in this paper were last accessed on the 15th May, 2017.
2

In accordance with the case name defined by the tribunal, in this paper the dispute is referred to as theSouth China Sea dispute.

3

In the South China Sea, China has drawn a non-consecutive line that consists of nine dots. Within the

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issue of what logic international law may apply in order to encompass maritime phenomena
within its legal scope and in order to ensure its regulation over them. This paper will address thisfundamental issue and call it an issue of validity of international law.
To clearly explain this purpose it is useful to confirm the formulations of the dispute or
subjects of disputes both by the two party States and by the tribunal.

(2) The Formulations of the Dispute both by Party States and by the Tribunal① Regarding a party State, the submission No. 2 of the Philippines reads:
Chinaʼs claims to sovereign rights and jurisdiction, and to ʻhistoric rights” with respect tothe maritime areas of the South China Sea encompassed by the so called “nine dash line”
are contrary to the Convention and without lawful effect to the extent that they exceed
the geographic and substantive limits of Chinaʼ s entitlements expressly permitted by
UNCLOS; (the Award, 169. The numbers refer to the paragraphs and pages of the awards
and the judgments cited there, unless otherwise indicated.)4
In comparison, as China did not formally participate in the arbitral procedure, any formal
submissions were not provided on Chinese side.5 The Chinese Note Verbale dated at the 14th ofApril, 2011 states that:
China ʼ s sovereignty and related rights and jurisdiction in the South China Sea aresupported by abundant historical and legal evidence.6
In addition, the Award cited the Chinese statement dated at the 30thof October, 2015, which
maintains that:
Chinaʼ s sovereignty and relevant rights in the South China Sea, formed in the long
historical course, are upheld by successive Chinese governments, reaffirmed by Chinaʼsline, China has claimed rights over waters and seabed. It is called nine-dash line, nine-dotted line, andU-shaped line. In this paper it is referred to as nine-dash line. Domestically, China in 1948 issued an
official map on which the nine (precisely, eleven)-dash line was drawn. Internationally it was not until
China submitted to the Secretary General of the United Nations its Note Verbale dated at the 7th of May,
2009, in order to protest the joint submission by Viet Nam and Malaysia to the Commission of Limits ofContinental Shelf in the same year, that China officially published the nine-dash line. CML/ 17/ 2009,
CML/ 18/ 2009. The Note Verbales and the joint submission are available at http://www.un.org/depts/
los/clcs_new/submissions_files/submission_mysvnm_33_2009.htm. There are many scholarly writings
regarding the historical background of the nine-dash line. As a detailed survey, for instance, see, Zhiguo
Gao and Bing Bing Jia, “The Nine-Dash Line in the South China Sea: History, Status, and Implications,”
The American Journal of International Law, Vol. 107, 2013, pp. 100-108; Li Jinming and Li Dexia, “The
Dotted Line on the Chinese Map of the South China Sea: A Note,” Ocean Development & InternationalLaw, Vol. 34, pp. 287-290.
4

The Submission No. 1 of the Philippines reads:
Chinaʼs maritime entitlements in the South China Sea, like those of the Philippines, may not extend
beyond those expressly permitted by the United Nations Convention on the Law of the Sea.

5

While the foreign ministry of China issued its Position Paper on the 7th of December, 2014, which
denied the jurisdiction of the tribunal, it did not formulate Chinese claims to rights and jurisdiction,and the subjects of the dispute. The Position Paper is available at http://www.fmprc.gov.cn/mfa_eng/
zxxx_662805/t1217147.shtml.

6

The Philippines protested the Chinaʼs claim over the South China Sea on the 5th of April, 2011, in theNote Verbal No. 000228. In response, China issued Note Verbale which reads:
China has indisputable sovereignty over the islands in the South China Sea and the adjacent waters,
and enjoys sovereign rights and jurisdiction over the relevant waters as well as the seabed andsubsoil thereof. Chinaʼs sovereignty and related rights and jurisdiction in the South China Sea aresupported by abundant historical and legal evidence. (CML/ 8/ 2011)
These Note Verbales are available at the URL cited in supra note 3.

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Validity of International Law over Historic Rights: The Arbitral Award (Merits) on the South China Sea Disputedomestic laws,7 on many occasions, and protected under international law including theUnited Nations Convention on the Law of the Sea (187).8
As another statement of China, on 12th of May, 2016, it states that[T]he dotted line came into existence much earlier than the UNCLOS, which does notcover all aspects of the law of the sea. No matter from which lens we look at this, theTribunal does not have jurisdiction over Chinaʼs dotted line (200).9
Furthermore, interestingly, Chinaʼs rights are evaluated as “sovereignty + UNCLOS + historicrights.10
Among Chinese scholars, some argue that Chinaʼs claims to historic rights are based uponinternational law.11 According to them, for instance, Chinaʼs claim to historic rights supplements
its claims to rights under the United Nations Convention on the Law of the Sea (UNCLOS).12 Also
some argue that while historic rights may take various forms depending on the contexts, suchas delimitation of exclusive economic zones (EEZ) and continental shelf, distribution of fisheryresources, international maritime navigation, marine environmental protection, utilization ofmineral resources, and so on, the concept of historic rights is recognized by international law, and7

The relevant domestic laws of China include Article 14 of the Exclusive Zone and Continental Shelf
Act (26 June 1998) (available at www.npc.gov.cn/english/Law/2007-12/11/content_ 1383573.htm),
and Article 2 of the revised Law on Marine Environmental Protection (25 December 1999), cited by
Keyuan Zou, “Implementing Marine Environmental Protection Law in China: Progress, Problems andProspects,” Marine Policy, Vol. 23, No. 3, 1999, p. 211. The latter was further amended in 2014.

8

In the Chinese Note Verbale of the 7th of May, 2009, cited above (supra n. 3) it states that:
China has indisputable sovereignty over islands in the South China Sea and the adjacent waters, andenjoys sovereign rights and jurisdiction over the relevant waters as well as the seabed and subsoil
thereof, and that the above position is consistently held by the Chinese government, and is widely
known by the international community.
See also, the Chinese Note Verbale of the 14th of April, 2011, cited above (supra n. 6). As an analysis of
the Chinese Note Verbales and claims of other States including Indonesia and Malaysia, see, NguyenDang Thang and Nguyen Hong Thao, “Chinaʼs Nine Dotted Lines in the South China Sea: The 2011
Exchange of Diplomatic Note Between the Philippines and China,” Ocean Development & InternationalLaw, Vol. 43, 2012, p. 35 et seq. A scholar points out that while the Chinese Note Verbale in 2009 does not
mention the historical basis for the Chinese claims over the South China Sea, the Chinese Note Verbale
in 2011 does. Melda Malek, “A Legal Assessment of Chinaʼ s Historic Claims in the South China Sea,”
Australian Journal of Maritime and Ocean Affairs, Vol. 5, (1), 2013, pp. 28-29.

9The concept of “comprehensiveness” or “exclusiveness” emphasized by the tribunal is understood as
responding to such Chinaʼs claim. That will be examined later.

10

The President of the National Institute for South China Sea Studies, a Chinese Think Tank, specificallyfocusing on the South China Sea issues, expressed his view that reads:
The nine-dash line “…is based on the theory of ʻsovereignty + UNCLOS + historic rights.ʼ According
to this theory, China enjoys sovereignty over all the features within this line, and enjoys sovereign
right and jurisdiction, defined by the UNCLOS, for instance, EEZ and continental shelf…In addition
to that China enjoys certain historic rights within this line, such as fishing rights, navigation rights
and priority rights of resource development.”
Cited by Zou Keyuan, “China and the South China Sea Conundrum: Any Prospective Solution in
Future?”, German Yearbook of International Law, Vol. 56, 2013, p. 16, footnote 14.

11

Gao and Jia, op. cit., supra n. 3, p. 98.

12

Ibid., p. 99. In addition, it is opined that since historic rights are recognized by international law, Chinaʼsclaim to rights in the South China Sea is based upon UNCLOS. It further argues that the claims tohistoric rights as being an exception to UNCLOS, as general international law, supplement the claims torights recognized by it. Keyuan Zou and Xinchang Liu, “The U-Shaped Line and Historic Rights in thePhilippines v. China Arbitration Case,” in Shicun Wu and Keyuan Zou eds., Arbitration Concerning theSouth China Sea-Philippines versus China, Routledge, 2016, pp. 138, 142-143.

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thus, UNCLOS may not deny historic rights.13
Considering the dispute was entertained by the dispute settlement procedure establishedunder UNCLOS,14 it was totally natural and understandable that the Philippines formulated its
submissions pursuant to it.15 On Chinese side, in some occasions it is maintained that Chinaʼsrights are based upon history.16 If a right can be established by history, an existence of such aright not based upon law would be a serious challenge against international law. However, many
Chinese statements and scholarly writings seek the ground for Chinaʼs claims to historic rights
in UNCLOS or customary international law or general international law. Thus, Chinese positionis understood that although China ʼs rights have formed themselves in a historical process,customary international law or general international law recognizes these rights. In this sense, itdoes not take a challenging position against international law as that history surpasses law.
Compared to these positions of party States to the dispute, how did the tribunal formulate thedispute or the subjects of the dispute?
② Concerning the characterization of this dispute, the award on jurisdiction and admissibility(Award on Jurisdiction)17 reads:[A] dispute concerning the interaction of the Convention (UNCLOS, by the author) withanother instrument or body of law, including the question of whether rights arising underanother body of law were or were not preserved by the Convention, is unequivocally a
dispute concerning the interpretation and application of the Convention (emphasis added)(168).18
13

Ibid., pp. 138-139.

14

The arbitral tribunal was established under Annex VII of UNCLOS.

15Regarding the fact that the Philippines intended to resolve the dispute by the dispute settlement
procedure under UNCLOS, it is pointed out that such a procedure may not be successful, as the
problems concerning the South China Sea include various issues, such as territorial sovereignty,
maritime delimitation, international maritime navigation, maritime security, marine biological diversity,
exploitation of mineral resources. Zou and Liu, op. cit., supra n. 12, pp. 130-131. More specifically, it
is opined that considering the Chinese Note Verbale of the14th of April, 2011 (supra n. 6), basically
Chinaʼs claims on the South China Sea are grounded on the provisions concerning the territorial sea,
the exclusive economic zone and continental shelf under UNCLOS, rather than historic rights derivingfrom the nine-dash line. Therefore, it is said that the Philippines mistakenly attributed all the Chinaʼsclaims to the nine-dash line, and that it distorted the legal nature and status of the line. Ibid., p. 143.
As an analysis from a wider perspective of dispute management in the South China Sea, Ngyuen Hong
Thao and Ramses Amer, “A New Legal Arrangement for the South China Sea?” Ocean Development& International Law, Vol. 40, p. 333 et seq. It states that although Southeast Asia is known as a region
with tradition of non-adjudication, this tradition has undergone important changes. The International
Court of Justice has recently dealt with two sovereignty disputes over islands between Southeast Asian
countries: the dispute over Pulau Ligitan and Pulau Sipadan between Indonesia and Malaysia (Judgementof 17 December 2002); and the dispute over Pedra Branca/ Pulau Batu Puteh, Middle Rocks and South
Ledge between Malaysia and Singapore (Judgment of 23 May 2008). Ibid., p. 341. The significance of theresolution of the South China Sea dispute by the tribunal needs to be assessed from such a perspective,
which is beyond the purpose of this paper.

16

As an opinion that Chinaʼs claims to rights in the South China Sea are based not only on UNCLOS but
also on history, see, Robert Beckman, “The UN Convention on the Law of the Sea and the Maritime
Disputes in the South China Sea,” American Journal of International Law, Vo. 107, 2013, p. 153.

17

The South China Sea Arbitration (The Republic of Philippines v. The Republic of China), Award on
Jurisdiction and Admissibility, 29 October 2016, http: //www. pcacases.com/web/sendAttach/1506.

18

Such an understanding itself of a dispute concerning the interpretation and application of UNCLOS
reflects an idea of how judicial or arbitral organs ensure their function of dispute resolution so that it
relates to the question of how and to what extent international law realizes its regulation. Regarding
the meaning of “a dispute concerning interpretation or application of law,” see, Atsuko Kanehara,

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Validity of International Law over Historic Rights: The Arbitral Award (Merits) on the South China Sea Dispute

The Award similarly reads:
The Tribunal is faced with the question of whether the Convention (UNCLOS, by theauthor) allows the preser vation of rights to resources which are at variance with theConvention and established anterior to its entry into force. To answer this, it is necessary
to examine the relationship between the Convention and other possible sources of rights
under international law (emphasis added) (235).
By looking at these formulations of this dispute from a viewpoint of grounds for Chinaʼs claims
to rights in the South China Sea, the tribunal defined the grounds as “another instrument orbody of law” and “other possible sources of rights under international law.” Thus, while “another
instrument” may differently imply, it is understood that the tribunal sought within law for the
ground for Chinaʼs claims to rights in the South China Sea.

(3) The Issue of Validity of International Law in this Dispute
The Philippines argued that any rights that China may have had in the maritime areas of theSouth China Sea beyond those provided for in UNCOS were extinguished by Chinaʼs accession
to UNCLOS (188). In responding to this argument, as a conclusion, the tribunal denied the rights
claimed by China, since they were superseded by those under UNCLOS.
What characteristics may be found in this logic of the tribunal? Was it the only applicable logic
in determining the subjects of the dispute? Considering the discussion relating to historic waters
and historic rights, and from a perspective of “elastic” interaction between UNCLOS and another“body of law,” what evaluation is given to the Award?
These are questions of validity of international law or ensuring international regulation
over any phenomena taking place on the sea. The Award applied UNCLOS solely between theparty States to the dispute, the Philippines and China. Therefore, the analysis of this paper on
the validity of UNCLOS will be conducted on the assumption of relation between party States
to it. This paper does not intend to examine issues of a legal effect of the nine-dash line underinternational law and requirements for historic rights to be established under international law assuch.19 It will somehow touch upon them and the logic in the Award on Jurisdiction in finding the“Determination of the Dispute in the Southern Bluefin Tuna Case,” St. Paul’s Review of Law and Politics(Rikkyo Hogaku), Vol. 60, 2002, pp. 138-152.
19

As comprehensive analyses of historic rights, for instance, see, Clive R. Symmons, Historic Waters in the
Law of the Sea, Martinus Nijhoff Publishers, 2008; Leo J. Bouchez, The Regime of Bays in InternationalLaw, A. W. Sythoff, 1964. There are many works that deal with the legal effect of the nine-dash linewith an examination of the requirements for a historic right to have a legal effect under internationallaw. Among them, for instance, Tai Ikeshima, “Chinaʼs Dashed Line in the South China Sea: Legal
Limits and Future Prospects,”World Global Forum, No. 10, 2013, pp. 33-36; Gao and Jia, op. cit., supra
n. 3, p. 123; Zou, op. cit., supra n. 10, pp. 16-17; Li and Li, op. cit., supra n. 3, pp. 292-294; Masahiro
Miyoshi, “Chinaʼs ʻU-Shaped Lineʼ Claim in the South China Sea: Any Validity under International Law,”
Ocean Development & International Law, Vo. 43, 2012, pp. 5-8; Peter A. Dutton, “An Analysis of Chinaʼs
Claim to Historic Rights in the South China Sea,” in Yonn-Huei Song and Keyuan Zou eds., Major Law
and Policy Issues in the South China Sea, Ashgate, 2014, p.71-73; Malek, op. cit., supra n. 8, pp. 31-34;
Kentaro Nishimoto, “Minami Shinakai ni Okeru Chugoku no Shuchou to Kokusaihou Jou no Hyouka(An Assessment from a Perspective of International Law of Chinaʼs Claims in the South China Sea),” 78
Hogaku (Jurisprudence), 2014, pp. 238-246; Yasuyuki Yoshida, “Minami Sinakai ni Okeru Chugoku noʻKyudansenʼ to Kokusaiho- Rekishiteki Suiiki to Rekishiteki Kenri wo Chusin ni (Chinaʼ s ʻNine-DashLineʼ in the South China Sea and International Law- Historic Waters and Historic Rights),” Kaikanko
Senryaku Kenkyu (Japan Maritime Self-Defense Force Command and Staff College Review), June 2015(5-1), p. 15 et seq; Shigeki Sakamoto, “Kyudansen no Hoteki Chii-Rekishiteki Suiiki to Rekishiteki
Kenri no Kanten Kara (Legal Status of the Nine-Dash Line - form a Perspective of Historic Waters andHistoric Rights),” in Yoshiro Matsui et al eds., 21 Seiki no Kokusaiho to Kaiyoho no Kadai (Agendas ofInternational Law and the Law of the Sea in the 21stCentury), Toshindo, 2016, pp. 170-182. Concerning

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tribunalʼs jurisdiction in this case, but it will do so from the perspective of validity of internationallaw.
In the following sections, in a different order from the Award, after clarifying the terminologyof the Award regarding a historic right, the logic of the Award will be considered with respect
to the nature of Chinaʼs historic right, the relationship between Chinaʼs historic rights and
UNCLOS, exceptions from the compulsory procedures entailing biding decisions under Article
298, Paragraph 1 (a) (i) of UNCLOS. Some critical analysis will follow from the perspective of thispaper.

2. The Nature of China’s Historic Rights(1) The Finding by the Tribunal
In order to decide the question of whether Chinese declaration of 200620 pursuant to Article 298,
Paragraph 1 (a) (i) of UNCLOS21 made this dispute an exception to the jurisdiction of the tribunal,
the tribunal considered the legal nature of the rights that China claims in the South China Sea(207-214).22 It examined the terms, such as historic rights, historic titles, and historic waters ininterpreting Article 298, Paragraph 1 (a) (i) (217-225).
According to the tribunal, “[t]he term ʻhistoric rightsʼ is general in nature and can describe
any rights that a State may possess that would not normally arise under the general internationallaw, absent particular historical circumstances. Historic rights may include sovereignty, but may
equally include more limited rights, such as fishing rights or rights of access, that fall well shortof a claim of sovereignty” (225). “Historic title” is historic sovereignty to land or maritime areas,and “historic waters” is simply a term for historic title over maritime areas, typically internal
waters or territorial sea (225).23 Depending on this terminology set by the tribunal, in this paper
hereinafter “Chinaʼs historic right(s)” will be used to describe the right(s) that China claims in
the South China Sea.
Regarding Chinaʼs historic rights, the tribunal found as follows. Chinaʼs historic right is “formedin the long historical course” (206), and a right arising independently from UNCLOS (207, 211).
The rights that China actually claims are a right for petroleum exploration (208) and a right forfishing regulation (210). In the sea areas where China exercises these rights, it respects freedom
the requirements for historic waters, many scholars mention the 1962 Report of the Secretariat of theGeneral Assembly of the United Nations (1962 Report), Juridical Regime of Historic Waters, Including
Historic Bays, A/ CN.4/ 143, Yearbook of International Law Commission, 1962, Vol. II, pp. 1-26.
20

Chinaʼs declaration of 2006 is available at:
http://www.un.org/depts/los/convention_agreements/convention_declarations.htm#China
afterratification.

21

Under Article 298, Paragraph 1 (a) (i), when signing, ratifying or acceding to UNCLOS, a State may
declare that it does not accept any one or more of the procedures provided for in Section 2 of Part XV
with respect to disputes concerning the interpretation or application of articles 15, 74 and 83 relating tosea boundary delimitations, or those involving historic bays or titles.

22

The tribunal found that the Philippinesʼ Submissions No. 1 and No. 2 would involve consideration ofissues that did not possess an exclusively preliminary character, and it reserved consideration of its
jurisdiction to rule on them until the merits stage (413).

23

While the tribunal said that “historic waters” is simply a term for historic title over maritime areas, it
referred to the judgment in the Tunisia/ Libya Continental Shelf case. It reads:
It seems clear that the matter continues to be governed by general international law which does notprovide a single “régime” for “historic waters” or “historic bays,” but only for a particular régime foreach of the concrete, recognized cases of “historic waters” or “historic bays.”
Continental Shelf (Tunisia/ Libya Arab Jamahiya), Judgment, ICJ Reports 1982, para. 100.
The tribunal defined a historic bay as simply a bay in which a State claims historic waters.

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Validity of International Law over Historic Rights: The Arbitral Award (Merits) on the South China Sea Disputeof navigation and overflight, and, thus, China does not consider that these sea areas form partof its territorial sea or internal waters (214). In sum, China claims rights to living and non-living
resources within the nine-dash line (214).24
Since the issue of Article 298 of UNCLOS will be succinctly dealt with later, it suffices here
to confirm that the tribunal found its jurisdiction to entertain this dispute irrespective of Chinaʼsdeclaration pursuant to Article 298, Paragraph 1 (a) (i). This is because China ʼs claim does
not mean the historic title under the provision but a historic right, and thus, the tribunal has
jurisdiction over the dispute concerning the historic right (229).
Next, this characterization by the tribunal of Chinaʼs historic rights will be examined inconsidering scholarly writings25 with respect to historic rights and historic waters.

(2) Examination① The tribunal concluded that Chinaʼs historic rights were those to specific resources andactivities. Nonetheless, considering that the nine-dash line indicates the scope of sea areas overwhich the historic rights are exercised, implication of “zone” is not necessarily excluded from24

According to Gao and Jia, China can assert historic rights within the nine-dash line in respect of fishing,navigation, and exploration and exploitation of resources. Gao and Jia, op. cit., supra n. 3, pp. 109110. Similar understanding as that of the Award is seen in Zouʼs position in that he interprets the ninedash line in relation to continental shelf and exclusive economic zone under UNCLOS. He recognizes
two types of historic rights: one is exclusive with full sovereignty, such as historic waters and historicbays; and the other is nonexclusive without full sovereignty, such as historic fishing rights in the highseas. Based upon this distinction, he maintains that Chinaʼs claim does not fit in either of the two types,
and that it is understood by referring to the exclusive economic zone and continental shelf regimes.
According to him, Chinaʼs claim involves not full sovereignty but sovereign rights and jurisdiction
in respect to marine scientific research, installation of artificial islands, and protection of the marine
environment. He calls such rights “historic rights with tempered sovereignty.” Zou Keyuan, “Historic
Rights in International Law and in Chinaʼs Practice,” Ocean Development & International Law, Vol. 32,
2001, p.160. He seems to understand Chinaʼs claim as implying “sea areas” rather than as historic rights
to specific activities or resources, such as fishing, navigation, exploration and exploitation of resources.
Even if the nine-dash line is understood as claims of historic rights to specific activities and resources,that understanding may not substantially exclude understanding that the nine-dash line reflects claims
to sea areas. This is because even the former regards the nine-dash line as depicting the limits of waters
to which the exercises of the historic rights reach. Also Zou considers Chinaʼs claim as unique in thesense that it is not only a right to fisheries on the high seas, but in fact it goes beyond this. To him it
seems that China has made precedent in international law relating to the concept of historic rights.
Zou Keyuan, op. cit., supra n. 10, pp. 15-16. In sum, Zouʼs position is interpreted that as the nine-dashline reflects Chinaʼs claims to exclusive economic zone and continental shelf, and even beyond theirdefinitions of UNCLOS, China claims its exclusive economic zone and continental shelf. By interpretingin this way, Symmonsʼ evaluation of Zouʼs position is understandable in that according to Symmons,Zou assumes “historic exclusive economic zone” and “historic continental shelf.” Clive R. Symmons,“Rights and Jurisdiction over Resources and Obligations of Coastal States: Validity of Historic Rights
Claims,” Tran Truong Thuy and Le Thuy Trang eds., Power, Law, and Maritime Order in the South China
Sea, Lexington Books, 2015, pp. 148-150. As another work that understands the nine-dash line as claims
to historic exclusive zone and historic continental shelf, Jiao Yongke, “There Exists No Question ofRedelimiting Boundaries in the Southern Sea,” 17 Ocean Development & Management, Vol. 17, 2000, p.
52, cited by Florian Dupuy and Pierre-Marie Dupuy, “A Legal Analysis of Chinaʼ s Historic Rights Claimin the South China Sea,” American Journal of International Law, Vol. 107, 2013, p. 135.

25

Symmons who examines historic rights in detail, writes that while vagueness in terminology still
remains, historic rights in their broadest sense, have been defined as “rights possessed by a State overmaritime areas that would not normally accrue to it under the general rules of international law, buthave been acquired by that State ʻthrough a process of historical consolidationʼ and also are ʻacquiredvis-ὰ-vis one or more States.”Symmons, op. cit., supra n. 24, p. 147.

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this tribunalʼ s conclusion.26 In this sense, the two interpretations are not exclusive to each other:first, interpretation of the nine-dash line as indicating claims to rights to specific activities andresources; and second, interpretation of the nine-dash line as indicating claims over zones. The
difference between the two, if any, is that of weight placed on whether activities and resources, orzones.27
China itself has not officially made clear the meaning of the nine-dash line (179),28 and thereason is said to be Chinaʼ s strategy29. According to scholars, especially Chinese ones, there
may be four types of interpretation of the nine-dash line.30 The nine-dash line signifies, first,
the line determining that islands within it belongs to China, 31 second, the line determining
the zones over which historic rights are exercised (according to this interpretation, maritime
features, such as islands and shoals within the line are Chinese territories, and sea areas except
for internal waters become Chinese EEZ and continental shelf),32 third, the line is demarcating
historic waters (according to this interpretation, China has historic rights to islands, shoals andsurrounding sea areas of them, and all the sea areas within the line are Chinese historic waters,
and therefore, passage and overflight of foreign vessels and aircraft are prohibited without

26

On the other hand, relating to historic waters, as confirmed above, the Award defined it as simply a termfor historic title over maritime areas, typically internal waters or territorial sea. In this regard, scholarly
writings accord.

27

One of the reasons why Zou, in his work referred to at supra n. 24, understands Chinaʼs claims to rights
as implicating claims over zones is that he attaches importance to Article 2 of 1999 Law on Marine
Environmental Protection (revised) that reads:[T] he Law shall apply to internal waters, territorial sea, contiguous zone, exclusive economic zone,
continental shelf of the Peopleʼ s Republic of China and other sea areas under the jurisdiction of thePeopleʼs Republic of China (emphasis added)”Zou, op. cit., supra n. 24 (“Historic Rights…”), p. 160.

28

Mostly scholarly writings accord in such evaluation.

29

Some scholars describe this Chinese attitude as strategic ambiguity. Beckman, op. cit., supra n. 16, p.
156. See also, Nishimoto, op. cit., supra n. 19, p. 228, footnote 16.

30

Guoqiang Li, “Chugokku to Shuhen Kokka no Kaijo Kokkyo Mondai (Border Issues between China
and Neighboring States),” Kyoukai Kenkyu (Border Studies), Vol. 1, 2010, pp. 51-52. As anothercategorization of Chinese scholarly writings regarding the meaning of the nine-dash line, see, Thang
and Thao, op. cit., supra n. 8, p. 50, note 11.

31

Recent Chinese scholars, in general, do not limit the meaning of the nine-dash line to determiningthat islands within it belong to China, and they consider the nine-dash line both from the aspect ofChinaʼs claims over islands and other land areas, and from the aspect of Chinaʼs claims over sea areas.
Most of the works cited at supra n. 19 take such a method of examination as explained here. See also,
Dupuy and Dupuy, op. cit., supra n. 24, p. 126 et seq. There are also scholarly writings that place weighton Chinaʼs sovereignty over lands, such as, Gao and Jia, op. cit., supra n. 3. As for an examination of
the nine-dash line from a perspective of Chinaʼ s sovereignty over islands, see, Jianming Shen, “TheChinaʼs Sovereignty over the South China Sea Islands: A Historical Perspective,” Chinese Journal ofInternational Law, Vol. 1, 2002, p. 94 et seq.; by the same author, “International Rules and Historical
Supporting Chinaʼs Title to the South China Sea Islands,” Hastings International and Comparative Law
Review, Vol. 21, 1997, p. 1 et seq.

32

As in the arbitral procedure for the merits of the South China Sea dispute, territorial sovereignty overislands was not included in the subjects of the dispute, the limits of Chinese EEZs and continental
shelf in the South China Sea cannot be determined based upon the Award. When the nine-dash line
demarcates Chinese EEZs and continental shelf beyond 200 nautical miles, the second interpretationof the nine-dash line would mean that China claims EEZs and continental shelf based upon an inherent
ground as the nine-dash line. Such EEZs and continental shelf are “historic EEZs” and “historiccontinental shelf” explained at supra n. 24.

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Validity of International Law over Historic Rights: The Arbitral Award (Merits) on the South China Sea Dispute

Chinaʼ s permission),33 and fourth, the line sets traditional Chinese borders. Regarding sea areas
including seabed and subsoil, the understanding of the Award of Chinaʼs historic rights is close
to the second interpretation. However, while according to the second interpretation the nine-dashline determines the zones over which Chinaʼs historic rights are exercised, and the zones become
Chinese EEZs or continental shelf, it remains unclear whether the EEZs and continental shelf are
not beyond the 200 nautical mile limit set by UNCLOS. The Award did not interpret the nine-dashline from a zonal perspective.
② Concerning the distinction between historic waters and historic rights, scholarly writings, ingeneral, make distinction between the two. They find in the former sovereignty over sea areas,
and in the latter rights short of sovereignty relating to specific activities and resources (sovereign
rights).34 In this regard, the Award seems to have taken the same position. In addition, it issaid that while claims over historic waters are claims of rights toward international society, orrights erga omnes, claims to historic rights are vis-à-vis the one or plural related States.35 Suchunderstanding of historic rights is also reflected in an opinion that historic rights may be disputed
solely between the related States, so that the disputes may be resolved by negotiation between
those States with defining historic rights on a case-by-case basis.36 A conclusion cannot be derived
from scholarly writings as to whether there is difference in requirements for historic waters andthose for historic rights.37 Furthermore, it is opined that while most often adjacent States may
claim historic waters, it is not the case for historic rights.38
The tribunal did not examine all of these issues. This may be because once it could decide
the issue of whether its jurisdiction was denied or not by Chinese declaration of 2006 pursuant to33

In Policy Guidelines for the South China Sea (SCS Guidelines) adopted on the 13th of April, 1993,
the Republic of China demonstrated that the sea areas within the nine-dash line are historic waters.
However, on the 15th of December, 2005, it terminated the SCS Guidelines, and recently it does nottake such a position as claiming historic waters. Miahcel Sheng-Ti Gau, “The U-Shaped Line and a
Categorization of Ocean Disputes in the South China Sea,” Ocean Development & International Law,
Vol. 43, p. 58.

34

For instance, Ted L. McDorman, “The Law of the Sea Convention and the U-Shaped Line: Some
Comments,” in Shicun Wu and Keyuan Zou eds., Arbitration Concerning the South China Sea-Philippines
versus China, Routledge, 2016, p. 150; by the same author, “Rights and Jurisdiction over Resources in
the South China Sea: UNCLOS and the ʻNine-Dash Line,ʼ” in S. Jayakumar et al. eds., The South China
Sea Disputes and Law of the Sea, NUS Centre for International Law, Edward Elgar, 2014, p. 150; Zou
and Liu, op. cit., supra n. 12, p. 134. As a similar opinion, see, Symmons, op. cit., supra n. 19, p. 6. In his
recent work, Symmons divides historic titles into historic waters and historic rights, and explains thedifference between the two by the elements mentioned here. Symmons, op. cit., supra n. 24, p. 146.

35

See the works cited at the footnote above (34). Sakamoto emphasizes that the denial by the Award of
Chinaʼs historic rights is not a denial of their opposability solely in relation to the Philippines, but adenial of their effect erga omens. Sakamoto, op. cit., supra n. 19, p. 200.

36

Shabtai Rosenne, “Historic Waters in the Third United Nations Conference on the Law of the Sea,” inTerry D. Gill & Wybo P. Heere eds., Reflections on Principles and Practice of International Law: Essays in
Honour of Leo J. Bouchez, Martinus Nijhoff, 2000, p. 203.

37

The tribunal, in considering the relationship between Chinaʼs historic rights and UNCLOS, posed
three questions, as explained later. The second question is whether China had held historic rights in
the South China Sea prior to the entry into force of UNCLOS. When addressing it, the tribunal, based
upon the 1962 Report, stated that historic waters are merely one form of historic rights, and that theprocess is the same for claims to rights short of sovereignty (265). Although reservation is needed that
this part of the Award was in relation to the 1962 Report, the tribunal might not assume difference inrequirements for historic waters and those for historic rights.

38

Among the works cited at supran. 34, for instance, McDorman (The Law of the Sea Convention…), p.
150; McDorman (Rights and Jurisdiction…), pp. 150-151. See also, Symmons, op. cit., supra n. 24, pp.
146-147.

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Article 298, Paragraph 1 (a) (i) of UNCLOS, it did not need to proceed to further examinations.39③ The tribunal declared that Chinaʼ s historic rights are independent from UNCLOS. However,as confirmed at the beginning of this article, the formulation of this dispute by the tribunal was asfollows:[T] he Tribunal is faced with the question of whether the Convention (UNCLOS, by theauthor) allows the preser vation of rights to resources which are at variance with theConvention and established anterior to its entry into force. To answer this, it is necessary
to examine the relationship between the Convention and other possible sources of rights
under international law (emphasis added) (235).
Accordingly, it is clear that the tribunal did not seek for any grounds for Chinaʼs historic rightsthat exist outside of law. For this very reason, the tribunal needed to proceed to the examinationof the relationship between rights that are independent from UNCLOS and that should be based
upon “other possible sources of rights under international law,” on the one hand, and rights under
UNCLOS, on the other hand (or, the relationship between UNCLOS and “other possible sourcesof ”international law).40
In the next section, the finding by the Award will be analyzed regarding the relationshipbetween UNCLOS and Chinaʼs historic rights.

3. The Relationship between UNCLOS and China’s Historic Rights(1) The Finding by the Tribunal
The tribunal posed three questions to be dealt with in addressing the issue of the relationshipbetween UNCLOS and Chinaʼs historic rights (234). First, does UNCLOS “and in particular its
rules for the exclusive economic zone and continental shelf, allow for the preservation of rights
to living and non-living resources that are at variance with the provisions” of UNCLOS? Second,prior to the entry into force of UNCLOS, did China have historic rights and jurisdiction overliving and non-living resources in the waters of the South China Sea beyond the limits of theterritorial sea? Third, has China in the years since the conclusion of UNCLOS established rights
and jurisdiction over living and non-living resources in the waters of the South China Sea that are
at variance with the provisions of UNCLOS? From the perspective of this paper, focus is placed on
the first question.41
Regarding the first question, the line of argument of the Award is as follows. The tribunal
declared that the applicable principle and rules are, first, Article 311 which deals with therelationship between UNCLOS and other sources, second, Article 293, Paragraph 1 of UNCLOS
which provides for applicable law of the tribunal, and third, the principle reflected in Article
30, Paragraphs 2 and 3 of the Vienna Convention on the Law of Treaties - “the later treaty will
39

However, as mentioned later, this did not hamper the tribunal from denying Chinaʼs historic rights, sothat the denial by it may contribute to resolution of disputes in the South China Sea. As such a position,see, Naoki Iwatsuki, “Minami Shinakai Chusaisaiban to Kokusai Hunso no Heiwateki Kaiketsu (The
Arbitration of the South China Sea Dispute and Peaceful Solution of International Disputes),” Hogaku
Kyositsu (Legal Learning), No. 435, 2016, p. 52.

40

The meaning of “independence” is related to “comprehensiveness” of UNCLOS that the tribunal
emphasized. It will be discussed later.

41

With respect to the second question, the tribunal determined that the rights, which China has
exercised, are a fishing right and a right of navigation, so that it has exercised the freedom of the highseas. Accordingly, these exercises of the rights did not produce historic rights (263-272). As for thethird question, the tribunal stated that in order to amend conventions unilateral acts are not sufficient,and that regarding Chinaʼs claim to historic rights there are not acquiescence by other States and thepassage of sufficient time, either (273-275).

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Validity of International Law over Historic Rights: The Arbitral Award (Merits) on the South China Sea Dispute

prevail to the extent of any incompatibility” - as general international law which regulates theinteraction between bodies of law (235-237). Article 311 of UNCLOS is a provision addressing
the relationship between UNCLOS, on the other hand, and other conventions and international
agreements, on the other hand. According to the tribunal, “this provision applies equally to theinteraction of UNCLOS with other norms of international law, such as historic rights, that do nottake the form of agreement” (235). “Other norms of international law, such as historic rights” isunderstood to mean international norms relating to historic rights.
Such an interpretation of Article 311 by the tribunal may raise a doubt. There is an opinion
that historic rights are those under general international law, and actually Chinese statements
and Chinese scholars have voiced such an opinion. If so, the relationship between UNCLOS
and historic rights means that between UNCLOS and general international law that prescribes
historic rights. General international law takes a form of customar y international law. The
relationship between UNCLOS and customary international law is not necessarily the same asthat between UNCLOS and other conventions and international agreements. While Article 311
deals with the relationship between UNCLOS and other conventions and international agreement,
it does not expressly address the relationship between UNCLOS and customary international law.
Nonetheless, the tribunal interpreted that Article 311applies to the relationship between UNCLOS
and customar y international law, namely, “other norms of international law, such as historicrights.”Considering that there is no priority between conventions and customary international law
as sources of international law, the tribunalʼs interpretation of Article 311 may have a reason inthat it did not make any distinction between “other conventions and international agreement,”on the one hand, and customary international law, on the other hand. However, here it is needed
to clearly recognize the effect that such tribunalʼs interpretation of Article 311 may have. Some
Chinese scholars argue that historic rights have been established under general international law(this is understood as customary international law), so that these rights cannot be denied solely
for the reason of UNCLOS.42 It is not clear on what understanding of the relationship between
UNCLOS and customary international law such an argument is based. Such an argument mightplace customar y international law that gives grounds for historic rights and UNCLOS on an
equal status. In that case, such an argument would lose any room to be approved by the tribunalʼsinterpretation of Article 311. This is because, according to its interpretation of Article 311,
customary international law (that forms a basis for historic rights) may have its effect solely as
far as it satisfies the requirements set by Article 311.
The tribunal may apply international law under Article 293, unless it is not at variance with
UNCLOS. The tribunal could have determined the customar y international law that gives aground for historic rights, and assessed Chinaʼs historic rights by applying the customar yinternational law. After these considerations it could have decided the relationship between
UNCLOS and China ʼ s historic rights. Fur thermore, the tribunal could have reflected thehistoric rights under the customary international law in interpreting and applying the relevant
provision of UNCLOS, such as provisions that prescribe the EEZ regime. In place of examining
these possibilities, the tribunal intended to decide the effect of the customary international law
on which historic rights are based, by applying Article 311. It can be questioned whether theparty States to UNCLOS have agreed to such interpretation of Article 311. Even if the tribunalʼsinterpretation is approved, it can be maintained solely between the party States to UNCLOS. In
that case, the effect of the customary international law that forms a basis for historic rights may
be determined by such interpretation of Article 311.
In addition, according to the tribunal ʼ s opinion, Article 311 and Article 293, Paragraph42

For instance, Zou and Liu, op. cit., supra n. 12, p. 139.

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143“mirror the general rule of international law concerning the interaction of different bodies oflaw, which provide that the intent of the parties to a convention will control its relationship withother instruments (237).”44 It is undeniably a general rule of international law that the intent
of the parties to a convention decides the interaction of the convention with other bodies oflaw. However, it requires an examination whether whole the contents of Article 311 have been
established as general international law. Unless it is approved, the rules contained in Article 311
concerning the interaction of UNCLOS with other bodies of law would apply solely to UNCLOS
and solely between party States to UNCLOS.45
From the provisions and rules that the tribunal referred to, it derived four propositions
concerning the relationship between UNCLOS and other bodies of law. Concerning historicrights to living and non-living resources, first, when UNCLOS explicitly provides for them, andthey take a form of an agreement that Article 311 prescribes, they shall remain unaffected.46
Second, while UNCLOS does not expressly permit or preser ve a prior agreement, rule ofcustomary international law, or historic rights, such prior norms will not be incompatible with
UNCLOS where their operation does not conflict with any provisions of UNCLOS or to theextent that interpretation indicates that UNCLOS intended the prior agreement, rules, or rights
to continue in operation. Third, where rights and obligations arising independently of UNCLOS
are not incompatible with its provisions, Article 311, Paragraph 2 provides that their operation
will remain unaffected. Fourth, where independent47 rights and obligations have arisen prior to
the entry into force of UNCLOS and are incompatible with its provisions, the principles set out
in Article 30, Paragraph 3 of the Vienna Convention on the Law of Treaties and Article 29348 of
UNCLOS provide that UNCLOS will prevail over the earlier, incompatible rights and obligations(238).
Assuming these propositions, after the tribunal found that no articles of UNCLOS expressly
provide the continued existence of historic rights to the living and non-living resources (239),
it moved onto an examination of whether China ʼs historic rights should be considered notincompatible with UNCLOS. Its examination covered the relevant provisions of UNCLOS (240245), the drafting process of UNCLOS and establishment of the EEZ regime (248-254), and43

It is not plainly explicable whether the reference to Article 293, Paragraph 1 is needed here.
That provision reads:
A court or tribunal having jurisdiction under this section shall apply this Convention and other rulesof international law not incompatible with this Convention.
It might be said that the reference to this provision by the tribunal here is for the reason that thisprovision forms a ground for the supremacy of UNCLOS over other bodies of law.

44

The tribunal referred to Article 30, Paragraph 2 and Paragraph 3 of the Vienna Convention on the Law
of Treaties.

45

The relation between historic rights or the rules that prescribe them, on the one hand, and the rules
contained in UNCLOS, on the other hand, becomes complicated in cases in which non-party States are
involved. As for an examination of the relationship between treaties and historic rights as exceptions tothem, see, the 1962 Report, paras. 73-78.

46

As the cases that fall under the first proposition, the tribunal referred to Article 10 and Article 15 of
UNCLOS. Article 10, Paragraph 6 provides that the rules concerning bays do not apply to historic bays.
Article 15 provides that the median line method concerning territorial sea delimitation does not apply tocases in which historic titles are involved.

47

The “independence” mentioned in the third and the fourth propositions may be understood as that fromUNCLOS. Such remarks by the tribunal of the “independence” are based upon its finding that Chinaʼshistoric rights are independent from UNCLOS, as confirmed above.

48

The reference to Article 293 here also raises a doubt concerning its necessity and appropriateness.
However, it might be understood that the tribunal referred to the provision as a ground for supremacy
of UNCLOS over other international law rules.

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Validity of International Law over Historic Rights: The Arbitral Award (Merits) on the South China Sea Dispute

precedents (257-260). Then, it reached the conclusion that Chinaʼs claim to historic rights to living
and non-living resources within the nine-dash line is incompatible with UNCLOS (261). It is noteasily understood which propositions among the second, third, and fourth propositions, referred
to above was applied by the tribunal. Nonetheless, the critical point is that by this conclusion thetribunal definitely denied the arguments of China and Chinese scholars that Chinaʼ s historicrights, having established prior to UNCLOS, cannot be denied by it.49
Here, the above mentioned point needs to be recalled that the conclusion of the tribunal isbased upon the application of Article 311 of UNCLOS, and that whether whole the contents of
the article reflect general international law requires further examination. Unless this point isaffirmed, the tribunalʼ s conclusion may be applied solely between party States to UNCLOS,
when party States approve the tribunalʼs interpretation of Article 311. When a non-party State
to UNCLOS claims historic rights and denies the regulation of UNCLOS over the claims, party
States to UNCLOS could not necessarily oppose to such an argument by applying the tribunalʼsconclusion.

(2) The “Comprehensiveness” of UNCLOS① When the tribunal decided that China ʼ s historic rights are at variance with UNCLOS
considering its relevant provisions and its drafting process, it emphasized above all the“comprehensiveness” of UNCLOS (231, 245, 261). From the perspective of this paper, namely thatof validity of international law, the “comprehensiveness” requires most detailed scrutiny.
As to the meaning of comprehensiveness, the tribunal seems to imply the following two
meanings. First, UNCLOS covers all the sea areas including seabed and subsoil, and it regulates
all the uses of the sea. It may be described as the material or spatial coverage of UNCLOS, andthe comprehensiveness is the word to express this meaning (231).50 Second, rather than otherinternational law rules, it is UNCLOS that establishes the ocean regimes and that regulates theuses of the sea (245)51. This meaning, although it is somehow close to exhasustiveness, may bedescribed as exclusiveness.52 These two meanings are not exclusive to each other. Nonetheless,it may not be denied to derive the two meanings from the tribunalʼ s ruling. The first, thecomprehensiveness of UNCLOS, means denial of any vacuums of UNCLOS, as it regulates all the49

As a typical example of it, see, Li, op. cit., supra n. 30, p. 52. The Chinese statement on the 12 of May,
2016, referred to by the tribunal (200), stated that:[T]he dotted line came into existence much earlier than UNCLOS, which does not cover all aspectsof the law of the sea, and that the tribunal does not have jurisdiction over Chinaʼs dotted line.
It is interpreted that the nine-dash line (and Chinaʼs historic rights being claimed within the line) may
not be, at least legally, assessed by UNCLOS. Gao and Jia take a position that Chinaʼs historic rights
are prior to UNCLOS and that they continue their operation even under UNCLOS. Gao and Jia, op. cit.,
supra n. 13, p. 123.

50

Looking at the Preamble of UNCLOS, the tribunal stated that UNCLOS intends to settle “all issues”
relating to the law of the sea and that it emphasizes the desirability of establishing “a legal order forthe sea (245).”However, Paragraph 8 of the Preamble of UNCLOS, assumes existence of issues that
UNCLOS does not addresses, and provides that “matters not regulated by this Convention continue
to be governed by the rules and principles of general international law.” The tribunal, for an unknown
reason, did not mention it.

51

This is understanding based upon the tribunalʼs reference to Article 309 of UNCLOS that prohibits
reservations and exceptions to UNCLOS. Nevertheless, as the tribunal also referred to the Preamble of
UNCLOS, as confirmed supra note 50, it is not determinable whether it placed weight on either of thetwo meanings, or it intended to mean both.

52

McDorman uses the term of exhaustiveness, and he denies the exhaustiveness of UNCLOS regarding
the rights that States claim regarding sea areas and natural resources. McDorman, op. cit., supra n. 34(Rights and Jurisdiction…), p. 153.

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regimes of the sea and all the uses of the sea.53 In comparison, the second, the exclusiveness of
UNCLOS, gives priority to it over other international rules, if there is any, which provide for theocean regimes and regulates all the uses of the sea.
Looking at the tribunalʼ s logic, it did not accept such an argument that Chinaʼs relevant rights
in the South China Sea are protected by international law including UNCLOS,54 as far as thoserights are to living and non-living sources of EEZ of the Philippines. This is because UNCLOS
is comprehensive in terms of determination of the EEZ and continental shelf regimes, and,thus, UNCLOS supersedes any rights that are prior to UNCLOS and at variance with it. While
the tribunal used the term comprehensiveness, it may be interpreted not only that UNCLOS
regulates all the sea areas and all the uses of the sea, but also that UNCLOS supersedes any
rights and obligations with grounds apart from UNCLOS and being not inconformity with it. If
this is the case, the “comprehensiveness” mentioned by the tribunal is understood as containing
the two meanings that are explained here.
With respect to the logical consequences of the “ comprehensiveness, ” the terms usedby the tribunal, such as “ independence ” and “ exception ” are so closely related to the“comprehensiveness” that they require some consideration. As confirmed before, the tribunal
regarded Chinaʼ s historic rights as independent from UNCLOS.55 Its meaning should be clarified
in relation to the comprehensiveness of UNCLOS. On the one hand, if UNCLOS is comprehensivein that it regulates all the sea areas and all the uses of the sea, the sea areas and the uses of thesea that are independent from UNCLOS are not regulated by it, so that they would not come into
existence under UNCLOS. On the other hand, if UNCLOS is exclusive in that solely UNCLOS
establishes the ocean regimes and regulates the uses of the sea excluding other international law
rules regarding them, if any, the “independence” means that other international regulation on theocean regimes and the uses of the sea would be excluded and surpassed by UNCLOS.56② Regarding the term “exception” used by the tribunal, the following observation is important.
The tribunal posed the three questions concerning the relationship between UNCLOS andChinaʼs historic rights. In addressing the second question, namely that of whether China had
acquired the historic rights prior to the entry into force of UNCLOS, the tribunal stated that
historic rights are exceptional rights and that they come into existence by acquiescence by otherStates in the historical process (268). The “exception” also relates to the comprehensiveness of
UNCLOS. However, the tribunal mentioned “exceptional rights” in relation to the international
order of the sea that was prior to UNCLOS. It did not so in relation to UNCLOS. If historic rights
form exceptions in relation to UNCLOS, and UNCLOS are both comprehensive and exclusive
53

Sakamoto, referring to Paragraph 8 of the Preamble of UNCLOS that provides as reproduced at
supra n. 50, argues there are no vacuums under international law. It does not mean that UNCLOS
is comprehensive to deny vacuums, but that the issues remaining unregulated by UNCLOS will
be regulated by general international law. Therefore, his position is to deny “vacuums” of generalinternational law. Shigeki Sakamoto, “Historic Waters and Rights Revisited: UNCLOS and Beyond?,”in
The Rule of Law in the Sea of Asia-Navigational Chart for Peace and Stability (not for sale), Paper
submitted for the International Symposium of the Law of the Sea hosted by the Ministry of Foreign
Affairs of Japan, 12-13 February, 2015, p. 67.

54

The tribunal referred to the Chinese statement of the 30thof October, 2015, which maintains that
Chinaʼs sovereignty and relevant rights are protected under international law including UNCLOS (187).
As Chinese similar statement of 2011, see, supra n. 6.

55

See, Section 2 (1) of this paper.

56

These logical consequences are applied, at least in assuming cases between party States of UNCLOS.
In cases between non-party States or between a non-party State and a party State, they may conclude
different agreements from UNCLOS that regulated the sea areas and uses of the sea. Such agreements
as establishing special laws are not excluded by UNCLOS between non-party States, and between a nonparty State and a party State.

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Validity of International Law over Historic Rights: The Arbitral Award (Merits) on the South China Sea Disputein the meanings as explained here, as a logical consequence, neither exceptional ocean regimes
nor exceptional uses of the sea can exist or they should be excluded, unless UNCLOS expressly
admits the exceptions. The tribunal did not discuss this point. It only confirmed that UNCLOS
does not contain any explicit provisions that permit historic rights to living and non-living
resources. While the tribunal did not provide further examination, even if the second question
was answered affirmatively, there would be no room for historic rights, as being exceptionalrights, to be preserved in relation to UNCLOS that is comprehensive and exclusive. If this is thecase, the significance would be doubtful in posing the second question.
It is possible to understand that the tribunal defined the requirements for historic rights
as the historical process of creation and no protests from other States. Then, is it customaryinternational law or general international law that provides for those requirements for historicrights to exist? The tribunal gave no mention concerning this point. The statement of the tribunal
that historic rights are exceptional rights set forth a presupposition based upon which it reached
the conclusion that as Chinaʼs rights in the South China Sea were derived from the principle ofthe freedom of the high seas, the exercise of rights permitted by international law did not create
historic rights, as being exceptions to the law.57
In the argument concerning historic waters, there has been a division of opinions as towhether or not they set exceptions to a general rule. The logics applied in the argument bear
critical importance from the perspective of a way for international law to ensure its regulation
over claims to historic rights. In relation to “historic waters,” as a general rule mainly the rulesof maritime delimitation and demarcation of maritime zones are assumed. In comparison, in
relation to “historic rights” it is likely that rules concerning the regimes of territorial sea, EEZ,
and continental shelf are presupposed as general rules. Despite this difference, as far as focus
is placed upon the logics themselves, it is not unreasonable to consider that the logics in theargument of “historic waters” are expected to be also applied in the argument of “historic rights.”
With bearing this in mind, next, succinct examination will be given of the argument
concerning historic waters, in order to evaluate the logic applied by the tribunal in the Award in
dealing with historic rights.

(3) Definitions of Exceptions and a General Rule as Logics Applied in Order for
Securing International Regulation

58① As an analysis of the legal regime of historic waters, the 1962 Report provides an important
59
starting point. It demonstrates denial of the logic that regards historic waters as exceptions to a
general rule of international law. It reads:[T] he widely held opinion that the régime of “historic waters” constitutes an exception to
the general rule of international law regarding the delimitation of the maritime domain of
the State is debatable. The realistic view would seem to be not to relate “historic waters”
57

The tribunal found that historical navigation and fishing as well as trade in the South China Sea
represented the freedom of the high seas, so that they did not create historic rights. According to it,
when China ratified UNCLOS which established the EEZ regime, China relinquished the freedom of
the high seas (269-271).

58

As a detailed analysis of the1962 Report, see, Ko Nakamura, “(Rekishiteki Suiiki no Seido no Hotenka ni
Tsuite-Rekishiteki Wan wo Hukumu Rekishiteki Suiiki no Horitsu Seido・Kokusai Rengo no Jimukyoku
ni Yotte Junbi Sareta Kenkyu Kiroku ni Kanren Shite-(The Codification of the Regime of Historic
Waters-The Legal Regime of Historic Waters Including Historic Bays and Research and Report Provided
by The Secretariat of the Unites Nations-),” Hogaku Kenkyu (Journal of Law, Politics, and Sociology), Vol.
38, No. 4, 1965, p. 30 et seq.

59

As for the background for this research, see, the 1962 Report, pp. 1-6; Rosenne, op. cit., supra n. 36, pp.
193-195.

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to such rules as an exception or not an exception, but consider the title to “historic waters”
independently, on its own merits. As a consequence one should avoid, in discussing
the theory of “historic waters,” to base any proposed principles or rules on the alleged
exceptional character of such waters.60
The opposition to the logic that defines historic waters as exceptions to a general rule isbased upon the understanding that as general rules on bays and other rules concerning maritime
delimitation have not been established, so that historic waters cannot form exceptions to generalrules that do not exist.61
In contrast to this, there is a position that the legal regime of historic waters is defined as
exceptions to a general rule.62 Critical importance exists in the reasons for adopting such alogic. A scholarly writing explains that such a logic is needed for claims to historic waters, ora preexisting law to sur vive a changing law.63 Another scholar points out the impossibility of
establishing a general rule without permitting exceptions to it,64 and in this sense, historic waters
fulfil the function of a safety valve (une soupage de sûreté).65 In sum, the object of these positions
is to give somehow elasticity, which is called a safety valve, to international law in its regulation inthat it permits preservation of some effects of preexisting laws and historic waters. By admitting
exceptions as a safety valve, when facing different and incoherent international practice it would
become possible to derive international rules. It is true that by admitting exceptions, generalrules may be hampered from effectively regulating. To avoid such a risk, at least to a certain
degree, a possible way is to ensure dispute settlement procedures, particularly judicial or arbitralprocedures that legally define exceptions in interpreting and applying the general rule concerned.
Here it may suffice to point out that possibility. Looking at UNCLOS, Article 10, Paragraph6 provides that the rule of bays is not applied to historic bays.66 In this regard, by permitting
exceptions a general rule concerning bays could be established. In the same manner, Article
15 recognizes that a historic title as well as special circumstances set exceptions to which thegeneral rule concerning territorial sea delimitation is not applied.67 In the same line of argument,
the tribunal in the Award confirmed that Article 12 of the 1958 Convention on Territorial Sea andContiguous Zone and Article 15 of UNCLOS expressly provide for historic titles (221, 223).68② When the logics proposed by the 1962 Report and in the scholarly writings concerning “historic60

The 1962 Report, para. 184.

61

As for such positions and the Norwegian claims in the Fishery Case, see, ibid., paras.49-53.

62

The 1962 Report introduces the position that defines the legal regime of historic waters as an exception,and the British claims in the Fishery Case, paras. 42-48.

63

Andrea Gioia, “Historic Titles,” in Rüdiger Wolflum ed., The Max Planck Encyclopedia of Public
International Law, Oxford University Press, Vol. IV, p. 817, para. 11.

64

Gilbert Gidel, Droit international public de la mer, Vol. III, Topos Verlag, 1934, p. 651.

65

When both the general rule and its exceptions are established as customary international law rules, it is
not explicable why the former has priority over the latter in the sense that the latter forms an exception
to the former. The 1962 Report, para. 54.

66

The Virginia Commentar y interprets that Ar ticle 10, Paragraph 6 provides for historic bays as“exceptions” to the general rule of bays. Sataya N. Nandan and Shabtai Rosenne, eds., United Nations
Convention on the Law of the Sea 1982 - A Commentary-, Vol. II, Martinus Nijhoff Publishers, 1993,
Article 10, 10. 1, 10.5 (e).

67

Ibid., Article 15, 15. 1, 15. 12 (a).

68Here the tribunal did not refer to Article 10, Paragraph 6, while it did in para. 238 of the Award. The
reason for that is not clear. It referred to the mention of the 1962 Report of the Fisher y Case as aprecedent which reads:
ʻHistoric watersʼ are usually meant waters which are treated as internal waters but which would nothave that character were it not for the existence of an historic title (para. 220 of the Award).

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Validity of International Law over Historic Rights: The Arbitral Award (Merits) on the South China Sea Dispute

waters” are applied to “historic rights,” there will be the two logics: first, historic rights are
exceptions to general rules; and second, they do not form exceptions. The difference between
the two is mainly resulted from the different judgment concerning the possibility to set forth theassumed general rules. In other words, the both logics are the same in respecting concrete andindividual circumstances that introduce claims to historic rights. While the first logic admits suchweight on the concrete and individual circumstances as forming exceptions to general rules,
the second logic admits such weight on them as denying general rules. In addition to the twologics, in presupposing an existence of general rules, in contrast to the first logic, the third logic
can be proposed, which assumes a general rule that regulates historic rights with concrete andindividual circumstances without admitting them as exceptions to the rule. In the Award, since
UNCLOS, as a general rule, is presupposed, the contrast between the first and the third logics issignificant rather than the contrast between the first and the second logics.
Regarding the third logic, although it is the case relating to historic waters, the logic appliedby the International Court of Justice (ICJ) in the Fishery Case is remarkable.69 It adopted thelogic that defined the Norwegian straight baseline method as one application of a general rule,
not as an exception to it. The United Kingdom maintained that there was a 10 nautical mile ruleconcerning a closing line of a bay, and that exceptions to it may be permitted on historic grounds(130. For this case, the numbers indicate pages in the judgment).70 ICJ denied existence of sucha general rule.71 It determined that Nor wegian straight baseline method is not an exception
to general international law, but one application of it to a specific case (131). In reaching thisconclusion, regarding the general international law, ICJ defined three considerations:72 first, thedrawing of baselines not departing to any appreciable extent from the general direction of thecoast; second, the more or less close relationship existing between certain sea areas and the land
formations which divide or surround them; and third, certain economic interests peculiar to aregion, the reality and importance of which are clearly evidences by a long usage (133).73 The
three considerations may be understood as setting forth the requirements for the legality of theNorwegian unilateral measure.
In reality, ICJ determined not the legality but the opposability of the Nor wegian straightbaseline method in relation solely to the UK.74 The opposability in relation to the UK is different
69

Fisheries Case (United Kingdom v. Norway), Judgment of December 18th, 1951, ICJ Reports 1951, p.
116.

70

While the UK adopted the logic that historic waters form exceptions to a general rule, Norway allegedthat Norwegian straight baseline method is one application of general international law to a special case.
As for detailed analyses of the positions of the two parties, see, the 1962 Report, paras. 46-53; Nakamura,op. cit., supra n. 58, pp. 39-41.

71

In this regard, ICJ stated (130) as reproduced at supra n. 68.

72

While here ICJ used the term “considerations,” at page 129 of the judgment, it did the term “principle”
in describing almost the same contents. It states that:[T]he principle that the belt of territorial waters must follow the general direction of the coast makes
it possible to fix certain criteria valid for any delimitation of the territorial sea (emphasis added).
Considering the part of the judgment, the three “considerations” may be expressed as “requirements”
for legal or valid baselines under general international law. In this regard, Okuwaki, as seen at infra n.
75, interpreted the three “considerations” as “requirements” in Japanese.

73

These three considerations are reflected in Article 4 of the 1958Convention on Territorial Sea andContiguous Zone, and maintained in Article 7of UNCLOS.

74

ICJ examined whether Norway coherently adopted the straight baseline method, and whether there
were protests by other States (136-139). Then, it found that the actual Norwegian straight baselines
were not diverted from the general direction of the coast, and that even there were basepoints thatwere diverted from the general direction of the coast, it was due to consideration of traditional rights
of fishing, being reserved to its inhabitants. ICJ also admitted considerations of such traditional rights

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Atsuko Kanehara

from the legality erga omnes. Although legality and opposability need to be examined in detail asto the Fishery Case, here it suffices to point out the issue. Before determining the opposability,
ICJ declared the two important presuppositions that have been frequently cited: first, the actof delimitation is necessarily a unilateral act; and second, the validity of the delimitation withregard to other States depends upon international law (131).75 The conclusion that the Norwegianstraight baseline method is one application of general international law to a specific case wasderived when ICJ faced the conflict of two logics: first, the Norwegian straight baseline method
forms exception to a general rule; and second, it is application of a general rule to a specificcase.76Thus, ICJ encompassed Norwegian straight baseline method, which was based upon special
circumstances including historical one, within the legal sphere of the general rule by defining
the method as one application of the rule.77In addition, the general rule was declared as one
that admitted consideration of concrete and individual circumstances of the case concerned, in
examining the three conditions that were set forth by ICJ.
of fishing, when they were founded on the vital needs of the population and attested by very ancientand peaceful usage (142). It cannot be easily understood the reason why ICJ did not find the legality of
the Norwegian straight baselines solely based upon the three considerations that it set forth, and thereason why the coherency of Norwegian straight baseline method and no protest from other States
were needed to be considered in addition to the examination of the three considerations in order todetermine the opposability of the Norwegian straight baseline method in relation to the UK. In thisregard, Eto points out that although the line of argument of ICJ is not easy to be traced, its weightis clearly shifted to the consideration of attitudes of other States from application of the standards ofgeneral international law. Junichi Eto, “Ippoteki Koi no Kokusaiho jo no Koka - Gyogyou Jiken (The
Effect of Unilateral Acts under International Law- The Fishery Case),” in Yamamoto et al eds., Kokusaiho
Hanrei Hyakusen (100 Cases in International Law), Yuhikaku, 2001, p. 13. ICJ did not find the legality of
Norwegian straight baseline method but it did its opposability in relation to the UK. Difference between
legality and opposability may form one reason for the not understandable line of argument of ICJ. In
order for finding legality of Norwegian straight baseline method, three considerations may be enough.
In contrast, in order for finding opposability of it, further examination of the two factors, which ICJ
examined, may be needed. However, as ICJ did not determine legality of it, any conclusion could not bederived that the three “consideration” are “requirements” for legality of it. Thus, as explained at supra n.
72, in this paper, the three considerations are not regarded as “requirements” for the legality of straights
baselines.
75

Okuwaki focusses upon the fact that ICJ found the opposability of Norwegian straight baseline method
as a unilateral act, when the three “considerations” (Okuwaki translated “considerations” into “yoken”
which means “requirements” in Japanese) are affirmatively determined. According to him, in thiscontext the opposability is used as a concept that resides within the world of legal rules not as a concept
to evaluate the effect of unilateral domestic measures in case of a vacuum of law, which means nonexistence of a legal rule relating to a closing line of a bay. Therefore, the opposability is admitted as far
as the unilateral measures remain within the discretion that international law allows. Naoya Okuwaki,“Katei to Shite no Kokusaiho - Jisshoshugi Kokusiho Ron ni Okeru Ho no Henka to Jikan no seigyo(International Law as a Process - Changes of Law and Restriction on Law by Time in the Positivist
International Law Theory-),” 22 Sekaiho Nenpo (Yearbook of World Law), 2003, p. 75.

76

Opposing the first logic alleged by the UK, Norway stated that:
The Norwegian Government does not rely upon history to justify exceptional rights, to claim areasof sea which the general law would deny; it invokes history, together with other factors, to justify theway in which it applies the general law (133).

77

A different evaluation of the judgment places weight on the finding of ICJ that considering the publicity,
together with other international factors, the straight baseline method became solid by the coherent
and long practice. That practice proves that other States did not regard Norwegian straight baseline
method as being at variance with international law. Tomoyuki Yuyama, “Rekishiteki Suiiki ni Kansuru
Beikoku SAiko Saibansho no Hanrei (Jurisprudence of the Supreme Court of the US Relating toHistoric Waters),” 333・334 Ritsumeikan Hogaku (Ritsumeikan Law Review), 2010, pp. 1682-1683.

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Validity of International Law over Historic Rights: The Arbitral Award (Merits) on the South China Sea Dispute

The logic of ICJ is evaluated as follows. The logic itself ensures international regulation
over claims to rights based upon historic facts and other circumstances (in Nor wayʼs case,they are claims to sovereignty over internal waters and territorial sea demarcated by drawing
straight baselines), in that it keeps such claims to rights being under international regulation
as one application of a general rule of international law. In this very sense, the logic maintains
international regulation and validity of international law over such claims to rights. If it is the case,however, reservation should be immediately added that as a result of international regulation overthose claims to rights, the contents of the rights will not necessarily become clear and objective
enough. When the three conditions set forth by ICJ are “requirements” for legality of straightbaselines under international law, the contents cannot be said to be objective enough, and thejudgment as to whether they are satisfied may not be easy.
③ When, in accordance with the first logic, historic rights are regarded as “exceptions” to a
general rule, a general rule maintains to be a law even in facing opposing phenomena to it. In
this sense, to admit exceptions would make a general rule elastic so that it would not stop beinga law, by allegations of phenomena contrar y to it. When, in accordance with the third logic,
considerations of historic rights are regarded as application of a general rule, in this very sense,
in other words, by allowing considerations of concrete and individual circumstances, it would bearelasticity, too. Either of the two logics has the common nature to provide a general rule, a law,with elasticity.78 The first logic and the third logics may be substantially distinguished from eachother, only if in the case of the third logic a general rule precisely provides in detail for concrete
and individual circumstances to be considered, so that legal assessment of those circumstances ispossible as a consequence of “interpreta- tion”or “application” of a general rule. In order to keepsuch substantial difference between the two logics, in addition to appropriate drafting of a generalrule to precisely prescribe concrete and individual circumstances, to secure the “interpretation”
and “application” of a general rule, as a legal function, in evaluating in legal terms of thosecircumstances is critically important, through proper dispute settlement procedures, particularly
judicial or arbitral procedures that interpret and apply a general rule.
Different from these logics, it may be opined that the requirement for historic waters are
determined by considering concrete and individual circumstances on a case-by-case basis. Sucha position may be seen in the judgment of the Tunisia/ Libya Continental Shelf Case.79 ICJ stated
that:[I] t seems clear that the matter (of historic waters or historic bays, added by the author)
continues to be governed by general international law which 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” (italics original) (100).
In addition, there is a scholarly writing that does not admit establishment of generalinternational law relating to historic waters.80 Such a position is led by a judgement that due to78

In this regard, regarding Tunisian claims to historic rights in the Tunisia/ Libya Continental Shelf Case,one scholar pointed out that they were not claims to historic rights and claims of exceptions to a generalrule, either. According to this scholar, Tunisia alleged factors to be considered in drawing straightbaselines. Such an idea is similar to that of this paper in admitting that both exceptions to a generalrule, on the one hand, and drafting of a general rule to allow considerations of concrete and individual
circumstances, on the other hands, are common as a way to respect individual and concrete claims
to rights. Andrea Gioia, “Tunisiaʼs Claims over Adjacent Seas and the Doctrine of ʻHistoric Rights,ʼ”Syracuse Journal of International Law, vol. 11, 1984, p. 339. The same idea is found in the examination of
Tunisian claims by posing a question: whether they were claims of historic waters, or claims of straightbaselines, ibid., p. 345 et seq.

79

Op. cit., supra n. 23, p. 18.

80

Rosenne, op cit., supra n. 36, p. 203. If this position denies that title to historic waters and the definition

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Atsuko Kanehara

too much variety of claims to historic waters to derive common elements, although there is anattempt to set forth the requirements for historic waters,81 it is not possible to precisely define
them,82 or it is even inappropriate to do that. Such suggestion of the inappropriateness may leadto a conclusion that historic rights are not matters for legal regulation, and that they should beconsidered as extra legal issues. Actually, after the 1962 Report was released, ILC did not workon the issue, and in 1967 many members of ILC raised a doubt about the timing of ILCʼs intensive
works on this issue, because it provoked political claims.83 Such a doubt, too, reflects the idea thatthe issue of historic waters do not fall within a sphere of legal regulation.
Whatever the legal status of historic waters may have under international law, it is really truethat the issue strongly requires consideration of concrete and individual circumstances of eachcase. Doubtlessly, it holds true with historic rights.
Thus far, the possible logics have been analyzed, which are applied to the issue of historicwaters, and historic rights, too. Based upon this analysis, evaluation can be given on the logic
which the tribunal adopted in the Award.

(4) T he Logic of the Tribunal in the Award with Respect to Regulation by
UNCLOS over Historic Rights① The tribunal found that Chinaʼ s historic rights are independent from UNCLOS, and that
UNCLOS is comprehensive. Independence from UNCLOS signifies no ground for China ʼ shistoric rights under UNCLOS. Therefore, as far as comprehensiveness of UNCLOS ispresupposed, the conclusion that rights under UNCLOS superseded Chinaʼ s historic rights (andthat Chinaʼ s historic rights are not preserved as exceptions to UNCLOS) is said to be logically
self-evident. The tribunal regarded Chinaʼ s historic rights as exceptions in relation to the legal
ocean order prior to UNCLOS. However, it did not mention possible status of Chinaʼs historicrights as exceptions to UNCLOS. Irrespective of that, as a logical conclusion derived fromthe comprehensiveness of UNCLOS, exceptions to it would not be admitted, unless UNCLOS

are regulated by customar y international law and general international law, historic waters would
go beyond the sphere of international law regulation. In this regard, attention should be paid to theanalysis conducted in the 1962 Report. It introduces two positions regarding historic waters: first, they
form exceptions to a general rule, and second, they are not be defined as exceptions to a general rule.
The logic of the second position is that as there has not established a general rule relating to bays,
exceptions to a general rule is unthinkable. The point is that this position denies a general rule relating
to historic waters, but it does not mean denial of legal regulation itself over historic waters. The 1962
Report, paras. 49-50.
81

The 1962 Report proposes three requirements for historic waters: first, the authority exercised over thearea by the State claiming it is as “historic waters”; second, the continuity of such exercise of authority;and third, the attitude of foreign Stets. The 1962 Report, para. 185. In Japan, in the Tekisada case inwhich the legal status of Setonaikai was disputed, both Wakayama District Court and Osaka High
Court declared two requirements for historic waters: first, the claims to internal waters have become
continuous and historical practice; and second, inexistence of disputes over the claims. Judgment of 15
July of 1974, Wakayama District Court, Hanrei Jiho (Law Cases Report), No. 844, p. 105; Judgment of 19
November 1976, Osaka High Court, Hanrei Jiho (Law Cases Reports), No. 844, p. 102.

82

Scovazzi seems to take such a position. Tullio Scovazzi, “Le régime des eaux historiques,” in D. Pharand& U. Leanza eds., The Continental Shelf and the Exclusive Economic Zone: Delimitation and Legal
Regime, Martinus Nijhoff, 1993, p. 326 et seq.

83

Report of the Commission on the Work of Its 19thSession, A/ 6709/ Rev. 1 and Rev. 1/ Corr.1, para. 45.
In a preliminary work for the 1962 Report, opinions were divided into two possibilities: first, inductive
method to examine State practice; and second presupposing a general rule relating to historic waters.
The second position was based upon a worry about extravagant claims to be found in State practice, andin that sense, such a political consideration might provoke a doubt about verification of State practice.
The 1962 Report, para. 62; Nakamura, op. cit., supra n. 58, p. 32.

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Validity of International Law over Historic Rights: The Arbitral Award (Merits) on the South China Sea Dispute

expressly provides for exceptions.
Referring to the first, second, and third logics explained above, the tribunalʼs logic is different
from the first logic, in that it did not admit exceptions to a general rule, namely UNCLOS.
Although by express provisions they would be admitted, the tribunal ʼ s logic rather placedemphasis on the comprehensiveness of UNCLOS. Is it proper to deny any grounds for historicrights under UNCLOS, except for in cases of Article 10, Paragraph 6 (historic bays), Article 15(historic titles), and Article 298, Paragraph 1 (a) (i) (historic bays, historic titles)?84 In this regard,
doubt is raised concerning the propriety, because the tribunal denied Chinaʼs historic rights notin terms of the opposability in relation to the Philippines, but in terms of the effect erga omens.85
The tribunalʼs logic is also different from the second logic that denies existence of a general rule,as the tribunal presupposes UNCLOS.
② As the final choice, did the tribunal adopt the third logic so that it considered Chinaʼs historicrights in interpreting and applying the provisions of UNCLOS? Did it secure international
regulation by UNCLOS over historic rights by providing UNCLOS with such elasticity as
considerations of historic rights with concrete and individual circumstances?
With regard to territorial sea, the tribunal admitted artisanal, traditional fishing of thePhilippines in territorial seas (805 et seq.). This is because Article 2, Paragraph 3 of UNCLOS
contains an obligation on States to exercise their sovereignty subject to “ other r ules ofinternational law” that include the rules on the treatment of a vested right, such as traditional
fishing rights. Some provision among those regarding the EEZ regime is interpreted as indicating
considerations of historic rights. Depending on such a provision, without hampering thecomprehensiveness of UNCLOS that the tribunal emphasized, historic rights would have room tobe preserved.
Concerning the provisions on the EEZ regime, the tribunal examined Article 56, Paragraph 1,
Article 58, and Article 62. Article 62, Paragraph 3 may be interpreted as reflecting considerationsof historic rights to fishing. Scholarly writings point out that this provision indirectly admits
historic rights to fishing.86 In contrast, irrespective of reference to the provision (804), thetribunal interpreted the provision as follows. It does not intend to preserve historic fishing rights,
while it does not exclude them being based upon domestic laws of coastal States and international
agreements. As a conclusion, the tribunal found that by establishing the EEZ and continental
shelf regimes UNCLOS superseded historic rights to living and non-living resources.87 It is voicedthat as UNCLOS “overwrote” historic fishing rights by Article 62, Paragraph 3, there would be noroom for historic fishing rights beyond that.88
The tribunalʼs interpretation of UNCLOS is not easily understood in that while it admitted
historic fishing rights (vested rights) within territorial sea under Article 2, Paragraph 3, in EEZ,
despite the existence of Article 62, Paragraph 3, it denied an intention of UNCLOS to preserve
historic fishing rights. Particularly considering that although coastal States have full sovereignty
over territorial seas, they have solely sovereign rights with limitation on its purpose and function
over EEZs, the tribunalʼ s conclusion is not easy to understand. One possible explanation for
the tribunalʼ s position would be different understandings by the tribunal of the territorial sea
84

Article 46 (b) is also related to historic rights.

85

Sakamoto emphasizes this point. Sakamoto, op. cit. supra n. 35, p. 200.

86

McDorman, op. cit., supran. 34 (Rights and Jurisdiction…), p. 157; McDorman, op. cit., supra n. 34 (The
Law of the Sea Convention…), p. 153; Symmons, op. cit., supra n. 24, p. 148.

87

Submission No. 10 of the Philippines referred to Article 62, Paragraph 3 as a provision addressing
a traditional fishing right, in alleging the preser vation of such a right as the Philippines enjoys at
Scarborough Shoal (782-783).

88

Nishimoto, op. cit., supra n. 19, pp. 243-244.

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Atsuko Kanehara

and EEZ regimes. On the one hand, the EEZ regime bears the sui generis nature (Article 55)
that UNCLOS itself regulates, and UNCLOS does not permit diversion from it unless there
are domestic laws and international agreements to provide for historic fishing rights. On theother hand, with regard to territorial seas, UNCLOS intends to respect restriction imposed onsovereignty by “other rules of international law.”
Even if Article 62, Paragraph 3 is interpreted as providing for consideration of historic rights,
a clear conclusion is difficult to derive regarding the degree to which Chinaʼs historic rights arepreserved. This is because the article stops at providing that:“[I]n giving access to other States …the coastal State shall take into account … the needto minimize economic dislocation in States whose nationals have habitually fished in thezone.”In the end, the tribunal did not see such significance in Article 62, Paragraph 3 as examined
here. There is no idea to be seen in the tribunal to provide UNCLOS, which is comprehensive,with such elasticity as considering Chinaʼs historic rights in “interpreting” and “applying” thearticle.89 As a matter of logic the tribunal might be said to be coherent in that without seeing
the significance of Article 62, Paragraph 3, based upon the comprehensiveness of UNCLOS it
regarded Chinaʼs historic rights as having been superseded by it. Nonetheless, incorporation of
considerations of historic rights into legal function of interpretation and application of Article 62,
Paragraph 3 could be possible without hampering the comprehensiveness of UNCLOS. By doing
so, the tribunal could have substantially given legal assessment to Chinaʼs claim to historic rights.
③ Furthermore, the tribunal seems to apply the same logic regarding the relationship between
historic rights and the EEZ regime to that between historic rights and the continental shelf
regime. It did not expressly make any distinction between the two regimes.90 It found that Chinaʼshistoric rights are superseded in the sea areas (and seabed) to which the EEZ regime or thecontinental shelf regime applies under UNCLOS (247). The tendency of disregarding distinction
between the EEZ and the continental shelf regimes is seen also in the Award on the Merits of the
Arctic Sunrise Arbitration.91 In this case, the arbitral tribunal seemed to equate the EEZ and thecontinental shelf regimes in relation to non-living resources.92 Such an equation is also opined bysome scholars.93 In the South China Sea dispute, the tribunal found that Chinaʼs historic rights
89

The tribunal interpreted the arbitral award on the Eritrea v. Yemen arbitration that the preservation of
the traditional fishing practices was a result of the application of the applicable laws in that case (259,
803).

90

Regarding continental shelf, the tribunal mentioned Article 77 and Article 81 (244).

91

The Arctic Sunrise Arbitration (Netherlands v. Russia), Award on the Merits of 14 August 2015,
https://pcacases.com/web/sendAttach/1438, for instance, paras. 278, 330.

92

Atsuko Kanehara, “Haitateki Keizaisuiiki no Engankoku no Kenri-Arctic Sunrise go Jiken wo Sozai to
Shite - (The Rights of Coastal States of Exclusive Economic Zones- An Analysis of the Arctic Sunrise
Arbitration),” Jochi Hogaku Ronshu (Sophia Law Review), Vol. 64, No. 3・4, 2017, pp. 245-246, 254, 269271.

93

Irrespective of the fact that difference is pointed out between the EEZ and the continental shelf
regimes regarding living resources, with respect to non-living resources, the two regimes are said tooverlap each other. D. D. Rothwell and T. Stephens, The International Law of the Sea, the 2nd ed., Hart
Publishing, Oxford and Portland, Oregon, 2016, p. 125. In comparison, although it was somehow in adifferent context, so-called “grey areas” also have some implications on the relationship between thetwo regimes. The “grey areas” were determined by the International Tribunal of the Law of the Sea andthe arbitral tribunal on the Bay of Bengal Case. They mean that seabed of one Stateʼ s EEZ may become
extended continental shelf of the other State. Admission of grey areas may imply that the EEZ regime
applies solely to water areas, and it is the continental shelf regime that applies to seabed both within
and beyond 200 nautical miles. In the following judgment and award grey areas were found. Dispute
Concerning Delimitation of the Maritime Boundary between Bangladesh and Myanmar in the Bay of

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Validity of International Law over Historic Rights: The Arbitral Award (Merits) on the South China Sea Disputeare at variance with both the EEZ and the Continental shelf regimes in relation to living and nonliving resources.
With respect to continental shelf, some scholars doubt acquisition of historic rights overcontinental shelf.94 The tribunal in the Award mentioned Article 77 of UNCLOS, and it equatedthe EEZ and the continental shelf regimes in terms of living and non-living resources. It did notdeclare any special meaning of the article relating to the continental shelf regime.95 The right of acoastal State over continental shelf, as declared by ICJ in the North Continental Shelf Case,96 “ipsofacto” and “ab initio” belongs to it, and occupation and other measures are not needed for it toestablish its right over continental shelf.97 This nature is frequently described as “inherency.” Asa logical consequence, it is argued that the rights to continental shelf is not based upon UNCLOS
and the 1958 Convention on Continental Shelf, but based upon customary international law. 98
Even it is argued that initially the basis of the rights to continental shelf can be traced to theprinciple “land dominates sea,”99 so that they are established by this very fundamental principle
without being based upon treaties and customary international law.100
Bengal (Bangladesh/ Myanmar), Judgment of 14 March 2012, https://www.itlos.org/fileadmin/itlos/
documents/cases/ case_no_16/C16_Judgment_14_03_2012_rev.pdf, paras. 463-476; In the Matter of the
Bay of Bengal Maritime Boundary Arbitration between The Peopleʼs Republic of Bangladesh and The
Republic of India, Award, 7 July 2014, https://pcacases.com/web/sendAttach/383, paras. 498-508. It is
pointed out that admission of grey areas connotes supremacy of rights to (extended) continental shelfover rights to seabed of EEZs. T. L. McDorman, “The Continental Shelf,” in D. D. Rothwell et al eds.,
The Oxford Handbook of the Law of the Sea, Oxford University Press, 2015, p. 200.
94

Nishimoto, op. cit., supra n. 19, p. 245.

95

The rights of coastal States to EEZs are based upon the sui generis regime established under
Article 55 of UNCLOS. In contrast, the rights of coastal Stats to continental shelves bear inherency inaccordance with Article 77. In this sense, the two kinds of rights may be distinguished.

96

North Sea Continental Shelf Cases (Federal Republic of Germany/ Denmark; Federal Republic of
Germany/ Netherlands), Judgment of 20 February 1969, ICJ Reports 1969, p. 3.

97

Based upon this point it is said that historic rights cannot be claimed against rights of coastal States tocontinental shelves. McDorman, op. cit., supra n. 34 (Rights and Jurisdiction…), p. 160: McDorman, op.
cit., supra n. 34 (The Law of the Sea Convention…), pp. 152-153.

98

In the Odeko Nihon Case, it was ruled that although Japan was not a party to the 1958 convention
on Continental Shelf, it may enjoy the rights based upon customary international law relating to thecontinental shelf regime. Judgment of 22 April 1982, Tokyo District Court, Gyosei Jiken Saiban Rei Shu(Administrative Cases Reports), Vol. 33, No. 4, p. 868.

99

In the Fishery Case, ICJ stated that: [ i] t is the land which confers upon the coastal State a right to thewaters off its coast (133). Similar remarks are found in the judgment of the North Sea Continental Shelf
Case (30), op. cit., supra n. 96, and the judgment in the Bay of Bengal Case (409), op. cit., supra n. 93.

100

As a different opinion concerning the “inherency” of the rights to continental shelf, it is voiced that
One of the aims behind the propagation of the doctrine was to annul any priority of claim in timeor nature over the rights of the coastal State, so that, for example the doctrines of historic rights or
acquisitive prescription would not be available.
Daniel Patrick OʼConnell, edited by I. A. Shearer, The International Law of the Sea, Vol. I, Clarendon
Press, 1982, p. 482; see also, ibid., vol. II, p. 713; Gioia, op. cit., supra n. 78, pp.
371-372. Regarding the territorial sea regime, OʼConnel stated that:
There is no precedent for a successful claim to continued fishing rights in waters newly converted
to territorial waters, so that the claim made in this case of adjacent fishery zone had the appearanceof a novel institution - in the absence of treaty rights - which could be rationalized only on the basisof practice. However, the practice has favoured phasing-out rather than maintenance of rights, andphasing-out presupposes a concession rather than a recognition of a right, so that, it is difficult
to regard the practice as more than diplomatic expediency, although it has been widespread,and therefore politically influential. While most traditional fishing rights are opposable to states
extending their fishery limits…only when derived from treaty, it is possible for them to derive from30
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Such arguments would provoke an issue of validity of international law, or maintenance ofinternational regulation over the rights to continental shelf. Here, it suffices to point out thefact that concerning the rights to continental shelf, too, there would be an issue of validity ofinternational law,101 because the tribunal in the Award did not touch upon the issue. As a matterof logic, it was enough for the tribunal to emphasize the comprehensiveness of UNCLOS and tofind the contradiction between Chinaʼs historic rights and the rights to continental shelf under
UNCLOS, in order to deny Chinaʼs historic rights. In the Award there was no need to address
the issue of the inherency of the rights to continental shelf. Apart from this, there would be
an argument concerning the relationship between historic rights and the rights to continental
shelf that are “inherent.”102 Here it is also meaningful to note that there is an opinion that while
in relation to the rights to EEZ historic rights may be considered, in relation to the rights tocontinental shelf, because of the “inherent” nature, no historic rights may be claimed.103

4. Concluding Remarks(1) A Doubt Concerning the Logic of the Tribunal in the Award
This paper examined the Award from the perspective of the logic for international regulation bya domestic legal source in the coastal State, although in this case it is questionable whether thecoastal State may not revoke them without breach of international law.
Ibid., Vol. I, p. 538.
101

The issue of validity of international law or maintenance of international regulation may be raised inrelation to outer continental shelf. It would be questioned on what basis non-party States to UNCLOS
enjoy the rights to outer continental shelf, and if they do, whether they should comply the procedures
including those relating to the Commission of Limits of Continental Shelf that was established by
UNCLOS. As an opinion that emphasizes that the rights of a coastal State to outer continental shelf exist“ipso facto” and “ab initio”as being declared by ICJ in the judgment of the North Sea Continental Shelf
Case, see, Ted L. McDorman, “The International Legal Framework and the States Activities Regarding
the Continental Shelf beyond 200-n. Miles in and Adjacent to the East and South China Sea,” in Jon M.
Van Dyke et al. eds., Governing Ocean Resources-New Challenges and Emerging Regimes, A Tribute toJudge Choon-Ho Park, Martinus Nijhoff Publishes, 2013, p. 169. Nonetheless, he cited an opinion thata coastal Stateʼs “inherent”right to continental shelf under Article 77, Paragraph 3 of UNCLOS does
not remove from the coastal State the burden of demonstrating its entitlement. Ted L. McDorman,“The Outer Continental Shelf in the Arctic Ocean: Legal Framework and Recent Developments,” inDavor Vidas ed., Law, Technology and Science for Oceans in Globalization - IUU Fishing, Oil Pollution,
Bioprospecting, Outer Continental Shelf, Martinus Nijhoff Publishers, 2010, pp. 504-506. See also,
Atsuko Kanehara “200 Kairi wo Koeru Tairikudana no Genkai Settei wo Meguru Itikosatsu (SomeConsiderations Concerning the Limitation of Outer Continental Shelf),” Murase and Eto eds., Kaiyo
Kyokai Kakutei no Kokusaiho (International Law of Maritime Delimitation), Toshindo, 2008, pp. 109116.

102

In his Separate Opinion in the Tunisia/ Libya Continental Shelf Case, Aréchaga stated that:“[A] new legal concept, consisting in the notion introduced in 1958 that continental shelf rights are
inherent or ʻab initioʼ cannot by itself have the effect of abolishing or denying acquired and existingrights. That would be contrary to elementary legal notions and to basic principles of intertemporal
law.”
Separate Opinion of Judge Jiménez Aréchaga, op. cit., supra n. 23, para. 82, cited by Gioia, op. cit., supra n.
78, p. 372.
It was not indicated by him what the elementary notions and basic principles of intertemporal law
are. If they were the concept and/ or principle of non-retroactivity, according to them, law could notdeny or change acquired and existing rights. As an observation on this point, see,
Gioia, op. cit., supra n. 78, p. 372.

103

See, supra n. 97.

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Validity of International Law over Historic Rights: The Arbitral Award (Merits) on the South China Sea Dispute

UNCLOS and its validity over Chinaʼs claims to historic rights.
The tribunal, on the one hand, did not adopt the logic that admits exceptions to a general rule,setting aside the cases in which provisions expressly permit exceptions. On the other hand, it
did not follow the logic to leave room for considerations of concrete and individual rights, suchas historic rights in interpreting and applying a general rule. These two logics provide a law withelasticity, in that the former assumes a general rule which admits exceptions to it, and in thatthe latter assumes a general rule which permits considerations of rights based upon concrete
and individual circumstances. In sum, the tribunal denied to give elasticity to UNCLOS in either
way. It is doubtful whether such interpretation of UNCLOS is the best one in order to ensure theregulation and the validity of UNCLOS when it faces claims to historic rights that strongly requireconsiderations of concrete and individual circumstances. The tribunalʼs logic that emphasizes thecomprehensiveness of UNCLOS may have a risk of making UNCLOS inflexible so that validityof UNCLOS as a law and regulation by UNCLOS over various phenomena would fall in danger.
Neither the tribunal maintains validity of UNCLOS as a law that would be maintained if it wereinterpreted as permitting exceptions in case of phenomena being at variance with it, unless it
explicitly admits exceptions. Nor the tribunal keeps the regulation of UNCLOS over historicrights based upon concrete and individual circumstances, which would be preserved if it wereinterpreted as giving the room for considerations of those circumstances. In the end, it did not
substantially give legal assessment to Chainʼs claim to historic rights.104
One of the most important rulings of the Award is that the tribunal clearly denied Chinaʼ shistoric rights by emphasizing the comprehensiveness of UNCLOS. However, assessment tobe given is that it was not successful to build logic for UNCLOS and international law to secureincessantly and in a solid manner their validity as laws in facing various phenomena to be
expected to be legally regulated. International law really needs to keep its validity as a law and its
regulation over emerging phenomena and claims to rights based upon pre-existing laws, as well.
Regarding an issue of validity of international law, in addition to the issue of the logic of
how to regulate phenomena, which has been thus far analyzed in this paper, dispute settlement
procedures, particularly judicial or arbitral procedures that interpret and apply laws have a close
relation to it. Thus, in the ending partof this paper, the finding of the Award on Article 298, Paragraph 1 (a)(i) andthe tribunal ʼ s determination of jurisdiction to enter tain the dispute will be succinctly
addressed.

(2) The Finding of the Tribunal in the Award on Article 298, Paragraph 1 (a) (i)of UNCLOS① The tribunal concluded that the dispute concerning Chinaʼs historic rights are not excluded
from its jurisdiction by Chinese declaration of 2006 pursuant to Article 298, Paragraph 1 (a) (i), forthe reason that according to the tribunal, Chinaʼ s historic rights are rights to living and non-living
resources being different from historic titles under the article. Considering the scholarly writings
in relation to historic waters and historic rights that were referred to above,105 it is well grounded
to make distinction between titles to historic waters and rights, short of sovereignty, to particular
activities and resources. Nevertheless, it is not clear whether Article 298, Paragraph 1 (a) (i)was drafted with intention to give the term “title” such a definitely limited meaning as excluding104

As observed above, in Section 3 (1), the Tribunalʼs interpretation of Article 311 of UNCLOS is also
said to prevent it from determining the customary international law that may give grounds for historicrights and providing substantial consideration on Chinaʼs claim to historic rights in accordance with thecustomary international law, if there is any.

105

Section 2 (2).

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a right to particular activities and resources.106 If the tribunal reached this conclusion in thesituations that the interpretation of the term historic titles has not been established yet,107 and that
there is not generally shared view of its meaning,108 the tribunalʼ s position may be understoodas remarkable interpretation in limiting the meaning of the term titles. That means the tribunal
adopted interpretation by which possibility of compulsory dispute settlement procedures entailingbinding force (hereinafter referred to as judicial procedures as far as no misunderstanding would
be expected) increases.109It is not difficult to speculate existence of motivation for jurisdiction of
the tribunal at the background for such interpretation by the tribunal.
② Another point is to be raised, concerning the tribunalʼs interpretation of the term historic
titles. Article 298, Paragraph 1 (a) (i) might not make definite distinction between historic bays
or titles, on the one hand, and historic rights on the other hand. If it is the case, the object of thearticle could be to deny judicial procedures for any claims to “historic” things (claims to historicbays, historic waters and historic rights), and thus, to deny interpretation and application of law
by judicial procedures in relation to any claims to “historic” things.110 In other words, the objectof UNCLOS could be to deny legal regulation over any claims to “historic” things, at least in
the sense that interpretation and application of UNCLOS by judicial procedures are not given
to these things.111 In contrast, if the tribunalʼs interpretation of Article 298, Paragraph 1 (a) (i)purported to limit the meaning of historic bays or titles, in other words to limit exceptions to
judicial procedures, so that it kept “wide” jurisdiction of judicial procedures, such interpretation,
106

The Virginia Commentary does not provide commentaries to the provision. Myron H. Nordquist et
al eds., United Nations Convention on the Law of the Sea 1982 - A Commentary, Vol. V, Article 298.
Accordingly it did not give support to either of interpretations of “titles,” that by the tribunal and other.

107

Donald R. Rothwell. “Conciliation and Article 298 Dispute Resolution Procedures under the Law of the
Sea Convention,” in Shicun Wu and Keyuan Zou eds., Arbitration Concerning the South China Sea Philippines versus China, Routledge, 2016, p. 62.

108

It is pointed out that while under Article 298, Paragraph 1 (a) (i)historic bays have specific meaning,
it does not the case for historic titles, which may have wider meaning than historic titles under Article
15 of UNCLOS. McDorman, op. cit., supra n. 34(Rights and Jurisdiction…), p. 152; McDorman, op.
cit., supra n. 34 (The Law of the Sea Convention…), p. 152; Zou and Liu, op. cit., supra n. 12, p. 144. As
understanding of the terms, historic rights, historic titles, and historic waters, the tribunalʼs terminology
may be a possible one. However, in State practice and scholarly writings these terms are sometimes
used interchangeably, and thus, it is said that they do not have coherent meanings. Concerning theterminology in scholarly writings, see, Li and Li, op. cit., supra n. 3, pp. 291-293. As to the incoherency
in State practice, see, McDorman, op. cit., supra n. 34 (The Law of the Sea Convention…), p. 150.
Symmons opines that under Article 298, Paragraph 1(a) (i) “title” has wider meaning than “bay” toinclude claims to historic rights. Symmons, op. cit., supra n. 24, pp. 146, 155.

109

Zou maintains that China can invoke exclusion of the dispute over the nine-dash line from jurisdictionof judicial procedures in accordance with Article 298, Paragraph 1 (a) (i) and that China has preferredbilateral negotiations to judicial procedures regarding territorial and maritime disputes. Zou Keyuan,“Chinaʼ s U-Shaped Line in the South China Sea Revisited,” Ocean Development & International Law,
Vol. 43, 2012, p. 29. In his other work, Zou defines Chinaʼs historic rights as “tempered sovereignty” thatis different from both an exclusive right and a non-exclusive right to fishing on the high seas. Although
he suggests that China can invoke Article 298, Paragraph 1 (a) (i), it cannot be judged whether thisposition is consistent with his understanding of Chinaʼs historic rights, as he does not provide any
interpretation of “titles” under the provision.

110

Strupp criticizes the Chinese scholarly writings that interpret the object of Article 298, Paragraph 1 (a) (i)as to freeze the situations prior to UNCLOS. Michael Strupp, “Maritime and Insular Claims of the PRC
in the South China Sea under International Law,” Zeitschrift für Chinesisches Recht, Bd. 16, 2004, pp. 8-9.

111

As an analysis of the conciliation under UNCLOS as a possible dispute settlement procedure for
the South China Sea dispute, in case in which the tribunal denies its jurisdiction to entertain it, see,
Rothwell, op. cit., supra n. 106, pp. 55-69.

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Validity of International Law over Historic Rights: The Arbitral Award (Merits) on the South China Sea Dispute

although possibly different from the object of UNCLOS, may widen the sphere of legal regulation
by UNCLOS, as far as interpretation and application of UNCLOS by judicial procedures areconcerned.
③ In contrast, the tribunal in the Award took a position that may increase exceptions to judicial
procedures in interpretation of Ar ticle 298, paragraph 1 (a) (i), which means limiting its
jurisdiction.
The tribunal denied (215) the Philippinesʼ argument that historic bays and titles under Article
298, Paragraph 1 (a) (i) should be interpreted in connection with maritime delimitation (191).
However, in the drafting process there existed an opinion that purported to provide for the
disputes concerning maritime delimitation separately from those concerning historic bays, andan opinion that combined the two types of disputes. The latter was adopted.112 Considering this,the fact that the tribunal separated the disputes concerning historic bays or titles from thoseconcerning maritime delimitation, is understood as interpretation that may increase exceptions
to judicial procedures. This is because according to the tribunalʼs interpretation, the disputes
concerning historic bays or titles form exceptions to judicial procedures, which are independent
from exceptions of disputes concerning maritime delimitation.

(3) Relation between Interpretation of Article 62, Paragraph 3 of UNCLOS and
Dispute Settlement Procedures
Relating to regulation by UNCLOS, in this paper a possibility was already suggested to interpret
Article 62, Paragraph 3 as allowing considerations of historic rights. In that case, historic rights
are considered by interpreting and applying the provision of UNCLOS, which enables UNCLOS,a law, to regulate them and to legally appreciate them. In doing that, the tribunal could havesubstantially assessed Chinaʼs historic rights. Such interpretation of Article 62, Paragraph 3, froma logical perspective, would not hamper the comprehensive- ness of UNCLOS that the tribunal
emphasized. A reservation should be immediately added, however, that even if such interpretationof Article 62, Paragraph 3 is adopted, whether UNCLOS can legally assess historic rights withconcrete and individual circumstances would depend on the following factors: first, to what
extent the provision precisely and objectively provides for the contents of concrete and individual
circumstances that are to be considered in its interpretation and application; and second, to what
extent judicial or arbitral procedures are used, which fulfill the function of interpretation andapplication of Article 62, Paragraph 3.
From this perspective, it is noted that Article 297, Paragraph 3 (a) disputes concerning Article
62, Paragraph 3 form exceptions to compulsory judicial or arbitral procedures. Accordingly, even
if the tribunal had adopted such interpretation of Article 62, Paragraph 3 as allowing considerationof historic rights so that historic rights as being within the reach of its regulation are to belegally assessed, it would have been difficult for judicial or arbitral procedures to treat disputes
concerning claims to historic rights. To the extent that Article 297, Paragraph 3 (a) excludes the
disputes concerning claims to historic rights from compulsory judicial and arbitral procedures, sothat application of UNCLOS by these procedures to those disputes are not ensured, UNCLOS issaid to release historic rights from its regulation.

(4) The Finding of the Jurisdiction of the Tribunal in This Case

Finally, it is useful to consider the characteristic of the tribunalʼs finding of its jurisdiction overthis dispute. The tribunal, in the Award on Jurisdiction and Admissibility, defined this dispute as
follows:“[A] dispute concerning the interaction of the Convention (UNCLOS, by the author) with112

The Virginia Commentary, op. cit., supra n. 106, Article 298. 17.

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another instrument or body of law, including the question of whether rights arising underanother body of law were or were not preserved by the Convention, is unequivocally a
dispute concerning the interpretation and application of the Convention (emphasis added)”(168).
Here the tribunal included a dispute concerning the interaction of UNCLOS with another
instrument or body of law in the disputes concerning interpretation or application of UNCLOS.
It might be said that by doing this, the tribunal widened the concept of a dispute concerninginterpretation or application of UNCLOS, so that the number of disputes that are subject to thedispute settlement procedures under UNCLOS would increase.113 Although wide possibility is
not guaranteed, to the extent that at least some of these disputes are subject to judicial or arbitralprocedures that interpret and apply UNCLOS, its regulation over them is ensured. In that sense,
the tribunalʼ s definition of a dispute concerning interpretation or application of UNCLOS may
demonstrate its positive attitude toward widening the sphere of regulation by UNCLOS.
This paper focused upon the logic of the tribunal relating to regulation by UNCLOS from aperspective of validity of international law. It raised a doubt to the tribunalʼs logic in the Award.
ICJ in the judgment of the Fishery Case ruled that the Norwegian straight baseline method is one
application of a general rule, and scholarly writings define claims to historic waters as exceptions
to a general rule. The logics found in them are really devices to provide international law withelasticity, in order to maintain legal regulation over phenomena that require considerations ofconcrete and individual circumstances, and in order to keep it as a law even in facing exceptional
phenomena. In sum, these logics are devices in order to keep validity of international law. In
contrast to them the tribunalʼs logic in the Award is problematical.
As examined in the ending part of this article, the goal of ensuring validity of UNCLOS is notachieved solely by devising logic of international regulation. The dispute settlement procedures,
mainly judicial or arbitral procedures that interpret and apply UNCLOS, are closely related tothe achievement of the goal. Furthermore, in the South China Sea dispute, the tribunalʼ s logicof legal regulation is applied solely to the interaction between a body of law concerning historicrights, and the EEZ and the continental shelf regimes. For other issues, UNCLOS would needdifferent logical devices in order to maintain its validity and regulation. The tribunalʼs logic is only
one possibility. Accordingly, how to ensure validity of UNCLOS, validity of international law stillrequires further considerations including examination of dispute settlement procedures.

113

As an analysis of the concept of a dispute concerning interpretation or application of international law,
Kanehara, op. cit., supra n. 18.

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