The U.S. View on 'Historic Rights' within the Nine Dash Line

On July 12, 2016, an arbitral tribunal constituted under the United Nations Convention on the Law of the Sea (UNCLOS) in the matter of the  South China Sea Arbitration (Philippines v. China)  ruled that:

China’s claims to historic rights, or other sovereign rights or jurisdiction, with respect to the maritime areas of the South China Sea encompassed by the relevant part of the ‘nine-dash line’ are contrary to the Convention and without lawful effect to the extent that they exceed the geographic and substantive limits of China’s maritime entitlements under the Convention (para. 278).

The tribunal went on to declare that “the Convention [had] superseded any historic rights, or other sovereign rights or jurisdiction, in excess of the limits imposed therein.” In its reasoning, the tribunal judged China’s ‘historic rights’ claim to “appear to be” an exclusive one. In this respect, it observed that:

The notion of sovereign rights over living and non-living resources is generally incompatible with another State having historic rights to the same resources, in particular if such historic rights are considered exclusive, as China’s claim to historic rights appears to be (para. 243).   

There cannot be two equally definitive exclusive claims to a single water body. As such, the tribunal was correct to judge that Beijing’s claim exceeded the geographic and substantive limits of its entitlements under the Convention.

It is less obvious if the Tribunal was correct in the first place to designate China’s ‘historic rights’ claim as an exclusive claim to sovereign rights and jurisdiction in the exclusive economic zones (EEZ’s) of the other adjacent and opposite coastal states in the South China Sea. None of the instances of proof furnished by Manila to the tribunal at the time showed China actually exercising these (exclusive) rights in a non-conforming sea area. Manila marshalled four pieces of evidence – two fisheries-related and two resource-rights related – in this regard.

Exhibit A of the fisheries-related evidence was a Hainan Provincial Regulation on the Control of Coastal Border Security which empowered Chinese authorities to board, inspect, detain and deport offending foreign fishing vessels in the South China Sea waters. Manila argued that its geographic application extended to the entire Northern Sector of the South China Sea, including to waters beyond China’s EEZ. Exhibit B was an article in a Chinese state-owned publication (Maritime News) in December 2012 announcing the formal commissioning of a Maritime Safety Administration vessel (Haixun 1) which apparently was intended to exercise surveillance of waters covering nearly 2 million square nautical miles under the jurisdiction of Hainan Province. This geographic scope, Manila noted, was equivalent to the area encompassed by China’s Nine-Dash Line – proving, in turn, that China was enforcing its exclusive writ up to the limits of the Nine-Dash Line.

With regard to the non-living resources of the South China Sea, Exhibit A was China’s protest of the Philippines’ offer of exploration and development of petroleum blocks within 200 nautical miles of the latter’s coast in the mid-section of the South China Sea. And Exhibit B was a map published by China’s state-owned China National Offshore Oil Corporation (CNOOC) in 2012 that displayed oil blocks slated for development-related bidding in waters adjacent to the Vietnamese coast, which in the case of some blocks fell even beyond 200 nautical miles from any claimable insular feature in the South China Sea. Again, this was conclusive proof, Manila argued, that China asserted exclusive seabed rights to the entire area enclosed by the Nine-Dash Line, and which had no basis in the Law of the Sea Convention. (On the fisheries-related pieces of evidence, see Philippines v. China, first round submissions by Philippe Sands, Legal Counsel for the Philippines, on Day 2 of the Merits Hearing, November 2015, p. 153. On the non-living resources-related pieces of evidence, see Philippines v. China, first round submissions by Bernard Oxman, Legal Counsel for the Philippines, on Day 1 of the Merits Hearing, November 2015, pp. 56-57).

The tribunal agreed with Manila on each of these points and, for added measure, quoted corroborating statements by senior Chinese officials regarding the nature of rights claimed by Beijing within the Nine-Dash Line. On the other hand, and as earlier noted, none of the instances of proof furnished showed China actually exercising these (exclusive) rights in a non-conforming sea area. The tribunal could also have paid attention to China’s fishing practices in the waters adjoining Indonesia’s Natuna Islands in the extreme southwest corner of the nine-dash line. At the time, i.e., prior to July 2016, in these waters, China had never challenged the primacy of Indonesia’s sovereign rights and jurisdiction to exploit the non-living resources of the sea and had only asserted a limited and non-exclusively-exercisable traditional fishing right based on local custom.

In the years since however, the correctness of the tribunal’s ruling has been re-confirmed, with Beijing interfering on multiple occasions with Hanoi’s, Jakarta’s and Kuala Lumpur’s exclusive rights to develop oil and gas resources in their respective sectors of the South China Sea. China could claim, on the other hand, that its interference in the EEZ’s of Hanoi, Jakarta and Kuala Lumpur has nothing to do with the defense of a ‘historic right’. Rather, it has everything to do with the enforcement of Article 5 of the November 2002  Declaration on the Conduct of Parties in the South China Sea  – “the Parties undertake to exercise self-restraint in the conduct of activities that would complicate or escalate disputes and affect peace and stability…” - while the Code of Conduct negotiations is still on-going. And since China does not accept the tribunal’s award, the relevant water areas and underlying sea-bed rights remain, in its view, areas that are rightfully the subject of a dispute based on the ‘land dominates the sea’ principle.

The United States’ legal position on ‘historic rights’ comes in two parts. First, is the view that the Convention’s provisions relating to the EEZ, continental shelf, and high seas do not contain any exceptions for historic claims in derogation of the sovereign rights and jurisdiction of a coastal State or the navigational freedoms of all States. As such, in these maritime areas, the Convention’s provisions prevail over any assertion of historic claims. In its December 2014  Limits in the Seas  analysis of China’s “dashed-line” claim, the U.S. State Department asserts that:

Had the drafters of the LOS Convention intended to permit historic claims of one State to override the expressly stated rights of other States, the Convention would have reflected this intention in its text. Instead, as with the 1958 Convention, the LOS Convention limits the relevance of historic claims to bays and territorial sea delimitation. Accordingly, with regard to possible Chinese “historic rights” in the South China Sea, any such rights would therefore need to conform to the Convention’s provisions that deal with the relevant activities [… and China’s claim fails to do so] (p. 20, Limits 143).

The State Department doubles-down on this point in its follow-up study of China’s South China Sea claims,  Limits in the Seas No. 150 , released in January 2022. It observes at some length that:

… the South China Sea is a large semi-enclosed sea in which numerous coastal States have entitlements to EEZ and continental shelf, consistent with the LOS Convention; the law of the sea does not permit those entitlements to be overridden by another State’s maritime claims that are based on “history.” To the contrary, a major purpose and accomplishment of the Convention is to bring clarity and uniformity to the maritime zones to which coastal States are entitled (p. 8, Limits 150).

Insofar as China’s ‘historic rights’ claim is an exclusive claim to sovereign rights and jurisdiction to the living and non-living resources of the sea beyond its own EEZ and continental shelf, the claim is an excessive one. The U.S. State Department’s legal view is a commonplace one. It is also the authoritative one which was shared by the tribunal in Philippines v. China.

Less tenable is the second part of the United States’ legal position on ‘historic rights’. As per this view, aside from a narrow list of enumerated provisions relating to history (Article 10 and Article 15) or the traditional use of the sea (Article 51 and 62(3)), the LOS Convention is comprehensive in scope and “leave[s] no room for claims by any State that derogate from the rights of a coastal State” with respect to the latter’s exclusive maritime zones. As it notes:

The text and drafting history of the Convention make clear that, apart from a narrow category of near-shore “‘historic’ bays” (Article 10) and “historic title” in the context of territorial sea boundary delimitation (Article 15), the modern international law of the sea does not recognize history as the basis for maritime jurisdiction (p. 9, Limits 143).

Furthermore, a State may not reach beyond the Convention and take recourse to customary international law to justify a ‘historic right’ that is plainly absent in the text of the Convention. In this vein, the State Department analysis observes at some length that:

It has also been argued that “historic title” and “historic rights” are “matters not regulated by this Convention [and thus] continue to be governed by the rules and principles of general international law” outside of the LOS Convention. This position is not supported by international law and misunderstands the comprehensive scope of the LOS Convention. The Convention sets forth the legal regimes for all parts of the ocean …therefore, a State may not derogate from the Convention’s provisions on such matters by claiming historic waters or historic rights under “general international law”…the Convention does not permit a State to resort to “general international law” as an alternative basis for maritime jurisdiction that conflicts with the Convention’s express provisions related to maritime zones (p. 21, Limits 43).

This reasoning (which is repeated in Limits 150) is not supported by Law of the Sea jurisprudence. On both key counts – whether a state can reach beyond the text of the LOS Convention to general or customary international law; and whether the latter can override the former – LOS jurisprudence is more nuanced and points in the contrary direction.

The treatment of ‘historic rights’ in exclusive maritime zones was considered by the tribunal in  Philippines v.China  in the course of two submissions: (a) with respect to China’s claim to ‘historic rights’ in the maritime areas encompassed by the ‘nine-dash line’ (Submissions #1 and #2); and (b) with respect to China’s actions regarding traditional fishing at Scarborough Shoal in the northern sector of the South China Sea (Submission #10). The tribunal’s treatment of China’s ‘nine-dash line’ claim has already been discussed in the previous section. With respect to the latter submission (Submission #10), the tribunal first defined the term ‘historic rights’ to be one that:

… is general in nature and can describe any rights that a State may possess that would not normally arise under the general rules of international law, 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 short of a claim of sovereignty (para. 225).

A traditional or artisanal fishing right is, as such, nothing other than a form or type of ‘historic right’. The tribunal went on to note later that traditional fishing rights, acquired through long usage, were protected under international law (para. 806). Such traditional fishing rights:

… constitute a vested right, and the Tribunal considers the rules of international law on the treatment of the vested rights of foreign nationals to fall squarely within the “other rules of international law” applicable in the territorial sea (para. 808).

Continuing in this vein, the tribunal pointed out that in the territorial sea, “Article 2(3) [of the Convention] contains an obligation on States to exercise their sovereignty subject to ‘other rules of international law’” (para. 808). With respect to the Scarborough Shoal, this meant that the coastal State (China in this instance) was legally obliged to respect the traditional fishing rights of foreign (in this instance, Filipino) fishermen within the territorial sea. Beijing had failed to discharge this obligation by unlawfully preventing Filipino fishermen from engaging in traditional fishing at Scarborough Shoal.

The court was, in effect, saying that a State (The Philippines in this case) could employ the text of the Convention to derive a ‘historic right’ (traditional fishing rights in this case) from the body of general or customary international law (the ‘other rules of international law’ in this case). And that these ‘other rules of international law’ could override, or at minimum, coexist with another State’s exclusive entitlements (China’s territorial sea entitlements in the Scarborough Shoal in this case) at sea. Both points challenge the United States’ interpretation that the LOS Convention is comprehensive in scope, and that a user state may not override a coastal state’s entitlements with a history-based claim that is founded in general international law.

The tribunal’s reasoning in Philippines v. China is neither abrupt nor unprecedented. In  Republic of Mauritius v. United Kingdom (Chagos Marine Protected Area Arbitration Award , 2015), the court had judged that:

States may possess particular rights … by virtue of bilateral agreements or local custom … [and] that the Articles [of the Law of the Sea Convention] were not intended to interfere with such [local custom or tradition-based historic] rights (para. 516) … the multi-lingual ‘terms of the treaty in their context and in the light of its object and purpose’, together with the negotiating history of the Convention, lead to the interpretation that Article 2(3) contains an obligation on States [in fact] to exercise their sovereignty subject to [these] “other rules of international law” (para. 514)

And earlier, in the  two-stage   State of Eritrea v. Republic of Yemen (Sovereignty and Maritime Delimitation in the Red Sea ) arbitration of the late-1990s, the tribunal – alluding to the traditional openness of southern Red Sea marine resources for fishing – had even gone so far as to observe that there:

are important elements capable of creating certain “historic rights” [in maritime zones] … these special factors constitute a local tradition entitled to the respect and protection of the law … and by its very nature, [this traditional fishing regime] is not qualified by the maritime zones specified under the United Nations Convention on the Law of the Sea” (paras. 126, 95 and 109).

Successive tribunals seated after the coming into effect of the LOS Convention have quashed any discrepancy whether a ‘historic right’ based on customary international law, such as traditional fishing rights and rights of access, can or cannot co-exist in the exclusive maritime zone of a coastal state. Such rights unquestionably can. These rights are acquired rights of a private nature akin to property rights, are formed over the long course of history, vest with their State, and are capable of being exercised non-exclusively in the exclusive maritime zone of a coastal State.

Where a discrepancy does continue to exist rather is over the geographic scope of enjoyment of this customary law-based right. During the second stage proceedings in Eritrea v. Yemen, the court had famously pronounced:

Th[is] traditional fishing regime [was] not limited to the territorial waters of specified islands; nor are its limits to be drawn by reference to claimed past patterns of fishing … By its very nature it is not qualified by the maritime zones specified under the United Nations Convention on the Law of the Sea … [Rather] the traditional fishing regime operates throughout those waters beyond the territorial waters of each of the Parties, and also in their territorial waters and ports (para. 109).

The court in Philippines v. China took an opposite tack and limited such third-party history or tradition-based access and usage rights to the territorial sea only of the coastal State. It observed that:

having reviewed the extensive attention given to the question of fishing by nationals of other States in the exclusive economic zone and the degree of control over fisheries that was ultimately given to the coastal State, the Tribunal does not consider it possible that the drafters of the Convention intended for traditional or artisanal fishing rights to survive the introduction of the exclusive economic zone. In this respect, the Tribunal disagrees with the conclusions of the tribunal in Eritrea v. Yemen (para. 803).

Clearly, a legitimate debate remains to be had over the geographic scope of enjoyment of such traditional fishing rights in the exclusive maritime zones of a coastal State in a semi-enclosed sea. Do such history-based traditional fishing rights obtain in the exclusive economic zone too of a coastal State? Or are such rights limited to the territorial sea of the coastal State, particularly in the case of a semi-enclosed sea?  Article 23 of UNCLOS  does after all enjoin coastal states fringing a semi-enclosed sea, such as the South China Sea, to “endeavor … to coordinate the management, conservation, exploration and exploitation of the living resources of the sea.”

The debate over the geographic scope of enjoyment of traditional fishing rights should not obscure the reality that this ‘historic right’ originates in general international law, and that it can override, or at minimum, coexist with another State’s exclusive entitlements. This jurisprudential view challenges the U.S. government’s legal position on ‘historic rights’ in exclusive maritime zones. As for China, if it wishes its ‘historic rights’ claims to enjoy a modicum of support in the international community, it should first spell out clearly that it seeks no more than a non-exclusively exercisable traditional fishing right in the South China Sea. Commercial fisheries and oil and gas development rights are rights of an exclusive nature and, beyond the geographic scope of its EEZ, will never make the cut as an UNCLOS-protected ‘historic right’.