ABSTRACT
The existence and relevance of historic rights in the South China Sea (SCS) appear to be at the core of the dispute between the states in the region. This aspect of the dispute was triggered by China’s official pronouncement of the so-called U-shaped line in 2009 as a response to claims to the outer limit of the continental shelf by other states in the region. However, how China’s historic claim relates to the U-shaped line, or to specific waters in the SCS, is not clear. Historic rights were one of the central issues examined by the Tribunal in the arbitration between China and the Philippines concerning the Philippines’ submission that “China’s claims based on its ‘nine-dash line’ are inconsistent with the Convention and therefore invalid.” This chapter examines three interrelated issues with respect to the existence of historic rights in the South China Sea in the light of China’s historic claim and the Award of the SCS Tribunal. Firstly, this chapter explores the nature and the type of the historic claim raised by China by examining China’s statements and pronouncements, their interpretation by authors, and by the Tribunal in the SCS arbitration. This chapter then turns to assess two types of historic rights that might be potentially relevant in the SCS context, namely historic rights short of sovereignty and historic fishing rights. For each of these categories of rights, this chapter examines in turn their post-LOSC existence and relevance (in general and with reference to specific claims in the SCS), and then the requirements for the ascertainment of these rights. Finally, it draws some conclusions regarding the potential existence of historic rights in the SCS.
