ABSTRACT
The topic of ‘historic claims’ to, or in, maritime areas has long been an arcane and unsatisfactory subject in the law of the sea on which little comprehensive analysis has been done in the past. 1 This is unfortunate as this aspect of the law of the sea is dependent for its rules on international customary law, with all the lack of clarity that can attend such a source of law; and indeed, as this writer has found, when the supposed rules are analysed in depth, they are found to be wanting. This deficiency is exemplified in UNCLOS which has at most only three references to historic issues ex nomine: mentioning ‘so-called “historic bays”’ in Art. 10(6) (the bays provision), ‘historic title’ (in the context of territorial sea delimitation (Art. 15)); and the exclusion of disputes involving ‘historic bays or titles’ from compulsory dispute settlement procedures in Art. 298(1). 2 No attempt is made in any of these references to elucidate the meaning of these differing terms or the rules attached to them. However, it may be noted that the very phrase ‘historic title’ was used by the ICJ in 1951 to describe ‘historic waters’. 3 In the light of such limited reference, resort must be had to the UNCLOS preamble for guidance relating to matters not dealt with within the Convention; and these are said to be governed by customary international law. 4 This is, of course, of no interpretative assistance on the relevant terminology here, and this omission only adds to the vagueness as to the meaning of the various ‘historic’ concepts mentioned (including those possibly implied) in the Convention 5 and the rules that are presumed to exist relating to them. Such lack of precision has, unfortunately, the inherent danger of encouraging states to make historic maritime claims ‘of increasing scope’ – as may now be evident in the South China Sea (SCS) dispute. 6
