Historic Titles and Historic Rights in the Law of the Sea in the Light of the South China Sea Arbitration

The contemporary relevance of historic titles and historic rights in the law of the sea has been questioned following the adoption of the Law of the Sea Convention (LOSC), the endorsement of a significant expansion of the jurisdiction of coastal states, and the consolidation of the jurisdictional regime of maritime zones. Historic titles and historic rights have been a complicated issue in the law of the sea both conceptually and practically. These concepts have attracted attention in academic literature mainly in papers discussing the validity of specific claims, and more recently concerning China’s historic claim in the South China Sea. Historic claims have not been addressed comprehensively by international courts and tribunals. They have been invoked by litigants within the framework of maritime delimitation, and courts and tribunals have examined their validity and relevance to the maritime boundary. A number of issues remain uncertain: the definition and scope of historic waters, titles and rights, the contemporary relevance of such claims in the light of the Law of the Sea Convention, and the conditions and requirements for their establishment. The South China Sea arbitration between the Philippines and China raised important issues regarding the contemporary relevance and validity of historic claims, and the Tribunal made some interesting pronouncements with respect to a crucial aspect concerning the relationship between the Law of the Sea Convention and historic rights. This is the first time that a Tribunal contributes with such clarity to the issue of historic rights.

This talk will examine historic rights and historic titles in the law of the sea in the light of the South China Sea arbitration and evaluate the contribution of the awards to the clarification of these concepts. It will assess the approach of the Tribunal concerning the relationship between the Law of the Sea Convention and historic claims in general, and then identify certain types of historic rights and evaluate their contemporary relevance with reference to the jurisprudence of international courts and tribunals. It will further examine the requirements for the establishment of historic rights with a focus on China’s historic claim as discussed by the Tribunal, and finally assess the scope and content of the optional exception to compulsory jurisdiction in article 298 (1) (a) (i) LOSC regarding disputes involving historic titles and the decision of the Tribunal on jurisdiction.

Short bio

Dr Sophia Kopela is a lecturer in law at Lancaster University Law School. She holds an LLB from the University of Athens (Greece), an LLM in Public International Law from the University of Nottingham (UK) and a PhD in International Law of the Sea from Bristol University (UK). Her specialisation lies in law of the sea, international environmental law and public international law, and she has published articles in international journals and presented papers in international conferences in these fields. Her article ‘2007 Archipelagic Legislation of the Dominican Republic: An Assessment’ was awarded the Gerard Mangone Prize for the best article in the International Journal of Marine and Coastal Law in 2009. She is the author of a monograph titled ‘Dependent archipelagos in the law of the sea’ published by Martinus Nijhoff/BRILL in 2013. She is also the book review editor of the International Journal of Marine and Coastal Law.