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Historic Rights in
International Law and in
China's Practice
Zou Keyuan
Published online: 29 Oct 2010.

To cite this article: Zou Keyuan (2001) Historic Rights in International Law and
in China's Practice, Ocean Development & International Law, 32:2, 149-168, DOI:
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 Ocean Development & International Law, 32:149–168, 2001
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Historic Rights in International Law

and in China’s Practice

ZOU KEYUAN
East Asian Institute
National University of Singapore
Singapore
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Despite the great expansion of maritime zones of the coastal states, consequent to
the 1982 UN Convention on the Law of the Sea, state practice indicates continued
attempts at using concepts of historic waters and/or historic rights to assert juris-
diction. The Chinese claim to historic rights in its 1998 Law on the Exclusive Eco-
nomic Zone and Continental Shelf is a new addition to the whole picture. It is the
People’s Republic of China’s clear intention that the historic claim applies to the
water areas in the South China Sea wherever China could not establish its 200-nm
exclusive economic zone. This article assesses China’s historic claim in the context
of international law, state practice, and judicial pronouncements.

Keywords historic rights, historic waters, law of the sea, the People’s Republic of
China, the South China Sea

On 26 June 1998, the People’s Republic of China (PRC) officially promulgated the Law
on the Exclusive Economic Zone and the Continental Shelf, of which Article 14 pro-
vides that “the provisions of this Law shall not affect the historic rights enjoyed by the
People’s Republic of China.”1 This provision gives rise to several legal issues. What is
meant by historic rights? How are they defined in international law? Where can China
enjoy its historic rights? What are the consequences of such historic rights in the context
of potential maritime conflicts between China and its neighbors? Are such historic rights
claimed by China valid in international law? The present article attempts to answer these
questions.

Historic Rights in International Law

In studying the issue of historic rights, one inevitably encounters two major difficulties:
(1) this issue has never been thoroughly researched in international law; and (2) there
are a number of legal terms in the historical context, such as “right,” “title,” and “con-
solidation,” 2 which may cause confusion. It is even more complicated when one tries to
explore so-called historic rights in the maritime area, particularly when the term is used
along with other related terms such as historic waters and historic bay. Despite all these

Received 21 August 2000; accepted 14 November 2000.

Address correspondence to Zou Keyuan, East Asian Institute, National University of Singapore,
7 Arts Link, Singapore 117 571. E-mail: eaizouky@nus.edu.sg

149
 150 Z. Keyuan

difficulties, such studies are important as a contribution to the development of interna-

tional law. Meanwhile, one thing has to be pointed out: whereas the term historic rights
refers not only to maritime but also to land areas, the present article limits it, to a large
extent, to the maritime domain without any prejudicial consideration of its application to
the land domain.
The term historic rights is usually related to the acquisition of territory in interna-
tional law. There is no established definition of the term under international law. How-
ever, some scholars have attempted to explain it in various ways. For example, accord-
ing to Blum, “the term ‘historic rights’ denotes the possession by a State, over certain
land or maritime areas, of rights that would not normally accrue to it under the general
rules of international law, such rights having been acquired by that State through a
process of historical consolidation.”3 Blum further explains that “historic rights are a
product of a lengthy process comprising a long series of acts, omissions and patterns of
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behavior which, in their entirety, and through their cumulative effect, bring such rights
into being and consolidate them into rights valid in international law.”4 According to
other scholars, the term historic rights is used to indicate “those rights which a State has
acquired vis-à-vis one or more other states by effectively exercising those rights, with
the acquiescence of the State or states concerned.”5 The second definition is simply
identical with the definition of historic waters given below when it is used in the context
of maritime zones. From this point of view, the concept of historic rights has a close
relationship with maritime zones.

The Evolution of the Concept

The concept of historic rights originated in the maritime context, particularly relating to
bays and gulfs. Historic bays are defined as “those bays over which a coastal nation has
traditionally asserted and maintained dominion with the acquiescence of foreign nations.”6
They are one form of historic waters. As Bouchez put it, “[h]istoric bays are a species
of the genus of historic waters. In other words, historic waters are the category of which
historic bays form a part.” 7 Another definition is given by the Japanese delegation to the
United Nations, where “the term ‘historic bays’ means those bays over which coastal
State or States have effectively exercised sovereign rights continuously for a period of
long standing, with explicit or implicit recognition of such practice by foreign States.”8
As Strohl explains, the reason why some bays are historic is “because the littoral States
claiming title to them have been generally considered to enjoy the title through long,
uninterrupted and peaceful possession, and sometimes by reason of some relatively an-
cient symbolic act of claim which has gone uncontested.”9 Despite several suggestions
made by legal scholars, learned societies, and international organizations, the world com-
munity has failed to come up with a workable definition of what an historic bay is,10 and
therefore, “there is no definition of ‘historic bay’ in any of the LOS conventions.”11
Due to the fact that “historic rights are claimed not only in respect of bays, but also
in respect of maritime areas which do not constitute bays, such as the waters of an
archipelago and the water area lying between an archipelago and the neighboring main-
land; historic rights are also claimed in respect of straits, estuaries and other similar
bodies,”12 the new term historic waters is gradually emerging to embody, if not to re-
place, the term historic bays. Like the concept of historic bays, the concept of historic
waters is not definitive in international law. A definition was offered by Bouchez: “[h]istoric
waters are waters over which the coastal state, contrary to the generally applicable rules
of international law, clearly, effectively, continuously, and over a substantial period of
 Historic Rights in International Law and in China’s Practice 151

time, exercises sovereign rights with the acquiescence of the community of States.”13 In
judicial practice, the International Court of Justice (ICJ) offered a definition of historic
waters in the Fisheries Case: “[b]y ‘historic waters’ are usually meant waters which are
treated as internal waters but which would not have that character were it not for the
existence of an historic title.”14 According to O’Connell, there are three types of waters
that could be considered historic waters: (1) bays, claimed by states which are “greater
in extent, or less in configuration,” than standard bays; (2) areas of “claimed waters
linked to a coast by offshore features but which are not enclosed under the standard
rules”; and (3) areas of claimed seas which “would, but for the claim, be high seas
because not covered by any rules specially concerned with bays or delimitation of coastal
waters.”15 Accordingly, the concept of historic waters is usually applicable to bays and
gulfs. Once established as historic waters, the waters in question are then regarded as
internal waters. There may be exceptions to this, for example, some historic waters
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claimed by states are not bays or gulfs, but open seas, and might not therefore be re-
garded as internal waters.
The United Nations International Law Commission (ILC) discussed the concept of
historic waters in the 1950s, and in 1962 the UN Secretariat, upon the request of the
ILC, produced a study on the juridical regime of historic waters, including historic bays.
The study examined the elements of title to historic waters, the issue of the burden of
proof, the legal status of waters regarded as historic waters, and the settlement of dis-
putes. However, it did not give a conclusive definition of historic waters, nor criteria nor
standards by which this concept could be applied.16 So the theoretical controversy over
the concept of historic waters has not yet been resolved. Because of the controversial
nature of this issue, the Third UN Conference on the Law of the Sea (UNCLOS III)
simply dropped it from the agenda, leaving only a few tantalizing references in the 1982
United Nations Convention on the Law of the Sea (LOS Convention).17 The Interna-
tional Law Commission suggested that three conditions needed to be fulfilled to sustain
a historic water claim: (1) the actual exercise of coastal state authority over the area, (2)
continuity over time of this exercise of authority, and (3) the attitude of foreign states to
the claim.18
The study stated that it is a common perception that

the State which claims “historic waters” in effect claims a maritime area
which, according to general international law, belongs to the high seas. As
the high seas are res communis omnium and not res nullius, title to the area
cannot be obtained by occupation. The acquisition by historic title is “ad-
verse acquisition,” akin to acquisition by prescription; in other words, title to
“historic waters” is obtained by a process through which the originally law-
ful owners, the community of states, are replaced by the coastal State. Title
to “historic waters,” therefore, has its origin in an illegal situation which was
subsequently validated. This validation could not take place by the mere
passage of time; it must be consummated by the acquiescence of the rightful
owners.19

Although the study on historic waters prepared by the United Nations Secretariat in
1962 admitted that the title to historic waters was a form of acquisition of territory by
prescription, it suggested that it would be preferable not to refer to the concept of pre-
scription in connection with the regime of historic waters.20 There are other criteria or
elements contributing to the concept of historic rights, such as acquiescence by other
 152 Z. Keyuan

states, notoriety of possession, the role of time and geographical factors, and proof of
historic rights.21
In brief, the term historic rights is a generic concept; under it is the term historic
waters, which in turn embodies the more specific concept of historic bays. It is interest-
ing to note that in the evolution of the generic concept of historic rights, the term his-
toric bays first appeared, then expanded into the larger concept of historic waters, and
finally into the even larger concept of historic rights. However, if we regard the term
historic title as the same as historic rights, then we should acknowledge that the term
historic rights came first. In addition, we have to realize that the term historic rights is
not equivalent to that of the historic waters or historic bays, though the former may
carry a broader meaning also covering historic waters and bays. The term historic rights
also covers certain special rights without involving a claim of full sovereignty, such as
historic fishing rights, which a state might have acquired in particular areas of the high
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seas.22 It is not clear whether such expansion is still underway in Chinese practice through
the PRC’s inclusion of the term historic rights in its Law on Exclusive Economic Zone
and the Continental Shelf (hereinafter referred to as the EEZ Law). The second point
resulting from our observation is that all these terms above are often used interchange-
ably in maritime contexts.

The Relationship between the Concept

of Historic Rights and the LOS Convention
UNCLOS III did not discuss the issue of historic rights or historic waters.23 However, a
variant term of historic bay and/or historic title is mentioned in provisions of the LOS
Convention relating to bays, delimitation of the territorial sea between states with oppo-
site or adjacent coasts, and limitations and exceptions in the settlement of disputes.
Article 10 (6) provides that “[t]he foregoing provisions [on bays] do not apply to so-
called ‘historic’ bays.” Article 15 does not allow the median line to apply to special
circumstances such as “by reason of historic title” for the delimitation of the territorial
seas of the two states. The last provision in the LOS Convention which mentions the
historic bays or title is Article 298, which permits the contracting states to exclude the
compulsory procedure provided for in the LOS Convention from applying to the dis-
putes “involving historic bays or titles.” It is obvious that the LOS Convention deliber-
ately avoids the issue of historic rights or historic waters, leaving it to be governed
by customary international law as reaffirmed in its preamble.24 On the other hand, the
Convention does have some bearing on the concept of historic waters in territorial seas
or internal waters since it appears only in the sections on territorial sea regime and the
settlement of disputes.

International Practice
As shown above, the concept of historic rights has grown out of historic bays, so that
most of the existing cases are related to bays and gulfs. A number of judicial awards
support and elaborate upon the concept of historic waters. One historic claim was ac-
cepted in 1951 by the ICJ in the Norwegian Fisheries case.25 The issue before the court
was whether the Norwegian method of delimiting territorial waters was valid as the
basis of historic title, even if the method violated international law. After examining
past Norwegian practice, the court found that the Norwegian system of delimitation
had been applied consistently and without interruption for some 60 years and that this
 Historic Rights in International Law and in China’s Practice 153

practice had not been opposed by other states and instead tolerated by them. Based on
these facts, the court ruled that the Norwegian system was not contrary to international
law, thus upholding the validity of the Norwegian claim to historic title.26 The same
court also accepted the Gulf of Fonseca as a historic bay and its waters as historic
waters in the Gulf of Fonseca case in 1992.27
The general standards relating to historic waters are usually applicable for a bay or
gulf owned by a single state. For gulfs and bays owned by more than one country,
however, it may be difficult to prove recognition of such areas as historic waters. The
legal doctrine in this respect is rather amorphous. Oppenheim states that “as a rule, all
gulfs and bays enclosed by the land of more than one littoral State, however narrow
their entrance may be, are non-territorial. They are parts of open sea, the marginal belt
inside the gulfs and bays excepted.”28 Blum shares this view and points out that historic
bays lose that character when they become multinational.29 Few exceptions exist in state
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practice. The most notorious example is the Gulf of Fonseca situated in Central America.
Its historic character was affirmed by the Central American Court of Justice in 1916.
Spain had possessed the Gulf of Fonseca from its discovery in 1522 until 1821, and this
exclusive possession continued throughout the period of the successor state, the Federal
Republic of Central America. In 1839, the gulf was vested in three successor states of
the Federal Republic: Nicaragua, Honduras, and El Salvador. The historic status of this
gulf remained unchanged as the territory passed to the successor states.30 Its historic
status was reaffirmed by the ICJ in 1992, as mentioned above.31 The significance of this
case is that it has confirmed that a historic title to certain waters can be shared by more
than one country.
In state practice, the concept of historic waters has been established as a criterion to
determine the jurisdictional extent of coastal state waters. According to Churchill and
Lowe, there are about 20 claims in the world to historic bays.32 Some historic waters are
recognized by the international community without controversy, while others are of a
controversial character and are subject to protest by other countries. For example, the
former Soviet Union claimed the Peter the Great Bay as its historic bay, and the length
of the bay’s closing line of 108 nautical miles,33 the claim was opposed by the Western
countries led by the United States. However, China expressly recognized the claim in
1957 at a time of close Sino-Soviet solidarity.34 The most controversial example was set
by Libya, which claimed the Gulf of Sidra in 1974 as its historic bay with a closing line
296 nautical miles in length. The claim was challenged by the Western countries, as
well as the former Soviet Union, leading to a conflict between Libya and the United
States.35 Finally, it is worth mentioning that since 1887 Tonga has maintained a historic
waters claim which covers a rectangle of high seas areas around several groups of its
islands. Tonga’s claim has been defended on the ground that “[h]istory might validate
the claim to the rectangle, as an exception to the law relating to the high seas, but only
as broadening of the area which could be claimed under the standard rules.”36 It is not
clear whether Tonga’s claim has ever been challenged, since it is located in a relatively
remote area.37
The case of most relevance to historic rights, rather than historic waters or historic
bays, is Tunisia’s historical claims, which were evaluated in the 1980s by an Italian
scholar.38 In addition to its historic claim to the Gulf of Tunis39 and the Gulf of Gabès, 40
Tunisia also claimed historic rights beyond its territorial sea, particularly historic fishing
rights. In reply to Libya’s objections to this claim, Tunisia stated that historic rights
acquired in bygone ages could extend over areas of sea or seabed that would be charac-
terized today as internal waters, territorial waters, a fishing zone, or an area of the
 154 Z. Keyuan

continental shelf.41 But this view was contested by the argument that “a State cannot
claim a vast area of sea as internal waters on the sole basis of ‘historic rights’ previously
acquired for fishing purposes, unless it is possible to consider that those ‘historic rights’
were in fact indicative of a right of full sovereignty.”42 As for Tunisia’s historic rights
beyond its territorial sea, those rights are essentially concerned with the exploitation of
sedentary fisheries, such as sponge fisheries. Tunisia claimed exclusive jurisdiction over
those so-called fixed fisheries whatever their distance from the coast.43 The claimed
historic fishing rights were not disputable, even the contestant State Libya recognized
those rights: “[e]vidence of the general recognition of Tunisian proprietary rights and
ancillary rights to protection and control over the sedentary species asserted is not the
issue. For the fact is that such rights existed.”44 On the other hand, it should be stressed
that such historic rights did not exclude foreigners from the exploitation of sponge and
octopus fisheries. Therefore, it is argued that the fishery zone created by the 1951
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Tunisian decree on the sole basis of historic rights previously acquired was not justified
and the 1951 decree put forward a completely new and different claim, since for the
first time the established fishery zone included all biological resources of the sea.45
In the case arising from the continental shelf dispute between Libya and Tunisia in
1982, the ICJ recognized Tunisia’s unilateral line at 450ZV (zenith vertical) northeast,
starting from Ras Ajdir, as the eastern limit of its exclusive fishery zone under the 1951
decree, and found that, although no state may unilaterally establish international mari-
time boundary lines, the line adopted by Tunisia which was “originally intended only as
a limit of an area of surveillance in the context of specific fishery regulations, consti-
tutes a unilateral claim, but was never a line plotted for the purpose of lateral maritime
delimitation, either in the seas or in the continental shelf.” 46 The court found instead that
the line perpendicular to the coast was the only lateral boundary opposable to Libya in
the area claimed by Tunisia as being subject to historic rights.47
Meanwhile, Tunisia stressed the importance of its historic rights with a view to the
future delimitation of the exclusive economic zone (EEZ) by arguing that its claim was
supported either by the new law of the sea or the historic rights acquired through
its immemorial exercise of jurisdiction. Libya questioned the nature and extent of
Tunisia’s historic rights, asserting that they did not amount to sovereignty over the sea-
bed and that they had never been exercised throughout the area claimed by Tunisia. In
addition, Libya stressed that these rights could not “deprive a neighboring State of a
shelf area which, according to the law, appertains to it de jure and ab initio.”48 The
court avoided the question of whether Tunisia’s historic rights were relevant for the
purpose of delimiting its continental shelf, but did make some important remarks that
historic rights must enjoy respect and be preserved as they have always been by long
usage.49 On the other hand, the court seems to have denied the relevance of historic
rights to the delimitation of continental shelf, as it found that “basically, the notion of
historic rights or waters and that of the continental shelf are governed by distinct legal
regimes in customary international law. The first regime is based on acquisition and
occupation, while the second is based on the existence of rights ‘ipso facto’ and ‘ab
initio’.”50 Thus, in the view of the court, the historic rights would perhaps have been
relevant for the purpose of delimiting Tunisia’s EEZ, but not for the purpose of delimit-
ing its continental shelf.51 Nevertheless, as concluded by one writer, “Tunisia could not
unilaterally claim the whole area over which her ‘historic rights’ extended as part of her
exclusive economic zone,” but “Tunisia’s ‘historic rights’ could operate as an important
factor when negotiating delimitation agreements with the interested states.”52
The latest international judicial case relating to historic rights is the Eritrea-Yemen
 Historic Rights in International Law and in China’s Practice 155

Arbitration in 1998.53 The two contesting parties, Eritrea and Yemen, requested the spe-
cially established arbitral tribunal to decide on questions of territorial sovereignty over
disputed islands in the Red Sea “in accordance with principles, rules and practices of
international law applicable to the matter, and on the basis, in particular, of historic titles”
(author’s italics).54 Eritrea based its claim to territorial sovereignty over the disputed “Red
Sea Islands” on a chain of title extending back over more than 100 years, and on the
doctrine of effective occupation. Eritrea traced this chain of title through the relevant
historical records, beginning with the Italian colonization of the Eritrean mainland in
the latter part of the 19th century.55 Yemen based its claim to the disputed islands on
original, historic, or traditional Yemeni title, which can be traced to the Bilad el-Yemen,
or realm of Yemen, which is said to have existed as early as the 6th Century A.D. Yemen
contended that its incorporation into the Ottoman Empire, from 1538 to circa 1635, and
again from 1872 to 1918, did not deprive it of historic title to its territory. Yemen also
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contended that the Treaty of Lausanne had no effect on the Yemeni title, because Yemen
was not a party to the treaty and because Turkey’s renunciation of rights could not
prejudice the interests of third parties. Yemen took the view that the effect of Article 16
was not to make the islands terra nullius, but rather territory “the title to which was
undetermined.” Yemen provided an historical review of alleged Yemeni acts of adminis-
tration and control to supplement and confirm Yemen’s historic title to the islands.56
It is clear that both sides based their arguments partly on historic rights, in particu-
lar the Yemeni side. The tribunal reviewed those arguments and held that “there can be
no doubt that the concept of historic title has special resonance in situations that may
exist even in the contemporary world. . . . A different situation exists with regard to
uninhabited islands which are not claimed to be falling within the limits of historic
waters.”57 The tribunal then pointed out that “in the present case, neither party has for-
mulated any claim to the effect that the disputed islands are located within historic
waters.” It further confirmed that

the conditions that prevailed during many centuries with regard to the tradi-
tional openness of southern Red Sea marine resources for fishing, its role as
means for unrestricted traffic from one side to the other, together with the
common use of the islands by the populations of both coasts, are all impor-
tant elements capable of creating certain “historic rights” which accrued in
favour of both parties through a process of historical consolidation as a sort
of “servitude internationale” falling short of territorial sovereignty. Such
historic rights provide a sufficient legal basis for maintaining certain aspects
of a res communis that has existed for centuries for the benefit of popula-
tions on both sides of the Red Sea.58

Here it seems that the tribunal recognized the historic rights of both sides. That
made it difficult for the tribunal to base its decision on historic title and rights in favor
of either party. Finally, despite great efforts made by the tribunal to investigate both
claims to historic titles, the tribunal held that “neither Party has been able to persuade
the tribunal that the history of the matter reveals the juridical existence of an historic
title, or of historic titles, of such long-established, continuous and definitive lineage to
these particular islands, islets and rocks as would be a sufficient basis for the Tribunal’s
decision.”59 On the other hand, the tribunal held that “Yemen shall ensure that the tradi-
tional fishing regime of free access and enjoyment for the fishermen of both Eritrea and
Yemen shall be preserved.”60
 156 Z. Keyuan

From the above cases, it is obvious that international tribunals have recognized the
existence of historic rights in the maritime context. But on the other hand, except for the
Fisheries Case, it seems that international tribunals have taken a rather conservative
attitude towards the concept of historic rights, as illustrated in the Libya-Tunisia Case
and the Eritrea-Yemen Case, where historic rights were not accepted as the basis of their
decisions. While it is hoped that the international judiciary will eventually clarify the
concept of historic rights and its applicability in cases of this kind, the existing, conser-
vative attitude means that the regimes of historic rights and historic waters remain under-
developed.

China’s Practice
Since the issue of historic waters was not discussed at UNCLOS III, we do not know
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what China’s position was at the conference. Yet we can examine Chinese practice
relating to historic waters both before and after UNCLOS III. China first expressed its
view on historic waters in 1957, when it supported the Soviet claim to Peter the Great
Bay. In 1959 an official explanatory pamphlet published in China in order to justify
China’s Declaration on the Territorial Sea of 1959 gave a more detailed explanation of
China’s own historic claims. The 1959 pamphlet says that “[a]lthough the natural en-
trance of some bays or gulfs exceeds 24 nautical miles, if the bays or gulfs are impor-
tant to the national defense and economy of the coastal states and for a long period the
coastal states have repeatedly exercised jurisdiction over the bays or gulfs, they may be
regarded as historical bays or gulfs. Regardless of whether or not the mouths of these
bays or gulfs exceed 24 nautical miles, they may also be considered as internal bays or
gulfs of the coastal states.”61 It can be seen that China’s view is a reflection of general
international law approaches, except respecting the width of the closing line for bays or
gulfs, since at that time there was no consensus on the width of the territorial sea and
some countries were not in favor of the 24 nautical miles approach. On the other hand,
China’s claim is limited to historic bays or gulfs. In the pamphlet, China mentioned
some precedents such as France’s Bay of Cancale, Norway’s Varangerfjord, Canada’s
Hudson Bay, and the Soviet Union’s Peter the Great Bay.62 The following are some
relevant examples of China’s practice.

The Bohai Gulf

The most important Chinese historic waters claim is in the Bohai Gulf (or Bohai Sea).
In the Declaration on the Territorial Sea of 1958, China declared that the Bohai Gulf as
well as the Qiongzhou (Chiungchow) Strait were China’s inland waters.63 For the former,
China justified its legal position by stating that the Bohai Gulf was governed by China
from ancient times. As stated in the declaration, “in several thousand years of history it
has been constantly under the actual jurisdiction of our country, and not only has our
country always considered it as an internal sea, but also [the fact] is internationally
recognized.” 64 China cited an incident relating to the Bohai Gulf which occurred in 1864
as the justification for claiming international recognition of the historic status of that
gulf. In that year Prussia and Denmark were at war, and the Prussian gunboat Gazelle
captured a Danish ship in the Bohai Gulf. The Chinese government protested to the
Prussian government that Bohai was China’s internal sea, compelling Prussia to free the
Danish ship. In addition, China explained that its claim to the Bohai Gulf was based on
its importance to China’s economy and national defense.65
 Historic Rights in International Law and in China’s Practice 157

When China declared the Bohai Gulf to be a historic bay in 1958, the declaration
was protested, particularly by the United States and the United Kingdom. Since UNCLOS
III, however, it seems that there has been no further controversy over China’s claim.

The Qiongzhou Strait

The 1958 Declaration on the Territorial Sea treated the Qiongzhou Strait as an internal
strait. This is also based upon historical considerations similar to those applicable to the
Bohai Gulf case. In China’s view, in the historical context, the Qiongzhou Strait

has an extremely important meaning for our economy and national defense.
Historically, it has always been subject to our sovereign jurisdiction and has
constituted an inalienable, composite part of our country. Since liberation
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our country has always administered it as an internal strait. The present Dec-
laration on the Territorial Sea issued by our government is merely to reaf-
firm once more a historical fact.66

China’s treatment of the Qiongzhou Strait indicates that, in practice, its claims to
historic waters (or rights) are not limited to bays or gulfs, but may extend also to other
waters such as straits. In order to reinforce its right to control the Qiongzhou Strait,
China enacted the Regulations Governing Non-Military Foreign Vessels Passing Through
the Qiongzhou Strait in 1964.67
The Qiongzhou Strait had the same fate as the Bohai Gulf, as China’s declaration
encountered foreign protests. However, it seems that China’s claim to the Qiongzhou
Strait as historic waters is more controversial than its claim to the Bohai Gulf. Even
today, the United States continues to regard this Strait as “an international strait.”68

The Gulf of Tonkin

The Gulf of Tonkin (Beibu Gulf in Chinese and Bac Bo Gulf in Vietnamese) is a shared
water area between China and Vietnam. It has an area of 44,238 square kilometers
(about 24,000 square nautical miles). The Gulf measures 170 nautical miles at its widest
and has two outlets: (1) the Qiongzhou Strait between the Hainan Island and the Leizhou
Peninsula, approximately 19 nautical miles in width, and (2) the major passage to the
south, 125 nautical miles wide at its narrowest point.69 Vietnam declared the Gulf of
Tonkin to be historic waters as recently as 1982 in its Statement on the Territorial Sea
Baseline of Vietnam, claiming that the part of the gulf appertaining to Vietnam con-
stituted historic waters and should be subjected to the juridical regime of Vietnamese
internal waters.70 However, China did not recognize such status for the Gulf of Tonkin.
In China’s view, Vietnam’s claim is untenable in international law for a number of
reasons. First, since 1887 neither France nor Vietnam has ever treated the water area of
the Gulf of Tonkin as internal waters, as they both allow foreign vessels to enjoy the
rights deriving from the freedom of the high seas.71 Second, in French practice, the Gulf
of Tonkin was never mentioned in the context of historic waters at a time when France
regarded other bays as historic waters such as the Bay of Cancale with a breadth of 17
nautical miles at the entrance.72 In the relevant French legislation, France never regarded
the Gulf of Tonkin as part of its territorial sea. This can be seen from the 1888 law
prohibiting foreign vessels from fishing within French territorial sea of 3 nautical
miles (which applied to French colonies in 1926). The most conspicuous situation is the
 158 Z. Keyuan

Decree on Fisheries in the Territorial Sea of Indochina promulgated on 22 September

1936, which provides that “in terms of fisheries, the breadth of the territorial sea of the
French Indochina is 20 kilometres measured from the low water mark.”73 Third, in Viet-
namese practice, the fishery agreements signed with China created 12 nautical mile zones
within which foreign fishing required special permission, and beyond that the waters in
the Gulf of Tonkin were a common fishing zone for both sides. In September 1964, the
Vietnamese government promulgated its 12 nautical mile territorial sea and also drew a
territorial sea delimitation line in the Gulf of Tonkin. On 12 May 1977, Vietnam issued
the Statement on Vietnam’s Territorial Sea, Contiguous Zone, Exclusive Economic Zone
and Continental Shelf, which provides that Vietnam’s territorial sea is 12 nautical miles.
The 1977 statement did not mention that the Gulf of Tonkin was claimed to be Vietnam’s
historical bay.74
Vietnam faces great difficulty in defending its historic waters claim to the Gulf of
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Tonkin, because China, the only other country with rights there, has refused to recog-
nize such historic status for the gulf. It would be anomalous if half of the waters of
the gulf were historic and the other half not. Given Chinese practice related to his-
toric waters, China might not oppose the view that the Gulf of Tonkin was a historic
gulf. What China opposes is the Vietnamese position that the status is based upon the
line in the 1887 Sino-French Treaty on the demarcation of the Sino-Vietnamese bor-
der.75 There seems to be no reason why China would not agree if the gulf were divided
half-and-half between the two countries. Such an agreement could reinforce the status of
the gulf as historic waters. As expressed by the Office of the U.S. Department of State,
“the Vietnamese claim to historic waters is questionable because China, which also bor-
ders the Gulf of Tonkin, does not claim the area as historic waters and disputes the
Vietnamese claim to the meridional boundary within the Gulf.”76 In the end, Vietnam
seems to have realized the impossibility of insisting on its historic claim and instead it
has agreed to negotiate with China the maritime boundary delimitation issue in the Gulf
of Tonkin.77

The Peter the Great Bay

On 21 July 1957, Moscow Radio announced that the Council of Ministers of the USSR
had issued a decree declaring Peter the Great Bay to be the Soviet Union’s historic bay.
The area claimed was approximately 115 nautical miles wide and 55 nautical miles
deep. The closing line was actually 108 nautical miles between Tuman Ula and Cape
Povorotni.78 The Chinese border is only about 10 miles inland from the bay. The coastal
area stretching from Vladivostok (Haishenwei in Chinese) bordering Peter the Great Bay
belonged to China until 1860, when China was forced to cede to Russia the vast terri-
tory in Siberia, including the coastal area to Peter the Great Bay, under the Treaty of
Peking.79 Although the treaty did not mention the sea area adjacent to the ceded land, it
is assumed that the adjacent sea area should be included in accordance with the prin-
ciple of “the land dominating the sea.” One scholar, however, has argued that “it is
certain that upon cession of the territory by China to Russia, the latter State did not
succeed to any previous conception of ownership or exclusive possession over any wa-
ters of Peter the Great Bay.”80 Does that scholar infer that China has historic rights over
the waters of Peter the Great Bay?
As noted above, China expressly supported the 1957 Soviet claim to Peter the Great
Bay as its historical bay.81 This support produced a double-sided legal effect on both
China and the Soviet Union. On one hand, the Soviets used China’s support to justify its
 Historic Rights in International Law and in China’s Practice 159

claim to Peter the Great Bay. In response to Japan’s protest, the Soviet Union made
several key points in defence of its claim. One of them was the recognition of the claim
by “the Chinese People’s Republic.”82 It can be argued that the fact that only one coun-
try, China, recognized the Soviet Union’s claim “does not constitute evidence of acqui-
escence, toleration, or commonly accepted usage” and “that to mention support by one
highlights the dearth of approval from the rest [of the world].”83 But it seems that the
scholars holding this view have ignored the fact that the land adjacent to Peter the Great
Bay formally belonged to China. In considering this fact, China, rather than Japan or
other countries, was the most interested country, which should therefore have the big-
gest say about the Soviet claim. Therefore, it is submitted that “there was no successful
challenge to the Bay closing line announced by the Soviets in 1957.”84
On the other hand, China used the Soviet claim to Peter the Great Bay as one of the
precedents in state practice to justify its own claim to Bohai Gulf as China’s historic
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bay.85 In considering the timing of China’s support, as well as China’s own claim,
we may assume that China’s support was purposefully made.86 However, China might
have never realized that its support for the Soviet claim had the consequence of depriv-
ing China of its own historic rights previously existing in the Sea of Japan, including
Peter the Great Bay. For example, in the Treaty of Peking of 1860, it is clearly provided
that “the area where Chinese live and where Chinese fish and hunt shall not be occu-
pied” by Russia and the Chinese shall be permitted to operate normal fishing and hunt-
ing activities. 87
From this provision, it is obvious that China retained its historic rights in the ceded
territory, including those in the sea areas adjacent to the ceded territory, at least before
China’s support for the Soviet claim. The difficulty in China’s recent efforts to seek
direct access to the Sea of Japan by way of the Tumen River88 rests, at least partially,
with China’s support of the Soviet claim, which could be regarded as a yielding of
China’s historic rights in the Sea of Japan. Instead, China’s access may depend to a
large extent upon the comity of neighboring countries.

Conclusion
It is clear from China’s practice that when it regarded a certain marine area as historic
waters, then China treated it as internal waters as in the cases of Bohai Gulf and Qiong-
zhou Strait illustrated above.
The other practice that may be relevant to China’s historical claims are the desig-
nated protection fishing zones in the Yellow Sea and the East China Sea beyond the 12
nautical mile territorial sea of China before UNCLOS III. This is reflected in the Sino-
Japanese fishery agreements concluded in the 1950s and 1970s.89 It is not clear whether
such designation by China was based upon historic arguments, but there must have been
some compelling reasons for China to do so, since at that time such areas were within
the high seas and fishing was open to anyone. It is assumed that China might have
undertaken such action based upon historic fishing rights, which it might have acquired
in particular areas of the high seas and which could be recognized to some extent in
international law.

How Much Further?

After the review of China’s past practice relating to historic rights and historic waters,
we now turn to the historic rights provision contained in China’s 1998 EEZ law.
 160 Z. Keyuan

Has China Set a Precedent in International Law?

As illustrated above, historical claims were made in the form of government statements,
declarations, laws, or acts. So China’s historic claim contained in its EEZ law is not
unusual. What is new is that China has become the first, and perhaps the only, state to
incorporate its historic claims in EEZ and continental shelf laws rather than in separate
enactments or government statements. Usually, historic claims applied to a certain sea
area are intended to confirm the internal water or territorial sea status of the area. But in
China’s case, it is quite different: since the claim is embedded in China’s EEZ law, it is
assumed that such a claim could only make the claimed waters, at most, equivalent to
the legal status of EEZ or the continental shelf. A historic claim equivalent to EEZ and/
or the continental shelf is apparently new in state practice, since no similar claim has yet
been made by other states.
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As to historic rights, it is generally recognized that there are two types: one is
exclusive with full sovereignty, such as historic waters and historic bays; and the other
is nonexclusive without full sovereignty, such as historic fishing rights in the high seas.
China’s claim, however, is unique in the sense that it does not fit in either of the above
categories. It could not be regarded as a claim of historic waters in the traditional sense.
Since it is referable to the EEZ and continental shelf regimes, such a claim involves
sovereign rights and jurisdiction, but not full sovereignty. Such sovereign rights are
exclusive for the purpose of development of natural resources in the sea areas and juris-
diction in respect of marine scientific research, installation of artificial islands, and pro-
tection of the marine environment. It is obvious that such a claim to historic rights is not
only a right to fisheries, but to other resources and activities as well. China’s historic
rights, as claimed, may thus be called “historic rights with tempered sovereignty.” In
such a context, China has set a precedent in the state practice relating to historic rights.
It is not clear whether China’s practice establishes a rule in international law, but it may
already be influencing the development of the concept of historic rights.
Finally, it should be pointed out that there is a difference between a restatement of an
existing claim and a new claim. If China’s claim of historic rights is regarded as new, then
the situation is not favorable for China. Of course, the burden of proof lies with China,
the claiming state. During the adoption process of the 1998 EEZ law, there was no
explanation on why Article 14 was inserted into the law and on what rationale it was
based.90 China’s historic claim remains ambiguous. The recent attempt at clarification,
which is reflected in China’s revised Law on Marine Environmental Protection, has added
even more ambiguity to China’s claim of historic rights. In Article 2 of that 1999 law, it
is provided that “the Law shall apply to internal waters, territorial sea, contiguous zone,
exclusive economic zone, continental shelf of the People’s Republic of China and other
sea areas under the jurisdiction of the People’s Republic of China” (author’s italics).91
Does this imply that China has not only historic rights, but also historic waters in the South
China Sea and/or other seas? The previous law, which was promulgated in 1982, contained
similar wording referring to China’s potential EEZ and continental shelf.92 However, after
the establishment of the EEZ and continental shelf regime, China still made such stipu-
lation, which clearly refers to sea areas other than EEZ and continental shelf. Thus, in
the context of the above legal provision, one may infer that China’s claim in its EEZ/
continental shelf law may be a claim of historic waters rather than of historic rights.

China’s Historic Rights in the South China Sea

The most important and interesting area where China could claim historic rights is in the
South China Sea.93 The South China Sea continues to be one of the world’s flashpoints,
 Historic Rights in International Law and in China’s Practice 161

particularly concerning the situation around the Spratly Islands, which have been claimed,
in whole or in part, by China (including Taiwan), Vietnam, Brunei, Malaysia, and the
Philippines. It is obvious that China’s position and behavior are critical for the resolu-
tion of the territorial as well as maritime boundary delimitation disputes in the South
China Sea.
It seems that the prevailing basis for China’s historic claims to the South China Sea
is the U-shaped line officially drawn on the Chinese map in 1947 by the then–Chinese
Nationalist Government. The U-shaped line refers to the line with nine segments off the
Chinese coast on the South China Sea, as displayed in the Chinese map. According to
China, the line has been called a “traditional maritime boundary line.”94 China has claimed
all the islands, atolls, and even submerged banks within this line. But it is not clear
whether China has claimed the waters so enclosed. China’s ambiguous position has given
rise to the controversy of whether the waters within the line are intended to be historic
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waters.
The Taiwan authorities gave the status of historic waters to the water areas within
the U-shaped line in 1993 when it issued the South China Sea Policy Guidelines, which
stated that “the South China Sea area within the historic water limit is the maritime area
under the jurisdiction of the Republic of China, in which the Republic of China pos-
sesses all rights and interests.”95 This can be regarded as Taiwan’s official position on
the concept of historic waters.
However, this claim has not acquired unanimous support among Taiwanese schol-
ars. In 1993 at a round-table discussion held at National Chengchi University, Taipei,
the participants were divided into those who supported the idea of historic waters and
asserted that the water areas within the line were Chinese historic waters, and those who
were rather dubious and cautious, taking the view that it was difficult to establish such a
claim in international law.96 Partly due to the differences reflected in the above discus-
sion and partly due to Taiwan’s domestic politics, recent developments have indicated
that Taiwan’s position may have retreated from the 1993 guidelines position. This can
be seen from Taiwan’s 1998 Law on the Territorial Sea and the Contiguous Zone, in
which an original provision on historic waters was dropped before its promulgation.
Although there is no open discussion in the PRC as such, some scholars in main-
land China have also expressed their views on the legal significance of the line. One
scholar actively defended this line in his argument in favor of historic waters,97 and
another advocated claiming the waters of the South China Sea by its name.98 A recent
contribution has argued that the waters within the U-shaped line are China’s waters of
historic title and should be treated as “China’s special EEZ, or historic EEZ” with the
same status as the EEZ prescribed in the LOS Convention.99
Generally speaking, whether a certain water area can be established as historic
waters or not depends upon whether it can satisfy certain preconditions as described
above. In the South China Sea, the line provides a basis for a claim of historic waters.
However, the exercise of authority in the area by either mainland China or Taiwan has
been infrequent since the promulgation of the line. Even these occasional exercises fo-
cused on the islands within the line rather than on the water areas. The freedom of
navigation and freedom of fishery seem to be unaffected by these exercises. Thus, the
question of whether there is effective control over the area within the line so as to
establish it as historic waters arises. It may be argued that the relative frequency of the
exercise of authority should be considered vis à vis other claimant countries. Yet, there
are still doubts on how China could establish its claim of historic waters in the South
China Sea. Furthermore, as mentioned above, China has refused to recognize the Gulf
of Tonkin as historic waters. It can be questioned, if the Gulf of Tonkin is not regarded
 162 Z. Keyuan

as historic waters, how could the entire South China Sea become historic waters? Chi-
nese refusal in one area seems to rule out an assumption or assertion that the water area
within the U-shaped line is China’s historic waters.
On the other hand, the nonexistence of historic waters in its traditional sense in the
South China Sea does not necessarily mean that there exist no historic rights of any
kind. It is clear from China’s stance that it seeks to enjoy historic privileges of some kind
in the South China Sea. What kind of historic rights or privileges would China insist
upon in the relevant sea areas? The most convincing rights that China could enjoy are
fishing rights, since from ancient times, Chinese fishers have been fishing in the South
China Sea. As for other rights, it is up to China to make clearer statements to the public.100
The provision of China’s EEZ law on historical rights can be understood in a num-
ber of different ways. First, it can be interpreted to mean that the sea area in question
should have the same legal status as areas under the UNCLOS III (EEZ and continental
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shelf) regimes. Second, it can be interpreted to mean that certain sea areas to which
China’s historical rights are claimed go beyond the 200 nautical mile limit. Third, it can
be interpreted to mean that the sea areas to which China’s historical rights apply fall
within the 200 nautical mile limit but will come under an alternative national manage-
ment regime different from the EEZ regime. In this third view, the claimed areas of
historical rights can be treated as quasi-territorial sea, or as historical waters with some
modifications, or as “tempered historic waters.”
On the other hand, it may be questioned whether China’s claimed historic rights
could extend to cover the continental shelf area in the South China Sea, since the right
to the latter is ab initio and ipso facto, as provided in the LOS Convention, and “the
rights of the coastal State over the continental shelf do not depend on occupation, effec-
tive or notional, or on any express proclamation,”101 in spite of the fact that the historic
rights are included in China’s EEZ/continental shelf law. The continental shelf doctrine
of “inherency” should be viewed as deliberately aimed against the operation of any
historic rights previously acquired.102 The opposite view is that “a new legal concept,
consisting in the notion introduced in 1958 that continental shelf rights are inherent or
‘ab initio’, cannot by itself have the effect of abolishing or denying acquired and exist-
ing rights.”103 China has to prove that its historic rights existed prior to the establishment
of the customary rules on the continental shelf. Otherwise, China’s claim is only rel-
evant to the EEZ noncontinental shelf area.
The provision on historic rights in China’s 1998 EEZ law has been queried. A
Vietnamese scholar has asked whether “this article tacitly refers to other interests that
China has claimed, such as the traditional right of fishing in maritime zones of other
countries and the nine broken lines claiming over 80 per cent of area of the East Sea.”104
He further stated that “[a] long time ago, regional countries pursued their normal activi-
ties in the East Sea without encountering any Chinese impediment and they have never
recognized historical rights of China there.”105 Vietnam officially lodged a protest against
China’s historic rights in the South China Sea emphasizing that Vietnam will “not rec-
ognize any so-called ‘historical interests’ which are not consistent with international law
and violate the sovereignty and sovereign rights of Vietnam and Vietnam’s legitimate
interests in its maritime zones and continental shelf in the East Sea.106 It may be difficult
for China to assert that there is a general acquiescence on the part of third states to its
historic rights claim in the South China Sea given Vietnam’s opposition. However, the
proclamation in China’s Law “may well serve to substantially stake out the declarant’s
legal position, expressing the State’s belief that usage of waters has been sufficiently
lengthy, continuous, and notorious to constitute a choate title.”107
 Historic Rights in International Law and in China’s Practice 163

It is fair to say that the regime of historic rights is favorable for those states which
have long histories and relatively unfavorable for the newly independent states founded
after World War II. This concern was expressed when the issue of historic waters was
discussed in the UN International Law Commission. For example, García-Amador con-
tended that the concept of historic bays only benefited old countries having a long his-
tory and that there were many comparative newcomers to the international commu-
nity—countries in Latin America, the Middle East and the Far East—which could not
claim such historic rights.108 In comparison with other countries bordering the South
China Sea, China’s history is the longest. It is understandable why other claimants to the
islands in the South China Sea are averse to China’s historic claim.

Conclusion
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Since the concept of historic rights is not clearly defined in international law, it would
be useful if China were to explain the rationale behind its state practice in these con-
texts. With a view to maximizing its maritime interests in the adjacent seas, incorporat-
ing the historic claim in the EEZ law, rather than the Law on the Territorial Sea, seems
to be a wiser choice. There are a number of possible considerations behind such a
choice. First, China is not confident enough that its historic waters claim to the water
areas within the U-shaped line could stand up in international law, though it has at-
tempted tacitly to enclose such waters as China’s historic waters. Second, the concept of
historic rights is broader than that of historic waters and includes the latter. Thus it can
give China the flexibility of pushing forward its claim from historic rights to historic
waters, if necessary. Finally, we have to be aware that the embodying of the historic
rights in its EEZ/continental shelf law may show that China no longer regards the
waters within the U-shaped line as historic waters, if such waters are only to be catego-
rized as internal waters or territorial sea.
Perhaps the Chinese have not seen the distinction between historic rights and tradi-
tional rights or are confused by it. Historic rights is a legal term whose application
depends upon the fulfillment of the preconditions imposed by international law, while
the term traditional rights is a general term denoting rights existing in history. On the
other hand, the perceived excessive claims put forward by other South China Sea coun-
tries, such as the Philippines and Malaysia, who have claimed some islands in the South
China Sea based upon the 200 nautical mile EEZ rights of the LOS Convention, may
have encouraged China to insist that its South China Sea claim is based upon the
U-shaped line. In China’s view, a claim derived from historic rights may seem more
forceful and valid in law than claims simply based upon the EEZ concept.
Since there are no definitive rules in international law which govern the status of
maritime historic rights, China’s claim is not a violation of international law. Similarly,
since there are no such rules, it is doubtful whether China’s claim could be established
in international law. What is more problematic is China’s implementation of what it
has claimed in the South China Sea or elsewhere where China may assert historic rights
and interests. As the ICJ once stated, general international law does not provide for a
single “regime” of historic waters or historic bays, but only for a particular regime for
each of several specific, generally recognized cases of historic waters or historic bays.109
From this point of view, China’s claim can be regarded as one of these particular cases,
which may stand up in international law as doctrine evolves over time.
Finally, we have to realize that the formulation of the concept of historic waters
requires an adjustment of the generally accepted law of the sea regimes. Because of the
 164 Z. Keyuan

peculiar circumstances of some maritime areas which fall within the national jurisdiction
of coastal states, these areas are allowed to be part of the jurisdictional waters as an
exception to the general rules. It is predicted that the concept of historic rights will
survive and be used by states as a means of claiming and expanding jurisdictional areas
not only in the maritime sector, but also in the land sector. As early as 1984 the ques-
tion was asked whether the doctrine of historic bays and historic waters had become
obsolete with the development of new, alternative concepts of national maritime expan-
sion such as the EEZ and the continental shelf.110 Judged by recent State practice, the
answer to this question is no. Rather, there is a trend toward the application and asser-
tion of historic claims whether to bays, waters or rights in spite of the establishment of
new legal concepts such as the EEZ and continental shelf in the law of the sea.111 Such
a trend may eventually help to codify the rules of historic rights and/or historic waters
in general international law.
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Notes
1. See People’s Daily (in Chinese), 30 June 1998. An unofficial English translation ver-
sion done by this author can be found in The MIMA Bulletin, Vol. 7 (1), 1999, 27–29. A differ-
ent English translation is available in Law of the Sea Bulletin, No. 38, 1998, 28–31.
2. For instance, in the context of the tribunal’s task in the first stage of the Eritrea-Yemen
Case, the award gives an important exposition of the meaning of historic title in international law
and the applicability of equity or equitable principles to the issue of territorial sovereignty. Eritrea/
Yemen Case, reprinted in I.L.M., Vol. 30, 1999, paras. 108–113; also available at http://www.pca-
cpa.org/ER-YEAwardTOC.htm.
3. Yehuda Z. Blum, “Historic Rights,” in Rudolf Bernhardt, (ed.), Encyclopaedia of Pub-
lic International Law, Installment 7 (Amsterdam: North-Holland Publishing Co., 1984), at 120.
4. Ibid., at 121.
5. Sperduti, “Sul Regime Giuridico dei Mari,” 43 Rivista di Diritto Internazionale, 58, 72;
cited in Andrea Gioia, “Tunisia’s Claims over Adjacent Seas and the Doctrine of ‘Historic Rights’,”
Syr. J. Int’l L. & Com., Vol.11, 1984, at 328.
6. Black’s Law Dictionary, Sixth Edition (St. Paul, Minn: West Publishing Co., 1990), at
730.
7. Leo J. Bouchez, The Regime of Bays in International Law (Leyden: A.W. Sythoff,
1964), at 199.
8. See UN Doc., A/CONF.13/C.1/L.104, cited in UN Doc. A/CN.4/143, 9 March 1962,
titled “Juridical Regime of Historic Waters, Including Historic Bays,” Yearbook of the Interna-
tional Law Commission, Vol. 2, 1962, at 3.
9. Mitchell P. Strohl, The International Law of Bays (The Hague: Martinus Nijhoff, 1963),
at 252.
10. Merrill Wesley Clark, Jr., Historic Bays and Waters: A Regime of Recent Beginnings
and Continued Usage (New York: Oceana Publications, Inc., 1994), at 8.
11. United States Department of Defence, Maritime Claims Reference Manual, DOD 2005.1-
M, 1987, 1–3 cited in Clark, supra note 10, at 8, note 18.
12. UN Doc. A/CN.4/143, supra note 8, at 5.
13. Bouchez, supra note 7, at 281.
14. Fisheries Case (U.K. v. Norway), 1951 I.C.J. Reports, at 132.
15. D. P. O’Connell, The International Law of the Sea, Vol.1, (Oxford: Clarendon Press,
1982), at 417.
16. See UN Doc. A/CN.4/143, supra note 8, at 6.
17. Some scholars assume that there are two possible reasons for this. First, the 12-mile
territorial sea had generally been accepted by most coastal states, which made it possible to place
the waters concerned under a State’s sovereignty and jurisdiction. Second, the development of the
 Historic Rights in International Law and in China’s Practice 165

legal regimes of the continental shelf, EEZ, and archipelagic waters may bring about a gradual
phasing out and eventual elimination of the phenomenon of historic claims. See Yann-Huei Song
and Peter Kien-Hong Yu, “China’s ‘Historic Waters’ in the South China Sea: An Analysis from
Taiwan, R.O.C.,” The American Asian Review, Vol.12 (4), 1994, at 91.
18. UN Doc. A/CN.4/143, supra note 8, at 13.
19. UN Doc. A/CN.4/143, supra note 8, at 16.
20. UN Doc. A/CN.4/143, supra note 8, at 12.
21. For a discussion of these issues, see Blum, supra note 3, 122–124 and UN Doc. A/
CN.4/143, supra note 8, 13–23.
22. See Bouchez, supra note 7, at 238. As regards claims to historic rights over parts of the
sea, a distinction must be made between: (1) historic rights resulting in sovereignty over a certain
part of the sea; and (2) historic rights establishing special fishing rights. See also Yehuda Z.
Blum, Historic Titles in International Law (The Hague: Martinus Nijhoff, 1965), at 247–248.
Both categories of such rights may justly be termed historic rights. It would appear, however, that
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only the first kind of historic rights relates to historic waters properly so-called, whereas the
second deals with what may be termed “non-exclusive historic rights,” in the sense that they do
not imply a claim of full sovereignty.
23. During the conference, the proposal advanced in 1976 by Colombia regarding the stan-
dards of claiming historic waters was discarded. See UNCLOS III, Official Records, (1977), Vol.
5, at 202.
24. The preamble of the LOS Convention affirms that “matters not regulated by this Con-
vention continue to be governed by the rules and principles of general international law.”
25. Fisheries Case, supra note 14, at 116.
26. Ibid., at 139. See also Surya P. Sharma, Territorial Acquisition, Disputes and Interna-
tional Law (The Hague: Martinus Nijhoff, 1997), at 174.
27. Land, Island and Maritime Frontier Dispute (El Salvador/Honduras; 1992, ICJ Reports,
at 351. For details of the Gulf of Fonseca, see Hector Gros-Espiell, “Gulf of Fonseca,” in Rudolf
Bernhardt (ed.), Encyclopedia of Public International Law, Instalment 12 (Amsterdam: North-
Holland, 1990), at 110–112.
28. L. F. L. Oppenheim, International Law, 8th Edition (London and New York: Longmans,
Green, 1955), Vol.1, at 508.
29. Blum, supra note 22, at 269–270.
30. See ibid., at 278. However, many scholars are not satisfied with the decision made in
the Court. Gidel considers this decision as “une anomalie tout à fait notable dans le système
logique des baies historiques.” G. Gidel, Le droit international public de la mer, Vol. 3, (Cha-
teauroux: Mellottée, 1932–34), at 627.
31. See Land, Island and Maritime Frontier Dispute, supra note 27, at 351.
32. R. R. Churchill and A. V. Lowe, The Law of the Sea (Manchester: Manchester Univer-
sity Press, 1983), at 37.
33. As a general rule, an accepted length of the closing line is 24 nautical miles.
34. People’s Daily (in Chinese), 23 September 1957.
35. For references, see John M. Spinnato, “Historic and Vital Bays: An Analysis of Libya’s
Claim to the Gulf of Sidra,” Ocean Development and International Law, Vol. 13 (1), 1983, 65–
85; Yehuda Z. Blum, “Current Development: The Gulf of Sidra Incident,” American Journal of
International Law, Vol. 80, 1986, 669–677; and Faraj Abdullah Ahnish, The International Law
of Maritime Boundaries and the Practice of States in the Mediterranean Sea (Oxford: Clarendon
Press, 1993), 194–251.
36. See O’Connell, supra note 15, at 418.
37. As pointed out by Buchholz, “[p]rotests against this demarcation were never recorded.”
See Hanns J. Buchholz, Law of the Sea Zones in the Pacific Ocean (Singapore: Institute of
Southeast Asian Studies, 1987), at 85.
38. See Gioia, supra note 5, at 327–376.
39. The Gulf was claimed as territorial sea by Laws No. 62-35 of October 16, 1962 and No.
 166 Z. Keyuan

63–49 of December 30, 1963. The texts of the laws are reprinted in Journal Officiel de la République
Tunisienne, October 12–16, 1962, at 1224 and December 31, 1963, at 1870.
40. Tunisia made its claim in 1973 by a decree.
41. See Gioia, supra note 5, at 346.
42. Ibid., at 347.
43. Ibid., at 359.
44. See Continental Shelf (Tunisia v. Libya Arab Jamahiriya), Libyan Counter-Memorial,
1980 ICJ Pleadings, at 53.
45. Gioia, supra note 5, at 365.
46. See Continental Shelf (Tunisia v. Libyan Arab Jamahiriya), 1982 ICJ Reports, at 68.
47. Gioia, supra note 5, at 369.
48. Ibid., at 370.
49. Continental Shelf Tunisia v. Libya, supra note 46, at 73.
50. Ibid., at 74.
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51. Gioia, supra note 5, at 371.

52. Ibid., at 373.
53. For a thorough assessment of the case, see Barbara Kwiatkowska, “The Eritrea/Yemen
Arbitration: Landmark Progress in the Acquisition of Territorial Sovereignty and Equitable
Maritime Boundary Delimitation,” IBRU Boundary and Security Bulletin, Vol. 8 (1), 2000,
66–86.
54. Eritrea-Yemen Arbitration Award, Phase I: Territorial Sovereignty and Scope of Dis-
pute, 9 October 1998, para. 2, available at http://www.pca-cpa.org/ER-YEAwardTOC.htm (access
date: 17 May 2000).
55. See ibid., paras 13–14.
56. See ibid., paras. 31–41.
57. Ibid., para. 123.
58. Ibid., para. 126.
59. Ibid., para. 449.
60. Ibid., para. 526.
61. Fu Chu, Concerning the Question of Our Country’s Territorial Sea, Beijing, 1959, translated
in J. A. Cohen and Hungdah Chiu, People’s China and International Law (Princeton: Princeton
University Press, 1974), at 483.
62. Fu Chu, supra note 61, at 483.
63. Office of Laws and Regulations, State Oceanic Administration (ed.), Collection of the
Sea Laws and Regulations of the People’s Republic of China (Beijing: Ocean Press, 1991), at
3–4.
64. Fu Chu, supra note 61, at 484.
65. Ibid.
66. Ibid., at 486. Under the LOS Convention, the Bohai Gulf now qualifies as a juridical
bay.
67. The whole text is reprinted in Office of Laws and Regulations, supra note 63, at 59–63.
68. See Bureau of Oceans and International Environmental and Scientific Affairs, U.S. De-
partment of State, Straight Baseline Claim: China (Limits in the Seas No. 117, 9 July 1996), at 8.
69. See Ewan Anderson, An Atlas of World Political Flashpoints: A Sourcebook of Geopo-
litical Crisis (London: Pinter Reference, 1993), at 211.
70. See Office for Ocean Affairs and the Law of the Sea, United Nations, The Law of the
Sea: Baselines: National Legislation with Illustrative Maps (New York: United Nations, 1989), at
384. For further details, see Epsey Cooke Farrell, The Socialist Republic of Vietnam and the Law
of the Sea: An Analysis of Vietnamese Behaviour Within the Emerging International Oceans
Regime (The Hague: Martinus Nijhoff, 1998), at 70–71.
71. Chen Tiqiang and Zhang Hongzheng, “The Issue of Delimiting the Beibu Gulf Sea
Areas,” in Chen Tiqiang, Collected Works of International Law (Beijing: Law Press, 1985) (in
Chinese), at 191.
 Historic Rights in International Law and in China’s Practice 167

72. In fact, France protested the Vietnamese claim in 1983. See J. Ashley Roach and Robert
W. Smith, United States Responses to Excessive Maritime Claims (The Hague: Martinus Nijhoff,
1996), at 52–53, n. 33.
73. See Chen and Zhang, supra note 71, at 192–193.
74. Ibid., at 193.
75. The text in Chinese is available in Wang Tieya (ed.), A Comprehensive Compilation of
Old Sino-Foreign Treaties and Agreements, Vol. 1 (Beijing: San Lien Publishing Co., 1982) (in
Chinese), at 513.
76. Roach and Smith, supra note 72, at 53.
77. For details, see Zou Keyuan, “Maritime Boundary Delimitation in the Gulf of Tonkin,”
Ocean Development and International Law, Vol. 30, 1999, 235–254.
78. See W. E. Butler, The Law of Soviet Territorial Waters (New York: Praeger, 1967), at
108–110.
79. The Treaty of Peking is reprinted in Wang Tieya, supra note 75 at 149.
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80. Strohl, supra note 9, at 338.

81. See People’s Daily (in Chinese), 23 September 1957.
82. The other arguments were: geographic conditions, significance of the economy, signifi-
cance of national defence interest, and historical ties. See the Soviet Union Note Verbale to the
Japanese Government, 7 January 1958, reprinted in Japanese Annual of International Law, Vol.
2, at 215–216.
83. Clark, supra note 10, at 190.
84. Ibid., at 202.
85. See Fu Chu, supra note 61, at 483.
86. It should be noted that China’s support was in September 1957 and China’s claim to the
Bohai Bay came in September 1958, just one year after the Soviet claim.
87 See Article 1 of the Treaty of Peking, reprinted in Wang Tieya (ed.), supra note 75, at
149–150.
88. For details, see Hal F. Olson and Joseph Morgan, “Chinese Access to the Sea of Japan
and International Economic Development in Northeast Asia,” Ocean & Coastal Management,
Vol.17, 1992, 57–79.
89. See Fishery Administrative Bureau, Ministry of Agriculture (ed.), Sino-Japanese Gov-
ernmental Fishery Agreements and Non-Governmental Protocols on the Safety of Fishing Opera-
tions, April 1993 (in Chinese).
90. The draft law contained no stipulation on historic rights. Article 14 was inserted in the
final stage of adoption at the National People’s Congress. However, there was no explanation.
See Law on the Exclusive Economic Zone and Continental Shelf of the People’s Republic of
China (draft) (in Chinese), December 1996 (on file with the author); Li Zhaoxing, “The Explana-
tion on the Law on the Exclusive Economic Zone and Continental Shelf (Draft),” 24 December
1996, in Gazette of the Standing Committee of the National People’s Congress of the People’s
Republic of China (in Chinese), No. 3, 1998, at 278–279; and Zhou Keyu, “The Report of
Reviewing the Law on the Exclusive Economic Zone and Continental Shelf of the People’s
Republic of China,” Gazette of the Standing Committee, ibid., at 280–282.
91. The revised Law on Marine Environmental Protection was adopted on 25 December
1999 and came into force on 1 April 2000. The text is reprinted in People’s Daily (in Chinese),
28 December 1999.
92. See Zou Keyuan, “Implementing Marine Environmental Protection Law in China: Progress,
Problems and Prospects,” Marine Policy, Vol. 23, 1999, at 211.
93. China might also have historic rights in the Sea of Japan. However, the present article
only focuses on the South China Sea.
94. For details on the line and its legal implications, see Zou Keyuan, “The Chinese Tradi-
tional Maritime Boundary Line in the South China Sea and Its Legal Consequences for the Reso-
lution of the Dispute over the Spratly Islands,” International Journal of Marine and Coastal
Law, Vol. 14 (1), 1999, 27–55.
 168 Z. Keyuan

95. See Kuan-Ming Sun, “Policy of the Republic of China towards the South China Sea,”
Marine Policy, Vol. 19, 1995, at 408.
96 For details, see “Legal Regime of China’s Historic Waters in the South China Sea,”
Issues and Studies (Chinese edition), Vol. 32, No. 8, 1993, 1–12.
97. Pan Shiying, “South China Sea and the International Practice of the Historic Title,”
paper presented to the American Enterprise Institute Conference on the South China Sea, Wash-
ington, 7–9 September 1994, at 5.
98. See Wu Fengbing, Historical Evidence of China’s Ownership of the Sovereignty over
the Spratly Islands,” in China Institute for Marine Development Strategy (ed.), Selected Papers of
the Conference on the South China Sea Islands (Beijing: Ocean Press, 1992) (in Chinese), at 111.
99. Jiao Yongke, “No Question of Re-demarcation in the South China Sea,” Ocean Devel-
opment and Management (in Chinese), Vol. 17 (2), 2000, at 52.
100. Chinese literature mentions significant historical evidence of China’s exploration of the
South China Sea. See, for instance, Li Jinming, “Evidences of Exploration and Management of
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the Paracel and Spratly Islands by the Chinese People,” Southeast Asian Affairs: A Quarterly
Journal (in Chinese), No. 2, 1996, 82–89 and Teh-Kuang Chang, “China’s Claim of Sovereignty
over Spratly and Paracel Islands: A Historical and Legal Perspective,” Case W. Res. J. Int’L L.,
Vol. 23, 1991, 399–420. A Taiwanese scholar has taken the view that since ancient times China
has sent naval forces to patrol the South China Sea, arrested pirates, assisted in salvage, operated
fishing activities such that China enjoys historic interests within the U-shaped line in regard to
economic resources, navigational management, and security of national defence. See remarks of
Fu Kuen-Chen at the Workshop on “Legal Regime of China’s Historic Waters in the South China
Sea,” supra note 96, at 7.
101. Article 77 (3) of the LOS Convention.
102. See O’Connell, supra note 15, Vol. 2, at 713.
103. See Separate Opinion of Judge ad hoc Jimenez de Arechage, Continental Shelf (Tunisia
v. Libya), supra note 46, at 123–124.
104. Nguyen Hong Thao, “China’s maritime moves raise neighbors’ hackles,” Vietnam Law
& Legal Forum, July 1998, at 21.
105. Ibid., at 21–22.
106. See “Vietnam: Dispute regarding the Law on the Exclusive Economic Zone and the
Continental Shelf of the People’s Republic of China which Was Passed on 26 June 1998,” Law
of the Sea Bulletin, No. 38, 1998, at 55.
107. Clark, supra note 10, at 168.
108. See Yearbook of the International Law Commission, 1955, Vol.1, at 214.
109. Continental Shelf (Tunisia/Libya), supra note 46, at 74, quoted again in Land, Island
and Maritime Frontier Dispute, supra note 27, at 589.
110. L.F.E. Goldie, “Historic Bays in International Law—An Impressionistic Overview,”
Syr. J. Int’l L. & Com., Vol. 11, 1984, at 271–272.
111. As has been observed: “The number and frequency of coastal states’ claims in this
regard shows that the old concept of an historic bay is currently evolving into a more flexible
notion whose crucial elements are the bona fide assertion of State interests and the recognition of
and acquiescence of third states, rather that immemorial usage and the long passage of time.”
Francesco Francioni, “The Status of the Gulf of Sirte in International Law,” Syr. J. Int’l L. &
Com., Vol. 11, 1984, at 325.