5.2 Development of the historic waters doctrine
The doctrine of historic waters has its origins in the doctrine of historic bays, which emerged in the 19th century to safeguard large bays closely connected to a country's land area and considered part of their national territory.(1) Donat Pharand, “The Basic Characteristics of Historic Waters,” in Canada's Arctic Waters in International Law (Cambridge: Cambridge University Press, 1988), p. 91, accessed October 18, 2023, doi:10.1017/CBO9780511565458.010. As rules relating to the delimitation of maritime zones developed, the idea of claiming bays based on a historic title was extended to other areas of the sea adjacent to the coast.(2)Ibid. However, the doctrine lacks a universally accepted definition in international law recognized by all states and is often referred to as “historic title,” “historic rights,“ or “historic internal waters.”(3) Clive R. Symmons, Historic Waters in the Law of the Sea (Leiden, The Netherlands: Brill | Nijhoff, 2008), pp. 1-5, accessed November 10, 2023,https://doi.org/10.1163/ej.9789004163508.i-322.6. In the lack of a formally established definition of historic waters, it becomes imperative to depend on customary international law and the viewpoints of legal experts and judicial bodies.
In 1951, the ICJ in the Fisheries Case defined historic waters as those treated as internal waters but not having the same character without a historic title.(4) Fisheries case, supra note 24, p. 130. The ICJ observed that historical titles are established by prolonged and continuous usage, which is made feasible when other governments refrain from consistent objections regarding such titles.(5)Ibid., pp. 130-131. The ICJ further stated that an essential prerequisite for a state to expand the jurisdiction of internal waters to historical maritime areas is the significant proximity of those maritime areas to the territory of the respective state.(6)Ibid., p. 133. Thus, the ICJ asserted that there is an equivalence between historic waters and internal waters. This discovery suggests that the designation of internal waters signifies the Coastal State full sovereignty, granting the maritime region referred to as “historic” the same legal standing as internal waters.It presupposes that the Coastal States are no longer obligated to acknowledge the innocent passage of foreign vessels within their historic internal waters.(7) Symmons, supra note 203, pp. 39-41, 64. While the Coastal States have the option to allow such innocent passage, they are not legally bound to do so.If this occurs, the foreign vessel is then engaging in a privilege bestowed by the Coastal States as opposed to a right acknowledged by the international community.(8)Ibid.
In 1957, the UN Secretariat prepared a memorandum on “Historic Bays”(9) United Nations, Historic Bays: Memorandum by the Secretariat of the United Nations (Doc: A/CONF.13/1). Geneva, Switzerland 24 February to 27 April 1958, Extract from the Official Records of the United Nations Conference on the Law of the Sea, Volume I (Preparatory Documents). Available on: https://legal.un.org/diplomaticconferences/1958_los/docs/english/vol_1/a_conf13_1.pdf., further clarifying the concept of historic waters. It stated that claims for historic rights/titles were not limited to bays but could also be applied to the various areas capable of being comprised in the maritime domain of the State.(10)Ibid., para. 8, 63, 104, 109. This aligned with the ICJ ruling in the Fisheries Case that historic titles could apply to all forms of maritime territory- in the modern sense of understanding, including territorial waters and the EEZ.(11) Symmons, supra note 203, pp. 63-67.
In 1962, the UN Secretariat prepared a memorandum on “Juridical Regime of Historic Waters”(12) United Nations, Juridical Regime of Historic waters including historic bays - Study prepared by the Secretariat (Doc: A/CN.4/143). 9 March 1962, Extract from the Yearbook of the International Law Commission:- 1962 ,vol. II. Available on: https://legal.un.org/ilc/documentation/english/a_cn4_143.pdf., deeming the term historic waters equivalent to historic titles.(13)Ibid., para. 33, 34, etc. The memorandum explained that historic waters would be considered internal waters or territorial waters if: “(…) the sovereignty exercised over them in the course of the development of the historic title was sovereignty as over internal waters or territorial waters.”(14)Ibid., para. 167. The memorandum analysed the formation of historic title as a process of acquiring a historic right(15)Ibid., paras. 80-148. and provided a three-factor test to determine if a title to historic waters exists(16) Christopher Mirasola, "Historic Waters and Ancient Title: Outdated Doctrines for Establishing Maritime Sovereignty and Jurisdiction," Journal of Maritime Law and Commerce 47, no. 1 (2016): pp. 56-59, accessed November 13, 2023, available on: Hein Online. :
The authority exercised over the area by the State claiming it as historic waters;
The continuity of such exercise of authority;
The attitude of foreign States.(17) Ted L.Mcdorman, eds., "Notes On The Historic Waters Regime And The Bay Of Fundy," in The Future of Ocean Regime-Building (Leiden, The Netherlands: Brill | Nijhoff, 2009), pp. 718-719, accessed October 29, 2023, https://doi-org.ezproxy.uio.no/10.1163/ej.9789004172678.i-786.173.
The test holds importance as it served as the foundation for the ruling issued by the Permanent Court of Arbitration (hereinafter “Tribunal”) in the South China Sea Arbitration. The award pertained to the examination of historic rights and the origin of maritime entitlements in the South China Sea and the legality of certain actions taken by China in the South China Sea, which the Philippines claimed to be in breach of the UNCLOS.(18) S. Jayakumar, Tommy Koh, Robert Beckman, Tara Davenport, and Hao Duy Phan, ”The South China Sea Arbitration: laying the groundwork,” in The South China Sea Arbitration (Edward Elgar Publishing, 2018), pp. 1-17, accessed November 7, 2023, https://doi-org.ezproxy.uio.no/10.4337/9781788116275.00008.