ALSA LC Unpad 17/18: Legal Opinion

Legal Analysis of The Existence of Historic Fishing Rights in the South China Sea Khairunnisa Andira ALSA LC UNPAD I.

Introduction

There are numerous disputes concerning historic claims of a State over waters adjacent to another coastal State. The most recent dispute is concerning fishing rights. In 2013, Philippines contested Chinese claims over South China Sea and brought the case to Permanent Court of Arbitration (PCA) in the Hague, which serves as an arbitral tribunal under Annex VII of the United Nations Convention on the Law of the Sea 1982 (UNCLOS). On July 12, 2016, the tribunal released the Award, which ruled in favor of Philippines. The Award, which clarifies issues and questions concerning several provisions of the UNCLOS is a landmark, that is significant not only for the South China Sea dispute, but also for contested maritime rights and responsibilities in other maritime areas of the world.

The main issue addressed is the existence of historic claims of China over South China Sea, in which China claims through the U-shaped line map. 1 China stated that it has historical claim over the sea and hence is exempted from the general rule of 12 nautical miles. One of those claims is fishing rights over the Lagoon at Scarborough Shoal. However, there are debates whether Chinese historic claims have legal basis, particularly after the establishment of the Exclusive Economic Zone (EEZ) regime in UNCLOS. Before the establishment of UNCLOS, the preservation of fishing rights has become state practice. Nevertheless, after UNCLOS was established, UNCLOS only contains the obligation to preserve traditional fishing rights in the field of archipelagic waters of an archipelagic State. 2 Furthermore, there are no other international conventions providing any direct obligation to preserve traditional fishing rights for a non-archipelagic State. This article will discuss the feasibility of China’s assertion of historic fishing rights under international law.

I.

The Existence of Historic Fishing Rights After the Adoption of UNCLOS

The inclusion of the exclusive economic zone (EEZ) regime in UNCLOS inevitably extinguished most of the claims of historic rights, for instance the existence of traditional fishing rights. 3 By the adoption of UNCLOS, what previously might have been a historic claim over parts of the high sea now became a historic claim over parts of the EEZ of another state.

1 In 1947 the government published "China compilation of South China Sea Islands location map", the eleven section of the line is drawn with the symbol of the undetermined country boundary. After the founding of the People's Republic of China, the new map of China has inherited this line, just change the 11 dashes to 9 dashes with the cancellation of two sections between Hainan Island and Vietnam. No explanation provided by the Chinese government concerning what the dashes mean, and other states bordering the South China Sea continue to exercise freedom of fishing in areas beyond their territorial seas, completely unaffected by the issuance of the map.

2

Article 51 United Nations Convention on the Law of the Sea [UNCLOS], 1833 UNTS 3, 10 December 1982.

3 South China Sea Arbitration (Republic of Philippines v. People’s Republic of China), Award, PCA 2016, ¶800.

Most States had accepted the idea of a 12 nautical miles territorial sea in the third and final law of the sea conference conducted in 1973. The claim of legitimate traditional fishing rights of a State in territorial sea of a coastal State does not extinguish the entitlement of territorial sea of the coastal State.4 Furthermore, the coastal State must recognize such rights in order for it to be preserved under international law. For instance, in the delimitation case between Eritrea and Yemen, both States upheld that the boundary line should be adjusted with their historic claims.

As both disputing States recognized the historic claim regarding fishing rights of each other and have been practiced for a long period of time, both States can continue to fish on the other side of the territorial boundary.

In the third conference on the law of the sea between 1973 and 1982, the EEZ regime was introduced. The EEZ was a new regime under international law in which coastal States have the sovereign right to explore and exploit the natural resources of the sea up to 200 nautical miles from their coasts.5 They also have jurisdiction over the establishment and use of artificial islands, marine scientific research and protection and preservation of the marine environment. 6 The compromise of a 200 nautical miles EEZ was widely accepted by coastal States, since this would put most of the natural resources within their jurisdiction. Other States also have the right to exercise high seas freedoms in the EEZ, including the freedoms of navigation and over flight. 7 However, as the establishment of the EEZ regime, historic claims of another State have overlapped with an EEZ claim of State.

Different with the provisions on bays and territorial sea delimitation, historic rights have not been reserved in the rest of UNCLOS, particularly under the provisions of EEZ. However, Article 62(3) of UNCLOS stipulates that when a coastal State is unable to fully exploit the total allowable catch of fish within its EEZ, it may choose to allow other States to exploit the surplus, most importantly, to minimize economic dislocation of States whose nationals have habitually fished in the area.8 Yet the term ‘traditional fishing rights’ is not used in this provision. This provision however, although recognizing that other States might have traditionally fished in the waters that are now the EEZ of another State, was not intended by the UNCLOS’ drafters to preserve traditional fishing rights.9 The coastal State is only responsible for determining the total allowable catch and surplus, if any. Moreover, Article 62(3) only requires the coastal States for taking into account other States that have habitually fished in their EEZ, but the final decision is for the coastal State to decide. In conclusion, after the establishment of the EEZ regime, past fishery practices are merely considerations as to surplus catch allocation, not even prioritized 4 Article 15, UNCLOS. 5 Article 56(1)(a) & 57, UNCLOS. 6 Article 56(1)(b), UNCLOS. 7 Article 58(1), UNCLOS. 8 Article 62(3), UNCLOS. 9 South China Sea Arbitration, supra n.3, ¶804(b).

rights. This implies that the sovereign rights of a coastal State in the EEZ have overpowered any other State’s traditional fishing rights.

II.

Historic Fishing Rights under International Law

Historic title is a legal concept that exists under customary international law as an exception to the establishment of EEZ regime. Prior to the establishment of the EEZ regime, the practice where states claimed that they historically have used or exploited some area of the ocean adjacent to their land has been recognized by other states. This historic claim was used as a basis to unilaterally assert exclusive fishing rights over an area of the ocean beyond the territorial sea.

Historic claim may refer to either a claim of historic waters or historic rights.10 Historic right means that a state is claiming to exercise a certain right in relation to other states by effectively exercising those rights with the acquiescence 11 of the states concerned. This term indicates those special rights acquired by a state in derogation to the existing rules which would otherwise apply to the situation at hand. 12 It is important to note that historic right claims do not amount to a sovereignty claim.13 Claims of historic rights only mean that the state concerned asserts the right to conduct a specific long-established activity, such as fishing. This claim is different with the claim of historic waters, in which the state claiming such right asserts full sovereignty through an effective display of authority without protests from any other states.14 Fishing rights in general defined as interest of a person or a community which have the access to fish stocks or to harvest from it.15 In order to be reserved under international law, there are thresholds that must be proven by the claiming state. First, the kind of right in which the state is claiming must be specific. State practice shows that the claim of historic rights must be specifically described.16 For instance, in Tunisia/Libya, Tunisia claimed the historic right over 10 While the concept of historic title is not discussed in UNCLOS, it is generally accepted as customary international law; see Continental Shelf (Tunisia/Libyan Arab Jamahiriya), (1982) ICJ Reports, Judgment (Tunisia/Libya), p.74.

11 Acquiescence derives from the maxim qui tacet consentire videtur si loqui debuisset ac potuisset: one who keeps silent is held to consent if he can speak. ICJ in Temple of Vihear has confirmed that failure to protest certain facts in significant period shall be regarded as tacit acceptance.

12 Andre Gioia, “Tunisia’s Claims over Adjacent Seas and the Doctrine of Historic Rights” (1984) Syracuse Journal of International Law & Commerce Vol. 11, at 328.

13 In Qatar/Bahrain case, it is concluded that even if the historic pearling rights of Bahrain were recognized, it would not have amounted to sovereignty or any form of ‘quasi-sovereignty’ over the pearling banks or to the superjacent waters.

14 ICJ accepted the concept of historic waters in the Anglo-Norwegian Fisheries case in which Norway successfully provided evidence that it has been exercising exclusive authority over Lopphavet basin since the 17 th century with the acquiescence of third states.

15 Philip A. Neher, Ragnar Arnason and Nina Mollet, Rights Based Fishing, Series E. Applied Sciences, Volume 169, Kluwer Academic Publishers, (eds), 1989, p. 5-10.

16 Leonardo Bernard, “The Right to Fish and International Law in the South China Sea, (2016) Journal of Political Risk, p. 8.

sponge fisheries;17 in Qatar/Bahrain, Bahrain claimed the historic right over pearling;18 in Barbados/Trinidad and Tobago, Barbados claimed historic rights of fishing for the flying fish in the waters of Trinidad and Tobago;19 and in the Jan Mayen case, Norway claimed that its fishermen had traditionally conducted whaling, sealing and fishing for capelin in the waters between Jan Mayen and Greenland.20 In the South China Sea Arbitration, China claims exclusive right over all kinds of fishing activities within the U-shaped line, whether they are artisanal or industrial.

Second, the state claiming historic right must prove that it has exercised this right for a long period of time. Although there is no precise length of time can be indicated as considerable for such right to be exercised, such long usage must have lasted for ‘as long as international law requires it’.21 It must remain a matter of judgment when sufficient time has elapsed for usage to emerge.22 In this regard, China must prove that both its artisanal fishing and industrial fishing have historically been conducted for sufficient amount of time. While China may be able to provide historical evidence that its artisanal fishermen have conducted their fishing activity for more than 100 years, it may be difficult Lastly, China must prove that its historic fishing rights claim is recognized by other states, particularly those that are affected by the claim. In Eritrea/Yemen, the Tribunal held that Eritrean fishermen reserved its traditional fishing rights from their continuous and long-exercised fishing activities, as well as acknowledgement from Yemen thereof. 23 Similarly, in Chagos MPA (Mauritius v. UK), UK’s acknowledgement of Mauritius’ traditional fishing rights is also essential to regard Mauritius’ long-established fishing activities amounted to traditional fishing rights.24 On the contrary, there is no indication that any littoral states in South China Sea have recognized that China has traditional fishing rights in the waters within the nine-dash line.

Without recognition, China’s claim of a historic title will remain a unilateral claim without legal basis under international law.

In any event, the remaining question is whether the nine-dash-line map could be considered as evidence in support of China’s claim. Under international law, maps do not constitute titles. The 17 Continental Shelf (Tunisia/Libyan Arab Jamahiriya), supra n. ¶98.

18 Maritime Delimitation and Territorial Questions between Qatar and Bahrain, Merits, Judgment (2001) ICJ Reports 40 (Qatar/Bahrain), ¶235-236.

19 Barbados v Trinidad & Tobago, Award of the Arbitral Tribunal (2006) 45 ILM 798, ¶247.

20 Maritime Delimitation in the Area between Greenland and Jan Mayen (Denmark v Norway) (1993) ICJ Report 38, ¶15.

21 Leo Bernard, supra n.16, p. 13.

22 International Law Committee, Juridical Regime of Historic Waters, Including Historic Bays, UN Doc A/CN.4/143 (1962) ILC Yearbook, vol II, ¶104.

23 Award of the Arbitral Tribunal in the Second Stage of the Proceedings (Maritime Delimitation) (Eritrea v. Yemen), Award, Reports of International Arbitral Awards, 17 December 1999, ¶ 108.

24 The Chagos Marine Protected Area Arbitration (Mauritius v UK), Award, 18 March 2015(Mauritius v UK), ¶415.

case confirming this point is Frontier Dispute (Burkina Faso/Mali) on 1986 in which ICJ stated that in frontier delimitations “maps merely constitute information” and that “by virtue solely of their existence, they cannot constitute a territorial title.” 25 Also, Max Huber in Island of Palmas case stated that “only with the greatest caution can account be taken of maps in deciding a question of sovereignty.”26 In this regard, several factors weaken the probative value of the ninedash-line map. First, the map does not provide clear limits of China’s sovereignty: the absence of geographical coordinates makes it impossible to determine the precise area enclosed by it.

Second, the nine-dash-line map has never been alleged to be the product of independent cartographers. Even Chinese scholars admit that the map that was first published in 1948 has always been a unilateral illustration of the limits of China’s sovereignty, making its neutrality in relation to the dispute is questionable. 27 The uncertain origins of the map and its apparent lack of official endorsement by China on international level will most likely undermine any potential attempt to rely on the map.28 III.

Conclusion

The claim of traditional fishing rights of a State over a coastal State has been trump by the sovereign rights of the coastal State. The only way for historic fishing rights to be protected under international law is by the coastal State to recognize and acknowledge the rights by bilateral agreement between both States, or by unilateral conduct of the coastal State implying recognition of such rights. It is doubtful that China can fulfill all the elements of a historic title claim in the South China Sea, considering that it is highly unlikely that other littoral states would give their recognition or acquiescence to such claims due to the fact that these states have submitted formal claims to areas within China’s nine-dash-line. Hence, China’s historic title claim bears no weight under international law.

25 Frontier Dispute (Burkina Faso/Mali), Judgment [1986] ICJ, ¶54.

26 Island of Palmas (Netherlands/ United States) 2 RIAA 829, p. 852.

27 Florian Dupuy & Pierre-Marie Dupuy, “A Legal Analysis of China’s Historic Rights Claim in the South China Sea” (2013) 107 AJIL 141, p. 134.

28 Ibid.