it is necessary to address the question of whether a State can claim historic rights within the EEZ of another State. A leading case in this matter is the South China Sea Arbitration (Merits). In this case, a particular issue was raised with regard to the legality of China’s claimed historic rights to marine spaces encompassed by the so-called ‘nine dash line’ in the South China Sea. No article of the LOSC expressly provides for or permits the continued existence of historic rights to the living or non-living resources of the EEZ. An issue at point was whether the Convention nevertheless intended the continued operation of historic rights that are at variance with the Convention.
It is beyond serious argument that the coastal State alone has sovereign rights to the living and non-living resources of the EEZ under the Convention. As explained earlier, the coastal State’s sovereign rights in the EEZ are exclusive in the sense that other States cannot engage in activities in the EEZ without consent of the coastal State. As provided in Article 58 of the Convention, high seas rights and freedoms apply in the EEZ only to the extent that they are not incompatible with the provisions of Part V of the Convention.
Accordingly, the Annex VII Arbitral Tribunal, in its Arbitral Award of 2016, ruled:
the notion of sovereign rights over living and non-living resources is generally incompatible with another State having historic rights to the same resources, if such historic rights are considered exclusive.
In the Tribunal’s view, the right of other States of access to the surplus of the allowable catch also precludes the possibility that other States have rights in the EEZ of third States in excess of those specified under the Convention. It must also be recalled that reservations are clearly prohibited under Article 309 of the Convention, to maintain the integrity of the Convention. According to the Tribunal, it is simply inconceivable that the drafters of the Convention anticipated that the resulting Convention would be subordinate to broad claims of historic rights. The Tribunal thus concluded that ‘the Convention supersedes earlier rights and agreements to the extent of any incompatibility’. In other words, the LOSC overrules historic rights that are incompatible with the Convention.