(a) The Concept of Historic Waters
The TSC and the LOSC contain no definition of historic bays. According to the Annex VII Arbitral Tribunal in the South China Sea Arbitration (Merits), a ‘historic bay’ is ‘a bay in which a State claims historic waters’. As historic bays are one of the categories of ‘historic waters’, the legal regime of historic bays should be examined in the broad context of historic waters. According to the ICJ, ‘historic waters’ usually mean ‘waters which are treated as internal waters but which would not have that character were it not for the existence of [a] historic title’. In the words of the Annex VII Arbitral Tribunal, ‘“Historic waters” is simply a term for historic title over maritime areas, typically exercised either as a claim to internal waters or as a claim to the territorial sea’.
According to the Arbitral Tribunal in the South China Sea Arbitration (Merits), ‘historic title’ is used specifically to refer to historic sovereignty to land or maritime areas. In contrast, The term ‘historic rights’ is general in nature and can describe any rights that a State may possess that would not normally arise under the general rules of international law, absent particular historical circumstances. Historic rights may include sovereignty, but may equally include more limited rights, such as fishing rights or rights of access, that fall well short of a claim of sovereignty.
The distinction between historic title that is linked to sovereignty and historic rights falling short of sovereignty becomes crucial in relation to optional exceptions to the compulsory procedures of international dispute settlement under Article 298(1)(a)(i) of the LOSC.
(b) The Concept of Historic Bays
By way of example, Judge Oda, in the 1992 Land, Island and Maritime Frontier Dispute, defined historic bays as:
[T]hose bay-like features (in a geographical sense) which, because of their greater width at the mouth or their lack of penetration into the landmass, could not normally be classified legally as bays but can for historical reasons be given the same legal status as ‘bays’.
Should the title to a historic bay be established, a coastal State may draw a closing line across the mouth of the bay, and the line forms the baseline. The area inside the closing line constitutes the internal waters of that State.
A pivotal issue in this regard concerns the conditions for claiming historic bays. As neither the TSC nor the LOSC dealt with historic bays, they are governed by customary international law. While it is difficult to examine the actual State practice concerning historic bays in a comprehensive manner, the study of the UN Secretariat seems to shed some light on this subject. This study enumerated three basic elements for a title to historic waters, including historic bays:
(i) the exercise of authority over the area by the State claiming the historic right,
(ii) the continuity of this exercise of authority, and
(iii) the attitude of foreign States.
According to the UN Secretariat Study, ‘there seems to be fairly general agreement’ on the three requirements. However, the three elements are not wholly unambiguous. In particular, three issues merit highlighting.
The first issue is how long the exercise of authority must continue. It is generally considered that the State must exercise the authority for a considerable time so as to have developed into a usage. In this regard, the ICJ in the Tunisia/Libya case ruled that:
‘Historic titles must enjoy respect and be preserved as they have always been by long usage.’ As the UN Secretariat admitted, however, ‘no precise length of time can be indicated as necessary to build the usage on which the historic title must be based’.
The second issue is at what time the opposition must occur in order to prevent the creation of a historic title. One can argue that opposition can be made only after the exercise of authority has begun. In practice, however, it may not be easy to determine exactly when a State commenced to exercise its jurisdiction to a certain marine space.
Furthermore, there is no precise time limit for the lapse of time necessary to allow the emergence of the historic rights. Therefore, it may have to be admitted that rules concerning the key element of historic title or historic bays, i.e. the temporal element, remain obscure in customary international law.
The final issue is whether a claim to historic bays can be justified by a ‘vital interest’ of the coastal State. At the 1930 Hague Conference for the Codification of International Law, for instance, the Portuguese representative asserted that:
From a variety of circumstances, the State to which the bay belongs finds it necessary to exercise full sovereignty over it without restriction or hindrance. The considerations which justify their claim are the security and defence of the land territory and ports, and the wellbeing and even the existence of the State.
It would seem that the primary intention of this line of thought is to justify the claim to historic bays ignoring the time or historicity element. Nevertheless, the bypassing of the historicity element is contrary to the concept of historic bays. Furthermore, as ‘vital interest’ is a matter of subjective appreciation, giving States the right to claim ‘vital interest’ may entail the serious risk of increasing unwarranted claims to historic bays and eventually destroy the rules determining bays in international law. Hence there appears to be good reason to argue that ‘vital interest’ alone cannot provide a title to a historic bay.
The existence of a title to historic waters, including historic bays, is to a large extent a matter of appreciation depending on specific circumstances. It seems, therefore, that the claim to a historic bay must be evaluated on a case-by-case basis. The ICJ, in the 1982 Tunisia/Libya judgment, echoed this view, by stating that:
It seems clear that the matter continues to be governed by general international law which does not provide for a single ‘régime’ for ‘historic waters’ or ‘historic bays’, but only for a particular régime for each of the concrete, recognized cases of ‘historic waters’ or ‘historic bays’.
In light of the complications in the evaluation, it would be extremely difficult to establish a definitive list of historic bays. In reality, claims to historic bays have often evoked protests from foreign States. For instance, the Russian claim to the Peter the Great Bay was met with protest from many States, such as the United States, Japan, the United Kingdom, France, Canada, Sweden, the Federal Republic of Germany and the Netherlands.
Arguably, the most dramatic instance may be the claim by Libya to the Gulf of Sert (or Sidra).81 On 10 October 1973, Libya claimed the Gulf as Libyan internal waters and drew a closing line of approximately 300 miles in length across the Gulf. Many States, including Australia, France, the Federal Republic of Germany, Italy, Norway, Spain, the United States, the United Kingdom and the other EC Countries, protested the Libyan claim. On 19 August 1981, the Sixth Fleet of the United States Navy conducted military manoeuvres in the proximity of the contested area. This action caused armed conflict and US F-14 fighter aircraft shot down two Libyan Sukhoi-22 fighters above the Gulf of Sidra. On 25 March 1986, air and sea manoeuvres north of the Gulf of Sidra conducted by the US Sixth Fleet created another armed confrontation with Libya, killing twenty-four persons.
As illustrated by this episode, claims to historic bays may give rise to a serious international dispute. Under Article 298(1)(a)(i) of the LOSC, however, disputes involving historic bays or titles may be exempted from the compulsory procedure of peaceful settlement of international disputes embodied in Part XV of the Convention.
source: The International Law of the Sea, Yoshifumi Tanaka