The disputes in the South China Sea - from the perspective of int'l law (Conclusion)

The same logic may apply to the historic rights. It can be argued that the fact the Convention does not refer to the terms “historic rights” or historic waters only means that the Convention does not touch on these matters and leave them to the customary law. The state practice and the judicial decisions, such as Fisheries case and El Salvador/Honduras case, have proved that historic waters exist in and regulated by the customary law. In this connection, it is worth recalling the Tunisia/Libya case, where the historic fishing rights were put forward by Tunisia. The ICJ said that “The historic rights remain however to be considered in themselves. Historic titles must enjoy respect and be preserved as they have always been by long usage.” In the view of the ICJ, the references to ‘historic bays’ or ‘historic titles’ or historic reasons in the Convention “in a way [amount] to a reservation to the rules set forth therein. It seems clear that the matter continues to be governed by general international law”. The findings of the ICJ show that the Court did not consider that to put forward claims to historic rights or historic waters per se should be taken as a breath of Convention. 

Here it should be pointed that Chinese people started to develop the Nansha Islands and engage in fishing on the islands as early as in the beginning of the Ming Dynasty. They were later on organized with the approval and support of the Chinese Government. For ages, Chinese fishermen would come and go between Hainan Island and Guangdong Province on the one hand and the Nansha Islands on the other, and they never failed to pay their taxes and fees to the Chinese Government. In its Law on the EEZ and Continental Shelf, the Chinese government declares that “The provisions in this law shall not affect the historic right that the PRC enjoys”. 

In light of the LOS Convention, maritime delimitation “between States with opposite or adjacent coasts shall be effected by agreement on the basis of international law, as referred to in Article 38 of the Statute of the International Court of Justice, in order to achieve an equitable solution”. And according to China, the overlapping claims should be determined “by agreement with the states with opposite or adjacent coasts in accordance with the equitable principle on the basis of international law”. The jurisprudence of the international court and tribunal shows that maritime delimitation shall not be effected by automatic application of somewhat delimitation method, and the agreement delimitation is the supreme rule for maritime delimitation.

According to Articles 74(3) and 83(3) of the LOS Convention, “pending delimitation, the States concerned, in a spirit of understanding and cooperation, shall make every effort to enter into provisional arrangements of a practical nature and, during this transitional period, not to jeopardize or hamper the reaching of the final agreement”. In the view of the Tribunal in the Guyana/Suriname case, this provision imposes two obligations in the context of a boundary dispute concerning the continental shelf and EEZ: “The first obligation is that, pending a final delimitation, States Parties are required to make ‘every effort to enter into provisional arrangements of a practical nature.’ The second is that the States Parties must, during that period, make ‘every effort ... not to jeopardize or hamper the reaching of the final agreement.’”5 In the view of the Tribunal, the first obligation imposes the parties a duty to negotiate in good faith,6 and joint exploitation of resources has been particularly encouraged by international courts and tribunals. As regard the non-hamper obligation, the tribunal pointed out that in the absence of a provisional arrangement, activities that lead to a permanent physical change of the marine environment, such as exploitation of oil and gas reserves, could be undertaken only jointly or by agreement between the parties, because such activities could be perceived to, or may genuinely, prejudice the position of the other party in the delimitation dispute, thereby both hampering and jeopardising the reaching of a final agreement. Violation of these obligations will give rise to state responsibility.

5 Guyana v. Suriname, Award, n.2 above, para. 459.

6 Ibid., para. 461.

In that case, Suriname was found to violate the first obligation because it did not send a representative to conclude discussions on modalities for joint utilization of the disputed area; and refused to accept the last minute invitation of Guyana and negotiate in good faith. These findings seem to show that to participate into the negotiation on joint development itself constitutes part of the obligation under paragraph 3 of article 74/83. During the talks, the parties have to resolve lots of complicated issues, such as the location of the JDZ and the mode of JD. While the determination of these questions is the prerequisite for the realization of JD, it shall not be the precondition for the starting of JD negotiations.