Historic Rights in the Law of the Sea: Clarification, Continuity, and Contestation

초록

The historic rights doctrine occupies an ambiguous yet enduring position. Traditionally grounded in customary law, it has been invoked to justify sovereignty claims over bays and straits, preserve traditional fishing practices, and assert jurisdictional entitlements. The adoption of UNCLOS codified maritime zones entitlements, offering only limited reference to "historic bays" and "historic title," leaving the doctrine's status uncertain. Recent jurisprudence has provided clarity. The South China Sea Arbitration (2016) confirmed that historic rights incompatible with UNCLOS-particularly those extending beyond the EEz or continental shelf-are superseded by the treaty. Conversely, cases like Chagos (2015), Nicaragua v. Colombia (2012, 2022), and Eritrea v. Yemen (1998-1999) demonstrate that historic rights persist in limited contexts, e.g., traditional fishing, servitudes, and historically recognised bays. This article situates historic rights within the UNCLOS framework and recent jurisprudence, arguing that they remain a living doctrine: clarified in law, narrowed in scope, but rhetorically and politically resilient.

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