The doctrine of historic waters as such has not received much academic attention in the past. For example, even the supposed doctrine of historic bays has only received partial treatment in older treatises on the law of the sea and, in the post-war period, with the publication of two English-language monographs on the regime of bays generally, respectively by Strohl, The International Law of Bays (1963) and by Bouchez, The Regime of Bays in International Law (1964). The topic has also been incidentally dealt with in the broader context of historic title generally (and so not wholly in a maritime context) as in the useful and pioneering work by Blum in 1965, Historic Titles in International Law.
In the early ‘60s two useful, but now dated publications, issued forth from the UN; namely, the Memorandum by the Secretariat of the UN, “Historic Bays” (30 September, 1957), and the Juridical Regime of Historic Waters, including Historic Bays (a study prepared by UN Secretariat of 9 March, 1962). The emphasis in the latter UN documents was again on historic bays (though noting a growing tendency to describe such maritime claims as “historic waters” (Juridical Regime, at p. 5); only incidentally touching on historic waters more generally such as historic archipelagic coastal waters or territorial seas (cf. the situation in Alaska v US [2005]). Additionally (id.), the Juridical Regime only claimed (modestly) to be an “initial” and “tentative” discussion of the topic. It is not without reason that the latter UN document (at p. 6, para. 33) stated that the subject of historic waters was one “where superficial agreement among authors and practitioners conceals several controversial problems as well as some obscurity or at least lack of precision”. Such problems are summarized in the last chapter of this edition.
The case of Alaska v US forms one of the central themes to this book, together with new multiple references in this updated-edition to the important recent developments on historic rights in the Philippines v China arbitration (2016). This latter case is, indeed, the main reason for this new edition, involving as it does the most detailed examination to date of the whole doctrine of historic rights (though not much, it should be noted, concerning historic waters) by an a tribunal of a judicial nature.
The Tribunal’s findings on the doctrine of historic rights in this recent case have (unfortunately, to my mind) been much criticized by commentators, particularly in the Far East: as this writer knows to his cost having delivered several papers on this aspect of the Award there in the last year or two. In one of these colloquia (“Public International Colloquium on Maritime Disputes Settlement”), in Hong Kong (2016), the ‘closing remarks’ (at p. 439 – see bibliography) from the Chairperson of the Hong Kong Arbitration Centre (Ms T. Cheng), stated that now that the Tribunal (in Philippines v China) has “clarified the law” on historic rights in the case, and found them to be “superceded” by the LOSC, she is “looking forward to the next book on a different subject” that I will be researching on! My response to this ‘tongue-in-cheek’ jibe is the publication of this present updated edition, which I hope will evidence that there is still much of the doctrine of historic maritime claims left intact in international law and still plenty of problems therein to discuss and to clarify.
In addition, it has been possible to include some of the multiple references to historic waters issues in the Gulf of Piran arbitration case (Croatia v Slovenia) decided by the Permanent Court of Arbitration (‘PCA’) in 2017, even though in the actual Award the ‘historic bay’ aspect was not in the end of much legal significance.
In more recent times, the only books of direct relevance to the present title appear to have been a somewhat narrowly-historical study published in Italian in 1990 by A. Gioia (Titoli Storici e Linee di Base del Mare Territoriale, Edizioni Cedam, Padova [1990]); and a book (in English) by M. Wesley Clark, Historic Bays and Waters: A Regime of Recent Beginnings and Continued Usage (New York: Oceana, 1994). Even these works are now dated as to their contents, as since that time the International Court of Justice (‘ICJ’) has considered the matter of historic bays in the Land, Island and Frontier case (El Salvador/Honduras) (hereafter ‘Gulf of Fonseca case’) regarding the status of the Gulf of Fonseca; the US Supreme Court has adjudicated in depth on the claimed historic status of the waters of the Alexander Archipelago in Alaska v US (2005); and, most recently and importantly, the topic has featured in the Award on the Merits by the Permanent Court of Arbitration in the case of Philippines v China (2016).
It may thus be argued that there is still need for an up-dated and comprehensive analysis and assessment of the whole doctrine of historic rights and waters in the light of these more recent and contemporary international law developments; and, most particularly, the extensive examination of the doctrine in Philippines v China in 2016, where, for the first time, the matter of historic waters and rights was examined in a judicial-type context concerning its inter-relationship with the UN Convention on the Law of the Sea (LOSC), 1982; and where the issue of the meaning of ‘historic rights’ and their survival under the LOSC was analysed in detail. For these reasons a new chapter and new headings have been added; and the book’s title has been altered to include the phrase “Historic Rights”.
Thus one of the main changes in the present edition is an expanded discussion on ‘historic rights’ in the narrow sense which were hardly touched on in the first edition because of the dearth of material on such claims. The chapter on the relevance to historic rights in the context of maritime delimitation of boundaries is also expanded to take account of more recent developments.
The author first met with the legal problems relating to historic waters when supervising the successful PhD candidature of Dr Aziz Lahouasnia many years ago at the University of Bristol in a dissertation entitled: The Legal Regime of Internal Waters along the North African Coast, with Particular Reference to Historic Bays. However it was only after being engaged as an expert witness for the US federal Government in the case of Alaska v US in early 2000 (Supreme Court No. 28 Original) – to analyse the alleged claim by the state of Alaska to historic title to enclaves of waters within the Alexander Archipelago off SE Alaska – that the present author came to examine in depth the legal complexities attaching to the doctrine of historic waters (Count 1 in the case). Accordingly, after two years of research, the author’s resulting lengthy Report on this issue was submitted to the US Department of Justice in early 2002 for the purposes of that litigation (as US – 1-1 –, of January 26th, 2002). This case involved voluminous evidence relating to the alleged historic title issue (in the Alexander Archipelago) going back to the Russian occupation of Alaska in the early 1820s (the Russian traders being at that time attracted to settle on the insular fringes of the Archipelago, such as Sitka, by the presence there of myriad sea-otters which they proceeded, with Aleut help, to slaughter for their valuable fur pelts almost to the point of extinction).
Alaska v US (2005) has probably involved the most intensive judicial examination yet of the traditional international legal requirements for proof of title to historic waters. Even the latest case of Philippines v China contains minimal discussion of the supposed international legal rules for proof of same.1 The Alaska case also included some novel issues: such as the effect of non-listing of an alleged historic claim in academic writings; and even the effect of late interposition of another State’s shoreline adjacent to alleged historic waters (in this case Canadian), by retreat of the coastline due to glacial melting – an unforeseen intertemporal consequence, perhaps, of global warming! The latter case also unusually involved, as stated above, a claim to archipelagic coastal waters rather than to a historic bay; and the judgments therein seem to confirm that historic maritime claims – with the same legal rules thereon as have traditionally related to historic bays – may, in principle, extend to waters such as coastal archipelagoes (in the case of which past precedents are few). In the case, the first instance judge (the Special Master) confirmed this broader geographical trend of the historic doctrine, commenting in the process that the US Supreme Court had sometimes referred to ‘historic inland waters’ or ‘historic waters’ interchangeably, perhaps to emphasise that such waters may not satisfy the geographic definition of a bay.
Because of the reliance of the doctrine of historic waters for its rules on customary international law alone (with bare mention of the continuing ‘excepted’ existence of historic bays in Art. 10(6) of the UNCLOS and two references therein to ‘historic title’ [as will be seen]), it may be argued that decisions of domestic courts on historic waters issues – as particularly by the US Supreme Court – have, despite the recent landmark arbitral award in Philippines v China – “a prospective utility as persuasive arguments for the future evolution of international law on the subject” (see L.F.E. Goldie, ‘Historic Bays in International Law – An Impressionistic Overview’ in (1984) 11 Syracuse Jnl. of International. Law and Commerce, 211, at p. 272). It is for this reason that US caselaw generally on alleged US domestic ‘historic’ maritime claims is extensively cited in this study; with the latest – as the most important case thereon to date – Alaska v US (2005) – being used as a ‘case-study’ backdrop throughout the book to flesh out many, if not most, of the various aspects of the supposed international legal rules on such claims.
As there is an interplay between domestic factors and international law in these US cases, such domestically-articulated principles must be treated with some caution. The principal problem in this regard is that a federal entity may have a hidden agenda domestically which does not apply internationally; i.e., an intent, in the US context, not to concede Submerged Land Act (‘SLA’) seabed rights to a particular state of the Union (against the federal interest) by too liberal an interpretation of the extent of US inland waters.
There have, for this reason, been signs, for example, of a strained judicial attempt to view US federal/state maritime disputes as if they were effectively a dispute between two foreign States; so that the federal Government on this analogy has been judicially viewed as the equivalent of a foreign nation vis-a-vis its own component-state entities, even in terms of acquiescence in respect of a particular alleged ‘component state’ historic claim: as, for example, in the Report of Special Master Armstrong in US v Louisiana, 1974; and in the judgment of the Supreme Court in this case, which, whilst noting that the relevant international law (the Territorial Sea Convention of 1958 [the ‘TSC’]) was “designed with an eye to affairs between nations rather than domestic disputes”, held that the only “fair way” to apply such law was to treat the US ‘federal’ situation as if it were an inter-state dispute as it would be “inequitable in adapting the principles of international law to the resolution of domestic controversy, to permit the National Government to distort these principles, in the name of its power over foreign relations and foreign affairs, by denying any effect to past events” (394 US 11, at pp. 77/8 [emphasis added]). This somewhat artificial scenario was also reflected in the US Brief (of 1964) in US v California (at p. 34) in which it was stated that the “problem was … to identify the waters that would have been considered inland waters in relations between the [US] and foreign nations” (emphasis added). As Special Master Hoffman also pointed out – on a related theme – in the US v Maine case (Report, 1984, at 12 [emphasis added]):
The Supreme Court has adopted these [historic waters] criteria from general rules of international law. However, a successful [US] state claim to historic inland waters will inevitably affect the stance of the Federal Government internationally. The Supreme Court has, therefore, added additional restrictions [to the three international ones] for states wishing to expand their inland and territorial waters at the expense of the high seas.
It is perhaps for such reasons ironic that Alaska alleged at the so-called ‘Juneau Hearings’ (1972, at p. 33), after the time of the creation of its statehood that “illogically” the US federal authorities (rather than any foreign State) had been the “real adversaries” to Alaska’s alleged historic maritime claims.
Despite such fictive and unreal features, US ‘tidelands’ caselaw, in ostensibly applying the law of the sea in such disputes, has involved discussion and application of the supposed customary rules in greater detail and depth than other international caselaw such as that of the ICJ in the Anglo-Norwegian Fisheries case, Libya/Tunisia, the Gulf of Fonseca case (El Salvador/Honduras) and even, most recently, (in terms of historic waters claims at any rate) in Philippines v China. For such reasons US federal decisions are worthy of inclusion, especially as in the ICJ cases – particularly the former two – the rules relating to such waters were not elaborated on in detail by the plenary Court, being only incidental to the cases concerned.
The Gulf of Fonseca case case, however, is notable for the Dissenting Opinion of Judge Oda and his detailed and idiosyncratic analysis of the whole doctrine of historic waters: to the extent of denying that there ever was such a doctrine in the law of the sea, albeit in the unusual setting there of a pluri-state historic bay. As the present author states in his concluding chapter (Chapter 24), the view of Judge Oda is one with which he has much sympathy, as there is some doubt, in the light of the vague, often unclear, and seemingly inter-connected nature of the supposed international rules, as to whether the doctrine of historic waters has ever operated in an erga omnes manner with an objective regime rather than, at most, in a quoad hunc/hos manner towards particular States only, based on broader legal considerations of acquiescence, consent and opposability in a way similar way to creation of historic rights in the narrow sense.
I wish once again to thank Professor Scovazzi (and his publishers Guiffrè Editore) for permission to adapt certain maps in the present work from his Atlas of the Straight Baselines, 2nd ed., 1989. The opportunity has also been taken in the present edition to re-order the chapters and content of the first edition’s sequence in a more logical way.
Clive R. Symmons
Dublin, Ireland, 2018
See below Chapter 13.