Ginger Without Borders

[This blog series was originally posted on the now-defunct website of American University, Washington College of Law’s Law and International Development Society in August 2020.]

Under the provisions of the United Nations Law of the Sea (UNCLOS), States obtain territorial rights over the sea depending on baselines and the classification of landmasses within the sea. As sea levels rise due to climate change, baselines are changing and landmasses are going underwater, putting territorial rights at risk. Worse still, islands’ fresh water supplies are becoming contaminated with saltwater from the sea, further threatening States’ previously held rights.

To combat land loss, some States are artificially reinforcing landmasses in order to maintain their status, but the significant cost of artificial reinforcement means this solution is not available to all States. One solution to this dilemma is to impose a legal duty for developed States to financially assist developing maritime States. Another suggested solution is to apply the concept of “historic title” – also known as “historic rights” – to maintain existing territorial rights over landmasses, regardless of their status under UNCLOS.  

The History of “Historic Title”

In the 19th century, the concept of “historic title” was created to enable States to maintain sovereignty over bays, gulfs, and other areas of the sea despite newly emerging rules diminishing State sovereignty over those same areas. Since then, States have cited “historic title” to justify their jurisdiction over a territory during disputes. Through “historic titles”, the State maintains jurisdiction of a marine area that has lost its territorial rights, or its territorial rights are in dispute. “Historic title” may grant sovereignty rights, or more limited rights such as fishing rights and rights of access.

For instance, in the 1951 Fisheries (United Kingdom v. Norway) case, the ICJ addressed Norway’s claim over fishing rights based on “historic title” to the disputed waterways. The court defined such “historic waters” as “waters which are treated as internal waters but which would not have that character were it not for the existence of an historic title.” This means water that would normally be considered international waters, or under the jurisdiction of another State, would instead be considered water within the State’s territory. Ultimately, the court found in Norway’s favor based on a history of unopposed governmental authority exerted over the disputed water.

By claiming “historic title” over either land or water, a State may maintain rights over the territory provided two elements are met: (1) the State has effectively exercised peaceful and continual authority over the territory, and (2) other States have accepted this exercise of authority. The burden is on the State claiming territorial rights to prove the first element, which can be shown through acts of municipal authority – such as laws, regulations, administrative measures, and judicial decisions. However, despite providing a court with evidence of the first element, a State may fail to demonstrate an effective exercise of authority if another state regularly opposed such exercise of authority.

Conflicts in the Legal Application of “Historic Title”

UNLOS does not explicitly address “historic title” as a general means through which a State may obtain territorial rights. However, Article 15 provides that “historic title” may be used as an exception to the rule that the territorial sea of border states only extends to the equidistant median line between the States.

The ICJ addressed this exception in the Tunisia-Libya case, wherein Tunisia and Libya disagreed about where the continental shelf border between the States should be drawn. Tunisia argued that drawing the border based on the equidistance principle would infringe on territory that the State had established “historic title” over. The Court, however, found the areas in dispute did not include the areas Tunisia may have had jurisdiction over due to “historic title”. Therefore, the Tunisia-Libya case ultimately left the effect of “historic title” on continental shelf delimitation unresolved.

Later, in the Eritrea-Yemen case, the PCA addressed a dispute between Eritrea and Yemen over islands in the Red Sea. Yemen claimed ownership of the islands based on “historic title.” Despite the claim, the Court found that neither Eritrea’s claim of succession of title nor Yemen’s claim of “historic title” were convincing. As a result, the role of “historic title” in territorial disputes was not clarified; however, the Court did accept the relevance and applicability of “historic title” in determining maritime boundary disputes.

Recently, in the South China Sea Arbitration, the Philippines disputed China’s claim that it maintained jurisdiction over the South China Sea due to “historic title”. Finding against China, the PCA stated that UNCLOS supersedes any previous “historic title” unless the dispute involves a historic bay and a claim of “historic title” on territorial sea or internal water, both of which are explicitly addressed in Articles 10 and 15 of UNCLOS respectively.

However, the position taken in the South China Sea Arbitration conflicts with the prior jurisprudence. The ICJ in the Tunisia-Libya case found that “historic titles must enjoy respect and be reserved as they have always been by long usage.” Further, in the Eritrea-Yemen case, the PCA itself suggested that UNCLOS is not contrary to “historic title,” but rather complimentary to it. As a result, the contradictory nature of these interpretations causes the applicability of “historic title” to be unclear.

Conclusion

Because “historic title” would not require States to expend significant resources, it may be the best method for States to maintain existing rights – regardless of sea level rise. As long as a State maintains exclusive jurisdiction over a landmass, and the international community generally accepts this exercise of jurisdiction, the State would maintain the rights derived the landmass whether it is above or below sea level.  Unfortunately, however, the jurisprudence on the application of “historic title” during maritime delimitation disputes is poorly developed and contradictory. As a result, the applicability of “historic title” to maintain existing rights is too undefined to meet the degree of certainty and stability States desire before adopting a solution for such a critical issue.