A Legal Analysis of China’s Historic Rights Claim in the South China Sea
Florian Dupuy and Pierre-Marie Dupuy
The American Journal of International Law, Vol. 107, No. 1 (January 2013)
The recent turmoil created by the competing sovereignty claims of several countries over islands and waters in the South China Sea has caused the resurgence of the concept of “historic rights.” Although the term historic rights (sometimes confusingly used in this context in combination with other germane notions, such as historic waters and historic title) has often been imbued with a certain degree of confusion and controversy in international law, it seems bound to play an important part in the arguments brought by states claiming sovereignty in this region and, in particular, by the People’s Republic of China (China).2 The vagueness of the legal terminology used by China raises the issue of whether that very vagueness is being used as an element of political strategy.
In this article we focus on China’s claim in order to understand the articulation of its “historic rights” argument and to assess its merits in light of the principles of public international law. Our main purpose is to explore the potential relevance of such an argument if it came to be invoked by China in the context of an international dispute-settlement procedure.
This study has two parts: in part I, we define the geographical and legal contours of China’s historic rights claim as expressed by state practice and the secondary literature, and in part II we analyze and assess the merits of the Chinese position.
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