A Study on the Recognition of the Historical Rights in the Law of Sea - Focusing on the South China Sea Arbitration Case -

초록

Because of the recent South China Sea Arbitration case (PCA), the question of historical rights has risen to surface. Considering the text and the travaux préparatoires of UNCLOS, the South China Sea Arbitration case concluded that there is no room to claim for historical rights in international legal system legally. The Court decided that preexisting rights such as historical rights which is incompatible with UNCLOS cannot be recognized. The Court noted that when China ratified the UNCLOS, Chinese claim to the nine-dash-line as its historical rights were replaced by UNCLOS. However, even though it is true that the term “historical rights” cannot be found in UNCLOS, the stance of the Court is not unproblematic. It is necessary to explain further why Article 311 of UNCLOS and Article 30(3) are applied to the case of historical rights even when it has nothing to do with treaty. Moreover, the Court’s explication was not sufficient how Article 293 of UNCLOS, the dispute resolution clause, is applied to the present case. Considering such, it is necessary to scrutinize whether or not UNCLOS is a comprehensive legal system which denies the further possibility of the existence of customary law. Present study notes that the Preamble of UNCLOS explicitly states the contrary. Furthermore, previous international court’s cases do not deny the compatibility or existence of historical rights with UNCLOS.

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