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Published online by Cambridge University Press: 24 July 2014
The validity of historic or ancient title to territory has been tested in numerous international judicial proceedings, both in the International Court of Justice and in international arbitration. Historic title usually originates in ancient normative systems, including tributary, feudal, sultanate, and Islamic systems that predate the Western international legal system. Nevertheless, the rules against which historic title has been tested in international judicial proceedings generally require that the original titleholder be a state or a central authority that exercised territorial sovereignty over a defined space to the exclusion of other sovereign powers. The rules that apply specifically to these ancient normative systems, where allegiance to authority was personal or religious rather than territorial, have been seen as irrelevant compared to the more contemporary determinations of historic title. The only exceptions have been the French medieval customary norm frankalmoign, which the international arbitral tribunal in the Minquiers and Ecrehos case cited as evidence that the English king exercised territorial sovereignty over the disputed islands, and the personal allegiance of the Orang Laut to the Sultan of Johore, coupled with the recognition accorded to the latter by the great maritime powers, which the International Court of Justice in Malaysia v. Singapore found sufficient to prove the historic title of Malaysia over Pedra Branca/Pulau Batu Puteh and Middle Rocks. The principles by which historic title were adjudicated in these cases appear to be the same principles by which the Western powers dealt with the claims of the People's Republic of China and Vietnam to the Paracel Islands and the Spratly Islands, not only during the colonial period but also after the Second World War. This analysis suggests how the International Court of Justice or an international arbitral tribunal might, if given the opportunity, resolve these South China Sea disputes. Readers might also find this analysis to be particularly relevant to other disputes involving historic title, including the East China Sea disputes, although the focus of this article is on the South China Sea disputes. States and other commentators are left to rely on their own preferences and allegiances in reaching their own normative conclusions using the novel analysis provided by this article.
1 Statement of the People's Republic of China, ‘Commission on the Limits of the Continental Shelf’, 14 April 2011, Doc. CML/8/2011.
2 Shen, J, ‘China's Sovereignty over the South China Sea Islands: A Historical Perspective’ (2002) 1 Chinese J. Int’l L. 94, at 103CrossRefGoogle Scholar (citing 17 Yi Zhou Shu, Scattered Books of the Zhou Dynasty, 85–6); Shen, J, ‘International Law Rules and Historical Evidences Supporting China's Title to the South China Sea Islands’, (1997) 21 Hastings Int’l & Comp. L. Rev. 1, at 16Google Scholar.
4 See Socialist Republic of Vietnam, Note Verbale No. 77/HC-2011, 3 May 2011.
5 Award of the Arbitral Tribunal in the First Stage of the Proceedings Eritrea and Yemen (Territorial Sovereignty and Scope of the Dispute), 9 October 1998, at 106 [hereinafter Award I].
6 Decision of the Arbitral Tribunal Established to Settle the Dispute Concerning the Course of the Boundary between Austria and Hungary Near the Lake Called the ‘Meerauge’, 13 September 1902, at 391.
7 Y. Z. Blum, Historic Title in International Law (1965), at 99. The requisite elements of historical consolidation of title is discussed in great detail in the Rann of Kutch arbitration. See The Indo-Pakistan Western Boundary, Rann of Kutch (India v. Pakistan) (1968) 50 ILR. 407, at 482–94. In particular, in this frontier dispute, the tribunal stated that there should be ‘effective, i.e., real and not fictitious, display of State authority . . . [that] have certain qualities and, above all, the qualities of continuity, of intention, of manifestation of State sovereignty and of possession à titre de souverain’. Ibid, at 482. The parties in Rann of Kutch were in agreement that there was no defined boundary in the Rann prior to British colonialism; the parties relied solely on historical consolidation of title. See ibid., at 5–6, 18, 26, and 41. As the topic of historical consolation is outside the scope of this article, Rann of Kutch is not discussed under the heading historic title to islands. In several other frontier disputes – such as Dubai-Sharjah Land Border Arbitration (1981) 91 ILR 543; Frontier Dispute (Burkina. Faso v. Republic of Mali)  ICJ Rep. 554; Frontier Dispute (Benin/Niger)  ICJ Rep. 90; Land, Island and Maritime Frontier Dispute (El Salvador. v. Honduras; Nicaragua intervening)  ICJ Rep. 351; Temple of Preah Vihear (Cambodia v. Thailand)  ICJ Rep. 6); Case concerning the Temple of Preah Vihear (Cambodia v. Thailand) (Request for Interpretation of the Judgment of 15 June 1962), General List No 151 <http://www.icj-cij.org> – none of the parties invoked historic title. In Land, Island and Maritime Frontier Dispute, El Salvador used the phrase ‘historic title’ to mean the colonial title of Spain. See Land, Island and Maritime Frontier Dispute  ICJ Rep, at 559–60. The ICJ pointed out that ‘Spanish colonial divisions in Spanish America did not individually have any “original” or “historic” titles, as those concepts are understood in international law . . . [and that] the original title belonged exclusively to the Spanish Crown, not the internal administrative subdivisions established by it; and it was equally the Spanish Crown which had sovereignty of the colonial territories’. Ibid., at 565. However, this article refers to Rann of Kutch and Dubai-Sharjah Land Boundary Arbitration when discussing whether the ancient tributary system between China and Vietnam generated historic title to the Paracel Islands and Spratly Islands.
10 See Carty, A. and Lone, F. N., ‘Some New Haven International Law Reflections on China, India and Their Various Territorial Disputes’, (2011) 19 Asia Pacific L. Rev. 95, at 104Google Scholar.
11 See Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia)  ICJ Rep. 625, at 669–78; Award I, supra note 5; Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia/Singapore)  ICJ Rep. 12, at 31–45; Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Merits)  ICJ Rep. 40; Western Sahara, Advisory Opinion  ICJ Rep.12; Island of Palmas (Netherlands v. US), 2 Reports of International Arbitral Awards, 4 April 1928. See also Minquiers and Ecrehos case (Judgment)  ICJ Rep. 47 (involving a Medieval feudal system of territorial title).
12 Island of Palmas case (Netherlands v. US) (1928) 2 RIAA, 845.
13 See M. Lindley, The Acquisition and Government of Backward Territory in International Law (1926), at 37–9.
14 See G. Schwarzenberger, ‘Title to Territory: Response to a Challenge’, (1957) 51 Am. J. Int’l L., at 308, 313–14.
15 See R. P. Anand, ‘Role of the “New” Asian-African Countries in the Present International Legal Order’ (1962) 56 Am. J. Int’l. L. 383, 385. [hereinafter Anand, ‘“New” Asian-African Countries’]; Anand, R. P., ‘Maritime Practices and Customs in Southeast Asia Until 1600 AD and the Modern Law of the Sea’ in Anand, R. P. and Ouisumbing, P. (eds.), ASEAN Identity, Development and Culture (1981), at 86, 89Google Scholar. [hereinafter Anand, Maritime Practices].
16 See A. Anghie, Imperialism, Sovereignty and the Making of International Law (2004), at 75–87.
19 See Western Sahara (Advisory Opinion)  ICJ Rep. 12
20 See ibid., 94.
21 R. Higgins, ‘Time and Law: International Perspectives on an Old Problem’ (1997) 46 Int’l Comp. L. Q, at 501, 516.
22 See G. Distefano, ‘The Conceptualization (Construction) of Territorial Title in the Light of the International Court of Justice Case Law’ (2006)19 LJIL, at 1041, 1043.
23 See Sovereignty over Pedra Branca/Pulau Batu Puteh Middle Rocks and South Ledge (Malaysia/Singapore), supra note 11, at paras. 119–22 (23 May) (in relation to Art. 5 of the Special Agreement whereby the parties agreed that the laws applicable to their dispute should be those enumerated under Art. 38 of the ICJ Statute).
24 Other authors identify five inter-temporal principles relative to territorial title. See Chu, L. and Reisman, W. M., ‘Who Owns Taiwan?: A Search for International Title’ (1972) 81 Yale L.J. 599, at 604–5Google Scholar. This article adopts the definition of the principle in the Island of Palmas case.
25 See Waldock, C. H. M., ‘Disputed Sovereignty in the Falkland Islands Dependencies’, (1948) 25 British Y.B. Int’l L. 311, at 320Google Scholar.
26 See Zhang, Y. and Buzan, B., ‘The Tributary System as International Society in Theory and Practice’, (2012) 5 Chinese J. Int’l Pol., at 3–36CrossRefGoogle Scholar; Zhang, Y., ‘System, Empire and State in Chinese International Relations’, (2001) 27 Rev. Int’l Stud., at 43–63Google Scholar; Zhang, F., ‘Rethinking the “Tribute System”: Broadening the Conceptual Horizon of Historical East Asian Politics’, (2009) 2 Chinese J. Int’l Pol., at 545–74Google Scholar. These authors are re-examining the workings of the tribute system as a distinct international system.
27 See R. P. Anand. Studies in International Law and History: An Asian Perspective (2004), at 87. T. O. Elias writes that the inter-temporal principle cements the universalism of European international law. See T. O. Elias, ‘The Doctrine of Intertemporal Law’, (1980) 74 AJIL 285. R. P. Anand questions this notion of universalism: ‘When did European international law become universally binding? Can states which did not, could not, were not permitted to participate in its origin and development question some of its rules which are inimical to their interests or very survival?’ See Anand, ibid., at xiii.
28 See Anand, ibid., at xiii. Anand cites this specific treaty as an imposition upon China. See ibid., at 87; see also Digest of International Law 594 (1864) (on the deliberations at the San Francisco conference regarding the defeat of the proposal of the USSR that Japan relinquish the islands to China).
29 See Island of Palmas case, supra note 11, at 845. For more information on the principle of inter-temporality, see generally J. D. Fry and O. G. Repousis, ‘Intertemporality and International Investment Arbitration: Protecting the Jurisdiction of Established Tribunals’ (under consideration, forthcoming 2014).
48 Legal Status of Eastern Greenland (Denmark v. Norway) PCIJ Rep. Series A/B No. 53, at 27. Although initially the settlements were independent, by the thirteenth century, they became tributaries of the Kingdom of Norway. Evidence of the authority of the King of Norway over the settlements consisted of their payment of fines for every murder committed within the island, be the victim Norwegian or Greenlander.
60 See Maitland, F. W., ‘Frankalmoign in the Twelfth and Thirteenth Centuries’, (1891) 7 LQR 354Google Scholar, at 354.
67 Ibid., at 61–2. The tribunal awarded the islands to the United Kingdom also on the basis of continuous display of sovereignty. Ibid., at 67.
71 See Renton, W., ‘French Law Within the British Empire’, (1909)10 J. Soc’y Comp. Legislation, at 93, 95–6Google Scholar.
72 See Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria, Equatorial Guinea intervening),  ICJ Rep. 303.
73 See Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia) (Judgment), supra note 11, at 625.
74 See Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia/Singapore), supra note 11.
75 See Maritime Delimitation and Territorial Questions between Qatar and Bahrain, supra note 11, at 40.
90 See Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria, Equatorial Guinea intervening) (Counter-memorial of the Federal Republic of Nigeria) Vol. 1, Bakassi, Chaps. 1–11, May 1999, at 86–90 [hereinafter Land and Maritime Boundary Counter-memorial].
102 See Comments of the Federal Republic of Nigeria on the answers to the Judges’ Questions submitted by Cameroon on 10 March 2002, at 40.
136 See Reparation for Injuries Suffered in the Service of the United Nations (Advisory Opinion) 1949 ICJ Rep. 174
140 See Award of the Arbitral Tribunal in the First Stage of the Proceedings between Eritrea and Yemen, supra note 5, at 31. As alternative grounds, Yemen invoked historic title along with the principle of uti posseditis as well as historic title in combination with effectivités. Ibid., at 41, 96. These additional grounds are beyond the scope of this article.
152 See Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia), supra note 11, at 94. The principal basis of Indonesia's claim is conventional title to territory under the 20 June 1891 Convention between the Netherlands and Great Britain which defined the boundary of their possession in North Borneo. The effects of this convention on title to the islands are discussed in the next section.
162 See Sovereignty over Pedra Branca/Pulau Batu Puteh Middle Rocks and South Ledge (Malaysia/Singapore), supra note 11, at 52. Two other islands were disputed in this case but they are outside the scope of the article, for they were not the subject of any historic claim.
165 Decision of the Arbitral Tribunal Established to Settle the Dispute Concerning the Course of the Boundary Between Austria and Hungary near the Lake Called the ‘Meerauge’, supra note 6, at 391.
166 Sovereignty over Pedra Branca/Pulau Batu Puteh Middle Rocks and South Ledge, supra note 11, at 52.
175 See Maritime Delimitation and Territorial Questions between Qatar and Bahrain, supra note 11, at 95–7.
206 Maritime Delimitation and Territorial Questions between Qatar and Bahrain, supra note 11, at 83.
207 Award of the Arbitral Tribunal in the First Stage of the Proceedings between Eritrea and Yemen, supra note 5, at 446.
208 See Maritime Delimitation and Territorial Questions between Qatar and Bahrain, supra note 11, at 84.
209 See Award of the Arbitral Tribunal in the First Stage of the Proceedings between Eritrea and Yemen, supra note 5, at 442.
213 These ‘parties concerned’ were the British Empire, France, Italy, Japan, Greece, Romania, and the Serb-Croat Slovene State. Ibid., at 149.
218 See 136 UNTS 45.
219 See General Assembly Resolution 1514 (XV), Declaration on the Granting of Independence to Colonial Countries and Peoples; General Assembly Resolution 1541 (XV), General Assembly Resolution Defining the Three Options for Self-Determination; General Assembly Resolution 1654 (XVI), General Assembly Resolution Establishing the Special Committee on Decolonization. See Chen and Reisman, supra note 24, at 612–13, 632–3.
220 See General Treaty for the Renunciation of War (Kellogg-Briand Pact of 1928), Stimson doctrine of 1932 and Montevideo Declaration of the Rights and Duties of States of 1933. See I. Brownlie, International Law and the Use of Force by the States (1963); Brownlie, I., ‘International Law and the Use of Force by States Revisited’, (2002) 1 Chinese J. Int’l L, at 1–19CrossRefGoogle Scholar. But see Baxter, R. R., ‘Multilateral Treaties as Evidence of Customary International Law’, (1965–66) 41 British Y.B. Int’l L, at 275, 279–80Google Scholar.
221 See Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia/Singapore), supra note 11, at 273–7.
230 Ibid. (citing Decision regarding Delimitation of the Border between the State of Eritrea and the Federal Democratic Republic of Ethiopia, 13 April 2002). This last point is relevant to the South China Sea dispute where China and Vietnam have produced maps of various ages and forms to establish their claims to historic title.
241 At this stage, it bears repeating that the focus of this article is solely historic title as basis for territorial claims. Historical consolidation, uti posseditis, effectivités and treaty title are outside the scope of the article.
242 See, e.g., Jinming, L. and Dexia, L., ‘The Dotted Line on the Chinese Map of the South China Sea: A Note’, (2003) 34 Ocean Dev. & Int’l L. at 287CrossRefGoogle Scholar; Keyuan, Zou, ‘Historic Rights in International Law and in China's Practice’, (2001) 32 Ocean Dev. & Int’l L. 149CrossRefGoogle Scholar.
243 See Fisheries (UK v. Norway),  ICJ Rep. 116, 130 (the ICJ defined 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’ and are therefore derogations from the law of the sea).
244 In its studies, the Secretariat of the International Law Commission considers historic bays as integral to the concept of historic waters. See ‘Juridical Regime of Historic Waters, Including Historic Bays’, (1962) 2 Ybk. Int’l L. Comm’n 1, at 33–41, UN Doc. A/CN.4/SER.A/1962/Add.1, reprinted in UN Doc. A/CN.4/143, available at <untreaty.un.org.eproxy1.lib.hku.hk/ilc/guide/8_4.htm.A/CN.4/143> [hereinafter ILC Juridical Regime].
245 Resolution of the Standing Committee of the Natonal People's Congress of the People's Republic of China of the Approval of the Declaration of the Government of the People's Republic of China on China's Territorial Sea, 4 September 1958, Art. 1 (1) ‘The breadth of the territorial sea of the People's Republic of China shall be twelve nautical miles. This provision applies to all territories of the People's Republic of China, including . . . all other islands belonging to China which are separated from the mainland and its coastal islands by the high seas’). It is interesting that the phrase ‘which are separated from the mainland and its coastal islands by the high seas’ is no longer found in Art. 2 of the PRC's Law on the Territorial Sea and the Contiguous Zone of 25 February 1992.
246 For Gidel, claims to historic waters and historic bays are claims to exceptionality because they incorporate into a maritime domain ‘waters which under the generally accepted rules applicable in principle to such areas would have had to be considered as part of the high seas’. ILC Juridical Regime, supra note 244, at 42. By acknowledging in its law that between its mainland and its coastal islands is high seas, the PRC accepts that the South China Sea is not its historic water or historic bay.
247 See Chang, T. K., ‘China's Claim of Sovereignty Over Spratly and Paracel Islands: A Historical and Legal Perspective’, (1991) 23 Case W. Res. J. Int’l L. 400Google Scholar; Chao, J. K. T., ‘South China Sea: Boundary Problems Relating to the Nansha and Hsisha Islands’, in Hill, R. D. at al. (eds.), Fishing in Troubled Waters: Proceedings of an Academic Conference on Territorial Claims in the South China Sea (1991), at 80–4Google Scholar.; Zenhua, H. (ed.), Woguo nanhai zhudao shiliao huibian [The Compilation of Historic Materials on the South China Sea Islands] (1988)Google Scholar; Shen, J., ‘China's Sovereignty over the South China Sea Islands: A Historical Perspective’, (2002) 1 Chinese J. Int’l L. 94, at 154–5CrossRefGoogle Scholar.
250 J. Pan, Toward a New Framework for Peaceful Settlement of China's Territorial and Boundary Disputes (2012), at 176. (citing N.-L. Han (ed.), Diplomacy of Contemporary China 332 (1990)).
251 See Nguyen, H. T., ‘Vietnam's Position on the Sovereignty over the Paracels and the Spratlys: Its Maritime Claim’, (2012) 5 J. East Asia Int’l L. 165, at 174–84Google Scholar.; M. Valencia et al., Sharing the Resources of the South China Sea (1997) (mentioning seventeenth century maps showing the incorporation of the islands into the Binh Son district of Quang Ngia prefecture).
252 See M. C- Gendreau, Sovereignty over the Paracel and Spratly Islands (2000), at 64–5.
254 See Traite de Paix et d’Alliance entre la France et t’Annam (15 March 1874) 65 British & Foreign State Papers 375 (in French).
255 See R. Haller-Trost, ‘The Spratly Islands: A Study on the Limitations of International Law’, Occasional Paper No. 14, Center of Southeast Asian Studies, University of Kent, Canterbury, at 41; Hong Thao Nguyen, supra note 251, at 185–6.
256 Legal Advisers’ re-examination of claims to sovereignty over the Spratly islands in a minute of 1 February 1974 from Mrs Denza to Mr Chapman in South-East Asia Department, Doc. FCO 51/411 CS38284 [hereinafter Re-examination]. See Marston, G., ‘Abandonment of Territorial Claims: The Cases of Bouvet and Spratly Islands’, (1987) 57 British YB Int’l L., at 337, 349–50Google Scholar.
257 Re-examination, supra note 255. See also Research Department Memorandum: The Spratly Islands, Doc. FCO 51/411 CS38294, at 3 [hereinafter Research Memo].
264 See Tonnesson, S., ‘The South China Sea in the Age of European Decline’, (2006) 40 Modern Asian Stud. 1CrossRefGoogle Scholar, at 3 (citing documents attached to C. Howard Smith (Foreign Office) to the Under Secretary of State, Colonial Office, 21 November 1931, and draft memorandum to the Law Officers of the Crown, Colonial Office (CO) 273/573/23, Public Record Office (PRO), London, and Acting Consul General Labuan to FO, No. 4, 30.10.79, T 161/622, PRO). It appears that the act was committed on Amboyna Cay. It is not clear whether Britain regarded the Spratly Islands and Amboyna Cay as separate geographic entities.
269 The question of British title was studied also in FO 371/15650 (1932). See Marston, supra note 255. It is interesting that in FO 371/15650 the Foreign Office assumed that the Spratly Islands was terra nullius and that for Britain to acquire title her discovery of the island should have been coupled with occupation or administration. The Foreign Office concluded that while Britain listed the islands, she did not perfect her inchoate title for she failed to administer or occupy it. However, in FCO 51/411 CS38284 (1972), the Legal Adviser observed that the opinion rendered by the Foreign Office in FO 371/15650 was without the benefit of the ruling in Eastern Greenland that, when it comes to remote and forbidding territory, little in the way of occupation would suffice. Consequently, the Legal Adviser concluded that ‘there clearly was the requisite intention to occupy and subsequently there were sufficient acts of administration suited to the nature of the territory as would have consolidated a title’, although this title was subsequently lost by ‘failure to protest French claims to sovereignty’ in 1932.
273 See D. Heinzig, Disputed Islands in the South China Sea (1976), at 28; M. Samuels, Contest for the South China Sea (1990), at 53.
276 See Park, C.-H., ‘The South China Sea Dispute: Who Owns the Islands and the Natural Resources’, (1978) 5 Ocean Dev. & Int’l L. 1, at 33Google Scholar.
277 See (1964) 3 Dig. Int’l L. 500, 545, 594–5.
280 At this stage, it bears repeating that the focus of this article is solely on historic title as a basis for territorial claims. Historical consolidation, uti posseditis, effectivités and treaty title are outside the scope of the article.
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