Journal of Political Risk, Vol. 4, No. 1, January 2016
By Leonardo Bernard
One of the most important disputes that exist between states surrounding the South China Sea is over fishing rights, as most of the states bordering the South China Sea assert an exclusive right to fish in parts of it. For example, the Philippines and Vietnam claim that they have an exclusive right over fisheries resources in the waters within 200 nautical miles (M) of their respective mainland coasts. China also declares the right to exploit fisheries resources in the South China Sea, but not only in the waters within 200 M from its mainland coast and from the Paracel Islands. By using the ‘U-shaped line’, China’s claim extends beyond any possible exclusive economic zone (EEZ) limits that can be generated by its mainland and by any islands in the South China Sea over which it claims sovereignty. China, however, has not clarified the meaning of the U-shaped line map, nor the maritime zones generated by the islands in the South China Sea over which it claims sovereignty.
China’s fishing right claim appears to be based on both EEZ entitlement and historic claim. China argues that the features in the South China Sea are entitled to a full-fledged EEZ and continental shelf as a group, but has yet to make any official declaration of the limit of its EEZ claim from the islands. Additionally, China argues that they have a form of exclusive historic rights within the waters inside the U-shaped line but beyond the maritime zones generated from the islands. However, this unusually expansive and exclusive historic claim over such a huge body of water would unlikely be agreed to by the international community.
Whether historic title can trump the provisions of UNCLOS depends on the strength of the claim to historic title. If a state can provide an exceptionally strong basis to its historic claim, then maybe such historic title could be considered as an exception to the rules in UNCLOS. However, justifying a historic fishing right claim over the waters within the U-shaped line in the South China Sea is a Sisyphean task. This uphill battle to make a justifiable historic rights claim under international law has been severely limited by the high threshold of proof set by the ICJ. Moreover, such rights have mostly become obsolete since the advent of the EEZ and continental shelf concepts.