Evolution of the doctrine of historical rights to maritime spaces from antiquity to the adoption of the UN Convention on the Law of the Sea of ​​1982

Abstract

The doctrine of historical rights to maritime spaces developed from the search for a balance between bourgeois ideas about freedom of navigation, dating back to ancient Roman jurisprudence, and the pragmatic interests of states in exercising control over key water areas in order to ensure national security, stemming from feudal law. The establishment in international customary law of strict geographical criteria determining the width of the territorial sea gave rise to the need for states to substantiate their claims to bays and closed seas that do not fit into the framework of such criteria. In the first half of the 20th century, the doctrine and international judicial practice developed an understanding of a clear legal distinction between ‘customary’ or ‘legal’ gulfs, with an entrance width not exceeding twice the width of the territorial sea, and historic gulfs, the possession of which is based on the consolidation of the historic title to the water area, and a tendency towards a broader understanding of historic rights to maritime spaces not limited to the exercise of sovereignty.

Codification efforts by states in the second half of the 20th century made it possible to identify the most relevant doctrinal criteria proving the existence of historic rights to water areas – effective control over water space, prescription of possession and the consent of foreign states. Nevertheless, the authors of the 1982 UN Convention on the Law of the Sea deliberately left these issues in the sphere of customary regulation. For this reason, an analysis of the evolution of the doctrine of historic rights is necessary for the most complete understanding of this legal structure.