The Legal Paraphrase Of Historic Rights

At present, historic right is a hot issue in international law and international judiciary practice. This topic attracts more attention when it is related to the Marine territorial sovereignty or the dispute of dividing marine boundaries as historic right has to be taken into consideration in judiciary practice. However, "the United Nations Convention on the Law of the Sea" (Hereafter it is referred as UNCLOS) of 1982 is not clear in dealing with historic right issues. Although in UNCLOS provisions about "historic title", "historic bay", "traditional fishing right" etc have been mentioned, the legal definition and necessary conditions of historic right are not clear. This does not mean that UNCLOS dennys the legal status of historic right.China possesses a large area of sea, but marine rights and interests are often offended by surrounding countries or some marine powers. With the development of globalization and the accelerating process that China joins the international society, China becomes aware of the importance marine rights. Recently, Chinese government has successfully stuck to the law propositions that Chinese historic rights are legitimate by drawing lessons from the classic cases of international courts and international arbitral courts. However, the ambiguity of historic right, the uncertainty of key components, and the interference of some extraterritorial powers have affected the recovery of Chinese historic right to some extent. But the continuing of historic right is of great importance to our marine territorial sovereignty, our marine interests, our national security and whether we can become a marine power. Therefore, it is necessary for us to analyze historic right form three aspects, the law status of historic right, the legislation of it and the continuing of it, so that a new legal perspective and evidence may be provided for the safeguarding our marine rights.This thesis includes four parts:The first part mainly discusses the legal status of historic right from two aspects. One is the application of historic right in international judiciary practice. The other is the enhancement of international judiciary practices on the legal status of historic right. In international practices, international court and international arbitrary court are positive in deciding whether historic right belongs to Customary International Law. So historic right become one of the most importance evidences in international judiciary judgments. Meanwhile, this is also the booster for the development of following international law, especially the relevant conventions of the UNCLOS of 1982. But even we exam from the perspective of international judiciary practice, the specific connotations of historic right are still not stated clearly. The judges haven’t pointed definitely the universality of historic right. Therefore, we can know that historic right is still an issue of Customary International Law. This brings trouble for the right-claim country and inconvenience for the solving of the dispute.The second part talk about the legislation of historic right from the perspective of international judiciary practices and the interpretation of them. Through analyzing typical cases of international judiciary practices, relevant issues on the legislation of historic right are discussed. Then the author will make it clear that the legislation of historic right and international law about the ways of obtaining of territory are inseparable with the interpretation of international judiciary practices. The ways of obtaining territory in international law as it were the legislation of historic right. Because when a country obtain territory with a traditional method, the historic right is legislated validly. What’s more, it is also stated that the law foundation of historic right is Customary International Law.The third part is about the continuing of historic right. The international judiciary practices proved that the obtaining of historic right often tends not to be immediate. A process of intensification and enhancement is always needed, making the right be continuing. So this part discusses the continuing of historic right and interpret this issue from the perspective of international judiciary practices. The author explores the conditions of historic right’s continuing and stresses the interference of some realistic factors. Generally there are two conditions that of continuing historic right. One is acknowledgement of correlated countries (including explicit one and implicit one); the other is the continuity of jurisdictional execution. Only when the two conditions are included, the continuity of historic right can be possible. But at the some time, we cannot ignore the interference of realistic factors. Otherwise the historic right of the country may not able to gain the support of international court or arbitrative court.The last part of this thesis is the conclusion and the enlightenment. The summary is about the three major parts of this thesis. Firstly, the author affirms the legal status of historic right and points that the ambiguity of its legal connotations may lead to difficulties in international judiciary practices. Next, it is put forward that the legislation of historic right should meet necessary conditions. Finally, the author talks about the requirements that continuing historic right should satisfy from the aspects of judiciary practices and international conventions. The enlightenment includes, firstly China should ask for a legal status of its historic right and initiatively make clear the legal connotations and components, secondly enhance the continuing of historic right, pay attention to exclude realistic factors, thirdly apply various ways to exclude realistic factors and safeguard our marine rights and interests.