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Problems on Exceptional Title, 'Ancient Rights' and Burden of Proof

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Chapter Summary

The ?exceptional regime' requirement was discussed in UN Juridical Regime, where it was seen to be more than a mere "academic" question. This was because of "rigorous proof" necessary for such a claim; and "basis of title" having here to be "exceptionally strong", especially because it normally involves a derogation of freedom of high seas relative to other States. In the discussion of concept of historic waters, the burden of proof has been seen to be on claimant State. This aspect was much discussed in Fisheries case, where both adversaries agreed that the burden of proof fell on the State which was allegedly making the "exceptional" claim, invoking old maxim of ?eo incumbit qui probit'. There are some past historic claims to waters which because of their exaggerated geographical extent, in no sense of word could possibly constitute juridical bays and which postdate any separable claim based on "ancient rights".

Keywords: ancient rights; burden of proof; exceptional title; Fisheries case; historic waters; juridical bays; UN Juridical Regime

10.1163/ej.9789004163508.i-322.22
/content/books/10.1163/ej.9789004163508.i-322.22
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