Unilateral Actions and the Rule of Law in Maritime Boundary Disputes

Abstract

The development of the modern international law of the sea regime has allowed States to extend their territorial claims and exercise of sovereignty beyond the traditional spatial domain. However, this has also led to overlapping maritime territorial or boundary claims among countries, resulting in an increase in the number of international disputes. States which face such kinds of situations often take unilateral measures to consolidate their own legal positions and safeguard important national interests, as international law imposes a certain disadvantage to a State who does “nothing” in response to another State’s claim of rights that may challenge or prejudice its own. Interactions between the unilateral actions by two or more States involved in a certain dispute could lead to an escalation of the dispute; sometimes even armed conflict. In other words, unilateral actions are relevant to maintaining rule of law as well as peace and security in the international system. In relation to the management of maritime disputes, the governance of unilateral actions is arguably no less important than peaceful settlement of disputes. In fact, the former could be an indispensable component of the latter. More recently, maritime disputes in some parts of the world have resurged and escalated, for example, in the South China Sea; in the East China Sea (particularly over the Senkaku/Diaoyu Islands), or between Israel and Lebanon in the East Mediterranean Sea. The range of actions States undertake vis-à-vis their rival claimants have not only proliferated but also diversified. The legality of some of those actions may also be questioned. Nonetheless, the issue concerning how international law and the law of the sea regulate a State’s unilateral conducts in maritime dispute seems to have received much less attention in scholarly writings. This article will be a preliminary attempt to fill this gap. Apart from Introduction and Conclusions, the main body of the article will be divided into the following sections. The first section will provide a general categorization of unilateral actions in maritime boundary disputes, and explores their possible conceptual natures under international law. The second and third sections try to identify rules and principles relevant to States’ unilateral