Resolving disputes under UNCLOS when the coastal and user states are disputed

Abstract

This chapter focuses on some distinct consequences for States where there is a land feature generating maritime zones over which sovereignty is disputed. The questions addressed are: What are the international legal consequences where a State is in occupation of an island (‘the occupying State’) but another State contests sovereignty (‘the disputing State’)? Can the State in occupation construct facilities on the island or in the waters surrounding that island? The constructions in the adjacent waters might include ports, or other docking facilities or other structures or installations outside the territorial sea for the purposes of research or resource exploration and exploitation. If the State in occupation proceeds with the exercise of its sovereignty over the disputed land, are there procedural steps or limits that should be taken into account to reduce the likelihood of legal challenge in the event of a dispute emerging under the UNCLOS dispute settlement procedure? A key lesson from the South China Sea arbitration is that the occupying State faces significant legal consequences if it is eventually determined not to be the coastal State with rights over the adjacent maritime area. The occupying State could expect that its actions may be challenged within the framework of the UNCLOS dispute settlement regime, even in the possible absence of a determination as to which State is the ‘coastal State’ or ‘user State’ under UNCLOS.