This chapter examines Article 6 1958 CSC and Articles 74(3) and 83(3) LOSC with a view towards ascertaining the extent to which these provisions set out a rule governing the conduct of unilateral activities in disputed EEZ and continental shelf areas. Article 6 1958 CSC, is the forerunner to the provision in the LOSC, is developed on the basis of equidistance: States are not entitled to extend their continental shelf beyond the equidistance boundary – that is, assuming there are no special circumstances. Articles 74(3)/83(3) LOSC lays down two obligations that are geared towards two different purposes: cooperation and abstention. The cooperative aspect is formed by the fact that States must seek provisional arrangements. The aspect of abstention is exemplified in that the States concerned must refrain from unilateral conduct that hampers or jeopardises EEZ/continental shelf delimitation. These two obligations arise conjointly in some, but not all, disputed EEZ/continental shelf areas. A dual function underlies the obligation not to hamper or jeopardise: first, it places limitations on the scope for coastal States to actively undertake unilateral acts; and, second, the obligation curtails the ways in which States can respond to activities undertaken in a disputed area.

Provisional arrangements are a legal tool that provides states with an option for utilising fisheries and offshore hydrocarbon resources in a mutually acceptable way where they are unable to reach a maritime boundary agreement. The aim of this chapter is threefold: to illustrate that such arrangements are effective in preventing violent escalation of maritime disputes, to examine how provisional arrangements operate in practice, and to examine what legal issues may arise in reaching such arrangements. First, the chapter highlights several practical examples of incidents in and outside areas covered by provisional arrangements. It then argues that the obligation to negotiate and the obligation of restraint under Articles 74(3) and 83(3) of the United Nations Convention on the Law of the Sea are complementary and interrelated. Finally, the chapter examines the legal aspects of politically sensitive issues involved in negotiating provisional arrangements: the definition of the area for provisional arrangements and the question of excluding prejudice by the arrangement to the parties’ claims.