Different Pacta or Different Servanda? Grey-Zone Lawfare and Law of the Sea-Based Passage and Operational Rights

Abstract

This article examines the vulnerability of the law of the sea to grey-zone lawfare based on the maxim pacta sunt servanda, arguing that this rule can readily be employed as a means of lawfare. Through the broad lenses of (1) passage and operational rights in sovereign waters and (2) exclusive economic zone (EEZ) operational rights, the susceptibility to grey-zone lawfare stratagems and tactics based on both “different pacta” and “different servanda” claims are examined. To this end, the specific issues leveraged to illustrate these uses of the different available pacta strategies in grey-zone lawfare at sea are archipelagic sea lanes passage through neutral archipelagic waters, and due regard in respect of third state operational rights in the EEZ. The analysis of each of these contexts then facilitates assessment of the methodology and rule-source tactics that can be exploited when employing pacta sunt servanda as a means of lawfare in respect of grey-zone operations at sea.