Abstract
The role of various actors in dispute settlement processes under the UN Convention on the Law of the Sea (UNCLOS) may be assessed from different perspectives to assess the relevance or salience of those actors in decision-making processes. This chapter utilises a stakeholder identification theory, more commonly utilised in management contexts, to identify and prioritise the interests of different actors from the perspective of the judge in reaching decisions to advance the goals of UNCLOS dispute settlement. The theory is tested against the decisions made on the interpretation of Article 121(3) of UNCLOS in the South China Sea arbitration. The use of stakeholder identification theory enables us to examine the position of superpowers, as well as other states and non-state actors, in relation to a particular legal question and consider how well their interests and claims are met in judicial decision-making under UNCLOS. The author concludes that the theory is a useful explanatory tool and could bring greater transparency in decision-making but acknowledges limitations in its applicability to the UNCLOS context.
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Notes
- 1.
These procedures are contained in Part XV of UNCLOS.
- 2.
Art. 279 and Art. 280, UNCLOS.
- 3.
As set forth in Arts 281 and 282 of UNCLOS.
- 4.
Art. 287(1), UNCLOS.
- 5.
Art. 287(5), UNCLOS.
- 6.
Art. 286, UNCLOS.
- 7.
Art. 293(1), UNCLOS.
- 8.
Arts 297 and 298, UNCLOS. These exceptions include certain fisheries and marine scientific research disputes in the EEZ; maritime boundary delimitation; military activities and historic bay disputes.
- 9.
This spectrum is exemplified in Article 33 of the UN Charter, which provides: ‘The parties to any dispute, the continuance of which is likely to endanger the maintenance of international peace and security, shall, first of all, seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice.’
- 10.
Annex VII, Art. 9, UNCLOS.
- 11.
See, e.g., Triggs (2006), p. 672 (referring to states following statements of law issued in the context of a non-binding advisory opinion).
- 12.
Crawford (2012), p. 39.
- 13.
Ibid.
- 14.
See UNCLOS Status. Iran and North Korea are at least signatories to UNCLOS, but have not ratified.
- 15.
See South China Sea Arbitration (Jurisdiction and Admissibility); South China Sea Arbitration (Award); Arctic Sunrise Arbitration (Award); Black Sea Arbitration.
- 16.
South China Sea Arbitration (Award), paras 1081–1109.
- 17.
See generally Mossop (2016).
- 18.
See Permanent Court of Arbitration (2017).
- 19.
Guyana v Suriname Arbitration (Award), paras 425–452.
- 20.
The M/V ‘Virginia G’ Case.
- 21.
The M/V ‘Norstar’ Case (Preliminary Objections).
- 22.
See, e.g., Camouco Case; Volga Case (Judgment). For general discussion, see Trevisanut (2017).
- 23.
Art. 292(2) permits the application for prompt release to be made ‘by or on behalf of the flag State of the vessel.’
- 24.
All but one Annex VII arbitration has been administered through the Permanent Court of Arbitration; the one exception being Southern Bluefin Tuna Cases, which used the International Centre for the Settlement of Investment Disputes (ICSID) as its registrar.
- 25.
See, e.g., M/V ‘Virginia G’ Case, paras 35–38 (listing 11 witnesses that appeared before ITLOS and the questions posed to them).
- 26.
These issues have been canvassed in literature dealing with gender balance in international courts. See, e.g., Grossman (2012).
- 27.
See, e.g., Alter (2012).
- 28.
Krasner (1982), p. 2.
- 29.
South China Sea Arbitration (Award), para. 61 (citing a statement from the Chinese Ministry of Foreign Affairs) (emphasis added).
- 30.
Thanks to Gerry Natzgaam, Monash University, for bringing this theory to my attention in the context of whaling.
- 31.
- 32.
Building on work in a new monograph: Klein and Parlett (2021).
- 33.
Freeman (1984), p. 46.
- 34.
- 35.
See Mitchell et al. (1997), pp. 859–863 and 865–868.
- 36.
- 37.
Mitchell et al. (1997), p. 865.
- 38.
- 39.
Epitomized by Thomas Franck’s writing in the area. See, e.g., Franck (1995).
- 40.
Mitchell et al. (1997), p. 867. An additional dimension proposed to the urgency of a claim is the probability of the claim’s occurrence. See Driscoll and Starik (2004), discussed in Mitchell et al. (2017), p. 139. Although arguably this dimension could be captured in an assessment of the importance of the claim or relationship.
- 41.
- 42.
Mitchell et al. (1997), p. 868.
- 43.
Mitchell et al. (1997), pp. 870–871.
- 44.
- 45.
Context will remain important, including the characteristics of the judges making the decisions. See Mitchell et al. (2017), p. 141.
- 46.
See, e.g., Duzgit Integrity Arbitration, para. 132.
- 47.
A fully entitled island may be used by the sovereign state to claim a territorial sea, contiguous zone, EEZ and continental shelf. See UNCLOS, Art. 121(1). The South China Sea Arbitration Tribunal utilised the terminology of a ‘fully entitled’ island to distinguish features under Article 121(1) from those classified as a rock under Article 121(3). A rock, while still an island, is not entitled to either an EEZ or a continental shelf.
- 48.
UNCLOS, Art. 121(3).
- 49.
- 50.
See South China Sea Arbitration (Award), paras. 512–520.
- 51.
See South China Sea Arbitration (Award), paras. 482–553.
- 52.
South China Sea Arbitration (Award).
- 53.
South China Sea Arbitration (Award), para. 547.
- 54.
South China Sea Arbitration (Award), paras. 499–500.
- 55.
South China Sea Arbitration (Award), para. 503. As such, economic life derived from the EEZ or the continental shelf of the feature could not be considered as meeting this criterion. Id., para. 502.
- 56.
South China Sea Arbitration (Award), para. 621.
- 57.
See, e.g., The Guardian (2015).
- 58.
See discussion of the Philippines’ strategy in Talmon (2014), p. 72 (‘More important than winning the case seems the opportunity for the Philippine Government to publicise its case against China to the world.’).
- 59.
An argument that the Philippines made in the context of China’s aggravation of the dispute as a discrete violation of international law. See South China Sea Arbitration (Award), paras. 1163–1180.
- 60.
Volga Case (Declaration of Vice-President Vukas), paras 2–6; Monte Confurco Case (Declaration of Judge Vukas), p. 122.
- 61.
See, e.g., Monte Confurco Case (Dissenting Opinion of Judge Anderson), p. 128.
- 62.
For discussion, see Qui and Liu (2009).
- 63.
See Australian Government Department of the Environment and Energy, Australian Antarctic Division (undated).
- 64.
See, e.g., Monte Confurco Case, p. 86; Camouco Case, p. 10; Volga Case (Judgment); Southern Bluefin Tuna Cases; Southern Bluefin Tuna Cases (Jurisdiction and Admissibility).
- 65.
For a map of the claims, see Damrosch and Oxman (2013), p. 96. Taiwan is also a claimant, but it is not universally recognised as a state and is not a party to UNCLOS.
- 66.
McDorman (2016).
- 67.
See Beckman (2013), p. 144.
- 68.
See Beckman (2013), p. 144.
- 69.
As required under Article 123 of UNCLOS, which reads in part: ‘States bordering an enclosed or semi-enclosed sea should cooperate with each other in the exercise of their rights and in the performance of their duties under this Convention.’
- 70.
See Klein (2016), p. 28.
- 71.
For recent discussion on the US position, see Smith (2017).
- 72.
South China Sea Arbitration (Award), para. 58.
- 73.
South China Sea Arbitration (Award), para. 133 (citations omitted).
- 74.
Ultimately, this assessment is an impressionistic analysis. Preferably, interviews would be conducted with each of the stakeholders (if possible) as a more rigorous method for testing the relative strength of each of the interests involved.
- 75.
- 76.
See, e.g., discussions in Falk et al. (2012).
- 77.
This power is derived from the rules of treaty interpretation. Article 31(1) of the Vienna Convention on the Law of Treaties provides: A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose. VCLT, Art. 31(1).
- 78.
Such a lens may be captured by the idea of ‘interactive salience’, which acknowledges that ‘prioritization of stakeholders appears to be influenced by multiple activities within and outside of the organization’. Mitchell et al. (2017), p. 143.
- 79.
As noted above, interviews with the stakeholders may fill important knowledge gaps in this regard. However, this method involves its own challenges (including access to all stakeholders and questions of privileged information in a lawyer-client relationship).
- 80.
As is the case in the management context. See Mitchell et al. (2017), p. 148 (referring to the ‘explanatory potential’ of the stakeholder salience model).
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Klein, N. (2020). Stakeholders in Dispute Settlement Under the UN Convention on the Law of the Sea. In: Ribeiro, M., Loureiro Bastos, F., Henriksen, T. (eds) Global Challenges and the Law of the Sea. Springer, Cham. https://doi.org/10.1007/978-3-030-42671-2_14
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