Resorting to international arbitration or adjudication under UNCLOS thus
engages the states parties to UNCLOS in a decidedly legalised mode of dispute
settlement. Arbitration and adjudication sit at one end of the dispute resolution
spectrum, which traverses from highly political modes of dispute settlement, such
as negotiation, to the legal processes entailed in a third party crafting a binding
decision based on legal arguments presented.
9 Once a third party is involved in
resolving an inter-state dispute by adjudication or arbitration, the potential participation and role of different actors also crystallises as the precise parameters of the
dispute are delineated for resolution. To account for the legal and political dynamics
at play in a formal legal process such as adjudication or arbitration, we can consider
what role each actor plays, and how their interests are identified and weighted in
resolving the dispute. In this respect, we can explain how the legal principle of
sovereign equality operates in a setting where the states concerned hold different
levels of power. In doing so, we can highlight to what extent superpowers influence
decision-making as stakeholders in the compulsory resolution of disputes under
UNCLOS, as well as account for the roles of other important actors in this process.
To reflect on and potentially explain the role of superpowers as stakeholders in
cases resolved under UNCLOS, this chapter proceeds as follows. Section 2 will
identify the different actors that are typically engaged in any arbitration or adjudication under UNCLOS. Section 3 will introduce stakeholder identification theory
and explain its possible application in assessing cases resolved under the UNCLOS
dispute settlement regime. Section 4 will scrutinise how this theory might explain
aspects of decisions from the South China Sea arbitration. Finally, Section 5 will
draw some lessons from the use of stakeholder identification theory—its limits and
its potential—in explaining decision-making processes under UNCLOS dispute
settlement, and the role of superpowers therein.
2 Dynamics of Different Actors
We should acknowledge the broad range of actors that may have an interest in the
resolution of a dispute under the UNCLOS dispute settlement procedure.
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.’
14 Stakeholders in Dispute Settlement Under the UN Convention on the Law of the Sea
241
engages the states parties to UNCLOS in a decidedly legalised mode of dispute
settlement. Arbitration and adjudication sit at one end of the dispute resolution
spectrum, which traverses from highly political modes of dispute settlement, such
as negotiation, to the legal processes entailed in a third party crafting a binding
decision based on legal arguments presented.
9 Once a third party is involved in
resolving an inter-state dispute by adjudication or arbitration, the potential participation and role of different actors also crystallises as the precise parameters of the
dispute are delineated for resolution. To account for the legal and political dynamics
at play in a formal legal process such as adjudication or arbitration, we can consider
what role each actor plays, and how their interests are identified and weighted in
resolving the dispute. In this respect, we can explain how the legal principle of
sovereign equality operates in a setting where the states concerned hold different
levels of power. In doing so, we can highlight to what extent superpowers influence
decision-making as stakeholders in the compulsory resolution of disputes under
UNCLOS, as well as account for the roles of other important actors in this process.
To reflect on and potentially explain the role of superpowers as stakeholders in
cases resolved under UNCLOS, this chapter proceeds as follows. Section 2 will
identify the different actors that are typically engaged in any arbitration or adjudication under UNCLOS. Section 3 will introduce stakeholder identification theory
and explain its possible application in assessing cases resolved under the UNCLOS
dispute settlement regime. Section 4 will scrutinise how this theory might explain
aspects of decisions from the South China Sea arbitration. Finally, Section 5 will
draw some lessons from the use of stakeholder identification theory—its limits and
its potential—in explaining decision-making processes under UNCLOS dispute
settlement, and the role of superpowers therein.
2 Dynamics of Different Actors
We should acknowledge the broad range of actors that may have an interest in the
resolution of a dispute under the UNCLOS dispute settlement procedure.
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.’
14 Stakeholders in Dispute Settlement Under the UN Convention on the Law of the Sea
241