2.1 State Actors
In any dispute arising under UNCLOS, there will necessarily be at least one state
making a claim against at least one other state due to differing interpretations or
applications of the legal principles enshrined in UNCLOS. The states in dispute are
thus central in any adjudication or arbitration under UNCLOS. The court or tribunal
will engage in an assessment of the factual and legal claims of each state to resolve
the dispute, even in the absence of one of the states in dispute before it. In the latter
situation, the court or tribunal must still satisfy itself ‘not only that it has jurisdiction
over the dispute but also that the claim is well founded in fact and law’.
10
Under Article 296(2) of UNCLOS, the decision of the court or tribunal ‘shall
have no binding force except between the parties and in respect of that particular
dispute’. Yet a statement of law from a court or tribunal constituted under Part XV of
UNCLOS will be of interest to other states party to UNCLOS even if that state party
is not formally bound by the decision. This situation emerges because once a court or
tribunal constituted under UNCLOS has set forth what a provision of UNCLOS
means, if a state party subsequently acts contrarily to that meaning, that state is
arguably in violation of international law.
11 The factual setting may enable a state to
argue a point of distinction from a previous case, so there is a possibility of the court
or tribunal departing from or qualifying an earlier holding.
12 Yet this outcome is less
likely where there is a jurisprudence constante.
13
In addition to those states that are already parties to UNCLOS, as almost
170 states are, there are also states that are not yet party to UNCLOS but would be
interested in understanding how the treaty is likely to operate in any given setting.
This non-state-party would assess any decision explaining the meaning of treaty
terms and consider that holding in relation to its own maritime interests. The United
States is an obvious actor in this regard, but other states with notable maritime
interests in this category include Venezuela, North Korea, Turkey, Israel, Iran, and
Peru.
14
We can note that any of these three categories of states (states in dispute, state
parties to UNCLOS and non-state-parties to UNCLOS) encapsulate states with
different power positions. Powerful states, such as Russia and China, have been
engaged in arbitrations under UNCLOS.
15 Important regional actors, including
Brazil, Indonesia, Kenya, Saudi Arabia and Germany, are parties to UNCLOS
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.
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In any dispute arising under UNCLOS, there will necessarily be at least one state
making a claim against at least one other state due to differing interpretations or
applications of the legal principles enshrined in UNCLOS. The states in dispute are
thus central in any adjudication or arbitration under UNCLOS. The court or tribunal
will engage in an assessment of the factual and legal claims of each state to resolve
the dispute, even in the absence of one of the states in dispute before it. In the latter
situation, the court or tribunal must still satisfy itself ‘not only that it has jurisdiction
over the dispute but also that the claim is well founded in fact and law’.
10
Under Article 296(2) of UNCLOS, the decision of the court or tribunal ‘shall
have no binding force except between the parties and in respect of that particular
dispute’. Yet a statement of law from a court or tribunal constituted under Part XV of
UNCLOS will be of interest to other states party to UNCLOS even if that state party
is not formally bound by the decision. This situation emerges because once a court or
tribunal constituted under UNCLOS has set forth what a provision of UNCLOS
means, if a state party subsequently acts contrarily to that meaning, that state is
arguably in violation of international law.
11 The factual setting may enable a state to
argue a point of distinction from a previous case, so there is a possibility of the court
or tribunal departing from or qualifying an earlier holding.
12 Yet this outcome is less
likely where there is a jurisprudence constante.
13
In addition to those states that are already parties to UNCLOS, as almost
170 states are, there are also states that are not yet party to UNCLOS but would be
interested in understanding how the treaty is likely to operate in any given setting.
This non-state-party would assess any decision explaining the meaning of treaty
terms and consider that holding in relation to its own maritime interests. The United
States is an obvious actor in this regard, but other states with notable maritime
interests in this category include Venezuela, North Korea, Turkey, Israel, Iran, and
Peru.
14
We can note that any of these three categories of states (states in dispute, state
parties to UNCLOS and non-state-parties to UNCLOS) encapsulate states with
different power positions. Powerful states, such as Russia and China, have been
engaged in arbitrations under UNCLOS.
15 Important regional actors, including
Brazil, Indonesia, Kenya, Saudi Arabia and Germany, are parties to UNCLOS
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.
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