2.5 UNCLOS as an Actor
Another ‘institution’ or ‘regime’ that may be recognised in UNCLOS dispute
settlement is UNCLOS itself. In this context, we can draw on regime theory,
which Stephen D. Krasner defined in 1982 as a set of explicit or implicit ‘principles,
norms, rules, and decision making procedures around which actor expectations
converge in a given issue-area’.
28 While international governance theories have
moved beyond regime theory, what is important to recognise is how the ‘regime’
is endowed with its own qualities or characteristics. It is thus worth noting
‘UNCLOS’ as an actor in dispute settlement because other actors involved in the
dispute settlement process do so themselves. This phenomenon is readily seen when
there are decisions to be made on the parameters of jurisdiction; the parties will
reference the purposes of UNCLOS as an international regime. For example, in the
South China Sea arbitration, China claimed that:
the Philippines and the Arbitral Tribunal have abused relevant procedures and obstinately
forced [sic] ahead with the arbitration, and as a result, have severely violated the legitimate
rights that China enjoys as a State Party to the UNCLOS, completely deviated from the
purposes and objectives of the UNCLOS, and eroded the integrity and authority of the
UNCLOS.
29
In cataloguing this diverse universe of actors and how they might be engaged in
any case that arises for resolution under Part XV of UNCLOS, we can see that any
number of them may either directly engage or wish to engage in the process so as to
influence the outcome. The next Part contemplates how we can categorise and rank
these actors, either as a way to explain what is currently happening in UNCLOS
dispute settlement or as a means to develop a normative tool to explain how disputes
should be resolved under UNCLOS.
3 Stakeholder Identification Theory
One possible explanatory paradigm is stakeholder identification theory, which has
been used in the management context for managers to determine who are the salient
stakeholders in making decisions in the interests of the organisation.
30 Stakeholder
theory seeks to answer the question of who and what counts for managers in their
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.
14 Stakeholders in Dispute Settlement Under the UN Convention on the Law of the Sea
245
Another ‘institution’ or ‘regime’ that may be recognised in UNCLOS dispute
settlement is UNCLOS itself. In this context, we can draw on regime theory,
which Stephen D. Krasner defined in 1982 as a set of explicit or implicit ‘principles,
norms, rules, and decision making procedures around which actor expectations
converge in a given issue-area’.
28 While international governance theories have
moved beyond regime theory, what is important to recognise is how the ‘regime’
is endowed with its own qualities or characteristics. It is thus worth noting
‘UNCLOS’ as an actor in dispute settlement because other actors involved in the
dispute settlement process do so themselves. This phenomenon is readily seen when
there are decisions to be made on the parameters of jurisdiction; the parties will
reference the purposes of UNCLOS as an international regime. For example, in the
South China Sea arbitration, China claimed that:
the Philippines and the Arbitral Tribunal have abused relevant procedures and obstinately
forced [sic] ahead with the arbitration, and as a result, have severely violated the legitimate
rights that China enjoys as a State Party to the UNCLOS, completely deviated from the
purposes and objectives of the UNCLOS, and eroded the integrity and authority of the
UNCLOS.
29
In cataloguing this diverse universe of actors and how they might be engaged in
any case that arises for resolution under Part XV of UNCLOS, we can see that any
number of them may either directly engage or wish to engage in the process so as to
influence the outcome. The next Part contemplates how we can categorise and rank
these actors, either as a way to explain what is currently happening in UNCLOS
dispute settlement or as a means to develop a normative tool to explain how disputes
should be resolved under UNCLOS.
3 Stakeholder Identification Theory
One possible explanatory paradigm is stakeholder identification theory, which has
been used in the management context for managers to determine who are the salient
stakeholders in making decisions in the interests of the organisation.
30 Stakeholder
theory seeks to answer the question of who and what counts for managers in their
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.
14 Stakeholders in Dispute Settlement Under the UN Convention on the Law of the Sea
245