decisions.
31 In utilising this theory,
32 we equate managers with judges, as they are
the ultimate decision-makers for disputes resolved by arbitration or adjudication
under UNCLOS. The decisions they make are for ‘the organisation’, which we can
understand to be the UNCLOS regime. Judges as the managers must make decisions
that are in the best interests of the organisation, that is, the UNCLOS regime. The
stakeholders are then the various other actors identified in the previous Part with
interests in dispute settlement. In creating this analogy, we have the opportunity to
articulate what factors, including different actors, could or should influence judges.
How should judges prioritise these different interests? We can therefore assess the
possible applicability of stakeholder theory in the context of UNCLOS dispute
settlement.
A stakeholder may be broadly defined as ‘any group or individual who can affect
or is affected by the achievement of the organization’s objectives’.
33 To achieve the
organisation’s objectives, managers (or in our case judges) must pay varying attention to different types of stakeholders.
34 Mitchell, Agle and Wood propose that we
look to the power, legitimacy and urgency associated with stakeholders.
35 The
power held may be coercive (‘based on physical resources of force, violence, or
restraint’); utilitarian (‘based on material or financial resources’) or normative
(‘based on symbolic resources’).
36 Whatever the source of power, the upshot is
that it enables the stakeholder to impose its will.
37
Legitimacy may have different meanings depending on its context, and was given
a broad-based definition by Suchman, as follows: ‘a generalized perception or
assumption that the actions of an entity are desirable, proper, or appropriate within
some socially constructed system of norms, values, beliefs and definitions’.
38 Legitimacy has a strong place in international law,
39 and is important in consent-based
treaty regimes where state actors can make rational decisions on their level of
involvement in the regime.
In applying stakeholder identification theory to UNCLOS dispute settlement, a
question does emerge as to how we might differentiate normative power from
legitimacy? Symbolic power could be ascribed to an actor adhering to the rules of
international law and taking steps to uphold or enforce those rules. The key
31 A seminal work in this area is Freeman (1984). Stakeholder identification theory and how to
determine the salience of stakeholders was expounded in an influential piece in 1997 by Mitchell,
Agle and Wood. The 1997 piece remains the key starting point. Mitchell et al. (2017), p. 127.
32 Building on work in a new monograph: Klein and Parlett (2021).
33 Freeman (1984), p. 46.
34 Mitchell et al. (1997), p. 855 This assessment involves determining stakeholder salience, which is
‘the degree to which managers give priority to competing stakeholder claims’. Mitchell et al.
(1997), p. 854.
35 See Mitchell et al. (1997), pp. 859–863 and 865–868.
36 Mitchell et al. (1997), p. 865, citing Etzioni (1964), p. 59.
37 Mitchell et al. (1997), p. 865.
38 Suchman (1995), p. 574, cited by Mitchell et al. (1997), p. 866.
39 Epitomized by Thomas Franck’s writing in the area. See, e.g., Franck (1995).
246
N. Klein
31 In utilising this theory,
32 we equate managers with judges, as they are
the ultimate decision-makers for disputes resolved by arbitration or adjudication
under UNCLOS. The decisions they make are for ‘the organisation’, which we can
understand to be the UNCLOS regime. Judges as the managers must make decisions
that are in the best interests of the organisation, that is, the UNCLOS regime. The
stakeholders are then the various other actors identified in the previous Part with
interests in dispute settlement. In creating this analogy, we have the opportunity to
articulate what factors, including different actors, could or should influence judges.
How should judges prioritise these different interests? We can therefore assess the
possible applicability of stakeholder theory in the context of UNCLOS dispute
settlement.
A stakeholder may be broadly defined as ‘any group or individual who can affect
or is affected by the achievement of the organization’s objectives’.
33 To achieve the
organisation’s objectives, managers (or in our case judges) must pay varying attention to different types of stakeholders.
34 Mitchell, Agle and Wood propose that we
look to the power, legitimacy and urgency associated with stakeholders.
35 The
power held may be coercive (‘based on physical resources of force, violence, or
restraint’); utilitarian (‘based on material or financial resources’) or normative
(‘based on symbolic resources’).
36 Whatever the source of power, the upshot is
that it enables the stakeholder to impose its will.
37
Legitimacy may have different meanings depending on its context, and was given
a broad-based definition by Suchman, as follows: ‘a generalized perception or
assumption that the actions of an entity are desirable, proper, or appropriate within
some socially constructed system of norms, values, beliefs and definitions’.
38 Legitimacy has a strong place in international law,
39 and is important in consent-based
treaty regimes where state actors can make rational decisions on their level of
involvement in the regime.
In applying stakeholder identification theory to UNCLOS dispute settlement, a
question does emerge as to how we might differentiate normative power from
legitimacy? Symbolic power could be ascribed to an actor adhering to the rules of
international law and taking steps to uphold or enforce those rules. The key
31 A seminal work in this area is Freeman (1984). Stakeholder identification theory and how to
determine the salience of stakeholders was expounded in an influential piece in 1997 by Mitchell,
Agle and Wood. The 1997 piece remains the key starting point. Mitchell et al. (2017), p. 127.
32 Building on work in a new monograph: Klein and Parlett (2021).
33 Freeman (1984), p. 46.
34 Mitchell et al. (1997), p. 855 This assessment involves determining stakeholder salience, which is
‘the degree to which managers give priority to competing stakeholder claims’. Mitchell et al.
(1997), p. 854.
35 See Mitchell et al. (1997), pp. 859–863 and 865–868.
36 Mitchell et al. (1997), p. 865, citing Etzioni (1964), p. 59.
37 Mitchell et al. (1997), p. 865.
38 Suchman (1995), p. 574, cited by Mitchell et al. (1997), p. 866.
39 Epitomized by Thomas Franck’s writing in the area. See, e.g., Franck (1995).
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N. Klein