how or why a judge has either emphasised, downplayed or overlooked any dimension of a case.
45
What also potentially remains elusive is whether the judges all share the same
objectives for the organisation. The identification of stakeholders’ attributes only
makes sense when we have a clear sense of what ends a judge is trying to achieve in
making decisions on claims presented. Judges deciding cases under UNCLOS
appear to be motivated by the broad aims associated with the peaceful settlement
of disputes, the rule of law, and the public order (or good governance) of the
oceans.
46 Ultimately, there needs to be a connection between who and what counts
in decision-making with the outcome sought to be achieved.
Stakeholder identification theory thus potentially provides us with a tool to
explain what is happening in UNCLOS arbitrations and adjudication and the extent
that the interests of superpowers are accommodated in this setting. In relation to any
decision emanating from adjudication or arbitration, we can identify the actors, their
interests and the extent those interests were satisfied in the decisions of the judges.
Using this technique, we can show to what extent superpowers have prevailed, if at
all, in the compulsory arbitration and adjudication procedures under UNCLOS.
4 Applied to the South China Sea Arbitration
Considering the many important dimensions to the final award of the South China
Sea arbitration, this chapter will only examine one aspect of the case to test the use of
stakeholder identification theory. One controversial issue was the status of various
land features in the South China Sea as either ‘fully-entitled’ islands or rocks under
Article 121 of UNCLOS.
47 Article 121 provides:
1. An island is a naturally formed area of land, surrounded by water, which is above water at
high tide.
2. Except as provided for in paragraph 3, the territorial sea, the contiguous zone, the
exclusive economic zone and the continental shelf of an island are determined in
accordance with the provisions of this Convention applicable to other land territory.
3. Rocks which cannot sustain human habitation or economic life of their own shall have no
exclusive economic zone or continental shelf.
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.
248
N. Klein
45
What also potentially remains elusive is whether the judges all share the same
objectives for the organisation. The identification of stakeholders’ attributes only
makes sense when we have a clear sense of what ends a judge is trying to achieve in
making decisions on claims presented. Judges deciding cases under UNCLOS
appear to be motivated by the broad aims associated with the peaceful settlement
of disputes, the rule of law, and the public order (or good governance) of the
oceans.
46 Ultimately, there needs to be a connection between who and what counts
in decision-making with the outcome sought to be achieved.
Stakeholder identification theory thus potentially provides us with a tool to
explain what is happening in UNCLOS arbitrations and adjudication and the extent
that the interests of superpowers are accommodated in this setting. In relation to any
decision emanating from adjudication or arbitration, we can identify the actors, their
interests and the extent those interests were satisfied in the decisions of the judges.
Using this technique, we can show to what extent superpowers have prevailed, if at
all, in the compulsory arbitration and adjudication procedures under UNCLOS.
4 Applied to the South China Sea Arbitration
Considering the many important dimensions to the final award of the South China
Sea arbitration, this chapter will only examine one aspect of the case to test the use of
stakeholder identification theory. One controversial issue was the status of various
land features in the South China Sea as either ‘fully-entitled’ islands or rocks under
Article 121 of UNCLOS.
47 Article 121 provides:
1. An island is a naturally formed area of land, surrounded by water, which is above water at
high tide.
2. Except as provided for in paragraph 3, the territorial sea, the contiguous zone, the
exclusive economic zone and the continental shelf of an island are determined in
accordance with the provisions of this Convention applicable to other land territory.
3. Rocks which cannot sustain human habitation or economic life of their own shall have no
exclusive economic zone or continental shelf.
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.
248
N. Klein