5 Lessons Learned
The above examination has provided a possible explanation for the decision of the
South China Sea Tribunal in ascertaining that there were no fully-entitled islands at
issue in the case, as opposed to rocks and low-tide elevations. The advantage to
using this approach is that it provides transparency in highlighting what actors’
interests were at play and what importance could or should have been attributed to
each stakeholder and their interests in decisions that were to be for the good of the
‘organisation’. To this end, stakeholder identification theory enables us to see how
superpowers can influence a decision, but also shows us the possible limits of
superpower interest. In the case of the United States, its interests were not, and
could not be, pressing in the minds of the decision-makers when it was not a party to
the dispute and it is not even a party to UNCLOS.
5.1 Limitations of Stakeholder Identification Theory in This
Context
Yet the analysis has also shown an important limitation in using stakeholder
identification theory in the context of international adjudication or arbitration
under UNCLOS. How do we identify legitimacy as an interest separate to the
decision that is being made? To be legitimate, we are potentially already making a
call on whether an actor’s assertion aligns with our understanding and interpretation
of the law or not. This difficulty is compounded by the use of international law in
different ways to justify state action rather than a state necessarily acknowledging a
breach of international law. Widespread condemnation of a state’s actions might
enable more easily decisions about legitimacy. Hence, it was argued above that
additional factors could be relied upon to show legitimacy beyond the actual
decision on the question of law at issue. As argued by international relations
scholars, legitimacy extends beyond questions of what is lawful and what is not.
76
Although a court or tribunal must be limited by their assessments of the legality of
actions consistent with their jurisdictional mandate, there is scope to consider the
object and purpose of rules, as well as the context for those rules.
77 The broader
setting for the rules at issue can then inform the assessment of the stakeholder’s
interests.
76 See, e.g., discussions in Falk et al. (2012).
77 This power is derived from the rules of treaty interpretation. Article 31(1) of the Vienna
Convention on the Law of Treaties provides: A treaty shall be interpreted in good faith in
accordance with the ordinary meaning to be given to the terms of the treaty in their context and
in the light of its object and purpose. VCLT, Art. 31(1).
14 Stakeholders in Dispute Settlement Under the UN Convention on the Law of the Sea
257
The above examination has provided a possible explanation for the decision of the
South China Sea Tribunal in ascertaining that there were no fully-entitled islands at
issue in the case, as opposed to rocks and low-tide elevations. The advantage to
using this approach is that it provides transparency in highlighting what actors’
interests were at play and what importance could or should have been attributed to
each stakeholder and their interests in decisions that were to be for the good of the
‘organisation’. To this end, stakeholder identification theory enables us to see how
superpowers can influence a decision, but also shows us the possible limits of
superpower interest. In the case of the United States, its interests were not, and
could not be, pressing in the minds of the decision-makers when it was not a party to
the dispute and it is not even a party to UNCLOS.
5.1 Limitations of Stakeholder Identification Theory in This
Context
Yet the analysis has also shown an important limitation in using stakeholder
identification theory in the context of international adjudication or arbitration
under UNCLOS. How do we identify legitimacy as an interest separate to the
decision that is being made? To be legitimate, we are potentially already making a
call on whether an actor’s assertion aligns with our understanding and interpretation
of the law or not. This difficulty is compounded by the use of international law in
different ways to justify state action rather than a state necessarily acknowledging a
breach of international law. Widespread condemnation of a state’s actions might
enable more easily decisions about legitimacy. Hence, it was argued above that
additional factors could be relied upon to show legitimacy beyond the actual
decision on the question of law at issue. As argued by international relations
scholars, legitimacy extends beyond questions of what is lawful and what is not.
76
Although a court or tribunal must be limited by their assessments of the legality of
actions consistent with their jurisdictional mandate, there is scope to consider the
object and purpose of rules, as well as the context for those rules.
77 The broader
setting for the rules at issue can then inform the assessment of the stakeholder’s
interests.
76 See, e.g., discussions in Falk et al. (2012).
77 This power is derived from the rules of treaty interpretation. Article 31(1) of the Vienna
Convention on the Law of Treaties provides: A treaty shall be interpreted in good faith in
accordance with the ordinary meaning to be given to the terms of the treaty in their context and
in the light of its object and purpose. VCLT, Art. 31(1).
14 Stakeholders in Dispute Settlement Under the UN Convention on the Law of the Sea
257