162 Ke Song
The United Nations Convention on the Law of the Sea (“UNCLOS”)
to resolve many long-standing controversies concerning the rights of coastal States
and the freedoms of the sea to use the ocean for various purposes including, inter
alia, navigation, natural resources, and scientific research. One of the cardinal
achievements of the negotiated text is the creation of a uniform system of maritime
zones that replaced a plethora of conicting claims by coastal States, with “universally
agreed limits on the territorial sea, the contiguous zone, the exclusive economic zone
and the continental shelf.”
However, to achieve these compromises, the clear meaning of treaty provisions
would become ambiguous to suppress disagreements.
Because the negotiated texts
are open-textured and left with inherent flexibility, which are linked more closely
to subsequent development through international adjudicatory bodies, courts and
tribunals are left with some leeway in interpretation by giving substantive meaning
to these provisions when applying them in concrete cases.
Current case law has signicantly contributed to the development of the dispute
settlement rules and principles of the UNCLOS.
In this regard, the dual functions of
the UNCLOS dispute settlement procedures can be considered: rst, as a means of
maintaining the negotiated text between States through consensus, and second, as a
means of adapting to the changing needs of the international community.
In contrast, judicial development of the law of the sea necessarily involves other
rules of international law, but it should create a tension between the traditional
principles and other rules of international law. This research will mainly consider
1 United Nations Convention on the Law of the Sea, Dec. 10, 1982, 1833 U.N.T.S. 397.
2 T. Koh, A Constitution for Oceans (Dec. 11, 1982), available at http://www.un.org/depts/los/convention_agreements/
3 I. Shearer, Oceans Management Challenges for the Law of the Sea in the First Decade of the 21st Century, in Oceans
ManageMent in the 21st century: InstItutIOnal FraMewOrks and respOnses 4 (A. Elferink & D. Rothwell eds.,
2004). See also B. Oxman, Observations on Vessel Release under the United Nations Convention on the Law of the
Sea, 11 Int’l J. Mar. & cOastal l. 202 (1996).
4 D. Anderson, The Tribunal’s Jurisprudence and Its Contribution to the Rule of Law, in the cOntrIbutIOn OF the
InternatIOnal trIbunal FOr the law OF the sea tO the rule OF law 1996-2016, 3-9 (ITLOS ed., 2018). See also p.
raO & p. gautIer, the InternatIOnal trIbunal FOr the law OF the sea: law, practIce and prOcedure (2019).
5 N. Klein, Expansions and Restrictions in the UNCLOS Dispute Settlement Regime: Lessons from Recent Decisions, 15
chInese J. Int’l l. 403-15 (2016). See also M. Wood, The International Tribunal for the Law of the Sea and General
International Law, 22 Int’l J. Mar. & cOastal l. 351-67 (2007); A. Boyle, UNCLOS Dispute Settlement and the Uses
and Abuses of Part XV, 47 revue belge dI 182-204 (2014).