Liberal or Constrained? Judicial Incorporations of Other Rules of International Law in the UNCLOS and the Application of the 'Genuine Link Test

Author:Ke Song
Position:Ph.D. candidate at the University of Edinburgh School of Law, UK
Pages:161-178
SUMMARY

The UNCLOS regulates complex balance of rights and duties among State parties. Its text was deliberately left vague as a result of compromise between the negotiating parties. To develop the legal norms, judges and arbitrators have referred to other rules of international law through systematic integration, rules of reference, and broad applicable law. However, judicial practice has expanded... (see full summary)

 
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Ke Song
The UNCLOS regulates complex balance of rights and duties among State parties.
Its text was deliberately left vague as a result of compromise between the negotiating
parties. To develop the legal norms, judges and arbitrators have referred to other rules
of international law through systematic integration, rules of reference, and broad
applicable law. However, judicial practice has expanded subject-matter jurisdiction
beyond the UNCLOS, causing antinomy between Articles 288, on jurisdiction, and
293 of UNCLOS, on applicable law. Part XV of the UNCLOS has created an invisible
community that would ideally lead the UNCLOS Tribunals to develop and follow
a pragmatic approach as to the limits of their subject-matter jurisdiction in order to
provide for judicial coherence. When interpreting the treaty, the establishment of
genuine links between disputes and substantive rules under the UNCLOS is necessary,
by which other rules of international law are rmly anchored to the interpreted texts
under the UNCLOS.
Keywords
UNCLOS Dispute Settlement Procedures, Compromissory Clause, Compulsory
Jurisdiction, Applicable Law, Genuine Link, Systematic Integration
Liberal or Constrained?
Judicial Incorporations of
Other Rules of International
Law in the UNCLOS and
the Application of the
Genuine Link Test
Ph.D. candidate at the University of Edinburgh School of Law, UK. LL.M. (CUPL)/ LL.M. (Leiden). ORCID: https://
orcid.org/0000-0002-8933-4976. This research was supported by the National Social Science Fund of China, Project
No. 19VHQ008 and the Chinese Scholarship Council, Project No. 201707070032. I would express deep thanks to
Professor Jianjun Gao, Professor James Harrison, Ms. Whitny Kapa and Dr. Jilu Wu for valuable comments and warm
encouragement. Any remaining mistakes are the author’s responsibility. The author may be contacted at: ke.song@
ed.ac.uk /Address: Old College, South Bridge, Edinburgh, Scotland, EH8 9YL.
All the websites cited in this article were last visited on May 12, 2020.
J. East asia & intl l. Vol. 13/No.1 (2020); 161-178
Publication type : Research Article
Section : Student Contribution
DOI : http://dx.doi.org/10.14330/jeail.2020.13.1.08
162 Ke Song
I. Introduction
The United Nations Convention on the Law of the Sea (UNCLOS)
1
is designed
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 conicting claims by coastal States, with universally
agreed limits on the territorial sea, the contiguous zone, the exclusive economic zone
and the continental shelf.
2
However, to achieve these compromises, the clear meaning of treaty provisions
would become ambiguous to suppress disagreements.
3
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 signicantly contributed to the development of the dispute
settlement rules and principles of the UNCLOS.
4
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.
5
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/
texts/koh_english.pdf.
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 Intl 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. Intl l. 403-15 (2016). See also M. Wood, The International Tribunal for the Law of the Sea and General
International Law, 22 Intl 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).

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