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

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 & int’l 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 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).