II. THE SCOPE OF DISPUTE SETTLEMENT PROCEDURES UNDER UNCLOS

Traditional criticisms of the dispute settlement system created under Part XV of UNCLOS include the idea that the “broad range of ocean disputes” excluded from the scope of Part XV renders the system very (possibly unduly) narrow.Footnote ⁵ The South China Sea case (among other recent cases) has dented this conventional wisdom: that this system is narrow in scope and was always intended to be so. This view, grounded in a particular reading of the Convention, has coloured scholarly interpretations of UNCLOS and tends to occlude the history of its negotiation. The South China Sea case puts that question back in focus. That is: What use can be made of the history of UNCLOS negotiations in interpreting the Convention, and how should that history be understood? The question goes further than the strict role of travaux préparatoires in the interpretation of a treaty;Footnote ⁶ it goes to the presumptions one brings to reading those travaux. My suggestion is that the usual accounts of UNCLOS’s drafting note only in passing the divergent interests that had to be reconciled in producing the Convention’s grand compromise. Such histories effectively minimize the role played by collectivist thinking inspired by the New International Economic Order [NIEO].Footnote ⁷ Indeed, it seems widely forgotten in many treatises in English that the negotiation of UNCLOS was “the central stage upon which [the] challenges” of the NIEO to traditional approaches to international law were “explicitly articulated”.Footnote ⁸ There is not space here to recapitulate the objectives or ideology of the NIEO, or its internal debates. It is enough to recall that the NIEO involved an effort by states in the global South to call for a more equitable and distributively just international order, including allocating the beneficial use of the “currently available and potentially exploitable resources of the oceans”.Footnote ⁹ While the NIEO is strongly associated with efforts in UNCLOS negotiations to put the deep sea bed under international supervision as part of the common heritage of mankind, provisions referring to the special position or needs of developing states suffuse the Convention. The weight one gives to these political struggles over the future direction of the law of the sea inevitably colours the legal interpretation one adopts. Bluntly: Did the NIEO fail and leave no effective mark on the Convention beyond aspirational statements, or were its influences more profound?

In the case of UNCLOS dispute settlement two extremes could be posited. A narrow, “sovereigntist” or “contractual” reading could commence by noting the seemingly extensive exceptions to the compulsory procedures found in Part XV(3), and conclude that: (1) the entire system was designed to be less than comprehensive; and (2) one should therefore construe the applicability of the system as a whole narrowly, in order not to exceed the bargain struck. Such a view is compatible with both a certain type of traditional doctrinal positivism and theories of states as rational choice actors uninterested in fettering their sovereign discretion.Footnote ¹⁰

A “communitarian” approach to Part XV more generally might begin from the view that the negotiation of UNCLOS as a package deal and largely by consensus resulted in a legislative instrument, in the sense that it resulted from a process through which the general will of the international community was articulated and “the whole people decree[d] for the whole people”.Footnote ¹¹ Such a reading could start from the proposition that the founding principle of the Part XV system is that it is intended to be both comprehensive and compulsory in order to uphold and maintain the integrity of the Convention package deal as a whole. On this approach, the exceptions both to subject-matter jurisdiction and procedural recourse to compulsory dispute settlement procedures should be construed narrowly in order to protect the integrity of the Convention. Supporters of such a view typically quote the well-known statement of the President of the Conference, Ambassador Amerasinghe, that “[d]ispute settlement procedures will be the pivot upon which the delicate equilibrium of the compromise [reached] must be balanced”.Footnote ¹²

In practice most English-language approaches to interpreting the Convention show traces of both approaches, but tend to the “sovereigntist” end of the spectrum. The tension is usually reconciled by suggesting that the limited collectivist function of the dispute settlement procedures is to hold sovereign State Parties to the contractual bargain they have made. In practice such a conclusion obscures the very different stake different states (and categories of states) may have in such a system. This point is returned to below.

A not unrepresentative assessment of the early case-law decided under Part XV UNCLOS was: “[e]ven accepting that UNCLOS compulsory dispute settlement regime was never intended to be comprehensive, it has proved to be even more circumscribed in scope than perhaps even its detractors imagined”.Footnote ¹³ This squares with the usual account in textbooks and treatises that the complex and exception-ridden UNCLOS dispute settlement system simply reflected “the political reality of what States were willing to surrender to third-party process”.Footnote ¹⁴ The drafters consciously chose, on such an account, not to establish “a comprehensive dispute settlement system”.Footnote ¹⁵ This conclusion rests in part on obscuring the strong divisions of views in the treaty drafting process: the language chosen suggests that “states” commonly and collectively “intended” an outcome that reflected “political reality”; it also tends to conceal that the prevailing political reality was itself contested. There is a further risk that such a conclusion may shade over from a simple, contestable textual observation about the exceptions in Part XV(3) (which are substantial) to a presumption about how to interpret Part XV generally based either on what the parties are assumed to have intended or what, indeed, the “political reality” was.

That is, as outlined above, the “sovereigntist” approach supports a presumption either against compulsory dispute settlement, or at least in favour of interpreting such clauses narrowly. The complex structure of Part XV lends itself to such a reading, with its role for consent-based means of dispute settlement in Part XV(1), a plethora of forums to hear compulsory cases under Part XV(2), complex exclusions to the subject matters subject to compulsory procedures in Part XV(3), its (apparent) deference to dispute settlement procedures contained in other treaties, and the creation of such oddities of international law as compulsory conciliation.Footnote ¹⁶ It is easy to conclude that these eclectic mechanisms, with varying degrees of strength according to subject matter, reflects the extent to which “dispute settlement intrudes upon … sovereignty”:

Respondent states have certainly taken such a line in litigation. Part of the UK’s argument in response to the claim brought by Mauritius in the Chagos Marine Protected Area Arbitration was that the case was really a “re-cast[ing]” of a dispute about sovereignty under the “guise of a case under UNCLOS” and that this could call “into question the whole system of dispute settlement under the Convention, and with it, the Convention itself”.Footnote ¹⁸ Nonetheless, this line of argument presumes a degree of obviousness or automaticity about those issues which will universally be seen as “too important an aspect of sovereignty” to risk independent adjudication.

No such obviousness was apparent in negotiating UNCLOS. A.O. Adede, who chaired the dispute settlement working group, recorded vigorous differences of opinion during the negotiations both as to whether the Convention should contain a compulsory dispute settlement system and, if so, which subject matters it should cover.Footnote ¹⁹ Even on questions as sensitive as maritime delimitation there were strong calls for Part XV(2) to apply. Ambassador Padro argued, for example: “[I]t was difficult to credit the good faith of a country in signing a convention if it then refused to allow conflicts about the application of that convention to be settled by some independent organ or authority.”Footnote ²⁰ Indeed, for less powerful states the dispute settlement system was often a sine qua non of their consent to the whole. Kingsbury explains the attraction of including dispute settlement systems in a treaty:

The point of including dispute settlement is not merely about signalling good faith. Rather, small states also know that, even absent enforcement mechanisms, the outcomes of litigation—embodying a change in legal relationship—can set in motion changes in prevailing political realities.Footnote ²²

III. THE APPROACH TAKEN IN SOUTH CHINA SEA

On the surface, the approach taken by the Tribunal in South China Sea was straightforwardly formalist. It was entirely unmoved by Chinese objections (expressed in absentia via a position paper) that the “real” dispute was a question of sovereignty over certain maritime features or the delimitation of zones projected from those features.Footnote ²³ The Tribunal accepted, as Alan Boyle had long predicted, that a dispute over maritime features could come within UNCLOS Part XV jurisdiction if the question put was one of the status of such features, not sovereignty over them.Footnote ²⁴ In its choice of language the Tribunal emphasized not the Part XV(3) exceptions to jurisdiction but the comprehensive and binding nature of the Part XV dispute settlement system generally. It observed that:

Earlier in its Award on Jurisdiction and Admissibility it had emphasized that the scheme of Part XV is encapsulated in UNCLOS Article 286,Footnote ²⁶ which provides:

Both statements uphold the binding nature of the dispute settlement system and emphasize, despite its exceptions, the central role of compulsory measures to that system. These may seem merely formal statements: the parties are bound to the agreement they have struck. These statements are remarkable only in the context of previous case-law. Some previous tribunals had, rather than prioritize the centrality of the dispute settlement system, instead maximized the ability of states to opt out of it.

The key “opt out” provision is Article 281(1) UNCLOS which provides that where parties

In South China Sea, China claimed that the joint China-ASEAN Declaration on the Conduct of Parties in the South China Sea (the China-ASEAN Declaration) constituted such an agreement on questions of dispute resolution to the exclusion of UNCLOS. This position could draw support from previous case-law. The most obvious case in which Articles 281 was argued and in which an arbitral tribunal found that it lacked jurisdiction on that basis is Southern Bluefin Tuna.Footnote ²⁷ Southern Bluefin Tuna concerned the effect of Article 16 of the Convention for the Conservation of Southern Bluefin Tuna [CCSBT].Footnote ²⁸ Article 16, on its face, emphasized that disputes under the CCSBT would be subject to compulsory procedures only with the consent of all parties to the dispute. It provides:

1. (1) If any dispute arises between two or more of the Parties concerning the interpretation or implementation of this Convention, those Parties shall consult among themselves with a view to having the dispute resolved by negotiation, inquiry, mediation, conciliation, arbitration, judicial settlement or other peaceful means of their own choice.

2. (2) Any dispute of this character not so resolved shall, with the consent in each case of all Parties to the dispute, be referred for settlement to the International Court of Justice or to arbitration … (emphases added)

In addition, UNCLOS Article 282 provides that where a “procedure that entails a binding decision” applies to a dispute under a “general, regional or bilateral agreement”, that procedure may apply “in lieu” of UNCLOS.

The question in Southern Bluefin Tuna then was whether Article 16 of the CCSBT was an agreement under Article 281 excluding UNCLOS dispute settlement. The majority of the Tribunal held that it was. The Tribunal noted that a significant number of treaties dealing with ocean affairs that post-dated UNCLOS had dispute settlement provisions excluding recourse to compulsory adjudication. It consideredFootnote ²⁹

The Southern Blue Fin Tuna Tribunal thus effectively held

The Southern Blue Fin Tuna Tribunal supported its conclusion that parties to UNCLOS were entitled to opt out of Part XV(2) dispute settlement on the basis that, given Part XV’s numerous exceptions, it “appears to the Tribunal that UNCLOS falls significantly short of establishing a truly comprehensive regime of compulsory jurisdiction entailing binding decisions”.Footnote ³¹

The approach taken in the South China Sea case, however, appears much stricter and favours a presumption against the ability to opt out of compulsory dispute settlement. The Tribunal in South China Sea emphasized that only a legally binding agreement could have effect under Articles 281 or 282 and showed a clear preference for express language excluding Part XV(2) mechanisms.Footnote ³² In terms of the kind of language which might have such an exclusionary effect under Article 281, it noted that in the China-ASEAN Declaration the parties could have (but had not): undertaken to resolve their disputes “only through friendly consultations and negotiations”; or undertaken “not to submit a dispute to any method of settlement other than negotiations”.Footnote ³³ The absence of such language prevented a finding that the Declaration on Conduct was an Article 281 or 282 agreement excluding Part XV(2). More precisely, it noted that only an Article 282 agreement involving an alternative compulsory and binding procedure automatically resulted in a complete opt-out from Part XV(2).Footnote ³⁴ An Article 281 agreement will, after the exhaustion of its own prescribed measures, result in the continued application of Part XV(2) unless it in addition “exclude[s] any further procedure”.Footnote ³⁵

The question is whether such exclusion can be implicit as in Southern Bluefin Tuna; or whether the correct result in that case should have been that unless the parties were able to reach agreement on the measures under CCSBT Article 16(2), UNCLOS dispute settlement procedures continued to apply. On the question of whether an agreement could implicitly exclude recourse to UNCLOS compulsory measures,Footnote ³⁶ the South China Sea Tribunal considered Southern Bluefin Tuna wrongly decided.Footnote ³⁷ It held

and later argued:

The Tribunal in further support of its position quoted Ambassador Amerasinghe, as discussed above. Where Southern Bluefin Tuna prioritized the sovereigntist value of maximizing choice as to means of dispute settlement, South China Sea prioritizes the integrity of the Convention. The two cases exhibit diametrically opposed views as to how comprehensive the Convention’s dispute settlement was intended to be, which reflects a methodological (or historical, or political) choice as to whether one begins with Part XV’s general principles or its exceptions in the effort to interpret it as a whole.

IV. THE PURPOSE OF ISLANDS UNDER UNCLOS: CUI BONO?

This communitarian tendency is equally apparent in the approach of the South China Sea Tribunal to the definition of islands. The longest sustained passage of legal analysis in its final award concerns Article 121 UNCLOS, which sets out the regime of islands. Article 121 notes that an island is “a naturally formed area of land, surrounded by water, which is above water at high tide”.Footnote ³⁹ (“Naturally formed” is important: if islands could be created or legally enlarged through land reclamation perverse incentives would be created.Footnote ⁴⁰ ) For the Tribunal, the “critical” element is paragraph (3) which provides: “[r]ocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf”.Footnote ⁴¹

Herein lies the legal significance of categorizing a “naturally formed area of land … above water at high tide”: if it is a rock, it generates a modest territorial sea and contiguous zone; if it is an island, it enjoys a potentially vast resource jurisdiction in the form of the exclusive economic zone [EEZ] and continental shelf regime. The Tribunal finely parsed the meaning to be given to: (1) “rocks”, (2) “cannot”, (3) ‘sustain”, (4) “human habitation”, (5) “or”, and (6) “economic life of their own.”Footnote ⁴²

My focus shall be less on “rocks” than the other elements. The Tribunal indicated that the use of cannot connotes the maritime feature’s capacity to sustain human habitation or economic life “in its natural form”.Footnote ⁴³ Here history has its role:

The Tribunal held sustain had three elements: the provision of essentials, and the ability to do so both over time and to a minimal “proper standard”.Footnote ⁴⁵ Thus, in context, an island must be able to sustain either a healthy human population over time or some form of non-extractive economic activity.Footnote ⁴⁶ The Tribunal scrutinized the logic and grammar of the use of “or” before coming to the intuitive conclusion that: “an island that is able to sustain either human habitation or an economic life of its own is entitled to both an exclusive economic zone and a continental shelf.”Footnote ⁴⁷ However, it swiftly added that the “two concepts are … linked” as “economic activity is carried out by humans” who rarely live “where no economic activity or livelihood is possible”.Footnote ⁴⁸ Nonetheless, the drafting covers “islands” which may sustain habitation but not economic activity or vice versa; which “may particularly be the case where multiple islands are used in concert to sustain a traditional way of life”.Footnote ⁴⁹ In this manner, the Tribunal flagged early the idea of a population engaged in a traditional lifestyle sustained by groups of islands. It thus cautioned against overly strict readings of Article 121 which could “deprive … populations … of the resources on which they have traditionally depended”.Footnote ⁵⁰

As regards the final element, “an economic life of their own”, the Tribunal emphasized:

The next step in the Tribunal’s logic is dense. What makes for such sustainable economic activity? It would be circular to ask if a (hypothetical) EEZ could sustain an independent economic life; such a zone follows from but cannot precede the legal classification of a feature as an island. However, it is not absurd to ask this question of a territorial sea (which may inhere to a mere “rock”), though one must note Article 121(3) “requires a link between the economic life and the feature itself, rather than merely [occurring in] adjacent waters”.Footnote ⁵² Thus

Beyond such conclusions, the Tribunal found it necessary to turn to the object and purpose of the regime of islands, and their relation to the EEZ, in order to interpret Article 121. The sources it draws upon are significant. In relation to Latin American practice it refers to the 1952 Santiago Declaration and the 1970 Montevideo and Lima Declarations; and in African practice it notes the 1972 African States Regional Seminar on the Law of the Sea and the 1973 Addis Ababa Declaration of the Organization of African Unity.Footnote ⁵⁴ These sources evince a common concern with the ability of littoral populations to benefit from the maritime resources in adjacent waters, and later from the new EEZ. The tribunal noted that such “objectives are also apparent in the positions taken by coastal developing States throughout the negotiations” leading to UNCLOS and were shared by “certain [fisheries-dependant] developed States”.Footnote ⁵⁵ The Tribunal also relied upon plainly NIEO-inspired language in the Convention’s preamble stating that UNCLOS aims to

The historical conclusion presented here is straightforward: the purpose of the EEZ was primarily to benefit developing states, by giving their populations greater control over the marine resources in adjacent waters. Importantly, the Tribunal characterizes the qualifications built into Article 121(3) as preventing the newly created EEZ regime “from going too far”; Article 121

A distinction is set up here by the Tribunal between deserving local populations (of developing states) which should benefit from an EEZ and undeserving distant seafaring states (great powers and former colonizers) who should not be allocated “windfalls”. Thus the Tribunal could quote Ambassor Koh on the risks of applying a uniform EEZ entitlement to all maritime features: “such an approach would give inequitable benefits to coastal States with small or uninhabited islands scattered over a wide expanse of the ocean.”Footnote ⁵⁸ Similar remarks made by Latin American delegations during the negotiations are also cited. The conclusion follows that

The Tribunal notes that such a community need not be large and that a “few individuals or family groups” or periodic residence “by a nomadic people” could suffice.Footnote ⁶⁰

Though the Tribunal never seeks to turn the critical “or” into an “and” (thus vacating the “economic life” test), it does seek to narrow its possible interpretations. It does this in several steps. First, through holding that “an economic life of its own” excludes activity which is merely extractive or “focused solely on the waters or seabed of the surrounding territorial sea”.Footnote ⁶¹ Second, it notes that the easiest evidence of economic life will usually be stable human inhabitation. Third, it notes the possibilities of a community that is sustained by a collection of maritime features; and the related case of a “population whose … economic life extends across a constellation of maritime features” even if not all are continually inhabited.Footnote ⁶² This ties back to the earlier discussion of traditional livelihoods the practice of which extends across multiple islands.

The general words of Article 121 thus become quite particular. The purpose of the provision is to benefit certain populations, largely in developing countries though with some concession to fisheries-dependent developed states. If EEZs around islands are to generate “windfalls”, they go to the deserving: paradigmatically, stable pre-existing communities and especially those practising traditional lifestyles. Implicitly and explicitly excluded are distant coastal states maintaining claims to (colonial) uninhabited maritime possessions. The reading is unapologetically one which rehabilitates the positions taken by developing states in UNCLOS negotiations and sees those positions as central to understanding the legislative “general will” enacted in the Convention.