Functionalism and Law-making by Dispute Settlement Mechanisms in the International Law of the Sea

Abstract

This thesis analyses the phenomenon of law-making by dispute settlement bodies in thepublic international law of the sea system from a functionalist perspective through multiple
ways. It starts from two premises. First, it identifies different functions undertaken by dispute settlement bodies, particularly those under the LOS Convention, in modern world
order in the era of the UN. In traditional view, the only function of dispute settlement bodies under the international legal system is to resolve dispute based on existing principles and rules which agreed by sovereign states; in practice, however, there has been some agreement on the idea that dispute settlement bodies have been performing certain new functions other than settling disputes, including stabilizing normative expectations, controlling and legitimating public authority, and making laws, in order to deal with the challenges of globalisation as well as to improve the global governance in the era of the UN.

Second, the thesis confirms the applicability of the theory of functionalism which can be seen as a useful approach to analyse and explain the phenomenon of law-making by the
dispute settlement bodies under the law of the sea. Functionalists emphasize the need for diversity in international law, and welcome the current trend to providing maximum choice in conflict management in areas such as the law of the sea. In choosing the mode of their preference, states lacking any pre-commitment or cultural predisposition might be expected to base their choice on the kind of conflict or dispute in question and on the relationship between the contending parties. Functionalist logic suggests also that in choosing the intermediary mode, the parties to the dispute must compare different kinds of outcomes: interpretative, declaratory, resolutive, or facilitative. In most issue contexts or problem situations, a functionalist might be inclined to assign priority to the facilitative function of conflict management, even in recourse to third party adjudication.

Based on above premises, the activity of law-making by dispute settlement bodies, which makes the modern law of the sea as a “living law,” is defined as a phenomenon that differs from the formal international legislative activities by sovereign states or through international organisations, differs from the approaches of the establishment of customary
law, as well as differs from the legal interpretation in a narrow sense. The thesis then evaluates the law-making function of dispute settlement bodies in the law of the sea system
through four functionalist angles. Firstly, the reasons and necessities for the law-making. Secondly, the methods and approaches of the law-making, which pays particular attentions to two main methods: the functional interpretation of treaties, and the functional shortcuts in the reasoning on ascertaining customary law. Thirdly, the effectiveness of the rules generated by the law-making. And finally, the potential “disequilibrium” caused by the expansion of competences of dispute settlement bodies by themselves’ law-making.