Read UNCLOS correctly to uphold justice

The abuse of the dispute settlement mechanism under the United Nations Convention on the Law of the Sea by some countries is a threat to peace and stability. The international community must accurately interpret the Convention to distinguish legal principles from political machinations.

Since it came into force in 1994, UNCLOS has served as an important legal framework. It has strengthened multilateralism, checked maritime hegemony and fostered maritime cooperation and the sustainable development of the seas and oceans.

The Convention is essentially a carefully negotiated "package deal" forged through compromise. Before the Third UN Conference on the Law of the Sea (1973-82), the law of the sea was fragmented and largely governed by customary law. To reach a broad consensus, the conference adopted a package deal approach that required countries to accept the Convention as a whole or reject it in its entirety. There was no option to cherry-pick favorable provisions. The result was a carefully balanced framework of more than 320 articles covering 17 major areas, allowing around 160 countries with competing claims to find common legal ground.

Yet, this approach also had inherent limitations. Vague wording, undefined terms, and increasing regulatory gaps over time led to misinterpretation and procedural abuse, with the ambiguity of certain provisions posing potential risks.

As renowned maritime legal scholar Robin Churchill noted, the Convention inevitably bears ambiguities in areas where negotiators managed only weak compromises. Those ambiguities constitute loopholes that are being exploited.

Regrettably, the Convention's history of compromise and balance, along with its inherent limitations, is often overlooked or intentionally ignored. In recent years, UNCLOS has been described as "a constitution for the oceans" by some, a politicized rhetoric that suggests it is superior to other international legal rules.

That label is not supported by international doctrine. The International Law Commission's 2006 report on the Fragmentation of International Law clearly states that the "main sources of international law are not in a hierarchical relationship inter se", and "drawing analogies from the hierarchical nature of domestic legal system is not generally appropriate".

German international law expert Rainer Lagoni likewise warned that the "constitution" label — even if used metaphorically — could mislead when treaties clash. In legal terms, UNCLOS is not a superior law but one strand in a complex web of treaties, far from a panacea for addressing the challenges arising in ocean governance.

In fact, the preamble of UNCLOS explicitly states that "matters not regulated by this Convention continue to be governed by the rules and principles of general international law". Today's ocean governance does not rest on UNCLOS alone, but on a broader legal web — other treaties, plus long-standing customary international law. Matters such as historic rights and outlying archipelagos continue to be regulated by customary law, while sovereignty over land territory falls outside the scope of UNCLOS.

Yet some parties attempt to deliberately repackage their claims to sovereignty over land territory as maritime rights and then submit them as issues under UNCLOS' jurisdiction. This tactic is what some legal practitioners term a "mixed-dispute" approach. French scholar Jean-Louis Iten likens this to a "soilless" dispute, where claims are artificially detached from the "soil" of sovereignty over land territory. It is a procedural trick to circumvent the tribunal's jurisdictional limits on sovereignty disputes.

The exploitation of the Convention's ambiguities, along with efforts to weaponize UNCLOS, peaked during the 2016 "South China Sea arbitration". The Philippines, in collusion with the so-called arbitral tribunal, attempted to secure jurisdiction over disputes concerning territorial sovereignty, by flagrantly treating the word "or" in Article 121, paragraph 3 — which states that "Rocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf" — as "and". The aim was to raise the threshold for determining island status, downgrade many islands in the South China Sea and undermine China's maritime rights in the region.

The move was roundly denounced by experts. Gilbert Guillaume, former president of the International Court of Justice, dismissed this misinterpretation as extremely tenuous. French scholar Pierre Michel Eisemann criticized the "tribunal" for overstepping and acting as a lawmaker. Romain Le Boeuf described the "arbitration" as mere formalism and unconvincing. Rather than resolving disputes, this procedural abuse to achieve a predetermined outcome severely undermined the credibility of the Convention's dispute settlement mechanism and turned the law into a geopolitical tool.

UNCLOS is a significant achievement in international law. But like any other instrument born of compromise, it is also vulnerable to exploitation. Vigilance is needed to prevent overstating the scope of UNCLOS to serve narrow geopolitical interests.

Abusive legal practices undermine the solemnity, integrity and authority of the Convention. All parties should therefore remember the spirit of compromise that shaped the Convention, preserve its carefully crafted balance, and interpret its provisions accurately and in good faith. It is essential to oppose any attempt to weaponize or politicize UNCLOS, which will ensure it better serves the maritime well-being of all humanity.

The author is a professor at the China Institute for Marine Affairs.

The views don't necessarily represent those of China Daily.