Contributions of LOSC Jurisprudence to Reaching and Justifying a Negotiated Outcome – and Contributions of Negotiated Settlements to the Law of the Sea

Abstract

Releasing the full potential of the United Nations Convention on the Law of the Sea (LOSC) also requires concluding agreements – and an understanding of the dynamics behind reaching agreement. Legal reasoning in negotiations is not divorced from judicial reasoning. Justification by drawing upon the latter may be required in the fundamental process of overcoming disagreement. Jurisprudence may provide arguments of acceptability for negotiating States. Moreover, negotiations should not merely be dismissed as ‘bargaining under the shadow of the Convention’. Rather, they may be part of a broader interaction with contributions of the judiciary and indicate future paths for the Convention’s implementation. Furthermore, this may give rise to reflections on the roles of heuristics for negotiators and for policy- and decision-makers. This suggests revisiting the notion of legal policies of States – including how States should define unresolved issues and decide on the best timing and means for their effective resolution.