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The Award on the Merits in the South China Sea Arbitration between the Philippines and China (Award) is the first decision of any tribunalto interpret the provision of the 1982 United Nations Convention on theLaw of the Sea (Convention or UNCLOS) that allows states parties to exclude disputes concerning military activities from the Convention’s compulsory dispute settlement regime. That optional exclusion, embodied in Article 298(1)(b) of the Convention, was a central component of the strenuously-negotiated compromise between states that favored compulsory jurisdiction in principle and those that would have preferred a strictly optional system for third-party legal dispute settlement. Its availability has beencritical in enabling certain states to ratify the Convention and would be an indispensable condition of eventual U.S. ratification. For these reasons, the Award’s treatment of the military activities exception transcends the South China Sea dispute.
The disagreements among states bordering the South China Sea pose extraordinarily complex legal issues. Sovereignty over small islands that lie at some distance from the continental and insular coasts that surround the sea is contested. So are the maritime entitlements generated by these features. Notably, rocks that cannot sustain human habitation or economic life of their own generate no entitlement to an exclusive economic zone (EEZ) and continental shelf beyond a twelve-mile territorial sea, which may be the case for many of the disputed islands. Yet another series of questions relates to the delimitation of overlapping maritime entitlements, including the relative effect to be accorded entitlements generated by these small islands vis-à-vis those generated by the continental and insular coasts that surround the South China Sea.
At the time the United States withdrew from participation in the Nicaragua case at the International Court of Justice, the US government expressed concern that ‘the course on which the Court may now be embarked could do enormous harm to it as an institution and to the cause of international law’. This essay examines whether or to what extent the anticipated negative effects came to pass. It concludes that dire predictions of harm to the Court were overstated. Twenty-five years later, the rate at which states accept the Court's jurisdiction has held steady. Only a few states have added jurisdictional reservations concerning military activities. The mix of cases being brought to the Court has shifted towards a more representative distribution. States are generally complying with the Court's decisions, though some compliance problems remain. The most serious negative impact has been on the willingness of the United States (still the Court's most active litigant) to participate fully in international dispute settlement.