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Military Activities in the UNCLOS Compulsory Dispute Settlement System: Implications of the South China Sea Arbitration for U.S. Ratification of UNCLOS

  • Lori Fisler Damrosch (a1)

Extract

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.

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References

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1 The South China Sea Arbitration (Phil. v. China), PCA Case No. 2013-19, Award (July 12, 2016) [here in after Final Award].

2 United Nations Convention on the Law of the Sea, Dec. 10, 1982, 1833 UNTS 3.

3 A. O. Adede, Law of the Sea—The Integration of the System of Settlement of Disputes under the Draft Convention as a Whole, 72 AJIL 84 (1978).

4 Louis B. Sohn, U.S. Policy Toward the Settlement of Law of the Sea Disputes, 17 VA. J. Int’l L. 9 (1976); Statement by Expert Panel: U.S. Policy on the Settlement of Disputes in the Law of the Sea, 81 AJIL 438 (1987).

5 Bernard H. Oxman, The Third United Nations Conference on the Law of the Sea: The 1976 New York Sessions, 71 AJIL 247, 267-68 (1977).

6 Denmark’s declaration excludes Annex VII arbitration for any of the Article 298 categories of disputes, including military activi-ties, without excluding the ICJ or ITLOS. All declarations are available at United Nations Treaty Collection.

7 Nicaragua’s declaration accepts only the ICJ for Article 298 disputes.

8 Norway’s declaration is similar to that of Denmark.

9 The declarations of Cuba and Guinea-Bissau also refer to Article 298, but only by excluding ICJ jurisdiction. Uruguay has made a declaration under Article 298(1)(b), but only in respect of law enforcement rather than military activities.

10 ARA Libertad, (Arg. v. Ghana), ITLOS Case No. 20, Provisional Measures (Dec. 15, 2012).

11 On warships in the territorial sea, see declarations of Algeria, Argentina, Bangladesh, Cabo Verde, Chile, China, Croatia, Egypt, Iran, Malta, Montenegro, Oman, Romania, Sao Tome and Principe, Serbia, Sudan, Sweden, and Yemen.

On military exercises in the exclusive economic zone or on the continental shelf, compare the declarations of Brazil, Cabo Verde, India, Malaysia, Thailand, and Uruguay with the declarations of Germany, Italy, the Netherlands, Pakistan, and the United Kingdom.

On threat or use of force, see declarations of Brazil and Malaysia.

Additionally, several states, including Argentina, Bolivia, Morocco, and Vietnam, have referred in their declarations to past wars or conflicts still to be peacefully resolved.

12 On trends concerning ICJ compulsory jurisdiction and exclusion of disputes concerning military activities, see Lori Fisler Damrosch, The Impact of theNicaragua Case on the Court and Its Role: Harmful, Helpful, or In Between?, 25 Leiden J. Int’l L. 135, 138-39 (2012).

13 Scholarship on the military activities exception is likewise sparse. SeeMark Weston Janis, Dispute Settlement in the Law of the Sea Convention: The Military Activities Exception, 4 Ocean Devel. & Int’l L. J. 51 (1977).

14 Jurisdictional Immunities of the State (Ger. v. It.: Greece intervening), 2012 ICJ REP. 99, para. 78 (Feb. 3).

15 ARA Libertad (Arg. v. Ghana), ITLOS Case No. 20, Provisional Measures (Dec. 15, 2012).

16 Stefan Talmon, The South China Sea Arbitration: Is There a Case to Answer?, in The South China Sea Arbitration: A Chinese Perspective 15, 57-58 (Stefan Talmon & Bing Bing Jia eds., 2014).

17 Final Award, supra note 1, at para. 1027.

18 The South China Sea Arbitration (Phil. v. China), PCA Case No. 2013-19, Hearing on Merits, Day 3, at 84-90 (Nov. 26, 2015).

19 The South China Sea Arbitration (Phil. v. China), PCA Case No. 2013-19, Hearing on Merits, Day 4, at 101-106 (Nov. 30, 2015).

20 Final Award, supra note 1, at para. 1028.

21 Id. at para. 1028.

22 Id. at para. 1161.

23 Id. at para. 1158.

24 Id. at para. 1161.

25 On bipartisan efforts spanning many years to obtain advice and consent of the Senate, and the recommendation of the Senate Foreign Relations Committee in favor of ratification subject to conditions (including a self-judging understanding of a declaration invoking the military activities exception), see, e.g., Sean D. Murphy Senate Testimony Regarding U.S. Adherence to Law of the Sea Convention, 98 AJIL 173 (2004); Herbert J. Hansell et al., Former Legal Adviser’s Letter on Accession to the Law of the Sea Convention, 98 AJIL 307 (2004); John R. Crook, Administration Urges Senate Action on Law of the Sea Convention, 99 AJIL 498 (2005); John R. Crook, President Urges Senate Approval of the Law of the Sea Convention, 101 AJIL 650 (2007); John R. Crook, Law of the Sea Treaty Reported out of Committee; Timing and Prospects for Full Senate Action Unknown,102 AJIL 168 (2008); John R. Crook, Secretary of State Urges Multilateral Approach to China’s South China Sea Claims, 104 AJIL 664 (2010); John R. Crook, Senate Foreign Relations Committee Holds Hearings on the Law of the Sea Convention, 106 AJIL 659 (2012).

26 United Nations Convention on the Law of the Sea: Report to Accompany Treaty Doc. 103-39, Sen. Exec. Rpt. 108-10, 108th Cong., 2d Sess. 17 (Mar. 11, 2004).

27 Jack Goldsmith & Jeremy Rabkin, A Treaty the Senate Should Sink, Wash. Post (July 2, 2007) (arguing that the proposed self-judging understanding of the military activities exception “amounts to a ‘reservation’ disallowed by the treaty. International Tribunals would still have the last word on the validity of the U.S. condition and the resulting scope of permissible U.S. naval actions.” )

28 Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 642 (1952) (Jackson, J., concurring).

29 Final Award, supra note 1, at para. 1028.

30 Id. at para. 1161.

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