The Award on the Merits in the South China Sea Arbitration between the Philippines and China (Award) is the first decision of any tribunal to interpret the provision of the 1982 United Nations Convention on the Law 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 been critical 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.
On balance, the Award articulates a sound approach to the military activities exception, entailing valid legal criteria and objective factual determinations. Even in the procedural posture of nonappearance by the respondent, China, the Award gave the respondent the benefit of the exception in a “quintessentially military situation,” thereby alleviating concerns that an UNCLOS dispute settlement organ might intrude upon military activities excluded from its jurisdiction.
Dispute Resolution and Arbitration | Law | Law of the Sea
Lori F. Damrosch,
Military Activities in the UNCLOS Compulsory Dispute Settlement System: Implications of the South China Sea Arbitration for U.S. Ratification of UNCLOS,
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/3353