The Legal Regime of Islands after the <i>South China Sea</i> Award—Orphaned or Influential? An Essay in Honor of Ted L. McDorman
Clive Schofield, David Freestone
Abstract
In 2017, in the aftermath of the Tribunal’s Award in the South China Sea Arbitration, Ted McDorman pondered whether the Tribunal’s finding—particularly on the legal regime of islands, which he termed “missionary work”—would stand the test of time and be recognized by judicial and state practice. This article sets out to consider the impact which that Award has had in practice. After reviewing some of the key details of the Tribunal’s findings on the legal regime of islands, it explores the reception it has received in academic circles and, while there has not yet been any judicial consideration of its findings, it looks at the influence of the Award on the submissions to the Commission on the Limits of the Continental Shelf (CLCS). The majority of South China Sea states—except China—have relied on its analysis of the status of the features of the South China Sea, while extraregional states have also tended to support the Tribunal’s ruling.