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Judicialization of the Sea: Bargaining in the Shadow of UNCLOS
American Journal of International Law  (IF3.091),  Pub Date : 2021-06-18, DOI: 10.1017/ajil.2021.26
Sara McLaughlin Mitchell, Andrew P. Owsiak

Based on a comprehensive empirical analysis of maritime disputes during the twentieth century, this Article argues that international courts cast a shadow that markedly changes bargaining by potential litigating states. In particular, the filing of optional declarations under Article 287 of UNCLOS increases states’ use of non-binding methods of dispute settlement, and the Article theorizes that this occurs because the declarations credibly threaten court involvement and provide more information about likely litigation outcomes. The Article's central finding is that states that file Article 287 declarations have fewer maritime claims, more peaceful negotiations, and less need for judicial dispute settlement.