菲律宾南海仲裁案裁决程序问题评析

Procedural Issues in the Awards of South China Sea Arbitration

《联合国海洋法公约》确立了当事方自愿选择程序优先与第三方强制程序补充的双层争端解决框架,包括附件七仲裁在内的强制程序要确立其管辖权,必须以《公约》的解释或适用的争端为属事管辖范围,以优先适用当事方自愿选择程序为前提,并以不存在法定排除、当事方声明排除两类排除强制程序的情况为限。南海仲裁案仲裁庭违反了属事管辖原则,错误地定性和认定菲律宾所提诉求构成中菲两国有关《公约》解释或适用的争端,并对《公约》之外由一般国际法所规范的在本质上属于南海岛礁领土主权问题、中国在南海的历史性权利的争端以及南沙群岛作为大陆国家远海群岛的法律地位的争端,错误地行使了管辖权。同时,仲裁庭违反了优先适用当事方自愿选择程序原则,错误解释了《公约》第281条关于协议选择争端解决办法与第283条关于就争端解决办法履行交换意见义务的条款,侵犯了中国依据协议选择通过谈判协商解决争端的权利,错误裁定了菲律宾就仲裁事项所涉争端的解决方式与中国履行了"交换意见"的义务。此外,仲裁庭违反了《公约》第297条法定排除和第298条当事方声明排除强制程序的规则,错误否定中国在南海相关海域的活动属于沿海国在其专属经济区内行使渔业权利等主权权利的事实,错误解释了关于海域划界的争端和涉及历史性所有权争端的条款,错误地对已被中国排除适用强制程序的事项行使了管辖权。

The United Nations Convention on the Law of the Sea( UNCLOS) establishes a two-tier system for dispute settlement,with voluntary procedures of the parties' own choice as the priority and third-party compulsory procedures as the complementary. The jurisdiction of compulsory procedures including arbitral procedures under Annex VII is limited in three aspects,namely the jurisdiction ratione matriae over disputes concerning the interpretation and application of the UNCLOS,the prioritization of voluntary procedures of the parties' ow n choice,and the absence of automatic limitations and optional exceptions to the application of compulsory procedures. In the South China Sea Arbitration,the Tribunal acted ultra vires beyond its jurisdiction ratione matriae,erroneously characterized the claims made by the Philippines as constituting disputes betw een China and the Philippines concerning the interpretation and application of the UNCLOS,and erroneously exercised jurisdiction over subject-matters regulated by general international law and beyond the purview of the UNCLOS,such as disputes which in essence concern territorial sovereignty over maritime features and China's historic rights in the South China Sea,and disputes over the legal status of the Nansha Islands as an outlaying archipelago of coastal State. In addition,the Tribunal violated the principle of prioritizing voluntary procedures of the parties' ow n choice,misinterpreted Article 281 of the UNCLOS regarding the agreement on the choice of dispute settlement procedures and Article 283 regarding the obligation to exchange views on means of dispute settlement. The Tribunal infringed upon China's right to resort to negotiations as agreed upon in the settlement of disputes,and erroneously decided that the Philippines had fulfilled its obligation to exchange view s with China regarding the means of dispute settlement with respect to the claims it made. Furthermore,the Tribunal erred in its application of Articles 297 and 298 of the UNCLOS regarding automatic limitations and optional exceptions to the application of compulsory procedures. Consequently,it erroneously denied the fact that the activities of China in the relevant waters of the South China Sea are the exercise of sovereign rights and jurisdiction including fishing rights,as the coastal State,in its exclusive economic zone,misinterpreted provisions of the UNCLOS on disputes concerning maritime delimitation and those involving historic titles,and erred in exercising jurisdiction over subject-matters that have been excluded by China from compulsory procedures.