从《联合国海洋法公约》第283条“交换意见的义务”看“南海仲裁案”管辖权裁决的违法性被引量：1

Why the Award on Jurisdiction and Admissibility of the South China Sea Arbitration Is Null and Void？ - Taking Article 283 of the UNCLOS as an Example

下载PDF

导出

摘要菲律宾“南海仲裁案”仲裁庭2015年10月作出了《管辖权和可受理性问题裁决》（以下简称“管辖权裁决”），其中有关《联合国海洋法公约》第283条规定之“交换意见的义务”论证，存在严重缺陷。首先，用来证明履行交换意见的义务的事实不属于第283条所指“交换意见”；其次，仲裁庭割裂了交换意见的义务与谈判义务之间的有机联系，从而使“交换意见的义务”本身毫无意义，有悖《联合国海洋法公约》的目的。仲裁庭没有有效地确立自身的管辖权，因而其管辖权裁决完全错误。基于无效“管辖权裁决”作出的实体裁决，也将无效。 The Arbitral Tribunal of the South China Sea Arbitration, which was initiated unilaterally by the Philippines, declared its one-sided arguments in the Award on Jurisdiction and Admissibility （hereinafter ＂Award＂） released on 29 October 2015. The Award failed to make a proper reasoning on Article 283 （＂the obligation to exchange views＂） of the United Nations Convention on the Law of the Sea （UNCLOS）. First of all, the facts provided to prove the fulfillment of the obligation to exchange views don＇t belong to the category of ＂views exchanging＂. Further, the Tribunal cuts off the relations between the obligation to exchange views and the obligation to negotiate; as a result, the former obligation becomes meaningless, which is contrary to the purpose of the UNCLOS. Accordingly, the Tribunal failed to effectively establish its jurisdiction over the case; and the decisions in the Award are erroneous. The final Award, which is founded on this Award, consequently will be also null and void.

作者余敏友谢琼李敬昌 YU Minyou XIE Qiong

机构地区汉大学中国边界与海洋研究院中央党校国际战略研究院不详

出处《中国海洋法学评论（中英文版）》 2017年第1期34-60,共27页 China Oceans Law Review

关键词《联合国海洋法公约》交换意见的义务 “南海仲裁案” UNCLOS Obligation to exchange views South China Sea Arbitration

分类号 P [天文地球]

引文网络
相关文献

参考文献1

1刘衡.论确立海洋争端强制仲裁管辖权的法律要件——以《联合国海洋法公约》附件七仲裁为视角[J].中国海洋法学评论（中英文版）,2015,0(1):1-63. 被引量：2

二级参考文献92

1See the seventeen arbitration cases instituted under Annex VII to the UNCLOS in the Schedule at the end of the text. The other one case is a compulsory arbitration instituted in accordance with the Convention for the Protection of the Marine Environment of the North- East Atlantic.
2The word "compulsory" is mentioned herein in a procedural sense. Substantially, the parties to a dispute remain free. Nevertheless, the fact that the procedure is instituted unilaterally by a party has radically changed the legal nature of arbitration, since the arbitration receives its name due to the agreement reached by the parties to institute such a procedure. This is the essential element distinguishing arbitration from judicial dispute settlement.
3See the information relating to the dispute on the websites of Permanent Court of Arbitra- tion, at http://www.pca-cpa.org/showpage.asp?pag_id= 1529, 31 December 2014.
4International organizations are allowed to access to the UNCLOS. And currently, the European Union is the only international organization which has accessed to the UNCLOS. "State parties" referred to herein generally mean all the parties to the UNCLOS.
5Article 291 of the UNCLOS (Access) provides that: 1. All the dispute settlement procedures specified in this Part shall be open to States Parties. 2. The dispute settlement procedures specified in this Part shall be open to entities other than States Parties only as specifically provided for in this Convention.
6In practice, this requirement is of little practical significance. A party to a dispute is unlikely to resort to the dispute settlement means which it or the other party is not entitled to adopt. However, this remains theoretically possible. This is one reason why the arbitral tribunal or the ITLOS should first state this aspect, though such statements only concern some well- known facts. Such statements become the point where the arbitral tribunal begins to satisfy itself that it has jurisdiction over a dispute or from which the ITLOS begins to demonstrate that the relevant arbitral tribunal has prima facie jurisdiction.
7Among them, four cases were decided by the arbitral tribunal (3outhern Btuefln luna tases, Arbitration between Barbados and the Republic of Trinidad and Tobago, Arbitration between Guyana and Suriname, and Bay of Bengal Maritime Boundary Arbitration (Bangladesh v. lndia)); four cases were terminated by agreement (The MOX Plant Case, Case concerning Land Reclamation, The "'ARA Libertad" Arbitration, and Atlanto- Scandian Herring Arbitration); five cases were transferred to the ITLOS (The M/V "SAIGA "Case, Swordfish Case, Bay of Bengal Maritime Boundary Arbitration (Bangladesh v. Myanmar), The M/V "'Virginia G'" Case, and Maritime Boundary Arbitration (Ghana v. C6te d'lvoire)).
8The two cases are the Bay of Bengal Maritime Boundary Arbitration (Bangladesh v. India) and the Atlanto-Scandian Herring Arbitration (the Kingdom of Denmark in respect of the Faroe Islands v. the European Union).
9Both the respondent China in the South China Sea Arbitration and the respondent Russian Federation in The Arctic Sunrise Arbitration refused to take part in the relevant arbitration. Both respondents contended that the relevant arbitral tribunal's lack of jurisdiction over the relevant dispute was the reason why they did not take part in the arbitrations.
10Southern Bluefin Tuna Cases (New Zealand v. Japan; Australia v. Japan), Request for Provisional Measures, Order, ITLOS, 27 August 1999, para. 42, at http://www.itlos.org/ fileadmin/itlos/documents/eases/case no 3 4/Order.27.08.99.E.pdf, 31 December 2014. [hereinafter "Southern Bluefin Tuna Cases, Order, ITLOS"].