为确立管辖权对“争端是否被解决”争端的判断——从“毛里求斯与马尔代夫海洋划界案”初步反对意见判决的思路谈起

To Determine the Dispute Concerning “Whether the Dispute Has Been Settled” to the Extent of Jurisdiction: From the Judgment on Preliminary Objections in the Mauritius/Maldives Case

国际海洋法法庭特别分庭就"毛里求斯与马尔代夫海洋划界案"作出初步反对意见判决。马尔代夫提出了五项初步反对意见,其关键在于英国与毛里求斯存在未决的关于查戈斯群岛的主权争端问题。特别分庭判断查戈斯群岛主权争端是否依然存在的逻辑是判断国际法院咨询意见及联合国大会决议是否已经解决了该争端。特别分庭在毛里求斯和英国对国际法院咨询意见与联合国大会决议的内涵及法律效果存在争端的情况下,通过判断咨询意见及联大决议的内涵和法律效果,认为查戈斯群岛的主权争端已经被解决,实质上涉及了它本没有管辖权的查戈斯群岛的法律地位问题。为确立其管辖权,特别分庭可以对咨询意见和联合国大会决议的内涵和法律效果作出解释,但行使这种权力应秉持审慎态度。国际性法庭或仲裁庭在处理类似问题时,应尽可能避免处理第三方权利问题以及实质处理本没有管辖权的主权问题。该案特别分庭在管辖权阶段考虑争议是否存在时,也不应对双方主张进行实质合法性评估。特别分庭的做法体现了司法能动主义的倾向,值得关注。

The Special Chamber delivered its judgment on preliminary objections from Maldives in the case Dispute concerning Delimitation of the Maritime Boundary between Mauritius and Maldives in the Indian Ocean(Mauritius/Maldives). Maldives contends that there is an uncharted dispute over the sovereignty of Chagos Islands. Maldives argues that it is the pre-requisite question of the Mauritius’ Application, which the Special Chamber does not have jurisdiction, and furthermore, the “Monetary Gold Principle” should be applied. The Special Chamber recognizes there is a dispute concerning the legal effect and meaning of the ICJ’s Advisory Opinion and related Resolution of General Assembly, and it determines the Advisory Opinion and related Resolution has the legal effect to define the legal status of the Chagos Islands, thus makes a conclusion that the sovereignty dispute has been settled. Even if the Special Chamber has correctly perceived the intended meaning and the legal effect of Advisory Opinion and related Resolution, there is still a problem on whether it is appropriate for the Special Chamber to deal with the dispute within the extent to determine the jurisdiction. When assessing the dispute concerning the legal effect of Advisory Opinion and related Resolution, the Special Chamber should be more prudent especially when it concerns the interests of the third party and the sovereignty dispute which it has no jurisdiction. In other case concerning there is a disagreement regarding the legal effect of legal instruments that addresses the rights to land territory, the Arbitral Tribunal ad hoc has avoided to determine the legal effect and meaning of that instrument. The approach and logic should be followed. Besides, even if the Advisory Opinion and related Resolutions has the legal implication as the Special Chamber indicates, at the stage of determine jurisdiction, the “plausibility test” of the claims should not be applied. The decision of the Special Chamber on UK’s claim “is merely an assertion” is not consistent with the international jurisprudence.