《联合国海洋法公约》项下法庭与仲裁庭属事管辖权的扩张

Expansion of the Subject-Matter Jurisdiction of Tribunals under the United Nations Convention on the Law of the Sea

《联合国海洋法公约》第十五部分确立的争端解决机制为公约项下法庭或仲裁庭的管辖权设立了属事管辖权限制,只有与公约解释和适用有关的争端才能触发相应的程序。然而,属事管辖权扩张已成为实践中的突出问题,这表现在法庭或仲裁庭管辖了与公约无关或者关联度不足以触发公约争端解决机制的争端,或适用了与公约无关的外部规范来裁判争端。概括而言,公约项下法庭或仲裁庭采取了跨越属事管辖权障碍的不同路径:第一,降低建立争端与《海洋法公约》关联度的标准;第二,当缔约国之间的争端具有多面性或存在多个争端时,重塑争端或拆解争端的不同面向从而管辖与公约无关的外部事项;第三,不当解释公约条款以引入和适用外部规范裁判争端。为应对属事管辖权扩张趋势,应强化公约项下法庭或仲裁庭实践的统一性并纠正结构性偏见。

Part XV of the United Nations Convention on the Law of the Sea(UNCLOS)concerning dispute settlement mechanisms sets limits on the subject-matter jurisdiction of the tribunals established under the Convention,namely,only disputes concerning the interpretation or application of the Convention may be submitted to the relevant compulsory procedures.However,the tendency of the tribunals established under the Convention to expand the scope of the subject-matter jurisdiction has become an acute problem in the practices of the UNCLOS tribunals.The manifestation of this problem is that UNCLOS tribunals exercise jurisdiction over disputes which are not related to the Convention or have no sufficient connection with the Convention to trigger the compulsory procedures,or alternatively,apply extraneous rules outside the Convention to decide disputes.The analysis of this article demonstrates that UNCLOS tribunals have adopted various approaches and employed a range of legal techniques in their long-term practices to expand the subject-matter jurisdiction.First,they have lowered the standard on the establishment of the linkage between the dispute and the Convention,thus extending the jurisdiction over disputes that are not related to the Convention.Second,where a dispute has multiple aspects or where there exist multiple disputes,they either attempt to recharacterize or even reformulate the dispute(s),or separate the various aspects of the dispute(s),resulting in the extension of their jurisdiction over extraneous matters that are not related to the Convention.Third,they have applied relaxed interpretative techniques to the provisions of the Convention in order to incorporate and apply extraneous rules to decide disputes,inappropriately broadening the substantive scope of the applicable law.The practices of UNCLOS tribunals of extending the scope of the subject-matter jurisdiction not only go beyond the boundary of State consent but also undermine the substantive limitations on the acceptance by States parties of the compulsory procedures of UNCLOS.In consequence,they have departed from the fundamental presumption held by the States parties about the limited jurisdiction of the dispute settlement mechanism under the Convention.To solve this problem and avoid the legitimacy crisis of the dispute settlement mechanism under the Convention,UNCLOS tribunals should strive for consistency in their practices by employing the criterion of“sufficient link”as a general standard of establishing the subject-matter jurisdiction,and refraining from adopting subjective standards such as the criterion of“relative weight”.Meanwhile,States parties should also strengthen external control over the composition and the procedures of UNCLOS tribunals by exploring the potentials of the existing treaty provisions and mechanisms,with a view to reversing the structural bias rooted in the practices of UNCLOS tribunals.