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Study On The Annex ? Arbitration Under The United Nations Convention On The Law Of The Sea

Posted on:2017-03-26Degree:DoctorType:Dissertation
Country:ChinaCandidate:Q XieFull Text:PDF
GTID:1316330485965995Subject:Law, international law
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As a type of compulsory arbitration, the arbitration under the Annex VII of the United Nations Convention on the Law of the Sea ("UNCLOS"or "the Convention"), has been utilized more and more frequently since the entry into force of the Convention, playing a more important role in the peaceful settlement of the international maritime disputes. The South China Sea Arbitration ("SCS Arbitration") marks the first case that the maritime disputes between China and its neighboring countries were submitted to an international tribunal, thus bringing much more concerns. The thesis specially analyzes the most important compulsory arbitration clauses of the Convention, the Annex VII Arbitration, and its applicability over China's maritime disputes concerned.Apart from the Introduction and the Conclusion, the main body of the thesis consists of four chapters:The Introduction part briefly introduces the background, the theoretical and practical meaning of the subject; comments on the related literature, including the status and trend of the research on the subject internal and external; and illustrates the purpose, structure and methods of the research.The first Chapter observes the fundamental situation, the history and the new tendency of the international arbitration over maritime disputes in general. Since the entry into force of the UNCLOS, arbitration becomes being an important choice of solving maritime disputes by the international community again, among that, the compulsory arbitration grows into a main instrument. The compulsory arbitration clauses, especially the Annex VII arbitration is the basic cause of this new trend. The arbitration of Annex VII or Annex VIII under UNCLOS is the development of the international arbitration regime of the maritime disputes, as well as innovations of the compulsory arbitration itself. The Chapter then focuses discussions on the rules and practices of the Annex VII Arbitration of UNCLOS, by exploring not only the genesis of the Annex ? arbitration clauses, the main procedures, but also the brief comments of the regime.Annex VII arbitration is one of the four instruments with equal status that can be chosen by the state party to the Convention. If the state parties to a dispute have chosen different instruments, the Annex VII arbitration will be applied automatically, which serves as the only residual instrument to settle the disputes concerning the applicability or interpretation of the Convention. As a result, Annex VII arbitration enjoys preferential status in the dispute settlement mechanisms of UNCLOS.Jurisdiction of the Annex VII arbitral tribunal consists of three aspects, personal jurisdiction, subject-matter jurisdiction, and temporal jurisdiction, among which, the subject matter jurisdiction is most complicated. In the arbitration proceedings, the Annex VII arbitral tribunal decides its jurisdiction on its own; in the case of interim measures filed to the International Tribunal on the Law of the Sea ("ITLOS" or "the Tribunal") relating to the Annex VII arbitration cases, the Tribunal made a preliminary jurisdiction of the Annex VII tribunal. Typically, the objection to the jurisdiction only rests upon the arbitral tribunal, and whether the objection to the jurisdiction as a matter of preliminary issues also conferred upon the arbitral tribunal. This allows the tribunal more obvious advantages in dealing with the objections to jurisdiction, while enabling the parties to the dispute more difficult to object its jurisdiction. In any case, "the tribunal must decide the jurisdiction definitely by itself", if one party does not accept, or participate in the proceeding, the arbitral tribunal must take the responsibility to "identify the claim being founded in facts and in law"In Part XV of the Convention, there are several articles being greater relevance to the Annex VII arbitration in practice, Article 288, Article 283, Article 298, while Article 295 has never been used. Through the analysis of these provisions, it is found that the practice of the Tribunal or arbitral tribunal, is not always consistent with the rule of law of the Annex VII arbitration, and differences exists from case to case. This inconsistencies exists not only in different Annex VII arbitration related cases of provisional measures the Tribunal dealing with, but also in different cases of the arbitration tribunals, and in the practices of the Tribunal and the arbitral tribunal respectively.The Chapter four explores the relations of the Annex VII arbitration clauses under the Convention with the disputes in the South China Sea concerned with China. In a brief review of the related countries'in the South China Sea region and China's basic attitudes to the dispute settlement mechanism of the Convention, and based on the previously mentioned clauses of the compulsory arbitration clauses under the Convention, particularly applicable conditions of the Annex VII arbitration, this chapter analyzes the possibility to solve the South China Sea disputes through compulsory arbitration, and makes a special study to the SCS Arbitration.China's ratification of the Convention means its generally acceptance of the dispute settlement mechanisms under the Convention, including compulsory arbitration clauses. China made a Declaration of Article 298 in 2006 to exclude only limited maritime issues with its neighboring countries. On the other, the neighboring countries around the South China Sea shows increasing interest to submit the sovereignty and maritime disputes to international arbitration or litigation, under which circumstances, China is quite possible to be involved in Annex VII arbitration again due to the potential implications of maritime disputes. Philippines'unilaterally initiation and promotion of the SCS Arbitration case have confirmed mis possibility. If the final award will be in favor of the Philippines, China is very likely to face more compulsory arbitration cases, even compulsory conciliation cases related. The Award of Jurisdiction and Admissibility made by the SCS Arbitration tribunal in October 2015 showed a clear tendency, not only might make the decision invalid, but also undermine the credibility of the tribunal itself and prevent good operation of the dispute settlement mechanism of the Convention.In the merit proceeding, the tribunal faced an even greater challenge to determine the facts of the case. The evidence is decisive during the process. In any case, the arbitral tribunal must not only "identify the jurisdiction, but also prove the claim founded in facts and law". This will mark the validity and effectiveness of an arbitral award. The current international legal practice shows that the non appearing responding party does not always implement the relevant awards or judgments. The UNCLOS encourages the parties to the dispute to resolve their disputes by agreement at any time, thus to terminate the proceedings. Even by subsequent agreement to exclude the validness of relevant award.Concluding section summarizes the main ideas, rules and practice of the Annex VII compulsory arbitration system based on overall comments, and presents personal opinions on the reform of the Annex VII arbitration system.
Keywords/Search Tags:UNCLOS, compulsory arbitration, Annex ? arbitration, the South China Sea Arbitration, maritime disputes settlement
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