| As an important part of the Package Deal of the United Nations Convention on the Law of the Sea(hereinafter referred to as “the Convention” or UNCLOS),the Optional Exceptions to Applicability of Compulsory Procedures Entailing Binding Decisions(hereinafter referred to as Artcle 298),which located on an important balanced position in the compulsory dispute settlement mechanism,has been utilized more and more frequently by the contracting parties since the entry into force of the Convention,to exempt specific maritime distutes from the jurisdiction of Section 2 of the Dispute Settlement Mechanism of the Convention.In South China Sea Arbitration,it is also an important legal basis for China to against the jurisciction of the Annex VII Arbitral Tribunal.In the event that the jurisdiction of “compulsory procedures” under the Convention presents an expanding tendency,the “optional exception” clause under Article 298 will be a key point in the contracting parties' protection of the right of independent settlement of “sensitive” disputes in the practice of maritime dispute settlement.From the perspective of national interest,we could only define the legal effect of “optional exception” clause under Article 298 after clarifying its legal nature,thus opening up the legal and logistic path for its application so that we could realize maximized profit for our country in the future settlement of maritime disputes.The purpose of this thesis is to analyze the legal nature of Article 298 and to make clear its legal effects theoretically.Apart from the Introduction and Conclusion part,the main text of the thesis is consisted of five chapters:The Introduction part mainly introduces the basic situation of Article 298,including the theoretical and practical significance of the subject,the related research both at home and abroad,points out the direction of future research which needs to be foucused on,and then illustrates the purpose,structure and research methods of the thesis.The first chapter observes the drafting and discussion process of the Article 298 in the Law of the Sea Conference,analyzes the political characteristics of the Article 298,pointed out that the decision-making process at the Law of the Sea Conference and the adoption procedures of the Package Deal are the underlying causes of the political character of the Article 298,which,to a certain extent,has led to the fuzzy state of Article 298 on its legal nature.The second chapter observes Article 298 in the overall framework of the Convention,summarizes the connection between Article 298 and Part XV of the Convention.Of the three sections of Part XV,Section 1 is a precondition for the application of the Article 298,Section 2 is the specific subject to which Article 298 applies,Section 3 is the specific arrangements for Artlcle 298.Three subsections jointly constitute the overall framework of the dispute settlement mechanism of the Convention so as to maintain a “delicate balance” among the contracting parties.As an “exceptional space” allowing contracting states to exclude “compulsory jurisdiction” by making declarations,the “optional exception” clause under Article 298 is an important part of this “delicate balance”.The third chapter and the fourth chapter are the core chapters of the thesis,which explores the connotation of Article 298 from two aspects of legal nature and legal effect respectively.On the basis of systematically analyzing the theory of reservation of treaties,the third chapter clarifies that there are not existed the three kinds of “Prohibitions of Reservation” situations stipulated in Article 19 of the Vienna Convention on the Law of Treaties in the Convention.In conjunction with the wording of Article 309,the Convention does not prohibit reservations,but rather provides room for “reservations” or “exceptions”.As “an optional exception” applicable only to Section 2,Article 298 is consistent with the definition of “specified reservation” in the Guide to the Practice on Reservations to Treaties which describes as ——“expressly envisaged in the treaty to certain provisions of the treaty or to the treaty as a whole with respect to certain specific aspects”.The fourth chapter examines the legal effect of Article 298 in the following specific aspects: first,Article 298 preclude the application of Section 2 of the Convention which entailing binding decisions;and secondly,the declaration of Article 298 exempts specific maritime disputes from the jurisdiction of Section 2;thirdly,the excluding effect of Article 298 shall act on the “jurisdiction” clause in provision 4 of Article 288 at the same time.It is not necessary for contracting states to accept “court or tribunal” as the only organization for decision of jurisdiction for the settlement of specific maritime disputes within the scope of Article 298;fourthly,the “reservation” effect of the declaration of Article 298 gives the contracting Parties,under certain conditions,the right “not to comply with treaty obligations” provided by provisions of treaties,as clearly reflected in the Guide to the Practice on Reservations to Treaties – that “the author of a valid reservation is not required to comply with the provisions of the treaty without the benefit of its reservation.”The fifth chapter mainly discusses the issues related to Article 298 and South China Sea Arbitration,explores the existing disputes among countries around South China Sea and their different attitude to judicial arbitration of maritime disputes settlement,comprehensively sortes out the opinions of the South China Sea Arbitral Tribunal on the treatment of Article 298.By using the research conclusions above,this chapter further analyzes the actual effect of article 298 in the practice of the maritime disputes settlement.The conclusion section summarizes the main ideas of the thesis and provides an overall review of the legal nature and legal effects of Article 298,further emphasizes the realistic significance to reinforce the “reservation” nature of Article 298 of solving the maritime disputes,especially the dispute over the South China Sea. |
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