An Analysis Of The Initial Jurisdiction In The Dispute Settlement Of The South China Sea

In January2013, regardless of China’s objection, Philippines insisted to submit theSouth China Sea issue to international arbitration. As the disputes between China andits neighbours in the surrounding waters gradually intensifies, especially in the SouthChina Sea, the claimants are increasingly inclined to resort to internationaljurisdiction. How to deal with the judicialization of South China Sea disputes hasbecome a new issue for China.As embodied in The United Nations Convention on the Law of the Sea, prima faciejurisdiction is a prerequisite for international tribunals to prescribe provisionalmeasures. Prima facie jurisdictions, as a procedural jurisdiction, and substantivejurisdiction are mutually independent but cannot be separated. As we are confrontedwith the judicialization of maritime disputes, an in-depth study of prima faciejurisdiction is therefore of great importance.The paper starts with the concept and the characteristics of prima facie jurisdiction. Itthen explores several standards for international tribunals to consider beforeestablishing prima facie jurisdiction, and after that compares prima facie jurisdictionwith substantive jurisdiction. It next analyses the judicial practice of InternationalCourt of Justice, International Tribunal for the Law of the Sea and Arbitral Tribunalconcerning prima facie jurisdiction. Taking South China Sea Arbitration Case(Philippines v. China) as an example, the paper tries to give some reasonable adviceregarding how to respond to the judicialization of maritime disputes.Final conclusion: first, generally speaking, the International Tribunal of Justice takesprima facie jurisdiction as a precondition for provisional measures. However, basedon the so-called "urgency", the tribunal may prescribe provisional measures without aglance at substantive jurisdiction. The tribunal then determines whether thecourt has substantive jurisdiction when the case goes into the stage of substantive examination, thus validating or overthrowing the prima facie jurisdictionpreviously established. Second, in the South China Sea Arbitration (Philippines v.China), Arbitral Tribunal will not possibly prescribe provisional measures with anobvious lack of jurisdiction; however we cannot completely rule out the possibilitythat based on urgency, Arbitral Tribunal prescribes provisional measures to requireboth sides to maintain the status quo. Third, under the background of judicializationof South China Sea disputes, a defense of jurisdiction will be highlighted. Accordingto the theory of prima facie jurisdiction, even a prescription of provisional measuresdoes not necessarily prevent a defense of substantive jurisdiction.