Research On Jurisdiction Of Arbitral Tribunal Over Maritime Disputes Under United Nations Convention On The Law Of The Sea

United Nations Convention on the Law of the Sea(hereinafter “UNCLOS”) is no doubt one of the great achievements during the development of international law. UNCLOS established a set of legal rules on the sea within the world and globally regulates international maritime order by virtue of its status as the constitutional document in the area of maritime law. In order to promote the effective resolution of maritime disputes, UNCLOS designed a compulsory dispute settlement system on the basis of sufficiently respect the free will of contracting parties. Within the system, four compulsory procedures are provided to resolve disputes, one of which is the arbitral tribunal established in accordance with Annex VII of UNCLOS, while the jurisdiction of the arbitral tribunal is rightly the study object of this thesis.As an impartial and flexible legal means, arbitration has played an important role in international dispute settlement for a long time. UNCLOS not only lists arbitration as one of the compulsory procedures for dispute settlement, more essentially, it sets arbitration as the last defense within its compulsory dispute settlement system. Contracting parties to UNCLOS are not allowed to arbitrarily exclude the compulsory jurisdiction of arbitral tribunal, unless for the limitations and exceptions regulated by UNCLOS. Accordingly, it seems straightforward that the arbitral tribunal holds a key position within the compulsory system.China is a contracting party to UNCLOS and also involved in multiple maritime disputes. Although China consistently insist peaceful negotiation as the means of international dispute resolution, it is still subject to the dispute resolution system of UNCLOS and situates in a negative position where China may be faced with compulsory arbitration at any time, due to the pactasuntservanda principle.The ongoing South China Sea arbitration is exactly the result of application of the compulsory dispute settlement system by Philippines. Thus, China should attach importance to the study on the jurisdiction of arbitral tribunal under UNCLOS and to the formulation of responding strategy. Particularly, China should fully understand and take use of the limitations on arbitral tribunal’s jurisdiction, to ensure its maritime rights be maximally maintained under the structure of UNCLOS.The body of this thesis includes four chapters, all surrounding the core herein, i.e. the jurisdiction of the arbitral tribunal, and digging deeper step by step.The first chapter is the overview of the thesis. Its main content is the conceptual and characteristic definition and introduction to arbitral tribunal and its jurisdiction. “Arbitral tribunal” is defined in the thesis as a non-permanent dispute settlement institutionestablished according to Annex VII of UNCLOS exercising compulsory jurisdiction over maritime disputes. Compared with other international dispute settlement means such as International Court of Justice and International Tribunal for the Law of the Sea, arbitral tribunal herein possesses non-permanent and flexible nature. Correspondingly, “jurisdiction of arbitral tribunal” herein is defined as the authority of the arbitral tribunal as the compulsory dispute settlement means under UNCLOS to bindingly hear and judge disputes based on parties consent. Particularly, the jurisdiction is compulsory while subject to party autonomy, and is also the last defense of the compulsory dispute settlement system under UNCLOS.The second chapter “Basis and scope of jurisdiction” is the core of the thesis. Firstly it analyzes the jurisdiction of the arbitral tribunal from aspects of its legal basis, jurisprudential basis and direct source, in which, UNCLOS undoubtedly is the legal basis, the principle of State agreement and pactasuntservanda provide the jurisprudential basis, while specified to cases, the direct sources include express choice, imply choice and inconsistent choice by the parties to a dispute. Then the thesis goes into introduction to the scope of the jurisdiction from aspects of ratione personae, rationemateriaeand restriction. To sum up, the tribunal has jurisdiction on contracting States, international organizations, self-governing associated States, self-governing territories and other relevant entities over disputes arising from the interpretation and application of UNCLOS and other treaties if specific conditions are satisfied. Additionally, the tribunal is authorized to judge the objection to jurisdiction.Whereas, UNCLOS on the other hand sets restrictions and exceptions for the tribunal’s jurisdiction scope, wherein disputes regard to marine scientific research and fisheries are mandatorily excluded, and disputes regard to sea boundary delimitation, military activities and be processed by the Security Council could be excluded by State party’s declaration. At last the thesis analyzes the condition on the performance of jurisdiction, which includes the obligation of exchange of views, restriction by agreement, exhaustion of local remedies, etc.The third chapter is case study. In this chapter, three typical cases-- i.e. the Southern Bluefin Tuna Case,the Barbados v. The Republic of Trinidad and Tobago case, the MOX Plant Case--heard by arbitral tribunals under UNCLOS are chosen to explicitly demonstrate the jurisdiction issues within the cases from the aspects of case background, views of the parties, views of the tribunal and comments on the case, in which way the application of UNCLOS in practice and the argumentations by which the tribunal finally affirms or rejects its jurisdiction are clearly revealed.The fourth chapter “Response and analysis on the countermeasures to jurisdiction of the tribunal” is the foothold of the whole thesis and reflects the value of this study. The first segment introduces PRC position towards the jurisdiction of the tribunal and comes to a conclusion that while China does not positively choose the arbitral tribunal as acceptable dispute resolution means and maximally excludes its compulsory jurisdiction within permitted scope, the tribunal still have jurisdiction on China, but it is the result of UNCLOS requirement rather than the free will of China. Such position represents the insistence of consistent conservative and prudent attitude PRC holds towards legal means in international dispute settlement. Based on this, the second segment analyzes the importance for China to envisage the tribunal’s jurisdiction from both necessity aspect due to its compulsory nature and reasonability aspect due to its feasibility and maritime practice. The third segment provides the suggestion of maintaining State interest with UNCLOS as a weapon through analysis of PRC position, to be specific, China should take use of arbitral rules to sufficiently exercise rights under UNCLOS and meanwhile positively resort to arbitration herein at due time for self-protection. At last, against the on-going South China Sea arbitration, the thesis generalizes the jurisdiction issue in the case from legal perspective especially focusing on the matters that may be adverse to China. Based on this, the thesis affirms the “not accept” position China takes and raises further coping suggestions on the arbitration.The Conclusion part is a summary to this thesis.