The Dispute Settlement Agreement Under UNCLOS Art.281 Which Precludes The Compulsory Procedure

Art.281 of UNLCOS provides that parties have the right to choose the method of dispute settlement through agreement,and this agreement may exclude compulsory procedure provided in UNCLOS.In addition,during the application of art.281,parties and dispute settlement body need to interpret other treaty.Due to the limitation of jurisdiction by UNLCOS,the judicial body under UNCLOS should pay attention to the effectivenessof other agreement while apply UNCLOS Art.281.First,we should ensure that there exists a legal dispute concerning the interpretation and application of UNLCOS,meanwhile,the situation that this dispute may also concerning other treaty.In order to settle this question,"single dispute theory”comes out in South Bluefin Tuna Case,which means that both CCSBT and UNCLOS can support claimant’s position.Different legal bases can’t change the essence of dispute.As regards to the legal binding of such agreement under Art.281,we should clarify its source.Actually,the effective consent between parties is binding.Jurisdiction comes from consent,and such consent is an agreement.ICJ never limit the method to express such consent,so do the drafter of UNCLOS.So there’s no reason to set de facto agreement and parallel treaty outside Art.281’s regard.De facto agreement means parties form an agreement by conducts and other document.The principle of Estoppel protects such reliance interest.Due to the legal effect of tacit agreement,de facto agreement meet the requirement of Art.281.Otherwise,parallel treaty contains the consent of parties to settle certain kinds of dispute in some aspects,anyway,parallel can be an agreement under Art.281.Furthermore,if the parties do have agreed to preclude the compulsory procedure under UNCLOS,any way they express such consent is allowable,including the implicit way.The tendency of explicit way to preclude binding procedure does not mean the implicit way is illegal.Among the reasons,the joint declaration and conducts of Philippines and China shows the consent to settle the dispute by negotiation.That consent can be proved by other documents.And,those documents and conducts show there special agreement to settle dispute by Treaty of Amity and Cooperation.Convention on Biological Diversity covers the dispute referred by Philippine,and it should be regarded as an agreement under Art.281-Besides,those tacit or expressive agreement preclude the binding methods in UNCLOS.