Research On "Optional Exception "In Article 298 Of The United Nations Convention On The Law Of The Sea

The "optional exception" in Article 298 of the United Nations Convention on the Law of the Sea is a great achievement of the 3rd United Nations Conference on the Law of the Sea and has had a great impact on the compulsory dispute settlement mechanism.This paper focuses on the theoretical and practical study of the clause,which is divided into four parts except the introduction and conclusion,and discusses its nature,connotation,function and practical effect,and gives evaluation.With the theoretical study of "optional exception",it is different in nature from reservations to treaties,and it's a specific enabling regime of the Convention.The provisions contain two aspects,paragraph 1,which sets out the types of disputes that exclude the application of section ? of the mandatory procedure,and from paragraph 2 to Paragraph 6 is the provision of the procedure.From the content of the articles and the analysis of applicable logic,we can conclude that the optional exception plays an important role in theory:it is an important part of the compulsory dispute settlement mechanism in part XV of the Convention.It also become a "safety valve" to balance national maritime rights and interests and ensuring the integrity of the Convention's "package" agreement.However,the practice is not optimistic.I collated the contracting situation of the optional exception clauses and the citation of cases:up to now,there are 36 states parties have made different statements,including China,which is not very high.Similarly,in cases heard by the International Court of Justice,the United Nations Tribunal for the Law of the Sea and international arbitral tribunals,this provision is not invoked at a high rate.This paper focuses on two very similar cases:the Polar Dawn case between Russia and the Netherlands and the South China Sea Arbitration case between China and the Philippines,and analyzes the interpretation method and attitude of the arbitration tribunal regarding the invocation of article 298 "optional exceptions" by state.It is concluded that the arbitration tribunal does not have a consistent standard of interpretation in applying this clause and fails to fully respect the sovereignty of the State and the spirit of the Convention.Especially in the South China Sea arbitration case,China made a declaration under Article 298 in 2006 that excluding compulsory arbitration unilaterally initiated by the Philippines was a manifestation of the correct exercise of rights.The 15 claims made by the Philippines are essentially divided into three categories:those relating to "historic rights" and "defining the nature of islands and reefs",which are essentially issues of maritime delimitation and sovereignty,The compulsory arbitration procedure should be excluded from the 2006 declaration of our country.However,the unreasonably restrictive interpretation of the arbitration tribunal in the South China Sea Arbitration case is contrary to the original intention of the Convention.It damages China's sovereign interests.In a word,the article 298 "optional exception" has great limitations in application,the theoretical significance and practical effect are far from each other,and there is a lack of uniform interpretation and applicable standards.Therefore,our country should take advantage of the opportunity of the South China Sea arbitration case,constantly speak out,strengthen the theoretical research and guide and promote the perfection of the international law of the sea rules.