菲律宾南海仲裁案裁决程序问题评析

发布时间：2018-03-31 12:14

本文选题：《联合国海洋法公约》　切入点：南海仲裁案　出处：《吉林大学社会科学学报》2017年02期

【摘要】：《联合国海洋法公约》确立了当事方自愿选择程序优先与第三方强制程序补充的双层争端解决框架,包括附件七仲裁在内的强制程序要确立其管辖权,必须以《公约》的解释或适用的争端为属事管辖范围,以优先适用当事方自愿选择程序为前提,并以不存在法定排除、当事方声明排除两类排除强制程序的情况为限。南海仲裁案仲裁庭违反了属事管辖原则,错误地定性和认定菲律宾所提诉求构成中菲两国有关《公约》解释或适用的争端,并对《公约》之外由一般国际法所规范的在本质上属于南海岛礁领土主权问题、中国在南海的历史性权利的争端以及南沙群岛作为大陆国家远海群岛的法律地位的争端,错误地行使了管辖权。同时,仲裁庭违反了优先适用当事方自愿选择程序原则,错误解释了《公约》第281条关于协议选择争端解决办法与第283条关于就争端解决办法履行交换意见义务的条款,侵犯了中国依据协议选择通过谈判协商解决争端的权利,错误裁定了菲律宾就仲裁事项所涉争端的解决方式与中国履行了“交换意见”的义务。此外,仲裁庭违反了《公约》第297条法定排除和第298条当事方声明排除强制程序的规则,错误否定中国在南海相关海域的活动属于沿海国在其专属经济区内行使渔业权利等主权权利的事实,错误解释了关于海域划界的争端和涉及历史性所有权争端的条款,错误地对已被中国排除适用强制程序的事项行使了管辖权。
[Abstract]:The United Nations Convention on the Law of the Sea establishes a two-tier framework for dispute settlement that is supplemented by the voluntary selection procedure of the parties with third-party compulsory proceedings, including annex VII arbitration, which establishes its jurisdiction, Subject to the dispute concerning the interpretation or application of the Convention ratione materiae, subject to the preferential application of the procedure for the voluntary choice of the parties and to the absence of a statutory exclusion, The parties declare that the exclusion of two types of exclusionary compulsory proceedings is limited. The arbitration tribunal in the South China Sea arbitration case violated the principle of jurisdiction ratione materiae by wrongly characterizing and finding that the claims made by the Philippines constituted a dispute between the two countries concerning the interpretation or application of the Convention, And the dispute over territorial sovereignty over islands and reefs in the South China Sea, the historic rights of China in the South China Sea, and the legal status of the Nansha Islands as distant islands of the mainland, which are governed by general international law outside the Convention, Has wrongly exercised jurisdiction... at the same time, the arbitral tribunal has violated the principle of preferential application of the procedure of the voluntary choice of the parties, Misinterpreting the provisions of article 281 of the Convention on the choice of dispute settlement by agreement and article 283 on the fulfilment of the obligation to exchange views on dispute settlement, in violation of China's right to choose to settle disputes through negotiation and consultation on the basis of agreement, Having wrongly ruled that the Philippines had fulfilled its obligation to "exchange views" with China on the manner in which disputes relating to arbitration matters had been settled... in addition, the arbitral tribunal violated the rules of article 297 of the Convention on statutory exclusions and article 298 of the declaration of exclusion of compulsory proceedings, Wrongly negating the fact that China's activities in the relevant areas of the South China Sea belong to the sovereign rights of the coastal State in its exclusive economic zone, such as fishing rights, and misinterpreting the provisions concerning disputes over the delimitation of maritime areas and disputes relating to historical ownership, Wrongly exercised jurisdiction over matters that had been excluded by China from the application of the mandatory procedure.
【作者单位】：中华人民共和国外交部条法司;

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