A Study On The Preliminary Objection System Against The Compulsory Jurisdiction Of The International Marine Dispute Settlement

There are a total of more than 230 thousand words in this paper,except the introduction and conclusion part,there are six chapters.The issues of jurisdiction and admissibility of appeal is a prerequisite for the exercise of the functions of the international tribunals.Due to the fact that the State party has made a preliminary objection,the judicial practice of the International Court of Justice(hereinafter referred to as ICJ)for the first time deals with the issue of jurisdiction as a matter of prerequisite.And thereafter,preliminary objection becomes a counterplea system for the parties to oppose tribunals’ jurisdiction through the accumulation of a large number of practices.The regime was absorbed by the dispute settlement mechanism of the 1982 United Nations Convention on the Law of the Sea(hereinafter referred to as UNCLOS)and was further developed in the mechanism.This paper systematically discusses the validity of preliminary objection on the basis of the basic theory of preliminary objection system,taking the dispute settlement mechanism of UNCLOS as the background,and the preliminary objection reasons of compulsory jurisdiction of UNCLOS as the object of study.This paper also rethinks the prerequisite of jurisdiction of South China Sea Arbitration,sorts out and analyzes the misconducts and wrongfulness of the Jurisdiction and Admissibility Award of the Arbitral Tribunal.Chapter 1 Basic theory of preliminary objection.The first section of this chapter firstly studies the origin and institutionalization of preliminary objection system,finding that the system is based on the judicial practice of ICJ and is absorbed by the dispute settlement mechanism of the UNCLOS.Secondly illustrates the definition of preliminary objection.The second section systematically sorts out the the proposed process of preliminary objection through the study of the subject,time and way of the preliminary objection.Section three categorizes and illustrates the content of the preliminary objection,and focuses on the study of the prerequisites in the dispute settlement mechanism of UNCLOS which enable the exercise of compulsory jurisdiction.These elements constitute the main contents of preliminary objection system within the framework of UNCLOS.Section four examines how the tribunals deals with the preliminary objection proposed by the parties,including whether it will inevitably lead to the bifurcation of proceedings,the criteria,legal basis and the results that the tribunals deal with preliminary objections.Chapter 2 Preliminary objection against the source of jurisdiction.The basis for obtaining jurisdiction is "the parties agree" which is the logical starting point for court or trbunal’s judgment of jurisdiction.Therefore,the first section of chapter two firstly studies the manner that the parties express intention.Section two analyzes the basis for UNCLOS obtaining compulsory jurisdiction.Although the UNCLOS’s compulsory jurisdiction comes from the "general agreement" of the parties,the "optional exception" clause of UNCLOS has opened a window for such generalization.Thus,section three deals primarily with article 298 of the optional exceptions in UNCLOS.Since the dispute settlement mechanism of the UNCLOS is established in accordance with the principle of "parties’ consensual the priority",it would of course be permissible if the parties excluded the compulsory jurisdiction by way of consensuality.Therefore,section four focuses on the implementation of article 281 and article 282 of the UNCLOS on the exclusion of jurisdiction between the parties’ agreements.Section five analyzes the basis of the jurisdiction of the arbitral tribunal in the South China Sea Arbitration,and demonstrates the errors in the arbitral tribunal’s relevant award.Chapter 3 Preliminary objection against the jurisdiction object targets.An examination of the discretion of jurisdiction object is the first step in determining the scope of jurisdiction of the courts or tribunals.The first section of this chapter firstly studies the definition,existence and nature of disputes,which is a necessary step in the settlement of international disputes in international judicial practice.Section two defines "disputes concerning the interpretation or application of the Convention",distinguishes what is the "dispute concerning the interpretation of the Convention",what is the "dispute concerning the application of the Convention" and what criteria the court will take to "piercing the plaintiff s appeal veil" to find the real dispute and other issues.Section three further narrows the scope of application of compulsory jurisdiction.Although some of the disputes meet the requirements of the "dispute concerning the interpretation or application of the Convention",it is still not possible to enforce it,since article 297 of the UNCLOS clearly excludes those disputes.Section four finalizes the scope of the compulsory jurisdiction of the UNCLOS at the request of "non ultra petita rule",which is one of the basic rules of international justice.Section five,through the above argument,further studies and analyzes the existing problems in the arbitral tribunal’s review on the jurisdiction object in the South China Sea Arbitration.Chapter 4 Preliminary objection against the jurisdiction subject targets.After the review of the jurisdiction object,the tribunal needs to judge whether the both parties are the competent parties of the dispute.The first section of this chapter examines the preliminary objection concerning the qualifications of the parties in the judicial practice,and analyzes the criteria when the tribunal judges the competency of the parties.Section two specifically studies the "indispensable third party" that may be qualified by the parties,and analyzes the impact of the absence of the third party with that identity on the jurisdiction of the tribunal.Section three analyzes the subject competency in the South China Sea Arbitration,and expounds problems existing in the arbitration tribunal’s award.Chapter 5 Preliminary objection concerning the prepositional procedure.When accepting a dispute,the tribunal needs to determine whether the dispute has reached the extent where it must be resolved by a compulsory procedure.In this regard,the UNCLOS stipulates that the parties of the dispute should firstly fulfill the"obligation to exchange views" on matters of choosing which dispute settlement method.Therefore,the first section of this chapter examines the fulfillment and determination criteria of the "obligation to exchange views" under article 283 of the UNCLOS,so as to clarify the circumstances in which the obligation is fulfilled.Section two studies the validity of the "pre-negotiated" obligation in the context of the UNCLOS,which often occurs in the judicial practice of ICJ.Section three analyzes the p.ossibility of resistance to jurisdiction of "exhaustion of local remedies" within the framework of the UNCLOS.Section four analyzes the validity of some types of preliminary objection in the case of "exchange views","prior negotiation" and "exhaustion of local remedies"in the South China Sea Arbitration,and the problems in the arbitral tribunal’s award.Chapter 6 Preliminary objection concerning "the plaintiff’s abuse of legal rights".The appropriateness of the plaintiffs conduct is also a "prerequisite" issue that the court needs to judge.The Ad Hoc "preliminary proceeding" of the UNCLOS restraints the plaintiff’s procedural action.The first section analyzes the utility of the application of the "preliminary proceeding" of Article 294 of the UNCLOS to the jurisdiction from three points of view,respectively legislative intent,procedural features and preliminary objection reaons.Section two analyzes Article 300 of the general articles of the UNCLOS by comparing the distinction between the conditions of use of Article 294 and Article 300 and the effect of article 300 on the jurisdiction of the Tribunal.Section three analyzes the errors of the Arbitration Tribunal in determining whether the plaintiff has abused his legal rights in the South China Sea Arbitration.The compulsory jurisdiction in the dispute settlement mechanism of UNCLOS is in essence from the transfer of national sovereignty.And there are some premises that countries transfer sovereignty,which are the conditions that compulsory jurisdiction is able to be established.These conditions include the source of jurisdiction shall be legitimacy,the object objects of jurisdiction shall be justiciable,the subject objects of jurisdiction is eligible,the parties concerned have implemented in real earnest the"exchange of views" and other related prerequisite obligations,and the plaintiff is not misuse the law procedure.Only after meeting these conditions,compulsory jurisdiction is able to be established.These preconditions of established the jurisdiction of the UNCLOS have legal restriction to the prosecution,the defense and the judgement.For the plaintiff,article 49 of the Rules of the ICJ and article 54 of the Rules of the International Tribunal for the Law of the Sea require the plaintiff to "specify as far as possible the legal grounds upon which the jurisdiction of the Tribunal is said to be based",and "specify the precise nature of the claim",and "the facts and grounds on which the claim is based".The Rules of Procedure of the South China Sea Arbitration,also stipulates that "each party shall bear the burden of proof for its claim".The plaintiff put forward the claims to a referee institution must be considered that the institution has jurisdiction for its appeals.Therefore,proving the institution with jurisdiction is the liability of the plaintiff who does not need to state explicitly but is also not exempted from.For trial institution,even if the defendant did not put forward these objections,the tribunal also cannot waive for the review obligation of its own jurisdiction.The re view obligation of the tribunal over jurisdiction is from beginning to end,until before issuing an award.For the defendant,the precondition of establishment of jurisdiction is the legal basis of the preliminary objections.The defendant can use the inside or outside the tribunal to express the objections.The rules of international law,like the UNCLOS,also recognize the right of "non-appearance" of the parties.In the current judicial practice,the tribunal pays more attention to the substance but not the form on the adoption of preliminary objection.Thus,in many cases,despite the fact that the party’s preliminary objection is not submit according to formal procedure,the defense is also adopted by the tribunal as an effective objection against jurisdiction.In the South China Sea Arbitration,the arbitral tribunal is not prudent to complete the obligation of reviewing its jurisdiction.Law-making interpretation existing in its jurisdiction award is one of the examples of its abuse of rights,its objects of jurisdiction goes beyond "the scope of the plaintiff’s claiming matters" which is one of the unauthorized performance,and the award it rendered involves "the Nine-Dash Line"of the interests of the third parties which is one of examples of its jurisdiction expansion,which have determined that the final award is illegal and inefficient.