The Issue Of Mixed Disputes Concerning The Interpretation Or Application Of UNCLOS

The concept "mixed disputes" refer to disputes concerning the interpretation or application of UNCLOS,at the same time involving concurrent other issues,among which,maritime boundary disputes involving concurrent land sovereignty issues represent typical type.When International Court of Justice faced with mixed disputes,Judges usually find little difficulty in deciding jurisdiction because parties usually make an agreed submission of disputes,thus Judges have no need considering whether the disputes concern the interpretation or application of UNCLOS or not.In contrast,courts or tribunals under UNCLOS compulsory procedures determine jurisdiction of disputes,usually submitted by one party,first from the point of Article 288 of UNCLOS,which provides that "a court or tribunal referred to in article 287 shall have jurisdiction over any dispute concerning the interpretation or application of this Convention".Land sovereignty issues don’t concern the interpretation or application of this UNCLOS.But maritime disputes in mixed disputes does concern,or at least seemingly,the interpretation or application of this UNCLOS,then do mixed disputes.Then,two critical issues follow.Firstly,whether courts or tribunals under compulsory procedures have jurisdiction to decide "mixed disputes" in a whole?Secondly,whether maritime disputes in mixed disputes which concern the interpretation or application of UNCLOS,theoretically and practically,can be separated with land sovereignty issues?Some scholars try to prove mixed disputes lie within the ambit of jurisdiction enshrined under compulsory procedures by quoting so-called "explanation expansion"method and "a contrario sensu" method,which proves not applicable,for they are against state parties original intent.Besides,weight evaluation method applied by the arbitral tribunal in the Chagos case isn’t suitable for other cases.It’s understood that land sovereignty issues take up the major part of mixed disputes.But weight evaluation method can’t fix the logical paradox when land sovereignty issues is ancillary issues within mixed disputes,which usually end up with mixed disputes division and separation.The analogous approach of "indispensable third party"principle is put forward,which is concluded from ICJ jurisprudence of "Monetary Gold" case,since the elements "predetermination" and "the subject matter" enshrined in "indispensable third party" principle is full of meaning for the jurisdiction issue of mixed disputes.Through the application of the principle "the land dominates the sea" and analogous approach of "indispensable third party" principle,land sovereignty issues is the subject matter of mixed disputes and is also of predetermination character.Under this circumstance,if the land sovereignty issue in the mixed dispute is not covered by another source of jurisdiction,the mixed dispute,as a whole,doesn’t concern the interpretation or application of the UNCLOS.The arbitral tribunals in the Chagos Case and South China Sea arbitration,separate the land sovereignty issues with maritime issues within one mixed disputes forcibly,and individually,turn to deal maritime issues,which seems to concern the interpretation or application of UNCLOS,so that satisfy their jurisdiction.The forcible separation doesn’t make sense in jurisprudence,and in reality,is not conducive to disputes settlement at all.