The Consummation Of Compulsory Arbitration Procedures In United National Convention On The Law Of The Sea:Discussing The South China Sea Arbitration Case

With the development of the oceans in various countries of the world,there are more and more international maritime disputes.The emergence of the Sino-Philippine dispute over the South China Sea is actually a dispute between China and Southeast Asian countries over fishing rights and territorial rights in the South China Sea in the past decades or even more than a hundred years.The Philippines and China are both parties to the United Nations Convention on the Law of the Sea.For the dispute over the South China Sea,the Philippines chose to submit the dispute to the International Tribunal for the Law of the Sea on January 22,2013 and apply the compulsory arbitral proceedings under Annex VII.Even if China has always adopted the attitude of "not accepting,not participating in,not accrediting,and not implementing",the interim arbitral tribunal is still established,and four arbitration orders have been issued before and after,and hearings and rulings on jurisdictional issues and admissibility have also been conducted.Finally,a final decision was made in July 2016.The compulsory arbitral procedure provides that in the Annex VII of the United Nations Convention on the Law of the Sea,it has the characteristics of uncertainty of application,initiation of unilaterality,pre-trust negotiation,and enforcement of rulings.However,according to the "UN Convention on the Law of the Sea",the application of compulsory arbitral procedures must also meet the three prerequisites of the peace method preemption,the parties to the dispute not negotiating other procedures and the obligation to exchange opinions.At the same time,there are also optional exceptions to compulsory arbitral procedures.That is,Article 298 excludes five types of disputes concerning maritime border disputes,historic bays or historic ownership disputes,military activity disputes,law enforcement action disputes and mixed disputes.These five types of disputes do not apply to the dispute settlement procedures of the UN Convention on the Law of the Sea.Even though the United Nations Convention on the Law of the Sea stipulates details of the compulsory arbitration system,in the South China Sea arbitration case,it also revealed many problems in the compulsory arbitral proceedings under Annex VII of the United Nations Convention on the Law of the Sea,which included the political tendency of the arbitral tribunal,and The stipulations of the UN Convention on the Law of the Sea itself.For example,the arbitral tribunal deliberately misinterpreted the provisions of Article 298 of the United Nations Convention on the Law of the Sea,and the“law-making"act of arbitrators under the control of large countries,which lacks impartiality and independence,is also performed by the UN Convention on the Law of the Sea.The ambiguity in the criteria for the exchange of opinions and the unclear requirement for"agreement to resolve disputes peacefully" gave the arbitral tribunal an opportunity to explain it in bad faith.For the problems existing in the compulsory arbitral procedure,the "Convention"should explain the relevant concepts,such as the clear criteria for exchanging opinions and clearly exclude the application of compulsory arbitration;in addition,the arbitrator’s selection system must be improved and the arbitration should be reformed.The member evades the system,selects the personnel who are familiar with the relevant disputes to serve as arbitrators,and reduces the personal role of the arbitrators.Finally,it is possible to set up compulsory mediation procedures prior to compulsory arbitration so as to ease the conflict between the two countries caused by the compulsory arbitral procedure.