Legal Research On Arbitration Jurisdiction Over Mixed Maritime Disputes In The United Nations Convention On The Law Of The Se

In January 2013,the Philippines unilaterally submitted a dispute between China and the Philippines in the South China Sea to arbitration before the Arbitral Tribunal of the United Nations Convention on the Law of the Sea("UNCLOS").In July 2016,the Arbitral Tribunal ruled that the Philippines had won a "victory" while denying China’s The arbitral tribunal ruled in favor of the Philippines and denied China’s claim to the "nine-dashed line" and historical sovereignty in the South China Sea.The arbitral award has caused a lot of controversy in the international legal and judicial circles,among which the most influential issue is whether the Convention is competent to govern the case,and there are different opinions in international law.The main lines of argument in this paper are outlined as follows.The first chapter first clarifies the three key concepts of this paper.Mixed maritime disputes refer to maritime disputes involving issues of territorial sovereignty.The compulsory arbitration system is the "underwriting procedure" of the compulsory dispute settlement mechanism of the Convention as stipulated in Annex VII of the Convention.The jurisdiction of the arbitral tribunal of the Convention is a kind of jurisdiction in the international sense,which is based on the consent of the disputing states and the right or authority to hear,determine and decide the cases submitted by the disputing states in strict accordance with the relevant provisions and limitations of the Convention.Then,in order to clarify the application of compulsory arbitration jurisdiction over mixed maritime disputes,three elements of its exercise are analyzed:the subject element,the object element,and the exclusion element.Among them,the subject matter element is less controversial in practice,while the object element and the exclusion element are more controversial in practice and are the center of discussion in this paper.Finally,it is suggested that there are three main dilemmas in the practice of compulsory arbitration jurisdiction of mixed maritime disputes,namely,the unclear provisions of the object element,the unclear provisions of the exclusion element and the self-expansion of the jurisdiction of the arbitral tribunal.The latter also examines whether the Convention provides a jurisdictional basis for the application of compulsory arbitration in mixed maritime disputes under these three dilemmas from these three perspectives respectively.Chapter 2 examines whether mixed maritime disputes meet the object element of compulsory arbitration jurisdiction,i.e.,the type of dispute.The first paragraph of Article 288 specifies that the type of dispute subject to the jurisdiction of the Convention’s arbitral tribunal is "any dispute concerning the interpretation or application of this Convention";the second paragraph of Article 288 adds that if the dispute is "related to the purposes of this Convention The second paragraph of Article288 is less controversial because it adds that if the dispute is "related to the purposes of this Convention" and the dispute should be submitted to the Convention tribunal exclusively in accordance with an "international agreement",such authorization requires an express grant from the disputing state.In general,the object of the Convention’s compulsory arbitration procedure is limited to disputes or parts of disputes that are "connected with the Convention".For the determination of this"relevance",I believe that the "gravity test" should be adopted.In the Chagos Archipelago Marine Protected Area case,the "center of gravity test" was introduced in the decision to determine the substance of the dispute in accordance with Article288,which was undoubtedly an innovation at that time and could effectively distinguish the nature of the dispute and clarify the jurisdiction of the dispute.However,unfortunately,the "center of gravity test" was not used in the South China Sea Arbitration case because different arbitrators in the two cases adopted different starting points and ideas for the determination of the case.Likewise,the "center of gravity test" has not formed a uniform standard,so in practice it is also vulnerable to the influence of arbitrators’ personal tendencies,resulting in its low operability in practice.Chapter 3 focuses on the exclusion of compulsory arbitration jurisdiction in mixed maritime disputes,i.e.the optional clause.Whether Article 298(1)(a)(i)of the Convention is the basis for implied jurisdiction established by the jurisdiction of mixed maritime disputes.From the internal logic of Article 298,it cannot be determined whether a mixed maritime dispute can be excluded from the jurisdiction of compulsory arbitration by means of an optional declaration.However,some scholars try to interpret it in a reverse way and by way of restriction,claiming that as long as it can be proved that the dispute between the two parties has some connection with the Convention,the jurisdiction of the arbitral tribunal can be established,and if the contracting parties do not explicitly exclude maritime delimitation or disputes involving historical bays or ownership by way of optional declaration,the arbitral tribunal still has jurisdiction over the territorial sovereignty disputes that have an incidental relationship with it.The author does not agree with the view that such an interpretation will expand the jurisdiction of the arbitral tribunal and break the principle of state consent.Therefore,Article 298(1)(a)(i)of the Convention cannot be the basis of compulsory arbitration jurisdiction for mixed maritime disputes.However,in practice,the interpretation of the article by the arbitral tribunal has also taken different paths.The arbitral tribunal in the Chagos Archipelago Marine Protected Area case gave a broad interpretation of Article 298 to exclude jurisdiction over the dispute;the arbitral tribunal in the China-Philippines South China Sea case strictly interpreted Article 298,and such a wrong interpretation method can be refuted by examining the legislative intent of the article.Different scholars have made different interpretations of "other rules of international law not incompatible with the Convention",but I believe that this provision only empowers the Court of the Convention to judge other conventions and gives it more room for law selection.However,it does not directly give the Convention’s compulsory dispute settlement mechanism the right to resolve territorial sovereignty disputes,so the expression "other rules of international law not incompatible with the Convention" cannot be used as a basis for express jurisdiction.Moreover,since this expression should be understood to mean that other rules of international law can be applied only if the jurisdiction of the Convention’s arbitral tribunal is established,the expression "other rules of international law" also fails to establish an express jurisdictional basis for mixed maritime disputes.However,in judicial practice,the distinction between "jurisdiction" and "applicable law" has been repeatedly made by arbitral tribunals.In the Chagos Archipelago Marine Protected Area case,the arbitral tribunal declared that Article 293(1)of the Convention only provides for the law that the Convention can apply,and not the jurisdiction of the Convention tribunal.However,in a series of cases such as the Saiga,Guyana v.Suriname and the Virginia,the judiciary effectively invoked the provisions of Article 293(1)to confer jurisdiction on the Convention tribunals over violations of customary rules relating to the use of force.It was finally concluded that the three Articles 288,293,and 298 of the Convention failed to give a sufficiently strong and complete jurisdictional basis to support the jurisdiction of compulsory arbitration of mixed maritime disputes;however,this analysis was overturned in practice by arbitral tribunals,and through different interpretations and methods of application,some of them considered in their analysis that the aforementioned Articles provided a " gap".Therefore,there is a certain possibility that mixed maritime disputes will be included in the jurisdiction of compulsory arbitration,which may be verified in the future international law of the sea practice,so China should be prepared to deal with such disputes before facing them.The conclusion of this paper,that mixed maritime disputes have the possibility of being included in compulsory arbitration jurisdiction,is very important for China to deal with similar mixed maritime disputes in the future,and can provide China with ideas when designing claims and presenting defenses,but the conclusion of this paper is still a conclusion of a stage study.Although this paper does not intend to make recommendations for the institutional design and reconstruction of the issue of compulsory arbitration jurisdiction for mixed maritime disputes,it focuses on the essence of compulsory arbitration jurisdiction for mixed maritime disputes.