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#1 15-05-2019 11:42:54

zhangsan520
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For many years, the People's Republic of China has been a strong supporter of the UN Convention on the Law of the Sea (UNCLOS). Recently, however, China's experience has been that the Convention and, in particular, its provisions on compulsory dispute settlement, may be exploited by other states for political reasons.


Knowing full well that disputes over territorial sovereignty and maritime delimitation do not fall under the UNCLOS dispute settlement mechanisms, the Republic of the Philippines, in an act of legal warfare (""lawfare""), nevertheless instituted arbitration proceedings against China before a UNCLOS Annex VII arbitral tribunal with regard to the disputes between the two countries in the South China Sea.


During the negotiations on the Convention in the 1970s, China raised concerns about the dispute settlement provisions, which it considered ""inappropriate,"" and argued that the provisions should not be included in the Convention itself.


China's suggestion was that the provisions should form a separate protocol so that countries could decide for themselves whether or not to accept compulsory dispute settlement.


By way of compromise, it was agreed that certain disputes would not be included in UNCLOS's compulsory dispute settlement mechanisms and that others could be removed by express declaration of states parties.


The latter included disputes relating to sea boundary delimitation, historic titles, sovereignty or other rights over continental or insular land territory, military activities and law enforcement activities. China duly made use of this opportunity on August 25 2006 when it excluded all of these disputes from the compulsory dispute settlement mechanisms under UNCLOS.


According to Article 288(4) of UNCLOS, it is not, however, the contracting party but rather the arbitral tribunal that determines whether a dispute exists and defines its content.


This holds considerable risks and uncertainties for the parties, especially in case of tribunals that engage in judicial activism, as was demonstrated by the Tribunal's Award on Jurisdiction and Admissibility of October 29 2015 in the South China Sea Arbitration.


While the Tribunal accepted that a dispute in international law requires that there be ""positive opposition"" between the parties, it did not, and could not, establish such opposition and, instead, established a dispute ""by inference.""


What is, in fact, a dispute on territorial sovereignty and maritime delimitation was redefined by the Tribunal as a dispute concerning the status of maritime features and the source of maritime entitlements, questions on which, as the Tribunal rightly noted, China had never expressed a detailed position. If the Arbitral Tribunal in i. Cheap Jerseys   Cheap Authentic Jerseys   Cheap NFL Jerseys Online   Cheap Authentic NFL Jerseys   Cheap Nike Air Vapormax Black   Cheap Air Vapormax Flyknit   Cheap Nike Air Max 90 Kids   Cheap Nike Air Max 90 Shoes   Cheap Nike Air Max 90 Essential   Cheap Nike Vapormax Mens

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