摘要(Abstract)：
菲律宾单方面提起南海仲裁案,仲裁庭利用其责权及借用《联合国海洋法公约》体系的制度性缺陷,超越和扩大自身权限,作出了在事实认定和法律适用等方面存在严重错误的违法裁决。该裁决不仅损害海洋法争端解决制度的权威性和统一性,还损害国家自主选择解决争端方法的权利,使国家作出的排除性声明事项具有不可预见性,无法维护不出庭国家的权益。这样的裁决不能解决争议,相反使得:南海问题争议更为复杂,争议解决更为困难;海洋法体系混乱、失去权威、并面临挑战;不仅无法促进海洋法的发展,更将阻碍海洋法的发展。
关键词(KeyWords)：
Abstract:
Keywords:
基金项目(Foundation): National Social Science Fund, entitled Research into Major Practical Issues Related to Maritime Features of China in the South China Sea and Their Countermeasures (16ZDA073);;
China Association of Marine Affairs, entitled Valuation of Several Regimes in the Untied Stations Convention on the Law of the Sea and Research into Their Improvement (CAMAZDA201601)
作者(Author): 金永明;Chen Ling;
Email:
参考文献(References)：
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- 2 Id.
- 3 IN THE MATTER OF THE SOUTH CHINA SEA ARBITRATION BEFORE AN ARBITRAL TRIBUNAL CONSTITUTEDUNDER ANNEX VII TO THE 1982 UNITED NATIONS CONVENTION ON THE LAW OF THE SEA BETWEEN THEREPUBLIC OF THE PHILIPPINES AND THE PEOPLE’S REPUBLIC OF CHINA AWARD,at 252-260(2016).
- 4 The stringency of the interpretation made by the Arbitral Tribunal is embodied in the following aspect:first,in connection with sustaining human habitation,to sustain means to provide that which is necessary to keep humans alive and healthy over a continuous period of time,according to a proper standard.Second,to sustain an economic life,the necessities provided shall not only satisfy the starting of economic life,but also the ongoing of economic life.In addition,such economic activity shall be sustained over a period of time.Third,the mere presence of a small number of people on a feature does not constitute permanent or habitual residence.Rather,sustained human habitation will require that a feature is able to support,maintain,and provide food,drink,and shelter for some humans to enable them to reside there permanently or habitually over an extended period of time.Fourth,for economic activity to constitute the economic life of a feature,the resources around which the economic activity revolves must be local,not imported.
- 5 Supra note 1.
- 6 Jin Yongming,Analysis of Legal Elements of Islands and Rocks-Studying from the Perspective of Okinotorishima,12 Political Science and Law 100-101(2010).
- 7 Zou Keyuan,The Influence of Maritime Features Construction on Territorial Disputes in South China Sea:Challenges to International Law,3 Asia-Pacific Security and Maritime Study 10(2015).
- 8 The note verbale addressed to the Secretary-General of the United Nations by China concerning relevant countries’application for outer continental shelf and preliminary information,see RESEARCH TEAM OF THE CHINA INSTITUTE FOR MARINEDEVELOPMENT STRATEGY OF STATE OCEANIC ADMINISTRATION,RESEARCH REPORT OF MARINEDEVELOPMENT OF CHINA,at 593-598(China Ocean Press,2011).
- 9 PCIJ,Series A,No.2,at 11.For details of Judgment of Right of Passage over Indian Territory of International Court of Justice,see ICJ Reports of 1960,34.For details of Judgment of El Salvador v.Honduras concerning the Land,Island and Maritime Frontier Dispute,see paragraph 326 of ICJ Reports of 1992,555.
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- 12 MORITAKA HAYASHI,YUKIO SHIMADA&MAMORU KOGA,INTERNATIONAL LAW OF THE SEA,at 175(Yushindo,2016).
- 13 Id.,176.
- 14 Id.
- 15 Exclusionary Declaration Submitted by China According to Article 298 of the United States Convention on the Law of the Sea,1China Oceans Law Review 178(2007).
- 16 China’s Position Paper,at 11,paragraph 67.For example,paragraph 1 of article 74 of the Convention provides for that the delimitation of the exclusive economic zone between states with opposite or adjacent coasts shall be effected by the agreement on the basis of international law,as referred to in article 38 of the Statute of the International Court of Justice,in order to achieve an equitable solution.
- 17 Article 9 of Annex VII arbitration provides for that if one of the parties to the dispute does not appear before the arbitral tribunal or fails to defend its case,the other party may request the tribunal to continue the proceedings and to make its award.The absence of a party or failure of a party to defend its case shall not constitute a bar to the proceedings.Before making its award,the arbitral tribunal must satisfy itself not only that it has jurisdiction over the dispute but also that the claim is well founded in fact and law.
- 18 For example,paragraph 12 of article 12 of Annex VII(Arbitration)provides for that any controversy which may arise between the parties to the dispute as regards the interpretation or manner of implementation of the award may be submitted by either party for the decision to the arbitral tribunal which made the award.
- 19 Supra note 1.Article 299 of the Convention provides for that a dispute excluded under article 297 or excepted by a declaration made under article 298 from the dispute settlement procedures provided for in section 2 may be submitted to such procedures only by the agreement of the parties to the dispute.Namely,the role of article 297 and article 298 of the Convention is to prevent a party from unilaterally submitting a dispute to such procedures in the Convention without prejudice to both parties’rights to such procedures through agreement.See J.G.MERRILLS,INTERNATIONAL DISPUTE SETTLEMENT(FIFTH EDITION)at 221(Han Xiuli et al.trans.,Law Press,2013).
- 20 Supra note 1.
- 21 Since the 1960s,China has successfully resolved land boundary disputes with twelve out of its fourteen neighbors,delimiting and demarcating some 20,000 kilometers in length of land boundary in the process,which accounts for over 90 percent of the total length of China’s land boundary.In addition,China and Vietnam established,following negotiations,a maritime boundary between the two states in Beibu Bay(i.e.China-Vietnam Agreement on the Delimitation in Beibu Bay,and China-Vietnam Agreement on Fisheries,entered into force on August 30,2014).See ACCOUNTS OF INTERVIEWING OUYANG YUJING,THEDIRECTOR-GENERAL OF THE DEPARTMENT OF BOUNDARY AND OCEAN AFFAIRS OF THE MINISTRY OFFOREIGN AFFAIRS,ON THE SOUTH CHINA SEA ISSUES BY CHINESE AND FOREIGN MEDIAE,at http://www.fmprc.gov.cn/web/wjbxw_673019/t1361270.html(Last visited on May 8,2016).
- 22 Under international law,regardless of the designation or form an instrument employ,as long as it intends to create rights and obligations for the parties,these rights and obligations are binding between the parties,see supra note 1.
- 23 Supra note 1.
- 24 SHIGEJIRO TABADA,NEW NOTES ON INTERNATIONAL LAW(VOLUME II),at 70(Toshindo,1995).
- 25 J.G.MERRILLS,supra note 19,2-3.
- 26 International Court of Justice(ICJ),Case Concerning Delimitation of the Maritime Boundary in the Gulf of Maire Area(Canada v.United States of America),Judgment of October 12,1984,I.C.J Reports of 1984,para.87.HE SISHEN&WANG GUANXIONG,DISPUTES AND PEACEFUL DEVELOPMENT IN EAST CHINA SEA AND SOUTH CHINA SEA,at 165(Cross-Strait Interflow Prospect Foundation,2012).
- 27 International Court of Justice(ICJ),North Sea Continental Shelf Case(Federal Republic of Germany v.Netherlands),I.C.J Reports of 1969,47.
- 28 Supra note 1.
- 29 NORIO TANAKA,FUMIO YAKUSHIJI&SHIGEKI SAKAMOTO,BASIC DOCUMENTS OF INTERNATIONAL LAW,at 881(Toshindo,2014).
- 30 CHINA ADHERES TO THE POSITION OF SETTLING THROUGH NEGOTIATION THE RELEVANT DISPUTES BETWEENCHINA AND THE PHILIPPINES IN THE SOUTH CHINA SEA,THE STATE COUNCIL INFORMATION OFFICE OF THEPEOPLE’S REPUBLIC OF CHIA,at 37(People’s Publishing House,2016).
- 31 Supra note 1.
- 32 Supra note 3,96,116-117.
- 33 Jia Yu,On Constituents of Historic Rights,2 Chinese Review of International Law 37-38(2014).
- 34 Article 56 and article 77 of the Convention.
- 35 Supra note 3,111.
- 36 Statement on Policy of Taiwan on the South China Sea of 2016,22.The State Council Information Office of the People’s Republic of China,White Paper:China Adheres to the Position of Settling through Negotiating the Relevant Disputes between China and the Philippines in the South China Sea.
- 37 STATEMENT OF THE GOVERNMENT OF THE PEOPLE’S REPUBLIC OF CHINA ON CHINA’S TERRITORIALSOVEREIGNTY AND MARITIME RIGHTS AND INTERESTS IN THE SOUTH CHINA SEA,at http://world.people.com.cn/n1/2016/0712/c1002-28548370.html(Last visited on July 12,2016).
- 38 Fu Ying&Wu Shicun,Overall Description of South China Sea Issue and Nansha Disputes,China Newsweek 65(2016).
- 39 The Republic of the Philippines v.The People’s Republic of China,Award on Jurisdiction and Admissibility,October 29,2015.
- 40 Id.
- 41 Supra note 3.
- 42 Supra note 3,471-477.
- 43 DAI TAMADA,ON EFFECTIVENESS OF INTERNATIONAL JUDGEMENT,at 148(Yuhikaku,2012).
- 44 Id.,55.The general reasons for invalidity of a judgment of a court or an arbitration award mainly include the ineffectiveness of agreement,beyond jurisdiction,lack of foundations for a decision,corruption of arbitrators,serious breach of basic procedural rules.The correcting procedure for a wrong judgment of a court is a revision(re-trial)which is based on the factors as follows:wrong fact finding in original judgment,and discovery of a new fact.The details are set forth in article 61 of the Statute of the International Court of Justice;while according to article 12 of Annex VII to the Convention,any controversy which may arise between the parties to the dispute as regards the interpretation or manner of implementation of the award may be submitted by either party for the decision to the arbitral tribunal which made the award.
- 45 Item 4 of paragraph 1 of article 38 of the Statute of the International Court of Justice states that the court shall apply,subject to the provisions of article 59,judicial decisions and the teachings of the most highly qualified publicists of the various nations,as subsidiary means for the determination of rules of law.Article 60 states that the judgment is final and without appeal.
- 46 TAKANE SHUGIHARA,THE REGIME OF INTERNATIONAL COURT OF JUSTICE,at 341,344-348(Yuhikaku,1996).
- 47 Gao Shengxi,On Issues of Inadmissibility of South China Sea Arbitration between China and the Philippines,Invalidity of the Arbitral Award and No Jurisdiction of the Arbitral Tribunal,2 China Oceans Law Review 12-13(2015).
- 48 DAI TAMADA,supra note 43,39.
- 49 Supra note 3,82-88.
