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Published online by Cambridge University Press: 16 February 2018
This paper discusses the Tribunal’s decision to assume jurisdiction over the Philippine claim notwithstanding China’s publicly declared and law-based withholding of consent to the proceedings instituted by the Philippines. The Tribunal relied on its interpretation of China’s general commitment under Section 2 of Part XV (Settlement of Disputes) of the UN Convention on the Law of the Sea,1 which was subjected to a Convention-authorized “exception” under Article 298 (China’s Declaration of 25 August 2006) that had selectively deprived any such proceeding of the essential element of China’s consent. The paper calls for inventive consideration of the methods available for resolving disputes, which might be seen currently as excessively influenced by procedures designed for resolving international trade disputes where only one party is a state.
Advocate of the Supreme Court of Sri Lanka, and of the Inner Temple, Barrister; Member of the Institut de Droit International; former Chairman of the UN International Law Commission; former Secretary-General of the Iran-US Claims Tribunal.
United Nations Convention on the Law of the Sea, 10 December 1982, 1833 U.N.T.S. 396, 21 I.L.M. 1261 (entered into force 16 November 1994) [The Convention].
2. 1945 Charter of the United Nations, 26 June 1945, I U.N.T.S. 993 (entered into force 24 October 1945).
3. LAUTERPACHT, Sir Hersch, The Development of International Law by the International Court (London: Stevens & Sons Ltd., 1958) at 338 Google Scholar.
4. Status of Eastern Carelia, Advisory Opinion, [1923] P.C.I.J., Series B, No. 5 at 27.
5. [1950] I.C.J. Rep. at 71. See also the Nottebohm case [1953] I.C.J. Rep. at 122; and the Monetary Gold case [1954] I.C.J. Rep. at 32.
6. [1924] P.C.I.J., Series A, No. 2 at 16.
7. [1927] P.C.I.J., Series A, No. 9 at 32.
8. DE VISSCHER, Charles, Theory and Reality in Public International Law , trans. P.E. CORBETT (Princeton, NJ: Princeton University Press, 1968) at 381 CrossRefGoogle Scholar.
9. RALSTON, J.H., The Law and Procedure of International Tribunals (Stanford, CA: Stanford University Press, 1926) at 43 Google Scholar.
10. SIMPSON, J.L. and FOX, Hazel, International Arbitration (London: Stevens & Sons, 1959) at 72–73 Google Scholar.
11. The South China Sea Arbitration (The Republic of Philippines v. The People’s Republic of China), Award on Jurisdiction and Admissibility, [2015] P.C.A. Case No. 2013-19, at [11].
12. The Rules of Procedure adopted by the Tribunal referred to in the Award are the Permanent Court of Arbitration Optional Rules for Arbitrating Disputes Between Two States, published by the PCA (effective 20 October 1992), available in a compendium entitled “Basic Documents, Conventions, Rules, Model Clauses and Guidelines” published by the PCA in 1998 with a Foreword by Kofi Annan, then Secretary-General of the United Nations; as well as The Convention, supra note 1 at Annex VII.
13. The Convention, supra note 1 at Annex VII.
14. Ibid.
15. Nicaragua v. U.S. (Merits), [1986] I.C.J. Rep. 14.
16. The “Arctic Sunrise” case (Netherlands v. Russia), Provisional Measures, [2013] ITLOS Case No. 22. See also The South China Sea Arbitration (The Republic of Philippines v. The People’s Republic of China), Merits, [2016] P.C.A. Case No. 2013-19 at 45, ftn 32.
17. Simpson and Fox, supra note 10 at 42.
18. Ibid., at 44.
19. Permanent Court of Arbitration, Optional Rules for Arbitrating Disputes Between Two States, in Basic Documents, at p. 45.
20. Award on Jurisdiction and Admissibility, supra note 11 at [11].
21. Merits, supra note 16 at [129].
22. For an example of complex multilateral arrangements designed with a view to ensuring that specified monetary awards by an international tribunal rendered against a State Party would be paid out of a “Security Account”, see “Declaration of the Government of the Democratic and Popular Republic of Algeria” Iran-United States Claims Tribunal (19 January 1981), online: Iran-United States Claims Tribunal <http://www.iusct.net/General%20Documents/1-General%20Declaration%E2%80%8E.pdf>, at art. VII, when that government, at the request of Iran and the US, agreed “to serve as an intermediary in seeking a mutually acceptable resolution of the crisis in their relations …”. For a description of those arrangements, see Charles N. BROWER and Jason D. BRUESSCHKE, The Iran-United States Claims Tribunal (The Hague: Nijhoff, 1998) at 8 and ftn 23.
23. Merits, supra note 16 at [278].
24. Tommy T.B. KOH, “A Constitution for the Oceans” UN (1982), online: UN <http://www.un.org/depts/los/convention_agreements/texts/koh_english.pdf>.
25. Ibid.
26. The Convention, supra note 1 at arts. 10(6), 15, 298(1)(a)(i).
