11 China’s Theory and Practice on Maritime Dispute Resolution
203
interpretation or application of articles 15, 74 and 83 relating to sea boundary delimitations, or those involving historic bays or titles etc. These requirements put limits
on the scope of the compulsory procedure. As far as the defendant is concerned,
these rules are important grounds in international law to exclude the jurisdiction of
compulsory procedures entailing binding decisions.
There are other rules on compulsory procedures entailing binding decisions that
need to be followed. Firstly, as to the choice of procedure, a State shall be free
to choose among the International Tribunal for the Law of the Sea (ITLOS), the
International Court of Justice (ICJ), an arbitral tribunal constituted in accordance
with Annex 7, and a special arbitral tribunal constituted in accordance with Annex 8
for one or more of the categories of disputes specified therein. A State party, which
is a party to a dispute not covered by a declaration in force, shall be deemed to have
accepted arbitration in accordance with Annex 7. If the parties to a dispute have not
accepted the same procedure for the settlement of the dispute, it may be submitted
only to arbitration in accordance with Annex 7, unless the parties otherwise agree
(article 287). Secondly, on jurisdiction and applicable law, article 288(4) says “in the
event of a dispute as to whether a court or tribunal has jurisdiction, the matter shall be
settled by decision of that court or tribunal.” In accordance with article 293, a court
or tribunal having jurisdiction shall apply UNCLOS and other rules of international
law not incompatible with UNCLOS. If the parties so agree, the court or tribunal
having jurisdiction have the power to decide a case ex aequo et bono. Thirdly, as to
access, all the dispute settlement procedures specified in Part 15 shall be open to State
parties, and to entities other than State parties only as specifically provided for in the
UNCLOS (article 291). Fourthly, in regard to finality and binding force of decisions,
any decisions rendered by a court or tribunal having jurisdiction shall be final and
shall be complied with by all the parties to the dispute. Any such decision shall have
no binding force except between the parties and in respect of that particular dispute
(article 296).
11.1.2 China and the UNCLOS Dispute Settlement System
For historical reasons, the Government of the People’s Republic of China (PRC)
did not participate in the First and Second UN Conference on the Law of the
Sea. After the PRC Government resumed its legal status in the UN in 1971, the
UN General Assembly passed a resolution to accept China’s participation in the
Committee on the Peaceful Uses of the Sea-Bed and the Ocean Floor Beyond the
Limits of National Jurisdiction (the Sea-Bed Committee). China attended the Third
UN Conference on the Law of the Sea, which started in 1973 and lasted until 1982,
with 11 sessions. China’s propositions on the settlement of maritime disputes are
summarized as follows:
203
interpretation or application of articles 15, 74 and 83 relating to sea boundary delimitations, or those involving historic bays or titles etc. These requirements put limits
on the scope of the compulsory procedure. As far as the defendant is concerned,
these rules are important grounds in international law to exclude the jurisdiction of
compulsory procedures entailing binding decisions.
There are other rules on compulsory procedures entailing binding decisions that
need to be followed. Firstly, as to the choice of procedure, a State shall be free
to choose among the International Tribunal for the Law of the Sea (ITLOS), the
International Court of Justice (ICJ), an arbitral tribunal constituted in accordance
with Annex 7, and a special arbitral tribunal constituted in accordance with Annex 8
for one or more of the categories of disputes specified therein. A State party, which
is a party to a dispute not covered by a declaration in force, shall be deemed to have
accepted arbitration in accordance with Annex 7. If the parties to a dispute have not
accepted the same procedure for the settlement of the dispute, it may be submitted
only to arbitration in accordance with Annex 7, unless the parties otherwise agree
(article 287). Secondly, on jurisdiction and applicable law, article 288(4) says “in the
event of a dispute as to whether a court or tribunal has jurisdiction, the matter shall be
settled by decision of that court or tribunal.” In accordance with article 293, a court
or tribunal having jurisdiction shall apply UNCLOS and other rules of international
law not incompatible with UNCLOS. If the parties so agree, the court or tribunal
having jurisdiction have the power to decide a case ex aequo et bono. Thirdly, as to
access, all the dispute settlement procedures specified in Part 15 shall be open to State
parties, and to entities other than State parties only as specifically provided for in the
UNCLOS (article 291). Fourthly, in regard to finality and binding force of decisions,
any decisions rendered by a court or tribunal having jurisdiction shall be final and
shall be complied with by all the parties to the dispute. Any such decision shall have
no binding force except between the parties and in respect of that particular dispute
(article 296).
11.1.2 China and the UNCLOS Dispute Settlement System
For historical reasons, the Government of the People’s Republic of China (PRC)
did not participate in the First and Second UN Conference on the Law of the
Sea. After the PRC Government resumed its legal status in the UN in 1971, the
UN General Assembly passed a resolution to accept China’s participation in the
Committee on the Peaceful Uses of the Sea-Bed and the Ocean Floor Beyond the
Limits of National Jurisdiction (the Sea-Bed Committee). China attended the Third
UN Conference on the Law of the Sea, which started in 1973 and lasted until 1982,
with 11 sessions. China’s propositions on the settlement of maritime disputes are
summarized as follows: