11 China’s Theory and Practice on Maritime Dispute Resolution
213
unilaterally initiating the arbitration, the Philippines has breached its obligation under
international law.
40 Thirdly, even assuming that the subject-matter of the arbitration
were concerned with the interpretation or application of UNCLOS, that subjectmatter would constitute an integral part of maritime delimitation between the two
countries, thus falling within the scope of the declaration filed by China in 2006 in
accordance with UNCLOS, which excludes, inter alia, disputes concerning maritime
delimitation from compulsory arbitration and other compulsory dispute settlement
procedures.
41 Consequently, the Arbitral Tribunal manifestly has no jurisdiction over
the arbitration. Based on the foregoing position and by virtue of the freedom of
every State to choose the means of dispute settlement, China’s rejection of and nonparticipation in the arbitration stands on solid ground in international law.
42 Thus
it can be seen that only when the conditions on compulsory procedures entailing
binding decisions were met, can China take part in the procedure.
11.3.1 Article 281 Relating to the Exclusion
of the Procedures and Compulsory Procedures
Article 281(1) of UNCLOS provides that “If the States Parties which are parties
to a dispute concerning the interpretation or application of this Convention have
agreed to seek settlement of the dispute by a peaceful means of their own choice,
the procedures provided for in this Part apply only where no settlement has been
reached by recourse to such means and the agreement between the parties does
not exclude any further procedure.” Article 281 only specifies the substance of the
agreement, while imposing no particular form.
43 In the South China Sea arbitration,
the Philippines and the arbitral tribunal considered that DOC is not an agreement.
44
As for the DOC, it can be seen from the form of the instrument, the overall effect
40 Position Paper of the Government of the People’s Republic of China on the Matter of Jurisdiction in the South China Sea Arbitration Initiated by the Republic of the Philippines, paras. 30–
56 https://www.fmprc.gov.cn/mfa_eng/wjb_663304/zzjg_663340/tyfls_665260/tfsxw_665262/t12
17147.shtml, visited on 29 May 2020; Chinese Society of International Law (2016, pp. 79–86),
Chinese Society of International Law (2018, paras. 270–330).
41 Position Paper of the Government of the People’s Republic of China on the Matter of
Jurisdiction in the South China Sea Arbitration Initiated by the Republic of the Philippines,
paras. 57–75, https://www.fmprc.gov.cn/mfa_eng/wjb_663304/zzjg_663340/tyfls_665260/tfsxw_
665262/t1217147.shtml, visited on 29 May 2020; Chinese Society of International Law (2016,
pp. 70–79), Chinese Society of International Law (2018, paras. 153–186).
42 Position Paper of the Government of the People’s Republic of China on the Matter of Jurisdiction in the South China Sea Arbitration Initiated by the Republic of the Philippines, para.
3, https://www.fmprc.gov.cn/mfa_eng/wjb_663304/zzjg_663340/tyfls_665260/tfsxw_665262/t12
17147.shtml, visited on 29 May 2020.
43 Chinese Society of International Law (2018, para. 275).
44 Day 2, Hearing on jurisdiction and Admissibility between the Republic of the Philippines and the
People’s Republic of China, 8 July 2015, PCA Case No. 2013–19, pp. 20–21.
213
unilaterally initiating the arbitration, the Philippines has breached its obligation under
international law.
40 Thirdly, even assuming that the subject-matter of the arbitration
were concerned with the interpretation or application of UNCLOS, that subjectmatter would constitute an integral part of maritime delimitation between the two
countries, thus falling within the scope of the declaration filed by China in 2006 in
accordance with UNCLOS, which excludes, inter alia, disputes concerning maritime
delimitation from compulsory arbitration and other compulsory dispute settlement
procedures.
41 Consequently, the Arbitral Tribunal manifestly has no jurisdiction over
the arbitration. Based on the foregoing position and by virtue of the freedom of
every State to choose the means of dispute settlement, China’s rejection of and nonparticipation in the arbitration stands on solid ground in international law.
42 Thus
it can be seen that only when the conditions on compulsory procedures entailing
binding decisions were met, can China take part in the procedure.
11.3.1 Article 281 Relating to the Exclusion
of the Procedures and Compulsory Procedures
Article 281(1) of UNCLOS provides that “If the States Parties which are parties
to a dispute concerning the interpretation or application of this Convention have
agreed to seek settlement of the dispute by a peaceful means of their own choice,
the procedures provided for in this Part apply only where no settlement has been
reached by recourse to such means and the agreement between the parties does
not exclude any further procedure.” Article 281 only specifies the substance of the
agreement, while imposing no particular form.
43 In the South China Sea arbitration,
the Philippines and the arbitral tribunal considered that DOC is not an agreement.
44
As for the DOC, it can be seen from the form of the instrument, the overall effect
40 Position Paper of the Government of the People’s Republic of China on the Matter of Jurisdiction in the South China Sea Arbitration Initiated by the Republic of the Philippines, paras. 30–
56 https://www.fmprc.gov.cn/mfa_eng/wjb_663304/zzjg_663340/tyfls_665260/tfsxw_665262/t12
17147.shtml, visited on 29 May 2020; Chinese Society of International Law (2016, pp. 79–86),
Chinese Society of International Law (2018, paras. 270–330).
41 Position Paper of the Government of the People’s Republic of China on the Matter of
Jurisdiction in the South China Sea Arbitration Initiated by the Republic of the Philippines,
paras. 57–75, https://www.fmprc.gov.cn/mfa_eng/wjb_663304/zzjg_663340/tyfls_665260/tfsxw_
665262/t1217147.shtml, visited on 29 May 2020; Chinese Society of International Law (2016,
pp. 70–79), Chinese Society of International Law (2018, paras. 153–186).
42 Position Paper of the Government of the People’s Republic of China on the Matter of Jurisdiction in the South China Sea Arbitration Initiated by the Republic of the Philippines, para.
3, https://www.fmprc.gov.cn/mfa_eng/wjb_663304/zzjg_663340/tyfls_665260/tfsxw_665262/t12
17147.shtml, visited on 29 May 2020.
43 Chinese Society of International Law (2018, para. 275).
44 Day 2, Hearing on jurisdiction and Admissibility between the Republic of the Philippines and the
People’s Republic of China, 8 July 2015, PCA Case No. 2013–19, pp. 20–21.