Problematic Expansion on Jurisdiction: Some Observation on the South China Sea Arbitration

서지정보

ㆍ발행기관 : 이준국제법연구원 ㆍ수록지정보 : Journal of East Asia and International Law / 9권 / 2호
ㆍ저자명 : Xiaoyi Zhang

목차

1. Introduction
2. The Pro-Jurisdictional Bias in the Identification andCharacterization of the Dispute
A. An Expansive Construction of Jurisdictional Mandates: Low-Threshold Access
B. A Narrow Reading of Jurisdictional Exceptions: High-ThresholdBarrier
3. The Tribunal’s Questionable Approach of FragmentingA Delimitation Dispute
A. Application of Article 121 in Maritime Delimitation
B. The Justiciability of Entitlement Claim in Overlapping Areas
4. Conclusion

영어 초록

Following its jurisdictional decision in October 2015, the arbitral tribunal constituted under Annex VII to the UNCLOS issued its final award on July 12, 2016 in the South China Sea Arbitration case. It found overwhelmingly in favor of the Philippines. This article comments on two of the flaws regarding the issue of jurisdiction arising from both preliminary and final awards of the case. It firstly calls into question the inconsistent standard adopted in identifying jurisdictional obstacles, and finds a projurisdictional bias in the Tribunal’s awards. It further analyses the fallacious approach of fragmenting the maritime delimitation disputes, and suggests the legal conundrum of status and entitlement of maritime features related to Sino-Philippine sea boundary delimitation should not constitute a separate dispute subject to legal proceedings. By purposefully downplaying jurisdictional obstacles and exercising powers on false disputes, the tribunal raises doubts to its legitimacy.

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