Compulsory Dispute Settlement Entailing Binding Decisions under the UNCLOS: Its Applicability to the Case of Vietnam

서지정보

ㆍ발행기관 : 이준국제법연구원 ㆍ수록지정보 : Journal of East Asia and International Law / 14권 / 1호
ㆍ저자명 : Ngo Huu Phuoc

목차

I. Overview
II. Terms for A Dispute under the UNCLOS
A. Two Types of Disputes
B. The Choice of Dispute Settlement Mechanism
III. The Method of Choosing Compulsory ProceduresEntailing Binding Decisions
IV. The Authority of Dispute Settlement Body underCompulsory Procedures Entailing Binding Decisions
V. Limitations and Exceptions of CompulsoryProcedures Entailing Binding Decisions
VI. Applicable Law and Legal Validity of DisputeResolution Decisions under CompulsoryProcedures Entailing Binding Decisions
VII. The Applicability of Compulsory DisputeResolution Entailing Binding Decisionsto the Case of Vietnam
A. These disputes are not excluded by China via China’s Declarationof August 25, 2006.
B. Vietnam has actively applied political and diplomatic measuresto resolve these disputes, while China has not cooperated.
C. Vietnam and China are not bound by any specific disputesettlement obligations in bilateral or multilateral internationaltreaties.
D. Arbitration is the default dispute settlement procedure.
E. The scope and content of a lawsuit initiated by Vietnam will notviolate the limitations and exceptions referred to in Articles 297and 298 of the UNCLOS.
VIII. Conclusion

영어 초록

Hybrid dispute settlement mechanism is one of the characteristics of the UNCLOS. It is the combination of diplomatic measures and judicial proceedings. Among them, the ITLOS established in accordance with Annex VI, and two types of arbitral tribunal constituted in accordance with Annexes VII and VIII are means for the disputes settlement firstly regulated in the UNCLOS. Especially, according to Article 287, an arbitral tribunal constituted under Annex VII has default jurisdiction in case one or both parties to a dispute are not covered by a declaration in force, or the parties to a dispute have not accepted the same procedure for the settlement of the dispute. These means of dispute settlement have supplemented and enhanced the source of law for international dispute resolution more diversified. This paper clarifies some aspects of compulsory procedures entailing binding decisions under the UNCLOS, evaluates the applicability of these procedures to the case of Vietnam in the disputes settlement on interpretation or application of the UNCLOS raising among countries in the South China Sea.

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