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Settling Maritime Disputes Properly through Accurate Application of International Law

更新时间: 2016/07/19 来源: 点击数: 786

Remarks by President LI Shishi of the Chinese Society of International Law at the Opening Ceremony of the “Public International Law Colloquium on Maritime Disputes Settlement”

 

15 July 2016, Hong Kong

 

Honorable Vice Chairman Tung Chee-Hwa

Distinguished GuestsLadies and Gentlemen

Good morning!

On behalf of the organisers, the Chinese Society of International Law and the Hong Kong International Arbitration Centre, I welcome you all to the Hong Kong Special Administrative Region for the “Public International Law Colloquium on Maritime Disputes Settlement”. This Colloquium gathers not only leading experts of international law, but also topnotch scholars, representatives of various sectors, and government legal officials from major countries and regions of the world, to discuss the settlement of maritime disputes, a prominent issue of international law. It is the first collaboration of this kind between the Chinese Society of International Law and the Hong Kong International Arbitration Centre. I am glad to see that the Colloquium has received such a high-level and wide participation, and I look forward to fruitful discussions in the following two days, which I believe will benefit us all.

The settlement of maritime disputes involves both international politics and international law, and international law, without doubt, plays fundamental role in the settlement process. To settle maritime disputes in accordance with international law requires a mastery of the relevant theories and practice of international law, especially those regarding the following four aspects:

First, identify the “root cause”. Like diseases, maritime disputes between States take different forms, some are disputes on the sovereignty over land territories and some on maritime rights. When applying international law to settle maritime disputes, one must examine whether there exist “real” disputes, and if so, identify the essence of disputes. Some disputes which are essentially about land territory are packaged as maritime disputes. In such a case, international judicial or arbitral bodies should go beyond the surface and identify the essence of disputes. Inaction of international judicial or arbitral bodies is a connivance of the “tricks” played by some parties, and will impair the authority of law, and is of no help to the resolution of disputes and conflicts.

Second, understand the “pharmacology”. The modern regime of the law of the sea consists of not only the United Nations Convention on the Law of the Sea (UNCLOS), but also rules of general international law, which are complementary to each other. It is wrong to over-stress the importance of the UNCLOS, while negating rights such as historic rights in general international law, as some people do. The UNCLOS is the principal component of the modern international order of the oceans, but never the whole of it. During the negotiations on the UNCLOS, matters on which agreement was not reached among the negotiating States were not included in the Convention. It was also affirmed that for matters not regulated by the UNCLOS, rules of general international law shall continue to apply. I hope that discussions on historic rights and the regime of outlying archipelagos at the Colloquium will enable a better understanding of maritime rights enjoyed by States in accordance with rules of general international law.

Third, “prescribe the right medicine.” Where it is ascertained that a maritime dispute shall be settled in accordance with the UNCLOS, the Convention shall be interpreted and applied accurately. The UNCLOS is a “package-deal instrument” reached upon by the negotiating parties. Only by interpreting and applying the Convention in good faith and in a comprehensive and integral manner, can its inherent balance be maintained and its authority upheld. Disputes on the sovereignty over land territory are clearly beyond the purview of the interpretation or application of the UNCLOS. Any attempt to settle such disputes by mechanically applying the procedures under the UNCLOS is manifestly an abuse of the procedures. The Convention expressly permits its States Parties to exclude such disputes from the  compulsory procedures by declaration. Arbitrarily initiating the procedures or  deliberately diminishing the effect of other States’ declarations in disregard of relevant provisions runs counter to the intention of drafters of the UNCLOS.

Fourth, uphold the “autonomy of will” of the parties concerned. The parties to a dispute remain the masters of its settlement procedures. According to international law, States have the right to choose the means of dispute settlement of its own will. The exercise of jurisdiction over inter-State disputes by any international judicial or arbitral bodies must be based on the parties’ agreement, namely the principle of State consent. Following this principle, the UNCLOS affirms that the means of dispute settlement of the parties’ own choice is preferred procedure, and the compulsory third-party procedures are secondary. This is due to the fact that the fundamental purpose of any means resorted to is to settle the dispute peacefully, rather than to create new disagreements. It is regretful that some international judicial or arbitral bodies, for various purposes, deliberately downplay the role of the State consent principle in the settlement of maritime disputes, and lower the threshold for the application of compulsory procedures. This, rather than help the settlement of disputes, only impairs the credibility of the dispute settlement mechanism of the UNCLOS.

 

Ladies and Gentlemen,

The oceans are of great importance to people’s well-being, national security and economic development of States. Maritime disputes are highly sensitive to all countries, and lean on international peace and regional stability. As far as this region is concerned, maritime disputes are even more sensitive and complicated. To settle maritime disputes requires not only the political consensus of the governments of States, but also the contribution of academia in order to forge consensus on international law in the region. This is one of our goals to organize this Colloquium.

 

Ladies and Gentlemen,

There are four topics under this Colloquium, covering both substantive and procedural issues of maritime dispute settlement. They not only involve issues of general international law concerning maritime dispute settlement, but also closely relate to the latest international judicial or arbitral practice. On July 12th, the Tribunal of the “South China Sea Arbitration” constituted at the unilateral request of the Philippines issued its so called “Final Award”. Earlier on, the Chinese Society of International Law released a research paper on the Arbitration, entitled "The Tribunal's Award in the 'South China Sea Arbitration' Initiated by the Philippines Is Null and Void". This paper expounds six grave errors the Tribunal committed in its Award on Jurisdiction, and clearly expresses the views and attitudes of the academia of international law in China. I fully agree with the views and attitudes. Due to time constraint, I shall refrain from reiterating the relevant viewpoints and justifications. To our regret, the Tribunal turned a deaf ear to the righteous voices from various circles, and rendered the absurd award willfully and arbitrarily. I believe that you will examine relevant issues of the Tribunal’s Award in depth under the topics of the Colloquium, so that we can get to the bottom of the matters and clean up the confusion.

I want to take this opportunity to express my gratitude to the Hong Kong International Arbitration Centre, our co-organiser, especially Mdm Teresa Cheng for her tremendous efforts for the preparation of this Colloquium. I would also like to thank the Hong Kong branch of the International Law Association and Asian Society Hong Kong for their support to the Colloquium.

I wish this Colloquium a great success.

Thank you all.