The Philippine Claim Against China

Award on Jurisdiction

in The Korean Journal of International and Comparative Law
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China was excluded by its Declaration of 2006 from application of unclos compulsory procedures in “all categories of disputes referred to in paragraph 1(a), (b), and (c) of Article 298,” notably “any dispute that necessarily involves the concurrent consideration of any unsettled dispute concerning sovereignty or other rights over continental or insular land territory.” The implications of sovereignty over land territory considered in relation to maritime rights make it extremely difficult to make distinctions isolating the latter from the parent concept of “sovereignty.” The Tribunal, when assuming jurisdiction over the Philippine claim made an admirable effort to do so, and the reader may evaluate its success. China, on the other hand, did not merely “fail to appear” or “fail to present its case,” but chose instead to rely on its exclusionary Declaration of 2006 in publicly denying the competence of an Annex vii Tribunal to assume jurisdiction. Nor was China invited to withdraw its 2006 Declaration or to enter into a special agreement to submit a dispute excluded by its Declaration, as contemplated by paragraph 2 of Article 298. In the author’s view, China’s Declaration of 2006 deprived the Convention’s procedures of the essential element of a State’s consent to jurisdiction.

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