G*******n
发帖数: 6889 | 1 http://law.hofstra.edu/directory/faculty/fulltime/ku/
https://www.quora.com/Is-there-any-factual-error-in-the-arbitration-case-on-
the-South-China-Seas-made-by-the-Permanent-Court-of-Arbitration-PCA-in-The-
Hague
According to Julian Ku the distinguished Professor of Constitutional Law at
Hofstra University School of Law.the Chinese legal position is very weak. He
stated as follows.
China claims that it has no duty to abide by the award of the UN arbitral
tribunal because China has made a declaration limiting that tribunal’s
jurisdiction to exclude “territorial or sovereignty” disputes. Indeed,
Chinese officials have stated that defying the ruling is necessary in order
to protect and uphold international law and have accused the Philippines of
“violating” international law by bringing this proceeding.
This argument doesn’t fly for one very simple reason. It willfully ignores
Article 288(4) of the UNCLOS, which states: “[i]n the event of a dispute as
to whether a court or tribunal has jurisdiction, the matter shall be
settled by decision of that court or tribunal.” This provision means that
the arbitral tribunal gets to determine whether or not China’s declaration
excludes or limits their jurisdiction over the Philippines’ claims.
When China joined UNCLOS in 1996, it freely agreed to subject itself to
compulsory dispute resolution under Article 296 If an arbitral tribunal is
not permitted to determine what falls within the scope of its jurisdiction,
as China is trying to do here could always avoid arbitration by claiming
that the tribunal lacks jurisdiction. The “compulsory” nature of the
arbitration – which China agreed to when it signed and ratified UNCLOS –
would be rendered meaningless.
China is trying to avoid its legal responsibility. |
|
