Objections Not Possessing an 'Exclusively Preliminary Character' in the South China Sea Arbitration
Journal of Territorial and Maritime Studies 3, 2016, Forthcoming
Bonn Research Papers on Public International Law No 10/2016
28 Pages Posted: 19 Jun 2016
Date Written: June 16, 2016
The Tribunal’s Award on Jurisdiction and Admissibility in the Arbitration between the Republic of the Philippines and the People’s Republic of China (the ‘South China Sea Arbitration’) is remarkable in that the Tribunal found with respect to seven of the Philippines’ 15 submissions that a determination of its jurisdiction would involve consideration of issues that do not possess ‘an exclusively preliminary character’, and accordingly reserved consideration of its jurisdiction to rule on these submissions to the merits phase of the proceedings. By comparison, the International Court of Justice (‘ICJ’) found that questions of jurisdiction generally require decision at the preliminary stage of the proceedings. It is only in exceptional circumstances that the ICJ found that an objection to jurisdiction does not possess an exclusively preliminary character. In fact, since the change to its Rules of Court in 1972, i.e. in almost 45 years, the ICJ has done so only on four occasions. In all other cases, the ICJ either accepted or rejected the objection at the preliminary objections phase of the proceedings. This raises the question of whether and, if so, why the Tribunal in the South China Sea Arbitration has adopted a less restrictive approach with regard to preliminary objections. The paper identifies the criteria to be applied by UNCLOS Annex VII arbitral tribunals in deciding whether an objection possesses an ‘exclusively preliminary character’. It concludes that the Tribunal has not scrupulously applied the ‘exclusively preliminary character’ test and has joined objections to the merits which should have been decided at the preliminary objections stage. Considering China’s firm opposition to the proceedings on jurisdictional grounds this may provide China with further arguments for rejecting the Tribunal’s Awards in the South China Sea Arbitration.
Keywords: law of the sea, dispute settlement, jurisdiction and admissibility, preliminary objections
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