필리핀과 중국 간의 남중국해 중재사건에 관한 국제법적 검토: 관할권과 소송요건을 중심으로

On 22 January 2013 the Philippines initiated an arbitral proceeding with respect to the dispute with China over the maritime jurisdiction of the Philippines in the West Philippine Sea under the Annex VII of the United Nations Convention on the Law of the Sea (UNCLOS). On 19 February 2013, China presented the Philippines with a diplomatic note in which it described “the Position of China on the South China Sea issues,” and rejected and returned the Philippines’ Notification and Statement of Claims. Despite the rejection and disappearance of the arbitral proceeding by China, the Arbitral Tribunal was composed of five Arbitrators according to the provisions of Annex VII of the UNCLOS and it issued several procedural orders to proceed the arbitral proceedings. This case has already attracted wide attention from international law scholars as well as practitioners because of its gravity of the conflicts between China and the Philippines, and its implication for future resolution of the disputes surrounding the South China Sea. Most literatures tend to deal with only substantial issues such as the positions of the two States on the dispute and the legality of the claims of “nine-dash line” by China. However, if the Arbitral Tribunal finds that it does not have jurisdiction over the case or the case is inadmissible on the basis of the requirements of admissibility, the arbitral proceedings by the Philippines will be denied to proceed promptly without having any chance for those substantive matters to be considered and decided. Bearing this in mind, this article aims to analyze whether the arbitral tribunal can exercise jurisdiction in this case and the submissions raised by the Philippines will be considered as admissible. With regard to jurisdiction of the arbitral tribunal, it will consider whether the dispute exists between two States under the UNCLOS and general international law, and to what extent the declaration of China will exclude the jurisdiction. Then, this article will deal with issues relating to admissibility such as obligation to exchange of the views, applicability of the Declaration of the State Parties in the South China Sea and abuse of the procedure.