필리핀 대 중국 중재사건을 통해서 본 제7부속서 중재재판소의 중요성

Part 15 of the UN Convention on the Law of the Sea(“UNCLOS”) establishes a comprehensive system for settlement of disputes. One of the remarkable characteristics of the dispute settlement system is the compulsory procedures entailing binding decisions set out in section 2 of Part 15. Included in the compulsory procedures are the International Tribunal for the Law of the Sea, the International Court of justice, an arbitral tribunal constituted in accordance with Annex VII, and a special arbitral tribunal constituted in accordance with Annex VIII. Of these, Annex VII arbitration is a forum with residual jurisdiction. States that do not make a written declaration setting out their choice of procedure are deemed to have accepted Annex VII arbitration. And, if the parties have not chosen the same dispute settlement procedure, the dispute may only be submitted to Annex VII arbitration, in the absence of agreement to another procedure. The jurisdiction of Annex VII tribunal is, however, not simply residual. In certain circumstances, the refusal of and non-appearance in the arbitral proceedings cannot prevent the tribunal from doing its job. Arbitration tribunal is constituted; it carries out proceedings; it decides that the dispute falls within its jurisdiction; and it makes a decision on the merits of the dispute. This would be a nightmare to a reluctant respondent. In this sense, the potentials of Annex VII arbitration should be taken seriously. The recent arbitral decision on the dispute between the Philippines and China is illustrative in this regard. The Philippines initiated arbitration proceedings against China under Annex VII of UNCLOS. China has adhered to the position of neither accepting nor participating in these proceedings. However, the case has developed to the point where the jurisdiction of the tribunal is recognized over some of the Philippines’ Submissions. The award on jurisdiction certainly is an embarrassment to China. The Philippines v. China arbitration shows that a non-vigilant and careless State could be a target of Annex VII arbitration. Litigation strategies should be established for possible international disputes.