On the Function of ＂Non-Compulsory Agreements＂ in UNCLOS Dispute Settlement

JING Ming；CHEN Jueyu；HUANG Rui

Article 281 of the United Nations Convention on the Law of the Sea ； Non-compulsory agreement ； The Timor Sea Conciliation

中华海洋法学评论

37期（2021 / 03 / 01）

50 - 72

英文

Non-compulsory agreements of the States Parties to a dispute for seeking settlement of the dispute, as provided for in Article 281 of the United Nations Convention on the Law of the Sea (hereinafter ＂UNCLOS Article 281＂), should have the function of prioritizing the peaceful means of the parties' choice and excluding compulsory procedures. In the Timor Sea Conciliation Case, the Conciliation Commission denied the function of the Treaty between Australia and the Democratic Republic of Timor-Leste on Certain Maritime Arrangements in the Timor Sea and established its competence by the leaping interpretation of UNCLOS Article 281. Although other practices have different interpretations of UNCLOS Article 281, the conclusions are almost the same, and the function of these agreements is generally strained in practice. The review of the noncompulsory agreements is more concerned with the willingness of the parties to resolve the dispute. The relationship between this element and the content of the agreement is more important than the form. It is difficult to identify the impact of the non-compulsory agreements on the jurisdictions without going deep into the substance in all cases, which is the objective reason for the strained function of these agreements. China can clarify the function of these agreements in the UNCLOS at an appropriate time, handle the details cautiously when drafting the agreements, emphasize the elements that will make them work, and guard against any certain potential risk.