中文摘要 |
《聯合國海洋法公約》(簡稱《公約》)第121 條第3 項被稱為是「混亂和衝突的完美結合」,中菲南海仲裁案(簡稱SCS 案)首度對該項規定做出條約解釋。判決在2016 年7 月12 日出爐,不過判決並沒有因此解決該項規定條約解釋的問題。 當事國的中國,還有特別利害關係國的台灣、日本、荷蘭和美國等的國際法學者都對這宗判決的條約解釋,表示不同意見。因此,本文首先指出中菲南海仲裁庭(簡稱SCS 仲裁庭)的五位法官之一的Alfred H. A. Soons 教授,其在1990 年發表的論文和本宗判決的解釋迥然相異之處;其次分析其原因所在,之後對於國際社會將帶來什麼影響,最後討論應該如何對應。 On 12 July 2016, the final Award in the South China Sea Arbitration was issued by the Tribunal, in which the United Nations Convention on the Law of Sea (UNCLOS) Article 121, paragraph 3, having been called “a perfect recipe for confusion and conflict”, was interpreted. However, the interpretation was not satisfactory for all. The public lawyers, including those from China as the Party concerned, Taiwan whose interests were specially affected, Japan, Netherland as well as the United States, have criticized that the interpretation in this Award was not appropriate. Therefore, this article first indicates that Professor Alfred H. A. Soons, as one of the five Members of the Tribunal, however, had in his previous publication an opinion contrary to that in the Award; secondly, examines what have caused the opposite interpretations and thereby the potential impact to the international community; and finally suggests how to address this issue. |