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Arbitration Tribunal Analysis

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The arbitration tribunal first analyses article 281 of United Nations Convention on the Law of the Sea. To apply this article, two conditions must be met.

1. The existence of a dispute concerning the interpretation and application of the convention.
2. The absence of an agreement to seek settlement of the dispute by a peaceful means of their own choice. Or, if there were such an agreement, three further conditions must be satisfied.

From the analysis above and the position paper handed in by both China and Philippine, the arbitration tribunal then concludes that the contentious issues are:

1. Whether there is a binding agreement
2. Whether a settlement has been reached by resource to the agreed means
3. Whether Declaration on the Code
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The Tribunal decision simply said: “The Parties’ subsequent conduct further confirms that the DOC is not a binding agreement”. The Philippine argued that if the DOC were a treaty, then there was no need in pursuing the establishment of Code of conduct for parties in the South China Sea (hereafter referred to as “COC”). However, the potential establishment of a newer treaty cannot deny the existence of an older one. When we take the circumstance surrounding the DOC’s adaptation into consideration, it is difficult, if not impossible, to reach a consensus among the parties on the complex South China Sea issue. The DOC is just the outcome of a periodic negotiation. It just includes the basic, general principle of international relations in South China Sea. The draftsmen at that time predicted that, with the passage of time and the deepening of communication, more consensus might be reached and more particular details might be discussed. As a consequence, they make an agenda which include the future establishment of COC.

Besides, both China and Philippine, along with other ASEAN countries, had devoted much time and energy in convening international conferences and negotiating the actual, particular operation of the DOC. If Philippine did not have the intent of being bound by the DOC, it should not waste its time and energy in participating the above conferences and
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And compare this provision to article 1 of the United Nations Charter:

Article 1 The Purposes of the United Nations are
1.To maintain international peace and security, to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace;
2.To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace;
3.To achieve international co-operation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion; and
4.To be a centre for harmonizing the actions of nations in the attainment of these common

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