《联合国海洋法公约》 附件七仲裁庭第一案的启示 ——南方金枪鱼案述评
The First Case of the Arbitral Tribunal Constituted under Annex VII of the United Nations Convention on the Law of the Sea and Its Inspiration - Commentary on the Southern Bluefin Tuna Case
【中文摘要】南方金枪鱼案是第一个按照《联合国海洋法公约》附件七组成的仲裁庭审理的案件，也是国际仲裁庭拒绝管辖权的第一个案例。虽然仲裁庭在最终裁决中推翻了国际海洋法法庭关于管辖权的初步裁定，而没有进入实质审查阶段，但是南方金枪鱼案充分体现了国际仲裁的“预防性外交”功能，同时为《联合国海洋法公约》争端解决机制的发展做出了里程碑式的贡献。该案还涉及对科学不确定性因素的法律应对，被认为间接承认了“预警原则”的在国际海洋法中的法律地位。 【Abstract】The Southern Bluefin Tuna Case was the first case that was heard by the arbitral tribunal constituted pursuant to Annex VII of the United Nations Convention on the Law of the Sea. It was also the first of its kind where the jurisdiction was rejected by an international arbitral tribunal. The tribunal finally ruled to reverse the preliminary ruling of the ITLOS on jurisdiction, leaving the case not entering the substantive examination stage. Despite this, the case fully exemplifies “preventive diplomacy” as a function of international arbitration. It has been a milestone in the development of the dispute settlement mechanism under the UNCLOS. The case is also related to the reaction in law to scientific uncertainties. It is deemed to have accepted the legal status of the precautionary principle in international law of the sea.