306 Deyi Ma
As a critical legal achievement of the global governance over the sea, the United
Nations on the Law of the Sea of 1982 (“UNCLOS”) creates a system by using “a
package deal” as “a constitution for the oceans.” One highlight of the UNCLOS is the
dispute settlement mechanism as a systematic set, which is laid down in Part XV of
as well as in several Annexes to the UNCLOS. Its innovation lies in both designing
a binding dispute settlement mechanism by peaceful means, and establishing
alternative dispute resolutions. The UNCLOS is not an isolated system. It enhances
regard to the spirit and demands of international law, such as the provisions of the
Charter of the United Nations.
To realize the legislative aim of Part XV, the UNCLOS
sets forth preconditions for “Compulsory Procedures Entailing Binding Decisions,”
such as obligations under general, regional, or bilateral agreements, and obligations
to exchange views and conciliation.
Among these, the “obligation to exchange views”
set forth in Article 283 of the UNCLOS is one of the issues worthy of attention.
Different opinions exist regarding how to determine the standard for both
disputing parties’ sufficient performance of the obligation to exchange views and
how to exchange views as the compulsory measures entailing binding decisions.
Relevant cases indicate that the requirement of Article 283 has been satisfied even
though no real exchange of views occurs if one party to a dispute has made efforts to
exchange views, but both parties fail to exchange views because of the other party.
In a word, the obligation to exchange views in Article 28 of the UNCLOS seems
extremely uncertain. In this paper, the author will take relevant cases including the
South China Sea Arbitration to empirically explore practices related to the obligation
to exchange views.
In addition, the author will tackle the principal issues concerning
the obligation to exchange views under the UNCLOS from a viewpoint of treaty
seek a possible approach of improving the obligation to exchange views.
1 R. CHURCHILL & A. LOWE, THE LAW OF THE SEA190 (1999).
2 United Nations Convention on the Law of the Sea (adopted 10 December 1982, entered into force 16 November 1994),
1833 U.N.T.S. 396, arts. 282, 283 &284.
3 JIANJUN GAO, DISPUTE SETTLEMENT SYSTEM UNDER THE U N CONVENTION ON THE LAW OF THE SEA [
] 176 & 187 (2014).
4 This paper deals with the following cases: the South Bluefin Tuna Case, the MOX Plant Case (Ire. v. U.K.); the Straits
of Johor Land Reclamation Case (Malay. v. Sing.); the Bay of Bengal Delimitation Case (Bangladesh v. Myanmar); the
Arctic Sunrise Case (Neth. v. Russ.), Provisional Measures of South China Sea Arbitration Case, etc.