Obligation to Exchange Views under Article 283 of the United Nations Convention on the Law of the Sea: An Empirical Approach for Improvement

• Author: Deyi Ma
• Position: Professor of Law at East China University of Political Science and Law (ECUPL), China. LL.M./Ph.D. (Dalian Maritime Univ.). ORCID: http://orcid.org/0000-0001-5093-8177.
• Pages: 305-320

Deyi Ma

∗

The obligation to exchange views within the UNCLOS did not play its systematic

role. The disputing parties are uncertain about the scope, mode, and standard of

the obligation to exchange views, with adjudicators demonstrating their subjective

tendencies. The low threshold of the provisional jurisdiction of maritime disputes, the

emergence of jurisdiction over hybrid disputes, and the congenital deficiency of the

dispute settlement mechanism of the UNCLOS address the obligation to exchange

views which has not fully reflected the initial legislative intention and aim of the

UNCLOS. The South China Sea Arbitration initiated by the Philippines demonstrates

that the obligation to exchange views may be perfected and improved, to some extent,

by enhancing the parties’ obligation of disclosure and the tribunal’s obligation of

review. Where relevant unilateral or bilateral agreements exist regulating such type

of disputes before the disputing parties initiate the compulsory arbitration procedure

   

regard for the existence of such agreement.

Keywords

Treaty Interpretation, Obligation to Exchange Views, Obligation to

Disclosure, Mixed Disputes

Obligation to Exchange

Views under Article 283

of the United Nations

Convention on the Law

of the Sea: An Empirical

Approach for Improvement

∗ Professor of Law at East China University of Political Science and Law (ECUPL), China. LL.M./Ph.D. (Dalian Maritime

Univ.). ORCID: http://orcid.org/0000-0001-5093-8177. The author would like to thank Dr. Chenling for her insightful

advice. All errors and omissions remain his own. This research is supported by the National Office for Philosophy and

Social Sciences (18ZDA155). The author may be contacted at: madeyi9@aliyun.com/Address: International Law School,

East China University of Political Science and Law, No. 1575 Wanghangdu Road, Shanghai, P.R. China 200042.

J. EAST ASIA & INT’L L. Vol. 12/No.2 (2019); 305-320

Publication type : Research Article

Section : Notes & Comments

DOI : http://dx.doi.org/10.14330/jeail.2019.12.2.04

306 Deyi Ma

1. Introduction

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.

1

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.

2

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.

3

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.

4

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.