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
SUMMARY

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... (see full summary)

 
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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 tribunals 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 & INTL 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.

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