11 China’s Theory and Practice on Maritime Dispute Resolution
215
282 in cases where article 281 is satisfied, even if the parties have agreed the binding
procedure referred to in article 282. For example, dispute parties stipulated dispute
concerning interpretation and application of UNCLOS may be submitted to the ICJ at
the request of a party in a regional convention. However, the parties to the dispute have
agreed to resolve the dispute through direct negotiations after consultations on the
settlement of the dispute. Where the latter procedure is not exhausted, the alternative
procedure provided for in article 282 does not apply, and the procedure provided
for by the parties under articles 280 and 281 of UNCLOS shall apply. Therefore,
scholars pointed out that the application of the other procedures in article 281, article
282 and Part 15 has strict sequence requirements and is exclusive, and only when
the former condition does not exist, can the latter procedure be applicable.
49
China consistently asserts to resolve disputes through negotiation and consultation, and does not choose the courts or tribunals under article 287 of UNCLOS.
50
Because the non-existence of any agreement between China and the Philippines that
stipulated the compulsory procedure entailing binding decision as stipulated in article
282, China always emphasizes the application of article 281.
51
11.3.3 Article 283 Relating to the Obligation to Exchange
Views and Compulsory Procedure
Exchange of views is a legal obligation in UNCLOS
52 and is a fundamental obligation for dispute parties.
53 Also the obligation to exchange views is an obligation
as precondition.
54 According to articles 280, 281 and 286 of UNCLOS, the primacy
of the obligation to exchange views is reflected by the prevention of initiation of
compulsory procedure when parties do not perform such an obligation. Parties to a
dispute cannot deviate from the obligation in any form. In the South China Sea arbitration case, the Philippines believe that they have fulfilled its obligation to exchange
views, which was supported by the arbitral tribunal. However, they ignored that to
fulfill the obligation to exchange views some specific conditions must be satisfied.
49 See Liu Heng, “Legal Requirements for the Establishment of Jurisdiction over Compulsory
Arbitration of Maritime Disputes: From the Perspective of Arbitration under Annex VII of the
UNCLOS”, China Oceans Law Review, Vol. 2015, No. 1, p. 12.
50 Settlement of disputes mechanism, http://www.un.org/depts/los/settlement_of_disputes/choice_
procedure.htm#Choice_of_procedure, visited on 29 May 2020.
51 “Position Paper of the Government of the People’s Republic of China on the Matter of Jurisdiction
in the South China Sea Arbitration Initiated by the Republic of the Philippines”, paras. 30–44.
52 Some scholars hold that the legal obligation of exchange of views is the mandatory negotiation
rule in the voluntary settlement mechanism of the convention. Pan Junwu, “Compulsory Dispute
Settlement System in 1982 UNCLOS: A Profound Analysis”, Science of Law (Journal of Northwest
University of Political Science and Law), 2014, No. 4, p. 194.
53 See Stefan Talmon and Bing Bing Jia, The South China Sea Arbitration: A Chinese Perspective,
Oxford: Hart Publishing, 2014, p. 60.
54 Chinese Society of International Law (2016, p. 18).
215
282 in cases where article 281 is satisfied, even if the parties have agreed the binding
procedure referred to in article 282. For example, dispute parties stipulated dispute
concerning interpretation and application of UNCLOS may be submitted to the ICJ at
the request of a party in a regional convention. However, the parties to the dispute have
agreed to resolve the dispute through direct negotiations after consultations on the
settlement of the dispute. Where the latter procedure is not exhausted, the alternative
procedure provided for in article 282 does not apply, and the procedure provided
for by the parties under articles 280 and 281 of UNCLOS shall apply. Therefore,
scholars pointed out that the application of the other procedures in article 281, article
282 and Part 15 has strict sequence requirements and is exclusive, and only when
the former condition does not exist, can the latter procedure be applicable.
49
China consistently asserts to resolve disputes through negotiation and consultation, and does not choose the courts or tribunals under article 287 of UNCLOS.
50
Because the non-existence of any agreement between China and the Philippines that
stipulated the compulsory procedure entailing binding decision as stipulated in article
282, China always emphasizes the application of article 281.
51
11.3.3 Article 283 Relating to the Obligation to Exchange
Views and Compulsory Procedure
Exchange of views is a legal obligation in UNCLOS
52 and is a fundamental obligation for dispute parties.
53 Also the obligation to exchange views is an obligation
as precondition.
54 According to articles 280, 281 and 286 of UNCLOS, the primacy
of the obligation to exchange views is reflected by the prevention of initiation of
compulsory procedure when parties do not perform such an obligation. Parties to a
dispute cannot deviate from the obligation in any form. In the South China Sea arbitration case, the Philippines believe that they have fulfilled its obligation to exchange
views, which was supported by the arbitral tribunal. However, they ignored that to
fulfill the obligation to exchange views some specific conditions must be satisfied.
49 See Liu Heng, “Legal Requirements for the Establishment of Jurisdiction over Compulsory
Arbitration of Maritime Disputes: From the Perspective of Arbitration under Annex VII of the
UNCLOS”, China Oceans Law Review, Vol. 2015, No. 1, p. 12.
50 Settlement of disputes mechanism, http://www.un.org/depts/los/settlement_of_disputes/choice_
procedure.htm#Choice_of_procedure, visited on 29 May 2020.
51 “Position Paper of the Government of the People’s Republic of China on the Matter of Jurisdiction
in the South China Sea Arbitration Initiated by the Republic of the Philippines”, paras. 30–44.
52 Some scholars hold that the legal obligation of exchange of views is the mandatory negotiation
rule in the voluntary settlement mechanism of the convention. Pan Junwu, “Compulsory Dispute
Settlement System in 1982 UNCLOS: A Profound Analysis”, Science of Law (Journal of Northwest
University of Political Science and Law), 2014, No. 4, p. 194.
53 See Stefan Talmon and Bing Bing Jia, The South China Sea Arbitration: A Chinese Perspective,
Oxford: Hart Publishing, 2014, p. 60.
54 Chinese Society of International Law (2016, p. 18).