216
B. Qu
Exchange of views when a dispute has arisen and become unequivocal
In practice, when different countries have disputes on a certain issue, they generally
do not negotiate immediately on the specific way of dispute settlement as stipulated
in article 283 of UNCLOS. Instead, they pay attention to the substantive content of
the dispute, clarify their respective positions, narrow the scope of disputes and reduce
the damage to bilateral relations caused by the dispute.
55 The premise of fulfilling
the obligation to exchange views under article 283 of UNCLOS is that there has
been a dispute between parties and the dispute has been made unequivocal. Prior
to the exchange of views, the parties to a dispute have the obligation to clarify the
dispute through negotiation or consultation. Negotiation and consultation generally
have two functions: to clarify the nature of the dispute and to resolve the dispute.
56 As
negotiations to clarify the dispute, it can be understood as a kind of timely negotiation,
that is, the parties to the dispute exchange information and state their positions on the
disputed matters immediately when a dispute arises, so as to let the dispute disappear
or be clarified. The obligation to exchange views under article 283 of UNCLOS does
not require parties to a dispute to exchange views on the substance of the dispute.
57
However, in fact, if parties to a dispute do not negotiate on the essence of the dispute,
the dispute settlement procedures normally cannot be conducted. Therefore, parties
to a dispute have a pre-performance obligation to clarify the dispute through timely
consultations before performing the obligation of views exchange. For example, the
Permanent Court of International Justice (PCIJ) once stated in the Mavrommatis
Palestine Concessions case that “It recognises, in fact, that before a dispute can be
made the subject of an action at law, its subject matter should have been clearly
defined by means of diplomatic negotiations.”
58
The obligation to exchange views needs to be performed expeditiously and fully
Expeditious exchange of views means that the parties to the dispute shall not delay
the performance of the obligations to exchange views. The obligation to exchange
views shall be fully performed, because the obligation to exchange views is not a
stand-alone and one-off obligation, but a bundle of obligations throughout the dispute
settlement process. When a dispute has arisen, when the dispute settlement procedure has terminated while the dispute has not been settled, or when a settlement has
been reached while consultations on the modalities for its implementation are called
for, the parties to the dispute shall proceed expeditiously with an exchange of views.
55 See David Anderson, “Article 283 of the United Nations Convention on the Law of the Sea”,
in Tafsir Malick Ndiaye and Rüdiger Wolfrum (eds), Law of the Sea, Environmental Law and
Settlement of Disputes : Liber Amicorum Judge Thomas A. Mensah, Leiden: Martinus Nijhoff
Publishers, 2007, p. 865.
56 See Case Concerning Land Reclamation by Singapore in and around the Straits of Johor (Malaysia
v. Singapore), Provisional Measures, Separate Opinion of Judge Ndiaye, para. 4.
57 See Chagos Marine Protected Area Arbitration (Mauritius v. United Kingdom), Award of 18
March 2015, para. 378; see also M/V “Norstar” Case (Panama v. Italy), Preliminary Objections,
Judgment, 4 November 2016, para.208.
58 See Mavrommatis Palestine Concessions, Judgment, 1924, P.C.I.J., Series A, No. 2, p. 15.
B. Qu
Exchange of views when a dispute has arisen and become unequivocal
In practice, when different countries have disputes on a certain issue, they generally
do not negotiate immediately on the specific way of dispute settlement as stipulated
in article 283 of UNCLOS. Instead, they pay attention to the substantive content of
the dispute, clarify their respective positions, narrow the scope of disputes and reduce
the damage to bilateral relations caused by the dispute.
55 The premise of fulfilling
the obligation to exchange views under article 283 of UNCLOS is that there has
been a dispute between parties and the dispute has been made unequivocal. Prior
to the exchange of views, the parties to a dispute have the obligation to clarify the
dispute through negotiation or consultation. Negotiation and consultation generally
have two functions: to clarify the nature of the dispute and to resolve the dispute.
56 As
negotiations to clarify the dispute, it can be understood as a kind of timely negotiation,
that is, the parties to the dispute exchange information and state their positions on the
disputed matters immediately when a dispute arises, so as to let the dispute disappear
or be clarified. The obligation to exchange views under article 283 of UNCLOS does
not require parties to a dispute to exchange views on the substance of the dispute.
57
However, in fact, if parties to a dispute do not negotiate on the essence of the dispute,
the dispute settlement procedures normally cannot be conducted. Therefore, parties
to a dispute have a pre-performance obligation to clarify the dispute through timely
consultations before performing the obligation of views exchange. For example, the
Permanent Court of International Justice (PCIJ) once stated in the Mavrommatis
Palestine Concessions case that “It recognises, in fact, that before a dispute can be
made the subject of an action at law, its subject matter should have been clearly
defined by means of diplomatic negotiations.”
58
The obligation to exchange views needs to be performed expeditiously and fully
Expeditious exchange of views means that the parties to the dispute shall not delay
the performance of the obligations to exchange views. The obligation to exchange
views shall be fully performed, because the obligation to exchange views is not a
stand-alone and one-off obligation, but a bundle of obligations throughout the dispute
settlement process. When a dispute has arisen, when the dispute settlement procedure has terminated while the dispute has not been settled, or when a settlement has
been reached while consultations on the modalities for its implementation are called
for, the parties to the dispute shall proceed expeditiously with an exchange of views.
55 See David Anderson, “Article 283 of the United Nations Convention on the Law of the Sea”,
in Tafsir Malick Ndiaye and Rüdiger Wolfrum (eds), Law of the Sea, Environmental Law and
Settlement of Disputes : Liber Amicorum Judge Thomas A. Mensah, Leiden: Martinus Nijhoff
Publishers, 2007, p. 865.
56 See Case Concerning Land Reclamation by Singapore in and around the Straits of Johor (Malaysia
v. Singapore), Provisional Measures, Separate Opinion of Judge Ndiaye, para. 4.
57 See Chagos Marine Protected Area Arbitration (Mauritius v. United Kingdom), Award of 18
March 2015, para. 378; see also M/V “Norstar” Case (Panama v. Italy), Preliminary Objections,
Judgment, 4 November 2016, para.208.
58 See Mavrommatis Palestine Concessions, Judgment, 1924, P.C.I.J., Series A, No. 2, p. 15.