218
B. Qu
the first party shall be deemed to have refused to perform the obligation of exchange
of views and bear the negative consequences for failing to perform the obligation.
In the MOX Plant Case, the court held that Ireland had exchanged views on
the disputes which caught attention of the UK, and for such reason Ireland had
fulfilled its obligation to exchange views.
64 In the Case Concerning Land Reclamation by Singapore in and around the Straits of Johor, the court indicated that
Malaysia had repeatedly referred notes to Singapore on the dispute while Singapore
had always rejected Malaysia’s requests, and under such circumstance Malaysia’s
failure to continue exchange views would not constitute a breach of Article 283.
65 In
the case of Barbados v. Trinidad and Tobago, the arbitral tribunal determined that the
dispute existed and the obligation to negotiate had been fulfilled by Parties, and the
compulsory procedure may commence.
66 In M/V “Louisa”, the court cited judgments
of Southern Bluefin Tuna and the MOX Plant Case that once the optional procedure
has exhausted Parties need not continue exchange views, and determined that St.
Vincent and the Grenadines had met the requirements of Article 283.
67 Nevertheless, Judge Rao made it clear in his separate opinion on the case of Land Reclamation
by Singapore in and around the Straits of Johor that, “The requirement of this article
regarding exchange of views is not an empty formality, to be dispensed with at the
whims of a disputant. The obligation in this regard must be discharged in good faith,
and it is the duty of the Tribunal to examine whether this is being done..”
68 In the case
of the M/V “Louisa”, Judges Wolfrum, Golitsyn and Treves likewise disapproved of
the tribunal’s determination of the fulfillment of the obligations. The judges noted
that to fulfill the duty of exchange views, both parties should sincerely deliver and
reply to each other’s message of views.
69 In addition, when the tribunal examines
whether the obligation to exchange views has been satisfied, the parties shall have
sufficient evidence to prove that views have been exchanged.
70 Moreover, only when
disputes concerning interpretation and application of the UNCLOS have arisen, shall
parties to the dispute have an obligation to exchange views.
71
64 See MOX Plant Case (Ireland v. United Kingdom), Provisional Measures, Order of 3 December
2001, ITLOS Reports 2001, p. 107, para. 58.
65 See Case Concerning Land Reclamation by Singapore in and around the Straits of Johor (Malaysia
v. Singapore)Provisional Measures, Order of October 8, ITLOS Reports 2003, p. 19, paras. 39–40,
p. 20, paras. 49–50.
66 See Barbados v. Trinidad and Tobago, Award of the Arbitral Tribunal, 11 April 2006, paras.
195–198.
67 See M/V “Louisa” (Saint Vincent and the Grenadines v. Kingdom of Spain), Provisional Measures,
Order of 23 December 2010, ITLOS Reports 2008–2010, p. 68, paras. 63–65.
68 Case Concerning Land Reclamation by Singapore in and around the Straits of Johor (Malaysia
v. Singapore), Provisional Measures, Separate opinion of Judge Rao, para. 11.
69 See M/V “Louisa” (Saint Vincent and the Grenadines v. Kingdom of Spain), Provisional Measures,
Order of 23 December 2020, ITLOS Reports 2008–2010, Dissenting Opinion of Judge Wolfrum,
para. 28.
70 See M/V “Louisa” (Saint Vincent and the Grenadines v. Kingdom of Spain), Provisional Measures,
Dissenting Opinion of Judge Golitsyn, para. 8.
71 See M/V “Louisa” (Saint Vincent and the Grenadines v. Kingdom of Spain), Provisional Measures,
Dissenting Opinion of Judge Treves, paras. 7–11.
B. Qu
the first party shall be deemed to have refused to perform the obligation of exchange
of views and bear the negative consequences for failing to perform the obligation.
In the MOX Plant Case, the court held that Ireland had exchanged views on
the disputes which caught attention of the UK, and for such reason Ireland had
fulfilled its obligation to exchange views.
64 In the Case Concerning Land Reclamation by Singapore in and around the Straits of Johor, the court indicated that
Malaysia had repeatedly referred notes to Singapore on the dispute while Singapore
had always rejected Malaysia’s requests, and under such circumstance Malaysia’s
failure to continue exchange views would not constitute a breach of Article 283.
65 In
the case of Barbados v. Trinidad and Tobago, the arbitral tribunal determined that the
dispute existed and the obligation to negotiate had been fulfilled by Parties, and the
compulsory procedure may commence.
66 In M/V “Louisa”, the court cited judgments
of Southern Bluefin Tuna and the MOX Plant Case that once the optional procedure
has exhausted Parties need not continue exchange views, and determined that St.
Vincent and the Grenadines had met the requirements of Article 283.
67 Nevertheless, Judge Rao made it clear in his separate opinion on the case of Land Reclamation
by Singapore in and around the Straits of Johor that, “The requirement of this article
regarding exchange of views is not an empty formality, to be dispensed with at the
whims of a disputant. The obligation in this regard must be discharged in good faith,
and it is the duty of the Tribunal to examine whether this is being done..”
68 In the case
of the M/V “Louisa”, Judges Wolfrum, Golitsyn and Treves likewise disapproved of
the tribunal’s determination of the fulfillment of the obligations. The judges noted
that to fulfill the duty of exchange views, both parties should sincerely deliver and
reply to each other’s message of views.
69 In addition, when the tribunal examines
whether the obligation to exchange views has been satisfied, the parties shall have
sufficient evidence to prove that views have been exchanged.
70 Moreover, only when
disputes concerning interpretation and application of the UNCLOS have arisen, shall
parties to the dispute have an obligation to exchange views.
71
64 See MOX Plant Case (Ireland v. United Kingdom), Provisional Measures, Order of 3 December
2001, ITLOS Reports 2001, p. 107, para. 58.
65 See Case Concerning Land Reclamation by Singapore in and around the Straits of Johor (Malaysia
v. Singapore)Provisional Measures, Order of October 8, ITLOS Reports 2003, p. 19, paras. 39–40,
p. 20, paras. 49–50.
66 See Barbados v. Trinidad and Tobago, Award of the Arbitral Tribunal, 11 April 2006, paras.
195–198.
67 See M/V “Louisa” (Saint Vincent and the Grenadines v. Kingdom of Spain), Provisional Measures,
Order of 23 December 2010, ITLOS Reports 2008–2010, p. 68, paras. 63–65.
68 Case Concerning Land Reclamation by Singapore in and around the Straits of Johor (Malaysia
v. Singapore), Provisional Measures, Separate opinion of Judge Rao, para. 11.
69 See M/V “Louisa” (Saint Vincent and the Grenadines v. Kingdom of Spain), Provisional Measures,
Order of 23 December 2020, ITLOS Reports 2008–2010, Dissenting Opinion of Judge Wolfrum,
para. 28.
70 See M/V “Louisa” (Saint Vincent and the Grenadines v. Kingdom of Spain), Provisional Measures,
Dissenting Opinion of Judge Golitsyn, para. 8.
71 See M/V “Louisa” (Saint Vincent and the Grenadines v. Kingdom of Spain), Provisional Measures,
Dissenting Opinion of Judge Treves, paras. 7–11.