Why the Award on Jurisdiction and Admissibility of the South China Sea Arbitration Is Null and Void? – Taking Article 283 of the UNCLOS as an Example

YU MinyouXIE Qiong

Why the Award on Jurisdiction and Admissibility of the South China Sea Arbitration Is Null and Void? – Taking Article 283 of the UNCLOS as an Example

YU Minyou*XIE Qiong**

The Arbitral Tribunal of the South China Sea Arbitration, which was initiated unilaterally by the Philippines, declared its one-sided arguments in the Award on Jurisdiction and Admissibility (hereinafter “Award”) released on 29 October 2015. The Award failed to make a proper reasoning on Article 283 (“the obligation to exchange views”) of the United Nations Convention on the Law of the Sea (UNCLOS). First of all, the facts provided to prove the fulf i llment of the obligation to exchange views don’t belong to the category of “views exchanging”. Further, the Tribunal cuts off the relations between the obligation to exchange views and the obligation to negotiate; as a result, the former obligation becomes meaningless, which is contrary to the purpose of the UNCLOS. Accordingly, the Tribunal failed to effectively establish its jurisdiction over the case; and the decisions in the Award are erroneous. The fi nal Award, which is founded on this Award, consequently will be also null and void.

UNCLOS; Obligation to exchange views; South China Sea Arbitration

I. Introduction

The Philippines initiated, on 22 January 2013, the arbitration procedure under Annex VII of the United Nations Convention on the Law of the Sea (hereinafter referred to as the “UNCLOS” or the “Convention”) against China on the issue of the jurisdiction over some parts of the South China Sea (hereinafter “South China Sea Arbitration”). China expressed its position of “non-acceptance” and “nonparticipation” in the proceedings since the beginning for several reasons, one of which is that the essence of the subject-matter submitted by the Philippines is the territorial sovereignty over several maritime features or concerned with maritime delimitation issues. China fi led a declaration according to Article 298 of UNCLOS as early as 2006, which excludes disputes concerning maritime delimitation from compulsory arbitration and other compulsory dispute settlement procedures. Under the circumstance, China released its “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” (hereinafter “Position Paper”) outside the Arbitral Tribunal on 7 December 2014, demonstrating that the Tribunal obviously lacked jurisdiction over the case.①Position 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, 7 December 2014, para. 3, at http://www.fmprc.gov.cn/mfa_chn/ziliao_611306/tytj_611312/ zcwj_611316/t1217143.shtml, 20 March 2016. [hereinafter “Position Paper”]In April 2015, the Tribunal decided to treat China’s challenges against its jurisdiction as preliminary objections, and issued the “Award on Jurisdiction and Admissibility” (hereinafter “Award”) on 29 October of the same year.②South China Sea Arbitration Case, Award on Jurisdiction and Admissibility, 29 October 2015, at http://www.pcacases.com/web/sendAttach/1506, 20 March 2016. [hereinafter“Award”]

In the Award, the Tribunal ruled that it had jurisdiction on seven of the Philippines’ 15 submissions (Submissions Nos. 3, 4, 6, 7, 10, 11 and 13), the jurisdiction on the other 7 claims (Submissions Nos. 1, 2, 5, 8, 9, 12 and 14) should be decided together with the merits issues, and Submission No. 15 should be clarif i ed further by the Philippines. The Award showed a conspicuous favoritism towards the Philippines. In particular, when demonstrating whether the “obligation to exchange views” as provided in Article 283 of the UNCLOS has been fulf i lled, the Tribunal extremely erred. During the fact-f i nding process and when applying the applicable laws, the Tribunal committed apparent mistakes.

II. Performing in Good Faith the “Obligation to Exchange Views” as Provided in Article 283 of the Convention Is a Requisite for Establishing the Jurisdiction of an Arbitral Tribunal

A. Legal Requirements to Establish the Jurisdiction of an Arbitral Tribunal under Annex VII

According to Part XV and Annex VII of the Convention, to establish the jurisdiction of an Annex VII arbitral tribunal, four requirements must be met, including: (1) the eligibility of the subject, that is, the parties to a dispute must have ratif i ed the Convention; (2) the eligibility of the object, i.e., there is a dispute between the parties and the dispute submitted to the arbitral tribunal should be a dispute “concerning the interpretation or application of the Convention”; (3) the preconditions provided in Articles 281, 282, 283 and 295 of the Convention should be fulf i lled; and (4) no issues relating to Articles 297 and 298 of the Convention exist.①LIU 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. 30.In practice, since each case concerns different disputes, arbitral tribunals may put emphasis on different points when analyzing. However, the logic chain of the four requirements must be complete. Among them, Article 283 of the Convention, “the obligation to exchange views”, is of much importance. Even if a dispute concerning the interpretation or application of the Convention exists between the parties, the non-fulf i llment of the obligation will prevent the initiation of a compulsory procedure under Section 2, Part XV of the Convention. In that case, the tribunal will have no jurisdiction on the case initiated.

The Arbitral Tribunal discussed, in the Award, all the above requirements of the Convention, except Article 295. In the Award, the Tribunal failed to identify any disputes between the parties or to determine whether the disputes concern the interpretation or application of the Convention. Additionally, its reasoning on whether the “obligation to exchange views” as provided in Article 283 has been fulf i lled is particularly questionable.

B. “Obligation to Exchange Views” Provided in Article 283 and “Good Faith” Provided in Article 300 of the Convention

Article 283 of the Convention provides for the specif i c obligation to exchange views before the initiation of a judicial or arbitral case.①José Manuel Cortés Martín, Prior Consultation and Jurisdiction at ITLOS, The Law and Practice of International Courts and Tribunals, Vol. 13, Issue 1, 2004, pp. 2～7, 14～17; Mariano J. Aznar, The Obligation to Exchange Views before the International Tribunal for the Law of the Sea: A Critical Appraisal, Revue Belge de Droit International, Vol. 47, No. 1, 2014, pp. 241～246.Article 283, titled“obligation to exchange views”, consists of two paragraphs.②The second paragraph of Article 283 has no legal signif i cance to the present case, it thus will not be examined in this paper.The fi rst paragraph requires that the parties to a dispute concerning the interpretation or application of the Convention should, after the dispute arises, promptly exchange views on solving the dispute through negotiation or other peaceful means. If the parties to the dispute fail to actively fulf i ll the obligation, they should not initiate the compulsory procedures under Section 2, Part XV, including the Annex VII Arbitration.

Firstly, the precondition of applying Article 283 should be that a real dispute concerning the interpretation or application of the Convention exists between the parties. Secondly, the views exchanged should be def i nitely related to the dispute, not any other issues. Thirdly, the behavior of “views exchanging” must happen after the dispute arises. Fourthly, the contents of the views exchanged must relate to the method to settle the dispute, such as negotiation or other peaceful means. Therefore, the object of “views exchanging” is not the “dispute”, but the “means to settle” the dispute. First of all, there should exist an exchange of views regarding its settlement by the most proper means.③José Manuel Cortés Martín, Prior Consultation and Jurisdiction at ITLOS, The Law and Practice of International Courts and Tribunals, Vol. 13, Issue 1, 2004, p. 16.Fifthly, “to exchange views” is a compulsory obligation.④Mariano J. Aznar, The Obligation to Exchange Views before the International Tribunal for the Law of the Sea: A Critical Appraisal, Revue Belge de Droit International, Vol. 47, No. 1, 2014, pp. 245～246.The fulf i llment of the obligation cannot be established by a mere action of views exchanging; instead, it must be assessed by certain standards. Finally, an exchange of views must proceed “expeditiously” when a dispute arises.

With respect to the intentions of the Convention drafters, the establishment of the “obligation to exchange views” by Article 283 is not aimed at the “obligation”itself only, but to emphasize the settlement of disputes by negotiations. “Theinsertion of Article 283 is the result of the insistence of certain delegations that the primary obligation should be that the parties to a dispute should make every ef f ort to settle the dispute through negotiation.”①M(fèi)yron H. Nordquist ed., United Nations Convention on the Law of the Sea 1982: A Commentary, Vol. V, Leiden/Boston: Martinus Nijhof f Publisers, 1989, p. 29.“The text refers to this obligation in an indirect fashion, making it the main objective of the basic duty ‘to exchange views’regarding the peaceful means that the parties choose by which the dispute should be settled.”②Myron H. Nordquist ed., United Nations Convention on the Law of the Sea 1982: A Commentary, Vol. V, Leiden/Boston: Martinus Nijhof f Publisers, 1989, p. 29.As a scholar notes, “exchange of views” is a term related to negotiation, which can be seen as the next step to “exchange of views”.③Kari Hakap??, Negotiation, in R. Wolfrum ed., Max Planck Encyclopediaon of Public International Law, Oxford: Oxford University Press, 2015, para. 16.In the meantime, the designation of “the obligation to exchange views” is in conformity with the“obligation of cooperation”,④Anne Peters, International Dispute Settlement: A Network of Cooperational Duties, European Journal of International Law, Vol. 14, No. 1, 2003, p. 2.which is inherent in the mechanism of peaceful settlement of disputes. When a dispute arises, the parties should make every ef f ort to settle it. In this case, only when there is no possibility to cooperate, can the parties bring the dispute before the compulsory procedure under the Convention.

Furthermore, the provision of Article 300 of the Convention, “State Parties shall fulfill in good faith the obligation assumed under the Convention…”, necessarily applies to the obligation to exchange views. In the Nuclear Tests Case, the International Court of Justice pointed out that, “One of the basic principles governing the creation and performance of legal obligations, whatever their source, is the principle of good faith. Trust and conf i dence are inherent in international cooperation, in particular in an age when this co-operation in many fi elds is becoming increasingly essential.”⑤Nuclear Tests (Australia v. France), Judgment, ICJ Reports 1974, p. 268, para. 46.

Good faith deploys a certain kind of constitutional quality within the international law scheme and beyond that is conceived to be the very foundation of all law.⑥Markus Kotzur, Good Faith (Bona fi de), in R. Wolfrum ed., Max Planck Encyclopedia of Public International Law, Oxford: Oxford University Press, 2013, para. 25.Firstly, there is a basic rule in international law: “additional international obligations may be imposed on any subject of international law only with its consent”. This rule has its origin from the principle of sovereign equality. International law established by States’ implied or express consent, is a set of fi xed rules generated from mutual consent. Although its implementation could beobligatory, if necessary, international law mainly relies on voluntary observance and implementation in good faith by States and other subjects of international law. Secondly, the international order and regimes established according to the international law are, in essence, the rights enjoyed and obligations undertaken by the States under the international law. Only fulfilling the obligation in good faith can the States enjoy the rights and benef i ts arising from these international orders and regimes. Fulf i llment of international obligations in good faith does not conflict with the principle of state sovereignty; it is, in fact, the outcome of the implementation of the latter principle. As a general rule, an international obligation becomes binding in international law only when the obligation is voluntarily assumed in line with the principle of state sovereignty; any international obligation created in contrary with the principle of state sovereignty is null and void. In actuality, only if every State sincerely fulf i lls its international obligations, can its state sovereignty be respected. Thirdly, the ef f ectiveness of international law and the stability of international order rest, mainly, upon whether the States faithfully abide by the international rules and fulfill their international obligations in good faith. If international obligations can’t be fulf i lled in good faith, the members of international community would lose their mutual trust, the international law will become a mere empty name, international cooperation regimes will be incapable of normal functioning, and the international order will be jeopardized.

All in all, in accordance with Articles 283 and 300, to judge whether “the obligation to exchange views” has been fulfilled, several basic conditions must be considered. First, during an exchange of views, the parties to a dispute must mention that the dispute concerns some specific clauses of the Convention.①Natalie Klein, Dispute Settlement in the UN Convention on the Law of the Sea, Cambridge: Cambridge University Press, p. 64.Second, the issues discussed during the exchange of views must be or include the issues in the claims; if the parties discuss something, but their claims pertain to something else, then such discussions do not belong to the category of “exchange of views” provided in Article 283. Third, views must be exchanged after the emergence of a dispute, but before the initiation of an arbitration. Fourth, both parties should exchange their views frequently in a given period. This is inherent in this obligation. Fifth, “the obligation to exchange views” is not an obligation in form, but a substantive one, which is an inherent requirement of carrying out one’s obligations in good faith.

C. International Practices Concerning the “Obligation to Exchange Views” under the Convention

To date, Article 283 has attracted many debates in practice. Actually, it has been discussed in most of the Annex VII arbitration awards. The Southern Bluef i n Tuna Fish Case is the fi rst one to discuss Article 283 in detail. The arbitral tribunal held that,

negotiations have been prolonged, intense and serious. Since in the course of those negotiations, the Applicants invoked UNCLOS and relied upon provisions of it, ... those negotiations may also be regarded as fulfilling another condition of UNCLOS, that of Article 283.①Southern Bluef i n Tuna Case (Australia and New Zealand v. Japan), Award on Jurisdiction and Admissibility, Arbitral Tribunal constituted under Annex VII of the United Nations Convention on the Law of the Sea, 4 August 2000, para. 55, at https://icsid.worldbank.org/ apps/ICSIDWEB/Documents/Award%20on%20Jurisdiction%20and%20Admissibility%20 of%20August%204_2000.pdf, 20 March 2016.

In the MOX Plant Case, “considering that the United Kingdom contends that the requirements of Article 283 of the Convention have not been satisfied since, in its view, there has been no exchange of views regarding the settlement of the dispute by negotiation or other peaceful means”.②The MOX Plant Case (Ireland v. United Kingdom), Request for provisional measures, Order, ITLOS, 3 December 2001, para. 54, at http://www.itlos.org/f i leadmin/itlos/documents/ cases/case_no_10/Order.03.12.01.E.pdf, 20 March 2016.In the Land Reclamation Case, Singapore contended that the requirements of Article 283 had not been met, since there had been no exchange of views regarding the settlement of the dispute by negotiation or other peaceful means, and that Article 283 had made negotiations between the parties a precondition to the activation of Part XV compulsory dispute settlement procedures.③Case Concerning Land Reclamation by Singapore in and around the Traits of Johor (Malaysia v. Singapore), Request for provisional measures, Order, ITLOS, 8 October 2003, paras. 33～34, at http://www.itlos.org/fileadmin/itlos/documents/cases/case_no_12/ Order.08.10.03.E.pdf, 20 March 2016.Judge Chandrasekhara Rao supported Singapore in his“Separate Opinions”, pointing out that “[t]he 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, andit is the duty of the Tribunal to examine whether this is being done.”①Case Concerning Land Reclamation, Separate Opinion of Judge Chandrasekhara Rao, para. 11.Annex VII arbitration cases, like Barbados v. Trinidad and Tobago,②In the Matter of an Arbitration between Barbados and the Republic of Trinidad and Tobago, Award, Arbitral Tribunal, paras. 201～203.Guyana v. Suriname,③In the Matter of an Arbitration between Guyana and Suriname, Award, Arbitral Tribunal, paras. 408～410.Netherlands v. Russian Federation,④In the Matter of the Arctic Sunrise Arbitration between the Kingdom of the Netherlands v. the Russian Federation, Award on the Merits, Arbitral Tribunal, paras. 149～156.and ITLOS provisional measures cases, like Netherlands v. Russian Federation,⑤The “Arctic Sunrise” Case (Kingdom of the Netherlands v. Russian Federation), Request for the Prescription of Provisional Measures, Order, ITLOS, 22 November 2013, paras. 72～75, at http://www.itlos.org/fileadmin/itlos/documents/cases/case_no.22/Order/C22_ Ord_22_11_2013_orig_Eng.pdf, 14 April 2016.Argentina v. Nigeria,⑥The “Ara Libertad” Case (Argentina v. Ghana), Request for the prescription of provisional measures, Order, ITLOS, 15 December 2012, paras. 68～72, at http://www.itlos.org/ fileadmin/itlos/documents/cases/case_no.20/C20_Order_15.12.2012.corr.pdf, 20 March 2016.all have mentioned the obligation to exchange views under Article 283.⑦In practice, the arbitral tribunal of the Southern Bluef i n Tuna Fish Case seriously considered the “obligation to exchange views” as provided in Article 283 of UNCLOS, while other tribunals tended to lower the threshed to apply this article. Inter alia, when the ITLOS examined the preliminary jurisdiction of the arbitral tribunal constituted under Annex VII, it almost regarded this article as an “empty formality”, deviating from the express legal provisions. This act of the ITLOS obviously af f ected the tribunals under Annex VII. Lowering the threshed to apply Article 283 helps to establish a tribunal’s jurisdiction, which is consistent with the tendency where international courts or tribunals seek to gradually expand their jurisdiction. The paper will not dwell on this issue for the sake of topic relevance.

In practice, “exchange of views” doesn’t need a formal procedure, or views are not required explicitly to be exchanged in accordance with Article 283. Some argue that if the parties have mentioned the disputes concerning the interpretation or application of the Convention, then the requirement is fulfilled.⑧Natalie Klein, Dispute Settlement in the UN Convention on the Law of the Sea, Cambridge: Cambridge University Press, p. 64.And “[b] oth the International Tribunal for the Law of the Sea and arbitral tribunals have shown a reluctance to fi nd that article 283 has not been completed with”.⑨David Anderson, Article 283 of the UN Convention on the Law of the Sea, Modern Law of the Sea, Vol. 59, 2007, p. 866.Thus, in practice, there is no case where Article 283 was ruled to be unfulf i lled. However, the fulf i llment of the obligation to exchange views should be determined based on a case-by-case scenario. The awards of many cases deviated from the law and thedrafters’ intention, inviting criticism from scholars.①David A. Colson and Dr. Peggy Hoyle, Satisfying the Procedural Prerequisites to the Compulsory Dispute Settlement Mechanisms of the 1982 Law of the Sea Convention: Is the Southern Bluef i n Tuna Tribunal Get It Right?, Ocean Development and International Law, Vol. 34, No. 1, 2003, pp. 59～82; Mariano J. Aznar, The Obligation to Exchange Views before the International Tribunal for the Law of the Sea: A Critical Appraisal, Revue Belge de Droit International, Vol. 47. No. 1, 2014, pp. 237～254.

III. The Tribunal’s Reasoning on the “Obligation to Exchange Views” under Article 283 in the Award

The Philippines’ fulf i llment of Article 283 under the Convention was analyzed in paragraphs 332 to 352 of the Award. The factual proofs presented in the Award include two round negotiations between China and the Philippines in 1995 and 1998, the Declaration on the Conduct of Parties in the South China Sea in 2002 (hereinafter “DOC” or “Declaration on the Conduct”), China’s three ordinary notes verbales issued in the period between 2009 and 2011, one ordinary note verbale delivered by the Philippines in 2011, a new round of Sino-Philippine negotiation in 2012 and bilateral discussions on the issues concerning Huangyan Dao in April 2012. After a brief and general analysis, the Arbitral Tribunal concluded that the Philippines had fulf i lled this obligation.

However, the arguments of the Tribunal are full of serious fl aws. The proofs above can’t testify that the Philippines has satisf i ed the obligation of Article 283, therefore its conclusion can’t be established. First of all, the facts used to prove the fulf i llment of the obligation to exchange views do not belong to the category of “exchange of views” provided in Article 283. Further, the Tribunal cuts off the connection between the obligation to exchange views and the obligation to negotiate, rendering the former obligation meaningless, which is against the purpose of the Convention.

A. Opinions of the Arbitral Tribunal

As for the obligation to exchange views, the Arbitral Tribunal first pointed out that the views exchanged must concern the means to settle the dispute, rather than any negotiation on the dispute; however, a discussion on the means to settle a dispute is always mixed with a negotiation on the dispute. After that, the Tribunalargued that China and the Philippines had held two rounds of negotiations in 1995 and 1998, and these negotiations indeed included the exchange of views on the means of dispute settlement at that time.①Award, para. 334.The Arbitral Tribunal continued to mention Article 4 of the DOC, and held that the DOC and discussions on the Code of Conduct (hereinafter “COC”) indicated that the parties concerned had made an exchange of views on the means to settle the dispute.②Award, para. 335.

The Arbitral Tribunal quickly realized that, however, the objective facts didn’t support the Philippines:

The DOC was signed in 2002. The consultations highlighted by the Philippines took place in 1995 and 1998. At that time, the dispute between the Parties that appears from the record of the Parties’ exchanges concerned sovereignty over the Spratly Islands and certain activities at Mischief Reef. Critical elements of the disputes that the Philippines has put before the Tribunal had not yet occurred. In particular, China had not yet issued its Notes Verbales of 7 May 2009, nor had it taken the majority of the actions complained of in the Philippines’ Submissions No. 8 to 14.③Award, para. 336.

In order to reverse the disadvantages suf f ered by the Philippines, the Arbitral Tribunal presented the following astounding words:

The Tribunal recognizes that the various disputes between the Parties concerning the South China Sea are related and accepts that it may occur that parties will comprehensively exchange views on the settlement of a dispute only to have that dispute develop further, or other related disputes arise, prior to the commencement of arbitral proceedings. But the Tribunal need not definitively determine the application of Article 283 to such a situation, because the record indicates that the Parties continued to exchange views on the means to settle the disputes between them until shortly before the Philippines initiated this arbitration.④Award, para. 337.

The Arbitral Tribunal then cited a round of bilateral negotiations in 2012①Award, paras. 337～339.and the discussion on Huangyan Dao in April 2012②Award, paras. 340～341.in details.

Finally, the Arbitral Tribunal concluded that “the Parties having exchanged views and failed to reach agreement on the approach for resolving the disputes between them, the Tribunal considers Article 283 to have been satisf i ed.”③Award, para. 343.

B. The Unreasonableness and Groundlessness of the Arbitral Tribunal’s Conclusion

The Arbitral Tribunal’s analysis above-mentioned is built on an erroneous understanding of the obligation under Article 283, which has two serious problems.

The first problem is that the facts provided to prove the fulfillment of the obligation do not belong to the category of “exchange of views” in Article 283.

In the first place, views must be exchanged after a specific dispute occurs. When the Arbitral Tribunal discussed whether the dispute, if it exists, concerns the interpretation or application of the Convention, it failed to point out when“the dispute” occurred. It only listed four Notes Verbales issued during the period between 2009 and 2011 as evidences. The examples given by the Tribunal include two rounds of negotiations in 1995 and 1998, and the DOC signed in 2002. These three time points are all before 2009. Furthermore, the Convention did not come into ef f ect for China in 1995.⑤Position Paper, para. 50.Whether the dispute between China and Philippines exists or not, it cannot be concerned with the interpretation or application of the Convention. China has rightly pointed out that in the Position Paper,

Therefore, given that the Philippines itself considers that only in 2009 did it start to abandon its former maritime claims in conf l ict with the Convention, how could it have started in 1995 to exchange views with China on matters concerning the interpretation or application of the Convention that are related to the present arbitration?⑤Position Paper, para. 50.

As previously mentioned, the Arbitral Tribunal admitted that the dispute inthe procedure initiated by the Philippines did not arise prior to 2009. Especially, the Tribunal admitted that China had not yet issued its Notes Verbales of 2009, nor taken the majority of the actions claimed by the Philippines in its Submissions No. 8 to 14. The Arbitral Tribunal explained that it “recognizes that the various disputes between the Parties concerning the South China Sea are related and accepts that it may occur that parties will comprehensively exchange views on the settlement of a dispute only to have that dispute develop further, or other related dispute arise, prior to the commencement of arbitral proceedings”.①Award, para. 337.It means that the parties do not exchange their views at the moment, but they will do so in the future; even if they do not do so in the future, there is a possibility for them to do so. The Arbitral Tribunal continued to mention that “the Tribunal need not def i nitively determine the application of Article 283 to such a situation, because the record indicates that the Parties continued to exchange views on the means to settle the disputes between them until shortly before the Philippines initiated this arbitration.”②Award, para. 337.This general understanding of the Arbitral Tribunal is totally inconsistent with the basic requirements of Article 283, which is a sheer deceit.

Secondly, the dispute which the parties concerned exchange views on the means to settle must be or include the dispute conf i rmed by the Arbitral Tribunal. In other words, the subject-matter discussed during the exchange of views should be identical with the subject-matter of the dispute conf i rmed by the Arbitral Tribunal.

The Arbitral Tribunal also gave an example which happened after 2011: a bilateral consultation carried out on 14 January 2012.③Award, paras. 337～339.The minutes of the discussions recorded that the parties had mentioned the issues of negotiation and legal procedure. It, in the weakest sense, seems that the discussions concern a little about the means to settle the dispute between the parties. But it should be noticed that the Philippines discussed “the disputes in the West Philippine Sea”, whereas China mentioned “this dispute”. The Arbitral Tribunal needs to answer whether these “disputes” or the “dispute” were/was the disputes or dispute established in Part V of the Award? Only when these “disputes” are the “disputes” identified by the Arbitral Tribunal above-mentioned can we say it was an “exchange of views” under Article 283. But the Arbitral Tribunal failed to offer an answer to this question – in fact, the tribunal was not able to of f er such an answer. “Thesedisputes” or “the dispute” discussed in the bilateral consultation are those related to sovereignty and matters concerning the so-called “Kalayaan Island Group”, but not the non-sovereignty disputes identif i ed by the Arbitral Tribunal.

Again, the Philippines has not met the obligation to exchange views on the matters in connection with Huangyan Dao. Huangyan Dao matters may be the only occasion where China and the Philippines had exchanged views under Article 283. Despite of the absence of any talk about the specific dispute concerning Huangyan Dao, both parties not only discussed how to negotiate, but also clearly mentioned the third-party dispute settlement mechanism under the Convention, at least, in their bilateral discussions, which, to some extent, can be deemed as an exchange of views on the means to settle the dispute between them. However, can the Philippines be determined to have fulfilled the obligation to exchange views as provided in Article 283, only because the Philippines delivered a Note Verbale and China made a reply to it? Can the Philippines thus conclude “the possibilities of reaching agreement have been exhausted”?①Award, para. 343.In the Land Reclamation Case, the arbitral tribunal found that Malaysia sent three Notes Verbales to Singapore in a short period, but Singapore refused absolutely or ignored, therefore “the possibilities of reaching agreement have been exhausted”.②Case Concerning Land Reclamation by Singapore in and around the Traits of Johor (Malaysia v. Singapore), Request for provisional measures, Order, ITLOS, 8 October 2003, paras. 39～40, at https://www.itlos.org/fileadmin/itlos/documents/cases/case_no_12/12_ order_081003_en.pdf, 20 March 2016.However, China had responded in good faith to the Philippine Note Verbale. In other words, even if there were differences between the two parties, the channels of communication keep open, which cannot lead to the conclusion that the possibility of concluding an agreement is exhausted. Thus, the action of the Philippines can’t be deemed as a fulf i llment of the obligation in good faith.

Finally, Article 4 of the DOC is an agreement between China and ASEAN on how to solve territorial and jurisdictional disputes. This article indicates that the specif i c provisions on the means of resolving disputes are in place for the parties to invoke, i.e., through friendly consultations and negotiations by the parties to the disputes. However, it was not the exchange of views in the meaning of Article 283. Pursuant to Article 31 of the 1969 Vienna Convention on the Law of Treaties, a treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its objectand purpose. In that case, “an exchange of views” should be interpreted that two parties articulate their dif f erent claims or opinions separately and make every ef f ort to reach an agreement, but fail to reach such an agreement. “Agreement” is totally dif f erent from “an exchange of views” in their very nature; the Arbitral Tribunal however simply confused the two terms. If the DOC is merely an exchange of views, why the ratifying parties seriously negotiated, drafted, adopted, signed and ratif i ed it as such?

The second problem is that the Arbitral Tribunal distorted the obligation of Article 283, cutting of f the intimate connection between the obligation to exchange views and the obligation to negotiate, and making the “obligation to exchange views” meaningless. This distortion is against the purpose of the Convention and may destroy the delicate equilibrium among the dispute settlement mechanisms under the Convention.

The Arbitral Tribunal admitted that the dispute settlement mechanism under the Convention is the result of a delicate equilibrium reached after a series of compromises. The understanding of every clause needs to be considered carefully together with other texts and the context. In particular, it cannot be interpreted in a way against the purpose of the Convention. In the present case, however, the Arbitral Tribunal made every effort to lower the threshold of the application of Article 283, distort the obligation of Article 283, and degrade the obligation to exchange views to any act of views exchanging. In the present Award, the sole requirement to fulf i ll the obligation to exchange views is an act to exchange views, disregarding the views are exchanged after or before the dispute arises, or whether the views exchanged concern the dispute or not. In other words, the Arbitral Tribunal lowered the obligation under Article 283 to only the process before automatically resorting to the compulsory procedure, which further makes this article meaningless.

As mentioned above, Article 283 was aimed at encouraging States to exchange views expeditiously for the purpose of agreeing on a suitable settlement procedure, and was intended to prevent an automatic transfer of a dispute from either non-compulsory procedures to compulsory procedures, or from one forum of compulsory procedures to another.①A. O. Adede, The System for Settlement of Disputes under the United Nations Convention on the Law of the Sea: A Drafting History and A Commentary, Leiden/Boston: Martinus Nijhof f Publishers, 1987, p. 93.Meanwhile, the importance of resolvingdisputes through negotiations is reaffirmed by Article 283.①Natalie Klein, Dispute Settlement in the UN Convention on the Law of the Sea, Cambridge: Cambridge University Press, 2005, p. 33.That is to say, the obligation to exchange views implies an effort to encourage the parties to a dispute to perform their obligation to negotiate. Just as many scholars argue, an exchange of views is a form of negotiation.②J. G. Merrills, The Mosaic of International Dispute Settlement Procedures: Complementary or Contradictory?, Netherlands International Law Review, Vol. 54, No. 2, 2007, pp. 364～366.Furthermore, in the M/V Louis Case (Provisional Measures), Judge Wolfrum pointed out in his dissenting opinion that the negotiations mentioned in Article 283 “have a distinct purpose clearly expressed in this provision namely to solve the dispute without recourse to the mechanisms set out in Section 2 of Part XV of the Convention.”③Dissenting Opinion of Judge Wolfrum, The M/V “Louisa” Case, Saint Vincent and the Grenadines v. Kingdom of Spanish, Request for Provisional Measures, Order, ITLOS, 23 December 2010, para. 27.In the present case, however, Judge Wolfrum, the appointed arbitrator by the Philippines, seems to have forgotten his opinions expressed in the M/V Louis Case. Also in the M/V Louisa Case (Provisional Measures), Judge Treves affirmed that “the claimant State has the burden to state its claims and to invite the other party to an exchange of views, which, in order to constitute a good-faith request, must be open to the possibility of a settlement ‘by negotiation or other peaceful means’.”④Dissenting Opinion of Judge Treves, The M/V “Louisa” Case, Saint Vincent and the Grenadines v. Kingdom of Spanish, Request for Provisional Measures, Order, ITLOS, 23 December 2010, para. 13.But the Award of the South China Sea Arbitration fails to show that the Philippines has done so, neither can we fi nd it in the proofs provided by the Arbitral Tribunal.

China mentioned in the Position Paper that “[b]ut the truth is that the two countries have never engaged in negotiations with regard to the subject-matter of the arbitration.”⑤Position Paper, para. 45.China simply wants to declare that the “disputing” matters claimed by the Philippines have neither been discussed by both parties, nor the opinions of one party have been actively opposed by the other, therefore no dispute can exist on the matters. Accordingly, it is impossible for the two parties to have exchanged views on the means of settling the dispute between them. To be more frank, since no dispute exists between the two parties on the subject-matter, how can one say that this dispute concerns the interpretation or application of the Convention, and that both parties have exchanged their views about the means tosettle their dispute? It should be noted that any previous exchanges of views on the South China Sea issues between China and the Philippines are not concerned with the matters claimed by the Philippines in this arbitration.

In summary, even if the matters claimed by the Philippines in the arbitration are concerned with the Sino-Philippine dispute on the interpretation or application of the Convention, the Arbitral Tribunal didn’t demonstrate effectively that the Philippines had fulf i lled the obligation to exchange views under Article 283. To the contrary, the so-called facts of “views exchanging” conf i rmed China’s declaration that “China and the Philippines made an agreement to solve the South China Sea disputes by negotiation”. Otherwise, both parties would not insist on settling “the dispute” through negotiations since 1995.

IV. Brief Concluding Remarks

The Award released on 29 October 2015 by the Arbitral Tribunal of the South China Sea Arbitration completely denied China’s arguments and reasoning articulated in its Position Paper, but almost totally accepted the opinions and reasoning of the Philippines. The Arbitral Tribunal thus became an “agent” of the Philippines. A careful examination of the Award would reveal various flaws and mistakes made by the Arbitral Tribunal. One of its most severe mistakes is that the Tribunal wrongly ruled that the Philippines had fulfilled the “obligation to exchange views” under Article 283.

The four requirements to establish the jurisdiction of an arbitral tribunal under Annex VII must form a complete logic chain. Any one of the requirements, if unfulf i lled, would break the whole chain, and make an arbitral tribunal unable to establish its jurisdiction. When discussing whether the “obligation to exchange views” provided in Article 283 of the Convention has been fulf i lled, the Arbitral Tribunal made serious errors, thus its conclusion cannot be established. That is to say, even if there are disputes between China and the Philippines concerning the interpretation or application of the Convention, as alleged by the Philippines in the arbitration, the Philippines has not performed the “obligation to exchange views”, therefore the Arbitral Tribunal’s jurisdiction can’t be established effectively, and the Award it issued should also be null and void. The fi nal award, which is founded on this Award, consequently will be also null and void, no matter whether it is favorable or unfavorable to China.

* YU Minyou, Executive Vice-Director of Wuhan University China Institute of Boundary and Ocean Studies, Vice-Director of the Collaborative Innovation Center for Territorial Sovereignty and Maritime Rights, and Professor of Wuhan University Institute of International Law (one of the National High-end Think Tanks in China). E-mail: yumy@ whu.edu.cn.

** XIE Qiong, Assistant Professor of the Institute for International Strategic Studies, the Central Party School of the Communist Party of China, and Research Fellow of the Collaborative Innovation Center for Territorial Sovereignty and Maritime Rights.

? THE AUTHORS AND CHINA OCEANS LAW REVIEW