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© Springer Nature Switzerland AG 2019
A. Del Vecchio, R. Virzo (eds.), Interpretations of the United Nations
Convention on the Law of the Sea by International Courts and Tribunals,
https://doi.org/10.1007/978-3-030-10773-4_11
Non-participation in Arbitral Proceedings
Under Annex VII United Nations
Convention on the Law of the Sea: Arctic
Sunrise and South China Sea Compared
Otto Spijkers
Abstract This paper analyzes the legal consequences of non-participation in arbitral proceedings under Annex VII to the United Nations Law of the Sea Convention
(LOSC). Two recent examples of non-participation are analyzed and compared with
each other: first, the case of the Arctic Sunrise, and second, the South China Sea
case. The first case was instituted by the Netherlands against Russia. The second
case was instituted by the Philippines against China. In both cases, the respondent
State did not take part in any way in the arbitral proceedings. There are some striking similarities between the two cases. For example, in both cases, the respondent
State made extensive reservations to jurisdiction, but the applicant State formulated
its submissions in such a way that these reservations turned out not to be a bar to the
exercise of jurisdiction by the tribunal. There are also some differences between the
two cases: unlike Russia, China developed a quite sophisticated and relatively consistent legal argumentation, but it did so outside the arbitral process, in the media, at
conferences, and in scholarly articles.
1 Introduction
This article is about two disputes relating to the law of the sea. The first dispute is
between the Netherlands and Russia, and regards the legality of the detention, by the
Russians, of the Arctic Sunrise and its crew. The Arctic Sunrise is a ship operated by
Greenpeace, and with Amsterdam (Netherlands) as its port of registry. The second
dispute is between the Philippines and China, and relates to the legality of all kinds of
claims and activities, mostly held and undertaken by China, in the South China Sea.
O. Spijkers (*)
Netherlands Institute for the Law of the Sea (NILOS), Utrecht University, Utrecht,
The Netherlands
Utrecht Centre for Water, Oceans and Sustainability Law (UCWOSL), Utrecht University,
Utrecht, The Netherlands
e-mail: o.spijkers@uu.nl
© Springer Nature Switzerland AG 2019
A. Del Vecchio, R. Virzo (eds.), Interpretations of the United Nations
Convention on the Law of the Sea by International Courts and Tribunals,
https://doi.org/10.1007/978-3-030-10773-4_11
Non-participation in Arbitral Proceedings
Under Annex VII United Nations
Convention on the Law of the Sea: Arctic
Sunrise and South China Sea Compared
Otto Spijkers
Abstract This paper analyzes the legal consequences of non-participation in arbitral proceedings under Annex VII to the United Nations Law of the Sea Convention
(LOSC). Two recent examples of non-participation are analyzed and compared with
each other: first, the case of the Arctic Sunrise, and second, the South China Sea
case. The first case was instituted by the Netherlands against Russia. The second
case was instituted by the Philippines against China. In both cases, the respondent
State did not take part in any way in the arbitral proceedings. There are some striking similarities between the two cases. For example, in both cases, the respondent
State made extensive reservations to jurisdiction, but the applicant State formulated
its submissions in such a way that these reservations turned out not to be a bar to the
exercise of jurisdiction by the tribunal. There are also some differences between the
two cases: unlike Russia, China developed a quite sophisticated and relatively consistent legal argumentation, but it did so outside the arbitral process, in the media, at
conferences, and in scholarly articles.
1 Introduction
This article is about two disputes relating to the law of the sea. The first dispute is
between the Netherlands and Russia, and regards the legality of the detention, by the
Russians, of the Arctic Sunrise and its crew. The Arctic Sunrise is a ship operated by
Greenpeace, and with Amsterdam (Netherlands) as its port of registry. The second
dispute is between the Philippines and China, and relates to the legality of all kinds of
claims and activities, mostly held and undertaken by China, in the South China Sea.
O. Spijkers (*)
Netherlands Institute for the Law of the Sea (NILOS), Utrecht University, Utrecht,
The Netherlands
Utrecht Centre for Water, Oceans and Sustainability Law (UCWOSL), Utrecht University,
Utrecht, The Netherlands
e-mail: o.spijkers@uu.nl