172
One similarity between the two disputes is that one party made an effort to settle the
dispute through international adjudication, whilst the other refused to participate in
such proceedings. In other words, the Russians and Chinese have consistently maintained a strategy of non-participation in international arbitration. A strategy of nonparticipation is relatively unique in international law. The only important example
from the past is the non-participation of the United States of America in its dispute
with Nicaragua, before the International Court of Justice in the 1980s. It is therefore
interesting to take a good look at the practical and legal consequences of non-participation. First, an overview of the applicable legal framework is provided (Sect. 2),
followed by an analysis of the two procedures, starting with the one between the
Netherlands and Russia (Sect. 3), and then the one between the Philippines and
China (Sect. 4). By way of a conclusion, the two disputes will be compared, in an
attempt to draw therefrom some general lessons for the future (Sect. 5).
1
2 Law on Non-participation
What does the applicable law say about non-participation in international dispute
settlement of controversies relating to the application and interpretation of the UN
Law of the Sea Convention (LOSC or the Convention)?
2
In principle, the LOSC
provides for compulsory dispute settlement. However, according to Art. 298 LOSC,
“when signing, ratifying or acceding to this Convention or at any time thereafter, a
State may […] declare in writing that it does not accept anyone or more of the [dispute settlement] procedures […] with respect to [certain] categories of disputes”. In
other words, the Convention allows exceptions.
At the drafting stages, it became clear that certain States “consider[ed] certain
matters to be so sensitive that they should not be subject to the far-reaching dispute
settlement procedures being envisaged for inclusion in the Convention”.
3
This was
the reason to include Art. 298. This idea, that exceptions to compulsory dispute
settlement should be tolerated, was not disputed during the drafting process; the
controversies focused more on what exactly could be excluded.
The starting point was that any “State may exclude [certain] categories of disputes from adjudication”, but if a “declaration excluding a category of disputes is
made when a proceeding has already commenced before a court or tribunal, it has
no retroactive effect on the proceeding”.
4
States should thus think hard about what
they considered sensitive issues, and exclude those from dispute settlement at the
time they become party to the Convention, and not at the time such a dispute actually arises in practice.
1 This is not the first article to make a comparison between these two cases. See e.g., Zhang and
Chang (2015), Chang (2016), and Zhao and Li (2016).
2 United Nations Convention on the Law of the Sea of 10 December 1982, 1833 UNTS 3.
3 Nordquist et al. (2017), Commentary to Art. 298.
4 Ibidem, para. 298.12.
O. Spijkers
One similarity between the two disputes is that one party made an effort to settle the
dispute through international adjudication, whilst the other refused to participate in
such proceedings. In other words, the Russians and Chinese have consistently maintained a strategy of non-participation in international arbitration. A strategy of nonparticipation is relatively unique in international law. The only important example
from the past is the non-participation of the United States of America in its dispute
with Nicaragua, before the International Court of Justice in the 1980s. It is therefore
interesting to take a good look at the practical and legal consequences of non-participation. First, an overview of the applicable legal framework is provided (Sect. 2),
followed by an analysis of the two procedures, starting with the one between the
Netherlands and Russia (Sect. 3), and then the one between the Philippines and
China (Sect. 4). By way of a conclusion, the two disputes will be compared, in an
attempt to draw therefrom some general lessons for the future (Sect. 5).
1
2 Law on Non-participation
What does the applicable law say about non-participation in international dispute
settlement of controversies relating to the application and interpretation of the UN
Law of the Sea Convention (LOSC or the Convention)?
2
In principle, the LOSC
provides for compulsory dispute settlement. However, according to Art. 298 LOSC,
“when signing, ratifying or acceding to this Convention or at any time thereafter, a
State may […] declare in writing that it does not accept anyone or more of the [dispute settlement] procedures […] with respect to [certain] categories of disputes”. In
other words, the Convention allows exceptions.
At the drafting stages, it became clear that certain States “consider[ed] certain
matters to be so sensitive that they should not be subject to the far-reaching dispute
settlement procedures being envisaged for inclusion in the Convention”.
3
This was
the reason to include Art. 298. This idea, that exceptions to compulsory dispute
settlement should be tolerated, was not disputed during the drafting process; the
controversies focused more on what exactly could be excluded.
The starting point was that any “State may exclude [certain] categories of disputes from adjudication”, but if a “declaration excluding a category of disputes is
made when a proceeding has already commenced before a court or tribunal, it has
no retroactive effect on the proceeding”.
4
States should thus think hard about what
they considered sensitive issues, and exclude those from dispute settlement at the
time they become party to the Convention, and not at the time such a dispute actually arises in practice.
1 This is not the first article to make a comparison between these two cases. See e.g., Zhang and
Chang (2015), Chang (2016), and Zhao and Li (2016).
2 United Nations Convention on the Law of the Sea of 10 December 1982, 1833 UNTS 3.
3 Nordquist et al. (2017), Commentary to Art. 298.
4 Ibidem, para. 298.12.
O. Spijkers