173
Paragraph 4 of Art. 288 LOSC adds that “in the event of a dispute as to whether
a court or tribunal has jurisdiction, the matter shall be settled by decision of that
court or tribunal”. From this, it can be concluded that these declarations excluding
certain categories of disputes from compulsory jurisdiction “are not self-judging,
and their applicability in a particular case cannot be determined by their invocation
by the State party against which a complaint is brought”.
5
Instead, pursuant to the
customary rule of international law that “any international court or tribunal has
jurisdiction to determine the scope of its jurisdiction”, the following applies: “if a
party should dispute the jurisdiction of a court or tribunal functioning under the Law
of the Sea Convention, that dispute will be settled by that court or tribunal”.
6
Unilateral filing of a dispute is possible. This follows from Art. 1 Annex VII of
the LOSC, which states that each party to a dispute can submit the dispute to the
arbitration procedure, by means of a written notification to the other party to the
dispute. If the other party does not respond, Art. 9 of Annex VII applies. This is the
most important article, which I quote in its entirety:
If one of the parties to the dispute does not appear before the arbitral tribunal or fails to
defend its case, the other party may request the tribunal to continue the proceedings and to
make its award. Absence of a party or failure of a party to defend its case shall not constitute
a bar to the proceedings. Before making its award, the arbitral tribunal must satisfy itself not
only that it has jurisdiction over the dispute but also that the claim is well founded in fact
and law.
In the remainder of this article, the legal framework set out above will be applied
to two disputes in which the respondent State did not show up.
7
The section immediately below (Sect. 3) analyzes the Arctic Sunrise arbitration, followed by an
examination of the arbitration concerning the South China Sea (Sect. 4).
3 Arctic Sunrise
The Arctic Sunrise arbitration relates to a controversy between the Netherlands and
Russia, about the arrest and detention of the Arctic Sunrise and its crew. The Arctic
Sunrise is a Greenpeace operated vessel registered in the Netherlands. The vessel
was boarded by the Russian authorities, when Greenpeace attempted to stage a protest on and near an oil platform operated by Russia.
8
The merits of the case do not
concern us here; we will focus instead on the procedural issue of
non-participation.
Upon signature of the LOSC, the Russian Federation declared that “it does not
accept the compulsory procedures entailing binding decisions for the consideration
of disputes relating to sea boundary delimitations, disputes concerning military
5 Ibidem, para. 298.43.
6 Ibidem, para. 288.5.
7 See also Cembrano-Mallan (2014), and Gates (2017).
8 Caddell (2014), Oude Elferink (2014, 2016a), Harrison (2016), and Mossop (2016).
Non-participation in Arbitral Proceedings Under Annex VII United Nations Convention…
Paragraph 4 of Art. 288 LOSC adds that “in the event of a dispute as to whether
a court or tribunal has jurisdiction, the matter shall be settled by decision of that
court or tribunal”. From this, it can be concluded that these declarations excluding
certain categories of disputes from compulsory jurisdiction “are not self-judging,
and their applicability in a particular case cannot be determined by their invocation
by the State party against which a complaint is brought”.
5
Instead, pursuant to the
customary rule of international law that “any international court or tribunal has
jurisdiction to determine the scope of its jurisdiction”, the following applies: “if a
party should dispute the jurisdiction of a court or tribunal functioning under the Law
of the Sea Convention, that dispute will be settled by that court or tribunal”.
6
Unilateral filing of a dispute is possible. This follows from Art. 1 Annex VII of
the LOSC, which states that each party to a dispute can submit the dispute to the
arbitration procedure, by means of a written notification to the other party to the
dispute. If the other party does not respond, Art. 9 of Annex VII applies. This is the
most important article, which I quote in its entirety:
If one of the parties to the dispute does not appear before the arbitral tribunal or fails to
defend its case, the other party may request the tribunal to continue the proceedings and to
make its award. Absence of a party or failure of a party to defend its case shall not constitute
a bar to the proceedings. Before making its award, the arbitral tribunal must satisfy itself not
only that it has jurisdiction over the dispute but also that the claim is well founded in fact
and law.
In the remainder of this article, the legal framework set out above will be applied
to two disputes in which the respondent State did not show up.
7
The section immediately below (Sect. 3) analyzes the Arctic Sunrise arbitration, followed by an
examination of the arbitration concerning the South China Sea (Sect. 4).
3 Arctic Sunrise
The Arctic Sunrise arbitration relates to a controversy between the Netherlands and
Russia, about the arrest and detention of the Arctic Sunrise and its crew. The Arctic
Sunrise is a Greenpeace operated vessel registered in the Netherlands. The vessel
was boarded by the Russian authorities, when Greenpeace attempted to stage a protest on and near an oil platform operated by Russia.
8
The merits of the case do not
concern us here; we will focus instead on the procedural issue of
non-participation.
Upon signature of the LOSC, the Russian Federation declared that “it does not
accept the compulsory procedures entailing binding decisions for the consideration
of disputes relating to sea boundary delimitations, disputes concerning military
5 Ibidem, para. 298.43.
6 Ibidem, para. 288.5.
7 See also Cembrano-Mallan (2014), and Gates (2017).
8 Caddell (2014), Oude Elferink (2014, 2016a), Harrison (2016), and Mossop (2016).
Non-participation in Arbitral Proceedings Under Annex VII United Nations Convention…