174
activities, or disputes in respect of which the Security Council of the United Nations
is exercising the functions assigned to it by the Charter of the United Nations”.
9
And
upon ratification, Russia declared that “it does not accept the procedures […] entailing binding decisions with respect to […]” and then followed an even more detailed
and expansive list of disputes.
10
In view of the Netherlands, this very extensive list of categories of disputes that
were excluded from dispute settlement was not a bar to litigating the present dispute. And so, it started legal proceedings against Russia. The Netherlands first
requested provisional measures from the International Tribunal for the Law of the
Sea (ITLOS, or Tribunal),
11
and thus the dispute settlement proceedings began
there, before they moved to Annex VII LOSC arbitration.
12
Art. 28 of the Statute of the International Tribunal for the Law of the Sea (ITLOS
Statute) contains a rule on default of appearance, which says that:
When one of the parties does not appear before the Tribunal or fails to defend its case, the
other party may request the Tribunal to continue the proceedings and make its decision.
Absence of a party or failure of a party to defend its case shall not constitute a bar to the
proceedings. Before making its decision, the 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.
Art. 28 ITLOS Statute is quite similar to Art. 9 Annex VII LOSC, quoted above.
In a letter of 22 October 2013 to ITLOS, the Russian Federation invoked its declaration, and explained to the Tribunal that, “acting on this basis, the Russian Side has
accordingly notified the Kingdom of the Netherlands by note verbale that it does not
accept the arbitration procedure under Annex VII to the Convention initiated by the
Netherlands in regard to the case concerning the vessel “Arctic Sunrise” and that it
does not intend to participate in the proceedings of [ITLOS]”. It is important to note
that Russia merely informed ITLOS of the letter directed to the Netherlands. In
other words, Russia did not want or expect a reply from ITLOS.
In response, the Netherlands sent a letter to ITLOS on 24 October 2013, in which
it “requests the Tribunal to continue the proceedings and make its decision […] even
if, regrettably, these proceedings would be in default of appearance by the Russian
Federation”.
In its order of 25 October 2013, ITLOS fixed the date for the opening of the hearing. It did so, whilst “having regard to the note verbale of [Russia] by which it
informed the Tribunal that the Russian Federation does not intend to participate in
the proceedings before the Tribunal”.
During the hearing, in which Russia was indeed absent, the representation of the
Netherlands discussed the issue of non-participation extensively. Let us look at
some of these remarks.
9 Reservation
available
at
https://treaties.un.org/Pages/ViewDetailsIII.
aspx?src=TREATY&mtdsg_no=XXI-6&chapter=21&Temp=mtdsg3&clang=_en#EndDec.
10 Ibidem.
11 See Art. 290(5) LOSC.
12 See also Guilfoyle and Miles (2014), and Peiris (2015).
O. Spijkers
activities, or disputes in respect of which the Security Council of the United Nations
is exercising the functions assigned to it by the Charter of the United Nations”.
9
And
upon ratification, Russia declared that “it does not accept the procedures […] entailing binding decisions with respect to […]” and then followed an even more detailed
and expansive list of disputes.
10
In view of the Netherlands, this very extensive list of categories of disputes that
were excluded from dispute settlement was not a bar to litigating the present dispute. And so, it started legal proceedings against Russia. The Netherlands first
requested provisional measures from the International Tribunal for the Law of the
Sea (ITLOS, or Tribunal),
11
and thus the dispute settlement proceedings began
there, before they moved to Annex VII LOSC arbitration.
12
Art. 28 of the Statute of the International Tribunal for the Law of the Sea (ITLOS
Statute) contains a rule on default of appearance, which says that:
When one of the parties does not appear before the Tribunal or fails to defend its case, the
other party may request the Tribunal to continue the proceedings and make its decision.
Absence of a party or failure of a party to defend its case shall not constitute a bar to the
proceedings. Before making its decision, the 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.
Art. 28 ITLOS Statute is quite similar to Art. 9 Annex VII LOSC, quoted above.
In a letter of 22 October 2013 to ITLOS, the Russian Federation invoked its declaration, and explained to the Tribunal that, “acting on this basis, the Russian Side has
accordingly notified the Kingdom of the Netherlands by note verbale that it does not
accept the arbitration procedure under Annex VII to the Convention initiated by the
Netherlands in regard to the case concerning the vessel “Arctic Sunrise” and that it
does not intend to participate in the proceedings of [ITLOS]”. It is important to note
that Russia merely informed ITLOS of the letter directed to the Netherlands. In
other words, Russia did not want or expect a reply from ITLOS.
In response, the Netherlands sent a letter to ITLOS on 24 October 2013, in which
it “requests the Tribunal to continue the proceedings and make its decision […] even
if, regrettably, these proceedings would be in default of appearance by the Russian
Federation”.
In its order of 25 October 2013, ITLOS fixed the date for the opening of the hearing. It did so, whilst “having regard to the note verbale of [Russia] by which it
informed the Tribunal that the Russian Federation does not intend to participate in
the proceedings before the Tribunal”.
During the hearing, in which Russia was indeed absent, the representation of the
Netherlands discussed the issue of non-participation extensively. Let us look at
some of these remarks.
9 Reservation
available
at
https://treaties.un.org/Pages/ViewDetailsIII.
aspx?src=TREATY&mtdsg_no=XXI-6&chapter=21&Temp=mtdsg3&clang=_en#EndDec.
10 Ibidem.
11 See Art. 290(5) LOSC.
12 See also Guilfoyle and Miles (2014), and Peiris (2015).
O. Spijkers