176
It then quoted a paragraph from the ICJ’s judgment in the Nicaragua case—where
the USA failed to appear: “[a] State which decides not to appear must accept the
consequences of its decision, the first of which is that the case will continue without
its participation [and the second is that] the State which has chosen not to appear
remains a party to the case, and is bound by the eventual judgment […]”.
21
The
Tribunal immediately added that it must always “ensure full implementation of the
principle of equality of the parties in a situation where the absence of a party may
hinder the regular conduct of the proceedings and affect the good administration of
justice”.
22
It regretted that “the Russian Federation could have facilitated the task of
the Tribunal by furnishing it with fuller information on questions of fact and of
law”,
23
and it expressed the belief that “the Netherlands should not be put at a disadvantage because of the non-appearance of the Russian Federation in the
proceedings”,
24
and this meant “the Tribunal must […] identify and assess the
respective rights of the Parties involved on the best available evidence”.
25
The
ITLOS then continued to discuss jurisdiction and the merits. Interestingly, in examining whether it had jurisdiction, the Tribunal referred extensively to the note verbale of Russia dated 22 October 2013, treating it as a plea to contest the Tribunal’s
jurisdiction. This is not how Russia meant it to be interpreted (it is basically only
one page long!): it was to be regarded as a mere explanation why Russia decided not
to participate.
What is striking about the order, is that the Tribunal based its reasoning with
regard to default of appearance entirely on the ICJ case law. It did not refer at all to
Art. 28 ITLOS Statute, the provision in the Tribunal’s own Statute dealing exactly
with this issue. ITLOS judge Paik also pointed out this remarkable fact in his separate opinion. He suggested it might be because it was unclear to his fellow judges
whether Art. 28 was applicable also in provisional measures proceedings, but his
view—which is convincing—is that it does.
The dispute then moved to Annex VII LOSC arbitration. On 3 March 2014, the
Russian Federation sent a letter to the Permanent Court of Arbitration—which facilitated the Annex VII arbitration—informing it of a letter sent to the Netherlands
with the message that “the Russian Federation does not accept the arbitration procedure under Annex VII […] proposed by the Kingdom of the Netherlands in relation
to the case of “Arctic Sunrise” [and that] the Russian side confirms its refusal to take
part in this arbitration and abstains from providing comments both on the substance
of the case and procedural matters”. The use of language is interesting. It suggested
that the Netherlands was proposing to settle the dispute by means of arbitration, and
that Russia politely declined this proposal. In response, the Netherlands referred to
Art. 9 of Annex VII—identical to Art. 28 ITLOS Statute—and requested the Arbitral
21 Ibidem, para. 52. The quote is from ICJ, Military and Paramilitary Activities in and against
Nicaragua (Nicaragua v. United States), Judgment, 27 June 1986, para. 28.
22 ITLOS, Arctic Sunrise Case, para. 53.
23 Ibidem, para. 54.
24 Ibidem, para. 56.
25 Ibidem, para. 57.
O. Spijkers
It then quoted a paragraph from the ICJ’s judgment in the Nicaragua case—where
the USA failed to appear: “[a] State which decides not to appear must accept the
consequences of its decision, the first of which is that the case will continue without
its participation [and the second is that] the State which has chosen not to appear
remains a party to the case, and is bound by the eventual judgment […]”.
21
The
Tribunal immediately added that it must always “ensure full implementation of the
principle of equality of the parties in a situation where the absence of a party may
hinder the regular conduct of the proceedings and affect the good administration of
justice”.
22
It regretted that “the Russian Federation could have facilitated the task of
the Tribunal by furnishing it with fuller information on questions of fact and of
law”,
23
and it expressed the belief that “the Netherlands should not be put at a disadvantage because of the non-appearance of the Russian Federation in the
proceedings”,
24
and this meant “the Tribunal must […] identify and assess the
respective rights of the Parties involved on the best available evidence”.
25
The
ITLOS then continued to discuss jurisdiction and the merits. Interestingly, in examining whether it had jurisdiction, the Tribunal referred extensively to the note verbale of Russia dated 22 October 2013, treating it as a plea to contest the Tribunal’s
jurisdiction. This is not how Russia meant it to be interpreted (it is basically only
one page long!): it was to be regarded as a mere explanation why Russia decided not
to participate.
What is striking about the order, is that the Tribunal based its reasoning with
regard to default of appearance entirely on the ICJ case law. It did not refer at all to
Art. 28 ITLOS Statute, the provision in the Tribunal’s own Statute dealing exactly
with this issue. ITLOS judge Paik also pointed out this remarkable fact in his separate opinion. He suggested it might be because it was unclear to his fellow judges
whether Art. 28 was applicable also in provisional measures proceedings, but his
view—which is convincing—is that it does.
The dispute then moved to Annex VII LOSC arbitration. On 3 March 2014, the
Russian Federation sent a letter to the Permanent Court of Arbitration—which facilitated the Annex VII arbitration—informing it of a letter sent to the Netherlands
with the message that “the Russian Federation does not accept the arbitration procedure under Annex VII […] proposed by the Kingdom of the Netherlands in relation
to the case of “Arctic Sunrise” [and that] the Russian side confirms its refusal to take
part in this arbitration and abstains from providing comments both on the substance
of the case and procedural matters”. The use of language is interesting. It suggested
that the Netherlands was proposing to settle the dispute by means of arbitration, and
that Russia politely declined this proposal. In response, the Netherlands referred to
Art. 9 of Annex VII—identical to Art. 28 ITLOS Statute—and requested the Arbitral
21 Ibidem, para. 52. The quote is from ICJ, Military and Paramilitary Activities in and against
Nicaragua (Nicaragua v. United States), Judgment, 27 June 1986, para. 28.
22 ITLOS, Arctic Sunrise Case, para. 53.
23 Ibidem, para. 54.
24 Ibidem, para. 56.
25 Ibidem, para. 57.
O. Spijkers