3 Issues of Jurisdiction in Arbitrations Under UNCLOS
Annex VII
3.1 Issues of Jurisdiction in Arctic Sunrise
Fifteen days after Russian authorities seized and detained the Arctic Sunrise and its
crew, the Netherlands issued a request for arbitration under Annex VII to
UNCLOS.
60 This followed ‘repeated’ requests by the Netherlands to release the
vessel and crew,
61 and Russia’s sending of notes verbales
62 and a letter expressing
an intent to conduct investigations.
63 These formed the basis of what the Netherlands
considered an arbitrable dispute. In its request for arbitration,
64 the Netherlands
alleged violations of UNCLOS, the International Covenant on Civil and Political
Rights (‘ICCPR’),
65 and customary international law.
66 It further applied to ITLOS
for provisional measures,
67 and a hearing was set for 6 November 2013.
68
Russia opposed the arbitration in a note verbale of 22 October 2013,
69 relying on
its declaration upon ratification of UNCLOS in 1997,
70 which excludes ‘disputes
concerning law-enforcement activities in regard to the exercise of sovereign rights or
jurisdiction.’
71 This remained Russia’s sole ground of opposition in this dispute,
repeated in its note verbale of 27 February 2014.
72 Russia did not participate in
60 Arbitral Tribunal, PCA Case No 2014-02 The Arctic Sunrise Arbitration (Netherlands v. Russia),
Submission of Dispute to Arbitration of 4 October 2013 (‘Arctic Sunrise, Submission of Dispute to
Arbitration’).
61 Id., para. 6.
62 Id., Annex 2, 7.
63 Id., Annex 5.
64 Ibid.
65 International Covenant on Civil and Political Rights (New York, 16 December 1966, in force
23 March 1976) 999 UNTS 171.
66 Arctic Sunrise, Submission of Dispute to Arbitration, para. 4.
67 ITLOS, Case No. 22 The “Arctic Sunrise” Case (Netherlands v. Russia), Request for Provisional
Measures of 21 October 2013.
68 ITLOS, Case No. 22 The “Arctic Sunrise” Case (Netherlands v. Russia), Award on Provisional
Measures of 25 October 2013 (‘Arctic Sunrise (Provisional Measures)’).
69 ITLOS, Case No. 22 The “Arctic Sunrise” Case (Netherlands v. Russia), Note Verbale of the
Embassy of the Russian Federation in Germany of 22 October 2013: https://www.itlos.org/
fileadmin/itlos/documents/cases/case_no.22/Note_verbale_Russian_Federation_eng.pdf
(‘Note
Verbale (22 October 2013)’).
70 Declaration of the Russian Federation on signature of the United Nations Convention
(10 December 1982): http://www.un.org/depts/los/convention_agreements/convention_declara
tions.htm (‘Russia, Declaration to UNCLOS’).
71 Note Verbale (22 October 2013).
72 Arbitral Tribunal, PCA Case No 2014-02 The Arctic Sunrise Arbitration (Netherlands v. Russia),
Note Verbale from the Russian Federation to the PCA of 27 February 2014: https://pcacases.com/
web/sendAttach/1315 (‘Note Verbale (27 February 2014)’).
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G. Kynaston and R. Brown
Annex VII
3.1 Issues of Jurisdiction in Arctic Sunrise
Fifteen days after Russian authorities seized and detained the Arctic Sunrise and its
crew, the Netherlands issued a request for arbitration under Annex VII to
UNCLOS.
60 This followed ‘repeated’ requests by the Netherlands to release the
vessel and crew,
61 and Russia’s sending of notes verbales
62 and a letter expressing
an intent to conduct investigations.
63 These formed the basis of what the Netherlands
considered an arbitrable dispute. In its request for arbitration,
64 the Netherlands
alleged violations of UNCLOS, the International Covenant on Civil and Political
Rights (‘ICCPR’),
65 and customary international law.
66 It further applied to ITLOS
for provisional measures,
67 and a hearing was set for 6 November 2013.
68
Russia opposed the arbitration in a note verbale of 22 October 2013,
69 relying on
its declaration upon ratification of UNCLOS in 1997,
70 which excludes ‘disputes
concerning law-enforcement activities in regard to the exercise of sovereign rights or
jurisdiction.’
71 This remained Russia’s sole ground of opposition in this dispute,
repeated in its note verbale of 27 February 2014.
72 Russia did not participate in
60 Arbitral Tribunal, PCA Case No 2014-02 The Arctic Sunrise Arbitration (Netherlands v. Russia),
Submission of Dispute to Arbitration of 4 October 2013 (‘Arctic Sunrise, Submission of Dispute to
Arbitration’).
61 Id., para. 6.
62 Id., Annex 2, 7.
63 Id., Annex 5.
64 Ibid.
65 International Covenant on Civil and Political Rights (New York, 16 December 1966, in force
23 March 1976) 999 UNTS 171.
66 Arctic Sunrise, Submission of Dispute to Arbitration, para. 4.
67 ITLOS, Case No. 22 The “Arctic Sunrise” Case (Netherlands v. Russia), Request for Provisional
Measures of 21 October 2013.
68 ITLOS, Case No. 22 The “Arctic Sunrise” Case (Netherlands v. Russia), Award on Provisional
Measures of 25 October 2013 (‘Arctic Sunrise (Provisional Measures)’).
69 ITLOS, Case No. 22 The “Arctic Sunrise” Case (Netherlands v. Russia), Note Verbale of the
Embassy of the Russian Federation in Germany of 22 October 2013: https://www.itlos.org/
fileadmin/itlos/documents/cases/case_no.22/Note_verbale_Russian_Federation_eng.pdf
(‘Note
Verbale (22 October 2013)’).
70 Declaration of the Russian Federation on signature of the United Nations Convention
(10 December 1982): http://www.un.org/depts/los/convention_agreements/convention_declara
tions.htm (‘Russia, Declaration to UNCLOS’).
71 Note Verbale (22 October 2013).
72 Arbitral Tribunal, PCA Case No 2014-02 The Arctic Sunrise Arbitration (Netherlands v. Russia),
Note Verbale from the Russian Federation to the PCA of 27 February 2014: https://pcacases.com/
web/sendAttach/1315 (‘Note Verbale (27 February 2014)’).
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G. Kynaston and R. Brown