either the request for provisional measures heard by ITLOS, nor in the merits
determined by a tribunal constituted under Annex VII to UNCLOS. It neither
appointed an arbitrator nor raised further objections after the Annex VII tribunal’s
finding of jurisdiction.
73 Rather, it reiterated its refusal to participate or provide
submissions on either procedural matters or the substance of the dispute.
74 Its
actions, and its reliance on a single ground against jurisdiction, differ from its
prior practice, in a situation where its usual approaches—such as claiming that the
nature of the dispute was outside the Convention, or that requirements for negotiation were not satisfied—remained available.
3.1.1 Declarations as a Ground of Exclusion
UNCLOS allows States to exclude certain disputes from the compulsory dispute
resolution mechanisms of the Convention through declarations.
75 The balance
between an effective dispute resolution mechanism, and the ability to refuse it,
was essential to States’ acceptance of the Convention’s provisions and the process’
legitimacy.
76
Russia relied in its note verbale on its declaration made under Article 298(1)(b) of
UNCLOS. This Article permits declarations on
77 :
. . .disputes concerning law enforcement activities in regard to the exercise of sovereign
rights or jurisdiction excluded from the jurisdiction of a court or tribunal under article
297, paragraph 2 or 3.
The Netherlands pre-emptively disputed this claim in its submission to arbitration.
78 First, it submitted that the ability to make declarations excluding the compulsory dispute resolution process under Article 298 of UNCLOS was limited to
certain categories of dispute, per Article 297(2) and (3): the declaration excluding
disputes on law-enforcement activities could only apply in respect of marine scientific research and fisheries.
79 The tribunal accepted the Netherlands’ submission,
stating that ‘Russia’s Declaration can only apply to an exception that is permitted
under Article 298’
80 ; the declaration thus did not limit the proceedings’ scope.
Russia’s reliance on the declaration alone is therefore curious: even though there
73 Arbitral Tribunal, PCA Case No 2014-02 The Arctic Sunrise Arbitration (Netherlands v.
Russia), Award on Jurisdiction of 26 November 2014 (‘Arctic Sunrise (Jurisdiction)’).
74 Note Verbale (27 February 2014).
75 UNCLOS, Art. 298.
76 Arbitral Tribunal, PCA Case No 2013-19 The South China Sea Arbitration (The Republic of
Philippines v. The People’s Republic of China), Award on Jurisdiction of 29 October 2015, para.
107 (‘South China Sea (Jurisdiction)’); Klein (2005), p. 27; Zou and Ye (2017), p. 336.
77 UNCLOS, Art. 298(1)(b).
78 Arctic Sunrise, Submission of Dispute to Arbitration, paras. 8–13.
79 Id., para. 13. See UNCLOS, Art. 297(2), (3).
80 Arctic Sunrise (Jurisdiction), para. 72.
16 Implementing the Law of the Sea: Russia and Arbitrations Under Annex VII to. . .
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determined by a tribunal constituted under Annex VII to UNCLOS. It neither
appointed an arbitrator nor raised further objections after the Annex VII tribunal’s
finding of jurisdiction.
73 Rather, it reiterated its refusal to participate or provide
submissions on either procedural matters or the substance of the dispute.
74 Its
actions, and its reliance on a single ground against jurisdiction, differ from its
prior practice, in a situation where its usual approaches—such as claiming that the
nature of the dispute was outside the Convention, or that requirements for negotiation were not satisfied—remained available.
3.1.1 Declarations as a Ground of Exclusion
UNCLOS allows States to exclude certain disputes from the compulsory dispute
resolution mechanisms of the Convention through declarations.
75 The balance
between an effective dispute resolution mechanism, and the ability to refuse it,
was essential to States’ acceptance of the Convention’s provisions and the process’
legitimacy.
76
Russia relied in its note verbale on its declaration made under Article 298(1)(b) of
UNCLOS. This Article permits declarations on
77 :
. . .disputes concerning law enforcement activities in regard to the exercise of sovereign
rights or jurisdiction excluded from the jurisdiction of a court or tribunal under article
297, paragraph 2 or 3.
The Netherlands pre-emptively disputed this claim in its submission to arbitration.
78 First, it submitted that the ability to make declarations excluding the compulsory dispute resolution process under Article 298 of UNCLOS was limited to
certain categories of dispute, per Article 297(2) and (3): the declaration excluding
disputes on law-enforcement activities could only apply in respect of marine scientific research and fisheries.
79 The tribunal accepted the Netherlands’ submission,
stating that ‘Russia’s Declaration can only apply to an exception that is permitted
under Article 298’
80 ; the declaration thus did not limit the proceedings’ scope.
Russia’s reliance on the declaration alone is therefore curious: even though there
73 Arbitral Tribunal, PCA Case No 2014-02 The Arctic Sunrise Arbitration (Netherlands v.
Russia), Award on Jurisdiction of 26 November 2014 (‘Arctic Sunrise (Jurisdiction)’).
74 Note Verbale (27 February 2014).
75 UNCLOS, Art. 298.
76 Arbitral Tribunal, PCA Case No 2013-19 The South China Sea Arbitration (The Republic of
Philippines v. The People’s Republic of China), Award on Jurisdiction of 29 October 2015, para.
107 (‘South China Sea (Jurisdiction)’); Klein (2005), p. 27; Zou and Ye (2017), p. 336.
77 UNCLOS, Art. 298(1)(b).
78 Arctic Sunrise, Submission of Dispute to Arbitration, paras. 8–13.
79 Id., para. 13. See UNCLOS, Art. 297(2), (3).
80 Arctic Sunrise (Jurisdiction), para. 72.
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