was no issue as to whether Russia was exercising its jurisdiction in enforcing coastal
State laws and regulations, it is clear from the wording of Article 298 that declarations excluding law enforcement relate only to marine scientific research and
fisheries.
3.1.2 Another Possible Ground
At least one other ground, however, was open to Russia. A tribunal may find it lacks
jurisdiction on the basis that the dispute submitted to it does not concern the
interpretation or application of the Convention.
81 In the Chagos Island arbitration,
for example, in isolating the real issue in the case—a requirement for its jurisdiction
82
—the tribunal recharacterised the dispute as one concerning sovereignty,
rather than the interpretation or application of the term ‘coastal State’.
83 The Arctic
Sunrise case differs from prior law of the sea disputes involving Russia, as it also
involves a human rights claim under the ICCPR.
84 As noted above, Russia has
previously objected to the relevance, characterisation, and substance of interstate
human rights claims.
85 Accordingly, Russia’s failure to object to the Netherland’s
claim under the ICCPR is unusual, and inconsistent with prior practice. Indeed, such
a claim was viable: the arbitral tribunal eventually held that it lacked the jurisdiction
to apply the provisions of the ICCPR directly, or determine breaches of such
provisions.
86
3.1.3 Participation in Provisional Measures
Russia did not provide a written statement responding to the request for provisional
measures, nor did it attend the hearing held by ITLOS.
87 Further, in its communication to the tribunal on 6 November 2013 opposing Greenpeace International’s
petition to file submissions as an amicus curiae,
88 it emphasised that ‘this
81 Arbitral Tribunal, PCA Case No. 2012-5 The Republic of Ecuador v. The United States of
America, Award of 29 September 2012, para. 208.
82 Nuclear Tests (New Zealand v. France) (Questions of Jurisdiction and Admissibility) [1974] ICJ
Rep 457, para. 30.
83 Arbitral Tribunal, PCA Case No 2011-03 Chagos Marine Protected Area Arbitration (Mauritius
v. United Kingdom), Award of 18 March 2015, para. 212 (‘Chagos Islands’).
84 Arbitral Tribunal, PCA Case No 2014-02 The Arctic Sunrise Arbitration (Netherlands v. Russia),
Memorial of the Netherlands of 31 August 2014, paras. 331–340.
85 See Sect. 2.1 above.
86 Arbitral Tribunal, PCA Case No 2014-02 The Arctic Sunrise Arbitration (Netherlands v. Russia),
Award on Merits of 14 August 2015, para. 198 (‘Arctic Sunrise (Merits)’).
87 Arctic Sunrise (Jurisdiction), para. 10. Russia informed the tribunal of this fact in its Note Verbale
(22 October 2013).
88 Arctic Sunrise (Provisional Measures), para. 19.
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G. Kynaston and R. Brown
State laws and regulations, it is clear from the wording of Article 298 that declarations excluding law enforcement relate only to marine scientific research and
fisheries.
3.1.2 Another Possible Ground
At least one other ground, however, was open to Russia. A tribunal may find it lacks
jurisdiction on the basis that the dispute submitted to it does not concern the
interpretation or application of the Convention.
81 In the Chagos Island arbitration,
for example, in isolating the real issue in the case—a requirement for its jurisdiction
82
—the tribunal recharacterised the dispute as one concerning sovereignty,
rather than the interpretation or application of the term ‘coastal State’.
83 The Arctic
Sunrise case differs from prior law of the sea disputes involving Russia, as it also
involves a human rights claim under the ICCPR.
84 As noted above, Russia has
previously objected to the relevance, characterisation, and substance of interstate
human rights claims.
85 Accordingly, Russia’s failure to object to the Netherland’s
claim under the ICCPR is unusual, and inconsistent with prior practice. Indeed, such
a claim was viable: the arbitral tribunal eventually held that it lacked the jurisdiction
to apply the provisions of the ICCPR directly, or determine breaches of such
provisions.
86
3.1.3 Participation in Provisional Measures
Russia did not provide a written statement responding to the request for provisional
measures, nor did it attend the hearing held by ITLOS.
87 Further, in its communication to the tribunal on 6 November 2013 opposing Greenpeace International’s
petition to file submissions as an amicus curiae,
88 it emphasised that ‘this
81 Arbitral Tribunal, PCA Case No. 2012-5 The Republic of Ecuador v. The United States of
America, Award of 29 September 2012, para. 208.
82 Nuclear Tests (New Zealand v. France) (Questions of Jurisdiction and Admissibility) [1974] ICJ
Rep 457, para. 30.
83 Arbitral Tribunal, PCA Case No 2011-03 Chagos Marine Protected Area Arbitration (Mauritius
v. United Kingdom), Award of 18 March 2015, para. 212 (‘Chagos Islands’).
84 Arbitral Tribunal, PCA Case No 2014-02 The Arctic Sunrise Arbitration (Netherlands v. Russia),
Memorial of the Netherlands of 31 August 2014, paras. 331–340.
85 See Sect. 2.1 above.
86 Arbitral Tribunal, PCA Case No 2014-02 The Arctic Sunrise Arbitration (Netherlands v. Russia),
Award on Merits of 14 August 2015, para. 198 (‘Arctic Sunrise (Merits)’).
87 Arctic Sunrise (Jurisdiction), para. 10. Russia informed the tribunal of this fact in its Note Verbale
(22 October 2013).
88 Arctic Sunrise (Provisional Measures), para. 19.
296
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