transmission of the Russian position to the tribunal can in no way be interpreted as a
form of participation of the Russian Side in the above mentioned case.’
89 Notably,
non-participation does not of its own accord prevent a party from disputing the
tribunal’s jurisdiction,
90 and Russia itself has historically participated in proceedings
despite its jurisdictional objections.
91
Further, grounds existed for Russia to oppose the provisional measures. A
tribunal may prescribe only those measures ‘which it considers appropriate under
the circumstances’,
92 where these are ‘urgent’ and where the tribunal ‘considers that
prima facie the tribunal which is to be constituted would have jurisdiction.’
93 The
requirement of prima facie jurisdiction for provisional measures under UNCLOS is
the same as the standard in the ICJ,
94 and in both prior ICJ proceedings, Russia
opposed provisional measures on this ground.
95 It had also previously opposed
provisional measures on their merits, disputing, for example, whether the condition
of urgency was fulfilled.
96 Given Russia’s opposition to the tribunal’s jurisdiction,
its lack of participation in the ITLOS proceedings is surprising.
Further, one member of ITLOS, Judge Golitsyn, dissented to the order for
provisional measures on the basis of jurisdiction,
97 arising from the States’ alleged
failure to engage in an ‘exchange of views regarding its settlement’,
98 as required
under Article 283 of UNCLOS. Although there was an exchange of diplomatic notes
and correspondence,
99 and other discussions,
100 prior to the request for provisional
measures, these do not necessarily constitute an exchange of views under UNCLOS:
the last exchange occurred after the submission to arbitration, and prior exchanges
had occurred before Russia presented its grounds for the seizure of the vessel.
101
Russia’s failure to raise this objection runs counter to its tendency to object on the
basis of insufficient negotiation.
Overall, Russia’s preference to resolve disputes through political, rather than
legal means was apparent in the Arctic Sunrise matter: it insisted that it was ready ‘to
89 Ibid.
90 Haya de la Torre (Columbia v. Peru) (Judgment) [1951] ICJ Rep 71, p. 78; Chandrasekhara Rao
and Khan (2001), section 3.085.
91 See Sect. 2 above.
92 UNCLOS, Art. 290(1).
93 UNCLOS, Art. 290(5).
94 Racial Discrimination (Provisional Measures), para. 85.
95 See Sect. 2.1 above.
96 See, e.g., Racial Discrimination (Provisional Measures), para. 73.
97 Arctic Sunrise (Provisional Measures) (Judge Golitsyn). Judge Kulyk also dissented, focusing on
the circumstances in which provisional measures may be ordered, and the range of options ITLOS
should have considered. See Arctic Sunrise (Provisional Measures), para. 6, 11 (Judge Kulyk).
98 Arctic Sunrise (Provisional Measures), para. 6 (Judge Golitsyn).
99 Arctic Sunrise (Provisional Measures), para. 73.
100 Id., para. 74.
101 Martin (2014), p. 24.
16 Implementing the Law of the Sea: Russia and Arbitrations Under Annex VII to. . .
297
form of participation of the Russian Side in the above mentioned case.’
89 Notably,
non-participation does not of its own accord prevent a party from disputing the
tribunal’s jurisdiction,
90 and Russia itself has historically participated in proceedings
despite its jurisdictional objections.
91
Further, grounds existed for Russia to oppose the provisional measures. A
tribunal may prescribe only those measures ‘which it considers appropriate under
the circumstances’,
92 where these are ‘urgent’ and where the tribunal ‘considers that
prima facie the tribunal which is to be constituted would have jurisdiction.’
93 The
requirement of prima facie jurisdiction for provisional measures under UNCLOS is
the same as the standard in the ICJ,
94 and in both prior ICJ proceedings, Russia
opposed provisional measures on this ground.
95 It had also previously opposed
provisional measures on their merits, disputing, for example, whether the condition
of urgency was fulfilled.
96 Given Russia’s opposition to the tribunal’s jurisdiction,
its lack of participation in the ITLOS proceedings is surprising.
Further, one member of ITLOS, Judge Golitsyn, dissented to the order for
provisional measures on the basis of jurisdiction,
97 arising from the States’ alleged
failure to engage in an ‘exchange of views regarding its settlement’,
98 as required
under Article 283 of UNCLOS. Although there was an exchange of diplomatic notes
and correspondence,
99 and other discussions,
100 prior to the request for provisional
measures, these do not necessarily constitute an exchange of views under UNCLOS:
the last exchange occurred after the submission to arbitration, and prior exchanges
had occurred before Russia presented its grounds for the seizure of the vessel.
101
Russia’s failure to raise this objection runs counter to its tendency to object on the
basis of insufficient negotiation.
Overall, Russia’s preference to resolve disputes through political, rather than
legal means was apparent in the Arctic Sunrise matter: it insisted that it was ready ‘to
89 Ibid.
90 Haya de la Torre (Columbia v. Peru) (Judgment) [1951] ICJ Rep 71, p. 78; Chandrasekhara Rao
and Khan (2001), section 3.085.
91 See Sect. 2 above.
92 UNCLOS, Art. 290(1).
93 UNCLOS, Art. 290(5).
94 Racial Discrimination (Provisional Measures), para. 85.
95 See Sect. 2.1 above.
96 See, e.g., Racial Discrimination (Provisional Measures), para. 73.
97 Arctic Sunrise (Provisional Measures) (Judge Golitsyn). Judge Kulyk also dissented, focusing on
the circumstances in which provisional measures may be ordered, and the range of options ITLOS
should have considered. See Arctic Sunrise (Provisional Measures), para. 6, 11 (Judge Kulyk).
98 Arctic Sunrise (Provisional Measures), para. 6 (Judge Golitsyn).
99 Arctic Sunrise (Provisional Measures), para. 73.
100 Id., para. 74.
101 Martin (2014), p. 24.
16 Implementing the Law of the Sea: Russia and Arbitrations Under Annex VII to. . .
297