Non-participation in Arbitral Proceedings Under Annex VII United Nations Convention on the Law of the Sea: Arctic Sunrise and South China Sea Compared

Abstract

This paper analyzes the legal consequences of non-participation in arbitral proceedings under Annex VII to the United Nations Law of the Sea Convention (LOSC). Two recent examples of non-participation are analyzed and compared with each other: first, the case of the Arctic Sunrise, and second, the South China Sea case. The first case was instituted by the Netherlands against Russia. The second case was instituted by the Philippines against China. In both cases, the respondent State did not take part in any way in the arbitral proceedings. There are some striking similarities between the two cases. For example, in both cases, the respondent State made extensive reservations to jurisdiction, but the applicant State formulated its submissions in such a way that these reservations turned out not to be a bar to the exercise of jurisdiction by the tribunal. There are also some differences between the two cases: unlike Russia, China developed a quite sophisticated and relatively consistent legal argumentation, but it did so outside the arbitral process, in the media, at conferences, and in scholarly articles.