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The Judicialization of International LawA Mixed Blessing?$

Andreas Follesdal and Geir Ulfstein

Print publication date: 2018

Print ISBN-13: 9780198816423

Published to Oxford Scholarship Online: May 2018

DOI: 10.1093/oso/9780198816423.001.0001

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Non-Participation in Compulsory Procedures of Dispute Settlement

Non-Participation in Compulsory Procedures of Dispute Settlement

The People’s Republic of China’s Position Paper in the South China Sea Arbitration and Beyond

Chapter:
(p.183) 9 Non-Participation in Compulsory Procedures of Dispute Settlement
Source:
The Judicialization of International Law
Author(s):

Erik Franckx

Marco Benatar

Publisher:
Oxford University Press
DOI:10.1093/oso/9780198816423.003.0010

Abstract and Keywords

Erik Franckx and Marco Benatar consider the peculiar backlash in the form of states rejecting the jurisdiction of international courts and tribunals (ICs). They discuss how the People’s Republic of China (PRC) rejected jurisdiction in the Philippines v PRC arbitration. The authors draw comparisons with how the Russian Federation rejected the jurisdiction of an arbitration panel in the Arctic Sunrise case. But both states participated in the peculiar form of forwarding ‘position papers’. This allows states new modes of influencing the bench without formally participating in the proceedings, argues Franckx and Benatar. This may tempt other states to apply a similar approach. For example, Croatia has presented its views to an arbitration panel in a dispute with Slovenia, despite its non-participation after irregularities by one of the arbitrators. The PRC and the Russian Federation have also issued a joint declaration encouraging non-participation in international legal proceedings.

Keywords:   South China Sea, arbitration, compulsory procedures, non-participation, jurisdiction, position papers

In recent times, a sharp increase can be noticed on the official webpage of the Permanent Court of Arbitration (PCA) of its inter-state cases, mainly as a result of disputes brought under Annex VII of the United Nations Convention on the Law of the Sea (1982 Convention) that make use of the registry of the PCA.1 This heightened activity would be cause for unbridled optimism among supporters of international dispute settlement, were it not for a parallel development of considerable concern: the re-emergence of non-participation after nearly three decades.2 The (p.184) lull was broken in 2013, when the Philippines brought a case, the South China Sea Arbitration, against the People’s Republic of China (PRC).3 Shortly after the institution of proceedings, the PRC made its intentions known that it would not participate in the case. That very same year, the Russian Federation stated that it would not take part in the Arctic Sunrise Arbitration, which was initiated by the Netherlands to resolve a dispute over a Greenpeace vessel flying the Dutch flag. A noteworthy feature in both PCA-administered cases is the respondent states’ use of so-called ‘position papers’, aimed at influencing the adjudicators on matters of fact and law, while formally adhering to their policy of non-participation.

The present contribution intends to demonstrate that, as a general trend, courts and tribunals will try to be as flexible as possible in order to take cognizance of the arguments developed by the non-participating state, as expressed in a number of different ways. Position papers, whether on jurisdiction or on the merits of the case, have clearly been a preferred method of non-participating states, as indicated by recent practice. At the same time, however, this contribution will argue that this flexibility has its limits.

In order to test these assertions, the PRC’s reliance on position papers in its dealings with its South China Sea (SCS) neighbours will serve as a starting point. After providing some background to the dispute in the SCS, the chapter will turn to official declarations presented by the Chinese government (section 1). We will take a closer look at a number of statements formulated by the PRC in a non-adjudicatory context, namely the Haiyang Shiyou 981 incident between the PRC and Vietnam during the spring of 2014 (section 2). The next section will examine the PRC’s position paper in the South China Sea Arbitration and how it was received by the Arbitral Tribunal (section 3). In this section comparisons will also be drawn with the Arctic Sunrise Arbitration. The next section will assess the value attached to these position papers by the tribunals involved (section 4). In the conclusions (section 5) the potential ramifications of the PRC’s ‘position paper’ strategy will be addressed as well as recent developments in this respect.

1 Background of the Dispute

The claim reflected in the nine-dashed line was for the first time endorsed by the Chinese government at the international level in connection with state-to-state disputes in 2009. It came in response to submissions made by Malaysia and Vietnam regarding their continental shelf claims beyond 200 nautical miles in the SCS.4 After Malaysia and Vietnam sent their joint submission to the Commission on the (p.185) Limits of the Continental Shelf on 6 May 20095 and Vietnam filed its individual submission for another part of its continental shelf beyond 200 nautical miles the following day,6 the PRC reacted by submitting two identical letters to the Secretary-General of the United Nations (UN) outlining its legal claims in the SCS.7 These Chinese letters of 7 May 2009 contained the following paragraph:

China has indisputable sovereignty over the islands in the South China Sea and the adjacent waters, and enjoys sovereign rights and jurisdiction over the relevant waters as well as the seabed and subsoil thereof (see attached map). The above position is consistently held by the Chinese Government, and is widely known by the international community.8

As neither the terms ‘adjacent waters’ nor ‘relevant waters’ are to be found in the so-called Constitution for the Oceans,9 the first ever codification of the whole law of the sea in a single document,10 one expects to find clarifications in the ‘attached map’ to which these Chinese letters of 7 May 2009 refer.11 But instead of clarifying these terms, the attached map simply depicts nine dashes. And even though the only legend accompanying the map is a scale indicating distances, it should be noted that the typographical signs used to represent the dashes, namely ‘. ⧿.’, are exactly the same as those used to depict the land boundary between the PRC and Vietnam in the upper left corner of that map. Instead of furthering one’s understanding of the notions of ‘adjacent waters’ and ‘relevant waters’, the 2009 Map creates a new enigma because, as of present, the PRC has not officially specified what these dashes represent on the map. This situation creates a ‘flou artistique’, a touch of deliberate (p.186) soft focus causing a blurred image, since no one can tell with certainty what China means by these notions or the 2009 Map for that matter.12

The inclusion of the 2009 Map in an official document addressed to the UN Secretary-General, and thus intended for wide dissemination in the international community, was a significant event. This can be inferred not only from the strong diplomatic interest this map triggered in the form of governmental protests,13 but also from the flurry of scholarly attention it received. Journals specialized in the law of the sea dedicated issues to this matter14 whereas a leading general international law review found the 2009 Map important enough to devote an agora to the questions it raised.15

The conclusion can therefore be reached that although the territorial claims of the PRC over features in the SCS may have been clearly expressed in the past, the same cannot be said of its maritime claims in the region. As far as the 2009 Map is concerned, moreover, an additional question can be raised as to the legal value of such cartographic evidence.16

The PRC has so far been steadfast in its opinion that all issues in the SCS, be they related to sovereignty claims over features or the rights derived therefrom (eg fisheries, maritime delimitation), should be settled on a bilateral basis with its maritime neighbours.17

The publication of the 2009 Map, urbi et orbi, was therefore quite a noteworthy event, for it took this map out of the bilateral sphere and made it subject to international scrutiny. Lately, the PRC has also started to engage with its maritime (p.187) neighbours through the exchange of legal arguments in the public sphere. Two examples relating to the SCS will be further developed. The first concerns the incident surrounding the Haiyang Shiyou 981 oil platform during the summer of 2014, the second is the South China Sea Arbitration.

2 Haiyang Shiyou 981 Oil Platform

No better illustration of this shift from the private bilateral to the public multilateral level can be found than the incident that arose between the PRC and Vietnam when the Chinese state-owned China National Offshore Oil Corporation decided to move its deep-water oil platform Haiyang Shiyou 981 in disputed waters in the region of the Paracels, claimed by both countries. When drilling commenced on 2 May 2014, this quickly escalated into a major bilateral crisis until the platform was removed from the area on 15 July 2014, that is one month ahead of the planned withdrawal date.18

Soon after the start of the incident, Vietnam addressed an official letter to the UN Secretary-General explaining its legal position and requesting the PRC to immediately withdraw the oil platform from the area.19 The PRC responded later the same month by submitting in a similar manner its own legal arguments in a document entitled ‘position paper’.20 Like the preceding Vietnamese letter, the Chinese document requested the UN Secretary-General to circulate the letter and annex amongst the UN member states. Vietnam responded with two letters, one dealing with the sovereignty aspect21 and the other concerning the maritime claims.22 China replied with another ‘position paper’ containing a more elaborate argumentation,23 which was also posted on the website of its Ministry of Foreign Affairs.24 This in turn (p.188) triggered another reaction from Vietnam on the sovereignty issue25 as well as on the maritime claims in the area,26 to which China reacted by issuing yet another ‘position paper’.27 This series of exchanges ended that year with a last reply of Vietnam more than a month after the withdrawal of the oil platform28 and an additional ‘position paper’ by China in December 2014.29

These four rounds of diplomatic notes following the Haiyang Shiyou 981 oil platform incident are interesting in that they lift part of the veil to the world at large of the PRC’s maritime claims in the SCS. These diplomatic notes are significant in that they emanate from the PRC government and thus represent state practice under international law. Even though none of them shed light on the exact meaning of the dashes depicted on the 2009 Map, a number of relevant arguments are developed.30

2.1 The non-existence of a dispute concerning the Paracels

A first salient aspect of the diplomatic correspondence is that the PRC is of the firm opinion that no legal dispute exists with Vietnam as far as the Paracels are concerned.31 It is however well-established that the determination of whether a dispute exists ‘is a matter for objective determination. The mere denial of the existence of (p.189) a dispute does not prove its non-existence.’32 And even though it must be admitted that ‘[a] mere assertion is not sufficient to prove the existence of a dispute any more than a mere denial of the existence of the dispute proves its non-existence’, what is required is that ‘the claim of one party is positively opposed by the other’,33 which seems clearly to be implied from the above-mentioned exchange of diplomatic notes.34

2.2 Continuation of business as usual

For China, the drilling in the continental shelf was merely business as usual. After having conducted exploration activities for more than ten years in the area, including two- and three-dimensional seismic operations, the present drilling activities are claimed to be a simple continuation of these previous routine activities.35 Even if, arguendo, it is assumed that the Paracels belong to the PRC and that there is no dispute on this point with Vietnam,36 the PRC admits that there are ‘overlapping claims’ which both countries are trying to settle.37 Given the highly unpredictable influence of maritime features like islands, rocks, reefs, and low-tide elevations on maritime delimitation,38 even under this hypothesis the better approach might well be that states should try to enter into provisional arrangements of a practical nature.39 This of course applies a fortiori to the disputed sovereignty over the Paracels claimed by the two countries. The statement that the 2014 activities are a continuation of business as usual should be contrasted with the following passage taken from the Guyana v Suriname Arbitration concerning oil and gas activities in undelimited, disputed areas:

In the context of activities surrounding hydrocarbon exploration and exploitation, two classes of activities in disputed waters are therefore permissible. The first comprises activities (p.190) undertaken by the parties pursuant to provisional arrangements of a practical nature. The second class is composed of acts which, although unilateral, would not have the effect of jeopardizing or hampering the reaching of a final agreement on the delimitation of the maritime boundary.

The Tribunal is of the view that unilateral acts which do not cause a physical change to the marine environment would generally fall into the second class. However, acts that do cause physical change would have to be undertaken pursuant to an agreement between the parties to be permissible, as they may hamper or jeopardise the reaching of a final agreement on delimitation. A distinction is therefore to be made between activities of the kind that lead to a permanent physical change, such as exploitation of oil and gas reserves, and those that do not, such as seismic exploration.40

Instead of being business as usual, the drilling operations undertaken by the Haiyang Shiyou 981 oil platform form the next step in the exploration and exploitation activities of the PRC in that area, which under contemporary international law fall into a totally different category than the seismic testing undertaken previously in that area by the Chinese state-owned oil company.

2.3 The applicable legal framework is the 1982 Convention

The PRC acknowledges that the 1982 Convention forms part of the applicable international legal framework with respect to the maritime claims in the SCS.41 But as with the Chinese letters of 7 May 2009, the use of some terms in these diplomatic notes is puzzling, not because they do not appear in the 1982 Convention, but rather because they seem to be totally unrelated to the activities undertaken. The emphasis placed on the drilling activities having taken place in the contiguous zone of the PRC,42 a zone in which the coastal state has certain competences limited to customs, fiscal, immigration, and sanitary matters,43 for instance, does not seem to bear much relevance from a legal point of view. Its specific mention in the PRC Oil Platform Position Paper 2 therefore remains perplexing.

These diplomatic notes also rely on the Chinese baselines around the Paracels to determine the exact location of the drilling.44 Explicit reference is made to the Declaration of the Government of the PRC on the Baselines of the Territorial Sea of the PRC, dated 15 May 1996,45 duly deposited with the UN Secretary-General.46 This Declaration is said to have been enacted ‘in complete compliance (p.191) with international law’.47 By encircling the Paracels by means of straight baselines connecting its outermost features, the PRC gives the impression of relying on those provisions of the 1982 Convention that concern outlying archipelagos.48 This would be problematic, as this system only applies to states constituted wholly by one or more archipelagos or islands and excludes mainland (or continental) states.49 This restriction was clearly part of the compromise when the concept of the archipelagic state was for the first time codified in the 1982 Convention.50 If not archipelagic baselines, the only remaining possibility is that the baselines drawn around the Paracels are straight baselines.51 But also this line of reasoning seems difficult to reconcile with the International Court of Justice’s (ICJ) obiter dictum in the Qatar v Bahrain Case:

The Court observes that the method of straight baselines, which is an exception to the normal rules for the determination of baselines, may only be applied if a number of conditions are met. This method must be applied restrictively. Such conditions are primarily that either the coastline is deeply indented and cut into, or that there is a fringe of islands along the coast in its immediate vicinity.52

The application of straight baselines to offshore archipelagos was criticized in the South China Sea Arbitration. While acknowledging the existence of state practice to this effect, the Arbitral Tribunal held that such deviations from the 1982 Convention had not given rise to a new norm of customary international law that would permit any departures from the established rules.53 Hence, no matter how one tries to justify the straight baselines drawn around the Paracels, they remain highly problematic from a legal point of view unless the Paracels were to become an independent state, not belonging to either China or Vietnam, because the latter two countries both have a continental landmass.54

A final remarkable point, at least if one agrees that the 1982 Convention is the governing legal framework, is the map attached to PRC Oil Platform Position Paper 2 depicting the two locations where the oil platform Haiyang Shiyou 981 was positioned during the summer of 2014.55 Informative as this 2014 Map may be with (p.192) respect to the exact positions of the drilling operations, it is troubling in terms of international law: it depicts one of the nine dashes, marked as a state boundary,56 attributing about 63 per cent of the maritime area between the Vietnamese mainland57 and Triton Island58 to the PRC. Leaving aside the issue of contested sovereignty, this apportionment hardly seems ‘equitable’ from the perspective of maritime delimitation under the 1982 Convention.59

3 The PRC’s Position Paper in the South China Sea Arbitration

3.1 The South China Sea Arbitration

On 22 January 2013 the Philippines informed the PRC of its decision to institute legal proceedings under Annex VII of the 1982 Convention in an effort to challenge certain of the Chinese maritime claims and actions in the SCS. The PRC reacted by means of a diplomatic note dated 19 February 2013, stating that the PRC rejected and returned the Philippines’ note verbale and notification.60 In that diplomatic note, the PRC described ‘the Position of China on the South China Sea issues’.61 After having been invited by the Arbitral Tribunal to comment on the draft Rules of Procedure, the PRC responded by means of a note verbale of 1 August 2013 addressed to the PCA maintaining its position that it did not accept the arbitration and consequently would not be participating in the procedure.62

The Philippines submitted its memorial on 30 March 2014,63 following which the Arbitral Tribunal set 15 December 2014 as the deadline for the PRC to submit its counter-memorial.64 After the parties had once more been given the opportunity to comment on the scheduling, the PRC sent another note verbale in which it reiterated its position that it did not accept the arbitration while emphasizing that the present note verbale ‘shall not be regarded as China’s acceptance of or participation in the proceedings’.65 In the PRC’s absence, the Arbitral Tribunal rendered two decisions, that is a first Award on Jurisdiction and Admissibility on 29 October 2015 (2015 Award)66 and a second Award on 12 July 2016 (2016 (p.193) Award).67 The latter decision inter alia invalidated a number of China’s maritime claims and declared its conduct to be contrary to the 1982 Convention and general international law.

Despite what one might surmise from this chain of events, the PRC’s legal position, both on jurisdiction as well as the merits, was conveyed. Many Chinese scholars published scientific papers on the subject in authoritative journals.68 A whole book was devoted to the Chinese perspective on this arbitration.69 But irrespective of the position held by some of these authors, the arguments developed in those publications cannot, as a rule, be attributed to the PRC.70

That is why the position paper of 7 December 2014, which was posted on the website of the PRC’s Ministry of Foreign Affairs, carries special weight as it represents the official governmental position.71 Although the PRC refused to participate in the proceedings of the South China Sea Arbitration until the very end, the 2014 Position Paper was clearly written with this case in mind. It contains a number of legal arguments setting out why the PRC believes that the Arbitral Tribunal has no jurisdiction. The timing of the release of the position paper is also salient, as it was made public about a week before the deadline for the PRC to deposit its counter-memorial.72

This 2014 Position Paper has only one purpose and that is to prove that the Arbitral Tribunal lacks jurisdiction to entertain the case. It does not address the substantive issues raised by the Philippine memorial.73 While it develops an argumentation that is basically addressed to the Arbitral Tribunal, much like a counter-memorial on jurisdiction, the 2014 Position Paper explicitly states that it cannot ‘be regarded as China’s acceptance of or participation in this arbitration’.74 It subsequently puts forward mainly three lines of argumentation: (1) this case concerns in essence a dispute over territorial sovereignty and thus falls outside of the purview of the 1982 Convention;75 (2) the Philippines and China have agreed to settle their (p.194) relevant disputes through negotiations, not by legal means;76 and (3) even if the dispute were to come within the ambit of the 1982 Convention, it pertains to questions of delimitation that China has excluded from compulsory dispute settlement.77

The substance of the 2014 Position Paper is of less relevance for present purposes. What is of crucial importance, however, is that the PRC sent a copy of the document to the members of the Arbitral Tribunal while at the same time informing the Registry that ‘the forwarding of the aforementioned Position Paper shall not be regarded as China’s acceptance of or its participation in the arbitration’.78

These developments placed the Arbitral Tribunal in a rather uncomfortable position. On the one hand the PRC clearly wanted the Arbitral Tribunal to take its argumentation on jurisdiction into account, while at the same time maintaining its position that it did not want to accept or participate in the arbitration. In a first phase the Arbitral Tribunal made use of its powers under article 25 of its Rules of Procedure, entitled ‘Failure to Appear or to Make Submissions’, and requested a supplemental written submission from the appearing party, the Philippines.79 The latter was invited ‘to address, as it considers appropriate, any public statements made by the Chinese government in relation to the dispute’.80 In a second phase, the Arbitral Tribunal, after having sought the views of the parties, decided in its fourth Procedural Order ‘that it will treat China’s communications (including the Position Paper) as constituting a plea concerning the Arbitral Tribunal’s jurisdiction for purposes of article 20 of the Rules of Procedure’.81 The latter provides as follows:

Preliminary Objections

Article 20

  1. 1. The Arbitral Tribunal shall have the power to rule on objections to its jurisdiction or to the admissibility of any claim made in the proceedings.

  2. 2. A plea that the Arbitral Tribunal does not have jurisdiction shall be raised no later than in the Counter-Memorial. A Party is not precluded from raising such a plea by the fact that it has appointed, or participated in the appointment of, an arbitrator. A plea that the Arbitral Tribunal is exceeding the scope of its authority shall be raised as soon as the matter alleged to be beyond the scope of its authority is raised during the arbitral proceedings. The Arbitral Tribunal may, in either case, admit a later plea if it considers the delay justified.

  3. 3. The Arbitral Tribunal shall rule on any plea concerning its jurisdiction as a preliminary question, unless the Arbitral Tribunal determines, after seeking the views of the Parties, that the objection to its jurisdiction does not possess an exclusively preliminary character, in which case it shall rule on such a plea in conjunction with the merits.

  4. 4. Prior to a ruling on any matters relating to jurisdiction or admissibility, a hearing shall be held if the Arbitral Tribunal determines that such a hearing is necessary or useful, after seeking the views of the Parties.82

(p.195) It transpires from the 2015 and 2016 Awards that the Arbitral Tribunal undertook a balancing act with the goal of ensuring procedural fairness to both parties. This explains the importance given by the Arbitral Tribunal to the 2014 Position Paper. The Arbitrators held that the publication of this document to some level assuaged the Philippines’ concerns that it would be forced into the ‘position of having to guess’ what the non-participating respondent’s arguments could be.83 Yet, the assessment of jurisdiction was not confined to tackling the objections raised by China in the aforementioned document. True to its obligation to ‘satisfy itself’ that it has jurisdiction,84 the Tribunal examined, and invited the parties to address, other potential jurisdictional hurdles.85

3.2 Comparison with the Arctic Sunrise Arbitration

The present part will focus on the Arctic Sunrise Arbitration and more particularly on the manner in which the issue of the defaulting party played out in this litigation. For even though the legal nature of both disputes is quite different, namely maritime claims and activities in the SCS (South China Sea Arbitration) versus the legality of boarding and detaining a foreign-flagged vessel in the exclusive economic zone (Arctic Sunrise Arbitration),86 there are some noteworthy similarities. In both cases the respondents, major powers, refused to participate in claims brought against them by smaller countries. Moreover, in each case the defaulting party, after having decided not to participate in the arbitration, deemed it useful to bring its legal argumentation to the attention of the Arbitral Tribunal: the PRC did so in the jurisdiction phase, whereas the Russian Federation acted in kind in the phase on the merits. By comparing the behaviour of the defaulting respondents striking differences can be observed.

Much like the PRC, the Russian Federation reacted swiftly. Russia responded to a Dutch note of 4 October 2013 instituting legal proceedings under Annex VII of the 1982 Convention,87 an additional note of the Netherlands dated 21 October 2013 requesting the prescription of provisional measures by the International Tribunal for the Law of the Sea (ITLOS),88 and a communication from ITLOS regarding said request, by means of two notes dated 22 October 2013, one addressed to the Embassy of the Netherlands in Moscow and one to the ITLOS. Both documents (p.196) contain similar wording, namely that the Russian Federation ‘does not accept the arbitration procedure under Annex VII to the Convention [ … ] and does not intend to participate in the proceedings of the International Tribunal for the Law of the Sea in respect of the request of the Kingdom of the Netherlands for the prescription of provisional measures’.89

The Russian Federation did however react on one occasion, namely when the ITLOS sought Russia’s comments on a request from Greenpeace International to submit an amicus curiae. The respondent state answered this question in the negative, but only after the deadline set by the Tribunal had passed. Indeed, it is apparent from the procedural history of the case that the ITLOS had already rejected Greenpeace International’s request a day earlier.90 In its answer, the Russian Federation specified that ‘this 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 case.91 This was the only form of participation of the Russian Federation in the Arctic Sunrise Case as it was not represented at the public hearing,92 did not reply to further questions it received,93 and did not take up the Tribunal’s invitation to present its observations before the closing of the hearing.94 The ITLOS held that it had prima facie jurisdiction95 and prescribed provisional measures on 22 November 2013 ordering the release of the vessel and the people on board upon the posting of a bond by the Netherlands.96

Turning to the arbitral proceedings, the Russian Federation made its intentions clear ab initio even before the tribunal held its first meeting on 17 March 2014.97 The respondent stated that it maintained its position already expressed on 22 October 2013,98 namely that it did not accept the arbitration and that it consequently refused ‘to take part in this arbitration and abstains from providing comments both on the substance of the case and procedural matters’.99 Russia upheld this policy throughout the proceedings. It did not send any representatives to this first meeting.100 Adopting a different approach than in the ITLOS proceedings,101 the Russian Federation refrained from responding to the Arbitrators’ query to (p.197) comment on the request by Greenpeace International to submit an amicus curiae to the Arbitral Tribunal.102 Furthermore, Russia did not inform the Arbitral Tribunal whether it would submit a counter-memorial103 nor did it express its views on the issue of bifurcation of the proceedings.104

Contrary to the PRC, which by means of its 2014 Position Paper had sent the Arbitral Tribunal a clear signal that it was raising preliminary objections, the Russian Federation did not provide detailed argumentation and refused to take a position. Faced with this non-participation, the Netherlands stated on several occasions that the terse Russian notes verbales of 22 October 2013105 and 27 February 2014106 should be equated with a plea concerning the jurisdiction of the Arbitral Tribunal.107 The Arbitral Tribunal ruled on 21 November 2014 that the Russian note verbale of 22 October 2013 constituted such a plea to which article 20(3) of its Rules of Procedure applied108 and decided to rule on this plea without a hearing.109 On 26 November 2014 the Arbitral Tribunal unanimously ruled that it had jurisdiction to hear the merits.110

During the phase leading up to the hearings on the merits, scheduled for 10 and 11 February 2015, the Russian Federation ‘maintained its position not to participate in the proceedings’111 and did not indicate an intention to submit comments as requested by the Arbitral Tribunal.112 At the oral proceedings on the merits the Russian Federation was not represented and ‘did not … otherwise participate’.113

But then, rather unexpectedly, the Russian Federation posted on the website of its Ministry of Foreign Affairs on 5 August 2015 a document titled ‘Ministry of Foreign Relations of the Russian Federation on Certain Legal Issues Highlighted by the Action of the Arctic Sunrise against Prirazlomnaya platform’.114 This document of forty pages reads like a counter-memorial on the merits. After having repeated that the Russian Federation does not participate in the arbitration, this document nevertheless ‘finds (p.198) it important’, given the fact that the case concerns the balance of coastal and flag state powers in the exclusive economic zone and on the continental shelf, ‘to address some of those issues’.115 For present purposes, once again,116 the content is less important. What is worth stressing here, however, is that the Russian Federation sent this document two days later to the PCA. The Arbitral Tribunal refers to this document as ‘Position Paper’ in its 2015 Award on the Merits.117 In an accompanying letter the Russian Federation stated that ‘this shall in no way be interpreted as the Russian Federation’s acceptance of or participation in the arbitration’.118 After having notified the Netherlands of this development and observing that the latter country made no application in this respect, the Arbitral Tribunal decided to take no formal action on Russia’s Position Paper given that: (i) it was brought to the Tribunal’s attention at a very late stage of this phase of the proceedings following Russia’s consistent failure to participate in this arbitration; and (ii) according to Russia, the Position Paper does not constitute a formal submission in this proceeding.119

In the unanimous Award on the Merits, the Arbitral Tribunal found that the Russian Federation had illegally boarded the Arctic Sunrise and that the Netherlands was entitled to compensation.120

4 The Rise of Non-participation and Position Papers?

This chapter has demonstrated that the PRC has resorted to so-called position papers in interactions with its SCS neighbours. Particularly in the South China Sea Arbitration this has resulted in a coherent legal argumentation defending the PRC’s position at least with respect to a well-specified part of the arbitration (ie the jurisdiction of the Arbitral Tribunal). The Arbitrators each received a copy of the 2014 Position Paper. At the same time, however, the PRC addressed a communication to the Registry stressing that this did not imply that the PRC had decided to accept or participate in the arbitration.

The Arbitral Tribunal, after having consulted the parties, relied on a provision of its Rules of Procedure that deals with preliminary objections so that it could take the arguments of the 2014 Position Paper into account. This approach appears to be compatible with the provision that governs situations whereby one of the parties fails to defend its case121 as well as with the practice of international courts and tribunals in such instances.122

(p.199) The Arctic Sunrise Arbitration seems to confirm this practice. There are however clear distinctions to be noted. The Russian Federation, first of all, did not find it essential to write a ‘position paper’ on jurisdiction. Maybe it was the precedent set by China half a year earlier in the South China Sea Arbitration by producing its 2014 Position Paper and the manner in which it was received by the Arbitral Tribunal that prompted the Russian Federation to act in a very similar manner with respect to the merits of its own case. But unlike the 2014 Position Paper, which the PRC submitted eight days before the deadline set by the Arbitral Tribunal to hand in its counter-memorial, the Russian action proved ill-timed, as the 2015 Russian Ministry of Foreign Affairs Document was sent to the Arbitral Tribunal only seven days before it delivered its Award on the Merits. Not only did the Tribunal decide to take no formal action on this document because of its timing and nature, as indicated above,123 but even worse, it was able to sweep aside the whole legal argumentation presented by the Russian authorities with one concise sentence in which it remarked that ‘the Tribunal is satisfied that the relevant issues are fully addressed in this Award’.124

5 Conclusions

Can states refuse to participate in international legal proceedings and yet have their legal arguments, developed outside of that framework, be heard by the court or tribunal involved? The answer appears to be ‘yes’, as the Arbitral Tribunal did everything in its power to provide the PRC with the opportunity to present its case and take on board the arguments raised in its position paper.125 It is further submitted that the result would have been similar in the Arctic Sunrise Arbitration, had the Russian Federation acted in a timelier manner.

While the Arbitral Tribunal’s treatment of China’s position paper is consonant with its procedural rules and shows due regard for procedural fairness, it might very well prompt other states to reap the benefits of not participating in proceedings and all the while mount a legal defence through the use of position papers. Recent years had seen a greater involvement of China with international courts and tribunals as borne out by its engagement in World Trade Organization litigation and participation in advisory proceedings before the ICJ and ITLOS (both the Seabed Disputes Chamber and the full Tribunal).126 In recent memory, Russia has actively (p.200) participated in international proceedings, including as defendant.127 Now it appears that both powers are promoting a policy that would encourage non-participation in international proceedings brought by unilateral application. This approach, which would substantially narrow the scope of international adjudication and arbitration, is aptly illustrated in a recent joint declaration:

The Russian Federation and the People’s Republic of China reaffirm the principle of peaceful settlement of disputes and express their firm conviction that States shall resolve their disputes through dispute settlement means and mechanisms that they have agreed upon [ … ].

This applies equally to all types and stages of dispute settlement, including political and diplomatic means when they serve a pre-requisite to the use of other mechanisms of dispute settlement. It is crucial for the maintenance of international legal order that all dispute settlement means and mechanisms are based on consent and used in good faith and in the spirit of cooperation, and their purposes shall not be undermined by abusive practices.128

Are these developments, namely the flexibility displayed by courts and tribunals on the one hand and the recent practice of China and Russia on the other hand, to be expected to open the floodgates for non-participation in compulsory procedures of dispute settlement? This might well be the case if the interests of the parties were secured in exactly the same manner in both instances. One can, however, seriously doubt whether the use of position papers by a non-participating state will ever be able to equal the submission of a counter-memorial and the subsequent oral pleadings in this respect. It is believed that the absence of the possibility, first to orally defend and further develop one’s own written arguments contained in the counter-memorial, and second to critically assess those developed orally by the claimant, tends to weaken the position of the defendant as it will always grant the court or tribunal ample discretion in the way it weighs and makes use of the different arguments developed in the position paper.

A host of pending arbitrations have the potential to either incentivize or deter the resort to position papers. In 2009, Croatia and Slovenia concluded a compromis (p.201) submitting their territorial and maritime dispute to arbitration with the PCA acting as registry. The smooth running of the case came to a sudden halt when it was discovered that the agent for Slovenia and the arbitrator appointed by Slovenia had engaged in unlawful ex parte contacts. The revelations led to the departure of the original party-appointed arbitrators and the Slovenian agent. New appointments were made to replace said arbitrators. Croatia sought the discontinuance of the case,129 whereas Slovenia requested that the Arbitral Tribunal complete its mandate. A hearing was held to address the legal implications of the incident. Croatia, which was fully engaged in the arbitral proceedings prior to the fateful event, did not participate in the hearing nor did it file formal written submissions. It had however formulated its position in diplomatic notes and letters.130 The Croatian Ministry of Foreign and European Affairs even created an English-language website titled ‘Termination of the Arbitration Process between Croatia and Slovenia: Causes and Consequences’ with hyperlinks to documents providing analysis.131 The Arbitral Tribunal made ample use of the abovementioned documentation and correspondence to assess the legal arguments expressed by Croatia. While acknowledging the breaches of the Arbitration Agreement by Slovenia, the Arbitral Tribunal decided in a Partial Award that the proceedings could and would continue.132 Responding to the Partial Award, Croatia issued a press release commenting that it is no longer a party to the arbitration and does not consider itself bound by the decisions of the Arbitral Tribunal.133

In the wake of the Russian annexation of Crimea, several Ukrainian private investors and Ukrainian state-owned enterprises with investments in Crimea filed claims against Russia under UNCITRAL (United Nations Commission on International Trade Law) Arbitration Rules (1976) pursuant to the Russia-Ukraine Bilateral Investment Treaty (BIT).134 It has been reported in most of these cases, of which all (p.202) but one are currently administered by the PCA,135 that Russia did not appoint representatives and sent letters to the PCA indicating that (1) the ‘[Ukraine-Russia BIT] cannot serve as a basis for composing an arbitral tribunal to settle [the Claimants’ claims]’, (2) it ‘does not recognize the jurisdiction of an international arbitral tribunal at the [PCA] in settlement of the [Claimants’ claims]’, and (3) nothing in its correspondence ‘should be considered as consent of the Russian Federation to constitution of an arbitral tribunal, participation in arbitral proceedings, or as procedural actions taken in the framework of the proceedings’.136 In the vast majority (if not all) of the Crimea investment cases the Russian Federation has neither responded to requests from the Arbitral Tribunals nor has it submitted statements of defence or attended hearings. A number of these Arbitral Tribunals have dealt with Russia’s non-participation in the same manner: (1) continuation of the proceedings despite the respondent’s failure to communicate its claim; (2) qualification of Russia’s correspondence as a plea concerning jurisdiction and admissibility; and (3) bifurcation of the proceedings.137

The latest development that deserves to be flagged is Ukraine’s decision in September 2016 to commence arbitral proceedings against Russia under Annex VII of the 1982 Convention. The application, which also originates from the situation (p.203) in Crimea, seeks to vindicate maritime rights asserted by Ukraine in the Black Sea, Sea of Azov, and Kerch Strait and challenge Russian activities in those areas.138 At the time of writing, the Russian Federation had at least appointed its own member on the tribunal.139 Will the respondent defend its case head-on or stay on the sidelines?

Non-Participation in Compulsory Procedures of Dispute SettlementThe People’s Republic of China’s Position Paper in the  and Beyond

Source: China, ‘Letter to the Secretary-General of the United Nations—CML/17/2009’ (7 May 2009) and People’s Republic of China, ‘Letter to the Secretary-General of the United Nations—CML/18/2009’ (7 May 2009).

Non-Participation in Compulsory Procedures of Dispute SettlementThe People’s Republic of China’s Position Paper in the  and Beyond

Source: China, ‘Letter Dated 9 June 2014 from the Chargé d’affaires a.i. of the Permanent Mission of China to the United Nations addressed to the Secretary-General’ (9 June 2014) UN Doc A/68/907, Enclosure 1. (p.206)

Notes:

(*) Research professor, President of the Department of International and European Law, and Vice-dean for Internationalization, Faculty of Law and Criminology, Vrije Universiteit Brussel (VUB). He holds teaching assignments at Vesalius College (VUB); Université Libre de Bruxelles; Brussels School of International Studies (University of Kent); Institute of European Studies (VUB); Université Paris-Sorbonne Abu Dhabi, United Arab Emirates; and the University of Akureyri, Iceland. He is appointed by Belgium as: expert in maritime boundary delimitation to the IHO (2005–); member of the Permanent Court of Arbitration (2006–); arbitrator under the United Nations Convention on the Law of the Sea (2014–); expert on marine scientific research for use in Special Arbitration under Annex VIII of the United Nations Convention on the Law of the Sea (2015–); and member of the National Commission for the Reform of Private and Public Maritime Law (2012–). Publication list is available at <http://www.vub.ac.be/people/erik-franckx>.

(**) Research Fellow, Max Planck Institute Luxembourg for Procedural Law. Researcher, Department of International and European Law, Faculty of Law and Criminology, Vrije Universiteit Brussel (VUB).

(1) PCA, ‘United Nations Convention on the Law of the Sea’ <http://pca-cpa.org/en/services/arbitration-services/unclos/> (accessed 1 September 2016); Dapo Akande, ‘The Peace Palace Heats Up Again: But Is Inter-State Arbitration Overtaking the ICJ?’ (EJIL: Talk!, 17 February 2014) <www.ejiltalk.org/the-peace-palace-heats-up-again-but-is-inter-state-arbitration-overtaking-the-icj/> (accessed 1 September 2016).

(2) The last instance of non-participation being that of the United States in the merits phase of Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States) before the International Court of Justice (ICJ). The prevalence of defaulting respondent states in previous decades garnered considerable scholarly attention, not in the least from the Institut de droit international. See Institut de droit international, ‘Resolution on Non-Appearance Before the International Court of Justice’ (1991) <www.justitiaetpace.org/idiE/resolutionsE/1991_bal_01_en.PDF> (accessed 1 September 2016).

(4) The use of the denomination ‘South China Sea’ has no legal implications as to the entitlements to these waters or the insular features they contain. See Erik Franckx, Marco Benatar, Nkeiru Joe, and Koen Van den Bossche, ‘The Naming of Maritime Features Viewed from an International Law Perspective’ (2011) 11 China Oceans L R 1. The present chapter simply uses this term because it is the nomenclature commonly used in the English language. See for instance International Hydrographic Organization, Limits of Oceans and Seas (3rd edn, Imp Monégasque 1953) 30–31. This publication states in its preface: ‘These limits have no political significance whatsoever’ (2).

(5) Malaysia-Vietnam, ‘Joint Submission to the Commission on the Limits of the Continental Shelf Pursuant to Article 76, paragraph 8 of the United Nations Convention on the Law of the Sea 1982 in Respect of the Southern Part of the South China Sea, Executive Summary’ (UN, May 2009) <www.un.org/Depts/los/clcs_new/submissions_files/mysvnm33_09/mys_vnm2009excutivesummary.pdf> (accessed 1 September 2016). As indicated by the letter of the Secretary-General of the UN, acknowledging receipt, this join submission was made on 6 May 2009 <www.un.org/depts/los/clcs_new/submissions_files/mysvnm33_09/mysvnm_clcs33_2009e.pdf> (accessed 1 September 2016).

(6) Vietnam, ‘Submission to the Commission on the Limits of the Continental Shelf Pursuant to Article 76, paragraph 8 of the United Nations Convention on the Law of the Sea 1982, Partial Submission in Respect of Vietnam’s Extended Continental Shelf: North Area (VNM-N), Executive Summary’ (UN, April 2009) <www.un.org/Depts/los/clcs_new/submissions_files/vnm37_09/vnm2009n_executivesummary.pdf> (accessed 1 September 2016). As indicated by the letter of the UN Secretary-General, acknowledging receipt, this submission was made on 7 May 2009 <www.un.org/depts/los/clcs_new/submissions_files/vnm37_09/vnm_clcs37_2009e.pdf> (accessed 1 September 2016).

(7) China, ‘Letter to the Secretary-General of the United Nations—CML/17/2009’ (UN, 7 May 2009) <www.un.org/Depts/los/clcs_new/submissions_files/mysvnm33_09/chn_2009re_mys_vnm_e.pdf> (accessed 1 September 2016); China, ‘Letter to the Secretary-General of the United Nations—CML/18/2009’ (UN, 7 May 2009) <www.un.org/Depts/los/clcs_new/submissions_files/vnm37_09/chn_2009re_vnm.pdf> (accessed 1 September 2016) (Chinese letters of 7 May 2009).

(8) ibid. Our emphasis.

(9) United Nations Convention on the Law of the Sea (adopted 10 December 1982, entered into force 16 November 1994) 1833 UNTS 397 (1982 Convention).

(10) Contrary to the four separate conventions adopted in 1958, namely the Convention on the Territorial Sea and the Contiguous Zone (adopted 29 April 1958, entered into force 10 September 1964) 516 UNTS 205; Convention on the Continental Shelf (adopted 29 April 1958, entered into force 10 June 1964) 499 UNTS 311; Convention on the High Seas (adopted 29 April 1958, entered into force 30 September 1962) 450 UNTS 11; Convention on Fishing and Conservation of the Living Resources of the High Seas (adopted 29 April 1958, entered into force 20 March 1966) 559 UNTS 285.

(11) This map has been reproduced in Annex 1 to this chapter (2009 Map).

(12) Erik Franckx, ‘Chinese Claims in the East China Sea and South China Sea: A Legal Assessment of Cartographic Evidence’ in Françoise Nicolas, Céline Pajon, and John Seaman (eds), The Asian Century: What International Norms and Practices? (IFRI 2014) 25.

(13) See for instance the communications by Indonesia specifically addressing the issue of the ‘nine-dotted-lines map’ (UN, 8 July 2010) <www.un.org/depts/los/clcs_new/submissions_files/mysvnm33_09/idn_2010re_mys_vnm_e.pdf> (accessed 1 September 2016); US Dept of State, Office of Ocean and Polar Affairs, Bureau of Oceans and International Environmental and Scientific Affairs, ‘China: Maritime Claims in the South China Sea’ (2014) <www.state.gov/documents/organization/234936.pdf> (accessed 1 September 2016).

(14) Such as the journal Ocean Development and International Law in its first issue of 2012. In the order of appearance in the journal: Miyoshi Masahiro, ‘China’s “U-Shaped Line” Claim in the South China Sea: Any Validity Under International Law?’ (2012) 43 Ocean Development and Intl L 1; Keyuan Zou, ‘China’s U-Shaped Line in the South China Sea Revisited’ (2012) 43 Ocean Development and Intl L 18; Thang Nguyen-Dang and Thao Nguyen Hong, ‘China’s Nine Dotted Lines in the South China Sea: The 2011 Exchange of Diplomatic Notes Between the Philippines and China’ (2012) 43 Ocean Development and Intl L 35; Gau Michael Sheng-Ti, ‘The U-Shaped Line and a Categorization of the Ocean Disputes in the South China Sea’ (2012) 43 Ocean Development and Intl L 57.

(15) Namely the American Journal of International Law in 2013. In the order of appearance in the journal: Lori Fisler Damrosch and Bernard H Oxman, ‘Agora: The South China Sea. Editors’ Introduction’ (2013) 107 AJIL 95; Zhiguo Gao and Bing Bing Jia, ‘The Nine-Dash Line in the South China Sea: History, Status, and Implications’ (2013) 107 AJIL 98; Florian Dupuy and Pierre-Marie Dupuy, ‘A Legal Analysis of China’s Historic Rights Claim in the South China Sea’ (2013) 107 AJIL 124; Robert Beckman, ‘The UN Convention on the Law of the Sea and the Maritime Disputes in the South China Sea’ (2013) 107 AJIL 142.

(16) Erik Franckx and Marco Benatar, ‘Dots and Lines in the South China Sea: Insights from the Law of Map Evidence’ (2012) 2 Asian J Intl L 89.

(17) ‘Why is the South China Sea Contentious?’ BBC News (12 July 2016) <www.bbc.com/news/world-asia-pacific-13748349> (accessed 1 September 2016).

(18) For a good recent overview article of this incident, see for instance Ankit Panda, ‘1 Year Later: Reflections on China’s Oil Rig “Sovereignty-Making” in the South China Sea’ (The Diplomat, 12 May 2015) <thediplomat.com/2015/05/1-year-later-reflections-on-chinas-oil-rig-sovereignty-making-in-the-south-china-sea/> (accessed 1 September 2016).

(19) Vietnam, ‘Letter dated 7 May 2014 from the Permanent Representative of Viet Nam to the United Nations Addressed to the Secretary-General’ (9 May 2014) UN Doc A/68/870. The letter itself containing the position of the Ministry of Foreign Affairs was included as annex and dated 4 May 2014.

(20) China, ‘Letter dated 22 May 2014 from the Chargé d’affaires a.i. of the Permanent Mission of China to the United Nations addressed to the Secretary-General’ (27 May 2014) UN Doc A/68/887. The Chinese Position Paper was included as annex (PRC Oil Platform Position Paper 1).

(21) Vietnam, ‘Letter dated 28 May 2014 from the Chargé d’affaires a.i. of the Permanent Mission of Viet Nam to the United Nations addressed to the Secretary-General’ (30 May 2014) UN Doc A/68/897. The letter itself containing the position of the Ministry of Foreign Affairs was included as annex.

(22) Vietnam, ‘Letter dated 6 June 2014 from the Permanent Representative of Viet Nam to the United Nations addressed to the Secretary-General’ (9 June 2014) UN Doc A/68/906. The letter itself containing the position of the Ministry of Foreign Affairs was included as annex and dated 4 June 2014.

(23) China, ‘Letter dated 9 June 2014 from the Chargé d’affaires a.i. of the Permanent Mission of China to the United Nations addressed to the Secretary-General’ (9 June 2014) UN Doc A/68/907. The Chinese position paper, entitled ‘The operation of the HYSY 981 drilling rig: Viet Nam’s provocation and China’s position’, was included as annex, containing itself three enclosures (PRC Oil Platform Position Paper 2).

(24) China, ‘The Operation of the HYSY 981 Drilling Rig: Vietnam’s Provocation and China’s Position’ (Chinese Ministry of Foreign Affairs, 2014) <www.fmprc.gov.cn/mfa_eng/zxxx_662805/t1163264.shtml> (accessed 1 September 2016). This version contained two more enclosures than the PRC Oil Platform Position Paper 2 (n 23).

(25) Vietnam, ‘Letter dated 3 July 2014 from the Permanent Representative of Viet Nam to the United Nations addressed to the Secretary-General’ (9 July 2014) UN Doc A/68/942. The letter itself containing the position of Vietnam, entitled ‘The sovereignty of Viet Nam over the Hoang Sa Archipelago’ was included as annex.

(26) Vietnam, ‘Letter dated 3 July 2014 from the Permanent Representative of Viet Nam to the United Nations addressed to the Secretary-General’ (9 July 2014) UN Doc A/68/943. The letter itself containing the position of Vietnam, entitled ‘China’s illegal placement of the Haiyang Shiyou 981 oil rig in the exclusive economic zone and continental shelf of Viet Nam’ was included as annex.

(27) China, ‘Letter Dated 24 July 2014 from the Permanent Representative of China to the United Nations addressed to the Secretary-General’ (28 July 2014) UN Doc A/68/956. The Chinese Position Paper was included as annex (PRC Oil Platform Position Paper 3).

(28) Again two separate letters were sent. A first one relating to the maritime claims: Vietnam, ‘Letter dated 22 August 2014 from the Permanent Representative of Viet Nam to the United Nations addressed to the Secretary-General’ (27 August 2014) UN Doc A/68/980. The letter itself containing the position of Vietnam, entitled ‘China’s illegal placement of the Haiyang Shiyou 981 oil rig in the exclusive economic zone and continental shelf of Viet Nam’, was included as annex. A second letter concerned the sovereignty claims: Vietnam, ‘Letter dated 3 July 2014 from the Permanent Representative of Viet Nam to the United Nations addressed to the Secretary-General’ (9 July 2014) UN Doc A/68/981. The letter itself containing the position of Vietnam, entitled ‘The sovereignty of Viet Nam over the Hoang Sa Archipelago’, was included as annex.

(29) China, ‘Letter Dated 8 December 2014 from the Permanent Representative of China to the United Nations addressed to the Secretary-General’ (10 December 2014) UN Doc A/69/645. The Chinese Position Paper was included as annex (PRC Oil Platform Position Paper 4).

(30) The following three sections (2.1, 2 and 3) are based on an initial assessment made by one of the present authors elsewhere, as further elaborated in Franckx (n 12) 29–32.

(31) This is stressed in all four position papers of the PRC. See PRC Oil Platform Position Paper 1 (n 20) para 2; PRC Oil Platform Position Paper 2 (n 23) point IV, para 1; PRC Oil Platform Position Paper 3 (n 27) para 1 (‘China stands firmly against and by no means accepts the so-called “Xisha disputes” that Viet Nam attempts to fabricate’); PRC Oil Platform Position Paper 4 (n 29) para 1 (‘there is not the slightest dispute’).

(32) Interpretation of Peace Treaties with Bulgaria, Hungary and Romania (Advisory Opinion) (First Phase) [1950] ICJ Rep 65, 74.

(33) South West Africa Cases (Ethiopia v South Africa, Liberia v South Africa) (Preliminary Objections) [1962] ICJ Rep 319, 328.

(34) See Malcolm N Shaw, International Law (7th edn, CUP 2014) 774 referring to a ‘relatively low threshold’ in this respect.

(35) PRC Oil Platform Position Paper 1 (n 20) para 2; PRC Oil Platform Position Paper 2 (n 23) point I, para 2.

(36) See however section 2.1 of this chapter.

(37) PRC Oil Platform Position Paper 4 (n 29) para 1.

(38) Derek Bowett, ‘Islands, Rocks, Reefs, and Low-tide Elevations in Maritime Boundary Delimitations’ in Jonathan I Charney and Lewis M Alexander (eds), International Maritime Boundaries, vol 1 (Martinus Nijhoff 1993) 150: ‘It is clear that the presence of islands, rocks, reefs, and low-tide elevations is a frequent, complicating factor in delimitation. The situations are so diverse that generalizations are hazardous, and to attempt to postulate “rules” would be to fall into the error which the courts have persistently, and rightly, avoided. The most that can be done is to identify certain tendencies in state practice.’ The categorical affirmation that the area of operation of the Haiyang Shiyou 981 oil platform during the summer of 2014 ‘will never fall within the scope of Vietnam’s EEZ and continental shelf, no matter which principle is applied in the delimitation’ (PRC Oil Platform Position Paper 4 (n 29) para 1) seems therefore to be somewhat overstretched, even in the hypothesis, evoked above for the sake of argumentation, that the Paracels would fall under the sovereignty of the PRC.

(39) In accordance with the 1982 Convention (n 9) arts 74(3) and 83(3).

(40) Guyana v Suriname (Award of 17 September 2007) 30 RIAA 1 paras 466–467.

(41) PRC Oil Platform Position Paper 2 (n 23) point II, para 2 and point III, para 1; PRC Oil Platform Position Paper 4 (n 29) point 2.

(42) PRC Oil Platform Position Paper 2 (n 23) point I, para 1.

(43) 1982 Convention (n 9) art 33.

(44) PRC Oil Platform Position Paper 2 (n 23) point I, para 1.

(45) China, ‘Declaration of the Government of the People’s Republic of China on the Baselines of the Territorial Sea, 15 May 1996’ (1996) 32 L Sea Bull 37 (PRC Territorial Sea Declaration).

(46) PRC Oil Platform Position Paper 4 (n 29) point 2. The originals of the deposited baselines are available at UN Division for Ocean Affairs and the Law of the Sea, ‘Maritime Space: Maritime Zones and Maritime Delimitation’ <www.un.org/Depts/los/LEGISLATIONANDTREATIES/PDFFILES/DEPOSIT/chn_mzn7_1996.pdf> (accessed 1 September 2016).

(47) PRC Oil Platform Position Paper 4 (n 29) point 2.

(48) More particularly 1982 Convention (n 9) art 47, concerning archipelagic baselines.

(49) ibid art 46(1), providing a definition of the notion ‘archipelagic state’, the only state able to apply archipelagic baselines under art 47. South China Sea Arbitration (n 3) (Merits) para 573.

(50) For a more developed argumentation by the present authors, see Erik Franckx and Marco Benatar, ‘Straight Baselines Around Insular Formations Not Constituting an Archipelagic State’ in CJ Jenner and Thuy Tran Truong (eds), The South China Sea: A Crucible of Regional Cooperation or Conflict-making Sovereignty Claims? (CUP 2016) 186–201.

(51) 1982 Convention (n 9) art 7.

(52) Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v Bahrain) (Merits) [2001] ICJ Rep 40, 103, para 212. The Court refused to accept the construction of a system of straight baselines around Bahrain (paras 213–215), a state that could possibly have claimed archipelagic status, but had not done so.

(53) South China Sea Arbitration (n 3) (Merits) paras 575–576.

(54) US Dept of State, Office of Ocean Affairs, Bureau of Oceans and International Environmental and Scientific Affairs, ‘Straight Baselines Claim: China’ (1996) 8 <www.state.gov/documents/organization/57692.pdf> (accessed 1 September 2016).

(55) This map has been reproduced in Annex 2 to this chapter (2014 Map).

(56) See supra (n 12) and accompanying text.

(57) This does not take into account the Vietnamese system of straight baselines or the islands in front of the Vietnamese coasts that serve as basepoints for these straight baselines.

(58) Constituting the most western point of the baseline system proclaimed by the PRC around the Paracels in 1996. See supra (n 45) and accompanying text.

(59) 1982 Convention (n 9) arts 74(1) and 83(1).

(61) South China Sea Arbitration (n 3) ‘First Press Release’ (PCA, 27 August 2013). See also ibid (Merits) para 29.

(62) ibid ‘First Press Release’ (PCA, 27 August 2013). The Arbitral Tribunal, after having received the comments of the Philippines the day before, subsequently adopted the Rules of Procedure in its first Procedural Order.

(63) This date had been fixed by the Arbitral Tribunal in its first Procedural Order. ibid.

(64) South China Sea Arbitration (n 3) ‘Second Press Release’ (PCA, 3 June 2014).

(66) South China Sea Arbitration (n 3) (Jurisdiction and Admissibility).

(67) ibid (Merits). The Award addresses matters of jurisdiction that were not settled in the 2015 Award and the merits of the case.

(68) The Chinese Journal of International Law, for instance, has published a number of articles relating to the jurisdiction as well as merits of the arbitration. See eg Sienho Yee, ‘The South China Sea Arbitration (The Philippines v. China): Potential Jurisdictional Obstacles or Objections’ (2014) 13 Chinese J Intl Law 663; Keyuan Zou and Xinchang Liu, ‘The Legal Status of the U-shaped Line in the South China Sea and Its Legal Implications for Sovereignty, Sovereign Rights and Maritime Jurisdiction’ (2015) 14 Chinese J Intl L 57. A ‘Special Issue on Jurisdiction and Admissibility in the South China Sea Arbitration’ of the same journal is forthcoming. See also the authoritative article by Gao and Jia (n 15). Judge Gao was at the time of writing, and still is, the Chinese judge on the ITLOS bench.

(69) Stefan Talmon and Bing Bing Jia (eds), The South China Sea Arbitration: A Chinese Perspective (Hart Publishing 2014).

(70) Nonetheless, following the Philippines suggestion, the Arbitral Tribunal did consult ‘academic literature by individuals closely associated with Chinese authorities’ in an effort to discern China’s position (South China Sea Arbitration (n 3) (Merits) para 126).

(72) See supra (n 64) accompanying text. The PRC did not submit a counter-memorial.

(73) 2014 Position Paper (n 71) para 2.

(75) ibid paras 4–29.

(76) ibid paras 30–56.

(77) ibid paras 57–75.

(78) South China Sea Arbitration (n 3) ‘Third Press Release’ (PCA, 17 December 2014).

(79) ibid ‘Rules of Procedure’ art 25(2). These rules were adopted by means of the first Procedural Order. See ‘First Press Release’ (n 61).

(80) ‘Third Press Release’ (n 78).

(81) South China Sea Arbitration (n 3) ‘Fourth Press Release’ (PCA, 22 April 2015).

(82) ‘Rules of Procedure’ (n 79) art 20.

(83) South China Sea Arbitration (n 3) (Merits) paras 126–127.

(84) 1982 Convention (n 9) annex vii, art 9.

(85) South China Sea Arbitration (n 3) (Merits) para 130.

(86) It should be specified that the dispute over the Arctic Sunrise, a Greenpeace ship flying the flag of the Netherlands that was located in the Russian exclusive economic zone at the moment of boarding by Russian authorities, gave rise to two distinct proceedings: the Arctic Sunrise Arbitration before an ad hoc Tribunal pursuant to Annex VII of the 1982 Convention and the Arctic Sunrise Case, an application to obtain provisional relief from the ITLOS (pending the constitution of the Arbitral Tribunal).

(89) Arctic Sunrise Case (n 88) ‘Note verbale of the Embassy of the Russian Federation in Berlin’ (ITLOS, 22 October 2013). This note was addressed to the ITLOS, but contained in annex the note sent to the Netherlands Embassy in Moscow.

(90) The ITLOS declined the request on 5 November 2013 whereas the Russian answer was received on 6 November. Arctic Sunrise Case (n 88) (Provisional Measures) paras 18–19.

(91) ibid para 19.

(92) ibid para 30.

(93) ibid para 32.

(94) ibid para 50.

(95) ibid para 45.

(96) ibid para 105. By that time the ITLOS President had also appointed Dr Alberto Szekely as arbitrator because the Russian Federation had failed to appoint the second arbitrator within the timeframe. Arctic Sunrise Arbitration (n 87) ‘Procedural Order No 1’ (PCA, 17 March 2014). The appointment was made on 15 November 2013.

(97) By then the three remaining arbitrators had been appointed by the ITLOS President. This happened on 10 January 2014. Arctic Sunrise Arbitration (n 87) ‘Procedural Order No 1’ (PCA, 17 March 2014).

(98) See supra (n 89) and accompanying text.

(99) Arctic Sunrise Arbitration (n 87) ‘Note verbale from the Russian Federation to the PCA’ (PCA, 27 February 2014).

(100) ibid ‘Procedural Order No 2’ (PCA, 17 March 2014); ibid ‘Press Release’ (PCA, 21 March 2014).

(101) See supra (n 90) and accompanying text.

(102) Arctic Sunrise Arbitration (n 87) ‘Procedural Order No 3’ (PCA, 8 October 2014). The Arbitral Tribunal denied this request as had the ITLOS.

(103) See supra (n 90) and accompanying text. See also ibid ‘Press Release’ (PCA, 7 November 2014).

(104) It abstained from doing so as well with respect to the Netherlands’ request concerning a draft procedural order of the Arbitral Award. ibid ‘Procedural Order No 4’ (PCA, 21 November 2014).

(105) See supra (n 89) and accompanying text.

(106) See supra (n 99) and accompanying text.

(107) ‘Procedural Order No 4’ (n 103). As stated in the preamble of this procedural order, the Netherlands had already expressed this view in a letter to the Arbitral Tribunal of 27 February 2014, at the occasion of the first procedural meeting of 17 March 2014, as well as in its Memorial of 31 August 2014.

(108) Arctic Sunrise Arbitration (n 87) ‘Rules of Procedure’ art 20(3). These rules were adopted by means of ‘Procedural Order No 2’ (PCA, 17 March 2014). This provision is identical to art. 20 of the Rules of Procedure adopted in the South China Sea Arbitration. See supra (n 82) and accompanying text.

(109) ‘Procedural Order No 4’ (n 103).

(110) Arctic Sunrise Arbitration (n 8) (Jurisdiction) para 79.

(111) ibid (Merits) para 18.

(112) ibid ‘Press Release’ (PCA, 18 February 2015).

(115) ibid para 2.2.

(116) A similar remark was made with respect to the 2014 Position Paper of China. See supra (n 78) and accompanying text.

(117) Arctic Sunrise Arbitration (n 87) (Merits) para 68.

(120) ibid para 401. At the time of writing, the compensation phase (calculation of the quantum) is still pending.

(121) ‘Rules of Procedure’ (n 79) art 25(2), which reads in part: ‘The Arbitral Tribunal may take whatever other steps it may consider necessary, within the scope of its powers under the Convention, its Annex VII, and these Rules, to afford to each of the Parties a full opportunity to present its case’.

(122) Mincai Yu, ‘China’s Informal Participation in the Annex Philippines v. China Arbitral Tribunal’s Proceedings’ (2015) 30 Intl J Marine and Coastal L 54.

(123) See supra (n 119) and accompanying text.

(124) Arctic Sunrise Arbitration (n 87) para 68 in fine.

(125) ‘Rules of Procedure’ (n 79) art 25(2) as reprinted above (n 121).

(126) Dapo Akande, ‘China’s View of International Litigation: Is the WTO Special?’ (EJIL: Talk!, 13 November 2015) <www.ejiltalk.org/chinas-view-of-international-litigation-is-the-wto-special/> (accessed 1 September 2016) (referring inter alia to Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo (Advisory Opinion) [2010] ICJ Rep 403; Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the Area (Seabed Disputes Chamber) (Advisory Opinion) <www.itlos.org/en/cases/list-of-cases/case-no-17/> (accessed 1 September 2016); Request for an Advisory Opinion Submitted by the Sub-Regional Fisheries Commission (SRFC) (Advisory Opinion) <www.itlos.org/en/cases/list-of-cases/case-no-21/> (accessed 1 September 2016)). On historic and contemporary Chinese attitudes vis-à-vis international adjudication and arbitration, see Julian Ku, ‘China and the Future of International Adjudication’ (2012) 25 Maryland J Intl L 154; Zhu Dan, ‘China, the International Criminal Court, and International Adjudication’ (2014) 61 Netherlands Intl L R 43, 46–56; Qingjiang Kong and Xiaojuan Ping, ‘International Law and International Institutions: Implications for a Rising China’ (2015) 1 Chinese J Global Governance 157, 164–71. See also Tommy Koh and Hao Duy Phan, ‘The Asian Way to Settle Disputes’ (2016) 1 Asian-Pacific J Ocean L and Policy 5.

(127) Eg Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v Russia) (Merits) [2011] ICJ Rep 70; The ‘Hoshinmaru’ Case (Japan v Russia) (Prompt Release) <www.itlos.org/en/cases/list-of-cases/case-no-14/> (accessed 1 September 2016); The ‘Tomimaru’ Case (Japan v Russia) (Prompt Release) <www.itlos.org/en/cases/list-of-cases/case-no-15/> (accessed 1 September 2016); Hulley Enterprises Limited (Cyprus) v Russia <https://pcacases.com/web/view/60> (accessed 1 September 2016); Yukos Universal Limited (Isle of Man) v Russia <https://pcacases.com/web/view/61> (accessed 1 September 2016); Veteran Petroleum Limited (Cyprus) v Russia <https://pcacases.com/web/view/62> (accessed 1 September 2016). On Russian attitudes to international litigation, see Lauri Mälksoo, Russian Approaches to International Law (OUP 2015) 154–56.

(128) ‘The Declaration of the Russian Federation and the People’s Republic of China on the Promotion of International Law’ (Russian Ministry of Foreign Affairs, 2016) <www.mid.ru/en/foreign_policy/news/-/asset_publisher/cKNonkJE02Bw/content/id/2331698> (accessed 1 September 2016).

(129) Croatia relieved its legal team of its duties and commenced a procedure under its domestic law to terminate the Arbitration Agreement. See Croatia, ‘Termination of the Arbitration Process between Croatia and Slovenia: Causes and Consequences’ (Croatian Ministry of Foreign and European Affairs, 2016) <www.mvep.hr/en/other/termination-of-the-arbitration-process> (accessed 1 September 2016).

(131) ibid (Partial Award) para 61.

(132) ibid para 231.

(133) Croatia, ‘Press Release on Arbitral Tribunal’s Decision’ (Croatian Ministry of Foreign and European Affairs, 2016) <www.mvep.hr/en/info-servis/press-releases/press-release-on-arbitral-tribunal’s-decision-,25852.html> (accessed 1 September 2016).

(134) Aeroport Belbek LLC and Mr Igor Valerievich Kolomoisky v Russia <https://pcacases.com/web/view/123> (accessed 1 September 2016); PJSC CB PrivatBank and Finance Company Finilon LLC v Russia <https://pcacases.com/web/view/130> (accessed 1 September 2016); (1) Limited Liability Company Lugzor, (2) Limited Liability Company Libset, (3) Limited Liability Company Ukrinterinvest, (4) Public Joint Stock Company DniproAzot, (5) Limited Liability Company Aberon Ltd v Russia <https://pcacases.com/web/view/124> (accessed 1 September 2016); PJSC Ukrnafta v Russia <https://pcacases.com/web/view/121> (accessed 1 September 2016); (i) Stabil LLC, (ii) Rubenor LLC, (iii) Rustel LLC, (iv) Novel-Estate LLC, (v) PII Kirovograd-Nafta LLC, (vi) Crimea-Petrol LLC, (vii) Pirsan LLC, (viii) Trade-Trust LLC, (ix) Elefteria LLC, (x) VKF Satek LLC,(xi) Stemv Group LLC v Russia <https://pcacases.com/web/view/122> (accessed 1 September 2016); Everest Estate LLC et al v Russia <https://pcacases.com/web/view/133> (accessed 1 September 2016). See also Sebastian Perry, ‘Another Crimea Panel in Place at the PCA’ Global Arbitration Review (19 August 2016) <http://globalarbitrationreview.com/article/1067638/another-crimea-panel-in-place-at-the-pca> (accessed 1 September 2016) (reporting on two claims filed by state-owned companies, ie Oschadbank v Russia and Naftogaz v Russia). For a detailed assessment of these investment claims, see Odysseas G Repousis, ‘Why Russian Investment Treaties Could Apply to Crimea and What Would This Mean for the Ongoing Russo–Ukrainian Territorial Conflict’ (2016) 32 Arbitration Intl 459.

(135) At the time of writing, it was unknown to the authors whether the notice of arbitration in Naftogaz v Russia had already been filed. Perry (n 134).

(136) Aeroport Belbek LLC and Mr Igor Valerievich Kolomoisky v Russia (n 134) ‘Press Release’ (PCA, 6 January 2016); PJSC CB PrivatBank and Finance Company Finilon LLC v Russia (n 134) ‘Press Release’ (PCA, 30 March 2016); (1) Limited Liability Company Lugzor, (2) Limited Liability Company Libset, (3) Limited Liability Company Ukrinterinvest, (4) Public Joint Stock Company DniproAzot, (5) Limited Liability Company Aberon Ltd v Russia (n 134); PJSC Ukrnafta v Russia (n 134) ‘Press Release’ (PCA, 2 May 2016); (i) Stabil LLC, (ii) Rubenor LLC, (iii) Rustel LLC, (iv) Novel-Estate LLC, (v) PII Kirovograd-Nafta LLC, (vi) Crimea-Petrol LLC, (vii) Pirsan LLC, (viii) Trade-Trust LLC, (ix) Elefteria LLC, (x) VKF Satek LLC,(xi) Stemv Group LLC v Russia (n 134) ‘Press Release’ (PCA, 2 May 2016); Everest Estate LLC et al v Russia (n 134) ‘Press Release’ (PCA, 9 August 2016).

(137) Aeroport Belbek LLC and Mr Igor Valerievich Kolomoisky v Russia (n 134) ‘Press Release’ (PCA, 6 January 2016), ‘Press Release’ (PCA, 30 March 2016), ‘Press Release’ (PCA, 15 August 2016); PJSC CB PrivatBank and Finance Company Finilon LLC v Russia (n 134) ‘Press Release’ (PCA, 30 March 2016), ‘Press Release’ (PCA, 15 August 2016); Everest Estate LLC et al v Russia (n 134) ‘Press Release’ (PCA, 9 August 2016). The press releases concerning PJSC Ukrnafta v Russia and Stabil LLC et al v Russia do not provide information on whether the Arbitral Tribunal, which is made of the same members in both cases, decided to treat Russia’s correspondence as a plea concerning jurisdiction and admissibility. A hearing on jurisdiction common to both cases was held (PJSC Ukrnafta v Russia (n 134) ‘Press Release’ (PCA, 2 May 2016), ‘Press Release’ (PCA, 4 August 2016); (i) Stabil LLC, (ii) Rubenor LLC, (iii) Rustel LLC, (iv) Novel-Estate LLC, (v) PII Kirovograd-Nafta LLC, (vi) Crimea-Petrol LLC, (vii) Pirsan LLC, (viii) Trade-Trust LLC, (ix) Elefteria LLC, (x) VKF Satek LLC,(xi) Stemv Group LLC v Russia (n 134) ‘Press Release’ (PCA, 2 May 2016), ‘Press Release’ (PCA, 4 August 2016)). Another noteworthy development in most of these cases is that Ukraine successfully sought permission to make submissions as a non-disputing party, whereas its requests to attend and present oral arguments at hearings were denied.

(138) Ukraine, ‘Statement of the Ministry of Foreign Affairs of Ukraine on the Initiation of Arbitration against the Russian Federation under the United Nations Convention on the Law of the Sea’ (Ukrainian Ministry of Foreign Affairs, 2016) <http://mfa.gov.ua/en/press-center/news/50813-zajava-mzs-ukrajini-shhodo-porushennya-arbitrazhnogo-provadzhennya-proti-rosijsykoji-federaciji-vidpovidno-do-konvenciji-oon-z-morsykogo-prava> (accessed 20 September 2016). See also Gaiane Nuridzhanyan, ‘Ukraine vs. Russia in International Courts and Tribunals’ (EJIL: Talk!, 9 March 2016) <www.ejiltalk.org/ukraine-versus-russia-in-international-courts-and-tribunals/> (accessed 1 September 2016) (on on-going and prospective litigation before international courts and tribunals arising out of the conflict opposing Ukraine and Russia).

(139) Ukraine, ‘The hearing of the case Ukraine v. Russian Federation under UNCLOS will start at the beginning of 2017’ (Ukrainian Ministry of Foreign Affairs, 2016) <http://mfa.gov.ua/en/press-center/news/53422-na-pochatku-2017-roku-rozpochnetysya-rozglyad-spravi-ukrajina-proti-rosijsykoji-federaciji-zgidno-z-konvencijeju-oon-z-morsykogo-prava> accessed on 28 December 2016.