IMPLICATIONS OF NON-APPEARANCE

The Arctic Sunrise Arbitration (Kingdom of Netherlands v. Russian Federations) involved a dispute arising out of protests conducted by Greenpeace activists in connection with drilling activities in the Arctic waters and their deleterious ecological impact. During the course of one of these protests, involving the vessel Arctic Sunrise, activists tried to access an oil rig operating within the Russian Federation’s exclusive economic zone. Consequentially, Russian authorities arrested and detained the Arctic Sunrise vessel and its crew. This act of detention prompted an immediate response from the Netherlands, the flag state of the Arctic Sunrise. The Netherlands informed Russia that it had illicitly detained the Arctic Sunrise, as the vessel had merely exercised its freedom of navigation in accordance with the relevant provisions of the UN Convention on the Law of the Sea (‘UNCLOS’). However, following their failed attempts to mutually resolve the issue, the Netherlands commenced arbitration proceedings against Russia through the mechanism put forth in the UNCLOS. The Netherlands primarily requested for a determination that the arrest and detention of the Arctic Sunrise, without any authorization from the Netherlands, was illegal. In its reply, the Russian Federation rejected the arbitration proceedings altogether. Following this, the Netherlands requested provisional measures from the International Tribunal for the Law of the Sea (‘ITLOS’), which included a request for the immediate release of the Arctic Sunrise and its crew. Yet again, the Russian Federation stated its intent to not participate in the proceedings before the ITLOS. Accordingly, the ITLOS rendered its decision without hearing the Russian Federation, and, to a great extent, it granted the reliefs requested by the Netherlands. 

One of the issues addressed in this case pertained to the implications of Russia’s non-appearance in the proceedings before the ITLOS, and whether this would serve as a bar to the ITLOS’ prescription of provisional measures. The order passed by the ITLOS is extremely explicative in this regard. Holding that the Russian Federation’s non-appearance could not constitute a bar to the proceedings at hand, the ITLOS asserted that the non-appearing state will continue to remain a party to the proceedings and will be bound by the decision eventually passed by the Tribunal. A considerably important guiding factor in this assessment was that the Russian Federation had been afforded ample opportunity to present its account of the facts as well as its substantial arguments, but it had consistently refused to do so. The ITLOS was mindful of the undue disadvantage that the Netherlands would suffer by such a state of affairs, and hence, it decided to identify and assess the rights of the parties involved in the ‘best available evidence’. The procedure was also substantially relaxed in this case as a result of this act of non-appearance, with only one round of written pleadings and one round of oral pleadings by the Netherlands required. 

Thus, it is evident that the ITLOS has attempted to deter the non-appearance of parties to a case by acting on the evidence presented to it unilaterally by the appearing party. This ensures that other states think twice before shirking their legal obligations under the UNCLOS, and strengthens the authority of the ITLOS; of course, it also prevents the appearing party from suffering unduly and being precluded from the reliefs it has rightfully claimed. Ensuring compliance of its orders by a non-appearing party can still be a tricky task, however, and it should be intriguing to observe the ITLOS’ response if non-appearance becomes a tactic more commonly adopted by other states, for one reason or another, in the future.