Non-Participation in Compulsory Procedures of Dispute Settlement

Abstract

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.

The Dual Role of Procedure in International Water Law

“…111 "International law evolved, and continues to evolve, around the elastic concept of cooperation", 112 and in the past century a 'paradigm shift' in international law has been observed from a 'law of co-existence' to a 'law of cooperation' , 113 evidenced by an increasing imposition of obligations to cooperate on states. 114…”