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The Judicialization of International LawA Mixed Blessing?$
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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

(p.183) 9 Non-Participation in Compulsory Procedures of Dispute Settlement
The Judicialization of International Law

Erik Franckx

Marco Benatar

Oxford University Press

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

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