Shocker! Russia Walks Away from UNCLOS Arbitration and Will Ignore Netherlands Petition Over Greenpeace Detentions*

by Julian Ku

[Update below] It looks like China has started a trend. In a surprising statement (at least to me), Russia has announced it will not participate in the ITLOS arbitration brought by the Netherlands related to the detention of Greenpeace activists last month.

“The Russian side has informed the Netherlands and the International Tribunal for the Law of the Sea that it does not accept the arbitration procedure in the Arctic Sunrise case, and is not planning to take part in the tribunals,” the ministry said in a statement Wednesday, adding Moscow is still “open to the settlement” of the case. The statement did not elaborate.

The ministry insisted Russia is not obliged to recognize the authority of the maritime tribunal, saying the Russian government does not have to participate in disputes that concern “sovereign rights” and “jurisdiction.”

Hmm. This formulation sounds familiar somehow.  Actually, Russia is citing its UNCLOS declaration, which excludes dispute settlement under UNCLOS “concerning law-enforcement activities in regard to the exercise of sovereign rights or jurisdiction.” But it echoes the Chinese objection as well.

I had written a post on the Netherlands memorial in support of its action against Russia in the International Tribunal for the Law of the Sea seeking “provisional measures”, but I forgot to publish it. Which is just as well.  Because it looks like Russia is going to ignore whatever arbitration proceedings are constituted under Annex VII (following the Chinese example).  I can’t tell from this report, but it may be that Russia may ignore the ITLOS “provisional measures” hearing that is likely to be scheduled soon as well.

As Greenpeace’s attorneys rightly point out, ““If the Russian Federation believes the Tribunal lacks jurisdiction, the normal and proper thing to do would be to raise this at the hearing,”  This would apply to China and the Philippines as well.  If Russia does simply walk away, this is another body blow to the dispute settlement under the UNCLOS system, especially considering that Russia has accepted the jurisdiction of the ITLOS in past disputes.

*After this post went up, I noticed that Russia has also dropped the piracy charges against the Greenpeace activists, charging them now with hooliganism. This doesn’t seem to affect their position on ITLOS arbitration, though. But perhaps settlement will be easier?

http://opiniojuris.org/2013/10/23/netherlands-seeks-provisional-measures-itlos-prompt-release-greenpeace-vessel/

9 Responses

  1. Can we file this away for next time people talk about how great it will be for the US to join UNCLOS? 

  2. Agreed.   And also how NGO overreach can set international dispute resolution back.

  3. @Eugene, can you elaborate a little bit on that, or provide some references for the US position. How does this incident illustrate why the US should not join UNCLOS?

  4. Presumably, if US were in UNCLOS, it would be bound for the worse (ie Russia could litigate claims when it thought advantageous), but not for best (not reciprocal). 

  5. Eugene, and what would stop the US from walking away itself if it were “bound for the worse”? Shouldn’t this incident illustrate that the US doesn’t need to fear ITLOS arbitration, as it isn’t such a threat to its sovereignty after all?

  6.  
    @Thomas Welch, how can it be NGO overreach when it is the Dutch government which initiated the case. I think that point needs sone more elaboration.
    More generally, as I point out in a guest post at Spreading the Jam, I think we need a longer historical memory than just this year to see who started the “trend” for big states to walk away from proceedings they (may) have consented to before. After all, the US walked away in Nicaragua, and also closed down judicial avenues after adverse judgments in LaGrand and Avena.

  7. This conclusion is quite wrong. Russia refusing arbitration is far from a “body blow” against arbitration system. It has no effect on the system. Participation has always been voluntary even for signatory members, so nothing changes as a result of this situation. Not sure where you would get your conclusions from, just seems to be an opinion not based on facts.

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