26 Oct Did the U.S. Set a Precedent for the China/Russia Boycott of UNCLOS Arbitration? Sure! But So What?
Wim Muller, an associate fellow in international law at Chatham House, takes issue with my observation that China’s rejection of Annex VII UNCLOS Arbitration may have influenced Russia’s similar rejection of UNCLOS proceedings in the Greenpeace arbitration. Other commenters take issue with my further claim that Russia’s rejection is another “body blow” to ITLOS dispute settlement. I offer my (“typically tendentious”) response below.
Muller’s criticism, I believe, is mostly just a misunderstanding of my position. I don’t disagree that the U.S. and other countries have walked away from binding international dispute settlement and this could have set a precedent here. But my point is narrower: China and Russia are, as far as I know, the first states ever to reject participation in UNCLOS dispute settlement, and their actions are a serious challenge to the future of UNCLOS dispute settlement, which is supposed to be a key and integral part of the UNCLOS system. Thus, although UNCLOS dispute settlement is not exactly a model of success, it has never before suffered the spectacle of two member states rejecting its tribunals’ jurisdictions (within the same calendar year no less). I would be surprised if the U.S. example from 1984 was more relevant to Russia’s decision than China’s decision from February of this year. I don’t think any UNCLOS state has ever rejected the jurisdiction of the ITLOS with respect to provisional measures or “prompt release” procedures. Indeed, it is worth noting that Russia has not only availed itself of the “prompt release” procedure on one occasion, but it has also submitted to ITLOS “prompt release” jurisdiction in two prior cases. To be sure, it did not contest jurisdiction in those cases and neither involved similar facts. But it is striking that Russia has gone from active UNCLOS dispute settlement player to effective boycotter.
UNCLOS dispute settlement is not “voluntary.” It is a system of compulsory and binding dispute settlement. Indeed, UNCLOS itself makes clear in Art. 288(4) that UNCLOS tribunals have the power to determine their own jurisdiction. By refusing to participate in UNCLOS dispute settlement based on their own unilateral claims about jurisdiction, China and Russia are essentially telling the tribunal that they will not accept jurisdiction, no matter what the tribunal determines about jurisdiction, and despite the plain authority those tribunals hold under Art. 288(4). It may not be a “body blow” but it is not exactly a resounding vote of confidence in UNCLOS dispute settlement either.
Now, Muller seems to be arguing that walking away from binding dispute settlement in the China/Russia manner is actually a more respectful approach than walking out halfway, as the U.S. did in Nicaragua. And he also suggests that China/Russia are acting more respectfully than simply refusing to comply, as the U.S. did in Avena.
I actually didn’t mean to argue that the U.S. was a better actor than China or Russia with respect to international dispute settlement. Indeed, my general take is that China is likely to follow the U.S. in sharply limiting its involvement with the more ambitious forms of international adjudication like the ICJ and the ICC. UNCLOS dispute settlement has always been a problem for my thesis, since China is a participant but the U.S. is not. China’s recent actions in the Philippines case support my general descriptive claim. (Please note, I am not claiming here that China should reject international dispute settlement. I am simply predicting that it will, as the U.S. has generally done).
As for whether the U.S. is a bad or worse actor, I am not sure. In all three cases, the “boycotting” country is rejecting the jurisdiction of the tribunal and is telegraphing that there will be no compliance. Walking out halfway doesn’t seem any better or worse to me.
Of course, the most troubling case is Avena, where the U.S. did not contest jurisdiction, but then simply refused to comply with the ICJ judgment. It had no defense under international law for non-compliance, and it never tried to make one. That is probably the one example where the U.S. has acted in more blatant disrespect of international adjudication than China or Russia have done here.
I do think, however, that even considering Avena, the U.S. is more vulnerable than China or Russia to the pressure of NGOS and international lawyers when it faces adverse international court judgments. It came within two U.S. Supreme Court votes of being forced to comply in Avena and it suffered plenty of domestic public opinion abuse over Nicaragua and a fairly serious effort to get that ICJ decision enforced in U.S. courts (Let’s try that in China!). So I actually think that when the U.S. signs up for international dispute settlement, it is making a more credible commitment than either China or Russia. I’ll admit the evidence hasn’t quite borne this out because China rarely gets “sued” and Russia’s casual treatment of adverse ECtHR judgments isn’t quite the same. But it might explain why the U.S. is so nervous about signing on to compulsory dispute settlement systems like UNCLOS. Unlike China and Russia, the U.S. would take a substantial domestic public opinion hit (and even face some domestic litigation) if it tried to walk away from an adverse UNCLOS award or judgment.
One final thought: the decline of UNCLOS arbitration as a serious constraint on state power as a result of the China and Russia “boycotts” might encourage the U.S. to sign on, as An has suggested in her comment to my original post. After all, if there are any issues, the U.S. can walk away just like China and Russia. This is of course true, but it makes an odd case for UNCLOS ratification proponents: “It’s OK to ratify this, since we don’t actually have to follow any adverse rulings!” Still, this might be just the way to squeeze UNCLOS through the Senate. Attention Secretary Kerry, I think it’s time for another useful ad-lib next time you try to get the Senate moving on UNCLOS.