11 Jan Is Russia’s Boycott of an Arbitration Brought Under Ukraine-Russia Bilateral Investment Treaty a Sign of a Trend?
When a country is brought to arbitration under a treaty, it often challenges the jurisdiction of that arbitral tribunal in arguments before that tribunal. But in recent years, we’ve seen several examples of countries that have simply chosen to “boycott” or not participate in the arbitral hearings whatsoever.
China adopted this approach in its ongoing United Nations Convention on the Law of the Sea (UNCLOS) arbitration with the Philippines (which it recently confirmed again this past December). Russia also followed this strategy by simply not showing up at the International Tribunal on the Law of the Sea ITLOS provisional measures hearing related to its seizure of the Greenpeace vessel Arctic Sunrise. And Russia has recently confirmed that it will adopt this “non-participation” approach with respect to a recent arbitration brought by a Ukrainian business alleging expropriation of its ownership of an airport in Crimea.
Three cases do not make a trend, but observers of international law and adjudication should take notice nonetheless. Will “non-participation” prove a viable strategy for states (as opposed to actually making legal arguments against jurisdiction)? Granted, as far as I can tell, neither China nor Russia have very strong arguments against jurisdiction in the cases above. So is it better to simply walk away? If the state has no intention of complying with a negative award, it might make rational sense to simply avoid the process altogether. Will other states try this approach?
It is worrying that, again, great powers are perceiving international juridical oversight as something non-binding when inconvenient. Does it have any correlation with the subject matter of the disputes? China v. Philippines is about territorial and maritime sovereignty, not merely a border dipute in a sensitive region, which would certainly qualify as a vital national interest. Russia’s refusal to participate in the Ukrainian suit can also be characterized as related to a vital national interest (or policy at least), which is the annexation of Crimea. It makes sense for these States to want to keep international oversight away from these matters. Yet, Russia’s position in the Greenpeace case is more perplexing, since it deals with its ability to patrol it’s own waters and exert jurisdiction over foreign vessels, and UNCLOS has been a successful regime for years on that matter. It is odd that Russia would disregard established and generally uncontroversial norms when a vital national interest is not at stake (unless you can identify one?). If it IS a trend, it would demonstrate a burgeoning new attitude that at least great powers can afford to assume.