I’ve been so distracted with my own projects and with China’s ADIZ that I forgot to note that Russia has been in violation of its obligations under UNCLOS since at least December 2. But that’s OK, it seems that everyone else has forgotten this fact as well.
December 2 was the date set by the International Tribunal for the Law of the Sea for compliance with its order that Russia “immediately release the vessel Arctic Sunrise and all persons who have been detained, upon the posting of a bond or other financial security by the Netherlands….” The Netherlands has posted that bond, and as far as I can tell, the Arctic Sunrise has not been released, and none of the detainees have been allowed to leave the “territory and maritime areas under the jurisdiction of the Russian Federation.” (All have been granted bail, though.)
Russia has no obligation to participate in the ITLOS proceeding, but it has a clear obligation under Article 290(5) to “comply promptly with any provisional measures prescribed…” by the ITLOS. So Russia is now in plain violation with a lawful judgment of the ITLOS.
What is amazing about this violation in plain sight is that the media appears to have forgotten about this lingering ITLOS order. Russia ignores the ITLOS, and….nothing. Even the reliable Greenpeace Blog is fairly quiet since their folks are out on bail. So it turns out no one really cares all that much that the ITLOS has been essentially rendered a nullity in this case as a result of the unilateral action of one of UNCLOS’s member states. I suppose that the Dutch are working out some sort of diplomatic settlement. But this doesn’t change the formal legal violation.
Why do I bring this up? Because if Russia takes no reputational hit from its defiance of ITLOS here, then it seems less likely that other states will worry about the reputational hit from defying ITLOS or other international courts. Hence, Paul Reichler (the Philippines U.S. attorney in its arbitration) is almost certainly wrong when he said recently:
….[T]here is a heavy price to pay for a state that defies an international court order, or a judgment of an arbitral tribunal that is seen, that is recognized, in the international community as legitimate, as fair, as correct, as appropriate,” Reichler said in a forum hosted by the US-based Center for Strategic and International Studies (CSIS) on Tuesday evening, Philippine time.
“There’s a price to be paid for branding yourself as an international outlaw, as a state that doesn’t respect, that doesn’t comply with international law,” said the topnotch lawyer, who has defended sovereign states for over 25 years.
Hmm…Iran in 1980 (Hostages), the U.S. in 1984 (Nicaragua) and 2008 (Mexico), Colombia in 2013 (Nicaragua)…uh, sorry Paul, I’m not seeing any heavy prices being paid. So far, Russia is offering a real-life empirical counter-example to Reichler’s claim. Indeed, I don’t see that Russia is paying much of a price at all, so far. Maybe this is because Russia’s international reputation is not exactly at an all time high, right now. Stlll, China is watching. If Russia can ignore ITLOS in a case where they actually have detained 30 foreign nationals (mostly from the U.S., Australia, and Europe), then do we really think China will suffer much damage from ignoring an arcane ruling about a bunch of rock/islands where no actual human beings are actually affected?