Russia Ignores ITLOS, Formally Violates its UNCLOS Obligations, and No One Cares

by Julian Ku

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?

Will Russia Comply with the ITLOS Ruling? Probably Not.

by Julian Ku

It looks like Russia is not going to comply with last week’s ITLOS ruling, ordering it to release the Arctic Sunrise and its passengers upon payment of a bond.

Russia is not going to comply with the International Tribunal for the Law of the Sea’s Friday ruling regarding the Arctic Sunrise vessel operated by Greenpeace, Russian presidential chief of staff Sergei Ivanov said.

“It will not, because we said at the very start that we are not going to take part in these proceedings,” Ivanov said on Saturday when asked by journalists how Russia will react to the Tribunal’s ruling.

Russia ratified the convention based on which this Tribunal acts with a number of reservations, which prevented it from entering these particular proceedings, Ivanov said.

“The issue will be handled not politically but legally, based on Russian law rather than someone’s political wishes,” he added.

Russia will probably stick to its legal position, which is contained in its note verbale to the Netherlands, arguing that this matter lies beyond the jurisdiction of UNCLOS dispute settlement since it is an exercise of Russia’s criminal jurisdiction in its law enforcement capacity.

Of course, as Prof. Craig Allen noted here, the ITLOS rejected Russia’s view of jurisdiction holding that an Annex VII Arbitral Tribunal would have at least prima facie jurisdiction.  This seems to be enough to justify ITLOS’s provisional measures jurisdiction.  Since such a tribunal has the power to determine its own jurisdiction (pursuant to UNCLOS Art. 288(4)), Russia’s jurisdictional position is hard to support.  It’s also annoying because just a few months ago, the world was treated to a lecture from President Putin on how “the law is still the law, and we must follow it whether we like it or not” in the midst of the Syria crisis.

Russia will not technically violate its UNCLOS obligations until Monday, December 2, the deadline for compliance with the ITLOS order.  And it is already releasing most of the Greenpeace folks on bail (leaving the country is another matter).  So it will probably work out some sort of diplomatic settlement with the Netherlands here, but it looks like complying with the ITLOS order is not in the cards.  As this Russian law professor explains,

“If Russia refuses to fulfill the requirements of the International Tribunal for the Law of the Sea regarding the Greenpeace case, it will not entail any sanctions. International law does not provide punishment for insubordination,” Labin said.

I don’t want to overstate the significance of this incident, but if Russia fails to comply (unlike Ghana earlier this year) and does not participate in the Annex VII arbitration (per the China example) either, this is another serious problem for the future effectiveness of UNCLOS dispute settlement.

Russia Charges Greenpeace Protesters with Piracy, When Will the Netherlands File Its ITLOS Action?

by Julian Ku

I’m late to this story, which has already outraged Greenpeace and other supporters worldwide.

Greenpeace activists who were seized while protesting against Arctic oil drilling face up to 15 years in a Russian jail after being formally charged with piracy.

The 14 charged include four British nationals. Kieron Bryan, a freelance videographer, and the activists Alexandra Harris, Philip Ball and Anthony Perrett were all accused of “piracy as part of an organised group”. The offence carries a prison sentence of between 10 and 15 years.

Altogether there are 30 activists from 18 different countries being held in jails in the Russian port of Murmansk. They were travelling aboard the Arctic Sunrise, a Greenpeace ship that last month mounted a protest against the Prirazlomnaya oil rig. The drilling platform, in the Pechora Sea, is operated by the Russian energy group Gazprom. As two activists tried to scale it, Russian border guards descended on to the boat from helicopters and escorted it back to Murmansk with those on board kept under armed guard.

Professor Eugene Kontorovich has been first out of the box in the U.S. blogosphere, denouncing the piracy charges as “groundless.”  Based on the facts as alleged, I think he is right. Even if the Greenpeace activists were pursuing a “private end,” scaling an oil rig doesn’t seem to satisfy the “ship” requirement in UNCLOS (to which Russia is a signatory by the way).

So assuming Eugene is right (which is always a safe bet), are there any international legal remedies for groundless piracy charges?  In fact, Russia has recognized the competence of the International Tribunal for the Law of the Sea (ITLOS) under UNCLOS Art. 292 “in matters relating to the prompt release of detained vessels and crews.”

So it seems that the Netherlands (since the Greenpeace ship was Dutch-flagged) should be able to bring an action under Article 292 arguing that the detention of the Greenpeace ship was not in compliance with UNCLOS (and citing Eugene’s point about how this isn’t piracy). Article 292 allows the Netherlands (the flag state) to send the question of the legality of the detention to ITLOS 10 days from the time of the detention. ITLOS seems to have the authority to determine whether there should be a release, and should have the authority to order Russia to release the vessel and crew upon posting of a bond.

I see no legal obstacle to such a Dutch action, and I think the 10 days waiting period has run.  The Dutch Government has apparently demanded the release of the ship and crew, and has sent consular officials to see the detained activists.  I assume the next step is a legal action at ITLOS. They might as well do this now, since any ITLOS hearing will take another 15 days at lest.

It is worth noting that Russia has already been subject to an Art. 292 ITLOS proceeding before, in the 2007 incident involving 2 Japanese fishing vessels.  ITLOS ordered the release of the one of the vessels upon posting of a 10 million rouble bond, and Russia complied with this order within 10 days. I am curious whether Greenpeace would be willing to post a bond here, or whether it could be so easily settled.  Still, with this precedent,  I would expect an ITLOS filing any day now.

Game On! ITLOS President Appoints Final 3 Members of Philippines-China Tribunal

by Julian Ku

Yesterday, President of the International Tribunal for the Law of the Sea, Shunji Yanai, announced the appointment of the final three members of the Annex VII UNCLOS tribunal.

International Tribunal on the Law of the Sea (ITLOS) President Shunji Yanai on April 24 transmitted a letter to Philippine Solicitor General Francis Jardeleza, head of the Philippine legal team on the arbitration case, informing Manila of the appointment of Mr. Jean-Pierre Cot (France), Mr. Chris Pinto (Sri Lanka), and Mr. Alfred Soons (The Netherlands.)

Yanai earlier appointed Mr. Stanislaw Pawlak (Poland) as the second member of the tribunal who will represent China in the proceedings. The Philippines, on the other hand, nominated Mr. Rudiger Wolfrum (Germany) to the tribunal.

I have to admit I am a bit surprised that President Yanai did not appoint any arbitrators from East Asia or Southeast Asia. As it turns out, the Annex VII tribunal will have four Europeans, three of whom are currently serving as judges on ITLOS.  Chris Pinto of Sri Lanka will be the only member of the tribunal from Asia (broadly defined).  I would have appointed a Chinese national and a Philippines national, which would be in keeping with the tradition of many other interstate arbitrations.

It turns out that I had the opportunity to meet Philippines Solicitor General Jardeleza, who is spearheading the Philippines arbitration team, just yesterday at an event sponsored by the U.S.-Asia Law Institute at New York University.  I got some great insights in to the strategy behind the Philippines’ decision to pursue arbitration, which I hope to share in a later post.  But for now we can say that the arbitration is going to happen, for sure.

If China continues to ignore the arbitration, it is worth keeping in mind that UNCLOS actually has a provision guiding tribunals in this situation.

Article 9 Default of appearance

If one of the parties to the dispute does not appear before the arbitral tribunal or fails to defend its case, the other party may request the tribunal to continue the proceedings and to make its award. Absence of a party or failure of a party to defend its case shall not constitute a bar to the proceedings. Before making its award, the arbitral tribunal must satisfy itself not only that it has jurisdiction over the dispute but also that the claim is well founded in fact and law.

(Emphasis Added).  So the tribunal has a legal duty to consider the jurisdictional issue seriously and to ensure that the Philippines’ claim is well-founded.  No “default” judgments can be issued here (Nor would that be in the interest of the Philippines anyway).

Will China Participate in the UNCLOS Arbitration with the Philippines?

by Julian Ku

China’s initial reaction to the Philippines’ decision yesterday to file an arbitration claim has been to stick to its guns.  From the BBC:

On Wednesday, Chinese foreign ministry spokesman Hong Lei told journalists that China has “indisputable sovereignty over the South China Sea islands and adjacent waters, which has abundant historical and legal grounds”.

“The key and root of the dispute over the South China Sea between China and the Philippines is territorial disputes caused by the Philippines’ illegal occupation of some of the Chinese islets and atolls of the Spratly Islands,” he said.

He said China had been “consistently working towards resolving the disputes through dialogue and negotiations to defend Sino-Philippine relations and regional peace and stability”.

Some observers, quoted here by the VOA, have suggested that China will simply not participate in the UNCLOS arbitration.  I think this makes sense from a strategic perspective, but it is hard to understand how that would work from a legal perspective.

As a legal matter, China has an obligation to participate in the UNCLOS arbitration by selecting an arbitrator, and then a schedule for the proceedings.  It will then file a challenge to the UNCLOS arbitration tribunal’s jurisdiction (an argument I believe it has a good chance to win).  If China simply doesn’t show up, then it would be in clear violation of its UNCLOS obligations.

China has an interesting choice here. It could participate in the arbitration, and if it loses on jurisdiction, simply withdraw and declare that it won’t abide by the tribunal’s decision.  Or it could litigate to the merits, and then if it loses, simply refuse to comply with the arbitral tribunal’s award.

None of these potential arbitral results are really all that attractive, from China’s perspective. But defaulting on the arbitration is not all that attractive either.  What China does here will tell us a lot about China’s commitment to its strategic goal of controlling the South China Sea, as well as its level of commitment to UNCLOS and international dispute resolution.

Game Changer? Philippines Seeks UNCLOS Arbitration with China Over the South China Sea

by Julian Ku

In a potentially huge development, the Government of the Philippines announced earlier today that it has filed for arbitration with China under the UN Convention for the Law of the Sea. The Philippines’ claim places China’s controversial sovereignty claim over the South China Sea (see right) squarely before an international arbitral tribunal convened under Article 287 of UNCLOS.  According to the Philippines Foreign Minister, here are the main claims:

  1. The Philippines asserts that China’s so-called nine-dash line claim that encompasses virtually the entire South China Sea/West Philippine Sea is contrary to UNCLOS and thus unlawful.
  2. Within the maritime area encompassed by the 9-dash line, China has also laid claim to, occupied and built structures on certain submerged banks, reefs and low tide elevations that do not qualify as islands under UNCLOS, but are parts of the Philippine continental shelf, or the international seabed.
  3. In addition, China has occupied certain small, uninhabitable coral projections that are barely above water at high tide, and which are “rocks” under Article 121 (3) of UNCLOS.China has interfered with the lawful exercise by the Philippines of its rights within its legitimate maritime zones, as well as to the aforementioned features and their surrounding waters.
  4. The Philippines is conscious of China’s Declaration of August 25, 2006 under Article 298 of UNCLOS (regarding optional exceptions to the compulsory proceedings), and has avoided raising subjects or making claims that China has, by virtue of that Declaration, excluded from arbitral jurisdiction.

Some early thoughts.  As I argued here, I still think the Philippines has a massive jurisdictional problem because of China’s Article 298 declaration excludes the following certain subjects from this kind of arbitration.

(a)(i) disputes concerning the interpretation or application of articles 15, 74 and 83 relating to sea boundary delimitations, or those involving historic bays or titles….

China is claiming (at least it has often seemed to be claiming) that it has complete sovereignty over the South China Sea (per the map above). I take the Philippines is arguing that China’s South China Sea claim is not really a “sea boundary  delimitation” within the meaning of Article 15.  Nor is the Chinese SCS claim about “historic bays” and “titles”.  I don’t think that the Philippines has a hopeless case, but I do think they will face a huge challenge to get any arbitral tribunal to assert jurisdiction here, especially since one judge will be appointed by China.

On the plus side, if the Philippines manages to get past the jurisdictional hurdle, it seems to me that they have a very good chance of prevailing since China’s claim is hard to square with the rest of UNCLOS.  Moreover, they force China to go on the defensive here without actually threatening China in any military or economic way.

Strategically, I think I understand why the Philippines has filed this claim. They have very little leverage with China: economically, politically, or militarily.  In this forum, the worst case scenario is the Philippines will lose on jurisdiction. This shouldn’t affect the merits of their claims, though.  For China, the worst case scenario is that it loses on the merits and would have to face the decision of whether to comply with the tribunal.  If they lose, I can see China simply withdrawing from UNCLOS.

In any event, I think it is safe to say this it a game changer in the long-running South China Sea dispute.  It is also, without question, the most important case that has ever been filed under the dispute resolution procedures of UNCLOS.  It will be a crucial test of the UNCLOS institutions, as well as of UNCLOS members.  I am skeptical that China will allow itself to be drawn into serious international adjudication (see my argument here), but it will be fascinating to see how China reacts.

Whale Wars: Is the Threatened Australia ICJ Lawsuit Just Politics?

by Julian Ku

Two different but interesting views of Australia’s threat to bring Japan to the ICJ over whaling.

Over at The Jurist, Don Rothwell of Australian National University provides some background and legal context for Australia’s lawsuit. As I understand it, Australia could claim that Japan is actually violating Australia’s 200 mile exclusive economic zone (assuming certain Australian Antarctic claims were accepted).  But it seems more likely that Australia will try to make a claim under the 1946 International Convention for the Regulation of Whaling. As I’ve suggested, this seems a very tough case to make, and Japan may get the IWC to alter its rules anyway.

Over at the Australian, Greg Sheridan points out that the Japanese government is not taking Australia very seriously on this issue, and sees it as essentially a domestic political matter for Australians.  And he goes on:

As well, observers of all stripes are dumbfounded at the Rudd government’s decision to blindside Japan’s Foreign Minister Katsuya Okada just before his visit to Australia. Canberra did this by announcing, on the eve of Okada’s arrival in Australia and without any warning to the Japanese, that it had decided to take Japan to the International Court of Justice over whaling. There is not the slightest chance of this court action succeeding. To insult Okada, the most pro-Australian member of Tokyo’s core leadership, in this manner was extremely foolish.

Emphasis added. I think Sheridan is not far wrong. Unless Australia is going to make the EEZ argument, it doesn’t seem like it has a very strong case.  And even if they somehow win, there is very little chance of Japan complying with the ICJ order.

Whale Wars: Australia Gives Japan One More Chance to Settle

by Julian Ku

I had almost forgotten about this ongoing dispute between Australia and Japan over whaling, which has been going on for years (and which I first noted on this blog way back in 2005).  The Australian Prime Minister warned Japan yesterday that if whaling doesn’t stop by November, Australia will take Japan to court, either the ICJ or the International Tribunal for the Law of the Sea.  Australia seems ready to go. It has its evidence lined up and appears to have James Crawford on board to argue its case before either the ITLOS or the ICJ.  I wouldn’t hold my breath on a quick decision on this, but it would be an interesting case nonetheless. As far as I know, Japan has never faced a case in the ICJ. I wonder what its reaction would be.