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