Guest Post: Response to Julian Ku on the ‘boycott’ of UNCLOS arbitration by Russia and China

Wim Muller is an Associate Fellow with the International Law Programme at Chatham House. All views expressed in this post are personal.

I am pleased that Julian Ku has taken the time to respond in depth to my earlier guest post in which I, among other things, cited the U.S. withdrawal from Nicaragua as a precedent for China’s and Russia’s recent behaviour in UNCLOS arbitration proceedings initiated against them by the Philippines and the Netherlands, respectively. I am grateful to Professor Ku for clarifying his position by explaining that he was limiting his observations to UNCLOS dispute settlement and not binding international dispute settlement in general. In addition, Ku states that he “didn’t mean to argue that the U.S. was a better actor than China or Russia with respect to international dispute settlement” and his “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.” On this, we are mostly in agreement. To clarify my point: China has had a longstanding policy of not accepting compulsory jurisdiction of the ICJ and other international dispute settlement mechanisms including ITLOS (see Ma Xinmin, ‘China’s Mechanism and Practice of Treaty Dispute Settlement’, 11 Chinese J Intl L 11 (2012) 387), but some observers have also noted that it has used U.S. policy as an example, in particular with regard to the ICC.

Ku also writes that I seem “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.” I would not say it is more respectful; neither approach is respectful. What I argued instead, is that walking away after not getting the judgment that one wants does more damage than not participating in the proceedings at all. Neither course of action is indeed a “vote of confidence” in the dispute settlement procedure in question.

In my original post, I referred to a legacy of distrust of “the West” which partially explains why Russia and China are reluctant to participate, but not the U.S. Another partial explanation valid for all three states is that they can get away with not participating because of their relative power. Maybe this means that the UNCLOS dispute settlement procedure, like other similar procedures, will be helpful more often in settling disputes between more or less equal powers, as the multitude of such cases in various fora attests. A third factor which influences the behaviour of these powers cited by Ku is domestic pressure, when he argues that China and Russia are less susceptible to NGOs and international lawyers. I agree to this point to an extent, but Ku may be underestimating the significance of public opinion in particular in China, and maybe also in Russia. Domestic actors cannot exert as much pressure on the government as in the U.S. and face more constraints, but they are already relevant and their relevance will continue to grow. I do not believe that this would make much difference in the China v. Philippines case, where nationalist sentiment will probably put most of the Chinese population (to the extent that it cares) squarely behind the government. The Arctic Sunrise case may become more interesting in this respect, as it is more likely that Greenpeace will find some support within Russia, at the very least for its aims.

Finally, I would like to correct a factual mistake in my original post. The oil platform Prirazlomnaya on which the Arctic Sunrise cases occurred is not located in the Kara Sea, which is further to the east, but in the Pechora Sea, a fact agreed on by all parties in the case which carries some legal significance. I had taken this piece of information from a news article but not verified it myself, and extend my gratitude to Sergey Golubok, one of the defence attorneys for Greenpeace in the case, for pointing this out to me.

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