1 Introduction
Between 2016 and 2017, the Russian Federation (‘Russia’) was in the curious
position of being Respondent in two separate interstate arbitrations instituted
under Annex VII to the 1982 United Nations Convention on the Law of the Sea
(‘UNCLOS’).
1 The first, instituted by the Netherlands on 4 October 2013, concerned
Russia’s seizure of the Arctic Sunrise—a Greenpeace vessel protesting a Russian oil
platform, the Prirazlomnaya, while flying the Dutch flag—and the arrest of its crew,
in Russia’s exclusive economic zone (‘EEZ’).
2 In advance of that tribunal’s Award
on Compensation on 10 July 2017,
3 Ukraine instituted separate proceedings against
Russia on 16 September 2016, alleging violations of its coastal State rights in the
Black Sea, the Sea of Azov, and Kerch Strait, particularly in relation to Russia’s
exploitation of various gas fields.
4
This chapter analyses Russia’s relationship with the international law of the sea,
using the two recent arbitrations as case studies. It suggests that Russia aims to
balance an underlying desire to appear as a compliant international citizen with its
reluctance towards formal legal process. This chapter considers two stages of
Russia’s engagement with these processes. First, at the stage of participation,
Russia’s refusal to appear in the Arctic Sunrise arbitration is contrasted with its
apparent acquiescence to the process in the Ukraine v. Russia arbitration. Nonetheless, while Russia does tend to participate in interstate proceedings, it routinely
objects to tribunal jurisdiction, and its reliance on similar objections in the Ukraine v.
Russia arbitration marks a return to its earlier practice.
5 Second, the stage of
compliance concerns Russia’s engagement with international politics, and thereby
with international law. Russia regularly accedes to the law of the sea where doing so
aligns—or at least, does not conflict—with its broader international political positioning. Overall, Russia’s conduct connotes positive future outcomes for the implementation of the law of the sea: international law is often effective at ensuring
Russia’s participation in, and compliance with, international legal determinations,
despite apparent opposition. However, as long as this alignment remains discretionary, and contingent upon Russia’s international political context, international law
cannot be said to compel Russia’s compliance.
1 United Nations Convention on the Law of the Sea (Montego Bay, 10 December 1982, in force
16 November 1994) 1833 UNTS 396, Annex VII (‘UNCLOS’).
2 Arbitral Tribunal, PCA Case No 2014-02 The Arctic Sunrise Arbitration (Netherlands v. Russia),
Rules of Procedure of 17 March 2014, Preamble para. 7, Article 3 (‘Arctic Sunrise (Rules of
Procedure)’).
3 Arbitral Tribunal, PCA Case No 2014-02 The Arctic Sunrise Arbitration (Netherlands v.
Russia), Award on Compensation of 10 July 2017 (‘Arctic Sunrise (Compensation)’).
4 Arbitral Tribunal, PCA Case No 2017-06 Dispute Concerning Coastal State Rights in the Black
Sea, Sea of Azov, and Kerch Strait (Ukraine v. the Russian Federation), Rules of Procedure of
18 May 2017, Article 3 (‘Ukraine v. Russia (Rules of Procedure)’).
5 Arbitral Tribunal, PCA Case No 2017-06 Dispute Concerning Coastal State Rights in the Black
Sea, Sea of Azov, and Kerch Strait (Ukraine v. the Russian Federation), Procedural Order
No. 3 (Bifurcation) of 20 August 2018 (‘Ukraine v. Russia (Procedural Order No 3)’).
288
G. Kynaston and R. Brown
Between 2016 and 2017, the Russian Federation (‘Russia’) was in the curious
position of being Respondent in two separate interstate arbitrations instituted
under Annex VII to the 1982 United Nations Convention on the Law of the Sea
(‘UNCLOS’).
1 The first, instituted by the Netherlands on 4 October 2013, concerned
Russia’s seizure of the Arctic Sunrise—a Greenpeace vessel protesting a Russian oil
platform, the Prirazlomnaya, while flying the Dutch flag—and the arrest of its crew,
in Russia’s exclusive economic zone (‘EEZ’).
2 In advance of that tribunal’s Award
on Compensation on 10 July 2017,
3 Ukraine instituted separate proceedings against
Russia on 16 September 2016, alleging violations of its coastal State rights in the
Black Sea, the Sea of Azov, and Kerch Strait, particularly in relation to Russia’s
exploitation of various gas fields.
4
This chapter analyses Russia’s relationship with the international law of the sea,
using the two recent arbitrations as case studies. It suggests that Russia aims to
balance an underlying desire to appear as a compliant international citizen with its
reluctance towards formal legal process. This chapter considers two stages of
Russia’s engagement with these processes. First, at the stage of participation,
Russia’s refusal to appear in the Arctic Sunrise arbitration is contrasted with its
apparent acquiescence to the process in the Ukraine v. Russia arbitration. Nonetheless, while Russia does tend to participate in interstate proceedings, it routinely
objects to tribunal jurisdiction, and its reliance on similar objections in the Ukraine v.
Russia arbitration marks a return to its earlier practice.
5 Second, the stage of
compliance concerns Russia’s engagement with international politics, and thereby
with international law. Russia regularly accedes to the law of the sea where doing so
aligns—or at least, does not conflict—with its broader international political positioning. Overall, Russia’s conduct connotes positive future outcomes for the implementation of the law of the sea: international law is often effective at ensuring
Russia’s participation in, and compliance with, international legal determinations,
despite apparent opposition. However, as long as this alignment remains discretionary, and contingent upon Russia’s international political context, international law
cannot be said to compel Russia’s compliance.
1 United Nations Convention on the Law of the Sea (Montego Bay, 10 December 1982, in force
16 November 1994) 1833 UNTS 396, Annex VII (‘UNCLOS’).
2 Arbitral Tribunal, PCA Case No 2014-02 The Arctic Sunrise Arbitration (Netherlands v. Russia),
Rules of Procedure of 17 March 2014, Preamble para. 7, Article 3 (‘Arctic Sunrise (Rules of
Procedure)’).
3 Arbitral Tribunal, PCA Case No 2014-02 The Arctic Sunrise Arbitration (Netherlands v.
Russia), Award on Compensation of 10 July 2017 (‘Arctic Sunrise (Compensation)’).
4 Arbitral Tribunal, PCA Case No 2017-06 Dispute Concerning Coastal State Rights in the Black
Sea, Sea of Azov, and Kerch Strait (Ukraine v. the Russian Federation), Rules of Procedure of
18 May 2017, Article 3 (‘Ukraine v. Russia (Rules of Procedure)’).
5 Arbitral Tribunal, PCA Case No 2017-06 Dispute Concerning Coastal State Rights in the Black
Sea, Sea of Azov, and Kerch Strait (Ukraine v. the Russian Federation), Procedural Order
No. 3 (Bifurcation) of 20 August 2018 (‘Ukraine v. Russia (Procedural Order No 3)’).
288
G. Kynaston and R. Brown