2.2 The International Tribunal for the Law of the Sea
Russia similarly participates in disputes brought before the International Tribunal for
the Law of the Sea (‘ITLOS’), and has brought a claim itself.
37 As Respondent,
Russia maintains objections to the tribunal’s jurisdiction; however, its objections are
focused less on the nature of the claim, and more on compliance with the Convention’s requirements.
In each of the two claims Japan brought against Russia in July 2007—the
Hoshinmaru,
38 and the Tomimaru
39 —Russia contested the merits of Japan’s allegations, and disputed the admissibility of the dispute to ITLOS.
40 In both matters,
Russia submitted that proceedings for prompt release were unnecessary following its
posting of an allegedly reasonable bond
41 ; and that the vagueness of Japan’s
application—for release on ‘terms and conditions the Tribunal shall consider reasonable’—set it outside the dispute resolution procedure under Article 292 of
UNCLOS, and beyond the tribunal’s competence.
42 Further, concerning the
Tomimaru, Russia disputed the use of the prompt release mechanism, claiming the
vessel was confiscated, and therefore outside the tribunal’s jurisdiction.
43 These
objections are more substantive than those made before the ICJ: they concern
not whether the nature of the issues falls under the Convention, but rather the
tribunal’s ability to determine them.
2.3 Other Disputes
Despite its involvement in organisations that provide for trade dispute mechanisms,
such as the World Trade Organisation and the European Commission, Russia has
been reticent to engage these mechanisms. Rather, it tends to avoid formal processes,
resolving the matter politically.
44 Similarly, although Russia is party to a number of
bilateral investment treaties (‘BITs’) that provide for formal dispute resolution,
45
37 ITLOS, Case No. 11 The “Volga” Case (Russia v. Australia), Judgment of 23 December 2002.
38 ITLOS, Case No. 14 The “Hoshinmaru” Case (Japan v. Russia), Judgment of 6 August 2007
(‘Hoshinmaru’).
39 ITLOS, Case No. 15 The “Tomimaru” Case (Japan v. Russia), Judgment of 6 August 2007
(‘Tomimaru’).
40 Hoshinmaru, Statement in Response of 15 July 2007, para. 3 (‘Hoshinmaru, Response’);
Tomimaru, Statement in Response of 17 July 2007, para. 3 (‘Tomimaru, Response’).
41 Hoshinmaru, Response, para. 30; Tomimaru, Response, para. 34.
42 Hoshinmaru, Response, paras. 36, 39; Tomimaru, Response, para. 47.
43 Tomimaru, Response, para. 43.
44 Schewe (2013), p. 1185; Jordan (2017), p. 461.
45 UNCTAD, Investment Policy Hub (2018): https://investmentpolicyhub.unctad.org/IIA/
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292
G. Kynaston and R. Brown
Russia similarly participates in disputes brought before the International Tribunal for
the Law of the Sea (‘ITLOS’), and has brought a claim itself.
37 As Respondent,
Russia maintains objections to the tribunal’s jurisdiction; however, its objections are
focused less on the nature of the claim, and more on compliance with the Convention’s requirements.
In each of the two claims Japan brought against Russia in July 2007—the
Hoshinmaru,
38 and the Tomimaru
39 —Russia contested the merits of Japan’s allegations, and disputed the admissibility of the dispute to ITLOS.
40 In both matters,
Russia submitted that proceedings for prompt release were unnecessary following its
posting of an allegedly reasonable bond
41 ; and that the vagueness of Japan’s
application—for release on ‘terms and conditions the Tribunal shall consider reasonable’—set it outside the dispute resolution procedure under Article 292 of
UNCLOS, and beyond the tribunal’s competence.
42 Further, concerning the
Tomimaru, Russia disputed the use of the prompt release mechanism, claiming the
vessel was confiscated, and therefore outside the tribunal’s jurisdiction.
43 These
objections are more substantive than those made before the ICJ: they concern
not whether the nature of the issues falls under the Convention, but rather the
tribunal’s ability to determine them.
2.3 Other Disputes
Despite its involvement in organisations that provide for trade dispute mechanisms,
such as the World Trade Organisation and the European Commission, Russia has
been reticent to engage these mechanisms. Rather, it tends to avoid formal processes,
resolving the matter politically.
44 Similarly, although Russia is party to a number of
bilateral investment treaties (‘BITs’) that provide for formal dispute resolution,
45
37 ITLOS, Case No. 11 The “Volga” Case (Russia v. Australia), Judgment of 23 December 2002.
38 ITLOS, Case No. 14 The “Hoshinmaru” Case (Japan v. Russia), Judgment of 6 August 2007
(‘Hoshinmaru’).
39 ITLOS, Case No. 15 The “Tomimaru” Case (Japan v. Russia), Judgment of 6 August 2007
(‘Tomimaru’).
40 Hoshinmaru, Statement in Response of 15 July 2007, para. 3 (‘Hoshinmaru, Response’);
Tomimaru, Statement in Response of 17 July 2007, para. 3 (‘Tomimaru, Response’).
41 Hoshinmaru, Response, para. 30; Tomimaru, Response, para. 34.
42 Hoshinmaru, Response, paras. 36, 39; Tomimaru, Response, para. 47.
43 Tomimaru, Response, para. 43.
44 Schewe (2013), p. 1185; Jordan (2017), p. 461.
45 UNCTAD, Investment Policy Hub (2018): https://investmentpolicyhub.unctad.org/IIA/
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G. Kynaston and R. Brown