No, I am not talking about some new legal research computer software in writing about “softlaw,” although that is a part of our 21st century new-vocabulary-speak.
In the latter regard, here in Russia, a couple of the major legal research database services do deliver their products, in among other formats, on physical CD-ROMs with subscribers, on a monthly basis, receiving both proprietary search software to execute a client’s interrogatory as well as up-dated, compressed data files that are the objects of those searches (e.g., Consultant and Garant). In the Europe and North America, other legal research database services (e.g., Hein On-Line, Lexis-Nexis, and Westlaw) offer such staggeringly large libraries of information such that their fee-for-service access is made via the Internet to both search software and propriety data hoards.
But “softlaw” has additional denotations and it is the context of international law that is the main topic of this post. Of course there are those who skeptically and genuinely question whether any part of so-called international law is “hardlaw” see J. Goldsmith & E. Posner, The Limits Of International Law (Oxford, 2006); E. Posner, The Limits Of Global Legalism (Chicago, 2009).
However, international law is so ubiquitous today that a more pragmatic course is to use those “hard” and “soft” qualifiers to more finely delineate between signed, sealed, ratified treaties that are regarded as being “in force,” as opposed to materials receiving less formal acknowledgement while having been agreed upon by the parties with the objective of their having genuine effect.
One week ago, albeit after almost two months of contentious filings, hearings, and press releases, the international judicial body empowered to adjudicate a large portion of the disputes addressed under the 1982 Convention on the Law of the Sea issued (by a vote of 19-2), with immediate effect, an order granting to the Kingdom of the Netherlands substantial provisional measures see (http://www.itlos.org/fileadmin/itlos/documents/cases/case_no.22/Order/C22_Ord_22_11_2013_orig_Eng.pdf). The application of the Netherlands for such relief was granted against the Russian Federation even without the Russia acknowledging either the Kingdom’s complaint or Russia’s accepting that judicial forum’s jurisdiction in this cause.
That is the International Tribunal on the Law of the Sea in Hamburg, Germany (http://www.itlos.org/index.php?id=15&L=0) includes among its signatories both the Netherlands and Russia. The former, as it happens is the flag of convenience under which the Murmansk-impounded “Arctic Sunrise”–which was used by Greenpeace in mid-September to protest Russia’s oil drilling in the Arctic Ocean–is formally registered.
In 1997, Russia had sought to make a reservation delimiting its responsibilities under the Convention on the Law of the Sea. However, in terms of the laws of punctuation as well as of international law, Russia went too far.
Articles 297 and 298 of that Convention address the matter of how signatories may limit the jurisdiction of the International Tribunal. Specifically, 298(1)(b) provide permits a reservation to exclude jurisdiction in situations involving “disputes concerning law enforcement activities in regard to the exercise of sovereign rights or jurisdiction excluded from the jurisdiction of a court or tribunal under article 297, paragraph 2 or 3.”
Paragraphs 2 and 3 under article 297 address the activities of marine science research (¶2) and fisheries (¶3)–nothing more, nothing less. Russia attempted in 1997 to broaden the reservation allowed by article 298 by (i) excerpting the permitted exclusion only in part (viz., “disputes concerning law enforcement activities in regard to the exercise of sovereign rights or jurisdiction”) plus (ii) inserting a semi-colon when in fact the clause did not end but rather it continued with a significantly narrowing proviso (viz., “excluded from the jurisdiction of a court or tribunal under article 297, paragraph 2 or 3”) after which (and only after which) there is a syntactic stop in the form of a semi-colon.
Thus by a vote of 19 to 2, the reservation allowed by the Convention was held not to have been effectively exercised by Russia, the broader exception asserted by Russia was flatly rejected by the International Tribunal, under the Tribunal’s order the matter is referred to an arbitral panel, and provisional measures were ordered including the release of the 30 detained individuals plus the vessel itself (upon the payment of an aggregate bond of 3.6 million Euros).
Meanwhile in bail proceedings in the Russian trial courts, within less than a week, all 30 have been granted bail and this has occurred with financial bond amounts significantly less than those set by the International Tribunal see (http://www.nytimes.com/2013/11/29/world/europe/russia-court-grants-bail-to-last-detainee-in-greenpeace-case.html?src=rechp). Of course, it must be acknowledged that none of them have as yet been given permission to leave Russia as the International Tribunal explicitly ordered.
In sum, the pessimism of those who view and characterize all international law as a mere charade was not fulfilled in this case study. And on a practical level, institutional inertia on the Russian side has been de facto overcome as some positive steps consistent with the order of the International Tribunal have begun to be taken.