Russia Charges Greenpeace Protesters with Piracy, When Will the Netherlands File Its ITLOS Action?

by Julian Ku

I’m late to this story, which has already outraged Greenpeace and other supporters worldwide.

Greenpeace activists who were seized while protesting against Arctic oil drilling face up to 15 years in a Russian jail after being formally charged with piracy.

The 14 charged include four British nationals. Kieron Bryan, a freelance videographer, and the activists Alexandra Harris, Philip Ball and Anthony Perrett were all accused of “piracy as part of an organised group”. The offence carries a prison sentence of between 10 and 15 years.

Altogether there are 30 activists from 18 different countries being held in jails in the Russian port of Murmansk. They were travelling aboard the Arctic Sunrise, a Greenpeace ship that last month mounted a protest against the Prirazlomnaya oil rig. The drilling platform, in the Pechora Sea, is operated by the Russian energy group Gazprom. As two activists tried to scale it, Russian border guards descended on to the boat from helicopters and escorted it back to Murmansk with those on board kept under armed guard.

Professor Eugene Kontorovich has been first out of the box in the U.S. blogosphere, denouncing the piracy charges as “groundless.”  Based on the facts as alleged, I think he is right. Even if the Greenpeace activists were pursuing a “private end,” scaling an oil rig doesn’t seem to satisfy the “ship” requirement in UNCLOS (to which Russia is a signatory by the way).

So assuming Eugene is right (which is always a safe bet), are there any international legal remedies for groundless piracy charges?  In fact, Russia has recognized the competence of the International Tribunal for the Law of the Sea (ITLOS) under UNCLOS Art. 292 “in matters relating to the prompt release of detained vessels and crews.”

So it seems that the Netherlands (since the Greenpeace ship was Dutch-flagged) should be able to bring an action under Article 292 arguing that the detention of the Greenpeace ship was not in compliance with UNCLOS (and citing Eugene’s point about how this isn’t piracy). Article 292 allows the Netherlands (the flag state) to send the question of the legality of the detention to ITLOS 10 days from the time of the detention. ITLOS seems to have the authority to determine whether there should be a release, and should have the authority to order Russia to release the vessel and crew upon posting of a bond.

I see no legal obstacle to such a Dutch action, and I think the 10 days waiting period has run.  The Dutch Government has apparently demanded the release of the ship and crew, and has sent consular officials to see the detained activists.  I assume the next step is a legal action at ITLOS. They might as well do this now, since any ITLOS hearing will take another 15 days at lest.

It is worth noting that Russia has already been subject to an Art. 292 ITLOS proceeding before, in the 2007 incident involving 2 Japanese fishing vessels.  ITLOS ordered the release of the one of the vessels upon posting of a 10 million rouble bond, and Russia complied with this order within 10 days. I am curious whether Greenpeace would be willing to post a bond here, or whether it could be so easily settled.  Still, with this precedent,  I would expect an ITLOS filing any day now.

http://opiniojuris.org/2013/10/03/russia-charges-greenpeace-protesters-piracy-dutch/

14 Responses

  1. Even if the Greenpeace activists were pursuing a “private end,” scaling an oil rig doesn’t seem to satisfy the “ship” requirement in UNCLOS (to which Russia is a signatory by the way)…
     
    I don’t get it. Why should Russia care about UNCLOS when suing under its domestic law? 

  2. I cannot access volokh.com from work, but it seems Ralph has hit the nail on its head. The Russians do not appear to be relying on UNCLOS as a source of legal rights and obligations, in particular right to board, seize etc on the high seas and an exercise of universal jurisdiction.

    Putting any dispute on facts etc aside, the concept that Russia has domestic jurisdiction seems indisputable. Therefore, Russia could in its domestic law define ‘piracy’ however it wishes and without a need to align to UNCLOS art.101.

    It could theoretically define for domestic purposes (and I emphasise where jurisdiction is not based on universal jurisdiction) ‘piracy’ as the unlawful digital reproduction of copyrighted materials.

    Of course, it could be that the Russian domestic legislation is based on UNCLOS art.101.

  3. Have you checked with the Dutch Government?   Putin is threatening Ukraine and the EU right now.  An action now, given everything else, could end UNCLOS as a political matter.

  4. How right you are Julian, the Dutch Government has just filed.  See http://www.bbc.co.uk/news/world-europe-24395769:
    Foreign Minister Frans Timmermans announced he was acting to free the Greenpeace ship, Arctic Sunrise.
    He said he was also taking diplomatic steps to secure the release of the activists. Greenpeace calls the charges “irrational, absurd and an outrage”.
    “The Netherlands, as the state under whose flag the Arctic Sunrise sails, today started an arbitration process on the basis of the UN Convention of the Law of the Sea… against what it sees as the unlawful detention of the ship (and) to have it released and its crew freed,” the foreign minister said in a letter to parliament on Friday.

  5. Ralph and Ian, I would agree strongly with you if the incident was within Russian territorial waters. But there is a case to be made that the definition of piracy on the high seas in the UNCLOS convention preempts states from adopting a broader definition of piracy on the high seas, even when exercising prescriptive jurisdiction on the basis of passive nationality, and I presume that it is on this basis that the Dutch Government is filing suit.

  6. Relevant to the determination mentioned in my last comment would be whether states parties to UNCLOS have in fact conformed their domestic legislation regarding piracy on the high seas to the UNCLOS definition.

  7. The obligations owed by Russia to the Netherlands are without prejudice to the domestic proceedings (Art. 292(3) UNCLOS). Irrespective of the domestic definition of piracy, I would argue that the Netherlands can argue for release and even damages (art. 107 UNCLOS) on the basis UNCLOS obligations and its definition of piracy. 
    Indeed, states do not have to conform to the UNCLOS definition. The Netherlands itself has the broadest possible definition. 

  8. Kenneth: I’m interested by your response. So UNCLOS, on the one hand, leaves states free to define piracy more broadly than the UNCLOS definition in their domestic legislation and institute proceedings enforcing those laws, but, on the other, can be the basis for release and/or damages when states do this?

  9. Daniel, everything on the international scene is without prejudice to the national proceedings. At least, that’s how I read it. That is of course a strange situation. On the other hand, the prompt release procedure doesn’t seem to apply to piracy situations, only to fishery, navigation and environmental situations. Russia has also made an exception, I think, to the prompt release procedure on the basis of Art. 298. 
    I am not a UNCLOS expert (yet), so I look forward to more expert commentary. 
     
     

  10. having looked a bit closer to this issue, the dispute between The Netherlands and the Russian Federation will be covered by the basic means of arbitration under Article 287(3) or (5), because Russia has excluded any other method relating to inter alia military and law enforcement activities under Article 298(1)(b). Article 292 will therefore not apply.

  11. Do oil platforms have a flag state in the same way ships do? If so, would that not grant jurisdiction to the flag state at least with respect to the activists who attempted to scale the platform?

  12. I’m interested in the notion that an oil drilling platform is not a ship.  I’m not an expert on maritime law or UNCLOS, but I’ve been on oil production platforms and they certainly looked like ships to me.  They float, they can be driven or towed, and they can be anchored when being used.  More relevantly for these purposes, they can sink.  Indeed, it seems uncontroversial that oil drilling and production platforms are ships for some maritime law purposes (e.g., claims by sailors for personal injuries under the Jones Act).  Anyway, I’m curious – is there some specific definition in UNCLOS that excludes these vessels from the category of ships for purposes of piracy?    

  13. As regards the question of whether an oil platform is a ship for purposes of the UNCLOS, the English text of the UNCLOS uses “ship” and “vessel” interchangeably without offering a definition (the other official language versions employ one and the same word).  Interestingly, UNCLOS’ Article 1 (“Use of terms and scope”) includes separate references to “vessels” and “platforms,” while a number of other UNCLOS provisions refer to “installations,” which could be said to include offshore oil platforms.  In terms of maritime treaties, the widely ratified MARPOL 73/78 includes “fixed or floating platforms” within the definition of ship.  A similarly broad definition is found in the 1962 Amendments to the 1954 Convention for Prevention of Pollution of the Sea by Oil, which refer to “any sea-going vessel of any type whatsoever, including floating craft, whether self-propelled or towed by another vessel, making a sea voyage.” In contrast, the UN Convention on Conditions for Registration of Ships, which is not in force, requires that ships falling within the scope of that treaty instrument be “self-propelled.”  In general, just as barges can be registered in a particular flag state, so can oil platforms.  The ICJ has recently had at least two cases of interest on its docket, namely, Oil Platforms (Iran v. USA) and Passage Through the Great Belt (Finland v Denmark), in which Finland invoked the right of innocent passage for oil platforms manufactured by Finnish shipyards.  In the latter case the Court would have had to rule on the threshold question of whether the Finnish oil platforms were “ships” for purposes of Article 17 of the UNCLOS (“Right of innocent passage”), except that the case was settled and discontinued shortly before the opening of the hearings in the case.

  14. It’s worth pointing out that, even though Article 97(3) of the UNCLOS states that “No arrest or detention of the ship, even as a measure of investigation, shall be ordered by any authorities other than those of the flag State,” it is clear that “the ship” in that paragraph refers to “a ship on the high seas” that is involved in “a collision or any other incident of navigation,” as these words are used in the first paragraph of Article 97.  Therefore, Article 97(3), which is included in Part VII (“High Seas”) of the UNCLOS, appears to be limited to the high seas context.

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