ITLOS Orders Russia to Release ARCTIC SUNRISE and its Greenpeace Protestors

[Craig H. Allen is the Judson Falknor Professor of Law at the University of Washington in Seattle.]

The International Tribunal for the Law of the Sea (ITLOS) dealt a blow to the Russian Federation on November 22nd, when it ordered Moscow to release the Arctic Sunrise and the remainder of the Greenpeace protestors who were on the vessel when Russia seized it on September 19, 2013.  Shortly after the tribunal’s decision was announced, however, the Voice of Russia reported that the Russian government does not intend to comply with the order.

The case is the Arctic Sunrise (Kingdom of the Netherlands v. Russian Federation), ITLOS Case No. 22, Provisional Measures, Order of Nov. 22, 2013. The tribunal’s order, which is conditioned upon the Dutch government posting a €3.6 million bond or bank guarantee, was signed by Shunji Yanai, president of ITLOS, on behalf of 19 ITLOS judges. Two judges dissented: Vladimir Golitsyn of Russia and Markiyan Kulyk of Ukraine. In addition, separate opinions were issued by Judges Jesus and Paik individually, along with an important joint separate opinion by Judges Wolfrum and Kelly.

The Arctic Sunrise is a former icebreaker now operated by Greenpeace International. The Russian Federal Security Service seized the vessel and arrested its complement of 30 (28 activists and 2 freelance journalists) after two protesters from the vessel attempted to scale the Gazprom oil rig Prirazlomnaya in the Pechora Sea (within Russia’s 200 mile exclusive economic zone and on its continental shelf).  The so-called Arctic Sunrise 30 were originally charged with piracy — punishable under Russian law by up to fifteen years in prison. Those charges were later reduced to “hooliganism.” The crewmembers were brought to Murmansk for trial, sentenced to two months in jail and transferred to detention facilities in St. Petersburg. Most had been released before ITLOS rendered its decision.

Russia and the Netherlands are both party to the 1982 U.N. Convention on the Law of the Sea (UNCLOS). The convention’s compulsory dispute settlement articles permit states-parties to elect among four alternative fora for resolving disputes arising under the convention (ITLOS, the ICJ or arbitration under Annex VII or VIII of the convention). When it signed the convention in 1982, the former Soviet Union elected a combination of Annex VII and VIII arbitration, but also recognized “the competence of the International Tribunal for the Law of the Sea, as provided for in article 292, in matters relating to the prompt release of detained vessels and crews.”  The Netherlands has opted for the ICJ.  When the parties’ forum elections differ, as they do in this dispute, article 287(5) provides that disputes between them will be heard by an Annex VII arbitral tribunal, unless the parties otherwise agree. The Netherlands instituted Annex VII arbitration on October 4^th. Importantly, however, ITLOS has a limited power to prescribe provisional measures (or order prompt release of a vessel), even though another tribunal will ultimately decide the merits of the case.

When a dispute has been submitted to an UNCLOS arbitral tribunal, article 290(5) authorizes ITLOS to order provisional measures, pending constitution of the arbitral tribunal, if ITLOS “considers it appropriate under the circumstances to preserve the respective rights of the parties to the dispute or to prevent serious harm to the marine environment, pending the final decision.” Before issuing such provisional measures, however, the tribunal must satisfy itself that the arbitral tribunal would prima facie have jurisdiction over the dispute.

As the flag state for the Arctic Sunrise, the Dutch government invoked article 290(5) and requested that ITLOS order Russia to release the ship and its crew and allow them to depart Russia. The Dutch application was filed on October 21.  As Julian posted earlier, the following day Russia informed ITLOS that, in Russia’s opinion, the tribunal lacked jurisdiction over the dispute and that Russia would therefore not participate in the proceedings. Nevertheless, on November 6^th, ITLOS held a public hearing at its Hamburg chambers (without Russia) and issued its order on November 22^nd.

Before reaching its decision, the tribunal had to address several preliminary issues. The first concerned jurisdiction under UNCLOS. A threshold issue in the tribunal’s jurisdiction analysis was a 1997 declaration by Russia when it ratified UNCLOS in which it stated that it would not accept the convention’s compulsory settlement procedures for “disputes concerning law-enforcement activities in regard to the exercise of sovereign rights or jurisdiction.” Exemptions for certain law enforcement activities are permitted under article 297 of UNCLOS; however, the ITLOS majority concluded that the exemption did not apply to this incident because such exemptions are limited prima facie to activities relating to coastal state enforcement of laws governing marine scientific research or fisheries (¶ 45). The tribunal next addressed the question whether Russia’s refusal to appear and defend in the case constituted a bar to the proceeding or the prescription of binding provision measures. After finding that Russia had been given an “ample opportunity” to present its views, yet declined to do so, the tribunal concluded that Russia’s failure to participate was not a bar (¶¶ 48-50).

Reasoning that a “difference of opinion exists” as to the applicability of the convention in regards to the rights and obligations of the involved flag state and coastal state, the tribunal concluded (with Judge Golitsyn dissenting on admissibility grounds) that it was satisfied that the Netherlands had identified a basis on which the Annex VII arbitration panel might have jurisdiction (¶¶ 68-70). Turning to the question whether provisional measures were warranted under article 290(5), the ITLOS majority concluded, based on the “best available evidence,”  that the “urgency” of the situation (i.e., assertions by the Netherlands that the vessel’s condition was deteriorating and the crew was being “irreparably” denied their right to liberty and security) required it to order such measures (¶ 89).

It bears repeating that the ITLOS order is not a decision on the merits—any such decision is reserved to the Annex VII arbitral tribunal, once it is constituted. This is the second time ITLOS has, in an application for provisional measures pending constitution of an arbitral tribunal, taken what some would characterize as an expansive view of prima facie jurisdiction under the UNCLOS and the legal standard for prescribing provisional measures. The first was in its 2012 order directing the government of Ghana to release the Argentina’s tall ship ARA Libertad, which had been seized by order of a Ghanaian civil court to enforce a foreign civil judgment against the Argentine government for defaulting on its sovereign debt.

The tribunal’s Arctic Sunrise decision will likely be closely scrutinized in Beijing, where China’s leaders have so far refused to participate in an UNCLOS challenge brought by the Philippines over maritime claims in the South China Sea. Like Russia, China will apparently refuse to even appear to contest jurisdiction—a tactic condemned in the Arctic Sunrise joint opinion of Judges Kelly and Wolfrum. That opinion, citing a 1980 BYIL article by Sir Gerald Fitzmaurice, emphasizes that “International courts and tribunals have a sole right to decide on their jurisdiction” (emphasis added), and opines that a party’s non-appearance “cripples” the dispute settlement process (¶¶ 6-7). Readers may recall that Judge Wolfrum is one of the arbitrators in the SCS dispute between the Philippines and China. Interestingly, even ITLOS Judge Zhiguo Gao of China concurred in the tribunal’s Arctic Sunrise decisions and its discussion of the consequences of a party’s non-appearance.