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Law of the Sea

The OTP’s Remarkable Slow-Walking of the Afghanistan Examination

by Kevin Jon Heller

The Office of the Prosecutor (OTP) at the ICC just released its 2013 Report on Preliminary Examination Activities. There is much to chew over in the report, but what is most striking is the OTP’s slow-walking of its preliminary examination into crimes committed in Afghanistan.

The OTP divides preliminary examinations into four phases: (1) initial assessment, which filters out requests for investigation over which the ICC cannot have jurisdiction; (2) jurisdiction, which asks “whether there is a reasonable basis to believe that the alleged crimes fall within the subject-matter jurisdiction of the Court”; (3) admissibility, which focuses on gravity and complementarity; and (4) interests of justice, whether the OTP should decline to proceed despite jurisdiction and admissibility.

The OTP opened its investigation into the situation in Afghanistan in January 2007. Yet only now — nearly seven years later — has the OTP concluded that there is a reasonable basis to believe that crimes were committed there. And what are those crimes? Here is a snippet from the report:

23. Killings: According to the United Nations Assistance Mission in Afghanistan (“UNAMA”), over 14,300 civilians have been killed in the conflict in Afghanistan in the period between January 2007 and June 2013. Members of anti-government armed groups were responsible for at least 9,778 civilian deaths, while the pro-government forces were responsible for at least 3,210 civilian deaths. A number of reported killings remain unattributed.

24. According to UNAMA, more civilians were killed by members of anti- government armed groups in the first half of 2013 than in 2012. Members of the Taliban and affiliated armed groups are allegedly responsible for deliberately killing specific categories of civilians perceived to support the Afghan government and/or foreign entities present in Afghanistan. These categories of civilians, identified as such in the Taliban Code of Conduct (Layha) and in public statements issued by the Taliban leadership, include former police and military personnel, private security contractors, construction workers, interpreters, truck drivers, UN personnel, NGO employees, journalists, doctors, health workers, teachers, students, tribal and religious elders, as well as high profile individuals such as members of parliament, governors and mullahs, district governors, provincial council members, government employees at all levels, and individuals who joined the Afghanistan Peace and Reintegration Program and their relatives. The UNAMA 2013 mid-year report, in particular, indicated a pattern of targeted killings of mullahs who were mainly attacked while performing funeral ceremonies for members of Afghan government forces.

You can see why it took the OTP nearly seven years to determine (para. 35) “that there is a reasonable basis to believe that crimes within the Court’s jurisdiction have been committed within the situation of Afghanistan.” The crimes are so minor and so isolated that they could only be uncovered by years of diligent investigation.

The OTP obviously could have moved to Phase 3 — admissibility — years ago. So why didn’t it — especially given the pressing need for a non-African investigation? See below…

Will Russia Comply with the ITLOS Ruling? Probably Not.

by Julian Ku

It looks like Russia is not going to comply with last week’s ITLOS ruling, ordering it to release the Arctic Sunrise and its passengers upon payment of a bond.

Russia is not going to comply with the International Tribunal for the Law of the Sea’s Friday ruling regarding the Arctic Sunrise vessel operated by Greenpeace, Russian presidential chief of staff Sergei Ivanov said.

“It will not, because we said at the very start that we are not going to take part in these proceedings,” Ivanov said on Saturday when asked by journalists how Russia will react to the Tribunal’s ruling.

Russia ratified the convention based on which this Tribunal acts with a number of reservations, which prevented it from entering these particular proceedings, Ivanov said.

“The issue will be handled not politically but legally, based on Russian law rather than someone’s political wishes,” he added.

Russia will probably stick to its legal position, which is contained in its note verbale to the Netherlands, arguing that this matter lies beyond the jurisdiction of UNCLOS dispute settlement since it is an exercise of Russia’s criminal jurisdiction in its law enforcement capacity.

Of course, as Prof. Craig Allen noted here, the ITLOS rejected Russia’s view of jurisdiction holding that an Annex VII Arbitral Tribunal would have at least prima facie jurisdiction.  This seems to be enough to justify ITLOS’s provisional measures jurisdiction.  Since such a tribunal has the power to determine its own jurisdiction (pursuant to UNCLOS Art. 288(4)), Russia’s jurisdictional position is hard to support.  It’s also annoying because just a few months ago, the world was treated to a lecture from President Putin on how “the law is still the law, and we must follow it whether we like it or not” in the midst of the Syria crisis.

Russia will not technically violate its UNCLOS obligations until Monday, December 2, the deadline for compliance with the ITLOS order.  And it is already releasing most of the Greenpeace folks on bail (leaving the country is another matter).  So it will probably work out some sort of diplomatic settlement with the Netherlands here, but it looks like complying with the ITLOS order is not in the cards.  As this Russian law professor explains,

“If Russia refuses to fulfill the requirements of the International Tribunal for the Law of the Sea regarding the Greenpeace case, it will not entail any sanctions. International law does not provide punishment for insubordination,” Labin said.

I don’t want to overstate the significance of this incident, but if Russia fails to comply (unlike Ghana earlier this year) and does not participate in the Annex VII arbitration (per the China example) either, this is another serious problem for the future effectiveness of UNCLOS dispute settlement.

ITLOS Orders Russia to Release ARCTIC SUNRISE and its Greenpeace Protestors

by Craig H. Allen

[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. …(Continue Reading)

Meanwhile, China Draws a Provocative, Dangerous, But Perfectly Legal Air Defense Identification Zone in the East China Sea

by Julian Ku

£¨Í¼±í£©[¶«º£·À¿Õʶ±ðÇø]¶«º£·À¿Õʶ±ðÇø»®ÉèʾÒâͼI don’t have any insights to offer on the big news this weekend, that legally-non binding-UNSC-resolution-violating agreement in Geneva.  But I did want to note one other big sort-of-law news item from the other side of the world: China’s announcement that it is drawing an Air Defense Identification Zone (ADIZ) in the East China Sea, including over the disputed Diaoyu/Senkaku Islands.

China’s announcement has riled up both Japan (which has declared it “totally unacceptable”) and the United States (which has expressed “deep concerns.”)

Why all the fuss? China’s new ADIZ appears to overlap with Japan’s own ADIZ in some crucial places (like the Senkakus/Diaoyu) as well as South Korea’s and Taiwan’s.  China has declared that aircraft entering its ADIZ must report flight information to Chinese authorities (actually, its military) and (here’s the scary part), “China’s armed forces will adopt defensive emergency measures to respond to aircraft that do not cooperate in the identification or refuse to follow the instructions.”  The U.S. is already hinting that it will test this resolve by flying aircraft through the ADIZ.  (Wonder which lucky US pilot draws that mission!)

Although provocative and dangerous, it seem clear to me that China’s ADIZ does not violate international law.  Indeed, China’s Foreign Ministry was perfectly correct today in its claim that its ADIZ is consistent with “the U.N. Charter and related state practice.”  Countries (led by the U.S.) have long drawn ADIZs beyond their national sovereign airspace as a measure to protect their national airspace.  This practice, although not exactly blessed by any treaty, does not appear to violate either the Chicago Convention or UNCLOS.  (See Peter Dutton’s very solid review of ADIZs here in the American Journal of International Law for a good discussion on this point).

If China has sovereignty over the Diaoyu Islands, then it is perfectly legal for it to declare an ADIZ beyond those islands to protect the airspace above those islands.  It is a little less clear why China needs the rest of the ADIZ, but it is presumably aimed at protecting its national airspace.  The U.S. State Department has already offered China an interpretive out of creating unnecessary conflict:

The United States does not apply its ADIZ procedures to foreign aircraft not intending to enter U.S. national airspace. We urge China not to implement its threat to take action against aircraft that do not identify themselves or obey orders from Beijing.

Now the accuracy of this description of US practice could be questioned, but it is probably right. In recent years, the U.S. has allowed Russian bombers to fly through its ADIZ over Alaska.  If China follows this practice, this could help a great deal to diffuse tensions. One can only hope. Early signs are not promising,as China has essentially told the U.S. to shut up and butt out of this issue.

China’s ICJ Judge Xue Hanqin Publicly Defends China’s Non-Participation in UNCLOS Arbitration [Updated]

by Julian Ku

xue

[This Post has been updated]. One of the main benefits of attending a conference (rather than just reading descriptions of its proceedings), is the chance to have face-to-face exchanges with individuals you normally never get a chance to meet.  One of the unusual aspects of the Asian Society of International Law is that it draws lawyers from many different Asian countries, even Asian countries locked into disputes with each other.  Like the Philippines…and China.

Which is why I was so pleased to witness a frank exchange last week at AsianSIL’s biennial conference in New Delhi, India between two unofficial but influential representatives of each country’s legal positions in the upcoming Philippines-China UNCLOS arbitration. In one corner, Prof. Harry Roque from the University of the Philippines presented a relatively even description of the Philippines’ claim against China during a panel on the Law of the Sea in Asia (click here for his blogging on this same event).  In the other corner, was Judge Xue Hanqin, China’s member of the International Court of Justice.  Although she was not listed as a panel participant, she stood up after Prof. Roque’s presentation to offer a 15-minute extemporaneous defense of China’s position.

Judge Xue is no longer officially affiliated with the Chinese government, but she has served in high diplomatic positions before her current post.  One of her prior positions, indeed, was as China’s Ambassador to the Association of Southeast Asian Nations (ASEAN) where she was involved in negotiations with Vietnam over maritime rights.  Moreover, she has served a general legal adviser to the Chinese Ministry of Foreign Affairs, including on its submission to the ICJ in the Kosovo advisory proceeding.  Her views are likely to be close or the same as the views of the Chinese government on these issues.  Since the Chinese government has offered almost no official explanation of its legal position, her statement may be the best we will get from China in the near future.[*UPDATE: On the other hand, Judge Xue wants to make clear she is not representing China in any official or unofficial capacity and that she does not endorse the summary of her views below. See below for her full disclaimer].

The following is based on my notes of her presentation. They are necessarily incomplete, but hopefully a fair summary of her views.

 

U.S. Treaty Practice Does Not Have to Be a Zero-Sum Game!

by Duncan Hollis

November 5, 2013 is U.S. National Treaty Day.  Well, not really, but it might as well be given how much treaties are going to be in the news tomorrow.  For starters, the United States Supreme Court hears oral argument in the case of Bond v. United States (for the pleadings, see SCOTUS blog’s as-always-excellent round-up).  As we’ve blogged previously (a lot), the case challenges the scope of the U.S. treaty power as the basis for implementing legislation in areas where Congress otherwise could not legislate.  In this case, there’s some salacious facts leading to a rather unlikely prosecution under the implementing legislation for the Chemical Weapons Convention (let’s just say the case is a far cry from the scenario that won the OPCW this year’s Nobel Peace Prize).  In the process, Bond questions the continued precedential value of one of the most discussed (and read) cases in U.S. foreign relations law — Justice Oliver Wendell Holmes’ opinion in Missouri v. Holland.

Then, in the afternoon, the U.S. Senate Foreign Relations Committee takes up the UN Disabilities Convention . . .  again (here’s the line-up for those testifying).  The Convention got a lot of attention the last time it reached the Senate floor, with Senate Republicans voting it down despite the poignant appearance of former Senate Majority Leader Robert Dole, who came to support advice and consent to the treaty. U.S. Senators John McCain and Robert Menendez have an op-ed in USA Today taking their case for Senate advice and consent to the general public.

Of course, the Chemical Weapons Convention and the Disabilities Convention are not the only two treaties to have garnered media attention in recent weeks.  U.S. Secretary of State Kerry’s signature of the U.N. Arms Trade Treaty promoted a rather furious domestic back-lash about whether the United States should join that treaty (At present, it sure looks like there’s easily enough Senate votes to oppose it).  And, that’s not to mention the 1982 U.N. Convention on the Law of the Sea (UNCLOS).  It continues to be supported by a large majority of business and national security interests but remains stymied by Senate opposition from a very vocal minority who fear the loss of “sovereignty” that would come with U.S. consent.

I could easily write one (or more posts) on each of these treaty issues.  For now, though, I want to call attention to a common theme that runs through all the on-going debates.  In each case, the treaty fight ends up being framed as a fight between those who would situate U.S. treaties (and with them, U.S. law) within a larger community — international communitarians if you will — versus those I’d call autonomists — who seek autonomy from any international regulation whether in defense of national law, states’ rights, or individual liberties.  Thus, opponents to UNCLOS want the U.S. to be able to regulate its own maritime environment just as those who oppose the Disabilities Convention oppose its potential to go beyond the Americans with Disabilities Act.  Of course, the Disabilities Convention also raises the specter of further intrusions into U.S. state regulations akin to the fears of internationally-based prosecutions that lie at the heart of the Bond case.  And all of this is not to mention the NRA and their (rather unrealistic) charges that the Arms Trade Treaty would require the United States to violate the Second Amendment and the constitutional liberties individuals enjoy to bear arms.

This division between communitarians and autonomists helps explain how treaty debates are now almost always framed in all-or-nothing terms. The decisions on whether to join or enforce U.S. treaty commitments become zero-sum games; only one side can win and the other must lose. That narrative certainly makes for good media stories.  But, I wonder if playing the game this way is truly in the nation’s interests.  It seems we end up with some examples where communitarians can claim complete victory (see, e.g., the new START treaty or the gold standard of an international engagement — the Montreal Protocol) while autonomists have equally compelling winning claims on their side (see, e.g., Medellin). Citing such divergent results, however, only seems to inflame the passions of the “losing” side and risk entrenching no-compromise strategies that seem a recipe for disaster (see, e.g., this October in Washington).

So as the Chemical Weapons Convention and the Disabilities Convention take center stage, I’d like to flag a simple point: U.S. treaty-making and implementation is a much more flexible and nuanced practice than the existing debates suggest.  There are not just some, but many, potential outcomes in these cases that would not require the definitive death of the treaty power OR states’ rights.  Indeed, as Peter’s most recent post suggests and as I’ve written previously, looking at the history of U.S. treaty-making post Missouri v. Holland, it’s pretty clear that the United States regularly accommodates state interests/rights in entering and implementing U.S. treaty commitments.  Thus, a win for the United States in Bond is unlikely to mean states rights get overridden by all future treaty-making.  Similarly, there are ways for Ms. Bond to win this case (think, creative statutory interpretation) that don’t necessarily mean we all get to stop reading Holmes’ opinion.  One could make a similar point about the Disabilities Convention.  The Senate doesn’t have to give unconditional advice and consent — it has a long history of RUDs (reservations, understandings, and declarations) that might be used to mitigate the scope of U.S. commitments to that treaty regime.  Even federalism interests writ large can be protected (see, e.g., the RUDs included in U.S. ratification of the Organized Crime Convention or the UN Corruption Convention).

Now, there will be those who say RUDs are inadmissible and run counter to the object and purpose of one or more of these treaties, just as there will be those who say joining any treaty will lead to some impermissible sacrifice of U.S. “sovereignty.”  My point (hope) is that Senators (and Supreme Court Justices) don’t have to always accept these cases as they are characterized at the poles. There are plenty of precedents that may be brought to bear balancing competing interests such as federalism and international engagements at the same time.  We’ll see if any such hybrid results appear possible in the coming days.  I’d hope so, but given current trends in American politics, I’m not sure I’d bet on it.

Why Is Britain Intentionally Using Weapons of Mass Destruction?

by Kevin Jon Heller

I refer, of course, to the British Navy’s use of the music of Britney Spears to scare off Somali pirates:

In an excellent case of “here’s a sentence you won’t read every day”, Britney Spears has emerged as an unlikely figurehead in the fight against Somali pirates.

According to reports, Britney’s hits, including Oops! I Did It Again and Baby One More Time, are being employed by British naval officers in an attempt to scare off pirates along the east coast of Africa. Perhaps nothing else – not guns, not harpoons – is quite as intimidating as the sound of Ms Spears singing “Ooh baby baby!”

Merchant naval officer Rachel Owens explained the tactics to Metro: “Her songs were chosen by the security team because they thought the pirates would hate them most. These guys can’t stand western culture or music, making Britney’s hits perfect. As soon as the pirates get a blast of Britney, they move on as quickly as they can.”

This is an unconscionable tactic, one that does not befit a country that considers itself civilized. Need I remind the British Navy that torture is illegal under both international and UK law?

The British Navy should also be aware that international law does not completely forbid belligerent reprisals. If the Somali pirates begin to fight back by blaring One Direction at oncoming British ships, the Navy will have no one but themselves to blame.

Hat-Tip: the BBC’s Kate Vandy.

Did the U.S. Set a Precedent for the China/Russia Boycott of UNCLOS Arbitration? Sure! But So What?

by Julian Ku

Wim Muller, an associate fellow in international law at Chatham House, takes issue with my observation that China’s rejection of Annex VII UNCLOS Arbitration may have influenced Russia’s similar rejection of UNCLOS proceedings in the Greenpeace arbitration.  Other commenters take issue with my further claim that Russia’s rejection is another “body blow” to ITLOS dispute settlement. I offer my (“typically tendentious”) response below.

Muller’s criticism, I believe, is mostly just a misunderstanding of my position.  I don’t disagree that the U.S. and other countries have walked away from binding international dispute settlement and this could have set a precedent here.  But my point is narrower:  China and Russia are, as far as I know, the first states ever to reject participation in UNCLOS dispute settlement, and their actions are a serious challenge to the future of UNCLOS dispute settlement, which is supposed to be a key and integral part of the UNCLOS system. Thus, although UNCLOS dispute settlement is not exactly a model of success, it has never before suffered the spectacle of two member states rejecting its tribunals’ jurisdictions (within the same calendar year no less).  I would be surprised if the U.S. example from 1984  was more relevant to Russia’s decision than China’s decision from February of this year.  I don’t think any UNCLOS state has ever rejected the jurisdiction of the ITLOS with respect to provisional measures or “prompt release” procedures.  Indeed, it is worth noting that Russia has not only availed itself of the “prompt release” procedure on one occasion, but it has also submitted to ITLOS “prompt release” jurisdiction in two prior cases.  To be sure, it did not contest jurisdiction in those cases and neither involved similar facts.  But it is striking that Russia has gone from active UNCLOS dispute settlement player to effective boycotter.

UNCLOS dispute settlement is not “voluntary.” It is a system of compulsory  and binding dispute settlement.  Indeed, UNCLOS itself makes clear in Art. 288(4) that UNCLOS tribunals have the power to determine their own jurisdiction.  By refusing to participate in UNCLOS dispute settlement based on their own unilateral claims about jurisdiction, China and Russia are essentially telling the tribunal that they will not accept jurisdiction, no matter what the tribunal determines about jurisdiction, and despite the plain authority those tribunals hold under Art. 288(4).  It may not be a “body blow” but it is not exactly a resounding vote of confidence in UNCLOS dispute settlement either.

Now, Muller seems to be arguing

Shocker! Russia Walks Away from UNCLOS Arbitration and Will Ignore Netherlands Petition Over Greenpeace Detentions*

by Julian Ku

[Update below] It looks like China has started a trend. In a surprising statement (at least to me), Russia has announced it will not participate in the ITLOS arbitration brought by the Netherlands related to the detention of Greenpeace activists last month.

“The Russian side has informed the Netherlands and the International Tribunal for the Law of the Sea that it does not accept the arbitration procedure in the Arctic Sunrise case, and is not planning to take part in the tribunals,” the ministry said in a statement Wednesday, adding Moscow is still “open to the settlement” of the case. The statement did not elaborate.

The ministry insisted Russia is not obliged to recognize the authority of the maritime tribunal, saying the Russian government does not have to participate in disputes that concern “sovereign rights” and “jurisdiction.”

Hmm. This formulation sounds familiar somehow.  Actually, Russia is citing its UNCLOS declaration, which excludes dispute settlement under UNCLOS “concerning law-enforcement activities in regard to the exercise of sovereign rights or jurisdiction.” But it echoes the Chinese objection as well.

I had written a post on the Netherlands memorial in support of its action against Russia in the International Tribunal for the Law of the Sea seeking “provisional measures”, but I forgot to publish it. Which is just as well.  Because it looks like Russia is going to ignore whatever arbitration proceedings are constituted under Annex VII (following the Chinese example).  I can’t tell from this report, but it may be that Russia may ignore the ITLOS “provisional measures” hearing that is likely to be scheduled soon as well.

As Greenpeace’s attorneys rightly point out, ““If the Russian Federation believes the Tribunal lacks jurisdiction, the normal and proper thing to do would be to raise this at the hearing,”  This would apply to China and the Philippines as well.  If Russia does simply walk away, this is another body blow to the dispute settlement under the UNCLOS system, especially considering that Russia has accepted the jurisdiction of the ITLOS in past disputes.

*After this post went up, I noticed that Russia has also dropped the piracy charges against the Greenpeace activists, charging them now with hooliganism. This doesn’t seem to affect their position on ITLOS arbitration, though. But perhaps settlement will be easier?

China’s Definition of the “Peaceful Settlement of International Disputes” Leaves Out International Adjudication

by Julian Ku

China’s U.N. Ambassador made a typically anodyne statement recently to the U.N. General Assembly on the Rule of Law at National and International Levels. But there are a few interesting nuggets worth noting that reflect China’s skeptical attitude toward international adjudication.

Anyone who follows the Chinese government’s diplomatic statements will know that it repeatedly stresses the U.N. Charter’s obligation on states to seek peaceful settlements of international disputes.  But the Chinese here and elsewhere define this obligation more narrowly than many international lawyers or other states might define it.  From the “Rule of Law” statement:

The Chinese government actively upholds peaceful settlement of disputes, proposes to settle international disputes properly through negotiation, dialogue and consultation, thus maintaining international peace and security.

So far so good.  But for many international lawyers, and for many states, the “peaceful settlement of international disputes” would also include other means listed in Article 33(1) of the Charter.

The parties to any dispute, the continuance of which is likely to endanger the maintenance of international peace and security, shall, first of all, seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice.

(Emphasis added.)

Now Article 33(1) simply lists options, it does not mandate all states use every one of these processes to resolve disputes.  But it is striking how the Chinese government goes out of its way to downplay arbitration and judicial settlement from its public statements on “peaceful settlements of disputes” and in a statement about the importance of the rule of law at the international level.  Indeed, this particular statement on the rule of law goes out of its way to denounce the abuse of arbitration and judicial settlement.

The Chinese delegation believes that the decision to resort to arbitrary or judicial institutions to settle international disputes should be based on the principles of international rule of law and premised on equality and free will of states concerned. Any action to willfully refer disputes to arbitrary (sic) or judicial institutions in defiance of the will of the states concerned or provisions of international treaties constitutes a violation of the principles of international rule of law and is thus unacceptable to the Chinese government.

Hmm… I wonder what country has willfully referred a dispute to arbitration in defiance of China’s will recently?

I am not criticizing China’s legal position here, which seems eminently defensible and reasonable.  I do think that its approach, which privileges a state’s will and “sovereign equality” as a principle of international law, will naturally lead it to de-emphasize arbitration and judicial settlement. And since China’s opposition to the Philippines’ arbitration is based on a theory of state non-consent and lack of jurisdiction, I think it is unlikely to climb down from this position and accept the legitimacy of the UNCLOS arbitration.

Which is why I find it hard to accept the theory put forth by the Philippines lead U.S. counsel, Paul Reichler, as to why China will ultimately accept the arbitral tribunal award in that dispute. In an interview in the WSJ, Reichler relies on the reputational damage China will suffer if it defies the arbitral tribunal and the advantages China would get out of a “rules-based” system.  But China’s view of a “rules-based” system does not necessarily require it to submit to arbitration to set the “rules.”  China already has a robust vision of how it can be a “rule of law” nation and avoid arbitration and judicial settlement. Nothing the UNCLOS tribunal does will likely change this view.  Indeed, to the extent that other nations share its views, it will also lessen any reputation damage it suffers from a negative award.

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.

Russia May Charge Greenpeace Activists with Piracy; Will They Cite the Ninth Circuit? (Updated)

by Julian Ku

[See update at end of this post] Russia’s government has recently been talking up international law, so it will be interesting to see if they follow through with plans to charge Greenpeace activists with piracy.

MOSCOW — Russia opened a criminal case Tuesday against Greenpeace activists, accusing them of piracy for attempting to stage a protest on an Arctic oil rig. A Greenpeace spokeswoman called the accusation “absurd.”

Russian border troops seized the Greenpeace icebreaker Arctic Sunrise, along with its multinational crew of 30 activists and sailors, in a commando operation Thursday in the Barents Sea. The day before, the group had been foiled while attempting to raise a protest banner on a Russian oil drilling platform.

The facts remain pretty fuzzy, but I don’t think the Russian charge of piracy is quite as absurd as Professor Joseph Sweeney of Fordham, an eminent authority on admiralty law, makes it out to be.  Prof. Sweeney says in the article:

“They can’t be too serious about charging them with piracy,” said Joseph C. Sweeney, professor emeritus of international and maritime law at Fordham University Law School. “That requires stealing things and the intention of stealing things.”

But current definitions of piracy don’t require an intention for financial enrichment. Rather, as we noted back in February when the U.S. Ninth Circuit Court of Appeals upheld an injunction against anti-whaling protestors for attacking Japanese whalers, UNCLOS requires only that the attackers be acting for “private ends.”  As Kevin argued in his post, there is reason to believe that “private ends” does not include “politically motivated” acts (although Eugene Kontorovich has a good rebuttal of that point here).  In any event,  I think the traditional idea that piracy requires the goal of financial enrichment cited by Professor Sweeney is no longer widely held.

This means that the Russians can make out a colorable charge of piracy.  It also means that this theory will allow them to avoid questions about whether they were in the Russian exclusive economic zone, etc, since that shouldn’t matter if they stick with the piracy charge.  I expect the Russians will cite the Kozinski Ninth Circuit opinion, and if they do, this may be an important precedent for the development of modern piracy law.

[UPDATE: I stand by the analysis above, but I should note that 1) Eugene Kontorovich argues that this can't be piracy because they did not attack a "ship"; and 2) Russia's President Putin seems to have admitted this can't be piracy, although he maintains there is some other legal violation here somewhere since he alleges they tried to "seize the rig by force".]