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