the arctic sunrise - kingdom of the Netherlands v. Russian federation

 

Background:

-Heard at the International Tribunal for the Law of the Sea on 22nd November 2013, "The Tribunal".

-The Netherlands filed a tribunal request for provisional measures under Article 290 paragraph 5 of the United Nations Convention of the Law of the Sea (UNCLOS) for the boarding and detention of the vessel “Arctic Sunrise” and the detention of persons on board the vessel, in the Exclusive Economic Zone (EEZ) of the Russian Federation by the Russian authorities.

-The “Arctic Sunrise” is operated by Greenpeace, who sailed to Russia’s EEZ to protest against oil drilling activities by the Russian energy company Gazprom.

Case:

On September 19 2013, in the EEZ of the Russian Federation, the vessel “Arctic Sunrise” flying the flag of the Netherlands was boarded by the Russian authorities who detained the vessel and the 30 people on board, and was towed to the Russian port of Murmansk.

The Netherlands said that in the Russian authorities boarding this vessel:

  • Russia breached its obligations to the Netherlands in the exercise of its right to protect a vessel flying its flag in regard to freedom of navigation as stated in Article 58 paragraph 1 and Article 87 paragraph 1(a) of UNCLOS and under customary international law.
  • Boarding, investigating, inspecting, arresting and detaining the Arctic Sunrise without the prior consent of the Netherlands is a breach of obligations under Article 58 and Part VII of UNCLOS, and under customary international law.
  • UNCLOS expressly prohibits the boarding of foreign vessels on the high seas (Article 110) the prohibition also applies to boarding of foreign vessels in the EEZ (Article 58, paragraph 2).

The Netherlands concluded that these wrongful acts violated international responsibility of the Russian Federation.

The Netherlands wants that:

  • The Arctic Sunrise to immediately leave its place of detention in the Russian maritime territory, and exercise freedom of navigation.
  • Immediately release all crew members on board and allow them to leave Russian territory.
  • Suspend any judicial or administrative proceedings against the vessel or the crew on board in connection with incident.
  • Ensure no further action is taken to aggravate the dispute.

The Russian response:

  • Russia recalled that upon ratification of UNCLOS in 1997, they stated that they do not accept procedures under Section 2 Part XV of UNCLOS. Section 2 Part XV states that “any dispute concerning application of the Convention…be submitted at the request of any party to the dispute to the court or tribunal having jurisdiction.”
  • On this basis mentioned above in a verbal note in October 2013, the Russian Federation expressed that they do not accept the arbitration procedure under Annex VII of UNCLOS in the Arctic Sunrise case.

The Netherlands response:

  • The jurisdiction of the Tribunal is withheld.
  • Russia stated in 1997 that they object to Section 2 Part XV (of the court/tribunals jurisdiction to a dispute) however Article 298 “optional exceptions” of UNCLOS expresses what a state can object to. Article 298 states that objections to Section 2 Part XV are only possible in matters concerning marine scientific research and fisheries, neither of which is relevant to the Arctic Sunrise case.
  • As the above objection by Russia is not possible (because it does not concern marine scientific research and fisheries), Article 309 of UNCLOS expresses that “no reservations or exceptions may be made to this convention unless expressly permitted by other articles in this convention.”

Russia’s note verbale:

A note verbale of October 2013 sent by the Embassy of the Russian Federation in the Netherlands to the Ministry of Foreign Affairs in the Netherlands stated that:

“In view of the authority that a coastal state possesses…in the situation in question requesting consent of the flag State to the visit by the inspection team on board the vessel was not required.”

To support this, Russia mention Articles 56, 60, 80 of UNCLOS and national legislation, namely the Federal Act on the Exclusive Economic Zone of the Russian Federation, specifically Article 36 (1):

"When performing their official duties, officials of the protection agencies shall have the right:

(i) To stop and inspect Russian and foreign ships, and to inspect artificial islands, installations and structures engaged in:

-The exploration and commercial exploitation of living resources in the EEZ.

-The transfer to other ships of living resources caught (harvested) in the EEZ.

-The exploration and exploitation of non-living resources.

-Natural resource research and marine scientific research.

-Other activities in the EEZ."

Article 56, 60 and 80 of UNCLOS:

Article 56 of UNCLOS states what a state can do in the Exclusive Economic Zone, it mentions nothing about boarding a foreign vessel in the EEZ without prior consent of the flag State.

Article 60 of UNCLOS states that the coastal state may establish artificial islands, installations and structures in the EEZ. It mentions nothing about inspecting a foreign vessel in the EEZ without consent of the flag State.

Article 80 of UNCLOS only mentions artificial islands, installations and structures in regards to the continental shelf.

The Tribunal prescribed the following provisional measures:

By 19 votes to 2, the Tribunal judged that the Russian Federation shall immediately release the Arctic Sunrise and all persons who have been detained, upon the posting at a bond set at 3.6 million Euros, in the form of a bank guarantee.

By 19 votes to 2, the Netherlands and the Russian Federation shall each submit a report to the Tribunal and authorises the President to request further reports as may consider appropriate.

What happened after the Tribunal?

In December 2013, all persons detained were released by Russia, but the ship remained in Russian territory.

In August 2014, the Arctic Sunrise returned back to its home port of Amsterdam after 300 days in Russian custody.

In August 2015, the Permanent Court of Arbitration ruled unanimously that Russia breached its obligations under UNCLOS. They noted that the Netherlands is entitled to compensation (with interest) for damages, but the amount would be decided at a later date.