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The “Arctic Sunrise” Case (Netherlands/Russia) (ITLOS)

Published online by Cambridge University Press:  20 January 2017

Eva Rieter
Eva Rieter*
Affiliation:
Radboud University Nijmegen, The Netherlands
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Extract

In September 2013, officials of the Russian Federation boarded the vessel Arctic Sunrise, an icebreaker flying the flag of the Netherlands. The vessel, operated by Greenpeace International, was present in the Russian Federation’s Exclusive Economic Zone in order to protest against the operation of the offshore fixed oil platform Prirazlomnaya. Russian authorities detained the Arctic Sunrise itself and all persons on board the vessel, initially based on an accusation of piracy.

Type
International Legal Materials
Information
International Legal Materials , Volume 53 , Issue 4 , August 2014 , pp. 603 - 619
Copyright
Copyright © American Society of International Law 2014

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References

* This text was reproduced and reformatted from the text available at the International Tribunal for the Law of the Sea website (visited July 18, 2014), http://www.itlos.org/fileadmin/itlos/documents/cases/case_no.22/Order/C22_Ord_22_11_2013_orig_Eng.pdf.

1 Arctic Sunrise (No. 22) (Neth. v. Russ.), Case No. 22, Request for Provisional Measures, Oct. 21, 2013, 22 ITLOS Rep ¶ 105 [hereinafter Request for Provisional Measures], available at http://www.itlos.org/fileadmin/itlos/documents/cases/case_no.22/Request_provisional_measures_en_withtranslations.pdfM. See also Alex Oude Elfrink, The Arctic Sunrise Incident and the International Law of the Sea, The BLOG OF THE K. G. JEBSEN CENTRE FOR THE LAW OF THE SEA (Jan. 7, 2014), http://uit.no/Content/361427/The%20Arctic%20Sunrise%20Incident%20and%20ITLOS_final.pdf (noting various law of the sea aspects that are likely to be discussed by the Arbitral Tribunal (e.g., hot pursuit, safety zone etc.)).

2 Request for Provisional Measures, supra note 1, ¶ 58. In order for ITLOS to prescribe provisional measures under Article 290, paragraph 5, of the Convention, the Tribunal has to satisfy itself that, prima facie, the Annex VII arbitral tribunal would have jurisdiction.

3 Request for Provisional Measures, supra note 1, ¶ 105. The amount of the bond was for 3,600,000 euros, to be posted with the Russian Federation in the form of a bank guarantee, id. 4 Id. ¶ 105(1)(b) (listing Judges Golitsyn and Kulyk as having voted against).

5 The Arctic Sunrise case is the seventh case where provisional measures were requested under Article 290. Three of these cases dealt with situations involving detention of ships and crewmembers. The first was M/V ‘Saiga’ (St. Vincent and the Grenadines v. Guinea); the second the ARA Libertad (Argentina v. Ghana) case; and the third the Arctic Sunrise case (The Netherlands v. Russian Federation).

6 United Nations Convention on the Law of the Sea, art. 292, Dec. 10, 1982, 1833 U.N.T.S. 561. Russia recognizes the role of ITLOS in matters dealing with the prompt release of detained vessels and crews under Article 292. It is noteworthy that there have been nine cases so far (including three involving Russia) where a state invoked the prompt release procedure under Article 292.

7 Request for Provisional Measures, supra note 1 (joint separate opinion of Judge Wolfrum &; Judge Kelly) (discussing relevant jurisdictional issues and the nonappearance of Russia). See also Oude Elfrink, supra note 1.

8 Request for Provisional Measures, supra note 1, ¶¶ 72–76 (demonstrating that in the context of provisional measures, ITLOS is not overly strict on the requirement of negotiation between the parties). On the role of negotiations before the ICJ, see KAREL WELLENS, NEGOTIATIONS IN THE CASE LAW OF THE INTERNATIONAL COURT OF JUSTICE: A FUNCTIONAL ANALYSIS (2014).

9 See Jerome B. Elkind, Non-Appearance before the International Court of Justice: Functional and Comparative Analysis (1984); H. W. A. Thirlway, Non- Appearance Before the International Court of Justice (1985).

10 See Anna Dolidze, The Arctic Sunrise and NGOs in International Judicial Proceedings, ASIL INSIGHTS (2014), http://www.asil.org/insights/volume/18/issue/1/arctic-sunriseand-ngos-international-judicial-proceedings (analyzing the tribunal’s response to the amicus curiae brief by Greenpeace International).

11 It is not alone in this approach. See Case Concerning Ahmadou Sadio Diallo (Rep. of Guinea v. Dem. Rep. Congo) Judgment, 2010 I.C.J. 639 (Nov. 30), for a case where the applicable substantive law was expanded to include human rights law in the exercise of diplomatic protection. See also Questions Relating to the Obligation to Prosecute or Extradite (Belg. v. Sen.) Judgment, 2012 I.C.J. 422 (Jul. 20), in which Belgium referred to citizens who were originally from Chad when it invoked the Convention against Torture.

12 Arctic Sunrise (No. 22), (Neth. v. Russ.), Case No. 22, Submission of Dispute to Arbitration, Oct. 4, 2013, 22 ITLOS ¶ 29 [hereinafter Submission of Dispute].

13 See id. ¶ 30(3).

14 Request for Provisional Measures, supra note 1, ¶ 38.

15 Submission of Dispute, supra note 12, ¶ 37(1)(c).

16 See id. ¶ 29.

17 Arctic Sunrise (No. 22) (Neth. v. Russ.), Case No. 22, Order of 22 November 2013, 22 ITLOS Rep ¶ 87 [hereinafter Order of 22 November 2013] (“As a consequence of the actions taken by the Russian Federation in connection with the boarding and detention of the ‘Arctic Sunrise’, the crew would continue to be deprived of their right to liberty and security as well as their right to leave the territory and maritime areas under the jurisdiction of the Russian Federation. The settlement of such disputes between two states should not infringe upon the enjoyment of individual rights and freedoms of the crew of the vessels concerned.”).

18 Request for Provisional Measures, supra note 1, ¶ 2 (joint separate opinion of Judge Wolfrum &; Judge Kelly).

19 Order of 22 November 2013, supra note 17, ¶ 105(1)(b).

20 See e.g., Request for Provisional Measures, supra note 1, ¶¶ 32–34, 37.

21 See Eva Rieter, Preventing Iirreparable Harm: Provisional Measures in International Human Rights Adjudication 5–101 (2010).

22 The approach by ITLOS in this provisional measures order does have in common with the ICJ’s approach to provisional measures that they have both shown sensitivity towards the plight of individuals. See INTERNATIONAL LAW ASSOCIATION, COMMITTEE ON HUMAN RIGHTS LAW, CONFERENCE REPORT April 2014 (2014), available at http://www.ila-hq.org/en/committees/index.cfm/cid/1027.

23 Request for Provisional Measures, supra note 1, ¶ 19, 29.

24 See id. ¶ 29.

25 See id. ¶ 19.

26 M/V Saiga (No. 2) (St Vincent v. Guinea), Case No. 2, Order of July 1, 1999, 2 ITLOS Rep. 5, ¶¶ 105–107. The Court noted that the provisions of the UN Convention on the Law of the Sea, including Article 292, do not distinguish between nationals and non-nationals of the flag State, id. ¶ 105. According to ITLOS, the ship, everything on it, and every person involved or interested in its operations are treated as an entity linked to the flag State. The nationalities of these persons are not relevant, id. ¶ 106.

27 Request for Provisional Measures, supra note 1, ¶ 18 (separate opinion of Judge Jesus).

28 See id. ¶ 20.

29 A similar approach might also be warranted when the flag state would not be willing to exercise diplomatic protection. Another State with nationals on board might then exercise it and speak for the other crew members as well, irrespective of their nationality.

30 Request for Provisional Measures, supra note 1, ¶ 1 (joint separate opinion of Judge Wolfrum &; Judge Kelly).