Detention of the Arctic Sunrise

The Netherlands have recently submitted a request to the International Tribunal for the Law of the Sea for provisional measures in a dispute with Russia. This is due to the recent arrest and detention by Russia, of a ship used by Greenpeace International for protest over oil drilling. The name of the vessel which was operated by the environmental group is Arctic Sunrise. The ship was being used to protest against the off-shore ice resistant fixed platform Prirazlomnaya in the Barents Sea. On September 19th, Coastguards boarded the ship and brought it to the Port of Murmansk Oblast, and detained it. Further, the 30 crew members on the ship were also arrested and detained in Murmansk Oblast and judicial proceedings will be taken against them.

The Netherlands issued arbitral proceedings against Russia under the UN Convention on the Law and the Sea. Under Annex VII, the Netherlands claimed that arrest and detention of the Arctic Sunrise and its crew violated the provisions of the convention. “The Convention provides for compulsory third-party settlement of disputes concerning the interpretation or application of the Convention.”

Netherlands is requesting the tribunal to prescribe that “Russia immediately enable the vessel to be re-supplied, to leave its place of detention and the maritime areas under Russian jurisdiction and to exercise the freedom of navigation.” It is also asking that Russia to “immediately release the crew members and allow them to leave Russian territory and maritime areas; suspend all judicial and administrative proceedings, and refrain from initiating any further proceedings, in connection with the incidents leading to the boarding and detention of the vessel, and refrain from taking or enforcing any judicial or administrative measures against the vessel, its crew members, its owners and its operators; and ensure that no other action is taken which might aggravate or extend the dispute.”

The Tribunal has some options in dealing with this situation. The Tribunal may prescribe provisional measures if it considers that, prima facie, the arbitral tribunal to be constituted would have jurisdiction and that the urgency of the situation so requires. It may also allow any measure which it considers appropriate under the circumstances to preserve the respective rights of the parties to the dispute or to prevent serious harm to the marine environment.

In response, Russia did not respond to the request by the Netherlands and did not adopt and implement the requested provisional measures. They continued to detain the crew and the ship and formally seized it. On October 8th, Russia found the captain of the ship guilty of administrative offenses and imposed a fine of 20,000 roubles, for failing to comply with a Coast Guard order.

This action seems to have gotten off on the wrong foot from the beginning. Further non-compliance by Russia would add insult to injury already cause. In the judgment, it is also stated that the condition of the vessel is deteriorating. It is an old ship that needs constant maintenance, and it will create an environmental risk such as oil spills. There are also rumors within Russia connecting the Greenpeace to piracy.

This case concerns a dispute between two states with respect to the rights and obligations of a coastal state in its exclusive economic zone affecting the rights and obligations of a flag state regarding vessels flying its flag and navigating in this zone. The detention by the Russian federation is depriving the crew of their right to liberty and security as well as their right to leave the territory and maritime areas. The settlements of disputes between The Netherlands and Russia should not deprive the individual crew members the enjoyment of their individual rights and freedoms while on the vessel.

Do you think that Russia had the right to detain the ship and crew members for a peaceful protest in international waters? In the past people have been arrested during peaceful protests, is this situation any different? And if so, how? Should the potential threat of piracy effect whether or not a ship/crew of that nature be detained?

 

Sources:U.N. ; ITLS Press Release; ITLS Proceedings

Picture: Authint Mail

2 comments

  1. In short, yes; I believe that Russia had the right to detain the ship. And I believe that threats of piracy always raise the stakes, but I do not see how the Russian’s could have mistaken the Greenpeace activist for pirates. In any event, Russia has dropped the piracy charges against the activists. See http://www.bbc.co.uk/news/world-europe-24645300.

    The United Nations Convention on the Law of the Sea (“UNCLOS”) gives the coastal state (Russia, in this case) exclusive rights to artificial installations in the EEZ. UNCLOS at art. 56(b)(i), 60. And while the state which has exclusive jurisdiction is not entitled to infringe the freedom of navigation that is enjoyed by foreign-flagged vessels in the EEZ, that state may establish a security zone around its artificial installation.

    Article 60(4) of UNCLOS provides: “The coastal State may, where necessary, establish reasonable safety zones around such artificial islands, installations and structures in which it may take appropriate measures to ensure the safety both of navigation and of the artificial islands, installations and structures.” Moreover, the Convention requires that states exercising their freedom of navigation due so with regard to the coastal state’s rights. Article 60(6) goes on to provide that “All ships must respect these safety zones and shall comply with generally accepted international standards regarding navigation in the vicinity of artificial islands, installations, structures and safety zones.”

    So, whereas the Arctic Sunrise and its crew had breached the Russian safety zone surrounding the artificial installation and the crew members climbed onto the installation to protest, there is evidence that the Arctic Sunrise and its crew have violated the letter and spirit of UNCLOS article 60. On the other hand, the piracy charges were absurd to begin with, which is obviously why the Russians dropped those charges.

  2. I think this article raises important question about both privacy rights and the freedom of expression. If we look at this scenario in a vacuum, of course the Greenpeace should not be detained against their will or prevented from peacefully protesting what they believe in while navigating coastal waters. However, as prospective lawyers we are trained to think a little more intelligently about these situations.

    It seems just a bit contradictory that a ship that is protesting oil drilling is a ship in need of maintenance that prevents its own environmental risks. More importantly, though, the rumors about the vessel being linked to piracy suggest that Russia might have valid reasons to detain the individuals with respect to the peaceful protest. Are these individuals being detained the same individuals that might be involved in the alleged piracy, or are they merely peaceful protestors? If the latter, does Russia have a valid right of detention of people who or may or may not be connected with such piracy? Those are just some of the questions I would be thinking about.

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