Provisional Measures in the Arctic Sunrise Case

On 22 November 2013, ITLOS delivered its decision on the request for provisional measures in the case of the Arctic Sunrise (The Netherlands v Russia). Two aspects of the provisional measures decision are particularly relevant for other UNCLOS disputes.

First, in considering whether an Annex VII tribunal would have prima facie jurisdiction over the dispute, the Tribunal examined the declaration made by Russia upon ratification of UNCLOS in 1997, which purported to exclude a broader range of disputes from compulsory dispute settlement than that provided for under UNCLOS (UNCLOS allows for the exclusion of disputes concerning law enforcement activities related to marine scientific research and the living resources of the EEZ, as discussed previously here.) It is beyond debate that UNCLOS was concluded as an “all-or-nothing” package deal, and that States were not able to opt out of certain provisions of the treaty by entering reservations upon ratification (UNCLOS Article 309). Article 310 of UNCLOS permits States to make declarations or statements regarding the application of the Convention at the time of signature, ratification or accession, provided that such statements “do not purport to exclude or to modify the legal effect of” the provisions of UNCLOS in their application to that State. As the Russian example illustrates, States have, in practice, attempted to modify the application of UNCLOS through the use of statements and declarations. The ITLOS order of 22 November denied the Russian declaration any reservation-like effect, interpreting the declaration as applicable only to disputes concerning law enforcement activities related to marine scientific research and the living resources of the EEZ.

Second, the Tribunal confirmed for the first time that the refusal of a party to participate in provisional measures proceedings would not constitute a bar to the issuance of an ITLOS order. (While the issue of non-participation also arises in the Philippines v China Annex VII arbitration, provisional measures have not been requested in that case).  Article 9 of UNCLOS Annex VII states that non-appearance will not constitute a bar to Annex VII arbitral proceedings proper. Regarding provisional measures, Article 290(3) states that provisional measures may be prescribed “after the parties have been given an opportunity to be heard”, but does not address the issue of non-appearance or non-participation.  Citing numerous ICJ decisions on non-participation in proceedings in support of its position, ITLOS held that a non-appearing State will be regarded as a party to proceedings, provided they have been given an opportunity to present their case (paras. 48 & 49).  The Tribunal thus turned to ICJ practice to interpret an issue not specifically dealt with under UNCLOS.

Finally, as discussed by Julian Ku on Opinio Juris, Russia has stated that it does not intend to comply with the ITLOS order, maintaining that the dispute is excluded from the jurisdiction of an Annex VII tribunal on the basis of its declaration upon ratification of UNCLOS in 1997, and that ITLOS accordingly does not have jurisdiction to prescribe provisional measures.  The Arctic Sunrise case does not involve maritime boundaries, but the question of permissible jurisdiction of the coastal State within the EEZ is an important one, and one that Russia is unwilling to submit to compulsory dispute settlement. A possible solution for Russia would be to release the ship on the basis of a decision of a domestic court, effectively complying with the ITLOS order while preserving the coherency of its argument on the categories of UNCLOS disputes susceptible to compulsory settlement. It remains to be seen whether Russia has any interest in appearing to comply with ITLOS orders.

Along with the refusal of China to participate in the Annex VII arbitration initiated by the Philippines, and the pursuit by Colombia of various strategies to avoid compliance with the maritime delimitation decision of the ICJ in the Nicaragua v Colombia case, the Russian position represents a further challenge to effective dispute settlement regarding the law of the sea. In particular, it represents a challenge to ITLOS and the binding nature of ITLOS provisional measures.

1 thought on “Provisional Measures in the Arctic Sunrise Case”

  1. I would agree that the tribunal made it absolutely clear that from its perspective statements by parties to the convention seeking to modify instances of binding arbitration beyond their literal extent under article 298 will not be entertained by ITLOS.

    However, it seems clear that the tribunal became preoccupied with i) the presence of the Russian statement on Jurisdiction, Judge Jesus states “Bearing in mind that this position of the Russian Federation is at the center of the consideration of the issue of the jurisdiction of the arbitral tribunal in this case” ii) with the additional handicap of their (Russian) non appearance. The tribunal instead of establishing it “had Jurisdiction over the dispute” made itself satisfied that a) the Russian statement didn’t apply and b) that they appeared to have jurisdiction over the dispute – the exact words “appear to afford a basis on which the jurisdiction of the arbitral tribunal might be founded” (hardly strong conviction in those words).

    The tribunal’s actions in this regard give a façade of establishing prima facie jurisdiction. When in reality they got bogged down and flustered by Russia’s non appearance and Jurisdictional statement and then proceeded inadequately to establish that they “had Jurisdiction over the dispute” (prima facie).

    Indeed what they established quite correctly was a prima facie CLAIM to jurisdiction. However, what they did not assess was competing claims of jurisdiction and prima facie whether their jurisdictional claim prevailed under that further analysis. No matter how you view the extent of exclusiveness of jurisdiction on the platform and safety zones. The fact is that no matter how much you compress its scope, it will still have a residual calculus of jurisdiction that is beyond the remit of ITLOS. Thus there is in reality a boundary of jurisdiction that needs to be assessed to meet the test of “Jurisdiction over the dispute”. What also follows is that there is a natural extension of ITLOS arbitration jurisdictional limitation over and above matters of marine research and natural resources. This additional jurisdictional limitation is explicit in its existence in UNCLOS, even though its boundary and extent is subject to ITLOS jurisdiction.
    This analytical failure on the part of ITLOS, where they stop short in analysis of jurisdictional boundaries serves as the root cause for the emergence of a plethora of separate opinions, dissents and lack of explicit legal rational regarding the exact prescription of the chosen provisional measures within the order. Worse this lack of detail is the root cause of what Judge Jesus referred to as the “back door” into domestic legislation, a back door that can prove abusive and undermining in terms of a States acceptance and trust in the tribunal. Indeed basically what ITLOS established is that if a craft is involved, they will claim to have jurisdiction over any domestic legal issues associated with that craft and thus imprisonment for whatever reason domestically may become replaced by bond and release. A State privateer’s charter is born?

    However, things are not so extreme; ITLOS continued to bring forth appropriate measures for this PARTICULAR case. Particular being important as it is an explicit warning not to read general principles from this case. The exact measures entailed a bond of 3.6 million euro in return for release of the ship and crew from Russian ‘territory’. The amount is strikingly similar to an all up calculation of activists bail and the declared value of the Arctic Sunrise (but different in that it is subject to further ITLOS deliberations). In this regard ITLOS appears to be attempting to discharge its duty to preserve the position of the parties in the dispute. However, once again here the issue of ITLOS overstepping its jurisdiction rears its head. In the first instance the Russian domestic law appears to provide for confiscation of a ship breaching safety zones for a twelve month period. Ordering its release overrides that domestic provision and annihilates the Russian position. Similarly as I understand it Russia has laws to prevent its own citizens leaving the country should they owe debts or have other matters outstanding. To unconditionally order their ‘release’ from Russian ‘territory’ could depending on circumstances also trample on unrelated (not maritime based) Russian Jurisdiction (a boundary that again remains unconsidered).

    Indeed it is the total failure to assess Jurisdictional boundaries and enforcement rights that has crippled this ITLOS decision. The proof that the boundaries were not considered is in the separate opinion of Judges Wolfrum and Kelly, where they state “The situation is different in respect of artificial islands and installations where the coastal State according to article 60, paragraph 2, of the Convention enjoys exclusive jurisdiction and in the safety zones around such artificial island or installations. This includes legislative jurisdiction as well as the corresponding enforcement jurisdiction” and “This division of enforcement functions between the coastal State and the flag State should have been of relevance in formulating the provisional measures”. Indeed they (Wolfrum & Kelly) themselves refer to a restrictive approach that has been taken to Jurisdictional considerations in deliberations regarding the order. The Tribunal’s reluctance to enter into further jurisdictional analysis is born I believe out of fear of being seen to deal with the merits of the case at an inappropriate time in the ‘prosecution’ of the case. The result is that the case received very superficial analysis of a vessel sitting in EEZ waters outside all safety zones having no linkage to actions that extended beyond the Arctic Sunrise into Russian exclusive jurisdiction. An analysis which is at odds with other ITLOS requirements, that the application in addition to assessment of jurisdiction should be well founded in law and fact. Judge Golitsyn alludes to these issues in his dissenting opinion.
    So in summary we now know ITLOS will not entertain statements limiting its jurisdiction, and it appears will claim jurisdiction regardless of any overlap with domestic jurisdiction, an outcome leading to the possibility of ITLOS displacing domestic courts wherever there is a foreign flagged ‘craft’ involved. I would suggest this is an alarming prospect for coastal states, who in response could well reply by ‘enforcing’ their jurisdictional rights in full against ITLOS decisions and thus establish a de facto boundary analysis that ITLOS is unwilling or unable to undertake itself (in provisional measures). It may even transpire that the lack of enforcement measures existing for ITLOS decisions may indeed facilitate this approach in full, forcing any recourse to be manifested through balanced where possible, reciprocal application under UNCLOS (Russian vessels supporting boarding of Dutch rigs could be dealt with in a corresponding similar to Russian fashion).

    Now to turn to the issue of non appearance: Here I would argue that UNCLOS and ITLOS are not silent on the issue (but the order tends to be). Article 28 of the Statute is in a form of article 53 of the ICJ. Indeed Judge Paik laments that arguments were not advanced and developed under article 28 of the statute to further develop the Jurisprudence of ITLOS. This reference to article 28 of the Statute is further amplified by Judges Wolfrum and Kelly who see a missed opportunity to contribute to interpretation of article 28 of the Statute. Here I believe as stated above that ITLOS got preoccupied with Russia’s non attendance and got caught in the headlights between some punitive default approach and the approach required by the law which is effectively to still do justice between the parties in a non appearance scenario. This is evidenced by the order only explicitly referring to preserving the Dutch rights as they requested (no explicit mention of Russian rights individually were made – default tone) through release of vessel and crew, whilst at the same time removing parts of their request to stay judicial proceedings permanently – requests which would have been a complete override of Russian domestic jurisdiction (Justice tone). Further the bond requested was at a significant level and ITLOS kept control by relating that bond to the upcoming arbitral tribunal and not the appearance of the ‘Arctic 30’ at subsequent trial, thus further reinforcing and emphasizing ITLOS assertion of Jurisdiction in the case.

    In overall summary I feel ITLOS tried to do the right thing, it tried to admonish Russia for non appearance, it tried to exert control over the case and do justice (as it saw it) and it tried to preserve the parties positions (under ITLOS further control). However, in failing to address the detail, failing to address the contentious issues, failing to act regardless of diplomatic niceties, it found itself unable to deliver a sound written legal rational and instead hid behind an order which appeared through the magic ball of ‘collective wisdom’ rather than the mundane EFFECTIVE legal practice of fitting facts to the law and providing that reasoning for all to see in a single work.

    Without effective legal functioning of courts in general – the production of a full coherent legal rational, with it being replaced instead by simple voting on orders, means there can be no surprise that states lose all confidence in their (the courts) ability to do justice, and thus begin a turn away from them. ITLOS does not possess a ‘club’ to ensure compliance, it relies on consent, it therefore needs to be mindful that it presents arguments to the parties (present or not) that in their entirety are just and well explained. Lawyering away and loopholes, may be fine in a homogenous legal system, supported by enforcement reversibility. However, it won’t work in an environment that is fundamentally one of policing by consent and irreversibility (sovereignty once lost is very hard to get back). It would be wise of ITLOS Judges to review their actual position and responsibilities to deliver justice, if they are not to become an impediment to international law themselves, instead of serving it. That does not mean there is a complaint about their integrity or thoughts. The complaint is just regarding their assembling of their output and the lack of apparent totality of courage in taking detailed approaches in order to deliver and be seen to deliver justice as a whole. (Note Judge Jesus and Golitsyn especially advocate more thorough approaches) The shotgun approach for publicity (important case I need write something) of lets cover SEPARATELY in opinions/declarations non attendance, a bit of article 292 (release on bond applicability) some article 28 of Statute, ICJ article 53 relevance, whether parties have exchanged views…. Coupled with an order out of mid air in the main decision, just makes the tribunal appear an academic committee rather than a fit for purpose legal tribunal!

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