The Case of the Arctic Sunrise

As one United Nations Convention Law of the Sea (UNCLOS) Annex VII arbitration closes, another one opens. On 27 September 2013, Argentina and Ghana concluded an agreement to end their dispute over the detention of the Argentinian warship, the ARA Libertad, in Ghana. On 4 October 2013, the Netherlands instituted Annex VII arbitral proceedings against Russia, in relation to the arrest and detention of the Dutch-flagged vessel the Arctic Sunrise, an icebreaker operated by Greenpeace International. On 23 October, the Netherlands submitted a request for provisional measures to the International Tribunal of the Law of the Sea (ITLOS), pending the constitution of the Annex VII arbitral tribunal, in accordance with Article 290 of UNCLOS. A public hearing on the request for provisional measures will be held at ITLOS on 6 November.

As with the ARA Libertad (see previous posts on those proceedings here, here and here), the provisional measures requested by the Netherlands include the release of the ship; however this has not been framed as a prompt release matter under UNCLOS Article 292. Article 292 sets out the procedure to be followed when a State detaining a foreign-flagged vessel has not complied with the prompt release provisions of the Convention. UNCLOS requires the prompt release of vessels detained upon the posting of reasonable bond or other security provided for in two cases, namely: (a) regarding ships arrested to ensure compliance with the laws of the coastal State regarding living resources of the EEZ (Article 73(2)); and (b) vessels detained for violation of laws relating to the protection of the marine environment (Articles 220(6) and 226(1)(b)). As Russia has not refered to the provisions of Articles 73 or 220/226 in detaining the vessel, the Netherlands has not pursued the prompt release procedure.

The factual basis of the dispute is the attempt by several Arctic Sunrise crew members to board the Prirazlomnaya platform, an ice-resistant oil rig owned by the Russian-owned natural gas company Gazprom, on 18 September 2013. The crew members that boarded the platform were detained by the Russian coastguard.  The Arctic Sunrise proceeded to leave the security zone around the platform. It was subsequently boarded and seized by Russian forces. The crew were arrested and detained. They were later charged with “piracy of an organised group”. Both the vessel and crew remain in detention. Russian authorities boarded the vessel again on 28 September to carry out an investigation, without the consent of the Netherlands.

Enforcement in the Exclusive Economic Zone (EEZ)

The Gazprom website states that the platform is located “on the Pechora Sea shelf 60 kilometers off the shore (Varandey settlement)”. It its statement of claim, the Netherlands, maintains that the incident fell within the regime of the EEZ. Russia has refered to the regime of the EEZ, the continental shelf and the 1958 Convention on the High Seas (with regard to suspected piracy) in diplomatic notes to the Netherlands.

The enforcement jurisdiction of the coastal State within the EEZ is limited. Article 73(1) of UNCLOS permits the boarding, inspection and arrest of vessels by the coastal State in the exercise of its sovereign rights to explore, exploit, conserve and manage the living resources in the EEZ. The actions of the Arctic Sunrise have not been described by Russia as contrary to national laws regarding the living resources of the EEZ. According to a Russian diplomatic note of 18 September, the vessel was seized in view of the danger posed to the platform, the possible risk of environmental damage and the refusal of the vessel to comply with the coastguards instructions.

Within the EEZ, the coastal State has exclusive jurisdiction over artificial structures and installations “including jurisdiction with regard to customs, fiscal, health, safety and immigration laws and regulations” (UNCLOS Article 56). Article 60(4) provides that the coastal State may establish reasonable safety zones around such structures in which it may take appropriate measures to ensure the safety both of navigation and of the structures themselves. Such zones may not exceed 500 metres. Russia has established a security zone around the Prirazlomnaya platform, in which navigation is prohibited. The Arctic Sunrise was boarded and detained after it had left the security zone. Under Article 111(2) of UNCLOS, Russia has the right to pursue a vessel suspected to have violated laws applicable within the safety zone established in accordance with UNCLOS beyond that safety zone. This indicates that if the prohibition on navigation in the safety zone around the platform is considered compatible with UNCLOS, then Russia would have been entitled to pursue the Arctic Sunrise beyond the safety zone.

The Netherlands claims that the actions of Russia, in boarding, arresting and detaining the Arctic Sunrise in the Russian EEZ, constitute a breach of obligations owed to the Netherlands as flag State in regard to freedom of navigation and the right to exercise jurisdiction over the Arctic Sunrise. The Netherlands considers that UNCLOS does not provide any legal basis for the exercise of enforcement jurisdiction by Russia over the Arctic Sunrise in the circumstances.

Refusal to accept Jurisdiction

On the same day that the request for provisional measures was submitted to ITLOS, Russia released a statement noting that it does not accept the arbitration proceedings initiated by the Netherlands, and that it does not intend to participate in the request for provisional measures. The statement refered to the declaration made by Russia upon ratification of UNCLOS in 1997, where Russia stated that it did not accept the compulsory dispute settlement procedures of section 2 of Part XV “concerning law-enforcement activities in regard to the exercise of sovereign rights or jurisdiction”, inter alia. On the basis of this declaration, Russia presumably considers that an Annex VII tribunal does not have jurisdiction over the dispute.

The language of the Russian declaration upon ratification can be contrasted with that of Article 298 of UNCLOS. This provides for optional exceptions to the applicability of section 2 regarding compulsory dispute resolution procedures for certain categories of disputes. Article 292(1)(b) permits States to exclude from compulsory dispute resolution procedures, disputes concerning law enforcement activities in regard to the exercise of sovereign rights or jurisdiction excluded from the jurisdiction of a court or tribunal under Article 297, paragraph 2 (marine scientific research) or paragraph 3 (sovereign rights with respect to the living resources in the EEZ). The Russian declaration is thus wider in scope than that provided for under UNCLOS; it seeks to exclude all disputes regarding the exercise of sovereign rights or jurisdiction under UNCLOS from compulsory dispute resolution and not just those disputes related to marine scientific research or the living resources of the EEZ. The Russian declaration can be regarded as invalid in that it seeks to include exceptions not set out in UNCLOS. Rather than seeking to defend its position on jurisdiction before the arbitral tribunal however, Russia has indicated that it will not engage with the proceedings on any level. The position of Russia brings to mind that of China with regard to the Annex VII arbitration initiated by the Philippines regarding the South China Sea. In a note verbale of 1 August 2013 China reiterated that “it does not accept the arbitration initiated by the Philippines” and that it does not plan to participate in the proceedings.

Under Article 290, ITLOS has jurisdiction to grant provisional measures in the case if it considers that the Annex VII tribunal to be constituted would have prima facie jurisdiction, and that the urgency of the situation so requires. In considering the request for provisional measures, ITLOS must therefore examine the Russian declaration made upon ratification of UNCLOS, and consider whether an Annex VII tribunal would have jurisdiction to hear the dispute, regardless of the Russian position towards the proceedings.