(Kingdom of the Netherlands v Russian Federation)

• Jurisdiction: Derecho Internacional
• Judge: Burmester,Székely,Mensah,Soons,Symonides
• Date: 14 August 2015
• Court: Arbitration Tribunal (International)

Arbitration Tribunal2

Award on Jurisdiction.

Award on the Merits.

(Mensah, President; Burmester, Soons, Symonides and Székely, Members)

The Arctic Sunrise1

(Kingdom of the Netherlands

and

Russian Federation)

Arbitration — Jurisdiction — United Nations Convention on the Law of the Sea, 1982 (“UNCLOS”), Part XV and Annex VII — Dispute settlement mechanism — Arbitration as default choice — Non-appearance by party — Jurisdiction — Scope of declaration excluding disputes concerning law enforcement activities — UNCLOS Articles 297 and 298 — Existence of a dispute — Effect of related proceedings at European Court of Human Rights — UNCLOS Article 283(1) — Exchange of views requirement — Urgency — Judicial standing — State responsibility — Obligations owed by coastal State to flag State — Whether standing of flag State covering claims relating to all persons on board a vessel

Arbitration — Applicable law — UNCLOS Part XV and Annex VII — Dispute settlement mechanism — Applicable law — Whether arbitration tribunal empowered to apply international human rights law — UNCLOS Article 293 — International Covenant on Civil and Political Rights, 1966, Articles 9 and 12 — Arbitrary arrest or detention — Freedom of movement

Arbitration — Costs — UNCLOS Part XV and Annex VII — Dispute settlement mechanism — Non-appearance by party — UNCLOS Annex VII, Article 6 — Obligation to pay deposits requested by arbitration tribunal — Costs and Expenses — Equal allocation of arbitration tribunal expenses between parties

Damages — Restitution — Return of confiscated equipment and items — Compensation — Material damage for vessel repairs and lost earnings — Material damage for bail and security — Material damage for unpaid deposits to arbitration tribunal — Non-material damage for wrongful arrest, prosecution and detention of persons — Quantum of compensation deferred

Environment — Marine pollution — UNCLOS Article 221 — Law enforcement measures — Measures must be reasonable and proportionate to expected or actual harm — Requirement of major harmful consequence

Human rights — Treaties — International Covenant on Civil and Political Rights, 1966, Articles 9 and 12(2) — Freedom from arbitrary arrest or detention — Freedom of movement — Right to leave country

International tribunals — International Tribunal for the Law of the Sea — Provisional measures — State responsibility for failure to comply with provisional measures — Prompt release — Requirement to act promptly — UNCLOS Article 300 — Breach of obligation to act in good faith

Sea — Exclusive economic zone — Rights and duties within the exclusive economic zone — UNCLOS Articles 56(2), 58(1) and (2) — Freedom of navigation — UNCLOS Articles 87(1)(a) and 92(1) — Artificial islands, installations and structures within exclusive economic zone and on continental shelf — UNCLOS Article 60(5) — UNCLOS Article 80 — Requirements of safety zones — UNCLOS Articles 56(2), 58(1) and (2), 87(1)(a) and 92(1) — Law enforcement measures — Grounds to impede freedom of navigation — UNCLOS Article 110 — Right of visit — Right of seizure — Piracy — Hooliganism — Terrorism — Risk of environmental harm — UNCLOS Article 220 — Vessel-source pollution — UNCLOS Article 234 — Regulation of ice-covered areas — Unlawful boarding, seizure and detention of ship — Principle of reasonableness

Sea — Hot pursuit — UNCLOS Article 111 — Violation of coastal State laws and regulations — Auditory or visual signal requirement — Continuity of pursuit requirement — Dangerous manoeuvring — UNCLOS Article 97 — No right to arrest or detain ship

Terrorism — Law enforcement at sea — Right to take preventive action on reasonable suspicion — Right to protect exercise of sovereign rights of the coastal State

Summary:3The facts:- On 4 October 2013, the Kingdom of the Netherlands (“the Netherlands”) commenced arbitration proceedings under Annex VII of the United Nations Convention on the Law of the Sea, 1982 (“UNCLOS”) against the Russian Federation (“Russia”) concerning the boarding by Russia of the Arctic Sunrise, a Dutch-flagged vessel, and the seizure of the vessel and the detention in Russia of those who were on board.

On 18 September 2013, Greenpeace International (“Greenpeace”), a nongovernmental organization, used the Arctic Sunrise, an icebreaker vessel, to stage a protest action against a Gazprom offshore oil production platform located within the Pechora Sea and within the exclusive economic zone (“EEZ”) of Russia. The protest action was part of a Greenpeace campaign aimed at securing a ban on offshore oil drilling in Arctic waters. After the Arctic Sunrise arrived in the vicinity of the oil platform on 17 September 2013, Greenpeace informed Gazprom officials of their planned course of action, which involved scaling the oil platform and establishing a camp at the site

until various demands were met. Russia had declared a 500-metre zone, within which navigation was prohibited, around the platform

At approximately 4.15 a.m. on 18 September 2013, five rigid hull inflatable boats were launched from the Arctic Sunrise, which itself remained more than three nautical miles from the platform. One of the Arctic Sunrise boats towed a “survival capsule”, which the activists intended to use as a shelter once they had scaled the platform. After the capsule's towline snapped at a distance just within three nautical miles of the platform, the Arctic Sunrise retrieved it, despite orders from a nearby Russian coastguard vessel, the Ladoga, not to enter within three nautical miles of the platform.

After the inflatable boats from the Arctic Sunrise reached the base of the platform, two Greenpeace activists began climbing up the structure. Meanwhile, two rigid hull inflatable boats were launched from the Ladoga and took various actions to impede the activists from scaling the platform. Amidst the confrontation, the activists retreated out of fear for their safety. Water cannons on the platform were used to repel Greenpeace's inflatable boats, such that the two Greenpeace activists instead descended from the platform onto one of the Russian coastguard's inflatable boats, which transported them to the Ladoga. The Greenpeace inflatable boats returned to the Arctic Sunrise.

At approximately 6.15 a.m., the Ladoga contacted the Arctic Sunrise by radio and ordered the vessel to stop and to allow an investigation team to board. The Arctic Sunrise refused. Over the next several hours, the Ladoga reiterated its demand and informed the Arctic Sunrise that it was suspected of piracy and terrorism. Following further communications between the vessels, the Arctic Sunrise began circling the oil platform at a distance of four nautical miles on the evening of 18 September 2013. The Ladoga shadowed the Arctic Sunrise and positioned itself between the Arctic Sunrise and the platform.

On the evening of 19 September 2013, Russian officials approached the Arctic Sunrise by helicopter and boarded and seized control of the vessel. The next day, the Ladoga began towing the Arctic Sunrise to port in Murmansk, where it arrived on 24 September 2013. The Russian authorities formally arrested the thirty individuals on board the Arctic Sunrise (“the Arctic 30”) on suspicion of piracy. The Netherlands requested Russia to release the Arctic 30 and the Arctic Sunrise, but the detained individuals were instead sent to various detention centres in Russia and the Russian authorities undertook a further search of the vessel. Court proceedings in Russia formally authorized the seizure of the Arctic Sunrise and the detention of the Arctic 30, each of whom was charged with piracy committed by an organized group.

On 21 October 2013, the Netherlands filed a request for provisional measures with the International Tribunal for the Law of the Sea (“ITLOS”) pursuant to UNCLOS Article 290(5). That request sought, inter alia, the immediate release of the Arctic Sunrise and the Arctic 30. While the request was pending, the charge of piracy against the Arctic 30 was changed to hooliganism; subsequently, all but two of the Arctic 30 were released on bail during 20–22 November 2013.

On 22 November 2013, ITLOS granted the request for provisional measures and ordered Russia to release the Arctic 30, as well as the Arctic Sunrise, in exchange for payment of a EUR 3.6 million bond (159 ILR 68). Russian authorities released on bail the remaining two members of the Arctic 30 shortly thereafter. In late December 2013, the Russian State Duma granted an amnesty to the Arctic 30, who subsequently left the country.

The Netherlands informed Russia on 2 December 2013 that it had arranged a bank guarantee to secure release of the Arctic Sunrise. Russia did not authorize the vessel's release until 6 June 2014. After receiving essential maintenance, the Arctic Sunrise departed Murmansk on 1 August 2014 bound for Amsterdam.

In the arbitration commenced under UNCLOS Annex VII, the Netherlands claimed that Russia had breached various obligations under UNCLOS, the International Covenant on Civil and Political Rights, 1966 (“the ICCPR”),4 and customary international law, including by its failure to have complied fully with the provisional measures indicated by ITLOS. The Netherlands' claims related to the lawfulness of the boarding and seizure of the Arctic Sunrise and the subsequent measures taken against the vessel and the Arctic 30, as well as the lawfulness of an alleged three-mile safety zone around the platform and Russia's non-payment of deposits in the arbitration proceedings. The Netherlands sought a declaratory judgment confirming the wrongfulness of Russia's conduct, a formal apology and financial compensation.

Russia did not participate in the arbitration proceedings, but made one communication to the Tribunal in which it referred to the declaration it had made upon its ratification of UNCLOS. In that declaration, Russia stated that it did not accept binding dispute resolution under UNCLOS with regard to...