Law of the sea - visit and seizure of vessels at sea - definition of piracy - right of hot pursuit--enforcement jurisdiction at sea - compliance with provisional measures.

Author:Kontorovich, Eugene
 
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Law of the sea--visit and seizure of vessels at sea--definition of piracy--right of hot pursuit--enforcement jurisdiction at sea--compliance with provisional measures

ARCTIC Sunrise (Netherlands v. Russia). ITLOS Case No. 22. Provisional Measures Order. At http:// www.itlos.org.

International Tribunal for the Law of the Sea, November 22, 2013.

IN RE ARCTIC Sunrise (Netherlands v. Russia). PCA Case No. 2014-02. Merits. Ah http://www.pca-cpa.org.

UN Convention on the Law of the Sea Annex VII Arbitral Tribunal, August 14, 2015.

Russia's seizure of the Greenpeace vessel Arctic Sunrise and the arrest of its crew in 2013 on suspicion of piracy resulted in two significant decisions: an order of provisional measures by the International Tribunal for the Law of the Sea (ITLOS) in 2013, (1) and an award on the merits by an arbitral tribunal constituted under the auspices of the Permanent Court of Arbitration (PCA Tribunal) in 2015. (2) Together these decisions have reaffirmed the high level of protection from seizure afforded to ships on the high seas under the United Nations Convention on the Law of the Sea (UNCLOS or Convention), (3) while developing important rules on the right of hot pursuit, especially in the sensitive context of offshore oil platforms.

The Arctic Sunrise is a Netherlands-flagged ship chartered by the environmentalist group Greenpeace International. On September 18, 2013, the Sunrise staged a "protest" against the oil platform Prirazlomnaya, which was operated by a company controlled by Russia in that country's exclusive economic zone (EEZ) in the Pechora Sea, off Russia's northern Arctic coast. The Greenpeace action consisted of deploying rigid inflatable boats and, from them, boarding the platform, where the activists intended to camp out. The protesters and their small boats were apprehended by the Russian Coast Guard, although not before a few of them had managed to board the rig.

A Russian Coast Guard ship then commanded the Sunrise to stop to be boarded, issuing a series of threats and firing warning shots. The Sunrise did not comply but proceeded to circle the rig at a distance of four miles, tracked by the Coast Guard vessel. The next day, the Sunrise was boarded by the Russian ship, arrested, and brought into the port of Murmansk where its crew was charged with piracy (Merits, para. 106). Although the charges were subsequently reduced to "hooliganism," the initial accusation of piracy was crucial, as the crime is one of the only legal grounds for arresting foreign ships on the high seas.

Both Russia and the Netherlands are parties to UNCLOS, which provides for binding adjudication of "any dispute concerning the interpretation or application of" the Convention (Art. 286). States may choose from a variety of forums for settling their disputes under the Convention, but when, as in this situation, the parties to a particular dispute do not agree on the forum, the matter must be decided by an arbitral proceeding under UNCLOS Article 287(5). The Netherlands accordingly instituted such a proceeding at the Permanent Court of Arbitration on October 4, 2013.

Yet even in cases where jurisdiction over the merits lies elsewhere, the International Tribunal for the Law of the Sea has jurisdiction under UNCLOS Article 290(5) to order provisional measures, and in particular to require the "prompt release of vessels and crews" (Art. 292(1)). On October 21, 2013, the Netherlands applied to ITLOS for the release of the vessels and crew as provisional measures.

Thus, there were two sets of rulings in the Arctic Sunrise matter. The first, before ITLOS, resulted in an order of provisional measures on November 22, 2013. The second, the ruling of the PCA Tribunal, was issued on August 14, 2015, and dealt with the merits, as well as examining Russia's compliance with the provisional measures ordered in the prior ITLOS ruling.

Russia indicated by a note verbale that it would not recognize the jurisdiction of either tribunal (Merits, para. 23), and it refused to participate in any part of the proceedings before both bodies. After the conclusion of almost all the proceedings in the PCA Tribunal, Russia published a position paper entitled "Certain Legal Issues Highlighted by the Action of the Arctic Sunrise against Prirazlomnaya Platform," laying out its substantive legal arguments, while continuing to reject participation (id., para. 68). As a result, the arbitral tribunal took no formal cognizance of the policy paper but noted that its ruling addresses the substantive issues raised by Russia (id).

Despite Russia's nonparticipation, the tribunals issued full and detailed rulings on all the relevant issues. This approach accords with the...

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