The Arctic Sunrise

• Jurisdiction: Derecho Internacional
• Judge: Wolfrum,Kulyk,Nelson,Marotta Rangel,Paik,Pawlak,Kateka,Türk,Golitsyn,Anderson,Ndiaye,Gao,Bouguetaia,Yanai,Chandrasekhara Rao,Akl,Attard,Jesus,Cot,Hoffmann,Kelly
• Date: 22 November 2013
• Court: International Tribunal for the Law of the Sea

International Tribunal for the Law of the Sea.

(Yanai, President; Hoffmann, Vice-President; Marotta Rangel, Nelson, Chandrasekhara Rao, Akl, Wolfrum, Ndiaye, Jesus, Cot, Pawlak, Trk, Kateka, Gao, Bouguetaia, Golitsyn, Paik, Kelly, Attard and Kulyk, Judges; Anderson, Judge ad hoc)

The Arctic Sunrise1

(Kingdom of the Netherlands

and

Russian Federation)

(Request for Provisional Measures)

International tribunals Provisional measures International Tribunal for the Law of the Sea United Nations Convention on the Law of the Sea, 1982, Article 290(5) Consequences of a non-appearing party Capacity of the Tribunal to award measures other than those requested in the initial application Award of a bond in exchange for the release of contested subject matter Concerns that such an award in the provisional measures context may create a de facto prompt release proceeding

International tribunals Jurisdiction United Nations Convention on the Law of the Sea, 1982, Article 298 Declaration by State purporting to exclude jurisdiction of ITLOS Whether permissible Effects

International tribunals Non-appearing parties Consequences of non-appearance Whether non-appearance by a party should be permitted to prejudice the claim of a party that does appear and participates in proceedings in good faith Whether non-appearance inconsistent with procedural fairness and wider rule of law in international proceedings

Summary:2 The facts:On 4 October 2013, the Kingdom of the Netherlands (the Netherlands) announced that it had 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 latter's detention of the Arctic Sunrise, a Dutch-flagged vessel, and its multinational crew at the port of Murmansk. Both the Netherlands and Russia were parties to UNCLOS. On 21 October 2013, the Netherlands filed a request for provisional measures with the International Tribunal for the Law of the Sea pursuant to UNCLOS Article 290(5). In its Request, the Netherlands accused Russia of violating various provisions of UNCLOS concerning the principle of the freedom of the seas as applied mutatis mutandis to the exclusive economic zone (EEZ), and asked that the Tribunal order interim relief until such time as an Annex VII arbitral tribunal could hear the dispute proper

The Arctic Sunrise was operated by Greenpeace, a non-governmental organization devoted, inter alia, to environmental activism. On 18 September 2013, several Greenpeace activists attempted to board a Gazprom oil platform in the Russian EEZ from inflatable boats launched from the Arctic Sunrise. They were soon arrested by the Russian Federal Security Services, with the Arctic Sunrise itself being detained the following day as it continued through the EEZ. Over the next four days, the vessel was towed to Murmansk, where Russian authorities charged the thirty detained persons (the Arctic 30) with piracy of an organized group, a charge that was later downgraded to hooliganism and resisting law enforcement officials. On 23 October 2013, Russia informed the Tribunal that it did not accept UNCLOS dispute resolution procedures concerning matters of its sovereign rights and jurisdiction and that it did not intend to participate in the proceedings. Russia founded these objections on a statement made on ratification pursuant to UNCLOS Article 298, whereby it withheld consent to dispute settlement with respect to disputes concerning law enforcement activities in regard to the exercise of sovereign rights or jurisdiction.

In its Submission to Arbitration, annexed to its Request, the Netherlands alleged that Russia's actions with respect to the Arctic Sunrise breached UNCLOS Articles 58(1) and 87(1)(a), as well as principles of customary international law concerning transit through the EEZ. Furthermore, the Netherlands asserted that Russia, in detaining the crew of the vessel, was in violation of Articles 9 and 12(2) of the International Covenant on Civil and Political Rights, 1966 as well as principles of customary international law regarding an individual's right to liberty and security. It was further argued that the Russian declaration under UNCLOS Article 298 was ineffective to deprive an Annex VII tribunal of jurisdiction over the matter.3 On this basis, the Netherlands in its Request asked that the Tribunal order, pending

the convening of an Annex VII arbitral tribunal, the immediate release of the Arctic Sunrise and its crew; and the suspension of all municipal judicial and administrative proceedings against the vessel, its crew, its owners and operators; and that no further action be taken that might otherwise aggravate or extend the dispute

Held:Provisional measures were granted.

(1) Russia's declaration under UNCLOS Article 298 did not exclude the prima facie jurisdiction of the Annex VII tribunal. The Russian statement was effective only to the extent permitted under the wording of that provision. Article 298 allowed the exclusion of disputes only from the jurisdiction of a court or tribunal [otherwise having jurisdiction] under article 297, paragraph 2 or 3. The declaration did not, therefore, have effect with respect to disputes under UNCLOS Article 297(1), which included those cases in which it was asserted that a coastal State had interfered with freedoms and rights of navigation within the EEZ. As this language captured the character of the Dutch complaint, the declaration did not affect the jurisdiction of the Tribunal (paras. 3645).

(2) The fact that Russia had not appeared before the Tribunal did not preclude the award of interim relief under UNCLOS Article 290(5), provided that Russia, as a party to the dispute, had been given the opportunity to present its observations on the request for provisional measures. Russia remained a party to the proceeding and was accordingly bound by any orders so made. Furthermore, the Netherlands should not be prejudiced due to a Russian failure to appear and provide the Tribunal with further evidence (paras. 4658).

(3) At its core, the dispute concerned the interpretation and application of several provisions of UNCLOS, including Articles 56(2), 58, 87(1) and 110(1). UNCLOS Article 288(1) gave a body authorized to hear a dispute under UNCLOS Part XV jurisdiction over any dispute concerning the interpretation or application of UNCLOS. That was sufficient to give the Annex VII tribunal prima facie jurisdiction over the dispute and thus to authorize the award of provisional measures by the Tribunal (paras. 5871).

(4) The requirements of UNCLOS Article 283(1) had been fulfilled. Since the seizure of the Arctic Sunrise and its crew, the Netherlands and Russia had exchanged diplomatic notes and other correspondence reflecting an exchange of views between the parties. This exchange further included a discussion between the Dutch and Russian Ministers for Foreign Affairs. The situation was such that the Netherlands considered the possibilities of further constructive discourse to be exhausted (paras. 727).

(5) Read together, UNCLOS Article 290(1) and (5) enabled the Tribunal to award provisional measures on behalf of the Annex VII tribunal in order to protect rights pendente lite or prevent serious harm to the marine environment. The measures so prescribed by the Tribunal did not need to be confined in terms of temporal effect to the period prior to the composition of the Annex VII tribunal. On the basis of the Dutch submissions, which described the deterioration of the general condition of the Arctic Sunrise in Murmansk, as well as the conditions in which the Arctic 30 were being detained, and taking into account an Official Report on seizure of property of the Russian authorities, which described the Russian instrumentalities responsible for the condition of the vessel, the Tribunal decided that the situation was sufficiently urgent to justify the award of provisional measures (paras. 7890).

(6) The Tribunal was capable of awarding provisional measures different from those requested by the Netherlands. Given the circumstances of the case, it was appropriate that the Tribunal order that the Arctic Sunrise and its crew be released in exchange for the payment of a bond of EUR 3.6 million, to be posted by the Netherlands with the competent Russian authority. The bond or other financial security was to take the form of a bank guarantee issued by a bank in Russia or by a bank having corresponding arrangements with a Russian bank. Furthermore, neither side should take any measure that might aggravate or otherwise extend the dispute (paras. 91105).

Declaration of Judge ad hoc Anderson: The non-appearance by Russia was to be deplored, as it deprived the Tribunal of the benefit of additional evidence that might have been of use in reaching its conclusions. Non-appearance did not serve the efficient application of UNCLOS Part XV or, more widely, the rule of law in international relations. With respect to UNCLOS Article 283 and the requirement of preliminary consultations, the purpose of the provision was to prevent a State from being ambushed by proceedings before an international court or tribunal of which they might otherwise have been unaware. In the circumstances, the diplomatic correspondence between the parties following the arrest of the Arctic Sunrise and its crew ensured that this requirement was met (paras. 13).

Joint Separate Opinion of Judges Wolfrum and Kelly: (1) The Order of the Tribunal on the consequences flowing from Russia's non-appearance could usefully be elaborated in some respects. The Tribunal did not refer to Article 28 of the Statute of the International Tribunal for the Law of the Sea (UNCLOS Annex V) when discussing non-appearance, as the final sentence of that provision did not cohere with the wording of UNCLOS Article 290(5) on the ordering of provisional measures on behalf of an Annex VII tribunal. Rather than simply ignore the...