Greenpeace ‘Pirates’ and the MV Arctic Sunrise

As is now well-known, on 18 September several Greenpeace activists attempted to board Gazprom’s oil platform, the Prirazlomnaya, in the Russian Exclusive Economic Zone (EEZ) bearing ropes and posters. They did do in inflatable craft launched from the Greenpeace vessel the MV Arctic Sunrise. They were soon arrested by the Russian Coast Guard. On 19 September the Russian Coast Guard boarded, within their EEZ but outside territorial waters, the Arctic Sunrise itself (a Netherlands flagged vessel) and arrested those on board.

I have already blogged at The Conversation as to why the Greenpeace protestors are self-evidently not pirates at international law. (In short, their acts were neither violent nor committed against another ship.) Vladimir Putin even agrees, but nonetheless the protestors and all aboard the Arctic Sunrise have been charged with “piracy of an organised group”.

Now the Netherlands government has commenced arbitration proceedings against Russia over the detention of the Arctic Sunrise and, it seems, the legality of its seizure. These proceedings will have two limbs: (1) seeking the release of the vessel and crew; and (2) the merits of the case concerning the lawfulness of the Russian action against both those aboard its oil platform and the Arctic Sunrise.

The case will be heard by an arbitration panel constituted under the UN Convention on the Law of the Sea (UNCLOS). This panel will have the power to order the release of the Arctic Sunrise as a preliminary measure, or if it is not constituted within two weeks the International Tribunal for the Law of the Sea will have jurisdiction to hear the prompt release case (Article 290(5), UNCLOS).

I, perhaps rather rashly, previously noted that the Russian reservation to the UNCLOS dispute settlement mechanism might pose problems to such proceedings. (The reservation purports to exclude disputes arising from certain categories of law-enforcement action.) What follows is (mostly) an explanation of why that is likely not the case.

A health warning, however: this is a long and rather technical post.

Prompt release and provisional measures

Prompt release proceedings are concerned only with the obligation to release vessels and crews “promptly … upon the posting of reasonable bond or other security”. Whether the arrest was legal or not is irrelevant. An order for prompt release on payment of a reasonable bond – of both vessel and crew – can still be made by the arbitral tribunal or by ITLOS.

Prompt release proceedings are brought under Article 292 UNCLOS. As explained further below, Russia’s reservation on law enforcement disputes can only apply to disputes falling within Article 297(2) and (3). Thus, the Russian reservation is no obstacle to a prompt release case under Article 292.

Now, there is no universal obligation in UNCLOS to release vessels and crews promptly on reasonable bond. (If there were it would complicate counter-piracy operations enormously.) Article 292 applies where the flag State alleges the detaining State “has not complied with the provisions of this Convention for the prompt release of a vessel or its crew upon posting of a reasonable bond.” Such provisions are few and far between and usually involve fisheries enforcement (Article 73) or questions of pollution (Article 220 and 226). There is no such obvious obligation in relation to oil platforms and infringement of their safety zones (see below).

It thus seems more likely that the Netherlands will seek the release of vessel and crew as a provisional measure to “preserve the respective rights of the parties” pending a final decision under Article 290 UNCLOS. The release of the ARA Libertad was, albeit in very different circumstances, ordered as a preliminary measure by ITLOS in 2012.

In the event that the arbitral tribunal is not constituted within ten days, ITLOS can proceed to hear either a prompt release case or issue preliminary orders.

Jurisdiction of the arbitral tribunal

The Greenpeace press release suggests an Annexe VIII arbitration tribunal will hear proceedings. This seems odd to me: UNCLOS gives parties a suite of options to choose from when it comes to dispute resolution. However, where the chosen option is different (the Netherlands’ preference is the ICJ while Russia has opted for Annexe VII or VIII arbitration) the usual “default” is Annexe VII.

Annexe VII tribunals have general competence to deal with law of the sea disputes arising under the Convention. Annexe VIII tribunals are meant to be a specialist panels for dealing with disputes “relating to (1) fisheries, (2) protection and preservation of the marine environment, (3) marine scientific research, or (4) navigation” (Article 1, Annexe VIII). The Netherlands may have chosen to invoke Annexe VIII over Annexe VII for strategic reasons, such as trying to frame the dispute as one about rights of navigation in the EEZ.

This would make sense insofar as Russia on ratification of UNCLOS declared it does not accept binding dispute settlement processes regarding disputes “concerning law-enforcement activities in regard to the exercise of sovereign rights or jurisdiction”. Interpreting this requires some context. UNCLOS “compulsory” dispute settlement procedures are complex but essentially:

• you have to have a dispute arising under the convention;
• if that dispute concerns the exercise of “sovereign rights or jurisdiction” (e.g. coastal State powers in the EEZ) it has to fall within a category of dispute listed under Article 297;
• but, must then not be excluded by one of the opt-outs allowed under Article 298 (which I have been calling, somewhat loosely, ‘reservations’).

The point is that the Russian reservation is allowed under Article 298 but only to exclude disputes “from the jurisdiction of a court or tribunal [otherwise having jurisdiction] under article 297, paragraph 2 or 3”. This means the reservation cannot touch disputes under Article 297(1), which include cases where a coastal State has in the exercise of its sovereign rights interfered with “freedoms and rights of navigation” (or “other internationally lawful uses of the sea” which apply in an EEZ under Article 58, UNCLOS).

The Netherlands’ choice of Annexe VIII arbitration may signal an intention to focus its claim on interference with the Arctic Sunrise’s freedom of navigation.

Merits: does Russia have a leg to stand on?

Russia’s most tenable arguments are based on jurisdiction over oil platforms. International law allows States to declare safety zones of 500m around fixed platforms such as oil rigs and once aboard such fixed platforms you are subject to the law of the coastal State (Article 60 UNCLOS). Australia, for example, applies the Crimes Act 1914 to fixed platforms under the Sea Installations Act 1987. The attempt to board the oil platform likely infringed applicable safety laws. That, however, only allows some form of jurisdiction over the protestors who used small boats to approach and attempt to climb onto the platform.

Can Russia claim jurisdiction to arrest the Artic Sunrise? Essentially a coastal State has jurisdiction to declare safety zones within 500m of an oil platform (Article 60 UNCLOS). Can it enforce these safety zone laws or regulations adopted in its EEZ by arresting a vessel? There is no express equivalent to the enforcement powers found in Article 73 UNCLOS providing for arrest of vessels engaged in illegal fishing in the EEZ.

However, Article 111 of UNCLOS on the right of hot pursuit – which is quintessentially a right of arrest on the high seas – applies “mutatis mutandis” to safety zones. Further, where a “mother ship” uses its small boats to enter a zone under coastal State jurisdiction and violates applicable laws and regulations, the law of hot pursuit allows arrest of the mother ship even if it is outside the relevant zone.

As hot pursuit is expressly applicable to safety zones, then enforcing safety zone regulations against a vessel outside that zone – but which has deployed its small boats to enter the zone – is an untested but far from unarguable point: Article 111(2), UNCLOS. That said, Russia must then have complied with all the requirements of the law of hot pursuit for any arrest to be valid.

Conversely, the Netherlands will argue that the flagged vessels of all States enjoy freedom of navigation in the EEZ, along with “other internationally lawful uses of the ocean”, so long as they: (a) have “due regard” for coastal State rights and interests and (b) comply with coastal State laws and regulations “adopted in accordance with” UNCLOS.

Certainly, I have heard it alleged that the Russian safety zone around the Prirazlomnaya greatly exceeds the 500 metre maximum normally allowed under Article 60. The Netherlands might thus seek to argue the entire safety zone regime is defective (or, alternatively, that any “hot pursuit” of the Arctic Sunrise was procedurally defective). For its part, Russia is likely to argue that “freedom of navigation” does not encompass lingering in the vicinity of an oil platform and that protests contrary to coastal State safety laws are not an “internationally lawful use” of the ocean. It will certainly be an interesting case.