In August an arbitration award was issued in the case of the ship Arctic Sunrise, involving protests by ecologists on the Pechora Sea defending the Arctic environment. The ship was seized and 30 protesters were arrested by Russian authorities.
Arctic Sunrise Arbitration (Netherlands v Russia), award of 14 August 2015 of arbitral tribunal formed under Annex VII to the UN Convention on the Law of the Sea
For several years Greenpeace has been leading a campaign called “Save the Arctic,” seeking a ban on drilling and industrial fishing in the Arctic and creation of a reserve encompassing uninhabited waters around the North Pole. As part of the campaign, a protest was organised in 2013 near the Prirazlomnaya offshore platform operated by Gazprom Neft Shelf LLC, a subsidiary of the Russian Gazprom group, on the Pechora Sea, the south-eastern portion of the Barents Sea, between continental Russia and Novaya Zemlya.
The protest was aimed at pressuring Gazprom to abandon its plans to mine deposits in the Arctic. During the protest, Greenpeace activists attempted to board the platform. The Russian coast guard intervened and arrested protesters aboard the Dutch-registered ship Arctic Sunrise. The ship was towed to the port at Murmansk and the people on the ship—known as the “Arctic 30”—were charged with piracy as part of a criminal organisation. Later the charges were downgraded to hooliganism when it was found that their actions did not qualify as piracy on the high seas. Then under an amnesty resolution the criminal case was dropped.
Arbitration was commenced by the Netherlands as the flag state of the Arctic Sunrise, alleging that the actions taken against the ship and its crew by the authorities of the Russian Federation violated international law. The arbitration was conducted pursuant to Annex VII of the United Nations Convention on the Law of the Sea and administered by the Permanent Court of Arbitration in The Hague. One of the five arbitrators, Prof. Janusz Symonides, was from Poland.
Russia refused to participate in the arbitration.
On 14 August 2015 the arbitral tribunal issued an award on the merits of the dispute. The arbitrators unanimously held that the tribunal had jurisdiction over all of the claims asserted by the Netherlands and that all of the claims were admissible. The tribunal also ruled that seizure of the Arctic Sunrise and arrest of its crew were done without the prior consent of the Netherlands, and the seizure, arrest, and commencement of criminal proceedings against the Arctic 30 violated Russia’s duties to the Netherlands as the ship’s flag state under Art. 56(2), 58(1), 58(2), 87(1)(a) and 92(1) of the convention.
The award in the Arctic Sunrise case is one of the most interesting rulings in recent times concerning the issue of environmental protection and its connection with the law of the sea and international law more generally. The ruling is sure to be cited frequently by international law enforcement authorities.
The particular thoroughness of the tribunal’s analysis is partly attributable to Russia’s passive attitude toward the allegations and its refusal to participate in the proceeding or appoint counsel. Under these circumstances, hearing from only one side of the dispute, the arbitrators bent over backwards to provide an objective and fair analysis of all aspects of the case that might speak to Russia’s advantage.
Essence of the dispute
The Prirazlomnaya platform is located in the “exclusive economic zone” of the Russian Federation. Under the convention, the exclusive economic zone is not part of the territory of the coastal state, but the coastal state may exercise certain entitlements within the zone. The coastal state has sovereign rights in the exclusive economic zone for the purpose of exploring, exploiting, conserving and managing the natural resources of the waters above the seabed, as well as resources of the seabed and its subsoil.
But a coastal state exercising its rights within the exclusive economic zone has an obligation to respect the rights of other states. Under the convention, within the exclusive economic zone, all states, whether coastal or land-locked, enjoy freedoms such as navigation and overflight and laying of submarine cables and pipelines, and other internationally lawful uses of the sea, such as freedoms associated with the operation of ships. The flag state exercises exclusive jurisdiction over ships located in the exclusive economic zone. Thus, as a rule jurisdiction over the Arctic Sunrise should be exercised by Dutch authorities. Russian authorities could act with respect to the Dutch-registered ship only in strictly defined circumstances, which the tribunal did not find to exist in this case.
Who’s the pirate?
One of the most interesting passages in the justification for the award concerns the legal nature and bounds of conducting protests at sea. The arbitrators found that protesting is a way of using the sea that is consistent with international law. It is a right closely tied to the freedom of navigation but derived from the freedom of speech and the freedom of assembly. But the right to protest is not unlimited. The limitations arise under standards of international law. In any case, however, it is the flag state—here, the Netherlands—that has exclusive jurisdiction over a ship navigating in a coastal state’s exclusive economic zone. The coastal state may exercise jurisdiction over foreign ships, including taking law enforcement measures, only with the consent of the flag state, apart from exceptions specified in the Convention on the Law of the Sea. After an exhaustive analysis of the exceptions, the tribunal found that there was no legal basis to seize the ship and arrest the crew.
During the arbitration, the Netherlands urged the tribunal to find that Russia had violated the International Covenant on Civil and Political Rights. But the tribunal held that even though the Convention on the Law of the Sea gave it the right to apply other standards of international law that are not inconsistent with the convention, it could not do so directly in this case. The covenant uses a separate enforcement regime which could not be replaced here by the tribunal. Although the International Covenant on Civil and Political Rights could not be applied directly, the standards set forth in the covenant could be applied indirectly by way of interpretation of the Convention on the Law of the Sea.
Because there are limits on the right of protest, the tribunal found that it had to consider whether the measures taken by the Russian Federation were justified by the need to protect Russia’s sovereign rights to exploit the resources in the exclusive economic zone. In the tribunal’s view, the coastal state may apply such measures, but they must be subject to tests of “reasonableness, necessity, and proportionality.” The tribunal also pointed out that states are required to “tolerate some level of nuisance through civilian protest,” so long as it does not interfere with the exercise of their sovereign rights. Under the facts of this case, the tribunal held that Russia’s actions were unwarranted because “at the time it was boarded and seized, the Arctic Sunrise was no longer engaged in actions that could potentially interfere with the exercise by Russia of its sovereign rights as a coastal State.”
Given the dynamic growth of mining activity in the Arctic, it must be expected that protests will intensify and spread to the sea. The award in the Arctic Sunrise arbitration is a reminder to states involved in exploitation of resources in the Arctic that it is not an area where they are free to do as they wish, but is governed by legal standards adopted by states as members of the international community, and all states must respect those standards.
Dominik Wałkowski, Environmental Law Practice, Wardyński & Partners