On November 22 the International Tribunal for the Law of the Sea (ITLOS) in Hamburg handed down its verdict in the case «the Kingdom of Netherlands versus the Russian Federation». (1) On September 18 Greenpeace activists tried to board the Prirazlomnaya oil platform belonging to Gazprom-Neft-Shelf to stage an action of protest against oil production in the Arctic. The next day Russian border guards boarded the ship. The vessel under the Dutch flag was towed to Murmansk, where thirty activist were arrested under the charges of piracy (later the ruling was changed from to charge the activists with hooliganism)… (2)
Let’s make a reservation from the start, this decision is temporary and is related to provisional measures. Going to court the Netherlands pushed the demand to release the ship detained by Russia.
On November 22 the International Tribunal for the Law of the Sea handed down the ruling that says that Russia «shall immediately release the vessel Arctic Sunrise and all persons who have been detained upon the posting of a bond or other financial security by the Netherlands which shall be in the amount of 3,600,000 euros, to be posted with the Russian Federation in the form of a bank guarantee». The Russian Federation is to guarantee the Arctic Sunrise and the crew will leave the territory under its jurisdiction. (3)
The International Tribunal for the Law of the Sea was created in accordance with the United Nations Convention on the Law of the Sea (UNCLOS), which is also called the Law of the Sea Convention or the Law of the Sea treaty, it cannot spread its jurisdiction on any state. It has a right to consider the cases of the states which are party to the convention and the ones who have not made any reservations concerning the Tribunal.
Russia singed the UN Law of the Sea Convention in 1982 but ratified it much later in 1997 inserting a special reservation stipulating that the Commenting on the Sea Tribunal’s jurisdiction is excluded in certain cases. (4)
Commenting on the verdict of the International Tribunal for the Law of the Sea, Russian Ministry of Foreign Affairs spokesman said the Arctic Sea case is beyond the court’s jurisdiction. He pointed out that the Russian Federation has not taken part in the judicial proceedings and does not consider the situation as a dispute between the Kingdom of Netherlands and the Russian Federation related to the rights and obligations of Russia as a littoral sate acting within the limits of its exclusive economic zone. (5)
The statement is legally impeccable, but in contains one inaccuracy. To some extent the Russian Federation did take part in the judicial proceedings – it had a Russian representative in the composition of Tribunal. (6) Russia judge Vladimir Goligyn voted against the ruling and added his opinion expressing discontent as a supplement to the general ruling of Tribunal. There was one more Tribunal member to say no – the representative of Ukraine judge Marzian Kulik.
The judicial foundation of the Dutch claim filed in the International Tribunal to the Law of the Sea was extremely weak. For instance, the main argument was the affirmation that Russia violated the freedom of seas. Obviously the freedom of seas cannot be a defining argument for freeing from responsibility a ship that violates the rules.
The other example of evidently flawed position of the Netherlands is the affirmation that Russia has no right to arrest the carrier vessel (a mother ship) launching the boats attacking the platform because the vessel was positioned beyond the security zone at the distance exceeding 500 meters from the drilling platform. The argument sounds strange. One gets the impression the Dutch were not attentive enough while reading the text of United Nations 1982 Maritime Convention. It puts it straight that the state the shore line belongs to has a right of hot pursuit if there is a solid ground to believe a foreign ship breached its national laws and regulations (part 1 article 111 of the 1982 Convention). It says the hot pursuit of a foreign ship may be undertaken when the competent authorities of the coastal State have good reason to believe that the ship has violated the national laws and regulations. Such pursuit must be commenced when the foreign ship or one of its boats is within the internal waters, the archipelagic waters, the territorial sea or the contiguous zone of the pursuing State, and may only be continued outside the territorial sea or the contiguous zone if the pursuit has not been interrupted. It is not necessary that, at the time when the foreign ship within the territorial sea or the contiguous zone receives the order to stop, the ship giving the order should likewise be within the territorial sea or the contiguous zone. If the foreign ship is within a contiguous zone, as defined in article 33, the pursuit may only be undertaken if there has been a violation of the rights for the protection of which the zone was established. It applies to zone or on the continental shelf, including safety zones around continental shelf installations, of the laws and regulations of the coastal State applicable in accordance with this Convention to the exclusive economic zone or the continental shelf, including such safety zone. The right of hot pursuit shall apply mutatis mutandis to violations in the exclusive economic zones. (part 2 article 111). The Dutch pretended to be not aware of these norms.
I’m sorry to say this legally unfounded position met the overwhelming support in the Tribunal. The disposition decision is not taken yet; it may not be taken at all. But the very fact that the Netherlands’ claim was accepted while the Tribunal had no jurisdiction to consider the case says much about it.
There is one more circumstance that deteriorates the situation. The Tribunal has handed down a verdict going beyond its competence. The United Nations Convention on the Law of the Sea of 10 December 1982 establishes two cases when a bail payment is possible in accordance with the article 73 and article 226. None of [them can be applied in the case of the Arctic Sunrise.
This time it’s not the fault of the Netherlands but rather of the Tribunal itself. To consider a case (not handing down the ruling, but to launch the proceedings!) the Tribunal had to first determine if the preliminary conditions were carried out by the claimant. The 1982 Sea Convention says a state has to use other means of dispute settlement, including talks before the case is transferred to court. Here is the rub. No talks on the Arctic Sunrise dispute had been held between the Netherlands and Russia. The Netherlands claims the issue had been on the agenda while meeting the Russian officials, but it has no relation to what is implied by the United Nations Convention on the Law of the Sea. The Tribunal faced a simple task – it had to establish the obvious fact that there had been no talks and the condition for taking on the case had not been fulfilled. But this time the Tribunal pretended it didn’t understand what it had to do.
The reports of International sea law have already started to appear in the media affirming that Russia is allegedly to carry out the International Tribunal’s decision of November 22. (7) These affirmations have no ground whatsoever. Russia has recognized the jurisdiction of the Tribunal with strings attached. The conditional provisions excluded such cases as the incident with the Arctic Sunrise. The corresponding Russian Ministry of Foreign Affairs statement says that the Russian Federation will no doubt thoroughly study the ruling of the International Tribunal for the Law of the Sea and define its stance. But while making the position precise one thing should definitely be taken into consideration – this is the second time Russia is taken to an international court that has no jurisdiction to consider the case. The similar situation took place when the United Nations International Court of Justice in Hague took up the case Georgia versus Russia (in connection with the Georgia’s aggression against Russia on August 2008). When such a thing happens the second time is not even a system, it’s a tendency.
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