Assessment under international law

Water and Ocean Law in Times of Climate Change
Utrecht, 31 October 2013-1 November 2013
The Arctic Sunrise incident: The potential and limits of
international law
Alex Oude Elferink
Netherlands Institute for the Law of the Sea and
Utrecht Centre for Water, Oceans and Sustainability Law
School of Law, Utrecht University, The Netherlands
K.G. Jebsen Centre for the Law of the Sea
Faculty of Law, Tromsø University, Norway
Outline presentation
Steps taken by the authorities of the Russian Federation
Assessment under international law
The arbitral procedure started by the Netherlands and the Russian
Federation’s response
• The interaction between international law and national law
• Concluding remarks
Steps taken by the authorities of the Russian Federation
• Protest of Greenpeace concerning Prirazlomnaya using Arctic Sunrise
• Boats (RHIBs) of Arctic Sunrise inside safety zone at Prirazlomnaya
• Arctic Sunrise subsequently ordered by Coast Guard not to take RHIBs on
board. Coast Guard indicates that it intends to board the Arctic Sunrise for
inspection, stating that action RHIBs constitutes terrorism and captain
ordered to stop (06:28, 18 September 2013)
• Coast Guard vessel fires number of warning shots
• Attempt to board the Arctic Sunrise at 07:49, 18 September 2013;
• Arctic Sunrise later moves further from platform upon request Coast Guard
• Arctic Sunrise boarded next day from helicopter outside safety zone but in
the exclusive economic zone of the Russian Federation
• Crew and vessel detained; crew charged under national law
Assessment under international law
• Attempted boarding on 18 September 2013 possibly in accordance with
international law
– Russian Federation has exclusive jurisdiction over Prirazlomnaya
– RHIBs at Prirazlomnaya; constructive presence of Arctic Sunrise
• Subsequent boarding likely not in accordance with international law
– Arctic Sunrise entitled to freedom of navigation
– In principle only the Netherlands as flag State entitled to exercise
– No longer a situation of hot pursuit starting from safety zone of
– No other basis for authorities Russian Federation to visit the Arctic
Sunrise or take further measures
Arbitral procedure under UNCLOS
• UNCLOS provides for unilateral submission of disputes to third party
compulsory dispute settlement
• Arbitration initiated by the Netherlands on 4 October 2013
– Boarding and other actions Russian Federation breach of obligations in
relation to Netherlands (freedom of navigation)
– Actions have to cease; assurances of non-repetition
– Reparation
• Request for provisional measures from ITLOS on 21 October 2013
– Asked among others for release of vessel and crew and suspension of
judicial and administrative procedures
• Russian Federation does not accept the arbitration procedure and does not
intend to participate in proceedings at ITLOS
– Based on declaration excluding certain disputes; relevance dubious
– Alternative would have been to raise preliminary objectives
Interaction between international law and
national law
• Focus on breach of international law obligations by Russian Federation by
Greenpeace and others
• May be largely irrelevant for prosecution under national law; illegality of
arrest under international law does not act as a bar to prosecution
• Dispute may only be submitted to arbitration after exhaustion of local
remedies where this is required by international law (UNCLOS, art. 295)
– Does not apply to extent that there is a direct breach of obligation
owned to the Netherlands
Concluding remarks
• Case raises critical question about regime of navigation in exclusive
economic zone
– Prompt release of vessels not envisaged in this case; will it be accorded
as a provisional measure?
• How will national procedure proceed?
• Non-participation of Russian Federation in arbitration and provisional
measures proceedings
– Does not stop the procedure but can be expected to raise issue of
– Negative impact on UNCLOS and its dispute settlement regime?
– Does it make a settlement out of court more difficult?
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