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Provisional Measures and the MV Arctic Sunrise

  • Douglas Guilfoyle (a1) and Cameron A. Miles (a2)

Extract

On September 18, 2013, several Greenpeace activists, bearing ropes and posters, attempted to board a Gazprom oil platform, the Prirazlomnaya, in the Exclusive Economic Zone (EEZ) of the Russian Federation. They did so in inflatable craft launched from a Greenpeace vessel, the Netherlands-flagged MV Arctic Sunrise. They were soon arrested by the Russian Coast Guard. The following day, armed agents of the Russian Federal Security Service boarded the Arctic Sunrise itself from a helicopter, arresting those on board. The Netherlands was apparently informed of Russia’s intention to board and arrest the vessel shortly after the original boarding of the platform. Over the next four days, the vessel was towed to Murmansk. Russian authorities charged the thirty detained persons (the so-called Arctic 30) with “piracy of an organized group.” Although President Vladimir Putin acknowledged that the protesters were “obviously... not pirates,” he also noted that “formally, they tried to seize our platform.” On October 4, the Netherlands announced that, under Annex VII of the UN Convention on the Law of the Sea (UNCLOS), it had commenced arbitration proceedings against Russia over the detention of the Arctic Sunrise and the legality of its seizure. On October 21, the Netherlands filed with the International Tribunal for the Law of the Sea (ITLOS) a request for the prescription of provisional measures pending the constitution of the Annex VII arbitration tribunal.

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References

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1 John Dunford, Arctic Sunrise Action Timeline (Sept. 24, 2013), at http://www.greenpeace.org/new-zealand/en/blog/arctic-sunrise-action-timeline/blog/46743/; see Sandford, Daniel, On Russia’s Controversial Arctic Oil Rig Prirazlomnaya, BBC News (Oct. 7, 2013), at http://www.bbc.co.uk/news/world-europe-24427153.

2 Verbatim Record, “Arctic Sunrise” (Neth. v. Russ.), it los Case No. 22 (Nov. 6, 2013), Doc. itlos/PV13/C22/1/Rev.1/6, at 13. All judgments, orders, and other documents of the International Tribunal for the Law of the Sea (itlos) cited in this article can be found on the Tribunal’s website, http://www.itlos.org.

3 Verbatim Record, supra note 2, at 3.

4 Myers, Steven Lee & Roth, Andrew, Put in Defends Seizure of Activists’ Ship but Questions Piracy Charges, N.Y. Times, Sept. 25, 2013, at A9 .

5 UN Convention on the Law of the Sea, opened for signature Dec. 10, 1982, 1833 UNTS 397 [hereinafter unclos].

6 Greenpeace Press Release, Greenpeace International Applauds Dutch Arbitration over Arctic 30 (Oct. 4, 2013), at http://www.greenpeace.org/usa/en/media-center/news-releases/Greenpeace-International-applaudsDutch-arbitration-over-Arctic-30/.

7 Walker, Shaun & Jones, Sam, Arctic 30: Russia Changes Piracy Charges to Hooliganism, Guardian (Oct. 23, 2013), at http://www.theguardian.com/environment/2013/oct/23/arctic-30-russia-charges-greenpeace; Greenpeace Arctic Activists Face Further Russian Charges, Guardian, Nov. 8, 2013, at 20.

8 “Arctic Sunrise” (Neth. v. Russ.), ITLOS Case No. 22, Provisional Measures, para. 9 (Nov. 22, 2013) (quoting November 22, 2013, note verbale from the Embassy of the Russian Federation in the Federal Republic of Germany to ITLOS)

9 This language from Russia’s declaration of March 12, 1997, made upon ratification of UNCLOS, at http://www.un.org/depts/los/convention_agreements/convention_declarations.htm, is first quoted in “Arctic Sunrise, “ supra note 8, at paragraph 9.

10 “Arctic Sunrise,” supra note 8, para. 96.

11 Russian Parliament Approves Amnesty for Prisoners, BBC News (Dec. 18, 2013), at http://www.bbc.co.uk/news/world-europe-25433426; Russia Drops First Greenpeace Arctic 30 Case, BBC News (Dec. 24, 2013), at http://www.bbc.co.uk/news/world-europe-25504016.

12 France threatened nonappearance in prompt release proceedings in “Grand Prince,” as it declared the proceedings without object (as the vessel had already been forfeited under French law). It did, however, attend a hearing on the basis that it could contest both jurisdiction and admissibility. “Grand Prince” (Belize v. Fr.), ITLOS Case No. 8, Prompt Release (Apr. 20, 2001).

13 See generally Symposium, The International Tribunal for the Law of the Sea: Establishment and “Prompt Release” Procedures, 11 Int’l J. Mar. & Coastal L. 137 (1996); Rothwell, Don & Stephens, Tim, Illegal Southern Ocean Fishing and Prompt Release: Balancing Coastal and Flag State Rights and Interests, 53 Int’l & Comp. L.Q. 171 (2004); Mensah, Thomas, The Tribunal and the Prompt Release of Vessels, 22 Int’l J. Mar. & Coastal L. 425 (2007); Anderson, David H., Prompt Release of Vessels and Crews, in Max Planck Encyclopedia of Public International Law (Wolfrum, Rôdiger ed., online ed. 2008), at http://www.mpepil.com.

14 UNCLOS, supra note 5, Art. 292.

15 See further Franckx, Erik, “Reasonable Bond” in the Practice of the International Tribunal for the Law of the Sea, 32 Cal. W. Int’l L. J. 303 (2002).

16 See, e.g., M/V “Saiga” (St. Vincent v. Guinea), ITLOS Case No. 1, Prompt Release (Dec. 4, 1997); “Grand Prince,” supra note 12; “Volga” (Russ. v. Austl.), ITLOS Case No. 11, Prompt Release (Dec. 23, 2002); “Hoshinmaru” (Japan v. Russ.), ITLOS Case No. 14, Prompt Release (Aug. 6, 2007); “Tomimaru” (Japan v. Russ.), ITLOS Case No. 15, Prompt Release (Aug. 6, 2007).

17 See section “The Significance of Russia’s Nonappearance” in part II.

18 Mendelson, Maurice, Interim Measures of Protection in Cases of Contested Jurisdiction, 1972–73 Brit. Y.B. Int’l L. 259, 259 ; Oxman, Bernard, Jurisdiction and the Power to Indicate Provisional Measures, in The International Court of Justice at a Crossroads 323, 324–26 (Damrosch, Lori Fisler ed., 1987); Chester Brown, A Common Law of International Adjudication 121 (2007). On provisional measures under UNCLOS (Article 290, in particular), see Wolfrum, Rôdiger, Provisional Measures of the International Tribunal for the Law of the Sea, in The International Tribunal for the Law of the Sea: Law and Practice 173 (Rao, P. Chandrasekhara & Khan, Rahmatullah eds., 2001); Mensah, Thomas, Provisional Measures in the International Tribunal for the Law of the Sea (ITLOS), 62 Heidelberg J. Int’l L. 43 (2002); Shabtai Rosenne, Provisional Measures in International Law: The International Court of Justice and the International Tribunal for the Law of the Sea (2005); Natalie Klein, Dispute Settlement in the UN Convention on the Law of the Sea 59–85 (2005); Tomka, Peter & Hernández, Gleider I., Provisional Measures in the International Tribunal for the Law of the Sea, in Coexistence, Cooperation and Solidarity: Liber Amicorum Rôdiger Wolfrum (Hestermeyer, Holger P. ed., 2012).

19 Compare the Locarno Treaties of 1925 (for example, the Arbitration Convention Between Germany and France, Oct. 16, 1925, 54 LNTS 317), which in common Article 19 permitted the Permanent Court of International Justice to award provisional measures in place of an unconstituted conciliation commission. See also Edward Dumbauld, Interim Measures of Protection in International Controversies 127 (1932).

20 Mensah, supra note 18, at 46–47.

21 See also Southern Bluefin Tuna (N.Z. v. Japan; Austl. v. Japan), ITLOS Case Nos. 3 & 4, Provisional Measures (Aug. 27, 1999); MOX Plant (Ir. v. UK), ITLOS Case No. 10, Provisional Measures (Dec. 3, 2001); Land Reclamation by Singapore in and Around the Straits of Johor (Malay. v. Sing.), ITLOS Case No. 12, Provisional Measures (Oct. 8, 2003); “ARA Libertad” (Arg. v. Ghana), ITLOS Case No. 20, Provisional Measures (Dec. 15, 2012). Provisional measures have been considered by ITLOS under UNCLOS Article 290(1) only in two cases: M/V “Saiga” (No. 2) (St. Vincent v. Guinea), ITLOS Case No. 2, Provisional Measures (Mar. 11, 1998), and M/V “Louisa” (St. Vincent v. Spain), ITLOS Case No. 18, Provisional Measures (Dec. 23, 2010). The Annex VII tribunal in MOX Plant also exercised its power under UNCLOS Article 290(1). MOX Plant (Ir. v. UK), Order No. 3 (Perm. Ct. Arb. June 24, 2003).

22 On similarities in practice between the ICJ and ITLOS (and other international tribunals) in awarding interim relief, see Miles, Cameron A., The Influence of the International Court of Justice on the Law of Provisional Measures Before International Courts and Tribunals: A “Uniform” Approach?, in A Farewell to Fragmentation: Reassertion and Convergence in International Law (Andenas, M. & Bjørge, E. eds., forthcoming).

23 Rosenne, supra note 18, at 62.

24 See also 1 United Nations Convention on the Law of the Sea: A Commentary 53–59 (Shabtai Rosenne & Louis Sohn eds., 1989).

25 Anglo-Iranian Oil (UK v. Iran), Provisional Measures, 1951 ICJ Rep. 89, 92–93 (July 5); id. at 96 (Winiarski & Badawi Pasha, JJ., dissenting). See generally Mendelson, supra note 18; Oxman, supra note 18; Rosenne, supra note 18, ch. 4; Jerome. B. Elkind, Interim Protection: A Functional Approach, ch. 7 (1981); Jerzy Sztucki, Interim Measures in the Hague Court: An Attempt at a Scrutiny, ch. 5.1 (1983).

26 LaGrand (Ger. v. U.S.), 2001 ICJ Rep. 466, paras. 101–03 (June 27); see also Frowein, Joachim A., Provisional Measures by the International Court of Justice—The LaGrand Case , 62 Heidelberg J. Int’l L. 54 (2002); Jennings, Robert, The LaGrand Case , 1 Law & Prac. Int’l Cts. & Tribunals 13 (2002). The binding nature of such measures is also reflected in the wording of paragraphs (1) and (3)–(6) of UNCLOS Article 290, which refer to the “prescription” of provisional measures, as opposed to their “indication.”

27 Wolfrum, supra note 18, at 175–78.

28 There is, however, a reference to “serious harm” in the context of the marine environment in UNCLOS Article 290(1) and a further oblique reference to the “urgency of the situation” in paragraph (5) of the same article.

29 Both ITLOS and Annex VII tribunals have avoided in-depth consideration of irreparable prejudice and focused on urgency. Where it does appear in ITLOS jurisprudence, irreparable prejudice is discussed only in passing. See M/V “Louisa,” supra note 21, para. 72; Land Reclamation by Singapore in and Around the Straits of Johor, supra note 21, para. 72. See, however, the discussions in individual opinions. E.g., M/V “Saiga” (No. 2), supra note 21, Sep. Op. Liang, J., para. 28; Southern Bluefin Tuna, supra note 21, Sep. Op. Liang, J., paras. 3–5; id., Sep. Op. Treves, J., para. 5; Land Reclamation by Singapore in and Around the Straits of Johor, supra note 21, Sep. Op. Chandrasekhara Rao, J., para. 28; id., Sep. Op. Cot, J., para. 4; “ARA Libertad,” supra note 21, Decl. Paik, J., para. 1. Parties have continued to frame their applications in terms of irreparable prejudice. See, e.g., Request for Provisional Measures Submitted by Malaysia, para. 15; Land Reclamation by Singapore in and Around the Straits of Johor, supra note 21; Request for Provisional Measures Submitted by Argentina, para. 29; “ARA Libertad,” supra note 21. See also Miles, supra note 22, sec. III.C.2.

30 M/V “Saiga” (No. 2), supra note 21.

31 MOX Plant, Provisional Measures, supra note 21, para. 67.

32 MOX Plant, Order No. 3, supra note 21, para. 58 (citing as an example Certain Criminal Proceedings in France (Congo v. Fr.), Provisional Measures, 2003 ICJ Rep. 102, paras. 34–35 (June 17)).

33 M/V “Louisa,” supra note 21, para. 72 (“[I]n the circumstances of this case, the Tribunal does not find that there is a real and imminent risk that irreparable prejudice may be caused to the rights of the parties in dispute....”).

34 See supra note 9.

35 See “Arctic Sunrise,” supra note 8, para. 9 (quoting November 22, 2013, note verbale from the Embassy of the Russian Federation in the Federal Republic of Germany to ITLOS); see also Arctic Sunrise Case: Russia to Boycott International Maritime Tribunal over Greenpeace Arrests, Russia Today (Oct. 23, 2013), at http://rt.com/news/green peace-arctic-sunrise-court-617/. For the original Russian statement from the Ministry of Foreign Affairs of the Russian Federation, Oct. 23, 2013, see http://www.mid.ru/brp_4.nsf/newsline/299522E0AC241E4744257C0D 0021F8D8.

36 UNCLOS, supra note 5, Art. 289(1)(b) (emphasis added).

37 See Request for Provisional Measures Submitted by the Netherlands, paras. 15, 20 (Oct. 21, 2013), “Arctic Sunrise,” supra note 8, indicating the Dutch case hinged on UNCLOS Articles 56(2), 58, 87(1)(a), and 110 in alleging that Russia, “in boarding, investigating, inspecting and detaining the ‘Arctic Sunrise’”without the Netherlands’ consent, failed to respect its “freedom of navigation and its right to exercise jurisdiction over the ‘Arctic Sunrise.’”

38 “Arctic Sunrise,” supra note 8, paras. 39–45. It is notable that the Russian Judge Golitsyn did not contest this holding on the effects of the Russian statement. Id., Diss. Op. Golitsyn, J., paras. 2–14.

39 “Arctic Sunrise,” supra note 8, para. 48 (referring to Fisheries Jurisdiction (UK v. Ice.), Interim Protection, 1972 ICJ Rep. 12, para. 11 (Aug. 17); Fisheries Jurisdiction (Ger. v. Ice.), Interim Protection, 1972 ICJ Rep. 30, para.11 (Aug. 17); Nuclear Tests (Austl. v. Fr.), Interim Protection, 1973 ICJ Rep. 99, para. 11(June 22); Nuclear Tests (N.Z. v. Fr.), Interim Protection, 1973 ICJ Rep. 135, para. 12 (June 22); Aegean Sea Continental Shelf (Greece v.Turk.), Interim Protection, 1976 ICJ Rep. 3, para.13 (Sept. 11); United States Diplomatic and Consular Personnel in Tehran (U.S. v. Iran), Provisional Measures, 1979 ICJ Rep. 7, paras. 9, 13 (Dec. 15)).

40 “Arctic Sunrise,” supra note 8, para. 51 (referring to Nuclear Tests (Austl. v. Fr.), supra note 39, para. 24).

41 Id., para. 52.

42 Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), 1986 ICJ Rep. 14, para. 28 (June 27).

43 “Arctic Sunrise,” supra note 8, para. 49.

44 Id., para. 50.

45 Id., para. 54.

46 Id., Decl. Anderson, J. ad hoc, para. 2.

47 Id., Sep. Op. Wolfrum & Kelly, JJ., para. 5.

48 Id., para. 6 (referring to Fitzmaurice, Gerald, The Problem of the ‘Non-appearing’ Defendant Government, 1980 Brit. Y.B. Int’l L. 89, 115).

49 “Arctic Sunrise,” supra note 8, para. 56.

50 Id., para. 57.

51 Id., para. 87.

52 Id., para. 88.

53 Id., para. 89.

54 Anglo-Iranian Oil, supra note 25, at 96 (Winiarski & Badawi Pasha, JJ., dissenting).

55 Aegean Sea Continental Shelf, supra note 39, para. 31.

56 Id., para. 33.

57 Id., para. 29.

58 “Arctic Sunrise,” supra note 8, Sep. Op. Wolfrum & Kelly, JJ., para. 4.

59 Id., Sep. Op. Paik, J., paras. 1–7.

60 Any measures so ordered, however, may have an effect beyond this point. See Land Reclamation by Singapore in and Around the Straits of Johor, supra note 21, para. 69.

61 “Arctic Sunrise,” supra note 8, Diss. Op. Kulyk, J., paras. 3–7.

62 M/V “Louisa,” supra note 21, paras. 74–75; see also “Arctic Sunrise,” supra note 8, Diss. Op. Kulyk, J., paras. 9–10.

63 M/V “Saiga” (No. 2), supra note 21, Merits (July 1, 1999).

64 “Arctic Sunrise,” supra note 8, Sep. Op. Jesus, J., para. 7(a).

65 Id., para. 7(b).

66 Id., para. 7(c)(i), (ii).

67 Id., paras. 9, 10.

68 Id., para. 11. Judge Jesus goes on to conclude, however, that the correct result would have been release without bond. Given his reasoning, this conclusion is hard to follow.

69 Id., para. 15(a).

70 United States Diplomatic and Consular Staff in Tehran, Provisional Measures, supra note 39.

71 Vienna Convention on Diplomatic Relations, June 24, 1964, 500 UNTS 95.

72 See, for example, “Grand Prince,” supra note 12, Sep. Op. Anderson, J., and the French submissions in the verbatim record of “Monte Confurco” (Sey. v. Fr.), ITLOS Case No. 6: Doc. ITLOS/PV.00/5, at 5–6, 12 (Dec. 7, 2000), and Doc. ITLOS/PV.00/7, at 4 (Dec. 8, 2000) (arguing that prompt release procedures were being used to undermine national law enforcement measures regarding illegal fishing).

73 Which was quickly paid. See Kingdom of the Netherlands, Report on Compliance with the Provisional Measures Prescribed by the Tribunal on 22 November 2013 in the Case Concerning the ‘Arctic Sunrise’ (Dec. 2, 2013), “Arctic Sunrise,” supra note 8.

74 The ICJ has never seen fit to order a bond by way of interim measures. Certain investor-state arbitration tribunals have been willing to consider such a measure in principle by way of security for costs but have never actually ordered one. See, e.g,. Grynberg v. Grenada, icsid Case No. ARB/10/6, Decision on Respondent’s Application for Security for Costs, paras. 5.16, 5.21 (Oct. 14, 2012); see also Mouawad, C. & Silbert, E., A Guide to Interim Measures in Investor-State Arbitration, 29 Arb. Int’l 381, 414–16 (2013).

75 Brown, supra note 18, at 146; see also Greig, D. W., The Balancing of Interests and the Granting of Interim Relief by the International Court, 1987 Australian Y.B. Int’l L. 108 .

76 Factory at Chorzów (Indemnities) (Ger. v. Pol.), 1927 PCIJ (ser. A) No. 12, at 10. The German request was based on the Permanent Court of Justice’s earlier finding in Certain German Interests in Polish Upper Silesia (Ger. v. Pol.), 1926 PCIJ (ser. A) No. 7, that Poland had expropriated industrial properties at Chorzów in violation of the Convention Concerning Upper Silesia, May 15, 1922, 9 LNTS 466. Subsequent phases of the proceeding concerned the question of quantum, but on any reading, Germany was entitled to a certain minimum amount. Germany requested the award of this amount as a provisional measure and was duly rebuffed. See also Miles, Cameron A., The Origins of the Law of Provisional Measures Before International Courts and Tribunals, 73 Heidelberg J. Int’l L. 615, 656–58 (2013).

77 United States Diplomatic and Consular Personnel in Teheran, supra note 39, para. 28.

78 International courts and tribunals have been lucky (thus far) to escape criticism in this respect. In Tehran Hostages, supra note 70, the order was ignored, and in any event, the United States eventually prevailed on the merits. In “ARA Libertad” the parties settled the dispute before the Annex VII tribunal could determine the merits. “ARA Libertad” (Arg. v. Ghana), Termination Order (Perm. Ct. Arb. Nov. 11, 2013).

79 “Arctic Sunrise,” supra note 8, para. 87.

80 See, for example, the declaration of the Annex VII tribunal in MOX Plant, Order No. 3, supra note 21, para. 19. Compare, however, the judgment of ITLOS in M/V “Saiga” (No. 2), Merits, supra note 21, paras. 155–56. See also Bartels, Lorand, Jurisdiction and Applicable Law Clauses: Where Does a Tribunal Find the Principal Norms Applicable to the Case Before It?, in Multi-sourced Equivalent Norms in International Law 115 (Broude, Tomer & Shany, Yuval eds., 2011).

81 Verbatim Record, supra note 2, at 18.

82 M/V “Saiga” (No. 2), Merits, supra note 21, para. 155; id., paras. 156 –59.

83 Guyana v. Suriname, Award, para. 406 (Perm. Ct. Arb. Sept. 17, 2007). Suriname’s extensive arguments that the Tribunal had no such jurisdiction were rejected. 1 Rejoinder of Suriname, paras. 4.5–.11 (Sept. 1, 2006), Guyana v. Suriname, supra; Transcript of Public Hearing, at 716–17 (Dec. 13, 2006), Guyana v. Suriname, supra.

84 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosn. & Herz. v. Serb. & Mont.), 2007 ICJ Rep. 43, para. 149 (Feb. 26) (emphasis added).

85 Contra Armed Activities in the Territory of the Congo (Dem. Rep. Congo v. Uganda), 2005 ICJ Rep. 168, 334, paras. 37–41 (Dec. 19) (sep. op. Simma, J.) (arguing certain core human rights, binding erga omnes, are always justiciable by an international court otherwise having jurisdiction).

86 Greenpeace Denies “Arctic 30” Group Were Ill-Prepared, BBC News (Nov. 23, 2013), at http://www.bbc.co.uk/news/uk-25065052; Darby, Andrew, Greenpeace Activist Colin Russell Granted Bail, Age (Nov. 28, 2013), at http://www.theage.com.au/national/greenpeace-activist-colin-russell-granted-bail-20131128-2yeh9.html.

87 Putin, Vladimir, A Plea for Caution from Russia: What Putin Has to Say to Americans About Syria, N.Y. Times, Sept. 11, 2013, at A31 .

88 See the proceedings referred to in note 16.

89 Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Geor. v. Russ.), Preliminary Objections, 2011 ICJ Rep. 70 (Apr. 1).

90 “Arctic Sunrise,” supra note 8, Sep. Op. Jesus, J., para. 15.

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