Arctic Sunrise from ITLOS: the Arctic Surprise and in Search of a Balanced Order

Arctic Sunrise from ITLOS: The Arctic Surprise and in Search of a Balanced Order

Nuwan Peiris Attorney-at-law and State Counsel, Attorney General’s Department, Sri Lanka

Introduction

The recent provisional measures case of the Arctic Sunrise from the Interna tional Tribunal for the Law of the Sea (ITLOS) has undermined the reliability, consistency, and impartiality of the Tribunal’s jurisprudence. In this case, ITLOS ordered all Greenpeace personnel on board the Dutch vessel Arctic Sunrise arrested by Russia to be released on a financial bond, and not on the undertaking to return to face criminal proceedings for a protest against a Russian oil rig on the continental shelf in the Arctic Ocean. The Tribunal also ordered Arctic Sunrise to be released on posting a bond with Russia. Russia protested the Tribunal’s jurisdiction and did not appear before ITLOS. This article provides a brief account of the Arctic Sunrise case. It then pro- ceeds to analyse the majority, separate, and dissenting opinions to determine whether the central issues involved were approached correctly. The Tribunal did not give adequate attention to two central issues. First, all of the judges, including the dissent, overlooked a simple point: does the flag State (or the ship) have exclusive jurisdiction over an offence committed by a person outside the ship since two individuals were trying to scale the platform? Second, this case also highlights the lack of comity towards the Annex VII tribunal and its growing inability to develop jurisprudence under the United Nations Convention on the Law of the Sea (UNCLOS) in a consistent and structured manner.1

Factual Matrix

The ship Arctic Sunrise was detained in the Pechora Sea by the Russian Coast Guard on 19 September 2013 for an attempt by Greenpeace to stage a protest against oil extraction on the offshore, ice-resistant, fixed platform Prirazlomnaya, owned by Gazprom Neft Shelf LLC, in the Barents Sea. The Arctic Sunrise is an

1 United Nations Convention on the Law of the Sea, opened for signature 10 December 1982, 1833 United Nations Treaty. Series 396 (entered into force 16 November 1994) [UNCLOS].

Arctic Sunrise 45 icebreaker, built in 1975, and owned by the Stichting Pheonix, Amsterdam and chartered to Stichting Greenpeace Council, Amsterdam under a ferryboat char- ter.2 It was registered in, and flew the flag of, the Netherlands. At the time of the protest, Greenpeace had been using the vessel for its environmental campaigns since 1995.3 Greenpeace is an international organization that has campaigned for environmental protection the world over for the last 40 years.4 Greenpeace, as the Netherlands’ annexure to the pleadings suggests, started a campaign in 2010 called ‘Save the Arctic’ to ban offshore oil drilling in the Arctic Ocean given its environmentally sensitive character. Two considerations motivated Greenpeace’s campaign. First, harsh climatic conditions render cleaning an oil spill difficult if not impossible. Second, because global warming disproportionately impacts the Arctic, Greenpeace sought to prevent the exploitation of additional fossil fuel reserves, which would exacerbate challenges faced by the region.5 The Prirazlomnaya platform was located in the Pechora Sea on Russia’s continental shelf and within its EEZ.6 Russian authorities declared a safety zone of three nautical miles (NM) around the platform as opposed to the UNCLOS Article 60 requirement of 500 meters.7 Operations on the platform began a few months earlier, after they had been called off due to international protests, including by Greenpeace.8 On 18 September 2013, Arctic Sunrise launched five rigid-hull inflatable boats outside the Prirazlomnaya platform’s three NM safety zone.9 Ten minutes later, the first of five boats approached the oil rig and two of the activists attempted to climb the outside structure of the platform with the objective of unfurling a banner below the main deck.10 Simultaneously, a group of three boats further back towed a ‘safety pod’, a foam tube, towards the platform with the intention of hanging it from the side of the platform. The Russian Coast Guard approached the boat and arrested two individuals, Finnish and Swiss nationals, for attempting to climb the rig, and prevented the boats from

2 Request for provisional measures submitted by the Netherlands, October 21, 2013, para. 10, available online: . 3 Id., para. 2, Annex 2. 4 Id., para. 3, Annex 2. 5 Id., para. 9, Annex 2. 6 Id., para. 7, Annex 2. 7 Id., para. 7, Annex 2. 8 Id., para. 7, Annex 2. 9 Id., para. 11, Annex 2. 10 Id., para. 13, Annex 2.