укр eng рус est


Sea Battle


Dmytro Shemelin , Lawyer at Ilyashev & Partners Law Firm
Source: The Yurydychna Praktyka

Disputes concerning actions of the RF law enforcement bodies on the sea can not be excluded from the jurisdiction of international tribunals

In September 2013, the Dutch ship Arctic Sunrise with the Greenpeace activists on board approached the Russian oil platform “Prirazlomnaya” in the Pechora Sea. Using inflatable boats and climbing equipment, the activists tried to land on a platform, but were driven off, and two of them were detained. The next day, a Russian border guard ship “Ladoga” caught Arctic Sunrise, detained the ship crew and towed the ship to Murmansk. The activists spent several months in prison and were released on bail and later amnestied.
The request of the Netherlands for arbitration in connection with the illegal seizure of the ship was sent to the Embassy of the Russian Federation within a month of detention when the Greenpeace activists were still behind the bars. At first, Russia refused participation in the case because, in its opinion, the arbitral tribunal had no jurisdiction in the dispute. However, at the end of the process the Foreign Ministry could not stand still, and two weeks before the decision presented its informal comments on the merits.
The awards in the case of Arctic Sunrise are interesting in several respects.

Reservation outside the territory
First of all, for the first time in the practice of the UN Convention on Law of the Sea (the Convention) the Tribunal considered directly the Russia’s reservation to dispute resolution mechanism under the Convention. Convention is one of the very few international instruments that provide for a possibility of filing to the international court of a lawsuit against Russia as a state and receipt of financial compensation.
As you know, the Soviet Union and the USSR signed the Convention with reservations, but did not ratify it. When ratifying the Convention in 1997, Russia expanded the list of reservations by adding that it did not agree to consideration by the international court of disputes relating to “actions of the law enforcement bodies in relation to use of sovereign rights or jurisdiction”.
It means that Russia wanted to exclude from the jurisdiction of the international tribunals for the Convention the disputes regarding actions of its law enforcement bodies at sea. Accordingly, when in the Arctic Sunrise case the question of legality of actions of the Russian border guards raised, this particular reservation, is the opinion of Russian, deprived the arbitral tribunal of the jurisdiction.
However, the tribunal did not agree with Russia. The special aspect of the Convention on the Law of the Sea is that reservations to it are allowed only in clearly defined limits. The tribunal believes that Russia’s reservation on “the law enforcement bodies” is beyond the acceptable limits, and, thus, invalid.
Accordingly, decision of the tribunal is binding on Russia, and later “law enforcement activities” of the Russian authorities at sea may be appealed to arbitration under the Convention.

In hot pursuit
The second interesting point of dispute is the grounds for detention of a ship by the Russian authorities. The problem is that Arctic Sunrise was arrested outside the territorial waters of Russia, outside the 500-meter safety zone of “Prirazlomnaya” and even outside its three-mile restricted area of ​​navigation, i.e. where the powers of the Russian border guards do not spread.
Usually in such a situation, the border guards refer to the right of hot pursuit, which allows them to preserve their authorities when going beyond territorial waters during pursuit of a violator.
Indeed, the Greenpeace activists (on inflatable boats) without permission entered the 500-meter safety zone of the platform and ignored instructions of the border guards and the personnel of the platform. Such actions may well be qualified, e.g. as disorderly conduct and give the grounds for detention of a ship. The Russian authorities could pursue and arrest them.
However, Article 111 of the Convention provides that for application of the hot pursuit concept it is necessary that such pursuit is uninterrupted from the moment of giving order to stop and to the actual detention of the ship.
In fact, after failure of “amphibious operation” Arctic Sunrise was still not far from the platform (not closer than three miles away) for about a day hoping that the detained two activists would be released. Only after Arctic Sunrise began to leave, the border guards finally received order to its arrest and stopped the ship.
Thus, no hot pursuit is in question: Arctic Sunrise made no attempts to escape for about a day and the border guards showed no desire to detain it.
The Tribunal also examined a number of reasons, which theoretically could be used by the Russian authorities for detention of the vessel, including suspicions of terrorism and piracy, and concluded that there were no grounds for detention of the vessel.
As a result, the tribunal found Russia guilty of the unlawful detention of the vessel and ordered it to pay compensation.

Platform for infringements
Finally, the third point is the position of Russia itself in the dispute. As mentioned above, Russia did not participate in consideration of the dispute with reference to the alleged lack of jurisdiction of the tribunal. However, two weeks before the decision the Russian Foreign Ministry declared a legal opinion in which somewhat neutrally criticized the position of the Netherlands in the arbitration.
It is clear that at that point the text of the decision had been already almost finalized (the hearing ended half a year before), so it was difficult for the tribunal to respond to the document, especially in view of its informal status. It enabled the Ministry of Foreign Affairs to complain on the very next day after publication of the decision that Russia’s position in the dispute was not considered.
However, in its informal position Russia did not put forward any arguments that could radically change the course of the process. Russia did not try to claim the right of hot pursuit (the most obvious defense) and did not to cover any new evidence in the case.
Instead, Russia applied a quite controversial concept of jurisdiction in relation to its man-made structures in the exclusive economic zone. Article 60(2) of the Convention provides that the coastal state (Russia) “shall have exclusive jurisdiction over … artificial islands, installations and structures”. According to this wording Russia concludes that jurisdiction “over” “Prirazlomnaya” means jurisdiction “in relation of” “Prirazlomnaya”, i.e. any encroachments on the platform, including actions of Arctic Sunrise as the offender. Thus, no matter where Arctic Sunrise is located, the Russian law enforcement bodies can still detain and tow it to the Russian territory.
Unfortunately, Russia did not declare such position in the dispute, and the tribunal or the Netherlands as the plaintiff had no opportunity to respond to it. The Russian approach itself is quite questionable, as sets unprecedented broad scope of jurisdiction in relation to sea platforms, unmatched even with jurisdiction over the territorial sea. It is unlikely that the parties to the Convention aimed at any special legal protection of the platforms at least Russia gave no evidence of it.
However, this sensitivity of the Russian authorities in relation to man-made structures at sea should be considered. It is a good thing that “Prirazlomnaya” is the only acting oil platform of Russia in the Arctic shelf at present.

© 2019 Ilyashev & Partners / Mobile version