Arctic Sunrise / Sunset: ‘Fiddling’ with Jurisdictional Issues (Part I)

Panos Merkouris

The name of the vessel ‘Arctic Sunrise’, immediately brought to mind Fiddler on the Roof. Although, mostly remembered for Topol’s unsurpassable performance of If I Were a Rich Man, another known song is Sunrise , Sunset. The temptation was too strong to make the connection in the title and I apologise to the readers for not being able to resist it. Even more so, because similar to the life in Anatevka, establishing jurisdiction, even prima facie jurisdiction, may at times be ‘as precarious as the perch of a fiddler on a roof’ (from the movie Fiddler on the Roof, 1971).

Facts of the Case

The ‘Arctic Sunrise’ is a former ice-breaker, operated by Greenpeace International and flying the flag of the Kingdom of Netherlands. Although the facts of the case are somewhat mercurial, compounded by the fact that Russia did not participate in the proceedings before ITLOS, in broad strokes what seems to have transpired is the following. On September 18, 2013 four inflatables left the ‘Arctic Sunrise’ heading towards Gazprom's oil platform, the Prirazlomnaya (situated in Russia’s EEZ and on its continental shelf), with the alleged intention of the activists to climb and establish themselves on the outside structure of the platform. The Russian Coast Guard arrived at the scene and arrested two activists, who had managed to climb on to the structure. The remaining activists returned to the ‘Arctic Sunrise’, which remained at a distance of no closer than 3 nautical miles. The next day the Coast Guard boarded the vessel and arrested the crew (for a description of the facts see here, here and here,). The arrested activists were originally charged with piracy by Russia, which was subsequently changed to hooliganism.

On October 4, 2013, the Netherlands submitted a Notification and Statement of Claim requesting that an Arbitral Tribunal under Annex VII of United Nations Convention on the Law of the Sea (UNCLOS) be constituted and on October 21, 2013 a Request to the International Tribunal for the Law of the Sea (ITLOS) to order in the meantime provisional measures, including the release of the ‘Arctic Sunrise’ crew members. Russia in a note verbale dated October 22, 2013 rejected the applicability of the procedure under Annex VII of UNCLOS (I shall return to the basis of this rejection later in my analysis) and informed ITLOS that it would not be participating in the proceedings.

On November 22, 2013 ITLOS released its Order, which raises several issues regarding the nature and appropriateness of provisional measures as well as the non-appearance and non-participation of Russia to the proceedings. Nevertheless, with the focus here will be on the prima facie jurisdiction of ITLOS.

Dispute Settlement under UNCLOS

The first question we need to address is how ITLOS was seized on the matter of provisional measures. Both Russia and the Netherlands are parties to UNCLOS. Part XV of UNCLOS contains the relevant provisions for dispute settlement. Firstly Section 1 contains general provisions that relate to the peaceful settlement of disputes. Article 283(1) UNCLOS requires an exchange of views and attempts to settle disputes by way of negotiation or any other peaceful means. If however, the processes of Section 1 fall through, then at the request of any party the procedure of Section 2 can be resorted to (Article 286 UNCLOS). What this article does, is allow for the unilateral activation of the dispute settlement procedure.

Article 287 UNCLOS of Section 2 allows States to select which court they prefer. States can choose, by virtue of a declaration, between ITLOS, the International Court of Justice (ICJ), an Annex VII Arbitral Tribunal and (for specific cases) an Annex VIII Special Arbitral Tribunal. This Article emanated from what is known as the ‘Montreux compromise’ (serendipitously enough the brainchild of Professor Willem Riphagen, a Dutch national) (Sh Rosenne & LB Sohn (eds), United Nations Convention on the Law of the Sea 1982: A Commentary, Volume V (Martinus Nijhoff Publishers 1989) 8). As the name suggests it was a compromise between the different procedures that all the parties to UNCLOS wanted to adopt.

The Netherlands has made a declaration accepting the jurisdiction of the ICJ, while Russia in its own declaration opted for an Annex VII Arbitral Tribunal. Lack of overlap between the selected procedures, however, does not mean that the whole procedure breaks down. Article 287(5) UNCLOS comes as the saving clause since if the parties to a dispute have not accepted the same procedure, it may be submitted only to arbitration in accordance with Annex VII. Consequently, in the ‘Arctic Sunrise’ it is such a tribunal, if at all, that would have jurisdiction.

So was ITLOS acting ultra vires? The answer is in the negative. ITLOS was seised only with respect to provisional measures. According to Article 290(5) UNCLOS until the Annex VII Tribunal is established, within two weeks from the request for provisional measures and unless the parties have otherwise agreed (which in the present case they had not), ITLOS may prescribe provisional measures. The only caveat is that it has to establish prima facie jurisdiction, not of itself but of the Tribunal that is to be established by virtue of Article 287 UNCLOS. Consequently, ITLOS was well within tis competence, provided that it established the prima facie jurisdiction of Article 290 UNCLOS.

Prima facie Jurisdiction

Due to the nature of provisional measures, courts when ordering them are not required to establish jurisdiction in a certain and unequivocal manner as they would if they were deciding a case on its merits. The urgency of the situation has led most international courts and tribunals when dealing with provisional measures to opt for the approach of establishing prima facie jurisdiction. This means that they will examine if at first glance they (or as in the present case, the Annex VII Tribunal) would have jurisdiction. Their conclusion, however, is not determinative of the eventual decision on jurisdiction once the relevant tribunal has been established. There have been cases where although international courts and tribunals have found, for the purpose of ordering provisional measures, that they have prima facie jurisdiction, at the preliminary objections phase jurisdiction has been found to be lacking (see for instance the Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russian Federation) ).

On the contrary, a lack of prima facie jurisdiction does not necessarily mean that a case will be immediately stricken from the docket. In the case of the ICJ, the Court has been quite reluctant even when it considers that it does not have prima facie jurisdiction to remove the case from its General List. This is usually done only if the lack of jurisdiction is so manifest that ‘it appears certain that the Court will not be able to adjudicate [since maintaining the case on the General List] would most assuredly not contribute to the sound administration of justice’ (see for instance here and here, paras 29 and 35, respectively). Such a removal occurred, for instance, in only two of the ten Legality of Use of Force cases, those involving USA and Spain.

In the case-law of ITLOS, the Southern Bluefin Tuna is of import. In a procedure similar to that of the ‘Arctic Sunrise’ although ITLOS found that it had prima facie jurisdiction, the Annex VII Arbitral Tribunal, once constituted, came to the opposite conclusion (see here). This case also offers a unique insight as to how ITLOS judges apply this prima facie jurisdictional test. In Southern Bluefin Tuna, the parties were arguing that apart from UNCLOS the Convention on the Conservation of Southern Bluefin Tuna (CCSBT) was also applicable. However, ITLOS based its finding, solely on UNCLOS. It did not concern itself with whether the CCSBT created an alternative jurisdictional basis of an exclusionary character. Despite the fact that eventually the Annex VII Arbitral Tribunal held that the jurisdictional clause of the CCSBT did not permit the activation of the UNCLOS dispute settlement procedure, and irrespective of the criticisms of that finding, ITLOS was correct in not going down that road. Article 290(5) of UNCLOS simply requires the establishment of a prima facie jurisdiction. The Tribunal is not required to go into an exhaustive analysis of all possible jurisdictional avenues. It simply has to examine whether at first glance jurisdiction under UNCLOS (and UNCLOS alone) can seem to be plausibly established.

In the Arctic Sunrise case, this exercise by the Court was somewhat simplified because neither the Netherlands (in its submissions to ITLOS) nor Russia (due to non-participation and non-appearance) invoked other treaties as a basis of jurisdiction. Guilfoyle, in a post on The Conversation,raises the interesting point that from some statements from Russian authorities an argument could be made regarding the application of the 1988 Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms Located on the Continental Shelf (Prot-SUA). If such a claim is brought forward by Russia in case an Annex VII Tribunal is established, this would, in the opinion of the present author, raise some very interesting issues (which I will re-visit in a later post).

However, as this was an issue of prima facie jurisdiction, the only hurdle that ITLOS had to overcome was that of a declaration made by Russia under Article 298 UNCLOS. Articles 297 and 298 UNCLOS provide for certain exceptions to the dispute settlement procedure of Part XV. Those in Article 297 UNCLOS are known as ‘automatic exceptions’, whereas those in 298 UNCLOS are ‘optional exceptions’ requiring for their activation in a declaration by the State.

Upon ratification, on March 22, 1997, Russia made such a declaration, excluding 'disputes concerning law-enforcement activities in regard to the exercise of sovereign rights or jurisdiction.' Based on this declaration, Russia in its note verbale claimed that an Annex VII Tribunal would not have jurisdiction. Although the text of the declaration would seem at first glance to support this claim, one has to look at the context of this declaration. In particular, we have to take into account Articles 297, 298, 300, 309 and 310 UNCLOS.

The Russian declaration was made under Article 298 UNCLOS. Although the wording is almost identical with the relevant provision (the text of Article 298(1)(b) goes as follows: ‘disputes concerning military activities, including military activities by government vessels and aircraft engaged in non-commercial service, and disputes concerning law enforcement activities in regard to the exercise of sovereign rights or jurisdiction excluded from the jurisdiction of a court or tribunal under article 297, paragraph 2 or 3’) , there is one notable difference. Article 298(1)(b) qualifies the activities which can be excluded by reference back to Article 297(2) and (3) UNCLOS. These paragraphs refer only to activities connected to marine scientific research and fisheries.

But could not then one argue that since Russia’s declaration is different from the wording of Article 298(1)(b) UNCLOS, then its intention was to exclude more activities than the ones provided for in Article 298(1)(b) UNCLOS? This is where Articles 300, 309 and 310 UNCLOS come into play. UNCLOS does not permit any reservations unless those specifically allowed by the Convention itself (Article 309 UNCLOS) and any declaration attempting to exclude or modify the legal effects of the UNCLOS provisions is impermissible (Article 310 UNCLOS). Consequently, Russia’s declaration can be viewed in two ways:

a) either it attempts to modify the exceptions of Article 298 UNCLOS, by attempting to expand the scope ratione materiae of that provision, and thus is impermissible as a ‘cloaked reservation’ (by virtue of Articles 309 and 310 UNCLOS) and produces no legal effects, or

b) considering that States parties to UNCLOS are presumed to act in good faith and not abuse their rights (see also Article 300 UNCLOS) the Russian declaration can be interpreted as implicitly including the restriction to activities of Article 297(2) and (3) UNCLOS.

In any event, the result is the same. The Russian declaration does not apply in the Arctic Sunrise case. This was what the Netherlands argued before ITLOS and the Tribunal, rightly so, accepted (paras. 39-45). The non-applicability of the Russian declaration can also be somewhat indirectly inferred by the fact that although two judges dissented (Judges Golitsyn [Russia] and Kulyk [Turkey]) none of them raised the issue of the Russian declaration.

In conclusion, ITLOS correctly held that it had prima facie jurisdiction and that the Russian declaration was not applicable in the present case. What remains to be seen is whether this case will be resolved through diplomatic channels or whether, indeed, an Annex VII Arbitral Tribunal will be established. In that second scenario, it will be interesting to examine whether the Southern Bluefin Tuna award may have some bearing in the case at hand. Until then the fiddler will continue to play his tune perched precariously on the roof of the ‘Am Internationalen Seegerichtshof 1 building.