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Arctic Sunrise Arbitration (Netherlands v. Russia) (Perm. Ct. Arb.)

  • Theodore Kill (a1)

Extract

An ad hoc arbitral tribunal convened pursuant to Article 287 and Annex VII of the United Nations Convention on the Law of the Sea (UNCLOS) delivered its award on the merits on August 14, 2015 in Arctic Sunrise (Netherlands/Russia). The award was unanimous on all holdings and included no separate opinions. In addition to establishing the Tribunal’s jurisdiction and admissibility of the claims, the Tribunal also found that Russia had violated its obligations under UNCLOS by detaining the Arctic Sunrise, a Dutch-flagged vessel, and the thirty people (Arctic 30) on board on September 19, 2013; by failing to comply with an earlier order on provisional measures; and by failing to pay its share of the arbitral expenses.

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* This text was reproduced and reformatted from the text available at the Permanent Court of Arbitration website (visited January 15, 2015), http://www.pcacases.com/web/sendAttach/1438.

1 See Eva Rieter, Introductory Note to the “Arctic Sunrise” Case (Netherlands/Russia) (ITLOS), 53 I.L.M. 603 (2014).

2 In August of 2015, some six months after the Tribunal had concluded the hearing on the merits, Russia submitted a position paper entitled “Certain Legal Issues Highlighted by the Action of the Arctic Sunrise against Prirazlomnaya.” The Tribunal however took no action in regard to this paper given its late submission and the fact that in submitting the paper Russia expressly did not constitute a formal submission in the arbitral proceedings. The Tribunal also noted that the award, in any event, addressed all relevant issues.

3 Arctic Sunrise, PCA Case No. 2014-02, Award on the Merits, ¶¶ 152–153 (Aug. 14, 2015) (Perm. Ct. Arb.), http://www.pcacases.com/web/sendAttach/1438 [hereinafter Arctic Sunrise].

4 Id. ¶ 154.

5 Id. ¶ 157.

6 Int’l Law Comm’n, Rep. on the Work of its Fifty-Eighth Session, U.N. Doc. A/61/10, at 17 (2006) (“The State entitled to exercise diplomatic protection is the State of nationality.”). In Article 8, the Draft Articles on Diplomatic Protection also refer to the possibility that other states may exercise diplomatic protection in respect of refugees and stateless persons, but those exceptions are inapplicable here. Moreover, at Article 18 the Draft Articles on Diplomatic Protection make specific provision for the role of a flag state in such a situation: “The right of the state of nationality of the members of the crew of a ship to exercise diplomatic protection is not affected by the right of the State of nationality of a ship to seek redress on behalf of such crew members, irrespective of their nationality, when they have been injured in connection with an injury to the vessel resulting from an internationally wrongful act.”

7 Arctic Sunrise, supra note 3, ¶ 161.

8 Id. ¶ 171.

9 Id. ¶ 78.

10 Obligations owed erga omnes are owed to all states in their collective interest. Barcelona Traction, Light and Power Company, Limited (Second Phase) (Belg. v. Spain), Judgment, 1970 I.C.J. 3, ¶ 33 (Feb. 5). Obligations owed erga omnes partes are owed to a particular group of states in their collective interest. Int’l Law Comm’n, Rep. on the Work of its Fifty-Third Session, U.N. Doc. A/56/10, at 420 (2001).

11 Arctic Sunrise, supra note 3, ¶¶ 185–86.

12 Id. ¶ 193.

13 Arctic Sunrise, supra note 3, 195. It is relevant to note here that several of the Arctic 30 also separately brought a claim against Russia before the European Court of Human Rights.

14 Id. ¶ 227.

15 Id. ¶ 227. See e.g. Questions of Mutual Assistance in Criminal Matters (Djibouti v. France), Judgment, 2008 I.C.J. 177, ¶ 112 (June 4) (referring to Vienna Convention on the Law of Treaties Article 31(3)(c) to interpret a treaty “in a manner which takes into account the friendship and cooperation which France and Djibouti posited as the basis of their mutual relations” in a separate treaty).

16 Arctic Sunrise, supra note 3, ¶ 210–212.

17 Id. ¶¶ 219–20.

18 Id. ¶ 222.

19 Id. ¶ 231.

20 Id. ¶ 241.

21 Id. ¶ 275.

22 Id. ¶ 278.

23 Id. ¶ 285.

24 Id. ¶ 297.

25 Id. ¶ 305.

26 Id. ¶ 313.

27 Id. ¶ 323.

28 Id. ¶ 332.

29 Id. ¶ 333.

30 Id. ¶ 343.

31 Id. ¶ 350.

32 Id. ¶¶ 355, 358.

33 Id. ¶ 359.

34 Id. ¶ 367.

35 Id. ¶ 370.

36 Id. ¶ 380.

37 Id. ¶¶ 388–96.

38 Id. ¶¶ 398–400.

1 1982, vol. 1833, UNTS, paras. 396–581.

2 Annex N-17. All references to an Annex with a prefix N are references to an Annex to the Memorial of the Netherlands.

3 Annex N-34.

4 Annex N-1.

5 Reproduced here is the English translation (from the original Russian) of the Note Verbale from Russia to the Netherlands submitted by the Netherlands as Annex N-17. The Note Verbale from Russia to ITLOS (Annex N-18) contains the same text in a different English translation.

7 Memorial, paras. 355–365.

8 Letter from the Netherlands to ITLOS, 15 November 2013 (Annex N-26).

9 Letter from the Netherlands to ITLOS, 13 December 2013 (Annex N-29); Letter from the President of ITLOS to the Netherlands, 10 January 2014 (Annex N-30).

10 Letter from the Netherlands to ITLOS, 13 December 2013 (Annex N-29); Letter from the President of ITLOS to the Netherlands, 10 January 2014 (Annex N-30).

11 Letter from the President of ITLOS to the Netherlands, 10 January 2014 (Annex N-30).

12 See para. 65 above.

13 With the exception of witnesses (see paras. 58 and 60), the complete list of persons attending the hearing is as follows:

Members of the Tribunal: Judge Thomas A. Mensah (President), Mr. Henry Burmester, Professor Alfred H. A. Soons, Professor Janusz Symonides, Dr. Alberto Székely.

For the Netherlands: Professor Dr. Liesbeth Lijnzaad (Agent); Professor Dr. René Lefeber (Co-Agent); Professor Dr. Erik Franckx (Counsel); H.E. Peter van Wulfften Palthe (Ambassador of the Netherlands in Austria); Advisers: Mr. Marco Benatar, Ms. Anke Bouma, Mr. Tom Diederen, Mr. Peter Post, Ms. Annemarieke Vermeer; Ms. Elena Sakirko (interpreter); Ms. Rosanne Schardijn (Management Assistant); Mr. Luc Smulders (Alternate permanent representative of the Netherlands to the International Maritime Organization).

The Registry (PCA): Ms. Sarah Grimmer (Registrar), Ms. Evgeniya Goriatcheva (Legal Counsel).

Court reporter: Ms. Claire Hill.

Interpreters: Ms. Irina van Erkel, Mr. Sergei V. Mikheyev.

14 Hearing Tr., 11 February 2015 at 36 (referring to Hearing Tr, 10 February 2015 at 33–48).

15 Hearing Tr., 11 February 2015 at 37.

16 See paras. 58 and 60 above.

17 Memorial, para. 12.3.

18 Memorial, paras. 12.1–12.2; Greenpeace International Statement of Facts, para. 4.

19 Greenpeace International Statement of Facts, para. 2.

20 Greenpeace International Statement of Facts, para. 2.

21 Greenpeace International Statement of Facts, para. 5.

22 Greenpeace International Statement of Facts, para. 14.

23 Letter from Mr. Frits de Vink (Crew Manager, Greenpeace International), 3 October 2013 (Annex N-4). See also Memorial, para. 12.4.

24 Willcox Statement, para. 3.

25 http://www.gazprom-neft.com/. Website last visited on 9 August 2015. See also Greenpeace International Statement of Facts, para. 7.

26 Notice to Mariners No. 51/2011 (Annex N-37); see also Greenpeace International Statement of Facts, para. 7.

27 Greenpeace International Statement of Facts, paras. 10–11. See also E-mail from the Russian Ministry Of Transport to the Netherlands, 5 December 2012 (Annex N-38).

28 “Alexey Miller: Gazprom has pioneered the Russian Arctic shelf development,” Gazprom website, Press Center, 20 December 2013, http://www.gazprom.com/press/news/2013/december/article181251/. Website last visited on 9 August 2015.

29 Greenpeace International Statement of Facts, para. 14.

30 Witness Interrogation Report of Nikolai Anatolievich Marchenkov (gunnery officer on the Ladoga), Investigation Committee, 24 September 2014, p. 9 (Appendix 8.a) (“Marchenkov Interrogation Report”). Any reference in this Award to a numbered “Appendix” is a reference to an appendix to the Greenpeace International Statement of Facts,

31 Marchenkov Interrogation Report, p. 10 (Appendix 8.a); Arctic Sunrise logbook (Appendix 38). The Greenpeace International Statement of Facts, ostensibly on the basis of notes taken on the Arctic Sunrise, states that Article 260 rather than 259 of the Convention was mentioned. Greenpeace International Statement of Facts, para. 14; Hearing Tr., 10 February 2015 at 58:20-59:5 (examination of Mr. Daniel Simons).

32 Audio 2 (recorded on the Arctic Sunrise bridge); Marchenkov Interrogation Report, pp. 10–11 (Appendix 8.a).

33 Marchenkov Interrogation Report, p. 11 (Appendix 8.a); Witness Interrogation Report of Alexei Sergeevich Sokolov (master mechanic on the Ladoga), Investigation Committee, 24 September 2014, p. 25 (Appendix 8.b) (“Sokolov Interrogation Report”).

34 All times are in Moscow Standard Time (MST), the local time at the Prirazlomnaya.

35 Greenpeace International Statement of Facts, para. 15; Hearing Tr., 10 February 2015 at 102:20-23 (examination of Mr. Dimitri Litvinov).

36 Appendix 2; Hearing Tr., 10 February 2015 at 102:23–103:2.

37 Photos 872–875, 876–908 (taken from the Arctic Sunrise); Description of newly available information and a reconstruction of the sequence of events at the end of the protest, para. 6 (Annex N-47). See also Greenpeace International Statement of Facts (Addendum and Corrigendum), paras. 20–21.

38 Photos 876–908, 924–945 (taken from the Arctic Sunrise).

39 Hearing Tr., 10 February 2015 at 87:13–17 (examination of Mr. Peter Henry Willcox). See also 105:4-10 (examination of Mr. Dimitri Litvinov).

40 Marchenkov Interrogation Report, p. 11 (Appendix 8.a).

41 Administrative Offense Report No. 2109.623-13, FSB Coast Guard Division for Murmansk Oblast, 24 September 2013 (Appendix 39).

42 Video 2 at 8’35 (shot from the Ladoga); Marchenkov Interrogation Report, p. 11 (Appendix 8.a).

43 Video 2 at 17’30-22’00 (shot from the Ladoga); Marchenkov Interrogation Report, p. 11 (Appendix 8.a).

44 Video 17 at 4’20 (shot from the “Novi 2”).

45 Marchenkov Interrogation Report, p. 12 (Appendix 8.a); Sokolov Interrogation Report, p. 25 (Appendix 8.b); Witness Interrogation Report of Ivan Alexandrovich Solomakhin (warrant officer on the Ladoga), Investigation Committee, 24 September 2014, p. 37 (Appendix 8.c) (“Solomakhin Interrogation Report”); Order on the closure of criminal case No. 83543, Investigation Committee, 24 September 2014, p. 16 (Appendix 37).

46 Video 17 at 4’58-5’33 (shot from the “Novi 2”); photos 191-231; Sokolov Interrogation Report, p. 27 (Appendix 8.b); Hearing Tr., 11 February 2015 at 4 (examination of Ms. Sini Annuka Saarela).

47 Video 1 from 2’30 (compilation); video 3 from 5’30 (shot from the Prirazlomnaya); video 17 from 11’50 (shot from the “Novi 2”; photos 338–351 (taken from the “Parker”); Marchenkov Interrogation Report, p. 12 (Appendix 8.a).

48 Video 1 at 3’36 (compilation); video 3 at 8’42 (shot from the Prirazlomnaya); video 6 from 0’35; video 10 from 0’13.

49 Video 3 from 15’09 (shot from the Prirazlomnaya); Sokolov Interrogation Report, p. 27 (Appendix 8.b); Hearing Tr., 11 February 2015 at 4-5 (examination of Ms. Sini Annuka Saarela).

50 Greenpeace International Statement of Facts, para. 26; video 17 from 12’15 (shot from the “Novi 2”); video 1 from 4’25 (compilation); video 3 from 7’20 (shot from the Prirazlomnaya).

51 Hearing Tr., 10 February 2015 at 87:25-88:4, 88:20-21 (examination of Mr. Peter Henry Willcox). See also Hearing Tr., 10 February 2015 at 140:13-14 (examination of Mr. Frank Hewetson): “It was quite aggressive; I would say that we were slightly taken by surprise on the aggression.”

52 Marchenkov Interrogation Report, p. 12 (Appendix 8.a). See also Solomakhin Interrogation Report, p. 38 (Appendix 8.c).

53 Sokolov Interrogation Report, p. 27 (Appendix 8.b).

54 Video 3 from 19’10 (shot from the Prirazlomnaya); Marchenkov Interrogation Report, p. 12 (Appendix 8.a); Solomakhin Interrogation Report, p. 38 (Appendix 8.c).

55 Video 3 from 19’55 (shot from the Prirazlomnaya); Marchenkov Interrogation Report, p. 12 (Appendix 8.a). See also Note Verbale from the Russian Federation to the Netherlands, 18 September 2013, p. 2 (Annex N-5).

56 Video 3 at 23’35 and 25’20 (shot from the Prirazlomnaya); Marchenkov Interrogation Report, p. 12 (Appendix 8.a).

57 Marchenkov Interrogation Report, p. 12 (Appendix 8.a).

58 See Video 28a from 11’26 (shot from the “Hurricane”). See also Description of newly available information and a reconstruction of the sequence of events at the end of the protest, para. 17 (Annex N-47).

59 Video 28a at 2’23 (shot from the “Hurricane”); video 29c at 14’22 (shot from the “Suzie Q”). See also Description of newly available information and a reconstruction of the sequence of events at the end of the protest, para. 10 (Annex N-47).

60 Video 28a at 5’45 (shot from the “Hurricane”); video 29c at 17:48-21’00 (shot from the “Suzie Q”). See also Description of newly available information and a reconstruction of the sequence of events at the end of the protest, paras. 12–16 (Annex N-47).

61 Video 18 at 7’25 (shot from the “Parker”); photos 472–515 (taken from the “Parker”), 956–979 (taken from the Arctic Sunrise).

62 Video 29c at 24’31 (shot from the “Suzie Q”); Hearing Tr., 10 February 2015 at 141 (examination of Mr. Frank Hewetson). See also Description of newly available information and a reconstruction of the sequence of events at the end of the protest, para. 18 (Annex N-47).

63 Photos 535–541, 551, 1016–1030, 1048–1051 (taken from the Arctic Sunrise).The precise timing of the events described in this paragraph is discussed at paras. 263–266 below.

64 Video 27 (shot from the Arctic Sunrise bridge) at 0’47, 2’07, 3’35, 6’04, 8’28. See also Arctic Sunrise logbook (Appendix 38); Administrative Offence Report, p. 8, paras. 3–4 (Appendix 39); Marchenkov Interrogation Report, pp. 12–13 (Appendix 8.a).

65 Video 27 (shot from the Arctic Sunrise bridge).

66 See video 27 at 4’00 and video 28b at 9’58 (shot from the Arctic Sunrise bridge), recording Mr. Willcox speaking to the last two RHIBs in the water: “Hey guys, the Russians are threatening to board so I want to get the ‘Parker’ and the ‘Hurricane’ up ASAP.”

67 Video 30; audio 5 at 1’18; audio 6 at 2’16 (shot from and recorded on the Arctic Sunrise bridge).

68 Pursuant to the International Code of Signals, “SN” means: “You should stop immediately. Do not scuttle. Do not lower boats. Do not use the wireless. If you disobey I shall open fire on you.”

69 Video 16 (shot from the Arctic Sunrise bridge); audio files 5 and 6 (shot from and recorded on the Arctic Sunrise bridge); Arctic Sunrise logbook (Appendix 38); photos 664–695 (taken from the Arctic Sunrise; showing attempted boarding); Marchenkov Interrogation Report, p. 14 (Appendix 8.a); Hearing Tr., 10 February 2015 at 108–110 (examination of Mr. Dimitri Litvinov). See also Greenpeace International Statement of Facts, paras. 32–36.

70 Arctic Sunrise logbook (Appendix 38).

71 Arctic Sunrise logbook (Appendix 38); Hearing Tr., 10 February 2015 at 88:18–89:2 (examination of Mr. Peter Henry Willcox).

72 Videos 20 and 21 (shot from the Arctic Sunrise bridge). See also Greenpeace International Statement of Facts, para. 40.

73 Arctic Sunrise logbook (Appendix 38); photos 703–715 (taken from the Arctic Sunrise

74 Greenpeace International Statement of Facts, para. 40; Greenpeace International Statement of Facts (Addendum and Corrigendum), para. 33.

75 Note Verbale from the Russian Federation to the Netherlands, 18 September 2013 (Annex N-5).

76 http://ria.ru/eco/20130919/964386631.html. Website last visited on 9 August 2015.

77 Audio 1 from 8’00 (recorded on the Arctic Sunrise).

78 Audio 1 from 9’40 (recorded on the Arctic Sunrise).

79 Videos 22, 23, 25; photos 1–7, 750–799 (recorded on and shot from the Arctic Sunrise).

80 Videos 22, 23, 25; photos 1–7, 750–799 (recorded on and shot from the Arctic Sunrise).

81 http://en.itar-tass.com/greenpeace-ship-arctic-sunrise-case/701021. Website last visited on 9 August 2015.

82 Marchenkov Interrogation Report, p. 15 (Appendix 8.a).

83 Greenpeace International Statement of Facts, para. 48.

84 Hearing Tr., 11 February 2015 at 6:8–15 (examination of Ms. Sini Annuka Saarela).

85 Hearing Tr., 11 February 2015 at 8:14 –9:6 (examination of Ms. Sini Annuka Saarela).

86 Hearing Tr., 10 February 2015 at 114–120 (examination of Mr. Dimitri Litvinov). See also Greenpeace International Statement of Facts, paras. 51–53.

87 Hearing Tr., 10 February 2015 at 119:8 –120:10 (examination of Mr. Dimitri Litvinov).

88 Official Report of Transfer, FSB Coast Guard Division for Murmansk Oblast, 20 September 2013 (Appendix 6).

89 Note Verbale from the Netherlands to the Russian Federation, 23 September 2013 (Annex N-6).

90 Decision on the opening of criminal case No. 83543 and the initiation of related proceedings, Investigation Committee, 24 September 2013 (Appendix 7).

91 Greenpeace International Statement of Facts, paras. 61–64, 67.

92 Administrative Offense Report No. 2109.623-13, FSB Coast Guard Division for Murmansk Oblast, 24 September 2013 (Appendix 39).

93 http://rt.com/news/putin-greenpeace-pirates-arctic-323/. Website last visited on 9 August 2015.

94 Note Verbale from the Netherlands to the Russian Federation, 26 September 2013 (Annex N-7).

95 See e.g. Order on the imposition of interim measures in the form of detention, District Court, 26 September 2013 (Appendix 9).

96 Hearing Tr., 10 February 2014 at 63:19–21 (examination of Mr. Andrey Suchkov).

97 Decision authorizing a search of living quarters, District Court, 28 September 2013 (Appendix 11).

98 Appellate Ruling, Murmansk Regional Court, 12 November 2013 (Appendix 21).

99 Greenpeace International Statement of Facts, paras. 74, 77.

100 Note Verbale from the Netherlands to the Russian Federation, 29 September 2013 (Annex N-9).

101 Note Verbale from the Russian Federation to the Netherlands, 1 October 2013 (Annex N-10).

102 See e.g. Decision on being charged as an accused, Investigation Committee, 2 October 2013 (Appendix 12). See also Investigation Committee website, 3 October 2013, https://sledcom.ru/news/item/520650/. Website last visited on 9 August 2015.

103 Note Verbale from the Netherlands to the Russian Federation, 3 October 2013 (Annex N-21).

104 Order for the seizure of property, District Court, 7 October 2013 (Annex N-13/Appendix 13).

105 Appellate Ruling, Murmansk Regional Court, 21 November 2013 (Appendix 23).

106 Resolution in Case No. 2109/623-13 of Administrative Offense, FSB Coast Guard Division for Murmansk Oblast, 8 October 2013 (Annex N-16/Appendix 14).

107 Resolution in Case No. 2109/623-13 of Administrative Offense, FSB Coast Guard Division for Murmansk Oblast, 8 October 2013, p. 9 (Annex N-16/Appendix 14).

108 See e.g. Appellate Ruling, Murmansk Regional Court, 23 October 2013 (Appendix 15); Greenpeace International Statement of Facts, paras. 84, 96. Mayakov to Mr. S. O. Torvinen, 21 October 2013 (Appendix 17).

109 Official report of seizure of property, 15 October 2013 (Annex N-14/Appendix 16).

110 Note Verbale from the Netherlands to the Russian Federation, 18 October 2013 (Annex N-15).

111 Written instructions per Article 39 of the Criminal Procedure Code of the Russian Federation from Mr. A. I.

112 Decision on qualification, Investigation Committee, 23 October 2013 (Appendix 18).

113 See e.g. Ruling on bringing an accusation, Investigation Committee, 28 October 2013 (Appendix 19).

114 See e.g. Ruling on bringing an accusation, Investigation Committee, 28 October 2013 (Appendix 19).

115 Greenpeace International Statement of Facts, para. 100.

116 See e.g. Decision, Primorsky District Court of St. Petersburg, 19 November 2013 (Appendix 22); Overview of key dates in proceedings against the 30 persons on board the Arctic Sunrise (Appendix 29); Greenpeace International Statement of Facts, paras. 103–104.

117 Overview of key dates in proceedings against the 30 persons on board the Arctic Sunrise (Appendix 29).

118 Greenpeace International Statement of Facts, para. 112; Overview of key dates in proceedings against the 30 persons on board the Arctic Sunrise (Appendix 29).

119 Note Verbale from the Netherlands to the Russian Federation, 2 December 2013 (Annex N-27).

120 Netherlands’ Report on Compliance with the ITLOS Order, 2 December 2013 (Annex N-28). By letter dated 9 June 2015, the Netherlands advised ITLOS, with this Tribunal in copy, that the bank guarantee had ceased to be effective as it was not collected by Russia within the relevant time period, i.e., by 2 June 2014. The Netherlands indicated that it had informed the Dutch parliament of the Netherlands’ potential liability in the amount of the bank guarantee and committed to implement any decision of this Tribunal that may require it to pay compensation in the amount of the bank guarantee.

121 Article 6(5), http://www.rg.ru/2013/12/18/amnistia-dok.html. Website last visited on 9 August 2015.

122 See e.g. Resolution on termination of proceedings following the act of amnesty, Investigation Committee, 24 December 2013 (Appendix 27).

123 See e.g. Decision on the refusal to initiate administrative proceedings, FMS, 25 December 2015 (Appendix 28).

124 Greenpeace International Statement of Facts, para. 120.

125 See e.g. Application forms of Ms. Sini Annuka Saarela, Mr. Kieron John Bryan, and Mr. Gizem Akhan (Appendices 41-43). See other forms at http://greenpeace.org/international/en/campaigns/climate-change/arctic-impacts/Peace-Dove/Arctic-30/European-Court-of-Human-Rights/. Website last visited on 9 August 2015.

126 Hearing Tr., 10 February 2015 at 81, 83 (examination of Mr. Sergey Vasilyev).

127 Ruling, Primorsky District Court of St. Petersburg, 14 March 2014 (Appendix 32). See also Letter from the Investigation Committee to Stichting Phoenix, 24 March 2014 (Appendix 33).

128 Transfer-Acceptance Act of a Vessel, Investigation Committee, 6 June 2014 (Appendix 34). See also Greenpeace International Statement of Facts, para. 130; Note Verbale from the Russian Federation to the Netherlands, 12 June 2013 (Annex N-32).

129 Greenpeace International Statement of Facts, paras. 131– 139.

130 Order on the closure of criminal case no. 83543, Investigation Committee, 24 September 2014 (Appendix 37).

131 Order on the closure of criminal case no. 83543, Investigation Committee, 24 September 2014, p. 22 (Appendix 37).

132 Greenpeace International Statement of Facts (Addendum and Corrigendum), paras. 13–17.

133 Greenpeace International Statement of Facts (Addendum and Corrigendum), pp. 4–5; Third Supplementary Submission, p. 5, para. 2; Description of newly available information and a reconstruction of the sequence of events at the end of the protest, paras. 1-3 (Annex N-47).

134 Statement of Claim, para. 37; Memorial, para. 397; Supplementary Submission, para. 55.

135 Hearing Tr., 11 February 2015 at 30-35 (closing statement of the Netherlands); Supplementary Submission; Memorial, paras. 391-396.

136 See also Award on Jurisdiction, paras. 61–62.

137 Hearing Tr., 10 February 2015 at 7–9 (opening statement of the Netherlands). According to the Netherlands, “the release of the Arctic Sunrise and the persons who have been on board, as well as their return to their respective home countries, did not provide an adequate resolution of the dispute. Not all claims, as reflected in the Statement of Claim, had been satisfied by the Russian Federation.” Furthermore, since the commencement of these proceedings, the Netherlands claims that the Russian Federation “aggravated and extended the dispute” by: (i) bringing serious criminal charges against the persons on board the Arctic Sunrise; (ii) keeping them in pre-trial detention for an extended period of time; (iii) failing to timely and fully implement the order of ITLOS; and (iv) failing to participate in the present arbitral procedure.

138 See discussion of the unity of the ship at paras. 170– 72 below.

139 Second Supplementary Submission, p. 4, para. 8.

140 Second Supplementary Submission, p. 5, para. 12.

141 Second Supplementary Submission, pp. 3–6.

142 See Chagos Marine Protected Area Arbitration (Mauritius v. United Kingdom), Award of 18 March 2015, para. 378, http://www.pca-cpa.org/showpage.asp?pag_id_1429.

143 Hearing Tr., 10 February 2015 at 8:21-25 (opening statement of the Netherlands).

144 Note Verbale from the Netherlands to the Russian Federation, 3 October 2013 (Annex N-11).

145 Note Verbale from the Netherlands to the Russian Federation, 23 September 2013 (Annex N-6); Note Verbale from the Netherlands to the Russian Federation, 26 September 2013 (Annex N-7).

146 Hearing Tr., 10 February 2015 at 8:3-8 (opening statement of the Netherlands).

147 Note Verbale from the Russian Federation to the Netherlands, 1 October 2013 (Annex N-10).

148 Memorial, para. 87.

149 Land Reclamation in and around the Straits of Johor (Malaysia v. Singapore), Provisional Measures, Order of 8 October 2003, ITLOS Reports 2003, p. 10, para. 48. See also MOX Plant (Ireland v. United Kingdom), Provisional Measures, Order of 3 December 2001, ITLOS Reports 2001, p. 95, para. 60; ARA Libertad (Argentina v. Ghana), Provisional Measures, Order of 15 December 2012, ITLOS Reports 2012, p. 332, para. 71.

150 ITLOS Order, paras. 73-77.

151 Memorial, paras. 89, 137.

152 Memorial, para. 89.

153 Memorial, para. 90.

154 M/V “SAIGA” (No. 2) (Saint Vincent and the Grenadines v. Guinea), Judgment of 1 July 1999, ITLOS Reports 1999, p. 10 at para. 106.

155 Memorial, para. 93.

156 M/V “SAIGA” (No. 2) (Saint Vincent and the Grenadines v. Guinea), Judgment of 1 July 1999, ITLOS Reports 1999, p. 10 at para. 106.

157 Memorial, para. 93.

158 Memorial, para. 92; ITLOS Order, dispositif, para. 105(1)(a) and (b), respectively.

159 Memorial, para. 100, citing M/V “Virginia G” (Panama v Guinea-Bissau), Judgment of 14 April 2014, ITLOS Reports 2014, to be published, paras. 157–158, and J. Dugard, “Diplomatic Protection” in J. Crawford, A. Pellet & S. Olleson (eds.), The Law of International Responsibility (2010), p. 1062.

160 Draft Articles on Responsibility of States for Internationally Wrongful Acts with commentaries (text adopted by the ILC at its fifty-third session, in 2001).

161 Crawford, J., The International Law Commission’s Articles on State Responsibility:Introduction, Text and Commentaries, Cambridge University Press, 2002, p. 258 , para. 8.

162 M/V “SAIGA” (No. 2) (Saint Vincent and the Grenadines v Guinea), Judgment of 1 July 1999, p. 10 at para. 106; M/V 2016] “Virginia G” (Panama v. Guinea-Bissau), Judgment of 14 April 2014, ITLOS Reports 2014, to be published, para. 127.

163 Letter from Mr. Frits de Vink (Crew Manager, Greenpeace International), 3 October 2013 (Annex N-4).

164 Memorial, paras. 89, 103–107.

165 Memorial, paras. 89, 108–115.

166 Memorial, para. 108.

167 Memorial, paras. 109, 115.

168 See Article 18 of the Draft Articles on Diplomatic Protection adopted by the ILC in 2006, which refers to the right of the State of nationality of a ship to seek redress on behalf of crewmembers, irrespective of their nationality: “The right of the State of nationality of the members of the crew of a ship to exercise diplomatic protection is not affected by the right of the State of nationality of a ship to seek redress on behalf of such crewmembers, irrespective of their nationality, when they have been injured in connection with an injury to the vessel resulting from an internationally wrongful act.” As stated by ITLOS in M/V “SAIGA” (No. 2), “[a]ny of these ships could have a crew comprising persons of several nationalities. If each person sustaining damage were obliged to look for protection from the State of which such person is a national, undue hardship would ensue” (M/V “SAIGA” (No. 2) (Saint Vincent and the Grenadines v. Guinea), Judgment of 1 July 1999, ITLOS Reports 1999, p. 10 at para. 107).

170 Memorial, paras. 121–128.

171 Memorial, para. 123.

172 Memorial, para. 126.

173 Memorial, paras. 129–135, 137.

174 Memorial, para. 130.

175 Memorial, para. 131.

176 Memorial, para. 133.

177 Memorial, para. 134.

179 MOX Plant (Ireland v. United Kingdom), Procedural Order No. 3 of 24 June 2003, para. 19, PCA Award Series (2010), p. 52; Eurotunnel (1. The Channel Tunnel Group Limited 2. France-Manche S.A. v. 1. The Secretary of State for Transport of the United Kingdom 2. Le Ministre de l’équipement, des transports, de l’aménagement du territoire, du tourisme et de la mer de la France), Partial Award of 30 January 2007, 132 International Law Reports, 1, para. 152; “ARA” Libertad (Argentina v. Ghana), Order of 15 December 2012, Separate Opinion of Judges Wolfrum and Cot, para. 7.

180 For example, Article 74 provides that “[t]he delimitation of the exclusive economic zone between states with opposite or adjacent coasts shall be effected by agreement on the basis of international law, as referred to in Article 38 in the Statute of the International Court of Justice, in order to reach an equitable solution.”

181 As reflected in the Vienna Convention on the Law of Treaties, 1969, for example.

182 As reflected in the Articles on State Responsibility, for example.

183 M/V “SAIGA” (No. 2) (Saint Vincent and the Grenadines v. Guinea), Judgment of 1 July 1999, ITLOS Reports 1999, p. 10 at para. 155.

184 Article 288(2) of the Convention provides that: “[a] court or tribunal referred to in article 287 shall also have jurisdiction over any dispute concerning the interpretation or application of an international agreement related to the purposes of this Convention, which is submitted to it in accordance with the agreement.”

185 As provided, for example, in Article 301 of the Convention: “In exercising their rights and performing their duties under this Convention, State Parties shall refrain from any threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the principles of international law embodied in the Charter of the United Nations.”

186 The Netherlands signed the ICCPR on 25 June 1969 and ratified it on 11 December 1978. The Union of Soviet Socialist Republics signed the ICCPR on 18 March 1968 and ratified it on 16 October 1973. Russia, as the successor State to the Soviet Union, is bound by the ICCPR.

187 Memorial, paras. 175-176.

188 Second Supplementary Submission, p. 6, para. 1.

189 Second Supplementary Submission, pp. 7–8, paras. 3– 4.

190 Hearing Tr., 11 February 2015 at 23:25-24:12; Third Supplementary Submission, p. 2, para. 1.

191 Memorial, para. 170: “. . . the Netherlands does not request the Tribunal to interpret or apply the ECHR.” In addition, in its Second Supplementary Submission, the Netherlands states that “the claims of the ‘Arctic 30’ [before the ECtHR] and the Netherlands are based on different legal instruments. The claims of the ‘Arctic 30’ concern alleged breaches of rights under the ECHR, whereas the human rights aspects of the claims of the Netherlands in the present arbitration concern alleged breaches of rights under the [Convention], the [ICCPR] and customary international law” (p. 3, para. 6).

192 Memorial, paras. 181, 183, 189, 197.

193 Memorial, paras. 190–196.

194 Supplementary Submission, para. 55.

195 Written instructions per Article 39 of the Criminal Procedure Code of the Russian Federation from Mr. A. Y. Mayakov to Mr. S. O. Torvinen, 21 October 2013 (Appendix 17); Decision on qualification, Investigation Committee, 23 October 2013 (Appendix 18).

196 Notice to Mariners No. 51/2011 (Annex N-37).

197 Notice to Mariners No. 21/2014 (Annex N-39).

198 Notice to Mariners No. 51/2011 (Annex N-37).

199 Notice to Mariners No. 21/2014 (Annex N-39).

200 See Russian Ministry of Defence website, http://structure.mil.ru/structure/forces/hydrographic/esim.htm. Website last visited on 9 August 2015.

201 See E-mail from the Russian Ministry of Transport to the Netherlands, 5 December 2012 (Annex N-38).

202 Marchenkov Interrogation Report, p. 10 (Appendix 8.a).

203 Video 27 (shot from the Arctic Sunrise bridge) at 2’00, 3’30.

204 Hearing Tr., 10 February 2013 at 23:6-23:15 (opening statement of the Netherlands). A translation of this Order into English was obtained by the Tribunal in the course of its deliberations.

205 Certified English Translations of the relevant parts of these laws and regulations into English were obtained by the Tribunal in the course of its deliberations. The PCA provided the Parties with copies of the relevant parts of the Russian laws and regulations and certified English translations of the same on 29 May 2015.

206 Hearing Tr., 10 February 2015 at 5:11-6:5, 17:19-18:14, 34: 7-16, 49:2-10 (opening statement of the Netherlands); Hearing Tr., 11 February 2015 at 23:13-24 (answers of the Netherlands to questions posed by the Tribunal); Third Supplementary Submission, p. 1, para. 1.

207 Hearing Tr., 10 February 2015 at 18:8-19:14 (opening statement of the Netherlands), relying on M/V “Virginia G” (Panama v. Guinea-Bissau), Judgment of 14 April 2014, ITLOS Reports 2014, to be published, para. 270 and M/V “SAIGA” (No. 2) (Saint Vincent and the Grenadines v. Guinea), Judgment of 1 July 1999, ITLOS Reports 1999, p. 10 at para. 155.

208 Memorial, para. 265; Hearing Tr., 10 February 2015 at 25;2, 31:5-11 (opening statement of the Netherlands).

209 Third Supplementary Submission, p. 2, para. 2.

210 Article 19 of the ICCPR provides:

  1. 1.

    1. Everyone shall have the right to hold opinions without interference.

  2. 2.

    2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.

  3. 3.

    3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary: (a) For respect of the rights or reputations of others; (b) For the protection of national security or of public order (ordre public), or of public health or morals.”

Article 21 of the ICCPR provides:

The right of peaceful assembly shall be recognized. No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others.

See also Articles 19 and 20 of the Universal Declaration of Human Rights and Articles 10 and 11 of the ECHR.

211 International Maritime Organization, Resolution, “Assuring Safety during Demonstrations, Protests or Confrontations on the High Seas,” Res. MSC303(87), 17 May 2010: “Affirming the rights and obligations relating to legitimate and peaceful forms of demonstration, protest, or confrontation and noting that there are international instruments that may be relevant to these rights and obligations”; International Whaling Commission, ‘Safety at Sea’, Res. 2011-2: “the Commission and Contracting Governments support the right to legitimate and peaceful forms of protest and demonstration.”

212 Article 80 of the Convention extends the jurisdiction of the coastal State as found in Article 60 to artificial islands, installations, and structures on the continental shelf.

213 Article 56(2) of the Convention.

214 Note Verbale from the Russian Federation to the Netherlands, 1 October 2013 (Annex N-10).

215 See especially video 27 (shot from the Arctic Sunrise bridge), in which the Ladoga mentions the alleged violation of the 500-metre zone prohibited to navigation around the Prirazlomnaya, as well as suspicions of terrorism and piracy.

216 Video 30 at 1’27, 2’48, 4’04; audio 5 at 1’18-1’28; audio 6 at 0’03-0’10 (shot from and recorded on the Arctic Sunrise bridge).

217 Memorial, para. 292; Hearing Tr., 10 February 2015 at 27: 13-23 (opening statement of the Netherlands).

218 Decision on the opening of criminal case No. 83543 and the initiation of related proceedings, Investigation Committee, 24 September 2013 (Appendix 7). See also Greenpeace International Statement of Facts, para. 59.

219 Greenpeace International Statement of Facts, para. 68.

220 Note Verbale from the Russian Federation to the Netherlands, 1 October 2013 (Annex N-10).

221 See e.g. Decision on being charged as an accused, Investigation Committee, 2 October 2013 (Appendix 12). See also Greenpeace International Statement of Facts, para. 78.

222 Order for the seizure of property, District Court, 7 October 2013 (Annex N-13/Appendix 13).

223 http://www.gazprom-neft.com/. Website last visited on 9 August 2015. See also Greenpeace International Statement of Facts, para. 7 and Hearing Tr., 10 February 2015 at 64 (testimony of Mr. Andrey Suchkov): “There were no indicia of piracy. Article 227 of the Criminal Code of the Russian Federation envisages responsibility for actions against a vessel, but the drill platform was not a vessel.”

224 Notice to Mariners No. 21/2014 (Annex N-39); see para. 218 (third bullet point) above.

225 E-mail from the Russian Ministry of Transport to the Netherlands, 5 December 2012 (Annex N-38).

226 Decision on qualification, Investigation Committee, 23 October 2013 (Appendix 18), English Translation, p. 4: “. . .it has been established that OIFP ‘Prirazlomnaya’ is not in fact a vessel but rather a port facility, thereby excluding the elements of the crime envisioned by Part 3 of Article 227 of the [Criminal Code].”

227 Putin: Greenpeace activists not pirates, but they violated intl law. RT News. 25 September 2013 . http://rt.com/news/putin-greenpeace-pirates-arctic-323/. Webpage last visited on 9 August 2015; Greenpeace International Statement of Facts, para. 69.

228 Kremlin Adviser Likens Greenpeace Piracy Charge to Gang Rape. Bloomberg. 11 October 2013 . http://www.bloomberg.com/news/articles/2013-10-11/kremlin-adviser-likens-greenpeace-piracy-charges-to-gang-rape. Webpage last visited on 9 August 2015; Greenpeace International Statement of Facts, para. 89.

229 Greenpeace International Statement of Facts, para. 103.

230 See e.g. Ruling on bringing an accusation, Investigation Committee, 28 October 2013 (Appendix 19).

231 Video 27 at 1’57, 3’24 (shot from the Arctic Sunrise bridge).

232 M/V “SAIGA” (No. 2)(Saint Vincent and the Grenadines v. Guinea), ITLOS, Judgment of 1 July 1999, ITLOS Reports 1999, p. 10 at para. 146.

233 Marchenkov Interrogation Report, p. 10 (Appendix 8.a); Video 27 at 2’00, 3’30 (shot on the Arctic Sunrise bridge).

234 Audio 4.

235 Hearing Tr., 10 February 2015 at 24:11-15 (opening statement of the Netherlands).

236 Hearing Tr., 10 February 2015 at 20:2-5 (opening statement of the Netherlands).

237 Video 27 at 1’57, 3’24 (shot on the Arctic Sunrise bridge), in which the Ladoga justifies its order to stop to the Arctic Sunrise by referring, inter alia, to the violation of the 500-metre zone prohibited to navigation.

238 See Hearing Tr., 10 February 2015 at 23-24 (opening statement of the Netherlands).

239 The Greenpeace campaigners on the Arctic Sunrise RHIBs testified that they did not receive any oral order to stop from the Ladoga RHIBs. Hearing Tr., 10 February 2013 at 141:25-142:18 (examination of Mr. Frank Hewetson); Hearing Tr., 10 February 2013 at 150:14-151:4 (examination of Mr. Philip Edward Ball). The pilots of the Ladoga RHIBs and the Ladoga gunnery officer also did not, in the context of the Russian administrative proceedings, testify to having been instructed to transmit any order to stop to the Arctic Sunrise RHIBs. Rather, their instructions appear to have been to prevent the Arctic Sunrise RHIBs from approaching, climbing, or otherwise endangering the Prirazlomnaya and, at the end of the protest, to try to seize at least one Arctic Sunrise RHIB. Sokolov Interrogation Report, p. 27 (Appendix 8.b); Solomakhin Interrogation Report, p. 37 (Appendix 8.c). While recognising that the available videos do not cover every moment of the protest action, and have imperfect sound (particularly due to the background noise of the RHIB propellers), the Tribunal also notes that no order to stop can be heard in these videos.

240 Arctic Sunrise logbook (Appendix 38); Marchenkov Interrogation Report, p. 13 (Appendix 8.a).

241 Memorial, para. 278.

242 1184 UNTS 278.

243 Video 27 (shot on the Arctic Sunrise bridge).

244 Memorial, para. 278, referring to ILC, “Articles concerning the law of the sea with commentaries,” (1956) Yearbook of the ILC, vol. II, Article 47, p. 285.

245 See e.g. R. v. Mills (UK), 1995, Unreported, Croydon Crown Court, Devonshire, J., summarised in (1995) 44 International Comparative & Legal Quarterly 949 at 1956-1957 ; R v. Sunila and Soleyman (Canada), 1986, 28 Dominion Law Reports (4th) 450 133, 216.

246 For an estimate of the distance, see Hearing Tr., 10 February 2015 at 25 (opening statement of the Netherlands).

247 Third Supplementary Submission, p. 5, para. 2.

248 Video 28a at 2’23 (shot from the “Hurricane”); video 29c at 14’22 (shot from the “Suzie Q”).

249 Video 28a at 5’45 (shot from the “Hurricane”); video 29c at 17’48 (shot from the “Suzie Q”).

250 Video 29c at 20’46 (shot from the “Suzie Q”).

251 Video 28a from 11’26 (shot from the “Hurricane”).

252 Video 29c at 24’31 (shot from the “Suzie Q”).

253 Photos 551, 1048-1051 (taken from the Arctic Sunrise).

254 Photos 535-541, 1016-1030 (taken from the Arctic Sunrise).

255 See video 27 at 1’12 (shot on the Arctic Sunrise bridge).

256 Video 27 at 0’30 (shot on the Arctic Sunrise bridge).

257 Marchenkov Interrogation Report, p. 12 (Appendix 8.a).

258 Administrative Offense Report No. 2109.623-13, FSB Coast Guard Division for Murmansk Oblast, 24 September 2013 (Appendix 39).

259 Video 27at 0’47, 2’07, 3’35, 6’04, 8’28 (shot from the Arctic Sunrise bridge).

260 See Marchenkov Interrogation Report, p. 12 (Appendix 8.a): “. . . the Greenpeace inflatables turned away from the platform and began heading back to the ‘Arctic Sunrise’. At that point, our ship [the Ladoga] began heading toward the ‘Arctic Sunrise’ as well, simultaneously calling them on the radio with orders to stop . . . .”

261 For a complete description, see paras. 93-94 above.

262 Marchenkov Interrogation Report, p. 14 (Annex 8.a).

263 Marchenkov Interrogation Report, p. 12 (Annex 8.a).

264 Videos 20 and 21 (shot on the Arctic Sunrise bridge).

265 http://7x7-journal.ru/item/32389?r=murmansk. Website last visited on 9 August 2015.

266 Second Supplementary Submission, p. 13, para. 1, referring to Greenpeace International Statement of Facts, para. 39.

267 Video 12 at 0’16 (shot on the Arctic Sunrise bridge); Video 27 at 5’43 (shot on the Arctic Sunrise bridge).

268 Note Verbale from the Russian Federation to the Netherlands, 18 September 2013 (Annex N-5).

269 Note Verbale from the Russian Federation to the Netherlands, 18 September 2013 (Annex N-5).

270 Greenpeace International Statement of Facts, para. 45.

271 Article 1 of the SUA Fixed Platforms Protocol incorporates, inter alia, Article 7 of the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation (“SUA Convention”). Article 7 of the SUA Convention empowers a State to take an offender into custody or take other measures to ensure his or her presence for such time as is necessary to enable any criminal or extradition proceedings to be instituted, when the State is satisfied that the circumstances so warrant. Such circumstances include when an offender is suspected of committing terrorist offences on board or against a fixed platform located on the continental shelf (see Article 2 of the SUA Fixed Platforms Protocol). Both the SUA Convention and Fixed Platforms Protocol were revised in 2005 (entry into force: 28 July 2010). The Netherlands signed each of the 2005 treaties on 31 January 2007 and deposited its instruments of acceptance on 1 March 2011 (entry into force: 30 May 2011). The Russian Federation is not a party to either of the 2005 treaties.

272 Article 4 of the SUA Fixed Platforms Protocol provides that “[n]othing in this Protocol shall affect in any way the rules of international law pertaining to fixed platforms located on the continental shelf.”

273 Nordquist, M., Nandan, S. & Rosenne, S. (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary , vol. II, pp. 791794 , and in particular p. 793.

274 With the exception of Article 80, which extends the coastal State’s exclusive rights and jurisdiction over artificial islands, installations, and structures in the EEZ under Article 60 to artificial islands, installations, and structures on the continental shelf.

275 ILC Articles concerning the law of the sea with commentaries,” (1956) Yearbook of the ILC, vol. II, p. 97 ; reproduced in Nordquist, M., Nandan, S. & Rosenne, S. (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary , vol. II, p. 896 . See also M/V “Virginia G” (Panama v. Guinea-Bissau), Judgment of 14 April 2014, ITLOS Reports 2014, to be published, para. 211; Natalie Klein, Maritime Security and the Law of the Sea, OUP 2011, p. 99.

276 With the exception of the breach of the 500-metre safety zone, which is addressed above in Section VII.B.2(a)ii, paras. 247 et seq.

277 Note Verbale from the Russian Federation to the Netherlands, 18 September 2014 (Annex N-5).

278 Memorial, para. 312, referring to the Verbatim record of the public sitting at the International Tribunal for the Law of the Sea in the ‘Arctic Sunrise’ Case on 6 November 2013, ITLOS/PV.13/C22/1/Rev.1, pp. 19–20.

279 Article 226(1) of the Convention sets out the parameters of such an inspection:

  1. 1.

    1. (a) States shall not delay a foreign vessel longer than is essential for purposes of the investigations provided for in articles 216, 218 and 220. Any physical inspection of a foreign vessel shall be limited to an examination of such certificates, records or other documents as the vessel is required to carry by generally accepted international rules and standards or of any similar documents which it is carrying; further physical inspection of the vessel may be undertaken only after such an examination and only when:

    • (i)

      (i) there are clear grounds for believing that the condition of the vessel or its equipment does not correspond substantially with the particulars of those documents;

    • (ii)

      (ii) the contents of such documents are not sufficient to confirm or verify a suspected violation; or

    • (iii)

      (iii) the vessel is not carrying valid certificates and records. [. . .]

280 Memorial, para. 316.

281 Memorial, para. 317.

282 Memorial, para. 317, referring to Ministry of Transport of the Russian Federation, Federal Agency of Maritime and River Transport, Federal State Institution, The Northern Sea Route Administration, Notification No. 77, 20 September 2013 (English Translation provided by the Administration), http://www.nsra.ru/files/zayavka/20130920143952ref%20A%20S.pdf. Webpage last visited on 9 August 2015.

283 Memorial, para. 316, referring to Article 3 of the Federal Law dated 28 July 2012 No. 132-F3 28 “On the Introduction of Changes to Certain Legislative Acts of the Russian Federation Related to the Governmental Regulation of Merchant Shipping in the Water Areas of the Northern Sea Route,” amending Article 5(1) of the Merchant Marine Code of the Russian Federation. Under Russian law, the western limit of the Northern Sea Route for ice-covered areas is presently defined as the “Novaya Zemlya Archipelago . . . , with the eastern coastline of the Novaya Zemlya Archipelago and the western borders of Matochkin Strait, Kara Strait and Yugorski Shar.”

284 Ministry of Transport of the Russian Federation, Federal Agency of Maritime and River Transport, Federal State Institution, The Northern Sea Route Administration, Notification No. 77, 20 September 2013 (English ranslation provided by the Administration), http://www.nsra.ru/files/zayavka/20130920143952ref%20A%20S.pdf. Webpage last visited on 9 August 2015.

285 Note Verbale from the Russian Federation to the Netherlands, 1 October 2013 (Annex N-10); Memorial, para. 328.

286 Resolution in Case No. 2109/623-13 of Administrative Offense, FSB Coast Guard Division for Murmansk Oblast, 8 October 2013 (Annex N-16/Appendix 14).

287 Resolution in Case No. 2109/623-13 of Administrative Offense, FSB Coast Guard Division for Murmansk Oblast, 8 October 2013, p. 9 (Annex N-16/Appendix 14). In the Decision on qualification, Investigation Committee, 23 October 2013 (Appendix 18) and the Ruling on bringing an accusation, Investigation Committee, 28 October 2013 (Appendix 19), reference is also made to resistant conduct of the Arctic Sunrise‘s RHIBs to the Ladoga RHIBs around the base of the Prirazlomnaya the morning of 18 September 2013.

288 Memorial, para. 328.

289 See paras. 98, 287 and 292 above.

290 Note Verbale from the Russian Federation to the Netherlands, 18 September 2014 (Annex N-5).

291 Memorial, para. 312, referring to the Verbatim record of the public sitting at the International Tribunal for the Law of the Sea in the ‘Arctic Sunrise’ Case on 6 November 2013, ITLOS/PV.13/C22/1/Rev.1, pp. 19–20.

292 See paras. 80, 84 above.

293 See para. 84 above.

294 Greenpeace International Statement of Facts, para. 10; see para. 80 above; E-mail from the Russian Ministry of Transport to the Netherlands, 5 December 2012 (Annex N-38); Hearing Tr., 10 February 2015 at 87:25-88:2 (examination of Mr. Peter Henry Willcox): “During [the 18 September 2013 protest], the reaction of the Russian forces was dramatically more aggressive than we had anticipated or experienced the year before.”

295 Greenpeace International Statement of Facts, para. 11.

296 Greenpeace International Statement of Facts, para. 12. See http://news.windowstorussia.com/greenpeace-ends-2-dayprotest-against-rosneft-in-arctic.html. Webpage last visited on 9 August 2015.

297 Greenpeace International Statement of Facts, para. 12.

298 Greenpeace International Statement of Facts, para. 13.

299 Greenpeace International Statement of Facts, para. 13; Memorial, para. 317; see also website of the Administration of the Northern Sea Route, http://www.arctic-lio.com/node/200. Webpage last visited on 9 August 2015.

300 Memorial, para. 317.

301 Greenpeace International Statement of Facts, para. 13. See also Russia shuts Greenpeace out of Arctic Sea route, stifles criticism of oil industry, press release, 21 August 2013, http://www.greenpeace.org.uk/media/press-releases/russia-shutsgreenpeace-out-arctic-sea-route-stifles-criticism-oil-industry-20130821. Webpage last visited 9 August 2015; Greenpeace ship to leave Kara Sea under threat of force from Russian CoastGuard, press release, 26 August 2013, http://www.greenpeace.org/international/en/press/releases/Greenpeace-ship-to-leave-Kara-Sea-under-threat-of-force-from-Russian-Coast-Guard/. Webpage last visited on 9 August 2015.

302 Greenpeace International Statement of Facts, para. 14; see also Marchenkov Interrogation Report, pp. 9–10 (Appendix 8.a).

303 Greenpeace International Statement of Facts, para. 15; Hearing Tr., 10 February 2015 at 102:20-23 (examination of Mr. Dimitri Litvinov); see para. 84 above.

304 Letter from Ben Ayliffe (Greenpeace International) to Artur Akopov (Chief of the Prirazlomnaya), with a copy to Alexander Mandel (General Director of Gazprom Neft Shelf), 18 September 2013 (Appendix 2); Hearing Tr., 10 February 2015 at 102:23-103:2 (examination of Mr. Dimitri Litvinov).

305 Note Verbale from the Russian Federation to the Netherlands, 18 September 2013 (Annex N-5).

306 Greenpeace International Statement of Facts, para. 45.

307 Marchenkov Interrogation Report, p. 11 (Appendix 8.a).

308 Hearing Tr., 10 February 2015 at 53 (opening statement of the Netherlands).

309 Hearing Tr., 10 February 2015 at 33-48 (opening statement of the Netherlands). See also the Netherlands’ letter dated 25 February 2015 enclosing Official documentation of examples referred to by the Co-Agent and attached documents.

310 See para. 227 above.

311 Request for the prescription of provisional measures under Article 290, paragraph 5, of the United Nations Convention of the Law of the Sea, 21 October 2013 (Annex N-2).

312 ITLOS Order, para. 105. https://www.itlos.org/fileadmin/itlos/documents/cases/case_no.22/Order/C22_Ord_22_11_2013_orig_Eng.pdf. Website last visited on 9 August 2015.

313 Article 290 uses the word “prescribe” and provides at subparagraph 6 that “[t]he parties to the dispute shall comply promptly with any provisional measures prescribed under this article.” Article 296(1) provides that “[a]ny decision rendered by a court or tribunal having jurisdiction under this section shall be final and shall be complied with by all the parties to the dispute.”

314 Article 25(1) provides that, “[i]n accordance with article 290, the Tribunal and its Seabed Disputes Chamber shall have the power to prescribe provisional measures.”

315 On the binding nature of the provisional measures is prescribed, see ITLOS Order, para. 101: “Considering the binding force of the measures prescribed and the requirement under article 290, paragraph 6, of the Convention, that compliance with such measures be prompt. . . .” On the binding nature of provisional measures prescribed by a court or tribunal under Part XV or Part XI, Section 5 of the Convention, see also Mensah, T. A., “Provisional Measures in the International Tribunal for the Law of the Sea (ITLOS),” (2002) 62 Zeitschrift fur ausländisches öffentliches Recht und Völkerrecht, pp. 4445 ; Wolfrum, R., “Provisional Measures of the International Tribunal for the Law of the Sea,” in Chandrasekhara Rao, P. & Khan, R. (eds.), The International Tribunal for the Law of the Sea: Law and Practice, 2001, pp. 185186 .

316 Crawford, J., The International Law Commission’s Articles on State Responsibility: Introduction, Text and Commentaries, Cambridge University Press, 2002, p. 258 , para. 7.

317 Note Verbale from the Netherlands to the Russian Federation, 2 December 2013 (Annex N-27). Netherlands’ Report on Compliance with the ITLOS Order, 22 November 2013 (Annex N-28). By letter dated 9 June 2015, the Netherlands advised ITLOS that the bank guarantee had ceased to be effective as it was not collected by Russia within the relevant time period, i.e., by 2 June 2014. The Agent for the Netherlands indicated that parliament had been informed of its potential liability in the amount of the bank guarantee and had committed to implement any decision of this Tribunal that may require it to pay compensation in the amount of the bank guarantee.

318 ITLOS Order, para. 105.

319 ITLOS Order, para. 101: “Considering the binding force of the measures prescribed and the requirement under article 290, paragraph 6, of the Convention, that compliance with such measures be prompt (see Southern Bluefin Tuna (New Zealand v. Japan; Australia v. Japan), Provisional Measures, Order of 27 August 1999, ITLOS Reports 1999, p. 280, at p. 297, para. 87).”

320 Greenpeace International Statement of Facts, para. 68.

321 See e.g. Order on the imposition of interim measures in the form of detention, District Court, 26 September 2013 (Appendix 9); Greenpeace International Statement of Facts, paras. 70, 71, 75.

322 Greenpeace International Statement of Facts, para. 84.

323 Note Verbale from the Netherlands to the Russian Federation, 3 October 2013 (Annex N-11).

324 See e.g. Appellate Ruling, Murmansk Regional Court, 23 October 2013 (Appendix 15); Greenpeace International Statement of Facts, paras. 84, 96.

325 See e.g. Decision, Primorsky District Court of St. Petersburg, 19 November 2013 (Appendix 22).

326 Greenpeace International Statement of Facts, para. 112.

327 Greenpeace International Statement of Facts, para. 112.

328 Greenpeace International Statement of Facts, para. 115.

329 Greenpeace International Statement of Facts, para. 116.

330 Kommersant, 6 December 2013, http://kommersant.ru/Doc/2361407. Website last visited on 9 August 2015.

331 Greenpeace International Statement of Facts, para. 117; see e.g. Decision on the dismissal of petition, Investigation Committee, 9 December 2013 (Appendix 26).

332 Article 6(5), http://www.rg.ru/2013/12/18/amnistia-dok.html. Website last visited on 9 August 2015.

333 See e.g. Resolution on termination of proceedings following the act of amnesty, Investigation Committee, 24 December 2013 (Appendix 27).

334 See e.g. Decision on the refusal to initiate administrative proceedings, FMS, 25 December 2015 (Appendix 28).

335 Greenpeace International Statement of Facts, para. 120.

336 Memorial, para. 361.

337 Official report of seizure of property, 15 October 2013 (Annex N-14/Appendix 16).

338 Note Verbale from the Netherlands to the Russian Federation, 18 October 2013 (Annex N-15).

339 Hearing Tr., 10 February 2015 at 81, 83 (examination of Mr. Sergey Vasilyev).

340 Ruling, Primorsky District Court of St. Petersburg, 14 March 2014 (Appendix 32). See also Letter from the Investigation Committee to Stichting Phoenix, 24 March

341 Transfer-Acceptance Act of a Vessel, Investigation Committee, 6 June 2014 (Appendix 34). See also reenpeace International Statement of Facts, para. 130; Note Verbale from the Russian Federation to the Netherlands, 12 June 2014 (Annex N-32).

342 Memorial, para. 359.

343 ITLOS Order, para. 105.

344 Greenpeace International Statement of Facts, paras. 130– 131, 133–134, 136.

345 Memorial, para. 362; Greenpeace International Statement of Facts, para. 137.

346 Greenpeace International Statement of Facts, paras. 131– 139.

347 ITLOS Order, para. 105.

348 Memorial, para. 397(1)(g); Hearing Tr., 11 February 2015 at 33:18-34:1 (closing statement of the Netherlands).

349 The Tribunal notes that the Netherlands addressed circumstances precluding wrongfulness in its Memorial (paras. 200–205, 251–252, 348–349, 369, 377) as well as in its Second Supplementary Submission (pp. 20–32).

350 Hearing Tr., 11 February 2015 at 30–35 (closing statement of the Netherlands); Supplementary Submission; Memorial, paras. 391-396; see paras. 140.iii.b) and 141 above.

351 Memorial, paras. 379–380.

352 Supplementary Submission, para. 4.

353 Memorial, para. 390; Supplementary Submission, paras. 5– 23.

354 Supplementary Submission, para. 29.

355 Supplementary Submission, paras. 29–30, quoting Articles on State Responsibility, Commentary to Article 37.

356 Supplementary Submission, para. 30.

357 Statement of Claim, para. 37; Memorial, para. 397.

358 Supplementary Submission, para. 31.

359 Supplementary Submission, para. 31.

360 Supplementary Submission, para. 40, referring to objects listed in Claim Statement (Annex N-42), Appendix 2.

361 Supplementary Submission, para. 41, referring to Claim Statement (Annex N-42), Appendices 1 and 2.

362 Supplementary Submission, para. 49, referring to objects listed in Claim Statement (Annex N-42), Appendix 10.

363 Supplementary Submission, para. 50, referring to Claim Statement (Annex N-42), Appendices 1 and 2.

364 See para. 172 above.

365 Hearing Tr. 11 February 2015 at 30–35 (closing statement of the Netherlands); Memorial, para. 391–396.

366 Supplementary Submission, para. 46.

367 See e.g. Resolution on termination of proceedings following the act of amnesty, Investigation Committee, 24 December 2013 (Appendix 27).

368 Order on the closure of criminal case no. 83543, Investigation Committee, 24 September 2014, p. 22 (Appendix 37).

369 Supplementary Submission, para. 32.

370 Supplementary Submission, para. 33, referring to Annex N-43.

371 Supplementary Submission, paras. 42–44, referring to Claim Statement (Annex N-42), Appendix 1.

372 Supplementary Submission, para. 42, referring to Claim Statement (Annex N-42), Appendices 1 and 2.

373 Supplementary Submission, para. 44, referring to Claim Statement (Annex N-42), Appendix 1.

374 Supplementary Submission, para. 51, referring to Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo), Compensation, Judgment of 19 June 2012, ICJ Reports 2012, p. 324, paras. 21–24; M/V “SAIGA” (No. 2) (Saint Vincent and the Grenadines v. Guinea), Judgment of 1 July 1999, ITLOS Reports 1999, p. 10, para. 175).

375 Supplementary Submission, para. 53, referring to Claim Statement (Annex N-42), Appendix 1.

Arctic Sunrise Arbitration (Netherlands v. Russia) (Perm. Ct. Arb.)

  • Theodore Kill (a1)

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