NOT COMPLETE YET 43. Considering that the Netherlands contends that: The jurisdiction of the arbitral tribunal is not affected by the declaration of the Russian Federation upon ratification that “in accordance with article 298 of the United Nations Convention on the Law of the Sea, it does not accept the procedures, provided for in section 2 of Part XV of the Convention, entailing binding decisions with respect to disputes concerning law-enforcement activities in regard to the exercise of sovereign rights or jurisdiction”. Under Article 298, paragraph 1(b), of the Convention, the optional exception in connection with disputes concerning law enforcement activities in regard to the exercise of sovereign rights or jurisdiction to the applicability of Section 2 of Part XV of the Convention only applies with respect to “disputes excluded from the jurisdiction of a court or tribunal under article 297, paragraph 2 or 3”. Such isputes concern marine scientific research and fisheries, respectively, neither of which is at issue in the present case; 44. Considering that the Netherlands further contends that: Insofar as the Russian Federation intended the aforementioned declaration to apply to disputes other than those concerning marine scientific research and fisheries, this would be in contravention of Article 309 of the Convention, which provides: “No reservations or exceptions may be made to this Convention unless expressly permitted by other articles of this Convention”. Furthermore, the Kingdom of the Netherlands upon ratification declared that it “objects to any declaration or statement excluding or modifying the legal effect of the provisions of the United Nations Convention on the Law of the Sea”; 45. Considering that, in the view of the Tribunal, the declaration made by the Russian Federation with respect to law enforcement activities under article 298, paragraph 1(b), of the Convention prima facie applies only to disputes excluded from the jurisdiction of a court or tribunal under article 297, paragraph 2 or 3, of the Convention; 46. Considering that, in the note verbale dated 22 October 2013, the Russian Federation informed the Tribunal that it did not intend to participate in the proceedings of the International Tribunal for the Law of the Sea in respect of the request of the Kingdom of the Netherlands for the prescription of provisional measures under Article 290, Paragraph 5, of the Convention; 47. Considering that the Netherlands states that it “regrets the refusal of the Russian Federation to participate in the proceedings before the Tribunal” and that “[t]his has an impact on the sound administration of justice”; 48. Considering that the absence of a party or failure of a party to defend its case does not constitute a bar to the proceedings and does not preclude the Tribunal from prescribing provisional measures, provided that the parties have been given an opportunity of presenting their observations on the subject (see Fisheries Jurisdiction (United Kingdom v. Iceland), Interim Protection, Order of 17 August 1972, I.C.J. Reports 1972, p. 12, at p. 15, para. 11; Fisheries Jurisdiction (Federal Republic of Germany v. Iceland), Interim Protection, Order of 17 August 1972, I.C.J. Reports 1972, p. 30, at pp. 32-33, para. 11; Nuclear Tests (Australia v. France), Interim Protection, Order of 22 June 1973, I.C.J. Reports 1973, p. 99, at p. 101, para. 11; Nuclear Tests (New Zealand v. France), Interim Protection, Order of 22 June 1973, I.C.J. Reports 1973, p. 135, at p. 137, para. 12; Aegean Sea Continental Shelf Case (Greece v. Turkey), Interim Protection, Order of 11 September 1976, I.C.J. Reports 1976, p. 3, at p. 6, para. 13; United States Diplomatic and Consular Staff in Tehran (United States of America v. Iran), Provisional Measures, Order of 15 December 1979, I.C.J. Reports 1979, p. 7, at pp. 11-12, para. 9, and at p. 13, para. 13); 49. Considering that all communications pertaining to the case were transmitted by the Tribunal to the Russian Federation and that the Russian Federation was informed that, pursuant to article 90, paragraph 3, of the Rules, the Tribunal was ready to take into account any observations that might be presented to it by a party before the closure of the hearing; 50. Considering that the Russian Federation was thus given ample opportunity to present its observations, but declined to do so; 51. Considering that the non-appearing State is nevertheless a party to the proceedings (see Nuclear Tests (Australia v. France), Interim Protection, Order of 22 June 1973, I.C.J. Reports 1973, p. 99, at pp. 103-104, para. 24), with the ensuing rights and obligations; 52. Considering that, as stated by the International Court of Justice, [a] State which decides not to appear must accept the consequences of its decision, the first of which is that the case will continue without its participation; the State which has chosen not to appear remains a party to the case, and is bound by the eventual judgment in accordance with Article 59 of the Statute (Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, I.C.J. Reports 1986, p. 14, at p. 24, para. 28); 53. Considering that the prescription of provisional measures must also take into account the procedural rights of both parties and ensure full implementation of the principle of equality of the parties in a situation where the absence of a party may hinder the regular conduct of the proceedings and affect the good administration of justice; 54. Considering that the Russian Federation could have facilitated the task of the Tribunal by furnishing it with fuller information on questions of fact and of law; 55. Considering the difficulty for the Tribunal, in the circumstances of this case, to evaluate the nature and scope of the respective rights of the Parties to be preserved by provisional measures; 56. Considering that the Netherlands should not be put at a disadvantage because of the non-appearance of the Russian Federation in the proceedings; 57. Considering that the Tribunal must therefore identify and assess the respective rights of the Parties involved on the best available evidence; 58. Considering that, before prescribing provisional measures under article 290, paragraph 5, of the Convention, the Tribunal must satisfy itself that prima facie the Annex VII arbitral tribunal would have jurisdiction; 59. Considering that the Netherlands maintains that, on 19 September 2013, in the exclusive economic zone of the Russian Federation, the vessel Arctic Sunrise, flying the flag of the Netherlands, was boarded by Russian authorities who detained the vessel and the 30 persons on board and that the vessel was subsequently towed to the port of Murmansk; 60. Considering that in the Statement of Claim the Netherlands argues that: The Russian Federation … in boarding, investigating, inspecting, arresting and detaining the ‘Arctic Sunrise’ without the prior consent of the Kingdom of the Netherlands, as described in this Statement, breached its obligations to the Kingdom of the Netherlands, in its own right and in the exercise of its right to protect a vessel flying its flag, in regard to the freedom of navigation as provided by Articles 58, paragraph 1, and 87, paragraph 1(a), of UNCLOS, and under customary international law; 61. Considering that the Netherlands contends that: The sovereign rights of a coastal State in maritime areas beyond its territorial sea are resource-oriented and limited in scope. The exercise of jurisdiction to protect these sovereign rights is functional. The law of the sea restricts the right of a coastal State to exercise jurisdiction in these areas. A coastal State cannot unilaterally extend such a right; 62. Considering that the Netherlands further contends that: [J]urisdiction over the establishment and use of installations and structures is limited to the rules contained in article 56, paragraph 1, and is subject to the obligations contained in article 56, paragraph 2, article 58 and article 60 of the Convention; 63. Considering that the Netherlands argues that: The Convention prohibits the boarding of foreign vessels on the high seas: article 110. This prohibition applies to the boarding of foreign vessels in the exclusive economic zone: article 58, paragraph 2. The right of visit and search is an exception to the freedom of navigation and flag State jurisdiction, and thus needs a specific justification in every instance. Indeed, in the case concerning the S.S. Lotus, the Permanent Court of International Justice held that, “It is certainly true that – apart from certain special cases which are defined by international law – vessels on the high seas are subject to no authority except that of the State whose flag they fly.” Any exceptions to the general prohibitive rule to exercise enforcement jurisdiction over foreign vessels are explicit and cannot be implied. The interpretation and application of any such exceptions must be narrowly construed; 64. Considering that, in a note verbale dated 1 October 2013 from the Embassy of the Russian Federation in the Netherlands addressed to the Ministry of Foreign Affairs of the Netherlands, the Russian Federation states that: On 19 September … within the exclusive economic zone of the Russian Federation, on the basis of Articles 56, 60 and 80 of the United Nations Convention on the Law of the Sea, 1982, and in accordance with Article 36 (1(1)) of the Federal Law “On the Exclusive Economic Zone of the Russian Federation” a visit … to the vessel “Arctic Sunrise” was carried out. … In view of the authority that a coastal State possesses in accordance with the aforementioned rules of international law, in the situation in question requesting consent of the flag State to the visit by the inspection team on board the vessel was not required; 65. Considering that the Embassy of the Russian Federation in the Federal Republic of Germany, in its note verbale of 22 October 2013 addressed to the Tribunal, further stated that: The actions of the Russian authorities in respect of the vessel “Arctic Sunrise” and its crew have been and continue to be carried out as the exercise of its jurisdiction, including criminal jurisdiction, in order to enforce laws and regulations of the Russian Federation as a coastal state in accordance with the relevant provisions of the United Nations Convention on the Law of the Sea; 66. Considering that the Netherlands has invoked as the basis of jurisdiction of the Annex VII arbitral tribunal article 288, paragraph 1, of the Convention, which reads as follows: A court or tribunal referred to in article 287 shall have jurisdiction over any dispute concerning the interpretation or application of this Convention which is submitted to it in accordance with this Part; 67. Considering that the Netherlands maintains that the dispute with the Russian Federation concerns the interpretation and application of certain provisions of the Convention, including, in particular, Part V and Part VII, notably article 56, paragraph 2, article 58, article 87, paragraph 1(a), and article 110, paragraph 1; 68. Considering that, in the light of the positions of the Netherlands and the Russian Federation, a difference of opinions exists as to the applicability of the provisions of the Convention in regard to the rights and obligations of a flag State and a coastal State, notably, its articles 56, 58, 60, 87 and 110, and thus the Tribunal is of the view that a dispute appears to exist between these two States concerning the interpretation or application of the Convention; 69. Considering that, at this stage of the proceedings, the Tribunal is not called upon to establish definitively the existence of the rights claimed by the Netherlands; 70. Considering that, in the view of the Tribunal, the provisions of the Convention invoked by the Netherlands appear to afford a basis on which the jurisdiction of the arbitral tribunal might be founded; 71. Considering that, for the above reasons, the Tribunal finds that the Annex VII arbitral tribunal would prima facie have jurisdiction over the dispute; 72. Considering that article 283, paragraph 1, of the Convention reads as follows: When a dispute arises between States Parties concerning the interpretation or application of this Convention, the parties to the dispute shall proceed expeditiously to an exchange of views regarding its settlement by negotiation or other peaceful means; 73. Considering that the Netherlands and the Russian Federation have exchanged views regarding the settlement of their dispute as reflected in the exchange of diplomatic notes and other official correspondence between them since 18 September 2013, including the note verbale dated 3 October 2013 from the Ministry of Foreign Affairs of the Netherlands to the Embassy of the Russian Federation in the Netherlands; 74. Considering that, according to the Netherlands, the dispute was discussed on a number of occasions between the respective Ministers of Foreign Affairs; 75. Considering that the Netherlands, in the Request, maintains that “the possibilities to settle the dispute by negotiation or otherwise have been exhausted”; 76. Considering that the Tribunal has held that “a State Party is not obliged to continue with an exchange of views when it concludes that the possibilities of reaching agreement have been exhausted” (MOX Plant (Ireland v. United Kingdom), Provisional Measures, Order of 3 December 2001, ITLOS Reports 2001, p. 95, at p. 107, para. 60; see also “ARA Libertad” (Argentina v. Ghana), Provisional Measures, Order of 15 December 2012, ITLOS Reports 2012, p. 32, at p. 345, para. 71); 77. Considering that, in the circumstances of the present case, the Tribunal is of the view that the requirements of article 283 are satisfied; 78. Considering that, according to article 290, paragraph 5, of the Convention, provisional measures may be prescribed pending the constitution of the Annex VII arbitral tribunal if the Tribunal considers that the urgency of the situation so requires; 79. Considering that article 290, paragraph 5, of the Convention provides that: Pending the constitution of an arbitral tribunal to which a dispute is being submitted under this section, any court or tribunal agreed upon by the parties or, failing such agreement within two weeks from the date of the request for provisional measures, the International Tribunal for the Law of the Sea or, with respect to activities in the Area, the Seabed Disputes Chamber, may prescribe, modify or revoke provisional measures in accordance with this article if it considers that prima facie the tribunal which is to be constituted would have jurisdiction and that the urgency of the situation so requires. Once constituted, the tribunal to which the dispute has been submitted may modify, revoke or affirm those provisional measures, acting in conformity with paragraphs 1 to 4; 80. Considering that the Tribunal holds that article 290, paragraph 5, of the Convention has to be read in conjunction with article 290, paragraph 1, of the Convention; 81. Considering that article 290, paragraph 1, of the Convention provides that: If a dispute has been duly submitted to a court or tribunal which considers that prima facie it has jurisdiction under this Part or Part XI, section 5, the court or tribunal may prescribe any provisional measures which it considers appropriate under the circumstances to preserve the respective rights of the parties to the dispute or to prevent serious harm to the marine environment, pending the final decision; 82. Considering that, in accordance with article 290, paragraph 1, of the Convention, the Tribunal may prescribe provisional measures to preserve the respective rights of the parties to the dispute or to prevent serious harm to the marine environment; 83. Considering that, in accordance with article 290, paragraph 5, of the Convention, the Annex VII arbitral tribunal, once constituted, may modify, revoke or affirm any provisional measures prescribed by the Tribunal; 84. Considering that there is nothing in article 290, paragraph 5, of the Convention to suggest that the measures prescribed by the Tribunal must be confined to the period prior to the constitution of the Annex VII arbitral tribunal (see Case concerning Land Reclamation by Singapore in and around the Straits of Johor (Malaysia v. Singapore), Provisional Measures, Order of 8 October 2003, ITLOS - Reports 2003, p. 10, at p. 22, para. 67); 85. Considering that the said period is not necessarily determinative for the assessment of the urgency of the situation or the period during which the prescribed measures are applicable and that the urgency of the situation must be assessed taking into account the period during which the Annex VII arbitral tribunal is not yet in a position to “modify, revoke or affirm those provisional measures” (Case concerning Land Reclamation by Singapore in and around the Straits of Johor (Malaysia v. Singapore), Provisional Measures, Order of 8 October 2003, ITLOS Reports 2003, p. 10, at p. 22, para. 68); 86. Considering that the Netherlands, in its final submissions, requests the Tribunal to order the immediate release of the vessel Arctic Sunrise and the members of its crew and maintains that the requested provisional measures are appropriate to preserve the rights of the Netherlands; 87. Considering that the Netherlands states: As a result of the continued detention of the ‘Arctic Sunrise’ in Kola Bay, Murmansk Oblast, its general condition is deteriorating. As the vessel is an aging icebreaker, it requires intensive maintenance in order to maintain its operability. The deterioration results from the impossibility to carry out the scheduled maintenance of its systems, which compromises the vessel’s safety and seaworthiness. This may, amongst others, create a risk for the environment, including the release of bunker oil. This reality is compounded by the prevailing harsh weather and ice conditions in the fragile Arctic region. As a consequence of the actions taken by the Russian Federation in connection with the boarding and detention of the ‘Arctic Sunrise’, the crew would continue to be deprived of their right to liberty and security as well as their right to leave the territory and maritime areas under the jurisdiction of the Russian Federation. The settlement of such disputes between two states should not infringe upon the enjoyment of individual rights and freedoms of the crew of the vessels concerned. The continuing detention of the vessel and its crew has irreversible consequences. As for the continuing detention of the crew, every day spent in detention is irreversible. To prolong the detention pending the constitution of the arbitral tribunal and the resolution of the dispute would further prejudice the rights of the Kingdom of the Netherlands; 88. Considering that the “Official Report on seizure of property”, issued by Russian authorities on 15 October 2013, states that: From the time of the ship being moored at the berth until the conclusion of the custody agreement concerning the Dutch-flagged ship Arctic Sunrise, IMO number 7382902, the Coast Guard of the Federal Security Service of Russia for Murmansk Oblast will be responsible for compliance with security measures. P.V. Sarsakova, as representative of the Murmansk office of the Federal State Unitary Enterprise ‘Rosmorport’ and S.V. Fedorov, as representative of the Coast Guard Division of the Federal Security Service of the Russian Federation for Murmansk Oblast have been notified, in accordance with article 115, paragraph 6 CCP RF [Code of Criminal Procedure of the Russian Federation], of their liability for any loss, disposal of, concealment or illegal transfer of property that has been seized or confiscated; 89. Considering that, under the circumstances of the present case, pursuant to article 290, paragraph 5, of the Convention, the urgency of the situation requires the prescription by the Tribunal of provisional measures; 90. Considering that the order for the seizure of the vessel Arctic Sunrise, dated 7 October 2013, of the Leninsky district court, Murmansk, states that the seizure of the aforementioned property is necessary for the enforcement of the part of the judgment concerning the civil claim, other economic sanctions or a possible forfeiture order in respect of the property in accordance with article 104.1 CCRF [Criminal Code of the Russian Federation]; who have been detained are allowed to leave the territory and maritime areas under the jurisdiction of the Russian Federation; 91. Considering that the Ministry of Foreign Affairs of the Netherlands requested, in its note verbale of 26 September 2013, addressed to the Embassy of the Russian Federation in the Netherlands, that “the Russian Federation immediately release the vessel and its crew” and inquired “whether such release would be facilitated by the posting of a bond or other financial security and, if so, what the Russian Federation would consider to be a reasonable amount for such bond or other financial security”; 92. Considering that the Netherlands states that the Russian Federation did not respond to this inquiry; 93. Considering that the Tribunal is of the view that, under article 290 of the Convention, it may prescribe a bond or other financial security as a provisional measure for the release of the vessel and the persons detained; 94. Considering that, in accordance with article 89, paragraph 5, of the Rules, the Tribunal may prescribe measures different in whole or in part from those requested; 95. Considering that, pursuant to article 290, paragraph 5, of the Convention, the Tribunal considers it appropriate to order that the vessel Arctic Sunrise and all persons who have been detained in connection with the present dispute be released upon the posting of a bond or other financial security by the Netherlands, and that the vessel and the persons be allowed to leave the territory and maritime areas under the jurisdiction of the Russian Federation; 96. Considering that the Tribunal determines, taking into account the respective rights claimed by the Parties and the particular circumstances of the present case, that the bond or other financial security should be in the amount of 3,600,000 euros, to be posted by the Netherlands with the competent authority of the Russian Federation, and that the bond or other financial security should be in the form of a bank guarantee, issued by a bank in the Russian Federation or a bank having corresponding arrangements with a Russian bank; 97. Considering that the issuer of the bank guarantee undertakes and guarantees to pay the Russian Federation such sum up to 3,600,000 euros as may be determined by a decision of the Annex VII arbitral tribunal or by agreement of the Parties, as the case may be, and that payment under the guarantee will be made promptly after receipt by the issuer of a written demand by the competent authority of the Russian Federation accompanied by a certified copy of the decision or agreement; 98. Considering that the Netherlands and the Russian Federation shall each ensure that no action is taken which might aggravate or extend the dispute submitted to the Annex VII arbitral tribunal, or might prejudice the carrying out of any decision on the merits which the Annex VII arbitral tribunal may render; 99. Considering that any action or abstention by either Party in order to avoid aggravation or extension of the dispute should not in any way be construed as a waiver of any of its claims or an admission of the claims of the other Party to the dispute (see M/V “Louisa” (Saint Vincent and the Grenadines v. Kingdom of Spain), Provisional Measures, Order of 23 December 2010, ITLOS Reports 2008-2010, p. 58, at p. 70, para. 79); 100. Considering that the present Order in no way prejudges the question of the jurisdiction of the Annex VII arbitral tribunal to deal with the merits of the case, or any questions relating to the merits themselves, and leaves unaffected the rights of the Netherlands and the Russian Federation to submit arguments in respect of those questions (see “ARA Libertad” (Argentina v. Ghana), Provisional Measures, Order of 15 December 2012, ITLOS Reports 2012, p. 332, at p. 350, para. 106); 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); 102. Considering that pursuant to article 95, paragraph 1, of the Rules, each Party is required to submit to the Tribunal a report and information on compliance with any provisional measures prescribed; 103. Considering that it may be necessary for the Tribunal to request further information from the Parties on the implementation of the provisional measures and that it is appropriate that the President be authorized to request such information in accordance with article 95, paragraph 2, of the Rules; 104. Considering that in the view of the Tribunal, it is consistent with the purpose of proceedings under article 290, paragraph 5, of the Convention, that parties also submit reports to the Annex VII arbitral tribunal, unless the arbitral tribunal decides otherwise; 105. For these reasons, THE TRIBUNAL, By 19 votes to 2, Prescribes, pending a decision by the Annex VII arbitral tribunal, the following provisional measures under article 290, paragraph 5, of the Convention: (a) The Russian Federation shall immediately release the vessel Arctic Sunrise and all persons who have been detained, upon the posting of a bond or other financial security by the Netherlands which shall be in the amount of 3,600,000 euros, to be posted with the Russian Federation in the form of a bank guarantee; (b) Upon the posting of the bond or other financial security referred to above, the Russian Federation shall ensure that the vessel Arctic Sunrise and all persons who have been detained are allowed to leave the territory and maritime areas under the jurisdiction of the Russian Federation; FOR: President YANAI; Vice-President HOFFMANN; Judges MAROTTA RANGEL, NELSON, CHANDRASEKHARA RAO, AKL, WOLFRUM, NDIAYE, JESUS, COT, PAWLAK, TÜRK, KATEKA, GAO, BOUGUETAIA, PAIK, KELLY, ATTARD; Judge ad hoc ANDERSON; AGAINST: Judges GOLITSYN, KULYK. (2) By 19 votes to 2, Decides that the Netherlands and the Russian Federation shall each submit the initial report referred to in paragraph 102 not later than 2 December 2013 to the Tribunal, and authorizes the President to request further reports and information as he may consider appropriate after that report. FOR: President YANAI; Vice-President HOFFMANN; Judges MAROTTA RANGEL, NELSON, CHANDRASEKHARA RAO, AKL, WOLFRUM, NDIAYE, JESUS, COT, PAWLAK, TÜRK, KATEKA, GAO, BOUGUETAIA, PAIK, KELLY, ATTARD; Judge ad hoc ANDERSON; AGAINST: Judges GOLITSYN, KULYK. Done in English and in French, both texts being equally authoritative, in the Free and Hanseatic City of Hamburg, this twenty-second day of November, two thousand and thirteen, in three copies, one of which will be placed in the archives of the Tribunal and the others transmitted to the Government of the Kingdom of the Netherlands and the Government of the Russian Federation, respectively. (signed) Shunji YANAI President (signed) Philippe GAUTIER Registrar Judge ad hoc Anderson appends a declaration to the Order of the Tribunal. Judges Wolfrum and Kelly append a joint separate opinion to the Order of the Tribunal. Judge Jesus appends a separate opinion to the Order of the Tribunal. Judge Paik appends a separate opinion to the Order of the Tribunal. Judge Golitsyn appends a dissenting opinion to the Order of the Tribunal. Judge Kulyk appends a dissenting opinion to the Order of the Tribunal.
Posted on: Sun, 24 Nov 2013 22:13:16 +0000
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