The Netherlands lodged a lawsuit against Russia today at the International Tribunal for the Law of the Sea (ITLOS) in Hamburg, seeking the release of the Greenpeace International ship Arctic Sunrise and its passengers.
This is an important and welcome move by the Dutch government and boosts hopes that the 28 Greenpeace International activists, plus a freelance photographer and videographer, might soon be released from detention in Murmansk.
The Arctic 30 are currently being held in cold, dirty cells in the Arctic port city of Murmansk, many of them in solitary confinement, after their ship was illegally seized by Russian authorities in international waters on September 19.
Their crime? Acting with good conscience to peacefully protest against Gazprom's Arctic oil drilling. They now face the absurd allegations of piracy, an offence that carries a maximum 15 year jail term – a charge the Greenpeace International and international legal experts agree holds no merit in international and Russian law.
But one by one, each of the detainees have been brought to the Regional Court of Murmansk in handcuffs, placed in a cage and had their appeals for bail dismissed. Their fate uncertain, the Arctic 30 have remained strong. Their courage, their plight, their calls for the Arctic to be protected continue to be heard from the courtroom.
"I want to show people all over the world that drilling in the Arctic is dangerous and could promote climate change … my goal is to let people know about what has happened and could happen in the Arctic. I haven't committed any crime, I am not guilty of piracy," Finnish activist Sini Saarela said.
The request for provisional measures lodged by the Dutch government at the tribunal in Hamburg is based on international law, however, and should be seen as separate to the legal proceedings in Murmansk.
The Netherlands lodged its request at the tribunal because the Arctic Sunrise is a Dutch flagged ship, making it akin to Dutch territory and affording the 'flag state' rights and duties under the 1982 UN Convention on the Law of the Sea (UNCLOS).
The Hamburg sea court has so far been infrequently used. Since it was established in 1996, it has heard just 21 cases. Only four of them have involved the issue of ‘provisional measures’.
The legal argument presented by the Netherlands will remain unknown until case documents become public, probably at the start of hearings. A likely argument is that the Russian Federation violated the right to freedom of navigation by boarding the vessel in Russia’s Exclusive Economic Zone (EEZ) (and clearly outside of Russia's territorial waters), in contravention of the UNCLOS.
The Russian action, by boarding the Arctic Sunrise at gunpoint and towing it away was disproportionate and the Russian authorities should instead have notified the Dutch of any complaint, since the ship was not in their territorial waters.
Any decision by the tribunal requires the parties to comply promptly with any provisional measures. The tribunal does allow, however, requests for the interpretation or revision of an order.
The last time Russia faced the tribunal it was ordered to release two Japanese fishing boats in a 2007 case brought by Japan under a 'prompt release' procedure - a different legal method than that opted for by the Dutch. In the 2007 incident, Russia complied with the tribunal's order within 10 days upon the posting of a 10 million ruble bond.
When it ratified UNCLOS, Russia made use of the possibility to exclude certain types of disputes from being heard by international courts and tribunals. This applies, for example, to disputes about law enforcement against illegal fishing or unauthorised scientific research. The reservation will not apply in this instance.
Based on prior experience, a hearing on the Dutch request for provisional measures should now take place within two to three weeks and a judgment should be handed down two weeks later.
As regards the fate of the Arctic 30, Greenpeace International therefore expects the tribunal to hand down its decision in about four weeks time. Greenpeace International hopes that this will lead to the release of the Arctic Sunrise and its passengers.