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1. RUSSIA’S ACTIONS CONCERNING THE VESSEL ARCTIC SUNRISE ARE REASON FOR CONCERN Recent actions by agents of the Russian Federation (Russia) in connection with the Greenpeace vessel ARCTIC SUNRISE (IMO: 7382902, Flag: Netherlands) in the Russia’s Exclusive Economic Zone raise a number of issues under international law. From the information publicly available at this time, it appears that Russia has disregarded several of its international obligations in order to force environmental activists to end peaceful protests. On Wednesday, 18 September 2013, activists from the ARCTIC SUNRISE stages a protest at the oil rig PRIRAZLOMNAYA, which is located in the Exclusive Economic Zone (EEZ) of the Russian Federation. The activists and vessel were forced away from the area by Russian agents who fired a several weapons, including automatic firearms in the vicinity of inflatable boats used by the Greenpeace activists. Said inflatable boats were also rammed and slashed. On Thursday, 19 September 2013, the ARCTIC SUNRISE was taken over by armed Russian agents inside Russia’s EEZ. The crew was detained. Media reports indicate that Russian authorities consider the peaceful protests to amount to piracy. 2. A 3 NM EXCLUSION ZONE IS INCOMPATIBLE WITH INTERNATIONAL LAW In a Notice to Mariners, the Russian Federation had declared an exclusion zone with a radius of three (3) nautical miles around the PRIRAZLOMNAYA. This is incompatible with international law. While Russia may make use of natural resources in its EEZ and declare exclusion zones, it has to be kept in mind that the rights of the coastal State in the EEZ are not supposed to impose undue limits on marine traffic. The freedom of navigation on the seas has long been one of the key rules of international law. Article 60 (5) of the Law of the Sea Convention limits exclusion zones to a radius of 500 metres. 3. THE COAST GUARD ACTIONS ON WEDNESDAY WERE INCOMPATIBLE WITH THE LAW OF THE SEA While a coastal State may take some action in its EEZ, the massive use of force against peaceful protesters appears to have been completely disproportionate. The peaceful protest by Greenpeace activists may have violated Russian law and Russia might have had the right to ask the activists to leave the rig. Russia did not have the right to detain the crew of the ARCTIC SUNRISE one day after the original incident. Boarding and taken control of the ARCTIC SUNRISE may have been an act of terrorism by the persons who boarded the Greenpeace vessel. If command of the ARCTIC SUNRISE was taken as part of law enforcement efforts by the Russian Federation, it has to be noted that the Law of the Sea Convention only allows for a limited number of reasons for such action, none of which seem to be given in the case at hand. 4. DISABLING AIS CAN CAUSE GRAVE DANGERS TO THE SAFETY OF MARINE TRAFFIC As of Monday, 23 September 2013, 00:45 A.M. local time, the ARCTIC SUNRISE appears to have been en route to a Russian port. However the ships Automatic Identification System (AIS) was inactive. Regulation 19 of Chapter V of the International Convention for the Safety of Lives at Sea (SOLAS) requires ships of a certain size (which includes the ARCTIC SUNRISE-) to maintain an
AIS. Disabling the AIS can cause grave dangers to the safety of marine traffic. This is particularly the case when travelling at night or in bad weather conditions. 5. LABELLING NON-PIRACY ACTS AS PIRACY CAN HARM INTERNATIONAL ANTIPIRACY EFFPORTS It appears as if the Russian Federation considers the peaceful protest of Greenpeace activists to amount to acts of piracy. Piracy remains a serious issue in several parts of the world and continues to endanger the lives of seafarers who are working to maintain the global flow of goods which has become the backbone of the globalized economy. Around the world, seafarers as well as many men and women from national navies, police forces and other organisations are often risking their lives in the fight against piracy. In fact, under international law, all States are obliged to fight piracy. Labelling protesters as pirates is detrimental to these international efforts and a dishonor to the hard work of those who are risking their lives in the line of duty. All States should refrain from using the term with regard to acts which obviously do not amount to piracy. 6. ARRESTED PERSONS HAVE CERTAIN RIGHTS UNDER THE EUROPEAN CONVENTION ON HUMAN RIGHTS WHICH IS APPLICABLE IN THIS CASE Arrested persons have a number of legal rights under the European Convention on Human Rights (ECHR). The Russian Federation is a party to the ECHR and has to respect these rights fully. In particular is the ECHR applicable to the situation at hand since its applicability requires only the exercise of jurisdiction by the State in question. By detaining the crew of the ARCTIC SUNRISE, the Russian Federation has claimed jurisdiction and therefore can be held accountable for eventual human rights violations under the ECHR. 7. SLASHING OF INFLATABLE BOATS ON WEDNESDAY Slashing inflatable boats which are occupied by persons is not only incompatible with the law of the sea but also a violation of international human rights standards. A violation of the right to life under the European Convention on Human Rights is also possible if an action undertaken by a State is so dangerous as to seriously endanger a human life and the State agent risks the life of said person in a way that becomes no uncontrollable. It appears likely that the European Court of Human Rights would consider slashing an inflatable boat in Arctic waters to amount to such an illegal behaviour. Slashing occupied inflatable boats in such conditions appears reckless in the extreme and shows a complete disregard for human lives. 8. ARRESTING FOREIGNERS TRIGGERS AN OBLIGATION TO NOTIFY THEIR HOME STATES When a State arrests a foreigner, Article 36 (6) of the Vienna Convention on Consular Relations (an international treaty to which Russia is a party) requires that the foreigner’s home country is informed of the arrest. As of Sunday, 22 September 2013, there seems to have been no further contact between Greenpeace and the crew of the ARCTIC SUNRISE. It remains unclear but doubtful whether Russia has fulfilled the obligation under the Vienna Convention on Consular Relations. In ealier cases the International Court of Justice in The Hague has been concerned with this particular obligation under international law. This obligation is an important part of the realization of the right to a fair trial, which already is relevant at this time. In no case may the Russian Federation hold any person, regardless of nationality, incommunicado. 9. CONCLUSIONS
Russia’s actions with regard to the ARCTIC SUNRISE are incompatible with the international law of the sea as codified in the Law of the Sea Convention, the European Convention on Human Rights, the Vienna Convention on Consular Relations and possibly other international treaties. It appears that Russia has violated the human rights of the crewmembers as well as rights of the flag State (Netherlands) and of the crewmembers‘ respective home States. In order to comply with international law, Russia has to ensure the speedy release of the vessel and its crew. In addition, Russia should make sure that its agents are better trained in human rights, the law of the sea and consular relations law so as to allow Russia to better fulfil its obligations under international law. As an important coastal nation in the Arctic, Russia is set to profit greatly from the increase in Arctic shipping. Ensuring the rule of law and compliance with international law, though, is essential in order to gain and maintain the trust of the international community. The rights of all seafarers have to be safeguarded at all times. In light of Russia’s interest in the Arctic, this requires the Russian Federation to improve its compliance with international law. ____________________________________________________________ Rechtsanwalt Assoc. Prof. Dr. Stefan Kirchner, MJI is an international law consultant, specialising in advising private, corporate and government clients in matters of international law, in particular human rights, biolaw and the law of the sea. Professor Kirchner has taught courses on civil rights and internationalt law at universities in Germany, Lithuania and Ukraine and has been involved in proceedings before, among others, the European Court of Human Rights, the InterAmerican Court of Human Rights and the German Federal Constitutional Court. He currently is Visiting Professor for Fundamental and Human Rights at the Faculty of Law of the University of Lapland in Rovaniemi, Finland. This text only reflects his private opinion. Email: email@example.com; Phone (University of Lapland): +358 40 4844 001; Skype: rechtsanwalt.kirchner; Twitter: @Law247.