Russian-Dutch settlement on Arctic Sunrise is a recognition of international law

For the first time since 2013 a major bilateral dispute between Russia and the Netherlands has been settled. It is a small breakthrough in the tense political relations between the two countries. According to law of the sea expert Alex Oude Elferink, the agreement about the Arctic Sunrise gives both parties the possibility to hold on to their own point of view, but at the same time recognizes the significance of international law for their bilateral relations.  

By Alex Oude Elferink

In light of the Russian Federation’s forceful rejection of the arbitration on the detention of the Greenpeace vessel Arctic Sunrise and its outcome, it might come as a surprise that the Netherlands and the Russian Federation recently reached a settlement of the dispute. On 17 May they issued a joint statement, in which they set out the terms of this settlement. Interestingly, the joint statement not only is concerned with the dispute, but also announces the wish of both states to enhance joint scientific research in the Russian Arctic. This signals that both states not only want to close a chapter in the Arctic relations, but also want to look ahead.

arctic sunriseThe Arctic Sunrise sails under Dutch flag. Photo Wikimedia

The joint statement indicates that it is without prejudice to the legal positions of both states in regards of the dispute involving the Arctic Sunrise and the rig Prirazlomnaia. In other words, the joint statement does not imply that the Russian Federation accepts the outcome of the arbitration or that the Netherlands accepts the Russian position in this regard. According to press reports, the Russian Federation will make payment of at least € 2.7 million to the Netherlands as part of the settlement. This amounts to half of the damages awarded to the Netherlands by the arbitral tribunal.

The dispute about the Greenpeace vessel Arctic Sunrise

In the fall of 2013, the detention of the vessel Arctic Sunrise and its crew by Russian security forces was breaking news. The detention followed a protest action of Greenpeace activists against the rig Prirazlomnaia, which was planned to begin the commercial production of oil in the Pechora Sea in the exclusive economic zone of the Russian Federation.

The Russian Federation accused the activists among others of engaging in piracy and hooliganism and they faced criminal charges entailing long prison terms. The detention of the vessel and its crew, prompted the Netherlands, the flag state of the Arctic Sunrise, to start arbitral proceedings against the Russian Federation under the United Nations Convention on the Law of the Sea (Convention), to which both States are parties.

The Russian Federation immediately rejected that the arbitral tribunal had the jurisdiction to deal with this dispute and took the somewhat unusual step of not participating in the proceedings. However, the non-participation of the Russian Federation did not stop the arbitral procedure.

Prior to the constitution of the arbitral tribunal, the International Tribunal for the Law of the Sea, indicating provisional measures to protect the rights of the Netherlands, had already ordered the Russian Federation to release the Arctic Sunrise and its crew.

 The arbitral tribunal subsequently issued three awards (decisions).

  • In 2014, the tribunal concluded that it had jurisdiction to deal with the dispute. The Convention provides that this is a determination to be made by the tribunal concerned, and not unilaterally by one of the parties, like in this case the Russian Federation.
  • In 2015 the tribunal issued an award on the merits, finding among others that the Russian Federation had acted in breach of the Convention in arresting the Arctic Sunrise and detaining its crew.
  • A final award, in 2017 determined that the Russian Federation had to pay to the Netherlands € 5.4 million in damages.

The Russian Federation maintained that it had acted in full conformity with its rights under international law and that the illegal action of the Arctic Sunrise had infringed the rights of the Russian Federation over the economic resources of its exclusive economic zone. The Russian Federation rejected the decision of the tribunal and refused to comply with it.

A major part of the joint statement is concerned with a restatement of the rights and obligations of the coastal state and the flag state in relation to activities in the exclusive economic zone as contained in the Convention. In this connection, the statement recognizes the freedom of navigation of other states in the exclusive economic zone and the rights of the coastal state over the natural resources and installations in the zone.

Right to protest

As is provided for in the Convention, the statement provides that both sides in this connection have to have due regard to the rights and duties of the other. The joint statement provides a significant elaboration as regards the right of protest actions at sea, which are only implicitly included in the Convention. The statement defines the parameters within which protest actions have to take place, providing among others that they: '(i) do not violate legislation of the coastal State, adopted in accordance with international law; (ii) do not imperil human life, the marine environment, or property; and (iii) do not delay or interrupt essential operations.' It is also recognized that the coastal state may take enforcement measures where protest actions do not meet these requirements.

However, at the same time the statement recognizes that such enforcement measures must be in accordance with the applicable human rights standards. Interestingly, in the light of the relevant case law of the European Court of Human Rights, the Russian criminal charges against the crew of the Arctic Sunrise, which could have led to long-term prison sentences, were in all likelihood not in accordance with those standards.

The statement also specifies the duties of the flag state in relation to its vessels engaged in protest action at sea. The requirement of the Convention that the flag State is to exercise effective jurisdiction and control is reaffirmed. The somewhat convoluted elaboration of these duties might suggest that the flag state should ensure that certain activities do not take place. However, on closer reading, the statement indicates that the flag state is required to exercise due diligence in taking enforcement measures against vessels flying its flag. This standard, which is in accordance with the Convention, implies that the flag state is not obliged to prevent all illegal activities of vessels flying its flag, but takes appropriate action in case allegedly illegal actions take place.

Burdened Dutch-Russian relations

For the first time since 2013 a major bilateral dispute between Russia and the Netherlands has been settled. Talks behind the scenes between Dutch and Russian officials in 2018 en 2019 have resulted in the Arctic Sunrise- settlement and a bilateral statement, signed on May 17 in Helsinki by Lavrov and Blok in the margins of an annual meeting of Foreign Affairs ministers of the Council of Europe.

Apart from the international conflicts about the annexation of Crimea and the Russian meddling in East-Ukraine, which involve economic and other sanctions, the Dutch-Russian relations are burdened by the downing of flight MH17 in 2014. Also,  in a dispute on Scythian gold objects on loan from Crimean museums, Russia accuses the Netherlands of partisanship. The objects  are kept in the Netherlands as long as a Dutch court decision on the claims of Ukraine and Russian museums is pending. After the MH17 was shot down diplomatic relations between the Netherlands and Russia were scaled down.

The Dutch Ministry of Foreign Affairs considers the settlement on the Arctic Sunrise as a sign that cautious dialogue can lead to results. This is meaningful in the light of the Dutch strategypaper on Russia which is in preparation and due to be presented to parliament later this year.

This settlement cannot serve as a model for the much larger dispute about the MH17, but might still give some cautious hope that Russia would be willing to make a gesture by giving a financial compensation to the next of kin of the victims. Since the Netherlands last year formally held Russia accountable for its part in the MH17, it has entered into talks with Russian officials about ‘finding a solution that would do justice to the tremendous suffering and damage caused by the downing of MH17’.     

Together with the settlement on the Arctic Sunrise the two countries have declared to finance joint Russian-Dutch scientific research activities in the Russian Arctic region. Each government will make €300.000 available for this purpose.  

Greenpeace is satisfied with the settlement. The organisation was consulted during the negotiations. Its main concern was to ensure that the right to peaceful protest was secured by the outcome. According to Greenpeace this was also an important priority of the Dutch government.

Russia has agreed to pay an undisclosed sum to the Netherlands, and the Netherlands will forward €2.7 million to Greenpeace International as a compensation for damages to the vessel and to the 30 activists, who were detained by Russia.  [editorial team Raam op Rusland]  

The settlement concerning the Arctic Sunrise resolves one of the issues that in recent years have complicated the bilateral relations between the Netherlands and the Russian Federation. Other issues burdening these relations, the downing of flight MH17 and the Russian annexation of Crimea and its involvement in eastern Ukraine and the subsequent sanctions by the EU and its member states, including the Netherlands are much more intractable. This raises the question why the Netherlands and the Russian Federation decided to resolve their dispute over the Arctic Sunrise at this point in time.

lavrov en blokForeign Affairs ministers Blok (left) en Lavrov, Moscow april 2018. Photo

A number of considerations may have played a role. First, to the extent that Arctic issues can be viewed in isolation from these other matters, settling the dispute involving the Arctic Sunrise gets rid of an issue that is a complicating factor in (bilateral) cooperation on Arctic matters. The Netherlands Ministry of Foreign Affairs has indicated that the recognition of the successful defense of the right to engage in peaceful protest at sea is an important aspect of settling the dispute. True as that may be, it remains to be seen whether any activists will be willing to test how the Russian Federation will deal with similar protest actions in the future. The Russian Federation for its part likely considers that the joint statement vindicates its position that it can take enforcement actions against activists who damage its economic interests at sea.

It is highly unlikely that the settlement of the dispute concerning the Arctic Sunrise provides a template for resolving the dispute concerning the downing of flight MH17. That dispute involves the death of the 298 persons on board the aircraft and the criminal responsibility for those responsible for its downing. However, it could be said that the current settlement includes one aspect that is of primary importance for further discussions concerning the downing of flight MH17, namely the recognition that international law provides the framework for dealing with matters involving the bilateral relations of the Russian Federation and the Netherlands. Dealing successfully with the issue of the Arctic Sunrise may also have contributed to building personal relationships that play a role in dealing with a complex issue like the downing of flight MH17.

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