## Facts

- The *Arctic Sunrise* was a Netherlands-flagged vessel chartered and operated by Greenpeace International.
- The vessel carried 28 activists and two journalists intending to protest oil operations at Russia’s offshore platform *Prirazlomnaya* in the Pechora Sea, within Russia’s exclusive economic zone (EEZ).
- On September 19, 2013, Russian authorities boarded and seized the vessel in the EEZ, escorted it to Murmansk, and detained all persons on board.
- Russian authorities initially charged the detainees with piracy and later with hooliganism under Russian law.
- The Netherlands asserted that Russia’s boarding, seizure, and detention violated the Netherlands’ flag-state jurisdiction and the vessel’s freedom of navigation under the United Nations Convention on the Law of the Sea (UNCLOS).
- The Netherlands commenced UNCLOS Annex VII arbitration on October 4, 2013, and requested ITLOS provisional measures on October 21, 2013, pending constitution of the arbitral tribunal.
- Russia declined to appear, invoking an UNCLOS Article 298 declaration excluding certain disputes concerning law-enforcement activities in the EEZ from compulsory procedures.

## Issues

1. Whether Russia’s non-appearance prevented ITLOS from deciding a request for provisional measures.
2. Whether the future Annex VII tribunal had prima facie jurisdiction so ITLOS could act under UNCLOS Article 290(5).
3. Whether the Netherlands’ claimed UNCLOS rights were plausible and sufficiently linked to the measures sought.
4. Whether urgency existed due to a risk of irreparable prejudice to the rights in dispute.
5. Whether ITLOS could order release of the vessel and detainees conditioned on a bond or other financial security.

## Decision

- ITLOS proceeded despite Russia’s non-appearance and independently assessed the statutory and treaty requirements for provisional measures.
- ITLOS found prima facie jurisdiction for an Annex VII tribunal because both states were parties to UNCLOS and, absent matching Article 287 selections, were deemed to accept Annex VII arbitration.
- ITLOS concluded that the Netherlands’ claimed rights as flag state and related freedoms of navigation were at least plausible and linked to the requested relief.
- ITLOS found urgency and risk of irreparable prejudice from continued detention of the vessel and individuals, including effects on the vessel’s condition and the detainees’ liberty interests.
- ITLOS ordered Russia to immediately release the vessel and all detained persons upon the Netherlands’ posting of a €3,600,000 bond or other financial security, and to permit their departure from areas under Russian jurisdiction after the bond was posted.
- ITLOS ordered both states to refrain from actions that might aggravate or extend the dispute pending arbitration.

## Legal Principles

- A party’s non-appearance does not bar proceedings; the tribunal must still satisfy itself that prerequisites for relief are met.
- Under UNCLOS Article 290(5), ITLOS may prescribe provisional measures pending constitution of an Annex VII tribunal when that tribunal appears to have prima facie jurisdiction.
- For provisional measures, claimed rights must be plausible and there must be a sufficient connection between those rights and the measures requested.
- Provisional measures require urgency and a risk of irreparable prejudice to the rights at issue.
- ITLOS may order release of a vessel and persons detained as a provisional measure, and may condition release on a bond or other financial security to protect competing interests pending final resolution.
- Coastal-state enforcement powers in the EEZ are limited to UNCLOS-granted functions and do not eliminate the flag state’s jurisdictional interests and navigation freedoms.

## Conclusion

ITLOS prescribed provisional measures requiring Russia to release the *Arctic Sunrise* and the detained individuals upon a €3.6 million security, finding prima facie Annex VII jurisdiction, plausible flag-state and navigation rights, and urgent risk of irreparable prejudice, while directing both states to avoid aggravating the dispute pending arbitration.


Kingdom of the Netherlands v. Russian Federation (The “Arctic Sunrise” Case), Case No. 22 (Int’l Trib. L. Sea 2013)