THE BLOG

Netherlands Sets Fresh Course vs. Moscow on Greenpeace Arctic Sunrise Seizure and Arrests

The immediate objective is to disarm Russia from exercising unilateral proceedings against the still detained crew and vessel Arctic Sunrise operated by Greenpeace International and registered in the Netherlands. By filing before the International Tribunal on the Law of the Sea, the Kingdom of the Netherlands has already managed to internationalize the dispute and perhaps repel piracy charges lodged against the 30 crew members by Russian Federation authorities in what was an over-reaching step by Moscow's political leadership to intimidate and squash dissent in the same way it has opted to squash protest and punish opposition such as "Pussy Riot" and Mikhail Khodorkovsky. The latter are still serving prison terms in Russia at least in part as lesson to other would-be activists/opponents.

Big Powers Generally Seek Unilateralism and Avoid Multilateralism?

Terror and now piracy charges are increasingly employed to intimidate and silence dissidents, and not only in Russia. Under the guise of security and combating criminality/terrorism, governments have employed legality without either a sincere commitment to justice or an objective review of the laws presumably violated. Now, the rule of law before an international tribunal may at least reveal the abuse of legality and judicial proceedings. Big powers, from Moscow, to Beijing to Washington, have been particularly keen to avoid the "internationalization" of disputes, from human rights to conflicting claims over land and/or sea. In territorial disputes with states as the Philippines to Japan, China has sought to avoid multilateral over bilateral methodologies. UN human rights officials have accused Beijing of harassing/intimidating Chinese citizens who are interviewed in a regularly review of China's human rights conditions (undertaken with respect to every member state by the UN Human Rights Council.) Washington has on more than one occasion ignored rulings of the International Court of Justice, included in the execution of a Mexican national. Big powers generally detest "internationalization" of disputes with other states, perhaps out of arrogance or simply perceiving greater military and/or political leverage in dealing bilaterally with smaller states. 

Duty to Protect at Sea and in "Safe Area"

The Netherlands is in a unique position to assert the rule of law in the case of the Arctic Sunrise, beyond the consideration of the ship's registration. The Netherlands is home to several major international tribunals, including the International Court of Justice and the International Criminal Court, as well as its predecessor, the ICTY -- "ex-Yugoslav Tribunal." The International Tribunal on the Law of the Sea is based out of Hamburg, Germany. The Netherlands has played a catalyzing role in the evolution of international law and its institutions. This has been as party to a claim made by several survivors of the Srebrenica killings-genocide. In a recent case, the Dutch Courts have ruled their own government liable for failing to protect Bosnians, at least the handful who were in the service of UN mandated Dutch peacekeepers while Serbian forces under the command of General Ratko Mladic continued executions of over 8,000 persons in the presumably UN and NATO protected "safe area." The Dutch Court set aside its own government's assertion of immunity presumably bestowed by the UN peacekeeping mandate as well as sovereign immunity. In other words, Netherlands courts have ruled against their own government when questions of international law have been at issue.  See here.

Does the Netherlands have some duty with respect to the Arctic Sunrise and its crew, although not entirely analogous to the case of the Srebrenica "safe area"? Under the law of the sea, the ship registered therein and international crew are part of the Netherlands' responsibility. Thus, the Netherlands has appropriately asserted the law of the sea to defend such rights as may flow from relevant treaties and customary law, as well as seeking "Provisional Measures," or temporary relief, including immediate release of the crew and ship. If the Russian Federation asserts damages presumably committed by the Arctic Sunrise, it could seek some form of assurance from the Netherlands. The Moscow claim that the ship and its crew were engaged in piracy in my view should and would be quickly rejected by an independent international tribunal or arbitration which could hear the case. (As the Russian Federation has yet to respond to the Netherlands' petition, the Dutch have in the first order sought arbitration. The ICJ could also presumably come into play if the Russian Federation or either party fails to honor a ruling of the Sea Tribunal/arbitrator. For more information on the Netherlands' petition before the International Tribunal on the Law of the Sea, see here.)

Could US to Turkey to Argentina Join Netherlands Petition -- Moscow Face Sanctions

The 30-member crew represents multiple nationalities, including Argentina, Australia, Brazil, Canada, Denmark, Finland, France, Italy, Morocco, the Netherlands, New Zealand, Poland, the Russian Federation, Sweden, Switzerland, Turkey, Ukraine, the United Kingdom and the United States. Presumably all of these states could and would be obliged to join the Netherlands in protecting the rights of their citizens, especially if the Russian Federation failed to honor the rulings of the Sea Tribunal including provisional measures for release. In theory, Moscow's failure to comply with a ruling of the Sea Tribunal and ICJ could be cause for sanctions presumably to be applied by the UN Security Council. Clearly the UNSC with Moscow as veto wielding Permanent Member will not impose any such sanctions. However, by then in the court of public opinion Moscow would be as clear loser and find it hard to ignore the Sea Tribunal's rulings or deliberations. Further, as a global sea fearing power, the Russian Federation is more apt to seek the Sea Tribunal in other disputes involving its own ships.

Internationalization of Environmental Activism?

Regardless of the immediate direct rulings and consequences of the Netherlands' petition to the Sea Tribunal, the effect has been to "internationalize" the case of the Arctic Sunrise. It will be considerably more difficult for Moscow to unilaterally apply its own political will and legality. Perhaps just as critical for the evolution of international environmental activism, there is now an international legal precedent that may offer both greater protection and responsibility.

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