What do the experts say?

Feature story - September 29, 2013
A great number of legal experts have commented on the boarding and seizure of the Greenpeace International ship Arctic Sunrise and on the piracy and hooliganism charges against the Arctic 30.

A great number of legal experts have commented on the boarding and seizure of the Greenpeace International ship Arctic Sunrise and on the piracy and hooliganism charges against the Arctic 30.

Among them, lawyers specialised in international law of the sea and related disciplines have signed a statement of concern.

On 21 October 2013, the Netherlands filed a request for Provisional Measures with the International Tribunal for the Law of the Sea, asking it to order the release of the Arctic Sunrise vessel and all on board pending a decision on the arbitration case the Netherlands began on October 4. Greenpeace International supplied a detailed Statement of Facts that was lodged as an annex to the Dutch submission.

On 30 October 2013, Greenpeace International submitted an Amicus Curiae brief in support of the Dutch ITLOS request. Focussing on the human rights aspect of the Arctic Sunrise case, it was drafted by law experts Philippe Sands QC and Simon Olleson under the instruction of Kate Harrison.

On 22 November 2013, The International Tribunal for the Law of the Sea ordered the Russian Federation in a binding ruling to release the Greenpeace ship Arctic Sunrise and the 28 activists and two freelance journalists on board upon payment of a EUR 3.6 million bond.

Here is a selection of other legal experts' views:

Prof. Donald Rothwell

In an opinion article dated 19 November 2013, Donald Rothwell, Professor of International Law at the Australian National University, said: 

"Russia cannot … pick and choose when it will and will not abide by the law of the sea. As a leading international citizen, it has a clear obligation to follow the Tribunal's ruling and release the Arctic Sunrise and its crew and to allow them to leave Russia. It should indicate its compliance with the Tribunal's orders as soon as possible."

Prof. Julian Ku

On October 23rd 2013, Julian Ku, Professor of Law and Faculty Director of International Programs at Hofstra Law School, said: "As Greenpeace's attorneys rightly point out, 'If the Russian Federation believes the Tribunal lacks jurisdiction, the normal and proper thing to do would be to raise this at the hearing.' If Russia does simply walk away, this is another body blow to the dispute settlement under the UNCLOS system, especially considering that Russia has accepted the jurisdiction of the ITLOS in past disputes."

Prof. Ku adds, "I noticed that Russia has also dropped the piracy charges against the Greenpeace activists, charging them now with hooliganism. This doesn't seem to affect their position on ITLOS arbitration, though."

Prof. Dr. Doris König

Prof. Dr. Doris König, Chair for International Law and President of Bucerius Law School in Hamburg, is quoted on 16 October 2013 in Die Welt stating that the piracy “claim does not uphold on the basis of the international law of the sea”.

Prof. Dr. König also commented on 20 September 2013 that it is likely that "the ship's arrest outside of the safety zone constitutes a violation of the UN Convention on the Law of the Sea".

Donald J. Marcus

“Peaceful protests and piracy are two very different things,” says Donald J. Marcus, president of the International Organization of Masters, Mates & Pilots (MM&P), a United States labor union representing licensed mariners on 15 October 2013. “We have a problem when the officers and crew are charged with piracy as some kind of political expedient.”

In a letter dated October 4 2013 to Russian Ambassador Sergey Kislyak, Marcus wrote:

MM&P has intimate awareness of threat of piracy on the high seas as one of our own contracted vessels, the “Maersk Alabama” was taken hostage by Somali pirate in 2009 and held for ransom....We can assure you that the officers and crew members of the Arctic Sunrise are not pirates. To prosecute them as such is an affront to the seriousness of scourge of piracy throughout the world and an insult to the thousands of Seafarers who have been and continue to be victimized by it.

As an organization representing merchant seafarers we want to go on record expressing our grave concern with how this situation is being handled by the Russian Federation. The vessel “Arctic Sunrise” was peacefully and non-violently expressing protest. Although perhaps a frustration to your country’s government, the activities of the crew of the “Arctic Sunrise” did not fall anywhere within the realm of piracy at sea.

Mark Dickinson

Mark Dickinson, General Secretary of Nautilus International, an international trade union and professional association representing seafarers and allied workers, wrote to the Russian ambassador in London on September 27 2013 in defense of the Greenpeace ship:

Nautilus believes it is highly inappropriate that the crew of the Arctic Sunrise are facing the prospect of piracy charges and believe that this belittles the seriousness of the shocking reality of piracy for seafarers today. It is generally accepted that the crime of piracy is one that involves illegal acts of violence or detention, or raids committed for private gain. We consider that exposing professional mariners and environmental protestors to such a charge is a serious misuse of a term that is widely accepted as a definition of armed robbery on the high seas. Nautilus wishes to place on record its deep concern about this case and the treatment of our members. It is important to emphasize that the ship was involved in a peaceful and non-violent protest. We hope you will convey to your government our request for the immediate release of the ship’s crew and for any charges against them to be withdrawn.

Viktoria Zhdanova

In an article for Russian newspaper Kommersant on October 5 2013, Viktoria Zhdanova, the leading lawyer in shipping practice for the Russian maritime law firm Inmarine, is quoted as saying:

“Piracy requires premeditated action of the attackers to take over others’ property for their own selfish interest. This means that the qualification of the actions of the environmentalists as piracy is inadequate both under Russian and international law.”

Therefore, in the course of trial proceedings, Russia may be required to pay damages for moral and material harm caused. She specifies: “In our experience, the fine per day can be 100,000 rubles or higher.”

Martin Scheinin

Martin Scheinin, Professor of International Law and Human Rights at the European University Institute and the first United Nations Special Rapporteur on human rights and counter-terrorism, is quoted on 7 October 2013 in a Finnish newspaper saying:

"According to the Russian penal code, however, piracy presupposes a threat of violence, which the officials have since had the chance to clarify. I do not believe that either the vessel or the activists were found to carry instruments suitable for acts of violence. For this reason the piracy charges have lost their basis, and the court should have rejected the demand to keep the activists in custody."

He sees signs of the charges being politically motivated. That would contravene the European Convention of Human Rights.

Prof. Martti Koskenniemi

Prof. Martti Koskenniemi, professor of International Law at the University of Helsinki and Director of the Erik Castrén Institute of International Law and Human Rights, is quoted on 7 October 2013 Finnish newspaper saying:

"The Law of the Sea Convention defines piracy as violent action for private financial gain. This is not the case with Greenpeace."

Vasiliy Gutsulyak

During an interview on Vesti FM on 24 September 2013, Vasiliy Gutsulyak, Chief researcher at the Institute of State and Law and expert of the Law of the Sea, extensively explains why Article 227 on "Piracy" of the Russian Criminal Code "is not likely to be applied".

Gutsulyak was also quoted in Hoboctn Russia on 5 October as he confirms:

"As the ship was in international waters, the action of a warship had to conform to the norms of international law. The UN Convention on the Law of the Sea of 1982 clearly establishes the list of reasons when the warship may stop the vessel. Among them I have not found a single one that would give an opportunity to the Russian side to act without violations." "The International Tribunal for the Law of the Sea has the right to make a quick decision on the procedure for the prompt release of the vessel. The main objective - to quickly release the vessel and the crew."

Jean-François Lisée

In a speech at a Montreal vigil to demand the release of the 30 Arctic Sunrise members on 5 October 2013, Jean-François Lisée, the Parti Quebecois government’s minister of international relations and former ED of the Montréal University Centre for international studies and research (CÉRIUM) held:

"The legality of the arrest is questionable, and especially the charge of piracy, which carries a possibility of 15 years in prison, is clearly exaggerated."

Vladimir Lukin

Quoted by The Guardian on 3 October 2013, Vladimir Lukin, Human Rights Commissioner of the Russian Federation, declared there was "absolutely no basis" for the piracy charges. He said a fine and a ban from entering Russia for a period of time would suffice as punishment.

Prof. Eugene Kontorovich

Prof. Eugene Kontorovich, Professor of International Law at Northwestern University in Chicago, publishes a commentary on 2 October 2013 titled ‘What Russia’s Piracy Charges Against Greenpeace Mean for International Law’. In this piece he states:

"The piracy charges make a mockery of international law, for reasons I’ve discussed. Moreover, such clearly abusive and politicized piracy charges are quite unprecedented in modern history, as far as I can recall. Indeed, I am quite surprised by the charges; I had thought Russia would consider the arrest and initial detention sufficient harassment."

"Russia is feeling its revived-superpower oats. MEMO to the U.S. Senate: It is good that Moscow ratified the UNCLOS treaty. Now its violation of customary international law is combined with a violation of treaty law! Two for the price of one."

Prof. Jean-Marc Thouvenin

In an interview of the 2 October 2013 to Le Monde, Prof. Jean-Marc Thouvenin, professor of International Relations at the University of Paris Ouest-Nanterre-La Défense and Director of the International Law Centre (Cedin) affirms that he has some “serious doubts” about qualifying Greenpeace action "piracy".

Lyudmila Alexeyeva

"It is absolutely wrong and is at odds with all international norms," Lyudmila Alexeyeva, head of the Moscow Helsinki Watch Group and veteran Russian human rights campaigner told Interfax on 29 September 2013. She also expressed her disappointment with the court ruling to arrest the members of the Arctic Sunrise vessel.

Dr. Douglas Guilfoyle

Dr. Douglas Guilfoyle, Reader in International Law at University College London and a well known expert on piracy published a commentary in The Conversation on 27 September 2013. From the commentary:

"The actions of Greenpeace are not remotely colourable as piracy."

Dunja Mijatović

In a letter of the 26 September 2013 to Alexander Bastrykin, Chairman of the Investigative Committee of the Russian Federation, the OSCE Representative on Freedom of the Media, Dunja Mijatović, wrote:

"It is worrisome that Sinyakov was arrested while performing his professional duties as a photojournalist." "I strongly believe the arrest charges should be dropped and Sinyakov should be set free immediately."

On 27 September, Mijatović also called on the Russian authorities to release another journalist arrested while covering the Greenpeace action at Gazprom's Prirazlomnaya platform. She says:

"It is not acceptable to imprison journalists for doing their work. I call on the Russian authorities to immediately release Kieron Bryan."

Nils Muiznieks

The human rights commissioner for the Council of Europe, Nils Muiznieks, told Reuters on 26 September 2013, commenting on the detention of the Arctic 30, the denial of bail "clearly raises human rights concerns", saying pre-trial detention should be used only in exceptional circumstances when there is no alternative.

John Dalhuisen

John Dalhuisen, Director of Amnesty International’s Europe and Central Asia Programme, stated on 24 September 2013: "There’s very little question that unarmed Greenpeace activists are not pirates" ... "Charges of piracy are manifestly unfounded in this case – having no basis in law or reality – and it's profoundly damaging to level such serious charges so carelessly" ... "The Greenpeace activists must be released on a reasonable bail and given full access to defence lawyers, pending any possible trial."

Prof. Dr. Stefan Kirchner

Visiting Professor for Fundamental and Human Rights, University of Lapland, Prof. Dr. Stefan Kirchner, tweets that "Russia violated international law" and refers to a legal analysis at http://bit.ly/1eAXnxm. From the analysis:

"... it appears that Russia has disregarded several of its international obligations in order to force environmental activists to end peaceful protests."

"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 crew members as well as rights of the flag State (Netherlands) and of the crew members' respective home States. In order to comply with international law, Russia has to ensure the speedy release of the vessel and its crew."

Prof. Dr. Geert-Jan Knoops

Prof. Dr. Geert-Jan Knoops, professor of international criminal law at the University of Utrecht, the Netherlands, is quoted on 20 September 2013 in Dutch media saying:

"As far as the facts are known to me exactly, the Russian coast guard was not entitled [to board the ship]". Also here.

 

And last but not least:

Dr. Vladimir Putin

President of the Russian Federation and recipient of an honorary doctorate from the University of Belgrade, Dr. Vladimir Putin, stated on 25 September 2013 that the Greenpeace activists who boarded a Russian oil rig are "obviously not pirates".

Categories