Comment on the institution of arbitration proceedings between the Kingdom of the Netherlands and the Russian Federation concerning

the case of the ship “Arctic Sunrise” Stefan Kirchner

Today, 4 October 2013, the Foreign Ministry of the Netherlands has announced that the Netherlands in the function as the flag state of the Arctic Sunrise will initiate arbitration proceedings with Russia with the aim of securing the release of the ship and the crew. An arbitration is a classical way to resolve international legal disputes. Arbitration as a means of solving disputes is also foreseen as one of several options to solve disputes in accordance with the Law of the Sea Convention, the most important international treaty on these issues. Both the Netherlands and Russia are parties to this treaty, which raises the hope that a solution can be found in this way. In fact, Russia has chosen this kind of special arbitration tribunal as the standard means for the settlement of disputes when it ratified the Law of the Sea Convention in 1997, which means that Russia will be bound by any decision made by this tribunal. Now an ad hoc arbitral tribunal will be formed which will have five members. Both the Netherlands and Russia will appoint two members each. The members are usually recognized experts in the field. The Netherlands and Russia will choose the fifth member, who will preside over the case. He or she may be neither a national of Russia nor a national of the Netherlands. If they cannot agree within thirty days, the Secretary General of the United Nations or another person who has been appointed by both States will make this choice. The arbitration tribunal will decide whether it is legal that Russia holds both the ship and the crew. The arbitration tribunal can create its own procedural rules and both States are obliged to cooperate fully with the tribunal. The members of the tribunal can visit the ship and the crew as well as the oil rig. The costs of these proceedings are shared equally by Russia and the Netherlands regardless of the outcome of the case. The Netherlands can ask for interim measures, which can include an order to release the ship and / or the crew immediately. The tribunal will make decisions with a simple majority. Even if up to two members of the tribunal are absent or abstain, the result will remain valid. The Netherlands as the flag state of the Arctic Sunrise is the only country which could have instituted these proceedings and I am confident that this is a step in the right direction because it shows that despite the very strong rhetoric from some Russian authorities this is still essentially a question of international law and that eventually the rule of law will prevail here. I also hope that in the meantime the Russian authorities will ensure that all rights of the crewmembers are fully respected while they are in Russian custody. From the information available at this time, it appears that the Russian reaction has been disproportionate to the actions of the crewmembers of the Arctic Sunrise. I would have understood it had there been consequences for entering the 500 m

exclusion zone around the oil rig because this exclusion zone exists for the safety of both the installation and ships in the area but the Russian reaction seems to be directed against the protest as such. Keeping in mind that Russia is a party to the European Convention on Human Rights, this remains a reason for concern.

Assoc. Prof. Dr. Stefan Kirchner, MJI is Visiting Professor for Fundamental and Human Rights at the Faculty of Law of the University of Lapland in Rovaniemi, Finland, and teaches International Law of the Sea at the Faculty of Law of Vytautas Magnus University in Kaunas, Lithuania. This text only reflects his private opinion. Email: Twitter: @Law247

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