Greenpeace & Russia – an International Pussy Riot

I blogged earlier about Russia’s illegal seizure of a Greenpeace vessel in international waters, and its laughable characterization of their acts as maritime piracy. The ship Arctic Sunrise had been boarded after an attempt to board or come alongside a Russian oil rig for some kind of non-violent protest. Subsequently, Vladimir Putin apparently poured cold water on potential piracy charges, leading some to think it would be a passing squall.

Instead, a Russian court has ordered all 30 crew members of varying nationalities jailed for two months pending an investigation. The ship also not been released, and the Netherlands, as the flag state, may file prompt release proceedings in the International Tribunal for the Law of the Sea.

The incident is a kind of international Pussy Riot. You may recall that Russia gave two-year jail sentences to members of that “feminist punk rock protest group” for some kind of raunchy, uninvited performance in a Russian Orthodox Church. (I am not entirely clear on the goals of the group or their methods.) While the sentence was widely decried, it does seem that Pussy Riot was engaged in a particularly provocative protest, that almost certainly took liberties with other people’s property. The legal action against them was not unreasonable – it was the nature and severity of the action that defied all proportion, and revealed a heavy-handed intolerance of protest.

Greenpeace is in a similar situation. They may have committed technical trespass, and certainly should not protest at finding themselves in court. But jail is another matter. There is one big difference: with Pussy Riot, Putin was bullying his own nationals, in his own capital. Now Russia is throwing its weight around against foreigners on a foreign-flagged vessel in international waters, which is not just thuggish, but a violation of international law. And a sign of Russia’s increasing assertiveness.

Douglas Guilfoyle thinks Russia may be immune from ITLOS jurisdiction by virtue of its reservation to UNCLOS, which exempts “disputes concerning law-enforcement activities in regard to the exercise of sovereign rights or jurisdiction.” This is certainly a law-enforcement activity, but I’m not sure it is involving “sovereign rights or jurisdiction.” Under UNCLOS, sovereign rights in the exclusive economic zone has a narrow meaning: “sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources.” Art. 56(1)(a). (“Jurisdiction” has an even narrower meaning.) It is not clear that rights to use natural resources also entails seizure and prosecution of vessels trespassing on the exploitation equipment. The question may turn on whether there was an interference with the operation of the platform.

Russia has been a defendant in other prompt release cases involving the management of natural resources in its EEZ and did not invoke the reservation, though that would of course not estop it from doing so now. (And there may be relevant factual differences not immediately evident to me.)

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