356
extent that these baselines respected the general direction of the coast and were
drawn in a reasonable manner.
25
In the Arctic Sunrise arbitration the tribunal applied the ‘principle of reasonableness’ as a criterion of legality on two occasions. In the first place, the tribunal had a
two-steps approach for assessing the lawfulness of the measures taken by the
Russian authorities: it considered necessary to determine, primarily, whether the
measures had a basis in international law and, secondly, whether they were carried
out “in accordance with international law, including with the principle of reasonableness”. It furthermore referred to the ‘general principles’ of proportionality and
necessity, especially with respect to law enforcement measures. Having found, as
mentioned above, that international law did not provide a legal basis, the tribunal
deemed it unnecessary to apply the test of “reasonableness, necessity, and
proportionality”.
26
In the second place, the tribunal invokes this test in the specific context of the
measures taken by the coastal State in order to protect the exercise of its sovereign
rights against acts of interference.
27
In particular, the standard of reasonableness is
applied to determine which types of acts of protest amount to an interference with
the sovereign rights of the coastal State and, thus, serves as a ‘filter’ to assess the
situations with respect to which the State would be entitled to take actions aiming at
preventing such interference.
28
Therefore, the focus of the consideration of the tribunal regarding reasonableness was the coastal State’s right to act to prevent interference rather than the reasonable character of the measures taken by this State.
However, the distinction between the actions that qualify as interfering with the
sovereign rights and those which do not is not always clear and would be difficult to
proceed to such qualifications a priori. Moreover, as pointed out above, in assessing
the lawfulness of the measures of the coastal State on the basis of the standard of
reasonableness, a number of parameters are taken into consideration, such as the
effects of the measures, as well as their necessity and proportionality in view of the
specific circumstances of the case, including the degree of interference caused by
the action of the foreign ship with the sovereign rights of the coastal State.
29
Finally,
since, according to the award, one of the cases of interference with sovereign rights
against which the coastal State can take preventive measures is the violation of its
laws adopted in conformity with the Convention, the illegal entry into the safety
25 ICJ, Fisheries Case (UK v. Norway), Judgment, 18 December 1951, ICJ Reports 1951, pp. 129
and 142.
26 Arctic Sunrise, Award on the merits, para. 333.
27 Ibidem, para. 326.
28 “The Tribunal has given careful and detailed consideration to the types of protest actions that
could reasonably be considered as constituting an interference with the exercise of sovereign rights
(…), the Tribunal considers that it would be reasonable for a coastal State to act to prevent: i)
violations of its laws adopted in conformity with the Convention, ii) dangerous situations that can
result in injuries to persons and damage to equipment and installations, iii) negative environmental
consequences (…), and iv) delay or interruption of in essential operations”, ibidem, para. 327.
29 See supra Sect. 2.1.
E. Scalieri
extent that these baselines respected the general direction of the coast and were
drawn in a reasonable manner.
25
In the Arctic Sunrise arbitration the tribunal applied the ‘principle of reasonableness’ as a criterion of legality on two occasions. In the first place, the tribunal had a
two-steps approach for assessing the lawfulness of the measures taken by the
Russian authorities: it considered necessary to determine, primarily, whether the
measures had a basis in international law and, secondly, whether they were carried
out “in accordance with international law, including with the principle of reasonableness”. It furthermore referred to the ‘general principles’ of proportionality and
necessity, especially with respect to law enforcement measures. Having found, as
mentioned above, that international law did not provide a legal basis, the tribunal
deemed it unnecessary to apply the test of “reasonableness, necessity, and
proportionality”.
26
In the second place, the tribunal invokes this test in the specific context of the
measures taken by the coastal State in order to protect the exercise of its sovereign
rights against acts of interference.
27
In particular, the standard of reasonableness is
applied to determine which types of acts of protest amount to an interference with
the sovereign rights of the coastal State and, thus, serves as a ‘filter’ to assess the
situations with respect to which the State would be entitled to take actions aiming at
preventing such interference.
28
Therefore, the focus of the consideration of the tribunal regarding reasonableness was the coastal State’s right to act to prevent interference rather than the reasonable character of the measures taken by this State.
However, the distinction between the actions that qualify as interfering with the
sovereign rights and those which do not is not always clear and would be difficult to
proceed to such qualifications a priori. Moreover, as pointed out above, in assessing
the lawfulness of the measures of the coastal State on the basis of the standard of
reasonableness, a number of parameters are taken into consideration, such as the
effects of the measures, as well as their necessity and proportionality in view of the
specific circumstances of the case, including the degree of interference caused by
the action of the foreign ship with the sovereign rights of the coastal State.
29
Finally,
since, according to the award, one of the cases of interference with sovereign rights
against which the coastal State can take preventive measures is the violation of its
laws adopted in conformity with the Convention, the illegal entry into the safety
25 ICJ, Fisheries Case (UK v. Norway), Judgment, 18 December 1951, ICJ Reports 1951, pp. 129
and 142.
26 Arctic Sunrise, Award on the merits, para. 333.
27 Ibidem, para. 326.
28 “The Tribunal has given careful and detailed consideration to the types of protest actions that
could reasonably be considered as constituting an interference with the exercise of sovereign rights
(…), the Tribunal considers that it would be reasonable for a coastal State to act to prevent: i)
violations of its laws adopted in conformity with the Convention, ii) dangerous situations that can
result in injuries to persons and damage to equipment and installations, iii) negative environmental
consequences (…), and iv) delay or interruption of in essential operations”, ibidem, para. 327.
29 See supra Sect. 2.1.
E. Scalieri