Russia reduced the charge of piracy against the crew of the Arctic Sunrise—with a
maximum term of 15 years imprisonment—to one of aggravated hooliganism, with a
maximum term of seven.
149 Second, on 22 November 2013, ITLOS prescribed
provisional measures, ordering the release of the crew upon the Netherlands’ posting
of a €3.6 million bond,
150 and requiring Russia to allow them to leave Russian
territory.
151 Only one week later, on 29 November, the crew of the Arctic Sunrise
were released on bail,
152 and on 18 December, by Decree of the Russian State Duma,
the crew of the Arctic Sunrise were granted amnesty, with permission to leave Russia
by the end of 2013.
153 The Arctic Sunrise itself, however, was not released until
August 2014.
154
The legal sufficiency of Russia’s conduct was addressed in the merits phase of the
Arctic Sunrise arbitration. The tribunal found that Russia breached the ITLOS order
by failing to act promptly, as required by Article 290(6) of UNCLOS,
155 in delaying
the release of the crew,
156 and then of the vessel.
157 However, while the vessel’s
retention was in clear breach, only 27 days elapsed between the bond being posted
on 2 December 2013, and the crew’s release. The tribunal’s determination of breach
here is therefore questionable.
158 At any rate, only the length of time elapsed was
held to breach the provisional order: Russia’s conduct in releasing the vessel and
crew fulfilled the order’s overall goal.
Although ITLOS did not determine the validity of the Netherlands’ claim,
159 its
determination of provisional measures indicates that they were deemed necessary to
‘preserve the respective rights of the parties to the dispute’.
160 The relevant right
engaged by the Netherlands was the crew’s right to liberty and security, as well as its
149 Investigative Committee of the Russian Federation, Press Release of 23 October 2013: https://
sledcomrf.ru/news/print/105365-sledstviem-perekvalifitsirovanyi-deystviya-napadavshih.html.
See Federal Law No 64-FZ (Russian Federation), 13 June 1996, Articles 213(2), 227(3).
150 Arctic Sunrise (Provisional Measures), para. 105(a).
151 Id., para. 105(b).
152 PCA (Arctic Sunrise), Press Release of 24 August 2015: http://www.pcacases.com/web/
sendAttach/1444 (‘Arctic Sunrise (Press Release, 24 August 2015’).
153 Id. See also Decree of the State Duma No 3500-6 GD (Russian Federation), 18 December 2013
(‘Amnesty’).
154 Arctic Sunrise (Press Release, 24 August 2015).
155 UNCLOS, Art. 290. See also Arctic Sunrise (Provisional Measures), para. 101. This requirement
differs from the prompt release remedy available for ships captured on account of breaches of
coastal State fisheries regulations (UNCLOS, Arts 73(2), 292). While Judges Jesus and Golitsyn
queried whether the provisional measure amounted to a constructive prompt release remedy (see
Arctic Sunrise (Provisional Measures), paras. 265–266, 289–290), these are not necessarily
equivalent.
156 Arctic Sunrise (Merits), para. 350.
157 Id., paras. 355, 358.
158 See further Harrison (2016), pp. 155–156.
159 Arctic Sunrise (Provisional Measures), para. 100.
160 Id., para. 81. See UNCLOS, Art. 290(1).
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G. Kynaston and R. Brown
maximum term of 15 years imprisonment—to one of aggravated hooliganism, with a
maximum term of seven.
149 Second, on 22 November 2013, ITLOS prescribed
provisional measures, ordering the release of the crew upon the Netherlands’ posting
of a €3.6 million bond,
150 and requiring Russia to allow them to leave Russian
territory.
151 Only one week later, on 29 November, the crew of the Arctic Sunrise
were released on bail,
152 and on 18 December, by Decree of the Russian State Duma,
the crew of the Arctic Sunrise were granted amnesty, with permission to leave Russia
by the end of 2013.
153 The Arctic Sunrise itself, however, was not released until
August 2014.
154
The legal sufficiency of Russia’s conduct was addressed in the merits phase of the
Arctic Sunrise arbitration. The tribunal found that Russia breached the ITLOS order
by failing to act promptly, as required by Article 290(6) of UNCLOS,
155 in delaying
the release of the crew,
156 and then of the vessel.
157 However, while the vessel’s
retention was in clear breach, only 27 days elapsed between the bond being posted
on 2 December 2013, and the crew’s release. The tribunal’s determination of breach
here is therefore questionable.
158 At any rate, only the length of time elapsed was
held to breach the provisional order: Russia’s conduct in releasing the vessel and
crew fulfilled the order’s overall goal.
Although ITLOS did not determine the validity of the Netherlands’ claim,
159 its
determination of provisional measures indicates that they were deemed necessary to
‘preserve the respective rights of the parties to the dispute’.
160 The relevant right
engaged by the Netherlands was the crew’s right to liberty and security, as well as its
149 Investigative Committee of the Russian Federation, Press Release of 23 October 2013: https://
sledcomrf.ru/news/print/105365-sledstviem-perekvalifitsirovanyi-deystviya-napadavshih.html.
See Federal Law No 64-FZ (Russian Federation), 13 June 1996, Articles 213(2), 227(3).
150 Arctic Sunrise (Provisional Measures), para. 105(a).
151 Id., para. 105(b).
152 PCA (Arctic Sunrise), Press Release of 24 August 2015: http://www.pcacases.com/web/
sendAttach/1444 (‘Arctic Sunrise (Press Release, 24 August 2015’).
153 Id. See also Decree of the State Duma No 3500-6 GD (Russian Federation), 18 December 2013
(‘Amnesty’).
154 Arctic Sunrise (Press Release, 24 August 2015).
155 UNCLOS, Art. 290. See also Arctic Sunrise (Provisional Measures), para. 101. This requirement
differs from the prompt release remedy available for ships captured on account of breaches of
coastal State fisheries regulations (UNCLOS, Arts 73(2), 292). While Judges Jesus and Golitsyn
queried whether the provisional measure amounted to a constructive prompt release remedy (see
Arctic Sunrise (Provisional Measures), paras. 265–266, 289–290), these are not necessarily
equivalent.
156 Arctic Sunrise (Merits), para. 350.
157 Id., paras. 355, 358.
158 See further Harrison (2016), pp. 155–156.
159 Arctic Sunrise (Provisional Measures), para. 100.
160 Id., para. 81. See UNCLOS, Art. 290(1).
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G. Kynaston and R. Brown