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Can Russia prosecute Greenpeace protestors over the Arctic Sunrise?

Last week several Greenpeace activists bearing ropes and posters attempted to board Gazprom’s oil platform, the Prirazlomnaya, in the Russian exclusive economic zone. They did so in an inflatable craft…

Off to cause trouble in the Arrrrrrctic. Joel Ryan/PA

Last week several Greenpeace activists bearing ropes and posters attempted to board Gazprom’s oil platform, the Prirazlomnaya, in the Russian exclusive economic zone. They did so in an inflatable craft launched from the Greenpeace vessel the MV Arctic Sunrise. They were soon arrested by the Russian Coast Guard (who allegedly rammed the inflatable craft, threatened activists at knife-point and fired 11 artillery shots across the bows of the inflatable in the process).

The Russian Coast Guard boarded the next day, within their exclusive economic zone but outside territorial waters, the Arctic Sunrise (a Netherlands flagged vessel) and arrested those on board. It was first announced that Russian authorities were preparing a piracy prosecution (maximum sentence 15 years) against all those detained, at least until President Putin declared they were “obviously not pirates” but that their attempt to “take over” the rig clearly violated international law.

Protesters vs pirates

The incident raises several questions: did any of the protesters commit piracy? Did they commit a crime under international or Russian law? And was there any legal basis for seizing the Arctic Sunrise?

The answer to the first question is a simple no. The UN Convention on the Law of the Sea 1982 defines piracy as requiring “an illegal act of violence committed, for private ends, from a private ship or aircraft” that is “directed against another ship or aircraft on the high seas (or occurring in a place outside the jurisdiction of any state)”.

There is no evidence of violence by the protesters, and their actions were targeted not at a ship or aircraft but a fixed platform on the continental shelf. The fixed platform is also not a “a place outside the jurisdiction of any state”. If the platform within the Russian exclusive economic zone or attached to the Russian continental shelf it is subject to Russian law and jurisdiction.

There is also a commonly made argument that political protesters cannot be pirates because they have political motives and are therefore not acting “for private ends”. It is a view I think is mistaken. The point of the law of piracy is to prohibit non-state violence on the high seas (for example, the law of the sea says warships cannot commit piracy unless they mutiny).

The recent court case of Cetacean Research v Sea Shepherd was, in my view, right in principle to hold that sufficiently violent acts of political protest may constitute piracy. Nonetheless, the point is not salient here. The actions of Greenpeace are not remotely colourable as piracy.

Threats to safety

Did the protesters commit other offences under Russian or international law? Quite possibly. International law allows states to declare safety zones of 500m around fixed platforms such as oil rigs and once aboard such fixed platforms you are subject to the law of the coastal state. The attempt to board the oil platform probably infringed applicable safety laws.

Going further than that, however, President Putin has said the protesters did try to take the rig over, thus violating international law. This should worry Greenpeace. An attempt to unlawfully seize or exercise control over a fixed platform by force, threat or means of intimidation is an offence under the Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms Located on the Continental Shelf 1988. These are deemed to be offences of a “grave nature” punishable by “appropriate penalties” under the parent treaty, the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation 1988.

It is fairly dubious that the protest involved force, threats or intimidation – but President Putin’s words could indicate an intention to bring serious charges based on threats to safety.

Capture the flag

Was there any legal basis for Russia seizing the Arctic Sunrise? Perhaps. On the high seas a state is generally subject to the exclusive jurisdiction of its flag state (the state under whose laws the vessel is registered or licensed) and boarding by foreign law enforcement officials is only permitted in limited cases, including piracy.

However, offences committed within an exclusive economic zone are different. Where small boats go out from a larger vessel and infringe the laws or regulations of a coastal state, the law of hot pursuit allows that vessel to be pursued and arrested. The rule extends to safety zones around a fixed platform. Even if the Arctic Sunrise never entered the safety zone, so long as one of its inflatables was still present there, Russia had – potentially – a right of pursuit and enforcement. But the law of hot pursuit is quite technical and such a boarding is only valid if preceded by a visual or auditory signal. On Greenpeace’s account the Arctic Sunrise was apparently boarded by helicopter without warning.

It is certainly open to the Netherlands, as the Arctic Sunrise’s flag state, to query the legal basis for the arrest of its vessel. However, it will have trouble raising such claims before an international tribunal as Russia has entered a (perfectly valid) reservation to UNCLOS excluding disputes concerning law-enforcement activities from the scope of the convention’s dispute settlement system.

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16 Comments sorted by

  1. Mulga Mumblebrain

    Rocket surgeon

    What the universally derided and abused Putin should have had his thugs do was shoot nine of the Greenpeace activists in the head, point-blank, as beautiful Israel did to unarmed Turkish citizens on board the Mavi Marmara. He then could have expected the support, even praise, that Israel received from many sections of the Western Rightwing MSM sewer-couldn't he?

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    1. Wade Macdonald

      Technician

      In reply to Mulga Mumblebrain

      If your lucky Mulga, Greenpeace might storm your workplace without any consideration for the law or your safety as a worker.

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    2. Jay Jay

      Corporate Drone

      In reply to Mulga Mumblebrain

      The term "Point Blank" doesn't mean what you think it means. You can thank Hollywood for your ignorance.

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  2. Rene Oldenburger

    Haven't got one

    The Dutch are currently using diplomatic channels and so far have no intention to the international sea tribunal in Hamburg. Public opinion in The Netherlands favours the actions taken by Russia

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  3. Lolu Lolu

    logged in via Facebook

    Well, The Netherlands applied to the court already in Hamburg to release the ship and the crew.

    There are two things in here…

    First, The Netherlands would use the main argument that technically a platform is not a ship and therefore the piracy article does not apply to Greenpeace criminals.

    This argument is not entirely correct as it depends on which international classification of ships is used. For example, this one

    http://www.udxf.nl/ITU%20ship%20classifications.pdf

    on page 2 classifies…

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  4. Paul Richards

    integral operating system

    Russia drops piracy charges against Greenpeace activists and now has charged them with hooliganism. 23rd Oct 2013.
    “The Russian side has informed the Netherlands and the International Tribunal for the Law of the Sea that it does not accept the arbitration procedure in the Arctic Sunrise case, and is not planning to take part in the hearing,” the Russian Foreign Ministry said in a statement 23rd Oct 2013.
    The Dutch government plea on Monday 21st Oct 2013 to the International Tribunal for the Law…

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  5. Lolu Lolu

    logged in via Facebook

    All is going really nasty for Greenpeace now for a very simple reason.

    If the court in Hamburg is involved in the issue, looking at the court stats only two variants are possible. One is unconditional release of the ship and crew, the second is a conditional release, i.e. Greenpeace pays money for the ship and crew (some millions) and they are all gone home. All cases in Hamburg ended up either way out of two.

    If Russia goes to Hamburg, the country would just get some money but release the…

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    1. Paul Richards

      integral operating system

      In reply to Lolu Lolu

      "Russia can try Greenpeace according to the Russian legislation and this is a far more effective approach." Lolu Lolu commented. Interesting worldview.
      That perspective, assumes that the legal team was not prepared for the probability.
      Lolu Lolu wrote; "All is going really nasty for Greenpeace now for a very simple reason." That is a very subjective comment.
      Given the charge is hooliganism being held in inhumane conditions is truly nasty this is true. But that is what the Russian penal system has been like over three regimes and longer. No doubt those incarcerated were aware of the risks and willing to put their lives on the line.
      Just how dumb would Russia be to martyr these Greenpeace activist though?
      The global publicity and outrage would be unprecedented.
      Something to think about.
      Looks like the Greenpeace strategy is working very well from this worldview.

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    2. Lolu Lolu

      logged in via Facebook

      In reply to Paul Richards

      Paul Richards wrote: “That perspective, assumes that the legal team was not prepared for the probability”

      Nope. That assumes that Russia expected The Netherlands going to the court and expected that the court would issue an order to release the ship and criminals in exchange of money. This was done by the court in the past (I read all court cases, it is not a lot of them in there) and Russia does not need several million dollars from The Netherlands in this instance. It needs criminals to be…

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    3. Paul Richards

      integral operating system

      In reply to Lolu Lolu

      Interesting comments, transparent neoliberal worldview.
      Lolu Lolu wrote : " In terms of global publicity….Well, Russia is not going to put them in front of a firing squad." Really .... interesting premise.
      According to you they were going to be charged with piracy. That was a failed prediction. So we shall see how accurate your emotive prediction of death by bullet proves.
      Lolu Lolu wrote : "... I do not think Greenpeace guys were prepared for this scenario in many aspects" Well that also is…

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    4. Lolu Lolu

      logged in via Facebook

      In reply to Paul Richards

      Yes, they should be charged with piracy but Russia is kind enough to drop these charges because getting 15 years for them would be equal to dying. So, Russia is very generous in this instance.

      Of course, Greenpeace guys are well prepared for hash environments. If these guys get a year or two in Russian prison I would be enjoying to see how prepared they are. I am sure all their ideological and physical and mental preparation would help them survive a year or two in a very nice environment…

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    5. Paul Richards

      integral operating system

      In reply to Lolu Lolu

      Lolu Lolu wrote; "Protesting is a democratic norm when protesting does not breach the law" In your dreams.
      Apartheid would still exist in South Africa as just one example.
      The social changes brought by civil rights protesters in the US in the 1960s are legendary. The list is long and your denial speaks of cognitive bias or ignorance of the real changes brought by protest considered against the law.
      Protest against the law is an effective strategy, like it or not.
      Womens suffrage in the late…

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    6. Lolu Lolu

      logged in via Facebook

      In reply to Paul Richards

      Paul Richards wrote: "Can only recommend stepping off this line of thought. Because if this series of public digital records of your comments is ever tied to a real person it could have serious consequences"

      for you.
      Are you threatening me??? This is exactly what I was talking about when Greenpeace started from peaceful protests, then went to violent protests and then they are going further.
      Well done you criminals, this is a very good post of you which I would use as an example of how far Greenpeace may go. This publicity with such words of you would work really well as it proves that the next stage of Greenpeace activism is threatening individuals. Then Greenpeace would go and kill people in a protest.

      You talked about democratic values and absence of them in Russia, whereas in fact YOU do not apprecaite democracy and YOU are ready to stop anyone experessing different views.

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    7. Paul Richards

      integral operating system

      In reply to Lolu Lolu

      Lolu Lolu wrote; "Are you threatening me???" No, interesting your value system sees a threat though. This is a public forum, and inappropriate to threaten anyone. It is also a breach of the rules I have agreed on. But project personal values clearly is a strategy your employ and there is clear record over your comments of this flaw in thinking.
      So projecting that onto me just shows more adversarial thinking. Which is why the comment was made to recommend toning it down, stepping off the line of…

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    8. Lolu Lolu

      logged in via Facebook

      In reply to Paul Richards

      Nope. Your comment with this web-site link
      "Because if this series of public digital records of your comments is ever tied to a real person it could have serious consequences"
      would today be placed on a variety of web-sites about Greenpeace discussion to demonstrate how far Greenpeace can go.

      This comment would also be sent to Greenpeace to embarrass them because despite their policy of peaceful protests the reality of Greenpeace's actions is different and your comment clearly proves that.

      Well done.

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