Platforms, Protestors and Provisional Measures: The Arctic Sunrise Dispute and Environmental Activism at Sea

© T.M.C. Asser Press and the authors 2015
Mónika Ambrus and Ramses A. Wessel (eds.)Netherlands Yearbook of International Law 2014Netherlands Yearbook of International Law4510.1007/978-94-6265-060-2_14

14. Platforms, Protestors and Provisional Measures: The Arctic Sunrise Dispute and Environmental Activism at Sea

Richard Caddell 

Netherlands Institute for the Law of the Sea, Utrecht University, Utrecht, The Netherlands



Richard Caddell


On 18 September 2013, a team of Greenpeace activists attempted to board the Prirazlomnaya oil platform, situated within the Russian exclusive economic zone, intending to disrupt drilling activities and raise awareness of Arctic environmental issues. This action resulted in the subsequent arrest of 30 individuals associated with the protest, as well as that of the Arctic Sunrise, a Greenpeace support vessel sailing under the Dutch flag. The plight of the so-called ‘Arctic 30’ dominated global headlines until their release under a general amnesty by Russia in December 2013. Meanwhile, the arrest of the vessel prompted the commencement of arbitral proceedings by the Netherlands against Russia, a process that had yet to be concluded at the time of writing. In November 2013, however, the International Tribunal for the Law of the Sea upheld a Dutch petition for provisional measures, including the release of the vessel and its crew subject to the payment of a bond. In so doing, the Tribunal faced the issue of non-participation by a respondent state for the first time, while also developing arguably a ‘back-door’ position on prompt release. In the meantime, aspects of the legality of environmental activism at sea remain somewhat uncertain which, given that a considerable number of protest vessels are registered to the Netherlands, may engage the litigative attention of the Dutch authorities in future incidents.

Provisional measuresUN convention on the law of the sea 1982Non-appearance of respondent statePrompt releaseFreedom of speechOil platforms

Senior Research Associate and Nippon Foundation Senior Nereus Fellow, Netherlands Institute for the Law of the Sea, Utrecht University.

14.1 Introduction

In recent years, the legal position of protest actions at sea has become a matter of increasing significance. Marine protests have proved to be a particularly attractive tactic for many campaign groups, since the dramatic media coverage that invariably accompanies such activities commands considerable public attention, often helping to generate additional support for the cause in question. Protest activism at sea is by no means a recent phenomenon1; the localised blockading of ports has long been an effective weapon for disgruntled coastal interests, although nautical campaigning has steadily expanded to become more pelagic in scope since the late 1960s. Many modern exponents now spend extended periods at sea in pursuit of their targets, traversing a variety of zones of maritime jurisdiction in the process and engaging in activities that operate at the limits of—and sometimes beyond—the current legal parameters of entitlements to free speech and assembly.

Maritime protest also varies significantly in format and conduct. This may entail essentially passive activism, in which campaigners merely observe and document the activities in question and express their dissent in a non-obstructive manner,2 a practice dubbed ‘bearing witness’ by Greenpeace.3 Alternatively, many campaign groups have considered that such tactics are unlikely to provoke the desired changes in policy and behaviour. Accordingly, more interventionist forms of direct action have been deployed to physically impede the activity in question, which has increasingly led to violent clashes at sea. This approach has been perhaps most vividly illustrated by the regular campaigns waged by the Sea Shepherd Conservation Society against the Japanese Antarctic whaling fleet, a decade-long saga that has degenerated from a series of entertaining Corinthian escapades into a significant nautical hazard, culminating in dangerous collisions between vessels in remote Polar waters, the sinking of a yacht and, ultimately, the spectre of piracy proceedings in at least one jurisdiction.4 As is the case with land-based protests,5 the legal response to activism at sea involves a fine balancing act between the competing imperatives of protected and socially-valuable rights to protest and the need to ensure wider issues of public safety. Marine campaigning also carries an inherent risk of civil and criminal penalties, as well as the possibility of serious physical injury6—a prospect for which states seemingly carry at least a moral obligation to ensure that their nationals exhibit an appreciation.7

The legal position concerning activism at sea has a particular resonance for the Netherlands, since a number of campaign groups have found an accommodating home for many of their key protest vessels within the Dutch shipping registry. This has created occasional diplomatic and legal difficulties for the national authorities. As the flag state of vessels operated by Sea Shepherd, the Dutch authorities, together with Australia, New Zealand and the US, have been moved to issue regular quadripartite statements upholding broad support for freedom of speech at sea, yet condemning certain actions of its nationally-registered vessels and urging respect for navigational safety.8 Such concerns have also led to calls for the Netherlands to review the grant of flag privileges and to reinforce procedures to facilitate the expulsion of delinquent vessels, although wholesale amendments to national laws on vessel registration have thus far been resisted.9 The Netherlands also remains the flag state of a considerable number of vessels operated by Greenpeace, notably the Arctic Sunrise. The arrest of this veteran protest ship in September 2013, following the attempted boarding of the controversial Prirazlomnaya oil platform by activists in the Russian exclusive economic zone (EEZ), subsequently prompted arbitration proceedings between the Netherlands and the Russian Federation. These proceedings remain in progress and are likely to formally conclude in 2015. In November 2013, however, the International Tribunal for the Law of the Sea (ITLOS) considered a request by the Netherlands for the grant of provisional measures to release the vessel and its crew. This action, the twenty-second case submitted to the Tribunal thus far, resulted in an order delivered in favour of the petition by the Netherlands. Moreover, the position taken by ITLOS may have intriguing implications for future detention actions heard by this forum, in addressing the issue of non-engagement by the respondent state and, arguably, pioneering a basis for the prompt release of vessels that may exceed the intentions prescribed by the 1982 UN Convention on the Law of the Sea.10 This chapter, accordingly, examines the issues raised in the dispute and the reasoning of the Tribunal in granting the release of the Arctic Sunrise, before addressing a wider series of emerging questions pertaining to the legality of oil platform protests.

14.2 The Arctic Sunrise Dispute

The Arctic Sunrise incident is illustrative of long-standing environmental concerns over the prospective expansion of industrial activities within the Arctic region. In recent years, the Arctic has been transformed from a comparative legal and political backwater into an arena of global strategic interest. The projected reduction of Polar ice coverage has raised the tantalising economic prospect of a dramatic increase in industrial and shipping possibilities in these waters, prompting considerable interest in securing access to the natural resources of the region on the part of both Arctic and non-Arctic States.11 Nevertheless, strong concerns have been voiced as to the potential environmental ramifications of the wholesale economic development of the Arctic, with calls to preserve the region as an unsullied wilderness area of global significance.12 Particular reservations have been expressed over the poorly regulated pursuit of hydrocarbons in these waters, with the damage wrought by the Exxon Valdez tanker disaster in Alaska in 1989 serving as a stark reminder of the dangers posed by oil to the highly sensitive marine environment of the Arctic. Indeed, the apocalyptic ecological prospect of a Deepwater Horizon-style calamity in this region has prompted the European Parliament to adopt a Resolution calling for ‘a ban on oil drilling in the icy Arctic waters of the EU and the EEA’.13

In 2010 Greenpeace launched its ‘Save the Arctic’ campaign, a suite of activities that has included information gathering, environmental education and outreach, advocacy at pertinent regional and international fora and a series of direct action campaigns against offshore oil and gas installations in a variety of jurisdictions. Particular ire has been reserved for the Prirazlomnaya oil platform, operated by the Russian energy giant Gazprom and situated in the Pechora Sea in northern Arctic waters. Strong concerns have been expressed, both by NGOs and the European Parliament, over the relatively lax approach to the regulation of Arctic hydrocarbon operations assumed by the Russian authorities.14 In August 2012 the Arctic Sunrise was used as a base to launch a first high-profile protest against the Prirazlomnaya rig on account of its oil spill response plan having expired, thereby rendering Gazprom’s continued operations technically illegal under Russian law. Six activists briefly scaled the platform, while another group chained themselves to the anchor of its primary support vessel, the Anna Akhmatova, disrupting drilling activities for five days.

On 18 September 2013, Greenpeace activists attempted to board the platform again. Four inflatable boats were launched from the Arctic Sunrise which, at the material time, was apparently situated at a nearby point within the Russian EEZ, yet outside the three-mile exclusion zone established by the national authorities around the Prirazlomnaya.15 The activists were swiftly apprehended at the base of the platform. Later that day, the Russian authorities directed a diplomatic note to their Dutch counterparts announcing their intention to arrest the Arctic Sunrise. The vessel was duly boarded in the Russian EEZ on 19 September, an operation that involved firing eleven warning shots, and subsequently sailed under arrest to Murmansk.

The criminal charges against the arrested activists and the legal basis for their detention would oscillate considerably over the course of the following weeks. Between 26 September and 3 October 2013 the various members of the ‘Arctic 30’—as they were swiftly dubbed by the global media—were each individually charged with piracy, despite a categorical public assertion by President Vladimir Putin that the activists were ‘obviously’ not pirates.16 On 4 October, in response to the piracy charges, the Netherlands formally commenced arbitral proceedings pursuant to Annex VII of the LOSC. In the meantime, a combination of official communications between Russia and the Netherlands, as well as municipal legal proceedings against the Arctic Sunrise itself, demonstrated a litany of inconsistencies concerning the basis for the arrest and ongoing detention of the vessel. Concurrent with the initial attempt to board the Prirazlomnaya, the Russian authorities informed the Netherlands by a diplomatic note on 18 September that the Arctic Sunrise was to be seized due to alleged terrorism offences. On 1 October a further diplomatic note asserted that the vessel had been visited by Russian law enforcement officials pursuant to powers under Articles 56, 60 and 80 LOSC and Article 36(1)(1) of the domestic Federal Law ‘On the Exclusive Economic Zone of the Russian Federation’. By 7 October, however, a national court order for the seizure of the Arctic Sunrise revealed that this position had subsequently shifted back to a foundation of piracy, while on 18 October an administrative judgment found the master of the vessel guilty of ‘erratic navigation’.17 On 23 October the initial piracy charges brought against the arrested activists were downgraded to those of ‘hooliganism’ and resisting arrest, following widespread political and legal condemnation of the original indictment.18

14.2.1 Jurisdiction of the Tribunal

In accordance with Article 287 LOSC, arbitral proceedings under Annex VII of the LOSC were instituted by the Netherlands against Russia, alleging that the boarding, arrest and detention of the Arctic Sunrise in the Russian EEZ without the prior consent of the flag state contravened Articles 58(1) and 87(1)(a) LOSC, in addition to the rights to liberty and security and to leave a state’s territory on the part of the vessel’s crew founded under Articles 9 and 12(2) of the International Covenant on Civil and Political Rights 1966.19 The Netherlands accordingly sought a declaration from the tribunal that these actions were internationally wrongful acts and that Russia should thereby cease and desist such violations, provide appropriate assurances and guarantees of non-repetition and facilitate full reparation for the injury caused thereby.

Under Article 290(1) LOSC, provisional measures may be prescribed by a court or tribunal if it considers that it prima facie has jurisdiction over the dispute and if such measures are ‘appropriate under the circumstances to preserve the respective rights of the parties to the dispute or to prevent serious harm to the marine environment, pending the final decision’. In view of the urgency of many marine-related disputes and the time-frame necessary to convene an Annex VII tribunal, Article 290(5) LOSC permits ITLOS to facilitate consideration of provisional measures in its stead if, absent agreement to the contrary between the parties, a period of two weeks has elapsed from the time of the initial request for interim relief and ‘if it considers that prima facie the tribunal which is to be constituted would have jurisdiction and that the urgency of the situation so requires.’ Receiving no satisfactory response from the Russian authorities, the Netherlands accordingly filed a request for provisional measures before ITLOS on 21 October 2013. The following day, Russia stated that it neither accepted the Annex VII process in this context nor did it intend to participate at the ITLOS proceedings.20 With the exception of a polite statement declining its involvement within the Annex VII arbitration,21 the Russian Federation has remained steadfastly aloof to the ongoing judicial machinations of the dispute.

Russia’s objection to the arbitration process has been founded on the basis of a Declaration made upon ratifying the LOSC on 12 March 1997, in which

[t]he Russian Federation declares that, in accordance with article 298 of the United Nations Convention on the Law of the Sea, it does not accept the procedures, provided for in section 2 of Part XV of the Convention, entailing binding decisions with respect to disputes concerning the interpretation or application of articles 15, 74 and 83 of the Convention, relating to sea boundary delimitations, or those involving historic bays or titles; disputes concerning military activities, including military activities by government vessels and aircraft, and disputes concerning lawenforcement activities in regard to the exercise of sovereign rights or jurisdiction; and disputes in respect of which the Security Council of the United Nations is exercising the functions assigned to it by the Charter of the United Nations.

The Russian Federation, bearing in mind articles 309 and 310 of the Convention, declares that it objects to any declarations and statements made in the past or which may be made in future when signing, ratifying or acceding to the Convention, or made for any other reason in connection with the Convention, that are not in keeping with the provisions of article 310 of the Convention. The Russian Federation believes that such declarations and statements, however phrased or named, cannot exclude or modify the legal effect of the provisions of the Convention in their application to the party to the Convention that made such declarations or statements, and for this reason they shall not be taken into account by the Russian Federation in its relations with that party to the Convention.22

Nevertheless, while apparently prescribing a basis to avoid the compulsory settlement mechanisms of the LOSC, the Declaration may be considered to have been founded upon a circular and ultimately flawed position. While Article 298 LOSC does allow for the elaboration of optional exceptions on the basis of law enforcement activities, the provision clearly provides that such exemptions apply only to the specific disputes addressed under Article 297(2) and (3) LOSC.23 These issues are confined to marine scientific research and fisheries matters respectively. In contrast, the present dispute engaged—in the clear view of the Applicant, at least24—an alleged breach by the coastal state of the freedom of navigation enjoyed by foreign vessels within the national EEZ, as prescribed under Article 58 LOSC. The position concerning this potential cause for international litigation is instead addressed under Article 297(1) LOSC. It therefore lies outside the scope of national discretion to exclude particular matters from the compulsory jurisdiction of the court, as contemplated under Article 298 LOSC. The distinction is significant given the explicit reference to Articles 309 and 310 LOSC within the Russian Declaration, since these provisions preclude further reservations or statements on the part of the ratifying state that are not expressly permitted by the LOSC, or that purport to exclude or modify the effect of its terms. Read cumulatively, the practical effect of the Declaration rather undermines the Russian assertion that disputes engaging law enforcement activities concerning the exercise of national rights or jurisdiction are excluded from the jurisdiction of an international tribunal. Indeed, the Declaration essentially serves to emphasise that the ability of a contracting party to exclude from the jurisdiction of a tribunal incidents arising from law enforcement operations should be strictly limited to the specific contexts of marine scientific research and fisheries infractions, while simultaneously reinforcing the principle that attempts to undermine this clear position through contrary national declarations should be strongly deterred in order to facilitate the consistent interpretation and operation of the Convention.

As Churchill observes, ‘the reasoning in the provisional measures orders of the ITLOS is not always entirely adequate or convincing’.25 This is especially true of the Tribunal in this context, which confined its rejection of the Russian position to a mere sentence,26 an exercise in brevity that may be considered counter-productive. This was rectified to a considerable degree on 26 November 2014, when the Annex VII Tribunal delivered a unanimous award on jurisdiction that comprehensively addressed the Russian Declaration and declared categorically that the effect of this statement did not preclude law enforcement activities pursuant to Article 297(1) LOSC from the jurisdiction of the dispute resolution mechanisms of the 1982 Convention.27 Meanwhile, and within the context of the ITLOS decision, the sparse exploration of this issue generated a degree of consternation among individual members of the Tribunal, with Judges Wolfrum and Kelly of the view that ‘[a] convincing reasoning is missing but is called for’.28 Moreover, Judge Jesus considered the concise treatment of this issue to be especially troublesome, since this was ultimately the only legal point that Russia had sought to make in response to the Dutch petition.29 These concerns notwithstanding, there was seemingly strong endorsement for the Tribunal’s decision on the practical effect of the Russian Declaration,30 which accordingly raised practical and legal questions concerning the intended non-engagement of the respondent in the subsequent proceedings.

14.2.2 Non-participation of the Respondent State

The effect of the Russian position, even if the national Declaration strictu senso provided no legitimate basis to avoid the jurisdiction of the Tribunal in the present case, meant that ITLOS was confronted by an instance of non-appearance for the first time in its tenure. Non-appearance before international courts and tribunals is an infrequent, although regrettable, eventuality and one that has been within the contemplation of the constituent statutes of various judicial bodies. Annex VI of the LOSC, through which the Statute of the International Tribunal for the Law of the Sea is articulated, is no different in this regard and, by virtue of Article 28 of Annex VI, prescribes a basis for proceeding in a case of default:

When one of the parties does not appear before the Tribunal or fails to defend its case, the other party may request the Tribunal to continue the proceedings and make its decision. Absence of a party or failure of a party to defend its case shall not constitute a bar to the proceedings. Before making its decision, the Tribunal must satisfy itself not only that it has jurisdiction over the dispute, but also that the claim is well founded in fact and law.

Notwithstanding this clear position—and, moreover, the explicit references within the Dutch submission to this provision—consideration of Article 28 of Annex VI within the Order of the Tribunal is distinctly conspicuous by its absence. Instead, the Tribunal based the decision to continue its deliberations upon a review of the relevant provisions of the Statute of the International Court of Justice (ICJ Statute) and the jurisprudence of that Court. In this respect, Article 53 ICJ Statute provides that the appearing party may request a ruling in favour of its claim, subject to the proviso that the ICJ has jurisdiction over the dispute and that the action is well founded in fact and law. Article 28 of Annex VI was modelled upon this provision, albeit with the distinction that a state may only request a continuation of the proceedings before ITLOS, rather than an explicit ruling in its favour. In reality, there is little practical distinction since Article 53(2) ICJ Statute clarifies that a claim must still be adjudged to be well founded: it does not prescribe a walkover mechanism for undefended, yet spurious, actions. The regime of non-appearance before the ICJ is buttressed by an obligation that the defaulting party be given an opportunity to present its observations.31 Finding that Russia had been accorded ample occasion to do so, the Tribunal considered that the Netherlands should not be disadvantaged by its subsequent non-appearance32 and the status of the respondent as a party to the proceedings accordingly remained unchanged.33

While the practical distinction between the respective Statutes may be considered essentially minimal, the failure to undertake a reasoned evaluation of the scope of Article 28 of Annex VI nonetheless sat uneasily with individual members of the Tribunal. Judges Wolfrum and Kelly attributed this oversight to a purported inconsistency with Article 290 LOSC: Article 28 of Annex VI refers to the ‘jurisdiction’ of the Tribunal, yet the process for the grant of provisional measures envisaged under the 1982 Convention requires only that a judicial body be convinced that it has prima facie jurisdiction.34 This begged the question as to whether an application for provisional measures was caught by the scope of Article 28 of Annex VI. This was considered to be unproblematic in the view of the judges, a position also taken by Judge Paik,35 since the ITLOS Statute drew no distinction between the jurisdiction of the Tribunal in assessing provisional measures as opposed to any other context. In their view, there was no ostensible reason as to why the default clause could not be applied to the present dispute and the Tribunal had duly missed an opportunity to expand both its own jurisprudence and that of international decision-making bodies generally.36

Strong criticism was nonetheless reserved for the Russian refusal to participate in the process, an approach that the Tribunal considered ‘may hinder the regular conduct of the proceedings and affect the good administration of justice’.37 Individual judges further noted their concerns that non-participation hampered the evidential base upon which to undertake their consideration of the issues,38 and served to undermine both the position of the Respondent and the wider system of compulsory settlement established under the LOSC.39 Unilateralism of this nature was clearly viewed in a dim light by ITLOS—especially since the Respondent had officially expressed clear faith in its legal position, which could have been swiftly tested before the Tribunal—and it has been suggested that a discernible punitive intent duly permeates the resulting Order.40 Indeed, as noted below, a strikingly different stance was taken by the Tribunal in an action addressing a number of similar issues convened shortly before that in relation to the Arctic Sunrise, in which the respondent opted to rebut a distinctly flimsy claim brought against it, where non-appearance might otherwise have been a tempting option.41

14.2.3 Prompt Release and Provisional Measures

Given that Russia’s refusal to participate provided no practical impediment to the continued judicial appraisal of the dispute, ITLOS ultimately ruled in favour of the Dutch application on 22 November 2013, ordering the immediate release of the Arctic Sunrise and its crew and the facilitation of their ability to leave Russian jurisdiction, contingent upon the payment of a bond of €3.6 million. As with other elements of the Order, however, the reasoning behind this decision is decidedly frugal and would have benefitted considerably from additional reflection—and, to a significant extent, a robust contribution in rebuttal on the part of the respondent.

As noted above, ITLOS is empowered under Article 290(5) LOSC to order provisional measures if it considers that the Annex VII body would have jurisdiction over the dispute and ‘the urgency of the situation so requires’. The Tribunal ruled in the affirmative on both points; the first of which has been subsequently confirmed by the Annex VII tribunal itself.42 The notion of ‘urgency’ being a relative concept, ITLOS observed that this provision must be read in conjunction with Article 290(1) LOSC, which emphasises the respective rights of the parties to the dispute and the need to prevent serious harm to the marine environment.43 The latter issue appeared to be of most direct interest to the Tribunal, with the Netherlands having raised concerns that the vessel itself, a veteran icebreaker, required extensive maintenance to prevent its general condition from deteriorating which could, given that it lay impounded in Murmansk, potentially threaten Arctic waters with pollution. No further analysis of this position was forthcoming within the Order, however, and ITLOS appears to have accepted the Dutch submission verbatim, prompting the rather minimalist conclusion that ‘the urgency of the case requires the prescription by the Tribunal of provisional measures’.44

In this respect, perhaps more than any other, the respondent was essentially the author of its own misfortune. By failing to provide any countervailing evidence that the Arctic Sunrise did not ultimately pose an environmental hazard, or that the national authorities were sufficiently equipped to address potential concerns, a considerable hurdle to the granting of provisional measures was duly removed by Russia itself. In marked contrast to this position, in rejecting a request for provisional measures in the M/V Louisa dispute, ITLOS was prepared to ‘place on record the assurance given by Spain’ that there was no threat of imminent harm and that the national authorities were able to respond appropriately should the vessel’s condition deteriorate.45 Interestingly, in that instance, the expert witness for the Applicant in raising such concerns had been accorded no opportunity to view the vessel in question, a position that further undermined the case for provisional measures. Conversely, in the Arctic Sunrise case, little first-hand evidence was adduced as to the supposedly troubling state of the vessel, yet this position was accepted uncritically by the Tribunal.

There may indeed be pressing reasons as to why an arresting state ought to be ordered as a provisional measure to surrender an impounded vessel due to environmental concerns—for instance, if it evidently lacks the resources or expertise to maintain it in safe condition or, hypothetically, if the authorities unreasonably insist upon securing a vessel with limited capacity to endure Arctic conditions in a noted cold-water port such as Murmansk. There was, however, no reasoned basis as to why the Russian authorities could be considered to have lacked the ability to effectively manage the Arctic Sunrise under these circumstances; the Tribunal merely observed that the vessel was within the possession of the national coastguard and a chain of command had been established thereto.46 In refusing to participate in the proceedings, however, Russia forfeited the opportunity to subject such arguments to further scrutiny and it appears that the Tribunal had little inclination to do so on its behalf.47

Historical instances of non-participation before the ICJ appear to have accorded the defaulting state no operational advantage in the proceedings.48 In this context, however, the Order appears to have reinforced a clear message that non-appearance can have a critical bearing on the narrative of provisional measures before ITLOS. This general message was endorsed by the Tribunal, although the two dissenting Judges each raised concerns on this point, with Judge Kulyk warning that a failure to consider the Russian documentation as sufficient confirmation of an assumption of environmental obligations might potentially undermine the principle of good faith on the part of ITLOS.49 This is perhaps somewhat overplayed—the notion of ‘security’ was not expounded further in the Russian documentation pertaining to the arrest, and could have been so addressed had Russia engaged with the process. The prevailing jurisprudence of the Tribunal is nonetheless suggestive that, absent clear and contrary evidence, an unequivocal assertion of environmental stewardship over an impounded vessel by the arresting state is generally sufficient, since in the incontrovertible logic of Judge Paik in the M/V Louisa dispute, ‘if and when pollution occurs, it is the Respondent that will suffer the most’.50 While there was no intimation that the Russian authorities exhibited a negligent intent towards the vessel at the material time, it appears from the Order that silence is nonetheless insufficient: effective environmental stewardship must be formally asserted in the context of provisional measures, and will seemingly not be otherwise presumed by the Tribunal.

Likewise, the question of the respective rights of the parties also had considerable resonance for the Tribunal, although its reasoning on this point was again skeletal, while the Respondent’s failure to engage with the proceedings further undermined its position. In ordering the release of the vessel and crew,51 the Arctic Sunrise case marked a new departure in the prompt release practice of the Tribunal. The LOSC prescribes a mechanism for the prompt release of a vessel in two clear instances, namely fisheries infractions under Article 73 LOSC and the violation of particular rules and procedures pertaining to the prevention, reduction and control of vessel-source pollution pursuant to Articles 220 and 226 LOSC. The circumstances of the Arctic Sunrise dispute accordingly lay outside these two fundamental premises, although there is no explicit position within the Convention that a similar process cannot in principle be applied in other contexts for the purposes of provisional measures. Nevertheless, the common denominator between the offences subject to the prompt release procedure under the LOSC is that they are to be addressed solely by financial penalties, as opposed to imprisonment or other sanctions.52

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