International Peer Pressure
Greenpeace case resembles South China Sea dispute
They became known as the Arctic 30, a crew of Greenpeace activists and a few journalists who landed in a Russian jail after two of them tried to scale an oil drilling platform during a 2013 protest.
Their tale — spiced with international intrigue, an arbitration court ruling and worldwide condemnation toward their captors — bears similarities to China’s court case in the South China Sea, legal scholars say.
International tribunals ruled against Russia and China in their respective cases. Both major powers refused to participate in the legal proceedings, and both received worldwide criticism.
While China’s future with its neighbors remains an unfolding story, lessons from the case of the Greenpeace ship Arctic Sunrise illustrate that international law carries weight, even when world powers seem to ignore it, experts say.
“The lack of enforcement mechanisms in international law does not mean that there are no costs to non-compliance,’’ asserted authors Lan Nguyen and Truong Minh Vu in an article for the Asia Maritime Transparency Initiative of the Center for Strategic and International Studies. “The few instances in which states openly defied a court or arbitral tribunal’s decisions have mostly involved great powers. But even in those cases, decisions that were initially ignored were eventually complied with to a certain extent.”
Nguyen is a lecturer and researcher of international law at the Diplomatic Academy of Vietnam in Hanoi. Vu is director of the Center for International Studies at the University of Social Sciences and Humanities in Ho Chi Minh City, Vietnam.An Icy Standoff
A case study for looking at how international legal rulings can pressure powerful countries into resolving disputes began in the ice-cold waters of the Barents Sea north of Russia.
Greenpeace International used the Arctic Sunrise ship on September 18, 2013, to stage a protest of Russian offshore drilling. With 30 people aboard, the Arctic Sunrise launched five inflatable boats, which approached a drilling platform.
Two Greenpeace activists scaled the side of the rig but were repelled by water cannons, according to a case summary from the International Tribunal for the Law of the Sea (ITLOS). Meanwhile, the Russian Coast Guard vessel Ladoga launched two inflatable boats to intercept the protesters.
Although the Arctic Sunrise tried evasive maneuvers, a Russian helicopter landed on the vessel on September 19, 2013. Shortly afterward, the Russians towed the ship to the northern port city of Murmansk.
Once there, the 30 people on board were arrested and charged with the criminal offense of piracy. Authorities later downgraded the charges to hooliganism, and the Russians also seized the Dutch-flagged ship.
The jailing of the activists sparked an international firestorm.
In his book, My Adventures in Protecting the Future of Our Planet, Arctic Sunrise Capt. Peter Willcox wrote that he received “Free the Arctic 30” greeting cards from 8-year-old children in Africa. He didn’t realize his detention had generated such a worldwide outcry until he was out from behind jail bars.
“It’s an amazing feeling to realize that hundreds of ‘Free the Arctic 30’ protests demanding your release have taken place in dozens of countries around the world,” Willcox wrote. “Words can’t describe it, so I won’t try. The bottom line is that the international reaction makes me believe that what Greenpeace is doing is deeply appreciated and important.”
The headlines took on an even more critical tone against Russia once the international tribunal got involved.
The government of the Netherlands asked ITLOS to find that Russia violated international law by establishing a 3-nautical-mile safety zone around the drilling platform and that it detained the crew and seized the Arctic Sunrise without the consent of the Netherlands. On November 22, 2013, the tribunal issued an order calling for the immediate release of the Arctic Sunrise and the Arctic 30.
ITLOS said Russia had no evidence to conclude that relevant Russian laws were being broken that would allow it to board the ship. The tribunal also had no reason to believe the ship was engaged in terrorist acts, which would have given the Russians a legal basis to board and possibly seize the vessel.
The Arctic 30 were not freed immediately, so the Greenpeace publicity machine grew louder by the day.
“Thousands of people had protested in front of numerous Russian embassies,” Willcox wrote. “Letters from statesmen, world leaders, religious leaders, celebrities, actors and media figures from every corner of the globe joined in the effort to release us. It’s an impressive list, and it’s not just the length of the list that’s amazing, it’s the breadth of it: 12 Nobel Prize winners. Paul McCartney. The Pope. Madonna. (It’s not too often that the Pope and Madonna are in agreement on anything!)”
The Russians released the Arctic 30 a week after the tribunal’s ruling and after the crew had spent about two months in jail. The Russian government, however, never acknowledged the ITLOS ruling as legitimate. The captain and crew were released as part of a general amnesty bill passed by lawmakers.
“On the whole, we are seriously concerned by the fact that this judgment actually encourages maritime protests which are far from being peaceful and which create impediments for absolutely lawful activities in the exclusive economic zone and on the continental shelf, and thereby violate the lawful rights of individuals and littoral states,” said Russian Foreign Ministry spokeswoman Maria Zakharova, according to Interfax news agency.
Greenpeace eventually got its ship back, too. The Russians released it from the port city in June 2014.
The Russians, in essence, accommodated the ITLOS ruling without acknowledging it, said Professor Peter Dutton, director of the China Maritime Studies Institute at the U.S. Naval War College. “They found a way through their own domestic institutions to achieve the same result,” Dutton told FORUM. The manner in which the Russians complied, Dutton said, allowed them to “preserve their dignity as a great power” while gaining control over how the ruling was accommodated.Potential for Parallel Paths
Russia’s path toward compliance could be a possible — if not predictable — path for China to take in its legal battles over maritime disputes in the South China Sea, Dutton said.
An arbitration panel at The Hague sided with the Philippines when it challenged China’s attempt to control vast areas of water and shoals in the South China Sea. China also has built artificial islands in the sea and equipped them with military facilities.
The arbitration panel said China has no legal basis for its expansive claim to sovereignty over waters in the South China Sea and that China also caused irreparable harm to the marine environment by constructing artificial islands.
Dutton believes China’s relationships with its neighbors — Brunei, Malaysia, the Philippines, Taiwan and Vietnam also have claims to the energy-rich waters — could hinge on whether it eventually respects the legal decision.
“China has the option of accommodating the opinion by bringing its claims into alignment with it and by becoming more cooperative with parties in the region,” Dutton said. He said that water resources could be jointly managed, adding that it’s a “decades-old idea but a good one.”
Other scholars also point to the Arctic Sunrise case as a possible parallel. Law Professor Jerome A. Cohen wrote in June 2016 that China and the Philippines could take into account the arbitration ruling in their negotiations without formally mentioning it.
Cohen, an adjunct senior fellow for Asia at the Council on Foreign Relations, wrote that India served as a role model for how “great powers should accept the decision of an expert panel of independent arbitrators” in its dispute with Bangladesh over the Bay of Bengal.
In July 2014, a United Nations arbitration panel at The Hague awarded to Bangladesh about four-fifths of a disputed area in the Bay of Bengal encompassing 19,467 square kilometers. The ruling opened the way for energy exploration and settled a long-running territorial dispute between Bangladesh and India. Both countries promised to abide by the decision.
The triangular Bay of Bengal is important for shipping and fishing and has substantial oil and mineral reserves.
Rather than decrying the ruling as illegitimate, India’s Foreign Ministry released a statement that said the decision would “further enhance mutual understanding and goodwill” between the neighbors “by bringing to closure a long-pending issue.”
While China has continually criticized the South China Sea ruling and refused to acknowledge its legitimacy, Cohen wrote that China could come into compliance and save face by taking a more low-key approach.
For China, saving face is “crucial, of course,” he wrote. “But with every Beijing propaganda blast, it will become harder to save.”
A decision by China to accommodate the decision, Dutton said, will only help China in the long run. “They have really done generational damage to their relationships with Southeast Asian states,” he said.