On 22 November 2013 the International Tribunal for the Law of the Sea (ITLOS) issued provisional measures ordering the Russian Federation to release the Dutch vessel the Artic Sunrise and her crew from detention and allow them to leave the country. The dispute is about Russian jurisdiction to arrest the vessel (in a technical sense) and prosecute her crew for crimes they allegedly committed. The issue at the heart of the dispute is whether or not Russia violated its obligations under the United Nations Convention on the Law of the Sea (UNCLOS) by taking the vessel and her crew into custody while they were in the exclusive economic zone without first asking the Netherlands government for permission to board.
ITLOS ordered the provisional measures because it accepted that the failure to comply with such an order would irreparably harm the Netherlands’ interests pending resolution of the dispute between the two countries. The interests considered by the tribunal being the condition of the vessel and the crew’s liberty interests, both of which being harmed by their detention. As a guarantee pending the resolution of the international dispute (and to guarantee payment of any damages to Russia) the tribunal ordered that the Netherlands take out a bond of 3.6 million.
Russia, for its part, has stated that it will ignore the order for provisional measures, as it does not accept that jurisdiction of the tribunal. In fact, Russia did not participate in the hearing on the Dutch request for the tribunal to intervene.
What makes the issue so interesting is that it appears to conflate the issue of a potential infraction of an international obligation (such as the arrest of the vessel) that is capable of being resolved by the payment of money (economic loss) and the enforcement of national criminal laws (against the crew for their alleged crimes). These two issues are of a type different, one is inherently “civil” in nature while the other has to do with public order. A bond, such as that ordered by the tribunal, can work to guarantee compensation for Russia should the Netherlands lose the suit and be forced to pay – which is the purpose of seizing the boat in the first place. The same cannot be said for the release of the vessel’s crew.
The enforcement of criminal law is not about money (or at least it should not be). The idea behind penal sanction is that punishment will not only deter the culprit from violating the law a second time, but the existence of punishment will deter others from committing crimes in the first place. If the crew of the Artic Sunrise are guilty of crimes under the Russian penal code, their release will effectively prevent their punishment and thereby undermine the effectiveness of Russian criminal justice. Even assuming, however, that these considerations are not relevant, that would still not mean Russia would lack the legal ability to try the crew of the Artic Sunrise because the vessel was seized in violation of UNCLOS.
There is an internationally recognized principle that those who break the law may be tried even if their initial arrest was made in contravention of the law, known as the male captus, bene detentus rule. This rule has been explicitly accepted as a matter of International Criminal Law, and has been applied by States to justify national prosecutions. Some countries object to the validity of this rule of law and choose, as a matter of national law to prevent trial after illegal arrest. No rule of generally applicable customary international law requires such a result.
ITLOS did not address the issues of the enforcement of criminal law or male captus, bene detentus. The basis for its issuing the precautionary measures vis-à-vis the crew of the Artic Sunrise is not clear. It would have been great benefit had the tribunal decided to explain its decision, unfortunately, it did not.
In the end, Russia should comply with the order to release the Artic Sunrise and accept the bond on this matter. This is the correct legal result and it could be good as a political bargaining chip. When it comes to the custody of the crew, however, I cannot say that Russia is entirely in the wrong, at least as a matter of international law on the exercise of criminal jurisdiction.