UK: International Tribunal For The Law Of The Sea Prescribes Provisional Measures Requiring Russia To Release Three Ukrainian Naval Vessels

Last Updated: 24 July 2019
Article by Andrew Cannon and Peter Archer
Most Read Contributor in UK, August 2019

Following an incident last November, the International Tribunal for the Law of the Sea (“ITLOS”) has prescribed provisional measures requiring Russia to release three Ukrainian naval vessels.

Background

The November 2018 incident and institution of arbitration

In late November 2018, the Russian coast guard arrested and detained three Ukrainian naval vessels near the Kerch Strait in the Black Sea. The 24 Ukrainian servicemen on board the vessels were also arrested and detained. The Russian authorities have since commenced criminal proceedings against the servicemen.

Ukraine subsequently instituted arbitration proceedings against Russia under Annex VII to the United Nations Convention on the Law of the Sea (the “Convention”). It alleged that Russia had breached its obligations under the Convention, notably in respect of the immunity of foreign naval vessels. These proceedings are in addition to a separate Annex VII arbitration which Ukraine commenced in 2016.

The request for provisional measures

On 16 April 2019 Ukraine filed a request for provisional measures with ITLOS. The request sought provisional measures requiring Russia promptly to: (i) release the Ukrainian naval vessels and return them to Ukraine’s custody; (ii) suspend the criminal proceedings against the detained servicemen and refrain from instituting fresh proceedings against them; and (iii) release the servicemen and allow them to return to Ukraine.

The Annex VII arbitral tribunal which will eventually hear Ukraine’s claims (if it has jurisdiction) has yet to be constituted. However, Article 290(5) of the Convention provides that, pending its constitution:

“any court or tribunal agreed upon by the parties or, failing such agreement within two weeks from the date of the request for provisional measures, the International Tribunal for the Law of the Sea [...] may prescribe, modify or revoke provisional measures in accordance with this article 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”.

Accordingly, it was open to ITLOS to prescribe provisional measures only if it was satisfied prima facie that: (i) the tribunal due to be constituted under Annex VII of the Convention would have jurisdiction; and (ii) the urgency of the situation required their prescription. In an order issued on 25 May 2019, it found that these requirements were satisfied and prescribed provisional measures. Having noted that it did not consider that the Annex VII tribunal (and therefore ITLOS) would have even prima facie jurisdiction to rule on Ukraine’s claim Russia elected not to participate in the oral hearing on the request. At the same time, it reserved its right to participate in the subsequent arbitration should the matter proceed further.

Jurisdiction to prescribe provisional measures

ITLOS’ prima facie assessment of the Annex VII tribunal’s jurisdiction focused upon three issues.

The existence of a dispute between Ukraine and Russia concerning the interpretation or application of the Convention (Art. 288(1))

Ukraine’s claims were founded on the contention that, in failing to accord its naval vessels complete immunity (and prosecuting its servicemen), Russia had breached Articles 32, 58, 95 and 96 of the Convention. Russia had submitted written observations on Ukraine’s request, but had not commented directly on these provisions. Nonetheless, its actions indicated that its position differed from that of Ukraine in this regard. ITLOS was therefore satisfied that, on the date that arbitration was instituted, a dispute existed between Ukraine and Russia concerning the interpretation and application of the Convention.

The potential applicability of the “military activities” exclusion (Art. 298(1)(b))

Under Article 298(1)(b) of the Convention, States may declare that they do not accept compulsory dispute resolution procedures in respect of “disputes concerning military activities”. Russia (like Ukraine) had made such a declaration, and it argued that, since the incident concerned “military activities”, the dispute was excluded from the Annex VII tribunal’s jurisdiction.

ITLOS rejected this argument and accepted the contention that the incident concerned law enforcement, rather than military, activities. In its view, this conclusion reflected various considerations:

  1. Determining whether a dispute concerned military or law enforcement activities was to be based “primarily” on an objective evaluation, taking into account the relevant circumstances. A party’s own description of the activities was not determinative. Nor was the type of vessel used.
  2. The underlying dispute related to the passage of Ukrainian naval vessels through the Kerch Strait. The passage of naval vessels is not in and of itself a military activity.
  3. In this instance, the central issue was the parties’ differing interpretations of “the regime of passage through the Kerch Strait”. In ITLOS’ view, disputes of this sort are not military in nature.
  4. During the incident, the Russian coast guard had fired both warning and targeted shots at the Ukrainian vessels. But this only occurred once the Ukrainian vessels had turned around and begun to sail away from the Kerch Strait. ITLOS considered that the “facts provided by the Parties do not differ on this point”. On that factual basis, ITLOS considered it to be a use of force in the context of a law enforcement, rather than military, operation.
  5. Furthermore, Russia was relying on Article 30 of the Convention – entitled “Non-compliance by warships with the laws and regulations of the coastal State” – and had commenced criminal proceedings against the Ukrainian servicemen. This reinforced the view that the incident concerned law enforcement activities.

The obligation to exchange views (Art. 283).

Article 283 of the Convention obliges the parties to a dispute to “proceed expeditiously to an exchange of views regarding its settlement by negotiation or other peaceful means”. Ukraine had outlined its position in a note verbale issued on 15 March, in which it set a 10-day deadline for Russia to express its view on resolving the dispute and holding consultations. Russia replied with a holding response on 25 March 2019, before confirming its consent to hold consultations on 16 April 2019 – the day on which Ukraine filed its request for provisional measures.

ITLOS accepted that the requirements of Article 283 had been satisfied. Given the obligation to proceed “expeditiously” to an exchange of views, the 10-day time-limit was not arbitrary. It further considered that Ukraine was not obliged to continue with an exchange of views once it had concluded that the possibility of reaching agreement had been exhausted. And the terms of Russia’s holding response meant that it was reasonable to reach such a conclusion.

Accordingly, ITLOS was satisfied prima facie of the Annex VII tribunal’s jurisdiction.

The urgency of the situation

In assessing the urgency of the situation, ITLOS considered two conditions.

The plausibility of the rights asserted by Ukraine

The first condition was whether the rights which Ukraine was seeking to protect were plausible. These rights concerned the immunity of warships and naval auxiliary vessels under the Convention and general international law. Two of the vessels appeared to be warships, while the other appeared to be a ship owned or operated by Ukraine and “used only on government non-commercial service”, as referred to in Article 96 of the Convention. ITLOS was therefore satisfied that the rights claimed by Ukraine under the Convention were plausible.

Real and imminent risk of irreparable prejudice

The second condition was the existence of a real and imminent risk of irreparable prejudice to the rights of parties to the dispute before the constitution and functioning of the Annex VII tribunal.

ITLOS’ view was that “any action affecting the immunity of warships is capable of causing serious harm to the dignity and sovereignty of a State”, as well as having the potential to undermine national security. Ukraine’s claims concerned the immunity of warships and there was a real and ongoing risk that Russia’s actions would irreparably prejudice the rights which Ukraine was claiming. Furthermore, the continued imprisonment of the Ukrainian servicemen raised humanitarian concerns.

As a result, ITLOS found that the urgency of the situation required the prescription of provisional measures, including the immediate release of the three vessels and the 24 servicemen. It did not, however, consider it necessary to order Russia to suspend the criminal proceedings against the Ukrainian servicemen (or to refrain from instituting new proceedings).

Comment

ITLOS’ approach in this case appears to indicate a narrow interpretation of “military activities”, thereby setting a high threshold for the application of the jurisdictional exclusion under Article 298(1)(b) (as Judge Goa noted in his separate opinion). This is, of course, only a prime facie finding. But careful note of this is likely to be taken by those States – including the UK – that have made a declaration under Article 298(1)(b).

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions