Case concerning the detention of three Ukrainian naval vessels and the twenty-four servicemen on board before an Arbitral Tribunal constituted under Annex VII to UNCLOS
Ukraine vs Russia
According to the United Nations Convention on the Law of the Sea ("UNCLOS"), naval vessels and personnel on board shall have absolute immunity, which means that foreign states cannot arrest, detain or prosecute them. Russia's seizure of Ukraine's vessels in the Black Sea, detention of vessels and servicemen on board, and the attempted prosecution of these servicemen grossly violate UNCLOS and customary international law.
After several months of efforts to release its naval vessels and servicemen and Russia's unjustified refusal to do so, Ukraine notified Russia that it was initiating mandatory arbitration under the United Nations Convention on the Law of the Sea.
The objective of the claim
The objective of the claim is to find the Russian Federation guilty of violating the UN Convention on the Law of the Sea and to obtain adequate compensation for the damage caused by such violations.
As a result of procedural hearing on 21 November 2019, on 22 November 2019, the Arbitral Tribunal issued the Procedural Order, which set 22 May 2019 as the deadline for submission of a Memorandum by Ukraine.
The arbitral tribunal did not support the position of the RF on completely confidential consideration of the case.
Instead, the arbitral tribunal agreed with Ukraine's position on its transparency and determined that the written positions of the parties would be made public at the beginning of the public hearings; agents' speeches will be also public; and decisions on public access to the other hearings will be made by the arbitral tribunal a day before the hearings.
In addition, Russia strongly objected against the inclusion of a reference to Ukrainian servicemen in the title of the case.
Instead, the arbitral tribunal supported Ukraine's position on the need to reflect in the title of the case not only Russia's violation of international law, but also the fact that this dispute concerns our sailors who spent 9 months in prison.
In accordance with the decision of the Tribunal, the title of the case is now “Dispute concerning the detention of three Ukrainian naval vessels and the twenty-four servicemen on board”.
The first procedural hearing on the Case concerning the detention of three Ukrainian naval vessels and twenty-four members of their crews took place
The vessels were transferred to Ukraine in the Black Sea but only as material evidence in the criminal proceeding of the Russian Federation and without equipment.
24 Ukrainian servicemen together with 11 prisoners of the RF were returned to Ukraine as a result of agreement between the President of Ukraine and the President of the Russian Federation.
The Ministry of Foreign Affairs of Ukraine received a note from the Ministry of Foreign Affairs of the Russian Federation containing a cynical proposal for Ukraine to provide written guarantees of Ukraine's participation in continuing criminal prosecution of Ukrainian servicemen under the Russian law.
The Ukrainian part informed the International Tribunal for the Law of the Sea about the inadmissibility of such Russia’s proposal, as well as about the escalation of the dispute between Ukraine and Russia over the immunity of warships by the Russian party.
In this regard, the Ministry of Foreign Affairs of Ukraine demanded that Russia must comply with the Order of the International Tribunal for the Law of the Sea without setting additional conditions and immediately release the captured 24 Ukrainian servicemen.
The Ukrainian part emphasized that the mechanisms available in Russian law, as well as the existing multilateral international agreements, to which Ukraine and Russia are the parties, are sufficient to stop the illegal persecution of Ukrainian servicemen and to implement the Order of the International Tribunal for the Law of the Sea.
The Ministry of Foreign Affairs of Ukraine reiterated its demand to immediately inform it about the time and place of release and return of the vessels mentioned in the Order to the custody of Ukraine and about the time and place of transfer of twenty-four illegally detained servicemen to consular officials of the Embassy of Ukraine in Russia.
The International Tribunal for the Law of the Sea issued an Order requiring the Russian Federation to immediately release the Ukrainian vessels “Berdyansk”, “Nikopol” and “Yani Kapu”, return them under control of Ukraine, and immediately release the detained Ukrainian servicemen and allow them to return to Ukraine.
This Order contains a serious signal to Russia that it cannot violate international law with impunity. The detention of three naval vessels and the 24 servicemen on board is a gross violation of the immunity enjoyed by warships under the United Nations Convention on the Law of the Sea and customary international law.
According to the Tribunal, the actions taken by the Russian Federation may cause irreparable harm to Ukraine's claimed rights to the immunity of its naval vessels and servicemen, if the arbitral tribunal constituted under Annex VII, recognizes that Ukraine enjoys those rights. In addition, the Tribunal considers that the risk of irreparable harm is real in these circumstances.
The objective of the request for provisional measures filed with the International Tribunal for the Law of the Sea is to obtain protection from further irreparable harm to the rights of Ukraine during the consideration of the case on the merits.
Russia's refusal to participate in the dispute does not affect the course of legal proceedings and does not release Russia from the obligation to comply with the Order of the International Tribunal for the Law of the Sea.
According to the Order of the Tribunal, the Parties were required to submit reports on the implementation of the above Order by 25 June.
However, the Russian Federation did not comply with the Tribunal's Order.
The Ministry of Foreign Affairs of Ukraine has strongly protested against the Russian Federation's failure to comply with the Order of the International Tribunal for the Law of the Sea dated 25 May 2019 and the continued illegal detention of the 24 Ukrainian servicemen from “Berdyansk”, “Nikopol” and “Yani Kapu” warships.
The International Tribunal for the Law of the Sea held public hearings on the prescription of provisional measures requested by Ukraine in the case Ukraine v. the Russian Federation concerning the detention of three Ukrainian naval vessels and their crews. The public hearings were public, the video is available at: link.
Ukraine filled a request to the International Tribunal for the Law of the Sea (ITLOS) to prescribe provisional measures against the Russian Federation for the immediate release of three Ukrainian naval vessels and twenty-four servicemen on board illegally seized and detained by the Russian Federation in the Black Sea on 25 November 2018.
Ukraine notified Russia that it was initiating mandatory arbitration under the United Nations Convention on the Law of the Sea. Ukraine also requested the International Tribunal for the Law of the Sea to prescribe provisional measures, namely to release Ukrainian naval vessels and 24 servicemen, given the urgency of the situation.