COMMENT OF THE MINISTRY OF FOREIGN AFFAIRS OF UKRAINE ON THE INITIAL PROCEDURAL HEARINGS BY THE ARBITRATION TRIBUNAL ESTABLISHED IN ACCORDANCE WITH ANNEX VII TO THE UN CONVENTION ON THE LAW O 21.11.2019
On 21 November 2019, the Peace Palace (The Hague, Kingdom of the Netherlands) hosted the procedural hearing of the Arbitral Tribunal constituted under Annex VII to the UN Convention on the Law of the Sea in the case concerning the immunity of three Ukrainian naval vessels and 24 servicemen on board. Arbitral Tribunal composed of Donald Makreia (Canada) – President, Gudmundur Eiriksson (Iceland). Rüdiger Wolfrum (Germany), Christopher Greenwood (Britain), Vladimir Golitsyn (Russia) commenced hearing the positions of the parties on the procedural aspects of further consideration of the case. The hearings are confidential.
The Arbitral Tribunal will soon publish its first Procedural Order. The main elements of the introductory speech of the Agent of Ukraine, Olena Zerkal, Deputy Minister of Foreign Affairs for European Integration are the following: – This case is important but not complicated. It concerns the illegal seizure and detention of three Ukrainian warships the Berdyansk and the Nikopol, Ukrainian naval vessel the Yani Kapu and the twenty-four servicemen on board by the Russian Federation. – On 25 November 2018, Russian coast guard seized Ukrainian naval vessels, while they were in the Black Sea peacefully heading to the Ukrainian port in Odessa. – By the seizure and detention, Russia violated the core principle enshrined in the Convention and customary international law, according to which warships and other naval vessels enjoy absolute immunity. Such actions were condemned by the whole world, including the UN General Assembly, the European Parliament, the Parliamentary Assembly of the Council of Europe and various states. – After several months of fruitless joint efforts aimed at forcing Russia to release Ukrainian vessels and servicemen, on 1 April 2019, Ukraine commenced the arbitration proceeding under the UN Convention on the Law of the Sea. – On 25 May 2019, the International Tribunal for the Law of the Sea ordered Russia to “immediately release the Ukrainian naval vessels,” and to “immediately release the 24 detained Ukrainian servicemen”. – Russia did not comply with the Tribunal’s order. Instead, Russia held the servicemen for further four months, before finally releasing them in September. Even today, Russia has not complied with the ITLOS order because it imposed conditions on the release of the servicemen.
Even though three days ago – now almost a year since the seizure of Ukrainian naval vessels on 25 November 2018 – Russia released the Berdyansk, the Nikopol, and the Yany Kapu vessels, it still has not complied with the order. This is connected with the fact that before releasing the vessels, in violation of the ITLOS order, Russia seized weapons, communications equipment, documents etc from the vessels. All these remain in Russia. – Further, Russia continues to violate UNCLOS. Russia continues to deny the immunity of our servicemen and continues to prosecute them based on actions taken while they were on board of Ukrainian naval vessels. It still refuses to return to Ukraine the sensitive communications equipment and other materials seized from the vessels. To put an end to this continuing violation of UNCLOS, Ukraine is entitled to a final, binding decision that Russia has breached Articles 32, 58, 95, and 96 of the Convention.
On 1 April 2019, Ukraine notified Russia that it was initiating mandatory arbitration under the UNCLOS. On 16 April 2019, Ukraine appealed 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. The case concerns violation of the absolute immunity of warships and their crews under UNCLOS, which means that foreign states cannot arrest, detain or prosecute them. Russia's seizure of Ukrainian ships in the Black Sea, the detention and criminal prosecution of our servicemen grossly violate the UNCLOS. On 10 May 2019, the International Tribunal for the Law of the Sea held public hearings on the prescription of provisional measures requested by Ukraine. On 25 May 2019, the International Tribunal for the Law of the Sea issued the Order requiring the Russian Federation to immediately release the Ukrainian vessels the Berdyansk, the Nikopol and the Yani Kapu, return them to Ukraine, and immediately release detained Ukrainian servicemen.