On Saturday, 25 May, the International Tribunal for the Law of the Sea (ITLOS) in Hamburg, Germany announced the application of provisional measures to the Russian Federation for violation of the immunities of three Ukrainian naval vessels and 24 servicemen on board. The order was upheld by 19 judges of the Tribunal. One voted against it.
The Russian party has previously refused to participate in the hearings. Moscow believes that the Tribunal has no jurisdiction to consider the incident in the Kerch Strait.
The ITLOS hearing, at which the order was delivered, took place exactly six months ago from the seizure by Russia in the Kerch Strait of the crews of two small armored artillery boats and a naval tugboat of the Ukrainian Naval Forces.
The ITLOS hearing, 25 May 2019. Photo: Ministry of Foreign Affairs of Ukraine
"Kerch Strait incident", "act of Russian aggression against Ukraine at sea" – this is the common description for the events that took place in the Kerch Strait on 25 November 2018, when Russia captured Ukrainian servicemen, the youngest of whom – Andriy Eider – was 18 y.o.
The UN later recognized the servicemen as prisoners of war.
“CASE No. 26” OF THE INTERNATIONAL TRIBUNAL FOR THE LAW OF THE SEA
The case “Ukraine v. the Russian Federation” regarding the detention of naval vessels and servicemen on board in the Kerch Strait last November is the 26th case in the practice of the International Tribunal for the Law of the Sea established in 1996 (permanent UN court - ed. note).
After the first hearing on 10 May, Olena Zerkal, Deputy Minister of Foreign Affairs of Ukraine explained: "Provisional measures shall be applicable in a situation where there is a risk of further harm if measures are not taken immediately".
"Every day of our sailors’ stay in Lefortovo is a great pity for Ukraine", she added.
Pavlo Klimkin, Minister of Foreign Affairs of Ukraine also congratulated his colleagues on the victory. He was also glad about the "toothless reaction of Russia", which the Minister wrote in his Twitter account.
THE ORDER IN FAVOR OF UKRAINE DELIVERED TODAY, ITS LEGAL CONSEQUENCES FOR RUSSIA AND RUSSIA’S THREATS OF INCOMPLIANCE WITH IT, RADIO SVOBODA RECEIVED COMMENTS OF LAWYERS PRACTICING INTERNATIONAL LAW.
Will the decision of the Tribunal affect the fate of Ukrainian servicemen?
Mykola Hnatovsky. Photo: Daria Kurennaya / RadioSvoboda.Org (RFE / RL)
Mykola Hnatovsky, First Vice President of the Ukrainian Association of International Law:
The order of the Tribunal has every chance to become, if not decisive, then a key argument in favor of the immediate release of Ukrainian servicemen. Regardless of whether Russia will refer in its official statements their release to the Tribunal's order or not, the implementation of its substantive part by releasing the seamen seems very likely.
Tymur Korotkyi. Courtesy Photo
Tymur Korotkyi, Professor of the Department of International and European Law at the National University "Odessa Law Academy", Coordinator of the Southern Regional Center of the Ukrainian Association of International Law:
Undoubtedly, it will cause an effect. However, the first official reaction of the Russian Ministry of Foreign Affairs gets round the issue of execution of the Tribunal's order.
The question is whether Russia will enforce the order immediately or whether the execution will be delayed and "covered up" as the decisions of the Russian judicial system.
Given Russia's disregard for international law and international justice, the first scenario is unrealistic. However, this does not preclude Russia's actions to release Ukrainian servicemen on other grounds – whether that be a political or political and legal decision.
In general, I consider the order of the International Tribunal for the Law of the Sea dated 25 May a victory of Ukraine, our diplomacy, a victory of international law in general.
Zakhar Tropin, Associate Professor of the Department of International Law, Institute of International Relations, Taras Shevchenko National University of Kyiv, Candidate of Law Sciences:
I see three possible options for further developments.
The first: Russia obeys the order and releases Ukrainian servicemen and vessels.
The second: Russia refuses to execute the order. Here, the decision of the Constitutional Court of the Russian Federation on the possibility of non-enforcement of decisions of international judicial institutions if such enforcement is contrary to the Constitution of the Russian Federation shall be kept in mind.
And the third: Russia does not legally comply with this order, but otherwise releases servicemen and vessels. Russia acted similarly in the case of the Arctic Sunrise (flag of the Netherlands) of Greenpeace environmental organization (in 2013, the Netherlands filed a lawsuit against Russia with the International Tribunal for the Law of the Sea – ed. note)
In any case, the Tribunal's order dated 25 May significantly improves the prospects for the return of our servicemen and vessels.
What measures should Russia take and in what timeframe?
Ihor Karaman, Master of International Maritime Law (IMO Institute of International Maritime Law, Malta), Doctor of Law (National University of Athens, Greece):
According to the order of the Tribunal, adopted by 19 votes to 1, Russia must:
- immediately release the Ukrainian naval vessels the Berdyansk, the Nikopol, and the Yany Kapu, and return them to Ukraine;
- release the 24 detained Ukrainian servicemen and allow them to return to Ukraine.
In addition, the Tribunal ordered both Parties to refrain from taking any action which might aggravate or extend the dispute submitted to the arbitral tribunal under Annex VII to the 1982 UN Convention on the Law of the Sea, as well as to submit the initial report on compliance with provisional measures prescribed by the Tribunal within one month (no later than 25 June 2019).
In this case, the Parties must submit the initial report on compliance with provisional measures prescribed by the Tribunal no later than 25 June 2019.
What if Russia ignores the Tribunal's order?
Tymur Korotkyi: The probability thereof is quite high, in my opinion.
Russia's failure to comply with the Tribunal's order is an additional violation of Russia's obligations under the 1982 UN Convention on the Law of the Sea and international law in general.
In case of non-compliance with the order of the Tribunal (I shall note that the order requires the Parties to submit to the Tribunal a report on compliance no later than 25 June 2019), this will have a significant number of adverse consequences for the Russian Federation in international relations and international law. In particular, increasing political pressure, further isolation, new sanctions, new resolutions of international organizations, and additional argument in statements and cases in other international human rights institutions regarding the release of Ukrainian servicemen.
Zakhar Tropin: The order is binding, so Russia cannot just ignore it. Failure to comply with it will mean increasing pressure from the world community on Russia. At least in the form of consideration of this issue by the UN Security Council.
In addition, new sanctions are likely to be imposed by states and international organizations, in particular on shipping under the Russian flag and the activity of Russian ports.
Mykola Hnatovskyi: Disregard will cost Russia much more than execution.
The unequivocal and unanimous (apart from the Russian judge) decision of the international judicial institution is a powerful argument in international politics, which significantly reinforces the already voiced demands of many states to Russia to release Ukrainian servicemen and return the seized vessels.
Failure to comply with the Tribunal's order will trigger too many reputational risks for the Russian Federation, which has so far consistently sought to maintain the guise of legitimacy of its conduct and advocates the need to comply with international law (albeit in its own rather inconsistent interpretation).
Ukraine applied to the ITLOS (International Tribunal for the Law of the Sea – ed. note) in April, i.e. in more than four months after the events in the Kerch Strait. Has the delayed application complicated the case (or not)?
Zakhar Tropin: Recently, in my article, I expressed my concerns thereof.
However, the Tribunal did not consider this argument of the Russian part, noting that the urgency and necessity of ordering the release of vessels and their crews was justified by their status – that they were naval vessels and servicemen.
In this part, the ITLOS noted that the issue of protecting the immunity of naval vessels and sailors is urgent. Therefore, the freedom of naval vessels and their crews is an urgent issue.
Thus, Ukraine's delay in appealing to the Tribunal has so far not affected the case.
Oleksandr Shemiakin, Doctor of Law Sciences, Professor, First Vice-Rector of the National University "Odessa Maritime Academy":
It is difficult to criticize or predict what would happen in one case or another.
The very fact that Ukraine has taken the path of resorting to temporary measures is positive. After all, the hearing of the case on the Russian Federation's violation of the immunity of Ukrainian naval vessels may last for several years.
That is why Ukraine's demands to close the criminal case against the 24 captured Ukrainian servicemen, release them and allow them to return to Ukraine is a very correct step.
Let me add that two of the servicemen at the time of detention were cadets of the sixth year of studies of the Institute of Naval Forces of the National University "Odessa Maritime Academy".
This is not finished yet.
Lawyers point out that since there is a major dispute between Ukraine and Russia over the immunity of three naval vessels and servicemen on board, the case is not formally closed.
The case will be considered on the merits by another judicial body – the Arbitral Tribunal. Arbitration in The Hague has jurisdiction over all disputes between Ukraine and Russia under the UN Convention on the Law of the Sea.
International Tribunal for the Law of the Sea hearing, 25 May 2019. Photo: www.itlos.org^^
When should the trial on the merits begin?
Zakhar Tropin: The trial has already begun. After all, Ukraine, together with the application for provisional measures, simultaneously submitted an application for consideration of the case on the merits by the Arbitration under Annex VII of the UN Convention on the Law of the Sea.
The Arbitral tribunal is still unformed. This is the first thing that will be done. Then, most likely, Russia will deny its jurisdiction on the already mentioned or new arguments again. If the Arbitral tribunal confirms its jurisdiction, the case will be considered on the merits. Although, these two issues may be combined into one stage of the proceeding.
How quickly does the Arbitration usually deliver such decisions? What will be the legal status of the 24 Ukrainian servicemen all this time?
Ihor Karaman: As practice shows, a proceeding in the Arbitration may last for 2 years and more.
At the same time, the legal status of Ukrainian servicemen will depend on whether Russia complies with the order of the International Tribunal for the Law of the Sea dated 25 May and, accordingly, whether they are released.
How will Ukraine be able to use the Tribunal's order to protect its national interests outside this case?
Zakhar Tropin: The main thing is that the order rules to release our vessels and servicemen. Secondly, in any case, it is an additional pressure on Russia in the international arena; pressure on the courts of Russia, where cases against our servicemen are being considered.
However, it is still necessary to read the full text of the Tribunal's order. It acknowledges the use of force (albeit within the framework of law enforcement) against Ukrainian naval ships. And this, in fact, is recognition of Russia's aggression against Ukraine.
I believe there is another important point. Although the Tribunal noted that the Kerch Strait passage regime was "the subject of a dispute between Ukraine and Russia", it acknowledged that the passage of Ukrainian vessels through the Kerch Strait prior to the incident was evidence of freedom of navigation in the area.
The latter is in fact a confirmation of the legitimacy of the unimpeded passage through the Kerch Strait of vessels flying the flag of Ukraine and into the ports of Ukraine.
Mykola Hnatovskyi: An important precedent was set when a respected permanent international judicial body unanimously (with the exception of a judge from the respondent state) sided with Ukraine in a resonant incident in the Russia-Ukraine conflict. Procrastination in the execution of the order of the Tribunal and, moreover, its disregard, adds significant legal, moral and political arguments to Ukraine to strengthen its position in the eyes of the international community and the public.
Besides defending the national interests of Ukraine, what is interesting about this case for the development of international law in general?
Oleksandr Shemiakin: Indeed, the decisions of international judicial institutions often give impetus to the development of international law or its individual institutions. For example, the first case of the International Tribunal for the Law of the Sea is worth noting here. It was considered in 1997-1999 (“Saint Vincent and the Grenadines v. Guinea”) and was linked to the arrest of the M/V SAIGA. This case gave impetus to the development of the institution of real communication between the ship and the flag state. By the way, provisional measures were also applied in that case.
As for our case. It takes some time to comprehend it, especially after the statement of the Ministry of Foreign Affairs of the Russian Federation. Violating the general principles and rules of international law, Russia pursues "its" policy in the Black Sea and the Sea of Azov, in the Kerch Strait, which creates problems for international shipping.
Mykola Hnatovskyi: One of the interesting points in the published order of the Tribunal, as for me, is the application of criteria that distinguish the paradigm of armed conflict from the paradigm of law enforcement activity, which not only is important for maritime law and a specific provision of the UN Convention on the Law of the Sea, but also may be applied to "inland" situations.
By 25 of June the Russian Federation has to report on its actions taken to comply with the order of the International Tribunal for the Law of the Sea dated 25 May.
At the same time, a statement issued today by the Russian Ministry of Foreign Affairs claims that the exceptions that Russia and Ukraine registered during the adoption of the 1982 UN Convention on the Law of the Sea "make it impossible to apply its procedures for resolving disputes such as the conflict in the Kerch Strait".