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.
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:
- 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.
- 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.
- 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.
- 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.
- 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).
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).
For further information, please contact Andrew Cannon, Partner, Peter Archer, Associate, or your usual Herbert Smith Freehills contact.