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.
On 23 September 2017, a Special Chamber of the International Tribunal for the Law of the Sea (ITLOS) delivered its judgment on the longstanding maritime boundary dispute between Ghana and Côte d’Ivoire.
The Special Chamber reconfirmed the relevance of the equidistance methodology in determining the maritime boundary between the two States. The judgment also touches on important issues affecting States and international companies operating in disputed waters such as the applicable obligations pending resolution of such disputes.
Herbert Smith Freehills' consultant Antonio Pastor is pleased to announced the release of his book 'Delimitation of maritime boundaries between states. Insular formations and low-tide elevations' (TIRANT LO BLANCH, Valencia, 2017).
Commenting on the book, Antonio said: "There is an economic dimension of this subject matter. The settlement of maritime boundaries can have a significant impact on the economic decisions of States as well as of commercial actors. Businesses need to know which State exercises sovereignty or jurisdiction over an insular formation, and therefore to grant commercial concessions in relation to that territory."
At a ceremony in Singapore on 31 August 2015, representatives of the International Tribunal for the Law of the Sea (ITLOS) and the Singaporean Ministry of Law signed a Joint Declaration for Singapore to provide facilities to ITLOS whenever it is desirable for ITLOS or a special chamber of ITLOS to exercise its functions in Singapore. ITLOS announced the arrangements in a joint press release, available here.
Established by the United Nations Convention on the Law of the Sea (UNCLOS or the Convention) in 1982, ITLOS sits to hear any dispute concerning the interpretation or application of the Convention. Currently, there are 167 parties to the Convention, which comprises 166 States and the European Union. Importantly, the United States has not signed or ratified the UNCLOS. Since it was founded in 1996, ITLOS has heard 24 cases (only five of which have been on the merits).
As reported in our earlier blog post, on 29 and 30 November 2012, the International Tribunal for the Law of the Sea (the ITLOS) heard an application by Argentina for provisional measures against Ghana under Article 290(5) of the UN Convention on the Law of the Sea (UNCLOS) regarding the detention of its naval ship, the ARA Libertad. The ARA Libertad was detained in Ghana following a successful application in the High Court in Accra by NML Capital, one of Argentina’s creditors (see our earlier blog post). Argentina commenced arbitration proceedings against Ghana under Annex VII of UNCLOS and, by way of its application for interim relief, sought an order requiring Ghana unconditionally to release the frigate.
On 15 December 2012, the ITLOS granted the requested provisional measures, ordering Ghana to release the ARA Libertad and ensure that it, its commander and crew are able to leave the maritime areas under the jurisdiction of Ghana. Ghana has complied with the ruling, and the Libertad set sail from Tema yesterday.
The full Order can be found here.
On 29 and 30 November 2012, the International Tribunal for the Law of the Sea (ITLOS) heard an application by Argentina for provisional measures against Ghana under Article 290(5) of the UN Convention on the Law of the Sea (UNCLOS). The application is regarding Ghana’s continued detention of the Argentine warship, the ARA Libertad. The ITLOS action is the latest instalment in Argentina’s long-running battle with a number of holdout bondholders who are pursuing Argentine state assets around the globe in a bid to recoup their substantial losses following Argentina’s default on US$80 billion of public debt in 2001.
The vessel was detained in the Ghanaian port of Tema on 2 October 2012 when one of Argentina’s creditors, NML Capital, successfully obtained an injunction detaining the vessel from the Ghanaian High Court in Accra. A subsequent challenge to the injunction by the Argentine government on the grounds of state immunity was unsuccessful (which we covered here). Argentina has since filed an appeal against that decision with the Ghanaian Court of Appeal, which is expected to be heard in January 2013. NML Capital is owed just under US$300 million by Argentina, and has sought to enforce judgments handed down in its favour by the US courts against Argentine state assets around the globe.
On 14 March 2012, the International Tribunal for the Law of the Sea (the “ITLOS“) issued its judgment in the dispute concerning delimitation of the maritime boundary between Bangladesh and Myanmar in the Bay of Bengal.
This case, upon which Herbert Smith advised, is a significant contribution to the jurisprudence in this area. This post highlights three key points arising out of the judgment, and examines what it may mean for the future resolution of other maritime boundary disputes.