Guest post: Reverse of Russia’s non-compliance with the ITLOS order to release three Ukrainian naval vessels and their 24 servicemen

The dispute between Ukraine and Russia concerning the detention of three Ukrainian naval vessels in the Kerch Strait entered into a new phase. About a month ago Russia failed to release the vessels and their 24 servicemen despite the Order of the International Tribunal for the Law of the Sea (‘ITLOS’) of 25 May 2019 prescribing it to do so ‘immediately’ (‘Order’). On 24-25 July Ukraine detained the Russian tanker Nika Spirit (previous name – Neyma), which took part in the blocking of the Ukrainian vessels back in November 2018.

The dispute between the states arose from the Russia’s seizure and detention of the warships Berdyansk and Nikopol, the naval auxiliary vessel Yani Kapu, and the crew and other servicemen on those vessels. At the time of their seizure on 24-25 November 2018, the three Ukrainian naval vessels were in the Black Sea traveling away from the coast of the Crimean Peninsula and toward their home port of Odesa.

As Russia refused to release them voluntarily, Ukraine applied to the ITLOS for provisional measures within arbitration proceedings initiated under Annex VII to the United Nations Convention on the Law of the Sea, 1982 (‘Convention’ or ‘UNCLOS’). The dispute between the parties concerned ‘the immunity of three Ukrainian naval vessels and the twenty-four servicemen on board’.

The core issue in this case was jurisdiction of the ITLOS over the dispute in view of the declarations under Article 298 of the UNCLOS made by both Ukraine and Russia upon ratification of the Convention. Russia maintained ‘that the dispute submitted to the Annex VII arbitral tribunal concerns military activities and that the declarations of the Parties therefore exclude the dispute from the jurisdiction of the Annex VII arbitral tribunal.’ Ukraine asserted that ‘the dispute does not concern military activities, but rather law enforcement activities, and that the declarations therefore do not exclude the present ITLOS dispute from the jurisdiction of the Annex VII arbitral tribunal’.

The Tribunal found that the circumstances of the incident on 25 November 2018 as well as subsequent proceedings and criminal charges against the servicemen for alleged violation of a Russian border control statute ‘suggest that the arrest and detention of the Ukrainian naval vessels by the Russian Federation took place in the context of a law enforcement operation’. The Tribunal accordingly held that prima facie article 298, paragraph 1(b), of the Convention does not apply in the present case and thus it had jurisdiction over the dispute.

By 19 votes to 1, the tribunal prescribed provisional measures and ordered Russia to immediately release the Ukrainian three naval vessels, and return them to the custody of Ukraine; as well as to immediately release the 24 detained Ukrainian servicemen and allow them to return to Ukraine. In addition, it ordered both parties to refrain from taking any action which might aggravate or extend the dispute.

On 25 June 2019 – i.e. the last day when Russia should have complied with the Order, it sent a diplomatic note to Ukraine inviting it ‘to provide written guaranties in accordance with criminal procedural law of the Russian Federation’ of further prosecution of 24 Ukrainian servicemen, after their release, and of preservation of ‘evidence’ – i.e. three naval vessels, after their transfer to Ukraine, - until the court judgment is rendered. In addition, Russia reconfirmed its position regarding ‘unlawful character of actions committed by the Ukrainian vessels in the region of the Kerch Strait on 24-25 November 2018’ and inapplicability of the dispute resolution provisions envisaged by the Convention to this particular situation. Ukraine replied that Russia was in serious breach of the Order and, thus, of the Convention. It requested to cure this beach immediately by way of full and unconditional compliance with the Order.

Despite the Order and Ukraine’s further diplomatic notes, the Russian Federation continues to detain Ukraine’s naval vessels and to prosecute its servicemen who remain in Russian prisons. The conditions of their release announced by Russia are not based either on the Order, or the Convention or any other applicable international treaty. To the contrary, Russia’s ‘invitation’ to further prosecute Ukrainian citizens in Ukraine under the Russian criminal procedural law clearly contradicts the wording of the Order on immediate release of the servicemen. This proposal is even more cynical given that Ukraine always insisted that Russia had no basis to detain the vessels and their servicemen and that their seizer was absolutely illegal. Put in other words, Russia invited Ukraine to admit, that the servicemen could have committed a crime, to recognize lawfulness of the Russian criminal proceedings against them and to apply the Russian criminal procedure code, thus indirectly recognizing the occupation of Crimea – as further explained Ukraine’s Foreign Minister Pavlo Klimkin. Needless to say, such proposal was simply unacceptable for Ukraine and aggravated the dispute between two states.

Following the recent presidential and parliamentary elections in Ukraine, Russia has tried to ‘test’ the new Ukrainian authorities in the context of this situtation.

On 24 July the Russian tanker Nika Spirit entered the shipyard at the Ukrainian port Izmail in Odesa region allegedly for repair works. Before coming to Ukraine the ship has changed her owner, her entire crew and her previous name Neyma, most probably to conceal the fact that she took part in the detention of the tree Ukrainian naval vessels, when blocked them in the Kerch Strait in compliance with the orders of the Russian authorities.

On 24-25 July the Ukrainian Security Service, the Military Prosecutor’s Office and State Border Guard Service have completed special operation, sanctioned by the Ukrainian court. The latter included detention and search of the tanker, taking of evidence related to the November 2018 events (respective records of the log-book and radio communications as well as interrogation of the crew members of the tanker).

The Russian authorities have reacted immediately: accusing Ukraine in ‘piracy’, ‘breach of international law’, ‘crime’ and demanding immediate return of the crew and the tanker. Ironically, the Russian senator Vladimir Djabarov has even stated that this case should be resolved by the ITLOS.

The Ukrainian authorities have promptly interrogated and released all the crew members as none of them took part in the November 2018 events. The tanker itself remains in Ukraine as ‘evidence’ and waits if the Ukrainian court grants her arrest. Russia insists on her return.

For obvious reasons, the failure to comply with the ITLOS Order of 25 May 2019 makes Russian legal position in this and similar situations quite complicated. It was not for the first time when Russia ignored international law, but this time it dared to breach the order of the ITLOS and thus seriously questioned any opportunity to resolve the disputes involving Russia in a civilized manner using the international law instruments.

Now Russia has suddenly faced the reverse of the medal. Nika Spirit (Neyma) is not the first and not the only problem for Russia in this context. On 17 July 2019 North Korea detained the Russian fishing-boat Xiang Hai Lin-8 and her 17 crew members, for violating the rules of entry and stay in North Korea. The boat was fishing for crab and travelled from South Korea to the Sea of Japan when it was detained some 55 nautical miles (100 kilometres) from the North Korean border. Russia's fisheries agency Rosrybolovstvo alleged that North Korea's actions had been illegal and the fishing boat had not entered its waters. Cynically, in its allegations Russia tried to rely on the rules of the international law of the sea, which it itself seems to ignore.

Russia has not managed to solve the incident using the legal means and preferred to use the threats instead. The key one was to freeze any talks on fisheries cooperation with Pyongyang--which cover fishing quotas for North Korean fisherman in Russia's far east--until the matter was satisfactorily resolved. This time this tactics was successful: on 27-28 July 2019 the North Korea released the boat and the crew members. However, the trend in general is not very promising for Russia. 

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Author: Olena Perepelynska is a Partner and Head of CIS Arbitration Practice at INTEGRITES (Kyiv). She is also a President of the Ukrainian Arbitration Association, President of the Polish-Ukrainian Chapter of the Spanish Arbitration Club and Fellow of the Chartered Institute of Arbitrators. In 2018, she was appointed as Ukraine’s alternate Member of the ICC International Court of Arbitration.