International Tribunal For The Law Of The Sea Prescribes Provisional Measures Requiring Russia To Release Three Ukrainian Naval Vessels

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.

Background

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...