On 25 November 2018, three Ukrainian naval vessels (the Berdyansk, the Nikopol and the Yani Kapu) and their 24 naval personnel were arrested and detained by authorities of the Russian Federation. The incident took place in the Black Sea near the Kerch Strait. The Russian Federation argues that they committed a crime of aggravated illegal crossing of the State border of the Russian Federation.

Ukraine requests an arbitral tribunal to be constituted under Annex VII to the United Nations Convention on the Law of the Sea 1982 (UNCLOS) to adjudge and declare that, in seizing and detaining the Ukrainian naval vessels, Russia breached its obligations to accord foreign naval vessels complete immunity under arts 32, 58, 95 and 96 of UNCLOS and in detaining the 24 crewmembers and initiating criminal charges against them, Russia further breached its obligations under arts 32, 58, 95 and 96 of UNCLOS.

Ukraine requests the Tribunal to indicate provisional measures requiring the Russian Federation to promptly release the Ukrainian naval vessels and return them to the custody of Ukraine; suspend criminal proceedings against the 24 crewmembers, refrain from initiating new proceedings, release them and allow them to return to the Ukraine.

Held: (1) The Tribunal prescribes, pending a decision by the Annex VII arbitral tribunal, the following provisional measures under art 290.5 of UNCLOS:

(a) By 19 votes to 1, the Russian Federation shall immediately release the Ukrainian naval vessels and return them to the custody of Ukraine;
(b) By 19 votes to 1, the Russian Federation shall immediately release the 24 detained Ukrainian crewmembers and allow them to return to Ukraine;
(c) By 19 votes to 1, Ukraine and the Russian Federation shall refrain from taking any action which might aggravate or extend the dispute submitted to the Annex VII arbitral tribunal.

(2) By 19 votes to 1, decides that Ukraine and the Russian Federation shall each submit to the Tribunal an initial report not later than 25 June 2019, and authorises the President to request further reports and information as he may consider appropriate after that report.

The Tribunal noted that Ukraine should not be put at a disadvantage because of the non-appearance of the Russian Federation in the proceedings and that the Tribunal 'must therefore identify and assess the respective rights of the Parties involved on the best available evidence' (The 'Arctic Sunrise' Case (Kingdom of the Netherlands v Russian Federation) - see CMI31).

Ukraine and the Russian Federation are States Parties to UNCLOS. Pursuant to art 287.1, both States have chosen an arbitral tribunal constituted in accordance with Annex VII to UNCLOS as the 'principal' or 'basic' means for the settlement of disputes concerning the interpretation or application of UNCLOS.

Ukraine invokes arts 286 and 288 of UNCLOS as the basis on which the jurisdiction of the Annex VII arbitral tribunal could be founded. The first question for the Tribunal is whether the dispute submitted to the Annex VII arbitral tribunal is 'a dispute concerning the interpretation or application of this Convention'. Although the Russian Federation has not clearly professed any view on the conformity of its actions with the provisions of UNCLOS invoked by Ukraine, its view on this question may be inferred from its subsequent conduct. The Tribunal accordingly considers that a dispute concerning the interpretation or application of UNCLOS prima facie appears to have existed on the date the arbitral proceedings were instituted.

The Tribunal now turns to the question whether art 298.1.b of UNCLOS is applicable, thus excluding the present case from the jurisdiction of the Annex VII arbitral tribunal. The Russian Federation maintains 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 asserts that the dispute does not concern military activities, but rather law enforcement activities, and that the declarations therefore do not exclude the present dispute from the jurisdiction of the Annex VII arbitral tribunal. Based on the information and evidence available to it, the Tribunal considers that prima facie art 298.1.b does not apply in the present case.

As to the required exchange of views between the parties, the Tribunal is of the view that the requirements of art 283 were satisfied before Ukraine instituted arbitral proceedings.

In the view of the Tribunal, it appears that the Berdyansk and the Nikopol are warships within the meaning of art 29 of UNCLOS and that the Yani Kapu is a ship owned or operated by a State and used only on government non-commercial service, as referred to in art 96 of UNCLOS. The Tribunal considers that the rights claimed by Ukraine on the basis of arts 32, 58, 95 and 96 of UNCLOS are plausible under the circumstances.

The Tribunal recalls its statement in The 'ARA Libertad' Case (Argentina v Ghana) that a warship, as defined by art 29 of UNCLOS, 'is an expression of the sovereignty of the State whose flag it flies'. This reality is reflected in the immunity it enjoys under UNCLOS and general international law. The Tribunal notes that any action affecting the immunity of warships is capable of causing serious harm to the dignity and sovereignty of a State and has the potential to undermine its national security. The actions taken by the Russian Federation could irreparably prejudice the rights claimed by Ukraine to the immunity of its naval vessels and their service personnel if the Annex VII arbitral tribunal adjudges those rights to belong to Ukraine. In addition, the Tribunal finds that the risk of irreparable prejudice is real and ongoing under the circumstances of the present case. Moreover, the continued deprivation of liberty and freedom of Ukraine’s service personnel raises humanitarian concerns. Provisional measures under art 290.5 are therefore indicated.