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Comment of the Ministry of Foreign Affairs of Ukraine on the first procedural hearings by the Arbitral Tribunal under Annex VII to the UN Convention on the Law of the Sea
21 November 2019 22:07


The procedural hearings by the Arbitral Tribunal under Annex VII to the UN Convention on the Law of the Sea in the case concerning the immunity of three Ukrainian naval vessels and their twenty-four servicemen on board took place on 21 November 2019 in the Peace Palace (The Hague, The Netherlands).
The Arbitral Tribunal, comprised of Donald McRae (Canada), The President, Gudmundur Eiriksson (Iceland), Rüdiger Wolfrum (Germany), Christopher Greenwood (The UK), Vladimir Golitsyn (Russia), commenced hearing the positions of the parties with regard to the procedural aspects of the further case consideration. The hearings are confidential.
The Arbitral Tribunal will soon publish its first procedural Order.
The key elements of the introductory remarks of the Agent of Ukraine, Deputy Minister for Foreign Affairs for European Integration, Olena Zerkal:
- This is an important case, but not a complicated one.  It concerns the Russian Federation’s unlawful seizure and detention of the three Ukrainian warships the Berdyansk and Nikopol, the Ukrainian naval vessel the Yani Kapu, and the twenty-four servicemen on board those vessels.
- On 25 November 2018 Russia’s coast guard seized Ukraine’s naval vessels while the vessels were in the Black Sea going peacefully to the Ukrainian port of Odessa.
- As a result of the seizure and detention, Russia has violated the basic principle, enshrined in the Convention and customary international law, that warships and other naval vessels enjoy absolute immunity. Such actions were condemned by the whole world, including by UN General Assembly, European Parliament, Parliamentary Assembly of Council of Europe and by different states.
- After months of fruitless joint efforts to push Russia to release the vessels and its servicemen,  on 1 April 2019 Ukraine initiated arbitral proceedings under the Law of the Sea Convention.
- On 25 May 2019, the International Tribunal for the Law of the Sea ordered Russia to “immediately release the Ukrainian naval vessels,” and to “immediately release the 24 detained Ukrainian servicemen”.
- Russia did not comply with the Tribunal’s order.  Instead, Russia held the servicemen for a further four months, before finally releasing them in September.  Even today, Russia has not complied with the ITLOS Order because it imposed conditions on the release of the servicemen.  Similarly, even though three days ago — almost a year, to the day, since Ukraine’s naval vessels were seized on 25 November 2018 — Russia released the Berdyansk, the Nikopol, and the Yani Kapu  Russia still has not complied with the Order.  That is because before releasing the vessels, in violation of the ITLOS Order, Russia seized weapons, communications equipment, documents and etc from the vessels, all of which remain in Russia.
- Further, Russia continues to violate UNCLOS today.  Russia continues to deny the immunity of the servicemen and continues to prosecute them based on actions taken while they were on board the Ukrainian naval vessels.  And it continues to refuse the release to Ukraine of the sensitive communications equipment and other materials seized from the vessels. To put an end to this continuing violation of UNCLOS, Ukraine is entitled to a final, binding determination that Russia has breached articles 32, 58, 95, and 96 of the Convention.

Background:
On 1 April 2019 Ukraine notified Russia of commencing compulsory arbitration under the UNCLOS.
On 16 April 2019 Ukraine requested the International Tribunal on the Law of the Sea (ITLOS) to order provisional measures against the Russian Federation with a view to an immediate release of three Ukrainian naval vessels and twenty-four servicemen on board, that were unlawfully seized and detained by the Russian Federation on 25 November 2018 in the Black Sea.
The case concerns the violation of the absolute immunity of warships and their crew members, stipulated by the UNCLOS, which prevents foreign states from arresting, detaining and persecuting them. The seizure of Ukrainian naval vessels by Russia in the Black Sea, detention and criminal persecution of our sailors is a blatant violation of the UNCLOS.
On 10 May 2019, ITLOS held the hearings on provisional measures requested by Ukraine.
On 25 May 2019, ITLOS ordered the Russian Federation to immediately release the Ukrainian vessels Berdyansk, Nikopol and Yani Kapu, return them to the custody of Ukraine, as well as immediately release the Ukrainian servicemen and allow them to return to Ukraine.

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