UN Tribunal Orders Russia to Return Captured Ukraine Sailors

Olena Zerkal, Ukraine’s Deputy Minister of Foreign Affairs, argues before the International Tribunal for the Law of the Sea on May 10, 2019. (Photo: ITLOS)

THE HAGUE, Netherlands (CN) – A United Nations tribunal has ordered Russia Saturday to return 24 captured sailors and three ships to Ukraine it seized last year.

Ukraine filed a complaint with the International Tribunal for the Law of the Sea (ITLOS) in April to force Russian to return the soldiers as well as the ships captured during the Kerch Strait incident. Reading aloud from the ruling, President of the Tribunal Judge Jin-Hyun Paik said: “the continued deprivation of liberty and freedom of Ukraine’s servicemen raises humanitarian concerns.”

Under a 2003 agreement, Russian and Ukraine are supposed to share access to the Kerch Strait, which connects the Sea of Azov to the Black Sea. Following Russia’s annexation of Crimea in 2014, the peninsula of land which extends into the Black Sea and separates the Sea of Azov, Russian gained control of the strait and restricted Ukrainian access.

In November 2018, three Ukrainian Navy ships were attempting to reach the eastern Ukrainian port of Mariupol via the Kerch Strait. According to the Russian Coast Guard, the two gunboats and the tugboat did not have proper authorization to travel through the strait while Ukraine says that they did. Both countries allege they attempted to reach one another via radio but were unable to make contact.

Russian blockaded the ships with a cargo ship, forcing the Ukrainian ships to turn around. As they retreated, the Russians pursued them, fired upon the ships and then captured them, taking all 24 sailors aboard into custody.

The ITLOS is based in Hamburg, Germany and was created by the United Nations Convention on the Law of the Sea.

“This serves as the comprehensive law of the oceans,” said Alex Oude Elferink, director of the Netherlands Institute for the Law of the Sea at Utrecht University.

Prior to the signing of the Convention in 1982, the so-called cannon shot rule applied to maritime law. Countries had jurisdiction over their coastal water, extending three nautical miles, or the approximate distance a cannonball could be fired, and beyond that were international waters, which were free for everyone to use.

The ITLOS initially scheduled two rounds of oral arguments. On April 30, 2019, however, Russia informed the tribunal that it would not participate, saying in a letter they were “of the view that there is no basis for the International Tribunal for the Law of the Sea to rule on the issue.”

Russia recently also refused to present at oral arguments in a case brought against it by the Netherlands, known as the Arctic Sunrise case. As with the Ukrainian case, Russia did submit a detailed statement of their views. “Simply because a state opts out,” Oude Elferink said, “doesn’t mean the tribunal rules in favor of the appearing state. The case is still decided on the merits.”

Ukraine requested that the tribunal continue and hearings were then scheduled only for May 10.

During the hearing, Ukraine’s agent, Olena Zerkal, the Deputy Minister of Foreign Affairs, expressed surprise at Russia’s unwillingness to participate in the hearing, as they had participated in a pre-trial phone call with the tribunal on April 23, 2019.

Representing Ukraine, Alfred Soons, a law professor at Utrecht University in the Netherlands, argued that the vessels were taken in either Ukrainian territorial waters or international waters and thus the seizure violated international law.

He went on to argue that, even if Russia was correct that the ships were in Russian waters, under the Law of the Sea, vessels used by the state are given sovereign immunity and thus the detainment was still illegal.

The tribunal held that the dispute centered around the “differing interpretation of the regime of passage through the Kerch Strait” but held that this dispute was not “military in nature,” as Russia had argued in its statement. Under Article 297 of the Convention, disputes concerning military activities are excluded from the jurisdiction the tribunal.

Once the tribunal had concluded it had jurisdiction over the case, it went on to find that it was plausible all three ships counted as vessels operated by the state and were thus entitled to sovereign immunity.

Kateryna Zelenko, the spokesperson for the Ministry of Foreign Affairs of Ukraine, described it as a “great day for Ukraine” and said, “We expect Russia to comply promptly with the tribunal’s order and immediately release our vessels and 24 servicemen on board.”

Though the ITLOS has no enforcement mechanism, most states comply with the tribunal’s rulings, according to Oude Elferink. “There was no doubt in the Arctic Sunrise case that ruling played a role how the dispute was resolved.” An agreement between the Netherlands and Russia was announced just this week, with Russia agreeing to pay Greenpeace, who was sailing under a Dutch flag, 2.7 million euros.

The ruling noted that this does not prejudice the tribunal from deciding the merits of the case and ordered both countries to provide an update by June 25.

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