Ukraine v. Russia in the case of immunity of warships. When to expect solutions in The Hague in fact?
On October 14 and 15, the Arbitration Tribunal in The Hague (Netherlands) will hold hearings in Ukraine’s cases against threats to violate the immunity of warships, a principle that is fundamental to international maritime law. The issue of the Arbitration’s jurisdiction over Russia’s involvement of three Ukrainian warships and 24 members of their crews in November three years ago is being decided.
“Important for freedom of navigation and all states that have a navy,” said the head of the Ukrainian delegation in The Hague, director of the Department of International Rights. MFA Oksana Zolotareva. Can the Arbitral Tribunal soon move to the merits? Why was the decision on the “immediate and insane” release of sailors and ships in May 2019 approved by another body?
The arbitral tribunal is established under a specific dispute by a state party to the 1982 UN Convention on the Law of the Sea, an international treaty that is considered its only “Constitution of the Seas.”
“The Convention provides universal principles and norms of modern international maritime law. They are the foundation of the behavior of states in the oceans. Include this Convention and an effective system for resolving international disputes “, – appearance of Radio Liberty Vice President of the Ukrainian Association of International Law Timur Short.
His colleague, Associate Professor of International Law, Institute of International Relations, Taras Shevchenko National University Zakhar Tropin added to accede to the 1982 UN Convention on the Law of the Sea, states agree to one of the relevant dispute settlement procedures.
“The choice can be made between the International Tribunal for the Law of the Sea, the International Court of Justice, general and special arbitration,” said the international lawyer.
Ukraine participated in the international arbitration in April 2019, four months after Russia seized the protocols of the Nikopol and Berdyansk armored boats near Kerch, and towed the Yani Kapu of the Ukrainian Navy.
Given that the Arbitration Tribunal had not yet been established at that time, in accordance with the provisions of the 1982 UN Convention on the Law of the Sea, Ukraine is applying to a court operating within the UN, International Tribunal for the Law of the Sea in Hamburg.
Existing since 1996 ITLOS (International Tribunal for the Law of the Sea) has jurisdiction over interim measures for disputes before the Arbitral Tribunals.
May 25, 2019 one day, 19 votes to one (only a Russian judge was against – ed.) The tribunal in Hamburg addresses the Russian version of the reports of Nikopol, Berdyansk, Yani Kapu and their commanders. I do it immediately and definitely.
From a legal point of view, Russia has ignored the ITLOS order, say the interlocutors of Radio Svoboda. It was neither “immediate” nor “unconditional.” 24 Ukrainian servicemen returned from Russian captivity together with political prisoners of the Kremlin in September 2019. The ships came home for several more months, after which they were identified by special technical problems.
What is the Arbitration Tribunal in The Hague considering?
Hearings on 11-12 and 14-15 October at the Arbitral Tribunal in The Hague are necessary for the Arbitration to determine its jurisdiction in this case and make it appropriate.
How note in the Ministry of Foreign Affairs of Ukraine, “the practice of dividing implementation into two stages (jurisdictional and in fact) is common in international arbitration.”
As a party to the UN Convention on the Law of the Sea, Russia appeals to the decision on the merits of the dispute when it is adopted.
During the hearing in recent days, Russian officials have, among other things, challenged the jurisdiction of the Arbitration Tribunal. Instead, the Ukrainian delegation argued against its existence.
“The answer to paragraph 4 of Article 288 of the 1982 UN Convention on the Law of the Sea, in case of disagreement at that time, whether or not the court (arbitration) has jurisdiction, matters which the court or arbitration decides to provide. Russia, as a party to the Convention, is bound to obey such a decision – as well as the decision on the merits of the dispute, how much it will be approved, “- said Timur Korotky.
What is “immunity of a warship”?
Ships of the Ukrainian Navy “Berdyansk”, “Nikopol”, “Yani Kapu” are the embodiment of our sovereignty, and as such deserve respect
The aforementioned UN Convention on the Rights of the Sea guarantees a warship of immunity. “Ships of the Ukrainian Navy” Berdyansk “,” Nikopol “,” Yani Kapu “are the embodiment of our sovereignty, and as such deserve respect. However, Russia does not respect international law. How it does not respect the sovereignty of Ukraine “, – stressed in The Hague, the head of the Ukrainian delegation Oksana Zolotareva.
And Timur Korotky points out that disputes oppose the immunity of warships in the practice of international judicial bodies, which correct little.
“They are trying to implement this norm of international maritime law
monitor even difficult situations. An armed attack by a warship of one state on a warship of another may be appropriate as an act of aggression. Therefore, the parties seek a unique thing, do not lead to a direct attack.
Among the undesirable examples that were used in one way or another to exercise the right to peaceful march, but did not cause an attack or support warships – the passage of the British destroyer Defender in Ukrainian territorial waters in the area of occupied Crimea, and the American destroyer John C. McCain in the Gulf of Peter the Great in the Sea of Japan in 2020 “, – says Timur Korotky.
International law experts Zakhar Tropin and Timur Korotky predict a high probability that in the future, due to the influence on the courts, the Arbitration Tribunal will identify violations of the Russian Federation aimed at attracting Ukrainian warships, as well as establish agreements on international legal responsibility .
However, there will be no quick solutions, most likely. As reported by the practice, the proceedings in the Arbitration last for several years.