INTERNATIONAL TRIBUNAL FOR THE LAW OF THE SEA

YEAR 2019

25 May 2019

List of Cases:
No. 26

CASE CONCERNING THE DETENTION

OF THREE UKRAINIAN NAVAL VESSELS

(UKRAINE v. RUSSIAN FEDERATION)

Request for the prescription of provisional measures

ORDER

Present: President PAIK; Vice-President ATTARD; Judges JESUS, COT,

LUCKY, PAWLAK, YANAI, KATEKA, HOFFMANN, GAO,
BOUGUETAIA, KELLY, KULYK, GÓMEZ-ROBLEDO, HEIDAR,
CABELLO, CHADHA, KITTICHAISAREE, KOLODKIN, LIJNZAAD;
Registrar GAUTIER.

THE TRIBUNAL,

composed as above,

after deliberation,

Having regard to article 290 of the United Nations Convention on the Law of
the Sea (hereinafter “the Convention”) and articles 21, 25 and 28 of the Statute of
the Tribunal (hereinafter “the Statute”),
 2
 

Having regard to articles 89 and 90 of the Rules of the Tribunal (hereinafter

“the Rules”),

Having regard to the “Notification under Article 287 and Annex VII, Article 1 of
the United Nations Convention on the Law of the Sea and Statement of the Claim
and Grounds on which it is Based” (hereinafter “the Statement of Claim”) dated
31 March 2019, addressed by Ukraine to the Russian Federation, instituting arbitral
proceedings under Annex VII to the Convention in respect of a “dispute concerning
the immunity of three Ukrainian naval vessels and the twenty-four servicemen on
board”,

Having regard to the request for provisional measures contained in the

Statement of Claim submitted by Ukraine to the Russian Federation pending the
constitution of an arbitral tribunal under Annex VII to the Convention,

Makes the following Order:

1. On 16 April 2019, Ukraine filed with the Tribunal a Request for the
prescription of provisional measures (hereinafter “the Request”) under article 290,
paragraph 5, of the Convention in the dispute between Ukraine and the Russian
Federation concerning the immunity of three Ukrainian naval vessels and the twenty-
four servicemen on board. The case was entered in the List of Cases as Case No. 26
and named Case concerning the detention of three Ukrainian naval vessels.

2. In a letter dated 16 April 2019 addressed to the Registrar, the Minister of

Foreign Affairs of Ukraine notified the Tribunal of the appointment of Ms Olena
Zerkal, Deputy Minister of Foreign Affairs, as Agent for the Government of Ukraine.

3. On the same date, the Deputy Registrar transmitted copies of the Request
electronically to the Minister of Foreign Affairs of the Russian Federation together
with a letter to the Ambassador of the Russian Federation to the Federal Republic of
Germany. By letter dated 16 April 2019, the Deputy Registrar also transmitted a
 3
 

certified copy of the Request to the Minister of Foreign Affairs of the Russian
Federation.

4. In accordance with article 24, paragraph 3, of the Statute, the Registrar

notified the States Parties to the Convention of the Request by a note verbale dated
17 April 2019.

5. Pursuant to the Agreement on Cooperation and Relationship between the

United Nations and the International Tribunal for the Law of the Sea of 18 December
1997, the Registrar notified the Secretary-General of the United Nations of the
Request by a letter dated 17 April 2019.

6. On 23 April 2019, pursuant to articles 45 and 73 of the Rules, the President of

the Tribunal held consultations by telephone with the Agent of Ukraine and
Mr Evgeny Zagaynov, Director, Legal Department of the Ministry of Foreign Affairs of
the Russian Federation, to ascertain the views of Ukraine and the Russian
Federation with regard to questions of procedure.

7. By Order dated 23 April 2019, the President, pursuant to article 27 of the

Statute and articles 45 and 90, paragraph 2, of the Rules, fixed 10 and 11 May 2019
as the dates for the hearing. The Order was communicated to the Parties on the
same date.

8. In a note verbale dated 30 April 2019 and received in the Registry on the
same date, the Embassy of the Russian Federation to the Federal Republic of
Germany stated:

The Russian Federation is of the view that the arbitral tribunal to be

constituted under Annex VII of UNCLOS will not have jurisdiction, including
prima facie, to rule on Ukraine’s claim, in light of the reservations made by
both the Russian Federation and Ukraine under Article 298 of UNCLOS
stating, inter alia, that they do not accept the compulsory procedures
provided for in section 2 of Part XV thereof entailing binding decisions for
the consideration of disputes concerning military activities. Furthermore,
the Russian Federation expressly stated that the aforementioned
procedures are not accepted with respect to disputes concerning military
activities by government vessels and aircraft. For this obvious reason the
Russian Federation is of the view that there is no basis for the International
 4
 

Tribunal for the Law of the Sea to rule on the issue of the provisional
measures requested by Ukraine.
…
[T]he Russian Federation has the honour to inform the International
Tribunal for the Law of the Sea of its decision not to participate in the
hearing on provisional measures in the case initiated by Ukraine, without
prejudice to the question of its participation in the subsequent arbitration if,
despite the obvious lack of jurisdiction of the Annex VII tribunal whose
constitution Ukraine is requesting, the matter proceeds further.

However, in order to assist the International Tribunal for the Law of the Sea
and in conformity with Article 90 (3) of the Rules, the Russian Federation
intends to submit in due course more precise written observations
regarding its position on the circumstances of the case.

9. By letter dated 30 April 2019, while transmitting a copy of that note verbale to
the Agent of Ukraine, the Registrar drew her attention to article 28 of the Statute and
informed her that any comments that Ukraine might wish to make on the matter
should be received by 2 May 2019.

10. In a letter dated 2 May 2019, the Agent of Ukraine stated that Ukraine
“requests, consistent with Article 28 of the Tribunal’s Statute, that the Tribunal
continue the proceedings and render a decision on provisional measures.”

11. In light of these developments, by Order dated 2 May 2019, the President
fixed 10 May 2019 as the revised date for the hearing. The Order was communicated
to the Parties on the same date.

12. By a note verbale dated 7 May 2019 and received in the Registry on the same
date, the Embassy of the Russian Federation to the Federal Republic of Germany
transmitted a “Memorandum of the Russian Federation regarding its position on the
circumstances of the case No. 26” (hereinafter “the Memorandum”). In the note
verbale, the Embassy of the Russian Federation stated that it conveyed the
Memorandum “in accordance with Article 90 (3) of the Rules”. In an electronic
communication accompanying the note verbale, the Embassy of the Russian
Federation indicated that “[t]ranslations of legal acts and reference materials referred
to in the Memorandum will be provided further.” The Registrar transmitted an
electronic copy and a certified copy of the Memorandum to the Agent of Ukraine on
the same date.
 5
 

13. On 8 May 2019, the Embassy of the Russian Federation to the Federal
Republic of Germany submitted the above documents, copies of which were
transmitted by the Registrar to the Agent of Ukraine on 9 May 2019.

14. On 8 May 2019, Ukraine submitted additional documents. The Registrar

transmitted a copy of these documents to the Embassy of the Russian Federation to
the Federal Republic of Germany on 9 May 2019.

15. Pursuant to paragraph 14 of the Guidelines concerning the Preparation and

Presentation of Cases before the Tribunal, Ukraine submitted the required
information to the Tribunal on 9 May 2019.

16. In accordance with article 68 of the Rules, the Tribunal held initial
deliberations on 9 May 2019 concerning the written pleadings and the conduct of the
case.

17. On the same day, in accordance with article 45 of the Rules, the President
held consultations with the Agent of Ukraine with regard to questions of procedure.

18. Pursuant to article 67, paragraph 2, of the Rules, copies of the Memorandum
and documents annexed thereto were made accessible to the public on the date of
the opening of the oral proceedings.

19. Oral statements were presented at a public sitting held on 10 May 2019 by the
following:

On behalf of Ukraine: Ms Olena Zerkal, Deputy Foreign Minister of Ukraine,

as Agent,

Mr Jonathan Gimblett, Member of the Bar of Virginia and

the District of Columbia, Covington & Burling LLP,

Mr Alfred H.A. Soons, Emeritus Professor of Public

International Law, Utrecht University, Associate Member
of the Institute of International Law,
 6
 

Ms Marney L. Cheek, Member of the Bar of the District of

Columbia, Covington & Burling LLP,

Mr Jean-Marc Thouvenin, Professor at the University

Paris Nanterre, Secretary General of the Hague Academy
of International Law, Member of the Paris Bar, Sygna
Partners,

as Counsel and Advocates.

20. In the course of the oral proceedings, a number of exhibits, including

photographs and extracts from documents, were displayed by Ukraine on video
monitors.

21. The Russian Federation was not represented at the public sitting.

**

22. In paragraph 31 of the Statement of Claim, Ukraine requests the arbitral

tribunal to be constituted under Annex VII to the Convention (hereinafter “the
Annex VII arbitral tribunal”) to adjudge and declare that:

a. In seizing and detaining the Ukrainian naval vessels the “Berdyansk,”

the “Yani Kapu,” and the “Nikopol,” Russia breached its obligations to
accord foreign naval vessels complete immunity under Articles 32, 58,
95 and 96 of the Convention;
b. In detaining the 24 crewmen of “Berdyansk,” the “Yani Kapu,” and the
“Nikopol,” and initiating criminal charges against the crewmen, Russia
further breached its obligations under Articles 32, 58, 95 and 96 of the
Convention.
c. The aforementioned violations constitute internationally wrongful acts
for which the Russian Federation is responsible.
d. As a consequence, Russia is required to: (i) release the “Berdyansk,”
the “Yani Kapu,” and the “Nikopol”; (ii) release the twenty-four
servicemen captured with the “Berdyansk,” the “Yani Kapu,” and the
“Nikopol”; (iii) provide Ukraine with appropriate assurances and
guarantees of non-repetition; and (iv) provide Ukraine with full
reparation.

23. In paragraph 46 of the Request, Ukraine requests the Tribunal to indicate

provisional measures requiring the Russian Federation to promptly:
 7
 

a. Release the Ukrainian naval vessels the Berdyansk, the Nikopol, and
the Yani Kapu, and return them to the custody of Ukraine;
b. Suspend criminal proceedings against the twenty-four detained
Ukrainian servicemen and refrain from initiating new proceedings; and
c. Release the twenty-four detained Ukrainian servicemen and allow them
to return to Ukraine.

24. At the public sitting held on 10 May 2019, the Agent of Ukraine made the
following final submissions, a signed copy of which was communicated to the
Tribunal:

1. Ukraine requests that the Tribunal indicate provisional measures

requiring the Russian Federation to promptly:
a. Release the Ukrainian naval vessels the Berdyansk, the Nikopol,
and the Yani Kapu, and return them to the custody of Ukraine;
b. Suspend criminal proceedings against the twenty-four detained
Ukrainian servicemen and refrain from initiating new proceedings;
and
c. Release the twenty-four detained Ukrainian servicemen and allow
them to return to Ukraine.

2. The servicemen to be covered by measures (b) and (c), above, are:

a. Captain (Third Rank) Volodymyr Volodymyrovych Lisovyy;
b. Captain (Second Rank) Denys Volodymyrovych Hrytsenko;
c. Captain Lieutenant Serhiy Mykolayovych Popov;
d. Senior Lieutenant Andriy Leonidovych Drach;
e. Senior Lieutenant Bohdan Pavlovych Nebylytsia;
f. Senior Lieutenant Vasyl Viktorovych Soroka;
g. Lieutenant Roman Mykolayovych Mokryak;
h. Master Chief Petty Officer Yuriy Oleksandrovych Budzyloy;
i. Master Chief Petty Officer Andriy Anatoliyovych Shevchenko;
j. Petty Officer Oleh Mykhailovych Melnychyk;
k. Petty Officer (1st Stage) Vladyslav Anatoliyovych Kostyshyn;
l. Petty Officer (2nd Stage) Serhiy Romanovych Chyliba;
m. Senior Seaman Andriy Anatoliyovych Artemenko;
n. Senior Seaman Viktor Anatoliyovych Bezpalchenko;
o. Senior Seaman Yuriy Yuriyouvych Bezyazychnyy;
p. Senior Seaman Andriy Andriyovych Oprysko;
q. Senior Seaman Volodynyr Anatoliyovych Tereschenko;
r. Senior Seaman Mykhailo Borysovych Vlasyuk;
s. Senior Seaman Volodymyr Kostyantynovych Varymez;
t. Senior Seaman Vyacheslav Anatoliyovych Zinchenko;
u. Seaman Andriy Dmytrovych Eider;
v. Seaman Bohdan Olehovych Holovash;
w. Seaman Yevheniy Vitaliyovych Semydotskyy; and
x. Seaman Serhiy Andriyovych Tsybizov.

**
 8
 

25. As noted in paragraph 8, the Embassy of the Russian Federation to the

Federal Republic of Germany, by note verbale dated 30 April 2019, informed the
Tribunal of the Russian Federation’s “decision not to participate in the hearing on
provisional measures in the case initiated by Ukraine”.

26. The Tribunal notes that article 28 of the Statute reads:

When one of the parties does not appear before the Tribunal or fails to
defend its case, the other party may request the Tribunal to continue the
proceedings and make its decision. Absence of a party or failure of a party
to defend its case shall not constitute a bar to the proceedings. Before
making its decision, the Tribunal must satisfy itself not only that it has
jurisdiction over the dispute, but also that the claim is well founded in fact
and law.

27. The Tribunal recalls that

the absence of a party or failure of a party to defend its case does not
constitute a bar to the proceedings and does not preclude the Tribunal from
prescribing provisional measures, provided that the parties have been
given an opportunity of presenting their observations on the subject.
(“Arctic Sunrise” (Kingdom of the Netherlands v. Russian Federation),
Provisional Measures, Order of 22 November 2013, ITLOS Reports 2013,
p. 230, at p. 242, para. 48)

28. The Tribunal observes that all communications relevant to the case were
transmitted by the Tribunal to the Russian Federation to ensure full implementation
of the principle of equality of the parties in a situation where the absence of a party
may hinder the regular conduct of the proceedings and affect the good
administration of justice. The Tribunal further observes that the Russian Federation,
before the closure of the oral proceedings, submitted the Memorandum to the
Tribunal, which it took into account pursuant to article 90, paragraph 3, of the Rules.
The Tribunal is therefore of the view that the Russian Federation was given ample
opportunity to present its observations.

29. The Tribunal notes 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” (“Arctic Sunrise” (Kingdom of the
 9
 

Netherlands v. Russian Federation), Provisional Measures, Order of 22 November

2013, ITLOS Reports 2013, p. 230, at p. 243, paras 56 and 57).

**

30. The factual background against which the Request has been submitted to the
Tribunal can be summarized as follows. On 25 November 2018, three Ukrainian
naval vessels (the Berdyansk, the Nikopol and the Yani Kapu) and their
24 servicemen were arrested and detained by authorities of the Russian Federation.
The incident took place in the Black Sea near the Kerch Strait. The Berdyansk and
the Nikopol are artillery boats of the Ukrainian Navy and the Yani Kapu is a
Ukrainian naval tugboat. Their status as Ukrainian naval warships and an auxiliary
vessel is not disputed. The status of the crew as Ukrainian naval personnel is also
not disputed between the Parties.

31. According to Ukraine, the three naval vessels had departed from the “port of
Odesa”, in the Black Sea, and their mission was to transit, through the Kerch Strait,
to the port of Berdyansk in the Sea of Azov. Ukraine further states that,

[a]s they approached the entrance to the Kerch Strait оn the night of
24/25 November, the vessels received radio communications from
the Russian Coast Guard – а division of the Border Service of the
Federal Security Service (“FSB”) – asserting that the Strait was
closed.

When the Ukrainian vessels proceeded to the strait on 25 November 2018, they
were blocked by Coast Guard vessels of the Russian Federation. The Ukrainian
vessels later turned around and navigated away from the Kerch Strait but were
pursued by the Coast Guard vessels. During the pursuit, one Coast Guard vessel
fired at the Berdyansk, wounding three members of its crew and causing damage to
the vessel. In the following course of events, all three Ukrainian vessels and the
servicemen on board were seized and detained by Coast Guard vessels of the
Russian Federation. According to the Press Service of the FSB (hereinafter “the FSB
Press Service”) of 26 November 2018, the three vessels were “delivered to the port
of Kerch” on 26 November 2018.
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32. According to the Memorandum submitted by the Russian Federation:

21. On 26 and 27 November 2018, [the 24 Ukrainian servicemen] on

board the vessels were formally apprehended under Article 91 of the Code
of Criminal Procedure of the Russian Federation as persons suspected of
having committed a crime of aggravated illegal crossing of the State border
of the Russian Federation (section 3 of Article 322 of the Criminal Code of
the Russian Federation).

22. By separate decisions of 27 and 28 November 2018 delivered by

the Kerch City Court and the Kievskiy District Court of Simferopol, the
Military Servicemen were placed in detention. The investigation is still
pending and on 17 April 2019, the Court [Lefortovo District Court of
Moscow] extended the detention of the Military Servicemen until 24 July
2019.

I. Prima facie jurisdiction

33. Article 290, paragraph 5, of the Convention provides:

Pending the constitution of an arbitral tribunal to which a dispute is being

submitted under this section, 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. …

34. Ukraine and the Russian Federation are States Parties to the Convention,
having ratified the Convention on 26 July 1999 and on 12 March 1997, respectively.
Pursuant to article 287, paragraph 1, of the Convention, both States have chosen an
arbitral tribunal constituted in accordance with Annex VII to the Convention as the
“principal” or “basic” means for the settlement of disputes concerning the
interpretation or application of the Convention.

35. The Tribunal notes that Ukraine, by the Statement of Claim dated 31 March
2019 which included a request for provisional measures, accordingly instituted
proceedings under Annex VII to the Convention against the Russian Federation in a
dispute concerning “the immunity of three Ukrainian naval vessels and the twenty-
four servicemen on board”. The Tribunal further notes that, on 16 April 2019, after
 11
 

the expiry of the time-limit of two weeks provided for in article 290, paragraph 5, of
the Convention, and pending the constitution of the Annex VII arbitral tribunal,
Ukraine submitted the Request to the Tribunal.

36. The Tribunal may prescribe provisional measures under article 290,
paragraph 5, of the Convention only if the provisions invoked by the Applicant prima
facie appear to afford a basis on which the jurisdiction of the Annex VII arbitral
tribunal could be founded, but need not definitively satisfy itself that the Annex VII
arbitral tribunal has jurisdiction over the dispute submitted to it (see “ARA Libertad”
(Argentina v. Ghana), Provisional Measures, Order of 15 December 2012, ITLOS
Reports 2012, p. 332, at p. 343, para. 60).

Existence of a dispute concerning the interpretation or application of the Convention

37. Ukraine invokes articles 286 and 288 of the Convention as the basis on which
the jurisdiction of the Annex VII arbitral tribunal could be founded. The first question
the Tribunal has to address is whether the dispute submitted to the Annex VII arbitral
tribunal is “a dispute concerning the interpretation or application of this Convention”
referred to in those articles.

38. In its note verbale dated 15 March 2019 addressed to the Russian Federation,
Ukraine states that

[t]he Russian Federation’s seizure and continued detention of the three

Ukrainian naval vessels and their 24 crewmembers, and the
commencement of criminal proceedings against said crewmembers,
constitute a flagrant breach by the Russian Federation of its obligations
under the Convention, as well as provisions and principles of international
law, particularly Articles 32, 58, and 95 of the Convention.

39. In its Statement of Claim, Ukraine requests the Annex VII arbitral tribunal to
adjudge and declare, inter alia:

a. In seizing and detaining the Ukrainian naval vessels the “Berdyansk,”

the “Yani Kapu,” and the “Nikopol,” Russia breached its obligations to
accord foreign naval vessels complete immunity under Articles 32, 58,
95 and 96 of the Convention;
b. In detaining the 24 crewmen of “Berdyansk,” the “Yani Kapu,” and the
“Nikopol,” and initiating criminal charges against the crewmen, Russia
 12
 

further breached its obligations under Articles 32, 58, 95 and 96 of the
Convention.

40. Ukraine argues that the Parties are plainly engaged in a dispute over the
interpretation and application of the above articles. Ukraine maintains that “Russia’s
seizure and continued detention of the naval vessels, as well as its criminal
prosecution of the vessels’ servicemen, violate the principle of warship immunity
under these articles.” Ukraine further asserts that “Russia, however, has maintained
that its actions are lawful under, among other provisions, article 30 of the
Convention.” According to Ukraine, “[i]t is this difference of views that the Annex VII
tribunal would have to resolve, and that it will have the competence to resolve under
articles 286 and 288 of the Convention.”

41. The Russian Federation did not directly respond to Ukraine’s argument on this
question. The Tribunal, however, notes that the FSB Press Service stated that

[t]he border patrol ships Don and Izumrud started following the group of
Ukrainian naval ships and communicated to them an order to stop (in
accordance with Article 30 of the UN Convention on the Law of the
Sea of 1982 and Article 12(2) of Federal Law 155 dated July 31,
1998 …).

The Tribunal further notes that, in the subsequent criminal proceedings in the
Russian Federation, all 24 servicemen were indicted for a crime of aggravated illegal
crossing of the State border of the Russian Federation under Part 3 of Article 322 of
the Criminal Code of the Russian Federation.

**

42. Article 288, paragraph 1, of the Convention provides that “[a] court or tribunal
referred to in article 287 shall have jurisdiction over any dispute concerning the
interpretation or application of this Convention which is submitted to it in accordance
with this Part.” The Tribunal accordingly has to determine whether, on the date of the
institution of arbitral proceedings, a dispute concerning the interpretation or
application of the Convention existed between the Parties.
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43. Although the Russian Federation has not clearly professed any view on the
conformity of its actions with the provisions of the Convention invoked by Ukraine, its
view on this question may be inferred from its subsequent conduct. In this regard,
the Tribunal recalls the statement of the International Court of Justice (hereinafter
the “ICJ”) in Land and Maritime Boundary between Cameroon and Nigeria that

a disagreement on a point of law or fact, a conflict of legal views or

interests, or the positive opposition of the claim of one party by the other
need not necessarily be stated expressis verbis. In the determination of the
existence of a dispute, as in other matters, the position or the attitude of a
party can be established by inference, whatever the professed view of that
party.
(Land and Maritime Boundary between Cameroon and Nigeria, Preliminary
Objections, Judgment, I.C.J. Reports 1998, p. 275, at p. 315, para. 89; see
also M/V “Norstar” (Panama v. Italy), Preliminary Objections, Judgment,
ITLOS Reports 2016, p. 44, at p. 69, para. 100)

44. In the view of the Tribunal, the fact that the Russian authorities arrested and
detained the Ukrainian naval vessels and commenced criminal proceedings against
the Ukrainian servicemen indicates that the Russian Federation holds a different
position from Ukraine on the question of whether the events which occurred on
25 November 2018 gave rise to the alleged breach of its obligations under
articles 32, 58, 95 and 96 of the Convention. The Tribunal also notes that the
Russian Federation denies the “categorisation of the situation as an armed conflict
for the purposes of international humanitarian law”.

45. The Tribunal accordingly considers that a dispute concerning the

interpretation or application of the Convention prima facie appears to have existed
on the date the arbitral proceedings were instituted.

Applicability of article 298, paragraph 1(b), of the Convention

46. The Tribunal now turns to the question whether article 298, paragraph 1(b), of
the Convention is applicable, thus excluding the present case from the jurisdiction of
the Annex VII arbitral tribunal.
 14
 

47. Article 298, paragraph 1(b), of the Convention reads:

1. When signing, ratifying or acceding to this Convention or at any time

thereafter, a State may, without prejudice to the obligations arising under
section 1, declare in writing that it does not accept any one or more of the
procedures provided for in section 2 with respect to one or more of the
following categories of disputes:
…
(b) disputes concerning military activities, including military activities by
government vessels and aircraft engaged in non-commercial service, and
disputes concerning law enforcement activities in regard to the exercise of
sovereign rights or jurisdiction excluded from the jurisdiction of a court or
tribunal under article 297, paragraph 2 or 3;

48. Upon ratification of the Convention on 26 July 1999, Ukraine declared,

in accordance with article 298 of the Convention, that it does not accept,
unless otherwise provided by specific international treaties of Ukraine with
relevant States, the compulsory procedures entailing binding decisions for
the consideration of … disputes concerning military activities. (Emphasis
added by the Tribunal)

49. Upon ratification of the Convention on 12 March 1997, the Russian Federation
declared that,

in accordance with article 298 of the United Nations Convention on the Law of
the Sea, it does not accept the procedures, provided for in section 2 of Part XV
of the Convention, entailing binding decisions with respect to … disputes
concerning military activities, including military activities by government vessels
and aircraft, and disputes concerning law-enforcement activities in regard to
the exercise of sovereign rights or jurisdiction … (Emphasis added by the
Tribunal)

50. The Parties disagree on the applicability of article 298, paragraph 1(b), of the
Convention and their declarations under that provision. 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.

51. The Russian Federation contends that, according to a “checklist for readiness
to sail” found on board the Nikopol, the mission of the three Ukrainian military
 15
 

vessels was a “non-permitted ‘secret’ incursion” by them into Russian territorial

waters. It states that this mission was resisted by military personnel of the Russian
Coast Guard, followed by the arrest of the three Ukrainian military vessels and the
military servicemen. According to the Russian Federation, their detention resulted
directly from the incident of 25 November 2018 and thus cannot be considered
separately from the respective chain of events, involving military personnel and
equipment from both the Russian and the Ukrainian sides. The Russian Federation
maintains that “[i]t is manifestly a dispute concerning military activities.”

52. The Russian Federation states that “[t]he Tribunal in Philippines v. China
described ‘a quintessentially military situation’ as one ‘involving the military forces of
one side and a combination of military and paramilitary forces on the other, arrayed
in opposition to one another’.” In the view of the Russian Federation, this was the
situation on 25 November 2018.

53. The Russian Federation contends that Ukraine has, in statements made
outside the confines of the claim, including before the United Nations Security
Council and in subsequent formal communications with the Russian Federation,
repeatedly characterized the incident as concerning military activities. The Russian
Federation adds that, “[w]hilst it is not in any way accepted that Russia engaged in
an unlawful use of force, including any act of aggression, it is clear that it is common
ground that the incident concerned military activities.”

54. In response to Ukraine’s statement that the Russian Federation has treated
the incident as a criminal law enforcement matter, the Russian Federation maintains
that its “conduct subsequent to the incident of 25 November 2018 is entirely
consistent with the military nature of the incident.”

55. Ukraine states that article 298 of the Convention draws a clear distinction
between military activities and law enforcement activities, and that they are distinct,
mutually exclusive categories.

56. Ukraine argues that the military activities exception is not applicable in this
case for two reasons. First, referring to the South China Sea Arbitration, Ukraine
 16
 

contends that the exception does not apply when the party whose actions are at
issue has characterized them as non-military in nature. According to Ukraine,

Russia has repeatedly and consistently stated that its actions that provide the
basis for Ukraine’s claims were not military in nature. In particular, Russia has
maintained that its arrest and detention of the Ukrainian vessels and
imprisonment and prosecution of the servicemen are solely matters of domestic
law enforcement.

57. Second, Ukraine argues that

the military activities exception is inapplicable in the instant case because, even
setting aside Russia’s own characterization of its activity, Ukraine does not
seek resolution of a dispute concerning military activities. Ukraine’s claims do
not allege a violation of the Convention based on activities that are military in
type, but, rather, Ukraine’s claims are based on Russia’s unlawful exercise of
jurisdiction in a law enforcement context.

58. In this regard, Ukraine contends that a dispute does not “concern military
activities” simply because it involves warships or because warships are present.
According to Ukraine, it is not the type of vessel, but rather the type of activity the
vessel is engaged in, that matters. Ukraine adds that, given that many countries use
their navies and coast guards for law enforcement at sea, the military activities
exception could not possibly apply to all disputes involving military vessels.

59. Ukraine maintains that its warships “were not engaged with the Russian
military” and that “they were not arrayed in opposition to one another.” According to
Ukraine, it is undisputed that its warships were trying to leave the area and that the
Russian Coast Guard was chasing them in order to arrest them for violating Russian
domestic laws. Ukraine argues that this was a typical law enforcement encounter.

60. Ukraine emphasizes that neither the involvement of the Russian Navy in the
incident nor the use of force alone converts a law enforcement activity into a military
one.

61. Ukraine contends that “[t]he mission of the vessels was to navigate from the
Ukrainian port of Odesa to the Ukrainian port of Berdyansk on the northern shore of
the Sea of Azov, where they were thereafter to be permanently stationed.”
 17
 

62. Responding to the Russian Federation’s argument that the warships planned
a “secret incursion”, Ukraine maintains that “the purpose of this guidance was to
avoid unnecessarily provoking incidents with Russian government vessels during the
two days it would take to reach the Kerch Strait from Odesa.” Ukraine adds that “[n]or
can the guidance be read as suggesting that the mission of the naval vessels was to
transit the Kerch Strait secretly – an impossible task given the breadth of the Kerch
Strait and the navigable channels through it.” Ukraine also points out that the
commander of the Berdyansk communicated to the Russian authorities the intention
of the three vessels to proceed through the Kerch Strait.

**

63. The question the Tribunal has to decide is whether the dispute submitted to
the Annex VII arbitral tribunal concerns military activities. While the Russian
Federation argues that it concerns military activities, Ukraine contends that its claims
are based on “Russia’s unlawful exercise of jurisdiction in a law enforcement
context.”

64. In the view of the Tribunal, the distinction between military and law
enforcement activities cannot be based solely on whether naval vessels or law
enforcement vessels are employed in the activities in question. This may be a
relevant factor but the traditional distinction between naval vessels and law
enforcement vessels in terms of their roles has become considerably blurred. The
Tribunal notes that it is not uncommon today for States to employ the two types of
vessels collaboratively for diverse maritime tasks.

65. Nor can the distinction between military and law enforcement activities be
based solely on the characterization of the activities in question by the parties to a
dispute. This may be a relevant factor, especially in case of the party invoking the
military activities exception. However, such characterization may be subjective and
at variance with the actual conduct.

66. In the view of the Tribunal, the distinction between military and law
enforcement activities must be based primarily on an objective evaluation of the
 18
 

nature of the activities in question, taking into account the relevant circumstances in
each case.

67. The Tribunal notes that the dispute submitted to the Annex VII arbitral tribunal
concerns the alleged violation of Ukraine’s rights under articles 32, 58, 95 and 96 of
the Convention, arising from the arrest and detention of its naval vessels and their
servicemen and the subsequent exercise of criminal jurisdiction over them by the
Russian Federation. For the purposes of determining whether the dispute concerns
military activities under article 298, paragraph 1(b), of the Convention, however, it is
necessary for the Tribunal to examine a series of events preceding the arrest and
detention. In the view of the Tribunal, those events may shed light on whether the
arrest and detention took place in the context of a military operation or a law
enforcement operation.

68. The Tribunal considers that the following three circumstances are particularly
relevant in this regard. First, it appears from the information and evidence presented
by the Parties to the Tribunal that the underlying dispute leading to the arrest
concerned the passage of the Ukrainian naval vessels through the Kerch Strait. In
the view of the Tribunal, it is difficult to state in general that the passage of naval
ships per se amounts to a military activity. Under the Convention, passage regimes,
such as innocent or transit passage, apply to all ships.

69. The Tribunal notes that the particular passage at issue was attempted under
circumstances of continuing tension between the Parties. In addition, according to
the Memorandum submitted by the Russian Federation, the incident of 25 November
2018 was preceded by “provocative actions and military build-up on the part of
Ukraine.” On the other hand, Ukraine states that its naval vessels had previously
passed through the Kerch Strait. According to Ukraine, “[o]ther Ukrainian naval
vessels had successfully completed the same transit as recently as September
2018, just two months earlier.”

70. The Tribunal is of the view, on the basis of evidence before it, that a “non-
permitted ‘secret’ incursion” by the Ukrainian naval vessels, as alleged by the
 19
 

Russian Federation, would have been unlikely under the circumstances of the
present case, including those stated in paragraph 62.

71. Second, it appears that the specific cause of the incident that occurred on
25 November 2018 was the Russian Federation’s denial of the passage of the
Ukrainian naval vessels through the Kerch Strait and the attempt by those vessels to
proceed nonetheless. According to the Memorandum, the passage was denied on
two grounds: the failure of the Ukrainian naval vessels to comply with the “relevant
procedure in the 2015 Regulations” and the temporary suspension of the right of
innocent passage for naval vessels because of “security concerns following a recent
storm”. It is undisputed that the commander of the Berdyansk gave notification of the
naval vessels’ intention to proceed by invoking a right to the freedom of navigation
pursuant to the 2003 Treaty between the Russian Federation and Ukraine on
Cooperation in the Use of the Sea of Azov and the Kerch Strait. It is also undisputed
that, as the Ukrainian naval vessels proceeded, they were physically blocked by the
Russian Coast Guard. The vessels were ordered to wait in the vicinity of an
anchorage, subject to restrictions on their movement. They were held there for about
eight hours.

72. The aforementioned facts indicate that at the core of the dispute was the
Parties’ differing interpretation of the regime of passage through the Kerch Strait. In
the view of the Tribunal, such a dispute is not military in nature.

73. Third, it is undisputed that force was used by the Russian Federation in the
process of arrest. In this regard, the Tribunal considers that the context in which
such force was used is of particular relevance. The facts provided by the Parties do
not differ on this point. After being held for about eight hours, the Ukrainian naval
vessels apparently gave up their mission to pass through the strait and turned
around and sailed away from it. The Russian Coast Guard then ordered them to stop
and, when the vessels ignored the order and continued their navigation, started
chasing them. It was at this moment and in this context that the Russian Coast
Guard used force, first firing warning shots and then targeted shots. One vessel was
damaged, servicemen were injured and the vessels were stopped and arrested.
 20
 

74. In the Tribunal’s view, considering the above sequence of events, what
occurred appears to be the use of force in the context of a law enforcement
operation rather than a military operation.

75. The aforementioned circumstances of the incident on 25 November 2018

suggest that the arrest and detention of the Ukrainian naval vessels by the Russian
Federation took place in the context of a law enforcement operation.

76. The subsequent proceedings and charges against the servicemen further
support the law enforcement nature of the activities of the Russian Federation. The
servicemen have been charged with unlawfully crossing the Russian State border
and the Russian Federation has invoked article 30 of the Convention, entitled “Non-
compliance by warships with the laws and regulations of the coastal State”, to justify
its detention of the vessels.

77. Based on the information and evidence available to it, the Tribunal
accordingly considers that prima facie article 298, paragraph 1(b), of the Convention
does not apply in the present case.

Article 283 of the Convention

78. The Tribunal will now proceed to determine whether the requirements under
article 283 of the Convention relating to an exchange of views are met.

79. Article 283, paragraph 1, of the Convention reads:

When a dispute arises between States Parties concerning the

interpretation or application of this Convention, the parties to the dispute
shall proceed expeditiously to an exchange of views regarding its
settlement by negotiation or other peaceful means.

80. Ukraine contends that it has “taken reasonable and expeditious steps to
exchange views with the Russian Federation regarding the settlement of the dispute
by negotiation or other peaceful means.” According to Ukraine, all attempts to secure
 21
 

the release of the detained vessels and servicemen through diplomatic and judicial
means have been unsuccessful.

81. In this context, Ukraine draws the attention of the Tribunal to the note verbale
it sent to the Russian Federation on 15 March 2019, in which it demanded, pursuant
to article 283 of the Convention, that “the Russian Federation expeditiously proceed
to an exchange of views regarding the settlement of this dispute by negotiation or
other peaceful means.” In that note verbale, Ukraine further requested that “the
Russian Federation immediately express its view regarding the proper means of
resolving the dispute and the holding of consultations on the matter with the Ukraine
side within ten days.”

82. Ukraine states that on 25 March 2019 it received the note verbale of the
Russian Federation acknowledging receipt of Ukraine’s note and adding that
“[p]ossible comments to the issues raised in [Ukraine’s] note are expected to be sent
separately.” Ukraine contends that this left it “entirely ambiguous whether, and when,
Russia would ultimately agree to participate in an exchange of views.” Ukraine
argues that when it received that note, it “could not have foreseen that Russia would
– weeks later – agree to Ukraine’s request for a meeting, and Ukraine was entitled to
presume that further attempts to seek negotiations would not be fruitful.” It also
argues that the ten-day deadline was not “arbitrary” in light of the urgency of the
situation. Ukraine adds that it was not required to postpone its case indefinitely and
allow further harm to its rights. In Ukraine’s view, its obligation to exchange views
was therefore satisfied on 25 March 2019, prior to the institution of arbitral
proceedings.

83. Ukraine also states that, “[t]o the extent the Tribunal considers that the Parties
were still under an obligation to exchange views after 25 March, … Ukraine’s 23 April
exchange of views with the Russian Federation satisfies the requirements of
article 283.”

84. The Russian Federation contends that “Article 283(1) of UNCLOS has not
been satisfied”. It maintains that Ukraine arbitrarily imposed a deadline of “within ten
 22
 

days”. Furthermore, the Russian Federation points out that, within ten days, i.e. on
25 March 2019, it provided a written holding response.

85. The Russian Federation notes that, on 16 April 2019, it confirmed its consent
to hold consultations with Ukraine under article 283 of the Convention. In the view of
the Russian Federation, Ukraine did not engage meaningfully in the consultations
held on 23 April 2019. The Russian Federation adds that it expressed “its willingness
to continue a dialogue on the settlement of the dispute by peaceful means, but
Ukraine declared its lack of interest in this path, and elected to press on with a
hearing on provisional measures.”

**

86. The Tribunal notes that Ukraine, in its note verbale of 15 March 2019, clearly
expressed its willingness to exchange views with the Russian Federation regarding
the means to settle their dispute over the immunity of the detained naval vessels and
servicemen within a specific time frame. The time-limit of ten days indicated in
Ukraine’s note verbale cannot be considered “arbitrary” in light of the obligation to
proceed expeditiously to an exchange of views. In the view of the Tribunal, the
Russian Federation’s response of 25 March 2019, which stated that “possible”
comments to the issues raised by Ukraine “are expected to be sent” separately, was
of such nature that Ukraine could reasonably conclude under the circumstances that
the possibility of reaching agreement was exhausted.

87. In this regard, the Tribunal recalls that “a State Party is not obliged to continue
with an exchange of views when it concludes that the possibilities of reaching
agreement have been exhausted” (see MOX Plant (Ireland v. United Kingdom),
Provisional Measures, Order of 3 December 2001, ITLOS Reports 2001, p. 95, at
p. 107, para. 60; “ARA Libertad” (Argentina v. Ghana), Provisional Measures, Order
of 15 December 2012, ITLOS Reports 2012, p. 332, at p. 345, para. 71; “Arctic
Sunrise” (Kingdom of the Netherlands v. Russian Federation), Provisional Measures,
Order of 22 November 2013, ITLOS Reports 2013, p. 230, at p. 248, para. 76).
 23
 

88. The Tribunal further recalls that “the obligation to proceed expeditiously to an
exchange of views applies equally to both parties to the dispute” (M/V “Norstar”
(Panama v. Italy), Preliminary Objections, Judgment, ITLOS Reports 2016, p. 44, at
p. 91, para. 213).

89. Accordingly, the Tribunal is of the view that these considerations are sufficient
at this stage to find that the requirements of article 283 were satisfied before Ukraine
instituted arbitral proceedings.

***

90. In light of the foregoing, the Tribunal concludes that prima facie the Annex VII
arbitral tribunal would have jurisdiction over the dispute submitted to it.

II. Urgency of the situation

Plausibility of rights asserted by the Applicant

91. The power of the Tribunal to prescribe provisional measures under

article 290, paragraph 5, of the Convention has as its object the preservation of the
rights asserted by a party requesting such measures pending the constitution and
functioning of the Annex VII arbitral tribunal. Before prescribing provisional
measures, the Tribunal therefore needs to satisfy itself that the rights which Ukraine
seeks to protect are at least plausible (see “Enrica Lexie” (Italy v. India), Provisional
Measures, Order of 24 August 2015, ITLOS Reports 2015, p. 182, at p. 197,
para. 84; Delimitation of the Maritime Boundary in the Atlantic Ocean (Ghana/Côte
d’Ivoire), Provisional Measures, Order of 25 April 2015, ITLOS Reports 2015, p. 146,
at p. 158, para. 58).

92. Ukraine states that the Berdyansk and the Nikopol are warships of the
Ukrainian Navy, flying the naval ensign, under the command of officers duly
commissioned by the Government of Ukraine and manned by crew under the regular
discipline of the Ukrainian Navy. According to Ukraine, they are warships within the
 24
 

meaning of article 29 of the Convention. Ukraine further states that the Yani Kapu is
a naval auxiliary vessel equally entitled to immunity under articles 32 and 96 of the
Convention and general international law.

93. According to Ukraine,

articles 95 and 96 of the Convention provide that warships and “ships

owned or operated by a State and used only on government non-
commercial service” – of which naval auxiliary vessels are the classic
example – enjoy “complete immunity from the jurisdiction of any State other
than the flag State.” Article 58 extends the application of the immunity
under articles 95 and 96 to the exclusive economic zone. Article 32 and
customary international law guarantee the same immunity in the territorial
sea.

Ukraine further maintains that the immunity provided for in the Convention protects
not only warships and naval auxiliary vessels but also their crews.

94. Ukraine contends that “[t]he immunity accorded Ukraine’s vessels and
servicemen exempts them from any form of arrest and detention, and makes it
unlawful for any third State to board the vessels or otherwise prevent them ‘from
discharging [their] mission and duties.’” It further contends that, “[i]n detaining
Ukraine’s naval vessels and servicemen, and continuing to hold them, the Russian
Federation has violated the immunity accorded by the Convention and customary
international law.”

**

95. At this stage of the proceedings, the Tribunal is not called upon to determine
definitively whether the rights claimed by Ukraine exist, but need only decide
whether such rights are plausible (see “Enrica Lexie” (Italy v. India), Provisional
Measures, Order of 24 August 2015, ITLOS Reports 2015, p. 182, at p. 197,
para. 84).

96. The Tribunal notes that the rights claimed by Ukraine are rights to the
immunity of warships and naval auxiliary vessels and their servicemen on board
under the Convention and general international law.
 25
 

97. In the view of the Tribunal, it appears that the Berdyansk and the Nikopol are
warships within the meaning of article 29 of the Convention 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 article 96 of the Convention. The Tribunal considers that the
rights claimed by Ukraine on the basis of articles 32, 58, 95 and 96 of the
Convention are plausible under the circumstances.

98. The Tribunal also notes that the 24 servicemen on board the vessels are
Ukrainian military and security personnel. While the nature and scope of their
immunity may require further scrutiny, the Tribunal considers that the rights to the
immunity of the 24 servicemen claimed by Ukraine are plausible.

99. The Tribunal is accordingly of the view that the rights Ukraine seeks to protect
in the dispute are plausible.

Real and imminent risk of irreparable prejudice

100. Pursuant to article 290, paragraph 5, of the Convention, the Tribunal may
prescribe provisional measures if the urgency of the situation so requires.
Accordingly, the Tribunal may not prescribe such measures unless it considers that
there is a real and imminent risk that irreparable prejudice may be caused to the
rights of parties to the dispute before the constitution and functioning of the
Annex VII arbitral tribunal (see “Enrica Lexie” (Italy v. India), Provisional Measures,
Order of 24 August 2015, ITLOS Reports 2015, p. 182, at p. 197, para. 87). The
Tribunal therefore has to determine whether there is a risk of irreparable prejudice to
the rights of the Parties to the dispute and whether such risk is real and imminent. 

101. Ukraine argues that the requested provisional measures are necessary to
protect its rights against the serious and irreparable harm that will be caused by the
continued detention of its naval vessels and servicemen.

102. According to Ukraine, the detention of a warship and its crew intrudes on the
flag State’s dignity and sovereignty, and risks interfering with the performance of
 26
 

important public duties. As such, it presents “a grave threat of irreparable harm to the
rights of the flag State”. Ukraine claims that the Russian interferences seeking to
gain access to “highly sensitive equipment including instruments, arms on board,
and equipment intended to provide secure communications between the vessel and
its command”, which is “crucial to Ukraine’s defence”, are such as to cause Ukraine
serious harm. Ukraine also contends that its inability to service the vessels as
required presents a further risk of irreparable harm, in particular “the extended or
even permanent loss of the use of these vessels for public purposes.” Ukraine
asserts that the detention of the servicemen constitutes a further ongoing
infringement of Ukraine’s sovereign immunity and entails irreparable prejudice to
individual rights of the servicemen.

103. In Ukraine’s view, harm of this nature cannot be remedied by a subsequent

award of damages.

104. Ukraine claims that a risk of irreparable prejudice not only exists but such risk
is real and imminent. For Ukraine, harm imposed on its vessels and servicemen
increases as every day passes, making the situation “exceptionally urgent”.

105. Ukraine maintains that “[t]he urgent need for provisional measures is further
heightened by the practical and humanitarian considerations presented by this case.”
According to Ukraine, such measures cannot wait the months it may take to
constitute, convene and brief an Annex VII arbitral tribunal, when its servicemen
have already spent the past five months in Russian prisons and will likely be tried
and sentenced to lengthy terms of imprisonment of up to six years.

106. Ukraine asserts that urgency is “beyond doubt” when the irreparable harm or
irreparable consequences are “precisely present; that is to say, if they are already
under way and not just imminent.”

107. The Russian Federation argues that there is no urgency as required under
article 290, paragraph 5, of the Convention. It maintains that the criterion of urgency
is to be assessed with reference to the period during which the Annex VII arbitral
tribunal is not constituted. It states that Ukraine’s claim is not urgent, as Ukraine
 27
 

“waited over four months” after the incident occurred to seek “interim relief” from the
Tribunal.

108. Furthermore, the Russian Federation refers to the fact that Ukraine had
already been granted “interim relief” through its recourse to the European Court of
Human Rights. It notes that Ukraine, in its first application to the European Court,
sought the provision of medical assistance to its servicemen. According to the
Russian Federation, it complied with the “interim relief” ordered by the European
Court. It also notes that a subsequent request made by Ukraine to the European
Court, seeking the transfer of its servicemen to Ukraine, was denied.

109. Ukraine states that the measures ordered by the European Court of Human
Rights concerned the conditions of detention of its servicemen. It argues that those
measures “have no bearing whatsoever” on the extended hardship of the detained
servicemen which, it submits, was the basis of the urgency it claims in this case.

**

110. The Tribunal recalls its statement in “ARA Libertad” ((Argentina v. Ghana),
Provisional Measures, Order of 15 December 2012, ITLOS Reports 2012, p. 332, at
p. 348, para. 94) that a warship, as defined by article 29 of the Convention, “is an
expression of the sovereignty of the State whose flag it flies”. This reality is reflected
in the immunity it enjoys under the Convention 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.

111. In the view of the Tribunal, the actions taken by the Russian Federation could
irreparably prejudice the rights claimed by Ukraine to the immunity of its naval
vessels and their servicemen 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.
 28
 

112. Moreover, the continued deprivation of liberty and freedom of Ukraine’s

servicemen raises humanitarian concerns.

113. In the light of the seriousness of the above circumstances, the Tribunal finds
that there is a real and imminent risk of irreparable prejudice to the rights of Ukraine
pending the constitution and functioning of the Annex VII arbitral tribunal. The
Tribunal accordingly considers that the urgency of the situation requires the
prescription of provisional measures under article 290, paragraph 5, of the
Convention.

III. Provisional measures to be prescribed

114. In light of the above conclusion that the requirements for the prescription of
provisional measures under article 290, paragraph 5, of the Convention are met, the
Tribunal may prescribe “any provisional measures which it considers appropriate
under the circumstances to preserve the respective rights of the parties to the
dispute”, as provided for in article 290, paragraph 1, of the Convention.

115. The Tribunal notes in this regard that, in accordance with article 89,
paragraph 5, of the Rules, it may prescribe measures different in whole or in part
from those requested.

116. Ukraine requests the Tribunal to prescribe provisional measures requiring the
Russian Federation to promptly: release the three Ukrainian naval vessels and return
them to the custody of Ukraine; suspend criminal proceedings against the
24 detained Ukrainian servicemen and refrain from initiating new proceedings; and
release the servicemen and allow them to return to Ukraine.

117. The Russian Federation argues that if the three Ukrainian vessels and the
servicemen were released, it would be deprived of any possibility of exercising the
rights it asserts over them because they would no longer be subject to its jurisdiction.
It also maintains that Ukraine, in its request for provisional measures, seeks the
same relief that is sought on the merits, thus prejudging the merits.
 29
 

118. Having examined the measures requested by Ukraine, the Tribunal considers
it appropriate under the circumstances of the present case to prescribe provisional
measures requiring the Russian Federation to release the three Ukrainian naval
vessels and the 24 detained Ukrainian servicemen and to allow them to return to
Ukraine in order to preserve the rights claimed by Ukraine.

119. The Tribunal does not consider it necessary to require the Russian Federation
to suspend criminal proceedings against the 24 detained Ukrainian servicemen and
refrain from initiating new proceedings.

120. However, the Tribunal considers it appropriate to order both Parties to refrain
from taking any action which might aggravate or extend the dispute submitted to the
Annex VII arbitral tribunal.

121. Pursuant to article 95, paragraph 1, of the Rules, each party is required to
submit to the Tribunal a report and information on compliance with any provisional
measures prescribed. In the view of the Tribunal, it is consistent with the purpose of
proceedings under article 290, paragraph 5, of the Convention that parties also
submit reports to the Annex VII arbitral tribunal, unless the arbitral tribunal decides
otherwise. Accordingly, it may be necessary for the Tribunal to request further
information from the Parties on the implementation of the provisional measures
prescribed and it is appropriate in this regard that the President be authorized to
request such information in accordance with article 95, paragraph 2, of the Rules.

122. The present Order in no way prejudges the question of the jurisdiction of the
Annex VII arbitral tribunal to deal with the merits of the case, or any questions
relating to the admissibility of Ukraine’s claims or relating to the merits themselves,
and leaves unaffected the rights of Ukraine and the Russian Federation to submit
arguments in respect of those questions.

123. The Tribunal reaffirms that the non-appearing party is nevertheless a party to
the proceedings (see Nuclear Tests (Australia v. France), Interim Protection, Order
of 22 June 1973, I.C.J. Reports 1973, p. 99, at pp. 103-104, para. 24; “Arctic
 30
 

Sunrise” (Kingdom of the Netherlands v. Russian Federation), Provisional Measures,

Order of 22 November 2013, ITLOS Reports 2013, p. 230, at p. 242, para. 51), with
the ensuing rights and obligations, including an obligation to comply promptly with
any provisional measures prescribed under article 290 of the Convention.

IV. Operative provisions

124. For these reasons,

THE TRIBUNAL,

(1) Prescribes, pending a decision by the Annex VII arbitral tribunal, the following
provisional measures under article 290, paragraph 5, of the Convention:

(a) By 19 votes to 1,

The Russian Federation shall immediately release the Ukrainian naval vessels
Berdyansk, Nikopol and Yani Kapu, and return them to the custody of Ukraine;

FOR: President PAIK; Vice-President ATTARD; Judges JESUS, COT,

LUCKY, PAWLAK, YANAI, KATEKA, HOFFMANN, GAO,
BOUGUETAIA, KELLY, KULYK, GÓMEZ-ROBLEDO, HEIDAR,
CABELLO, CHADHA, KITTICHAISAREE, LIJNZAAD;

AGAINST: Judge KOLODKIN.

(b) By 19 votes to 1,

The Russian Federation shall immediately release the 24 detained Ukrainian

servicemen and allow them to return to Ukraine;

FOR: President PAIK; Vice-President ATTARD; Judges JESUS, COT,

LUCKY, PAWLAK, YANAI, KATEKA, HOFFMANN, GAO,
BOUGUETAIA, KELLY, KULYK, GÓMEZ-ROBLEDO, HEIDAR,
CABELLO, CHADHA, KITTICHAISAREE, LIJNZAAD;

AGAINST: Judge KOLODKIN.

 31
 

(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.

FOR: President PAIK; Vice-President ATTARD; Judges JESUS, COT,

LUCKY, PAWLAK, YANAI, KATEKA, HOFFMANN, GAO,
BOUGUETAIA, KELLY, KULYK, GÓMEZ-ROBLEDO, HEIDAR,
CABELLO, CHADHA, KITTICHAISAREE, LIJNZAAD;

AGAINST: Judge KOLODKIN.

(2) By 19 votes to 1,

Decides that Ukraine and the Russian Federation shall each submit to the Tribunal
the initial report referred to in paragraph 121 not later than 25 June 2019, and
authorizes the President to request further reports and information as he may
consider appropriate after that report.

FOR: President PAIK; Vice-President ATTARD; Judges JESUS, COT,

LUCKY, PAWLAK, YANAI, KATEKA, HOFFMANN, GAO,
BOUGUETAIA, KELLY, KULYK, GÓMEZ-ROBLEDO, HEIDAR,
CABELLO, CHADHA, KITTICHAISAREE, LIJNZAAD;

AGAINST: Judge KOLODKIN.

 32
 

Done in English and in French, both texts being equally authoritative, in the
Free and Hanseatic City of Hamburg, this twenty-fifth day of May, two thousand and
nineteen, in three copies, one of which will be placed in the archives of the Tribunal
and the others transmitted to the Government of Ukraine and the Government of the
Russian Federation, respectively.

(signed)
Jin-Hyun PAIK
President

(signed)
Philippe GAUTIER
Registrar

Judge Kittichaisaree appends a declaration to the Order of the Tribunal.

Judge Lijnzaad appends a declaration to the Order of the Tribunal.

Judge Jesus appends a separate opinion to the Order of the Tribunal.

Judge Lucky appends a separate opinion to the Order of the Tribunal.

Judge Gao appends a separate opinion to the Order of the Tribunal.

Judge Kolodkin appends a dissenting opinion to the Order of the Tribunal.