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On May 25th, the UN’s International Tribunal for the Law of the Sea (ITLOS) ruled that Russia should free the Ukrainian sailors detained during the Kerch Strait incident on November 25th, 2018.
The 24 Ukrainian service members and three Ukrainian navy ships were seized by the Russian coast guard south of the Kerch Strait on November 25th, 2018. The Ukrainian sailors tried to pass through the Kerch strait without permission and now face criminal charges in Russia.
On April 29, Ukraine filed a case with ITLOS requesting provisional measures to order their immediate release. Such measures are authorized under article 290 of the United Nations Convention on the Law of the Sea (UNCLOS) in urgent situations to prevent a real and imminent risk of irreparable prejudice to the rights of a party, in this case Ukraine.
Essentially, the Tribunal “diminished the military activities exemption in article which will give pause to the 27 nations that have made such declarations.”
Furthermore, according to James Kraska, Chairman and Charles H. Stockton Professor of International Maritime Law in the Stockton Center for International Law at the U.S. Naval War College, the Tribunal avoided a determination on whether there was an armed conflict between the two states.
“Instead, the ITLOS order accepts without analysis that Ukraine and Russia are interacting during a time of peace, a dubious assumption. In doing so, the Tribunal vindicates two important rights that will be welcomed by maritime powers: sovereign immunity of warships and other government vessels and the peacetime right of freedom of navigation by Ukrainian military vessels. But in reaching this conclusion, the Tribunal diminished the military activities exemption.”
Based on that dubious presumption, the Tribunal ruled that the sailors must be released.
“The Russian Federation must proceeed immediately to release the Ukrainian soldiers and allow them to return to the Ukraine,” said Judge Jin-Hyuan Paik at the International Tribunal for the Law of the Sea, which is located in the German port city of Hamburg.
“The tribunal ruling is a clear signal to Russia that it cannot violate international law with impunity,” Ukraine’s vice minister for foreign affairs Olena Zerkal said on her Facebook page after the judgement.
The Russian side said that the Tribunal’s decision was illegitimate. Konstantin Kosachyov, head of the foreign affairs committee in the Federation Council said the decision was illegitimate because it happened outside of the ITLOS’ jurisdiction.
“The ITLOS decision granting Ukraine’s demand to return the ships and release the crews arrested last year in relation to an attempt at illegal crossing of the Russian border cannot be considered to be legitimate because this incident is not in the jurisdiction of this court and the conventions it invokes,” Kosachyov said.
When signing the 1982 UN convention on the law of the sea Russia and Ukraine made specific reservations, which rule out consideration of the Kerch incident under the Convention’s procedures, he said.
“This is a matter for two sides, Russia and Ukraine, one of which committed a gross provocation by trying to cross into the other side in violation of the commonly known procedures. No wonder Ruslan Khomchak, Ukraine’s new Chief of the General Staff, has confirmed that sending vessels to the Kerch Strait back then was dangerous and that there were questions for the Ukrainian Navy Commander Ihor Voronchenko regarding the matter.
“Russia should stick to its position and continue to dismiss all Ukrainian attempts to internationalize the conflict situation and present it in the form of Russia’s inadequate activities.
“The new government of Ukraine would be wise to recognize, put mildly, the erroneousness of the actions of its predecessors and resolve issues in the framework of legal norms applicable to this case.”
Russian analytical blog Colonel Cassad made several comments on the matter, which allow to get a Russian perspective on this situation:
- Various sanctions are imposed against Russia on a constant basis, just like that, without any international tribunals. Meaning that even if Moscow is threatened by sanctions if it doesn’t release the sailors, not much will change if they do – sanctions will continue being imposed. It is simply the general strategy of the Washington-led establishment;
- Relatively recently, a similar hysteria was observed with the Boeing Tribunal, whose decisions Russia also does not recognize and considers null and void. As we can see, in the intervening time, the “decision of the tribunal” did not cause provocations for customers of Boeing. It is just another branch of the MSM propaganda campaign “Russia shot down a Boeing.” Similarly, the Maritime Tribunal plays along with the lines of “Russia oppresses the Kerch Strait.” The Russian Foreign Ministry takes an absolutely correct position, sending these claims to the forest;
- It should also be reminded that Russia had the opportunity to discuss the Ukrainian’s sentences in court, but delays it, otherwise by now they would be serving prison sentences. Because of Poroshenko, who sent them there, and because of Zelensky, who instead of exchanging the sailors for detained Russian citizens, actually continues Poroshenko’s course and contributes to the long-term imprisonment of Ukrainian sailors;
- It should also be understood that if sanctions are imposed on Russia for the Kerch Strait and if Ukraine doesn’t exchange prisoners, these sailors will be in prison for a long time. Even if only to serve as an example that Russia would not bend to ultimatums. Now, Zelensky is doing everything he can so that they, instead of returning home soon, sit in prison for a very long time;
- Russia would not recognize the decisions of the Maritime Tribunal, since their recognition would mean an automatic agreement with the thesis of the United States and Ukraine that Russia has no right to control the Kerch Strait. A recognition of this sort (not to be confused with the freedom of navigation) will have far more negative consequences than any sanctions.
It is apparent that the Tribunal’s decision just forwards the agenda of the Washington establishment and any compliance with it by Russia would be a serious sign of weakness. Especially since there are likely to be more provocations in the Black Sea, juding by US and Ukrainian claims.
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