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 twenty-four 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 twenty-four 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.

• 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 [Page 544] 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 twenty-four 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.

• 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, ICJ 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 [Page 545] 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.

• 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 [Page 546] 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 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 [Page 547] 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 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 [Page 548] Berdyansk on the northern shore of the Sea of Azov, where they were thereafter to be permanently stationed”.

• 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 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 [Page 549] 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 “nonpermitted ‘secret’ incursion” by the Ukrainian naval vessels, as alleged by the 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 [Page 550] 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.

• 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.

• [Page 551] 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 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 days”. Furthermore, the Russian [Page 552] 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).

• 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.

* * *

• [Page 553] 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.

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 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 noncommercial 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 [Page 554] 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.

• 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 twenty-four 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 twenty-four 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 [Page 555] 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 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 [Page 556] is not constituted. It states that Ukraine’s claim is not urgent, as Ukraine “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.

• 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.

Prima facie jurisdiction of an Annex VII arbitral tribunal

• 2. Russia’s note verbale No 1733/H of 30 April 2019 to the Tribunal states, inter alia, that Russia strongly disagrees with the qualification by Ukraine regarding the status of Kerch Strait and the territorial sea adjacent to Crimea, and Russia “declares that such issues of sovereignty over Crimea cannot be the subject of any proceedings before the Tribunal”. At the public sitting held on 10 May 2019, Ukraine asserted that, without prejudice to the legal status of Kerch Strait and Crimea, Russia’s conduct constitutes a profound violation of the immunity of warships and their personnel under the 1982 United Nations Convention on the Law of the Sea (“the Convention”) and [Page 560] customary international even if, arguendo, it had occurred in Russia’s territorial sea or exclusive economic zone.Footnote ¹ In rendering today’s Order, the Tribunal correctly accepts Ukraine’s argument on this point.

• 3. I also fully concur with the majority of the Tribunal that, prima facie, the military activity exception does not apply in the present case as contended by Russia.

• 4. The travaux préparatoires of article 298 of the ConventionFootnote ² are not very helpful in the matter of settling definitively whether the incident on 25 November 2018 was a military activity or a law-enforcement activity. I can imagine that some quintessential examples of military activities include military exercises at sea, military intelligence-gathering activities at sea, military confrontation at sea in the context of an inter-State political or military conflict,Footnote ³ as well as any consequential military action at sea taken by another State against such activities. Certain incidents may comprise a mixture of both military and law-enforcement aspects. Therefore, each case must be objectively determined primarily in the light of the nature and intent of the activities in question, taking into account the relevant circumstances and context in which the activities take place.

• 5. The use of force in the present case was also in the context of law-enforcement operations at sea alluded to in M/V “Saiga” (No 2):

  The normal practice used to stop a ship at sea is first to give an auditory or visual signal to stop, using internationally recognized signals. Where this does not succeed, a variety of actions may be taken, including the firing of shots across the bows of the ship. It is only after the appropriate actions fail that the pursuing vessel may, as a last resort, use force. Even then, appropriate warning must be issued to the ship and all efforts should be made to ensure that life is not endangered

  (S.S. “I’m Alone” case (Canada/United States, 1935), UNRIAA, Vol. III, p. 1609; The Red Crusader case (Commission of Enquiry, Denmark—United Kingdom, 1962), 35 ILR 485).Footnote ⁴

[Page 561] Obligations to exchange views under article 283

• 6. Article 283, paragraph 1, of the Convention provides:

  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.

• 7. This present case is the eighth case submitted to the Tribunal under article 290, paragraph 5, of the Convention. In its Request for the prescription of provisional measures filed with the Tribunal on 16 April 2019, Ukraine submits that it satisfies the requirement of article 283 of the Convention by taking “reasonable and expeditious steps to exchange views with the Russian Federation regarding the settlement of the dispute by negotiation or other peaceful means” but “no settlement of the dispute has been reached”.Footnote ⁵ Russia strongly disagrees with Ukraine’s contention. Russia’s note verbale No 1733/H of 30 April 2019 to the Tribunal states, inter alia, that Ukraine elected to submit its request for the prescription of provisional measures to the Tribunal before engaging in further bilateral consultations with Russia in addition to the one held in The Hague on 23 April 2019 despite Russia’s expressed readiness to continue dialogue with Ukraine on the matter.

• 8. Pursuant to Russia’s Memorandum of 7 May 2019:

  In its Note of 15 March 2019, Ukraine asserted that the Ukrainian Military Vessels and its crew enjoyed immunity, citing articles 32, 58 and 95 of UNCLOS. In the final paragraph of that note Ukraine stated “[p]ursuant to article 283 of the Convention, the Ukrainian Side demands that the Russian Federation expeditiously proceed to an exchange of views regarding the settlement of this dispute by negotiation or other peaceful means”, arbitrarily imposing a deadline of “within ten days”. Within 10 days, i.e. on 25 March 2019, Russia provided a written holding response. Ukraine failed to await a substantive response, and issued the Claim within the week, on 31 March 2019. Russia agreed to hold consultations with Ukraine under article 283 UNCLOS. Consultations were held on 23 April 2019, but Ukraine did not engage meaningfully; Russia 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. In the premises, article 283(1) of UNCLOS has not been satisfied, and prima facie jurisdiction is lacking for that reason.Footnote ⁶

• [Page 562] 9. At the public sitting held on 10 May 2019, Ukraine orally rebutted Russia’s contention quoted in paragraph 8 above as being “simply incorrect”. According to Ukraine, on 15 March 2019, Ukraine transmitted a note verbale to the Russian Federation indicating its preference for the dispute to be resolved through Annex VII arbitration and requesting an exchange of views pursuant to article 283. In light of the urgency of the situation, Ukraine insisted that this exchange of views take place within ten days. Contrary to Russia’s argument, this ten-day deadline was not “arbitrary”—it reflected the fact that each passing day further compounded the harm to Ukraine’s rights, and that Ukraine had already, over a period of months, repeatedly protested the detention of the vessels and servicemen and sought their release. Ukraine then concluded that Ukraine’s obligation to exchange views was satisfied on 25 March 2019. Since article 283 requires the exchange of views to take place “expeditiously” and, in simply ignoring Ukraine’s proposed schedule for an exchange of views, Ukraine considered Russia to have failed to comply with that obligation. When it received Russia’s note verbale of 25 March 2019, Ukraine 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. Ukraine considered that it was not required to indefinitely postpone its case and allow further harm to its rights.Footnote ⁷ On 16 April 2019, after 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 to prescribe provisional measures.

• 10. Pursuant to the well-established jurisprudence of the Tribunal, the obligation to “proceed expeditiously to an exchange of views” under article 283 of the Convention applies equally to both parties to the dispute.Footnote ⁸ Typically, the applicant requesting the prescription of provisional measures from the Tribunal by virtue of article 290, paragraph 5, had on several occasions prior to the institution of proceedings under Annex VII to the Convention sent diplomatic notes to inform the respondent of the applicant’s concerns about the respondent’s conduct in violation of the Convention and to request that a meeting be held on an urgent basis to discuss these concerns with a view to resolving the dispute amicably.Footnote ⁹

• [Page 563] 11. With due respect, the Tribunal’s Order today does not seem to have examined the ordinary meaning of article 283, paragraph 1, that the obligation for the parties to the dispute to proceed expeditiously to an exchange of views regarding its settlement by negotiation or other peaceful means is implicated “[w]hen a dispute arises between States Parties concerning the interpretation or application of this Convention”. Paragraphs 86 to 90 of the Order focus on Ukraine’s note verbale of 15 March 2019 and the futility of any further exchange of views between Ukraine and Russia for the Tribunal to reach the conclusion at this stage that the requirements of article 283 were satisfied before Ukraine instituted arbitral proceedings, and that prima facie the Annex VII arbitral tribunal would have jurisdiction over the dispute submitted to it.

• 12. Of all the documents submitted to the Tribunal, although Ukraine has persistently protested Russia’s conduct against Ukraine’s three naval vessels and the twenty-four servicemen on board, it was in Ukraine’s note verbale No 72/22-188/3-682 dated 15 March 2019 that Ukraine mentioned for the first time article 283 of the Convention and demanded that the Russian Federation “expeditiously proceed to an exchange of views regarding the settlement of this dispute by negotiation or other peaceful means”, as well as requesting 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 Ukraine. A pertinent legal question is: should not the obligation under article 283 for the parties to the dispute to proceed “expeditiously” to an exchange of views regarding its settlement by negotiation or other peaceful means have commenced once the dispute arose on 25 November 2018? That is to say, does the initiative taken by Ukraine on 15 March 2019 fail to satisfy the “expeditious” element required by article 283?

• 13. The travaux préparatoires of article 283 show that the obligation to proceed to this exchange of views “expeditiously” is not limited to an initial exchange of views at the commencement of a dispute; it is a continuing obligation applicable at every stage of the dispute during which the parties have complete freedom to utilize the dispute-settlement method of their choosing, including direct negotiation, good offices, mediation, fact-finding, conciliation, arbitration or judicial settlement. Therefore, if the parties should decide to skip the stage of direct negotiations and to proceed immediately to some other means, article 283 would not stand in the way of such an agreement.Footnote ¹⁰ [Page 564] The rationale behind article 283 seems to be to ensure that resort to the mechanisms of section 2 of Part XV or other compulsory procedures under the Convention is not premature or a matter of course, but occurs only once it becomes clear that the dispute cannot be solved by less adversarial means, whereas the requirement for the expeditious commencement of the exchange of views is intended to prevent it from being used as a delaying tactic.Footnote ¹¹

• 14. According to one view, expressed by Judge ad hoc Anderson in his Declaration in the “Arctic Sunrise” case:

  The emphasis is more upon the expression of views regarding the most appropriate peaceful means of settlement, rather than the exhaustion of diplomatic negotiations over the substantive issues dividing the parties. The main purpose underlying article 283 is to avoid the situation whereby a State is taken completely by surprise by the institution of proceedings against it. The Tribunal has rightly noted in paragraphs 73 and 74 of the Order [in the “Arctic Sunrise” case] that there were several diplomatic exchanges between the parties before legal proceedings were instituted.Footnote ¹²

  [Emphasis added]

• 15. The Annex VII arbitral tribunal to be constituted will have to determine definitively whether Ukraine has satisfied all the conditions under article 283. At this stage of the case before this Tribunal, I would give the benefit of the doubt to Ukraine, although I do have some concern that the ten-day deadline imposed by Ukraine in its note verbale of 15 March 2019 for Russia to respond might not be reasonable for many States whose internal bureaucratic process requires inter-agency consultations in order for them to be able to respond officially to a demand by a foreign State.

• 16. The fact that Ukraine submitted a draft United Nations General Assembly resolution on 5 December 2018—which, inter alia, called upon the Russian Federation to release the three naval vessels and their crews and equipment unconditionally and without delay; called for the utmost restraint to deescalate the situation immediately; and called upon the Russian Federation “to refrain from impeding the lawful exercise of navigational rights and freedoms in the Black Sea, the Sea of Azov and the Kerch Strait in accordance with applicable international law, in particular provisions [Page 565] of the 1982 United Nations Convention on the Law of the Sea”Footnote ¹³ —might, at this stage, be considered, prima facie, as a means through which Ukraine proceeded “expeditiously to an exchange of views regarding its settlement by negotiation or other peaceful means” not long after the 25 November 2018 incident. Russia itself was involved in trying to block or at least amend the draft resolution, especially through its allies at the United Nations General Assembly.Footnote ¹⁴ There was, arguably, an expeditious, albeit indirect, exchange of views between the Parties using the United Nations General Assembly as a forum to settle this dispute by means of a draft United Nations General Assembly resolution, which was eventually adopted unchanged as resolution 73/194 of 17 December 2018 by a vote of 66 in favour, 19 against, and 72 abstentions.Footnote ¹⁵ This prima facie conclusion might also need to be seen in the context in which the bilateral relation between Ukraine and Russia has not been normal since 18 March 2014.

Plausibility of rights

• 17. Since 2015, the Tribunal has, following the International Court of Justice in 2009,Footnote ¹⁶ required that the rights for which the applicant seeks protection by means of the prescription of provisional measures appear to be plausible or are at least plausible.Footnote ¹⁷ I am pleased that in the present case before the Tribunal, the Tribunal has been scrupulous in ascertaining whether the alleged rights are plausible, and has not [Page 566] equated this threshold of plausibility with a lower threshold, such as that of possibility.Footnote ¹⁸

• 18. With regard to the immunity of the twenty-four Ukrainian servicemen, Ukraine submits, in paragraph 25 of its Request:

  As this Tribunal has previously determined, “the Convention considers a ship as a unit”, comprised of the ship itself, its crew, every other person on board the ship or otherwise “involved or interested in its operations”, and the ship’s cargo. Thus, the passengers and crew of a naval vessel are entitled to immunity to the same extent as the vessel. The Ukrainian servicemen detained by the Russian Federation are also entitled to the customary immunity accorded public servants exercising official functions.Footnote ¹⁹

• 19. I am not convinced that the legal position of a ship including its crew and passengers as a single unit for the purpose of the nationality of claims necessarily or automatically means that, if the ship in question is a warship entitled to immunity, its crew and passengers on board are also automatically entitled to the same immunity as the one accorded to the warship.

• 20. Paragraph 98 of today’s Order reads:

  The Tribunal also notes that the twenty-four 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 twenty-four servicemen claimed by Ukraine are plausible.

• 21. The Tribunal does not explain the basis of such plausibility of the immunity of the twenty-four servicemen. I myself concur that the twenty-four Ukrainian servicemen are, prima facie, entitled to immunity for the following reasons.

• 22. Firstly, by virtue of article 293, paragraph 1, of the Convention, this Tribunal shall apply this Convention “and other rules of international law not incompatible with this Convention”. In this regard, rules of general international law on the immunity of State officials from foreign criminal jurisdiction are applicable insofar as they are not incompatible with the Convention.

• [Page 567] 23. The pertinent provisions of the International Law Commission’s draft articles on immunity of State officials from foreign criminal jurisdiction, as provisionally adopted,Footnote ²⁰ read as follows:

  Draft article 2. Definitions

  For the purposes of the present draft articles:

  […]

  • (e) “State official” means any individual who represents the State or who exercises State functions.

  • (f) An “act performed in an official capacity” means any act performed by a State official in the exercise of State authority.

  Part three. Immunity ratione materiae

  Draft article 5. Persons enjoying immunity ratione materiae

  State officials acting as such enjoy immunity ratione materiae from the exercise of foreign criminal jurisdiction.

  Draft article 6. Scope of immunity ratione materiae

  • 1. State officials enjoy immunity ratione materiae only with respect to acts performed in an official capacity.

  • 2. Immunity ratione materiae with respect to acts performed in an official capacity continues to subsist after the individuals concerned have ceased to be State officials.

  • 3. Individuals who enjoyed immunity ratione personae in accordance with draft article 4, whose term of office has come to an end, continue to enjoy immunity with respect to acts performed in an official capacity during such term of office.

  Draft article 7. Crimes in respect of which immunity ratione materiae does not apply

  • 1. Immunity ratione materiae from the exercise of foreign criminal jurisdiction shall not apply in relation to the following crimes:

    • (a) Genocide;

    • (b) Crimes against humanity;

    • (c) War crimes;

    • (d) The crime of apartheid;

    • (e) Torture;

    • (f) Enforced disappearances.

  • [Page 568] 2. For the purposes of this article, the meaning of crimes under international law referred to above shall be construed in accordance with the definition of such crimes as set forth in the treaties listed in the annex to these draft articles.

• 24. The International Law Commission’s commentary on draft article 2(e) lists some examples of “officials” falling within the definition thereunder, including “military officials of various ranks, and various members of government security forces and institutions”, irrespective of the hierarchical position occupied by these individuals within a State.Footnote ²¹ The commentary on draft article 2(f) makes it clear that, in order for a State official to be entitled to immunity ratione materiae, there must also be a direct connection between the act performed by the State official and the exercise of State functions and powers, since it is this connection that justifies the recognition of immunity in order to protect the principle of sovereign equality of States.Footnote ²²

• 25. As the twenty-four servicemen on board the three Ukrainian naval vessels have not been accused of committing any crime to which the immunity ratione materiae shall not apply, they are, at least prima facie, State officials entitled to immunity ratione materiae.

Law of naval warfare

• 26. In several diplomatic notes addressed to Russia, Ukraine has also asserted that that the Ukrainian servicemen were “taken as prisoners of war” and demanded that “the Russian Side immediately and fully ensure all the lawful rights of the captured military servicemen of the Armed Forces of Ukraine as required by the Geneva Convention of August 12, 1949, relative to the Treatment of Prisoners of War”.Footnote ²³ Russia simply rebuts this assertion by stating:

  Although it appears that Ukraine may wish to make something of the fact that Russia has denied that the Military Servicemen are prisoners of war (and hence is treating this as a matter for its civilian courts), that denial pertains to the categorisation of the situation as an armed conflict for the purposes of international humanitarian law and does not mean that the incident does [Page 569] not concern military activities for the purposes of article 298 of UNCLOS, which is a wholly separate question. Russia’s position is entirely consistent with the position taken by the Tribunal in the Philippines v. China Award cited above.Footnote ²⁴

• 27. Russia does not seem to accept that there is a situation of armed conflict between Russia and Ukraine. Therefore, there is no place in the present proceeding before this Tribunal for the applicability of the law of naval warfare as lex specialis that would replace the law of the sea under the 1982 United Nations Convention on the Law of the Sea and allow targeting military objectives such as enemy warships which are not immune from capture, attack or destruction to achieve a military advantage for Russia.Footnote ²⁵

• 28. Despite Ukraine’s repeated reference to the twenty-four Ukrainian servicemen as “prisoners of war”, Ukraine is not estopped from resorting to the application of the law of the sea, as opposed to the law of naval warfare, in the proceeding before this Tribunal. According to the Tribunal’s established jurisprudence,

  [T]he Tribunal observes that, in international law, a situation of estoppel exists when a State, by its conduct, has created the appearance of a particular situation and another State, relying on such conduct in good faith, has acted or abstained from an action to its detriment. The effect of the notion of estoppel is that a State is precluded, by its conduct, from asserting that it did not agree to, or recognize, a certain situation. The Tribunal notes in this respect the observations in the North Sea Continental Shelf cases (Judgment, ICJ Reports 1969, p. 3, at p. 26, para. 30) and in the case concerning Delimitation of the Maritime Boundary in the Gulf of Maine Area

  (Judgment, ICJ Reports 1984, p. 246, at p. 309, para. 145).Footnote ²⁶

• 29. At least one main element of estoppel has not been fulfilled in the case before us—Russia has not submitted any evidence to prove that it has been induced by Ukraine’s representation to act to its detriment. On the contrary, the submissions to this Tribunal by both Russia and Ukraine focus on the interpretation or application of the provisions of the 1982 Convention they consider relevant to the dispute before this Tribunal.

[Page 570] Appropriateness for the Tribunal to prescribe provisional measures in this case

• 30. Ukraine has also resorted to the European Court of Human Rights to seek protection of the human rights of the twenty-four Ukrainian servicemen. On 4 December 2018, the European Court of Human Rights decided to indicate to the Russian Government by way of interim measure that, “in the interests of the parties and the proper conduct of the proceedings before it, they should ensure that appropriate medical treatment be administered to those captive Ukrainian naval personnel who required it, including in particular any who might have been wounded in the naval incident that took place on 25 November 2018”.Footnote ²⁷

• 31. While paragraphs 108-9 of today’s Order allude to that course of action by Ukraine and at the public sitting held on 10 May 2019 Ukraine tried to rebut Russia’s argument on this point,Footnote ²⁸ the Tribunal’s Order does not refer to the relevance or non-relevance of the litigation pending before the European Court of Human Rights in relation to the Request by Ukraine for the prescription of provisional measures by this Tribunal.

• 32. In my view, the proceeding before the European Court of Human Rights is entirely different from this proceeding before this Tribunal. According to available information, Ukraine’s inter-State case against Russia in the European Court of Human Rights alleges violation by the latter of articles 2 (right to life), 3 (prohibition of torture), 5 (right to liberty and security), 6 (right to a fair trial) and 38 (examination of the case) of the 1950 European Convention on Human Rights, to which both Ukraine and Russia are party.Footnote ²⁹ None of these alleged violations are issues before the Tribunal, and the Tribunal can prescribe provisional measures within the limit of its own competence as provided for in article 290, paragraph 5, of the 1982 Convention.

Provisional measures prescribed by the Tribunal

• 33. Paragraph 119 of today’s Order merely states that the Tribunal “does not consider it necessary to require the Russian Federation to suspend criminal proceedings against the twenty-four detained Ukrainian servicemen and refrain from initiating new proceedings” as [Page 571] requested by Ukraine. The Tribunal does not elaborate in more detail, as it should have done, why such a provisional measure is not necessary at this stage. In my humble opinion, an applicant for the prescription of provisional measures should be entitled to be fully apprised of the reason(s) why one or more provisional measures requested by it is or are not prescribed.

Compliance and enforcement of the Order

• 34. Article 290, paragraph 6, of the Convention stipulates unequivocally that the parties to the dispute shall comply promptly with any provisional measures prescribed under this article.

• 35. Compliance with international legal obligations, including judgments and orders of international courts and tribunals, has been subject to extensive academic discussion.Footnote ³⁰

• 36. In the “Arctic Sunrise” case, Russia informed the Netherlands that it did not accept the arbitration procedure under Annex VII to the Convention initiated by the Netherlands. Therefore, Russia did not participate in the proceedings before the Tribunal in respect of the Netherlands’ request for the prescription of provisional measures under article 290, paragraph 5, of the Convention. Likewise, Russia did not take part in the proceedings before the Annex VII arbitral tribunal which subsequently, on 14 August 2015, issued a unanimous Award on the Merits, in which it found that Russia had breached its obligations under the Convention by boarding, investigating, inspecting, arresting, detaining, and seizing the Arctic Sunrise, Greenpeace’s vessel flying the Dutch flag, without the prior consent of the Netherlands, and by arresting, detaining, and initiating judicial proceedings against the thirty persons on board that vessel. The Annex VII arbitral tribunal also found that Russia breached the Convention by failing to comply with the order prescribing provisional measures issued by the International Tribunal for the Law of the Sea in connection with this arbitration and by failing to pay the deposits requested by the Annex VII arbitral tribunal in the proceedings. In its Award on Compensation dated 10 July 2017, the Annex VII arbitral tribunal unanimously determined [Page 572] the quantum of compensation owed by Russia to the Netherlands. The Tribunal decided that Russia shall pay the Netherlands the following sums, with interest: (i) €1,695,126.18 as compensation for damage to the Arctic Sunrise; (ii) €600,000 as compensation for non-material damage to the vessel for their wrongful arrest, prosecution, and detention in Russia; (iii) €2,461,935.43 as compensation for material damage resulting from the measures taken by Russia against the vessel; (iv) €13,500 as compensation for the costs incurred by the Netherlands for the issuance of a bank guarantee to Russia pursuant to the Provisional Measures Order prescribed by the International Tribunal for the Law of the Sea; and (v) €625,000 as reimbursement of Russia’s share of the deposits paid by the Netherlands in the proceedings.

• 37. Despite Russia’s non-participation in the proceedings before this Tribunal and the Annex VII arbitral tribunal in the “Arctic Sunrise” case, a full and final settlement in that case was reportedly reached between the Netherlands and Russia on 17 May 2019, whereby Greenpeace would be paid €2.7 million by Russia.Footnote ³¹ This final settlement forms part of the agreement between the Netherlands and Russia on the prevention of and response to any future incident similar to the one in the “Arctic Sunrise” case.Footnote ³²

• 38. I am, therefore, optimistic that the provisional measures prescribed by the Tribunal today will be of practical significance in the eventual peaceful settlement of the present dispute between the Parties.

Non-participation of the Russian Federation

Request for suspension of criminal proceedings

• 15. With respect to the request to suspend criminal proceedings against the twenty-four detained Ukrainian servicemen and refrain from initiating new proceedings, I agree with the decision of the Tribunal. However, I want to add my reasons for agreeing.

• 16. Paragraph 119 of the Order states: “The Tribunal does not consider it necessary to require the Russian Federation to suspend criminal proceedings against the twenty-four detained Ukrainian servicemen and to refrain from initiating new proceedings.”

• 17. The servicemen have been charged and indicted for committing a crime punishable under Part 3 of article 322 of the Criminal Code of the Russian Federation; i.e. committing an illegal crossing of the State border of the Russian Federation.

• 18. The proceedings concerning the offences for which the servicemen are indicted are currently before the Russian criminal court. The servicemen have appeared before the court and the matter was [Page 582] adjourned. The proceedings are still pending. I do not think an international court or tribunal can accede to a request to suspend proceedings. This would be tantamount to interfering in the judicial process of a State and its domestic court. The judiciary of a State is an independent institution in accordance with the separation of powers. Only a superior court or director of public prosecutions can order the suspension of proceedings in most States. International tribunals and courts are not superior to domestic courts and international law is not superior to municipal or domestic law. I accept the view that the legal system governed by international law is not superior to the legal system governed by municipal law because each system or order is superior in its own sphere (G. Fitzmaurice, “The General Principles of International Law”, 92 H R 1957 II pp. 5, 70-80; Borchand, “The Relations between International Law and Municipal Law”, 27 Virginia Law Review 1940, p. 137).

• 19. I agree with the request to release the vessels. They are warships and a warship cannot be arrested and detained (see “ARA Libertad” (Argentina v. Ghana), Provisional Measures, Order of 15 December 2012, ITLOS Reports 2012, p. 332). A warship has immunity under article 32 of the Convention. I would like to add that the vessels, though mentioned in the indictments, are not designated or detained as exhibits or corpus delicti in the domestic judicial proceedings.

• 20. The Russian Federation maintains in its Memorandum that the incident of 25 November concerned “military activities” and, as such, based on the declarations of both Parties, 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 by government vessels and aircraft. Ukraine contends that the dispute does not concern military activities but rather law enforcement activities and that the declarations do not exclude the present dispute from the jurisdiction of the Annex VII arbitral tribunal.

• 21. The Tribunal found that, based on the facts before it, “such a dispute is not military in nature”. Whether this is conclusive is an issue for the Annex VII arbitral tribunal. I find it difficult to concur with a definitive finding in these proceedings because the Russian Federation did not provide any substantial evidence, documentary or otherwise, to support its contention. It could have been law enforcement or military in nature. At this stage I think it could be both military and law enforcement, but in the light of the evidence before the Tribunal, it seems to me that the events of 25 November reveal a law enforcement exercise.