Boris Babin, Legal Advisor at BARRISTERS, LLC: "In Anticipation of the Tribunal: Legal Aspects of the Lawsuit Against Russia"

Analysis of Ukraine’s Claim Filed with the International Tribunal for the Law of the Sea Regarding Russia’s Seizure of Ukrainian Warships and Their Crews (Ukrainian)

In mid-April, the Ukrainian Ministry of Foreign Affairs officially announced that Ukraine had initiated proceedings before the International Tribunal for the Law of the Sea. The case concerns violations by the Russian Federation (RF) of the 1982 United Nations Convention on the Law of the Sea (UNCLOS) during and after the Russian seizure of Ukrainian Navy ships on November 25, 2018, in the waters of the Black Sea. In addition to the main complaint filed on March 31, Ukraine submitted a request on April 16 for the Tribunal to order provisional measures in this case, which will be considered in Hamburg on May 10.

Unlike the “major” maritime claim against the Russian Federation regarding its violations of UNCLOS in the context of the occupation of Crimea—which our state spent a long time preparing and filing, based on the confidentiality of the materials— in 2016–2017 to a specially constituted arbitration panel at the Tribunal, the materials of the “Kerch” case are not confidential; the majority and most significant portion of them are freely available. In particular, documents outlining Ukraine’s position are posted on the Tribunal’s website, and the corresponding notes from the Russian Federation, which set forth the Russian side’s arguments, are already available there as well. The bilateral negotiation process that preceded the filing of the “Kerch” claim with the Tribunal is reflected in the published formal statements by the foreign ministries of both states.

Immediately after the Foreign Ministries’ April announcements regarding the filing of the claim with the Tribunal, I strongly criticized this move, as the timing led many to suggest that the proceedings in Hamburg were tied to the presidential election campaign in Ukraine. After all, this claim could clearly have been filed earlier; at the same time, regarding a number of other abductions and detentions of Ukrainian vessels by the Russians in the Azov and Black Seas—where the Tribunal’s role was evident— our Ministry of Foreign Affairs took absolutely no action under international law in 2018 and 2019.

But after reviewing the materials of Ukraine’s “Kerch” case (which, in keeping with the Ministry of Foreign Affairs’ long-standing tradition, were of course not discussed with any of the experts known to me—neither theorists nor practitioners), it became clear that the situation is even more complex than I had expected.

I hesitated for a long time about whether to write about the legal aspects of this process, so as not to “give hints” to the Russians. But it turned out that, unfortunately, it is the other side that needs hints, although, given the composition of our delegation in Hamburg (Presidential Decree No. 182/2019), there isn’t really anyone there to give them any. After all, the actual level of expertise in maritime law among the representatives of the USSR Ministry of Foreign Affairs selected by the President is, unfortunately, well known, while the Navy commanders included in the delegation have, after all, a different primary role in life than analyzing dozens of treaties and hundreds of precedents and doctrinal sources.

However, it is possible that American lawyers from one of the USSR Ministry of Foreign Affairs’ favorite law firms—or a Russian political lawyer (or rather, a politician)—will be brought in for the hearings; they have the expertise—so no advice from them would be superfluous.

Why am I convinced that guidance is needed? Because Ukraine’s key positions should have been reflected in its complaint of March 31 and in its request for provisional measures of April 16. If something is missing there—and even if it appears at the May 10 hearings—it will obviously not be quite the same. But better late than never. Furthermore, on May 7, the Russian Federation issued a note announcing its refusal to participate in the May 10 hearings, while reserving the right to submit comments to the Tribunal on this case; so the Russian Federation’s position ahead of the hearings will certainly not change, no matter what I write here (or what the Ukrainian delegation says on May 10). On the other hand, it will now be difficult to publicly demand additional explanations from the Russian Federation before the Tribunal, and such demands may prove necessary.

Now to the substance. The Russians’ main objection in this case is that it allegedly does not fall under the Tribunal’s jurisdiction as a whole, since, upon ratifying UNCLOS, the Russian Federation, by Law No. 30 of 1997-FZ, referred to Article 298 of this Convention and stated that it would not recognize the Tribunal’s jurisdiction, inter alia, over disputes concerning “military activities, including military activities of state vessels and aircraft.” Therefore, the Russian Federation has now argued in great detail that the events of November 25, 2018, constitute precisely “military activities.” The second most significant point is that Ukraine allegedly evaded peaceful means of dispute resolution, as it held only one round of consultations with the Russians in The Hague in April.

The rest of the Russian Federation’s arguments are of secondary importance and, in my opinion, do not pose any fundamental risks to us. However, it would have been easiest for Ukraine to avoid precisely these issues when drafting the documents for the Tribunal. After all, we are accused of a lack of urgency in the case (since Ukraine did indeed delay for several months not only in filing the application but also in launching the negotiation process), the near-complete repetition of the claims in the application and the requests for provisional measures, as well as a certain overlap between these claims and Ukraine’s position before the European Court of Human Rights (where we are also pursuing a case against the Russian Federation regarding the events of November 25).

Returning to the issue of the “military activities” alleged by the Russian Federation in the Kerch Strait both on November 25, 2018, and prior to that date, the following should be noted (or pointed out?).

First, the Russian Federation’s reference to the fact that Ukraine itself acceded to UNCLOS with a similar reservation in Law No. 728-XIV of 1999 means practically nothing for the purpose of establishing jurisdiction over the case—after all, it is not the Russian Federation that is challenging Ukraine’s actions in the Kerch Strait, but rather the opposite. Although, of course, six months after the incident (and five years into the war), the Ministry of Foreign Affairs of the Ukrainian SSR could have thought to ask parliament to make the necessary amendments to the ratification law and withdraw the reservation. After all, when Ukraine demands enforcement of the Tribunal’s decision in our favor, such a reservation would, of course, be politically detrimental to us.

Second, it is, of course, of no fundamental significance that the detained Ukrainian Navy vessels are unquestionably military vessels within the meaning of Article 29 of UNCLOS. After all, once again, for actions to be classified as “military activities,” it is the behavior of the violating state—not Ukraine’s—that matters, since it was not the Russian Federation that brought the case before the Tribunal regarding the actions of the Ukrainian Navy, but rather the opposite. Therefore, all of the Russian Federation’s arguments about “rampant Ukrainian militarism” in the Azov and Black Seas are more rhetorical than substantively significant. But all of this, of course, should be brought to the Tribunal’s attention.

Third, the Russian Federation’s extensive argumentation regarding the classification of its own forces’ and assets’ actions specifically as “military activity,” with extensive reference to Ukrainian documents, statements, and appeals characterizing the events of November 25 as an act of armed aggression and military operations—is refuted by the Russian Federation itself, as it categorically objects in its own submission to the Tribunal to the combination of the principles of Geneva international humanitarian law and the law of the sea in this case.

This argument by Russian lawyers is easy to understand, since the Russian Federation refused to recognize the captured sailors as prisoners of war; so this refusal in the Moscow court must somehow be reconciled with the accounts in Hamburg regarding the “military activities” of Russian ships during the capture of those very same “non-prisoner” sailors. But the issues of aggression, conflict, and Ukraine’s statements to international organizations—which the Russian Federation suddenly brought up—fall precisely within the scope of humanitarian law, not the law of the sea. In other words, either we consistently apply the principles of international law and recognize the sailors as prisoners of war, or we remain consistent in this distinction. This point could also be raised before the Tribunal.

However, fourthly—and this is even more important—the actions of the Russians on November 25, as paradoxical as it may sound, do not fall under the category of “military activity” based on the actor. After all, two of the three Ukrainian Navy ships were unlawfully detained by vessels of the Russian FSB Border Guard Service, not by ships of the Russian Navy’s Black Sea Fleet or other units of the Russian armed forces. The Russian Federation’s current claims that a Black Sea Fleet vessel was “somewhere nearby” are interesting but have no bearing on the matter—because there were over a hundred other vessels in the vicinity that did not affect the classification of the events.

It is important to understand here that, specifically under UNCLOS—based on Articles 29 and 298—military ships are defined exclusively as vessels of the armed forces of the relevant state. If we consider the current legislation of the Russian Federation—Parts 4–7 of Article 1 of Law No. 61-FZ of 1996 “On Defense,” and Articles 11.1 and 14 of Law No. 40-FZ of 1995 “On the FSB”—it is evident that all structures of the FSB of the Russian Federation, including the Border Guard Service and its maritime forces, are not military forces but rather special law enforcement agencies, which in the Russian Federation are not even classified as “military formations.”

Under Russian law, the FSB forces of the Russian Federation may only carry out specific “tasks in the field of defense and exclusively in accordance with the Plan for the Deployment of the Armed Forces of the Russian Federation,” and there is almost certainly no evidence that the FSB’s naval forces were acting in accordance with this Plan on November 25 near Kerch, the Russian Federation almost certainly did not provide to Hamburg (because, in reality, such actions could most likely not have been foreseen by any Plan set forth on paper—as they were knowingly unlawful).

The issue of law enforcement activities (which is the core function of the border guard agencies of any state) as “law enforcement activities” UNCLOS clearly distinguishes in Article 298 from military activities, and the Russian Federation made no reservations regarding “law enforcement” activities when it acceded to UNCLOS.

And indeed—it would have been nonsensical in terms of monitoring the Russian Federation’s compliance with UNCLOS—since it is obvious that nearly all merchant vessels (which the Convention primarily protects) are detained at sea by the very same FSB vessels that seized the Navy ships. A prime example is the FSB vessels “Ametist” and “Izumrud,” which “made their mark” not only on November 25 in Kerch but also earlier, as the kidnappers of Ukrainian fishermen —that is, in a case that would have served as a “test case” before the Tribunal (well, presumably if we had a different Ministry of Foreign Affairs in Ukraine).

On the other hand, no one can deny either the status of an interstate armed conflict between Ukraine and the Russian Federation—which has been ongoing since 2014 and extends to the waters where the events of November 25 took place— since Ukraine’s relevant internal waters and territorial sea are occupied by the Russian Federation, and the adjacent and exclusive economic zones are effectively controlled by the Russians. No one can deny the fact of the Russian armed attack on Ukrainian Navy ships on November 25, carried out with the intent of senior (or high-ranking) officials of the Russian Federation, nor the fact of aggression on the part of the Russian Federation, nor the significance of these events as components of an interstate conflict, nor the applicability of the relevant Hague and Geneva Conventions to them.

Moreover, the fact that the sailors of the two Ukrainian Navy ships were captured not by servicemen of the Russian Armed Forces, but by servicemen of the FSB’s Internal Troops acting as a law enforcement (punitive) agency—in no way deprives them of their status as prisoners of war. This is because, in the context of a conflict, this status is determined not by the role of the captor, but by the role of the captive as an indisputable combatant. For example, in a “mirror-image” scenario where servicemen of the Ukrainian Armed Forces themselves had captured a Russian reconnaissance and sabotage group composed of FSB Internal Troops personnel in the Kalanchak district —I would have serious doubts regarding the application of the Geneva Conventions on prisoners of war to these specific captured Russians (Ukraine did not recognize them as such, applied criminal procedural sanctions, and the Russian Federation did not protest against this course of events).

I repeat that if the Russian Federation wishes to apply international humanitarian law and international maritime law in this manner to the events of November 25—we can agree with that application. However, the opposite is true: we consider both UNCLOS (since, under its definition, there is no “military activity” in this situation) and the Geneva Conventions (since there is an interstate conflict, an armed attack, and aggression) to be applicable to the sailors. The Russian Federation, I repeat, asserts that “military activity” exists, but that there is no interstate (armed) conflict.

Of course, it seems rather strange that Ukraine is simultaneously applying both the “law of peace” (lawsuits before the Tribunal and the European Court) and the “law of war” regarding prisoners of war against the Russian Federation. However, on the one hand, this is consistent with the principle that “all lawful means are applicable in the fight against the enemy.” On the other hand, at the very least, UNCLOS is consistent with the international doctrine of the law of naval warfare (since, following its adoption, the specific San Remo Rules were developed, which address this issue).

However, even this is not currently the main argument against the Russian Federation’s position. Furthermore, the above does not apply to one of the Navy vessels, which was seized by a helicopter belonging specifically to the Russian Federation’s Black Sea Fleet. Another factor may be key. After all, following their seizure, the Navy vessels are being unlawfully detained by the Russians in Kerch, within the waters of the Kerch Commercial Seaport (near the Genoese Pier) that have been seized by the Russians; so it is important to understand not only the Russian Federation’s actions in seizing the ships but also its activities in unlawfully detaining them. This is because the dispute before the Tribunal is, first and foremost, a discussion about the ships themselves, not about prisoners of war or human rights (as the reader of the Ukrainian complaint might, unfortunately, assume).

This raises a simple question: how did the Russians document the presence of these ships in Kerch? At the very least, they were required to do so as part of the “criminal cases” being pursued against the crews of these vessels; therefore, there must be corresponding rulings by investigators or prosecutors. And these are decisions made by the Russian Federation’s civilian authorities—whether under occupation or otherwise—not by the Russian military authorities. Therefore, the detention of Ukrainian Navy ships in Kerch for half a year is not and cannot be considered a military activity. Some action on this matter would have had to be approved by the Russian “harbor master’s office” of the Kerch port, and some by Russian border guards (who, again, are not considered military personnel under UNCLOS).

Over the course of six months, all of this could have been uncovered, especially since Ukraine made the—to say the least—interesting political decision to base its position not only on data from the Navy but also on the position of one of the Russian lawyers representing our captured sailors. Overall, it is very sad (though no longer surprising) that the Russian Federation’s obvious and predictable position before the Tribunal on the issue of “military activity” (which is precisely the position it took) was in no way anticipated by the arguments presented by Ukraine in the documents submitted to the Tribunal.

The situation regarding the sailors is even simpler; it is described in much greater detail in the documents submitted by Ukraine (albeit with some emotional asides that I find somewhat puzzling). Once again, the sailors are being detained by civilian authorities of the Russian Federation, and such a violation of UNCLOS is not and cannot be considered “military activity.” I repeat that the documents lack the specificity that the Tribunal favors (coordinates, the surnames and positions of FSB officers, and even the numbers of detention center cells—all of this is clearly missing from the body of the claim).

In addition to the disproportionately little attention paid in the application filed with the Tribunal to the issue of Russia’s detention of the seized vessels (compared to their crews), the position taken therein by the lawyers hired by the Ministry of Foreign Affairs provides many other grounds for criticism, ranging from the extremely limited use of doctrinal sources to the duplication of claims in two documents—a tactic the Russians have already “picked up on.” However, there will be time to address this after the May 10 hearings. I will limit myself to just one glaring ambiguity in the wording used by the authors and signatories of the April 16 request to the Tribunal (I hope this is merely a lapse in attention to terminology and not a violation of Part 2 of Article 110 of the Criminal Code of Ukraine).

Paragraph “a” of Article 22 of the document contains a demand that the Russian Federation release the Ukrainian naval vessels Berdyansk, Nikopol, and Yani-Kapu and “return them to Ukraine.” Let me remind you that all three seized vessels have been in the port of Kerch, within Ukraine’s internal waters, since November 26, 2018, and remain there to this day. Of course, the quoted passage could be interpreted as “return them to Ukraine”—but in general, it was, at the very least, unwise to allow such ambiguous phrasing in an English-language document of this level. Further on in the text, a much more appropriate phrase is used as an example: “return them to the custody of Ukraine.”

It is clear that such unfortunate oversights arise when documents of this level are drafted and reviewed by an extremely narrow circle of individuals, who, moreover, are not always well-versed in maritime law (or in modern international law in general).

Therefore, as the main recommendation to the new government for rectifying the situation regarding the lawsuits against the Russian Federation (which are currently effectively overseen by a single official from the leadership of the Ministry of Foreign Affairs of the Ukrainian SSR and drafted by a single selected foreign law firm), and to minimize the associated risks, it is worth proposing (of course, in addition to the obvious personnel changes within the Ministry of Foreign Affairs itself) to diversify the contracts for legal services, to involve several law firms simultaneously in these proceedings, and to engage more leading Western scholars with expertise in the specific areas covered by the claims. We must acknowledge that Ukraine does not have a sufficient number of such narrowly specialized experts, and that it is unlikely they will emerge in the near future. And the proceedings against the Russian Federation will not wait.

I advise the attorneys representing our prisoners of war to carefully examine the documents submitted by the Russian Federation to the Tribunal, in which the Russians spend many pages explaining why, in their opinion, the events of November 25 constitute military activity, while at the same time making a perfunctory, half-hearted claim that the sailors are not prisoners of war after all. Presumably, this is simply because the Russians really want it that way.

Under any circumstances, even if my worst fears are realized (and I’m a pessimist—so they’ll likely be realized only partially), the proceedings before the Tribunal are landmark. After all, for the first time since 2014, the Russian Federation is forced—while denying the existence of a dispute over Crimea’s status—to essentially engage in this dispute. This is because, despite Ukraine’s arguments before the Tribunal that this dispute is not related to the peninsula’s status (and these arguments are, in fact, procedurally sound)—it is impossible to examine the legality of the coastal state’s actions on the merits if we do not know whether it has rights to that coastline. Incidentally, I fully agree with this argument, which the Russian Federation put forward—almost hysterically—in its own submission to the Tribunal. Therefore, if the case proceeds beyond the hearing on provisional measures in May, we are in for many more interesting developments.