PARTNER AT BARRISTERS, JSC ILLYA NOVIKOV ON THE INTERNATIONAL TRIBUNAL FOR THE LAW OF THE SEA HEARING CASES INVOLVING UKRAINIAN SAILORS

Hearings regarding the Ukrainian sailors are taking place today at the International Tribunal for the Law of the Sea in Hamburg. The Ukrainian delegation is led by Deputy Minister of Foreign Affairs of Ukraine Olena Zerkal, according to “Ukrinform.”

She said that Marnie Chick and Jonathan Gimblett of the law firm Covington & Burling, Professor Jean-Murik Tuvénin, Secretary-General of The Hague Academy of International Law, and and Professor Alfred Soons, an arbitrator in maritime law tribunals.

Meanwhile, attorney Ilya Novikov is posting updates from the scene on Facebook.

He emphasized that today’s proceedings focus on Ukraine’s motion for provisional measures—the immediate release of the sailors and the ships.

During the hearing, Ms. Zerkal drew the court’s attention to the inconsistency of Russia’s position: in this case, the Russian Federation invokes the military action clause, while in domestic courts it denies that an armed conflict took place. Regarding the facts, Ukrainian representatives point out that Russian ships opened fire on the Ukrainian vessels just as they were heading out to the open sea. These actions were taken to defend their territorial waters.

“Russia stated in its memorandum to the court that the Ukrainian ships were attempting a ‘secret passage’ through the Kerch Strait. This is physically impossible and contradicts the same memorandum’s assertion that the Ukrainian ships were detected long before entering the strait. Russia also claims, in denying Ukraine’s right to peaceful passage, that three Ukrainian ships posed a threat to six Russian ships. The memorandum notes that the guns on the Ukrainian ships were uncovered and raised to a 45° angle. Ukraine points out that, on the contrary, the Ukrainian ships consistently declared and demonstrated—in a manner evident to the Russians—that they had no intention of using their weapons. “There was no justification whatsoever for the Russian ships to open fire in such a situation,” the attorney recounts.

Regarding the legal arguments, Ukraine provides a detailed analysis of the provisions of international law and precedents concerning the immunity of military vessels. The Russian Federation cannot prosecute or detain military sailors from another country on charges of border violation. Although the Russian Federation insists in its memorandum that the issue of Crimea’s sovereignty and its maritime border cannot be considered by the court, Ukraine insists that the court must take into account that, at the time the shelling began, the Ukrainian ships were within 12 miles of the Crimean coast. Ukrainian representatives remind the court that, in accordance with the principles of international law, even if a foreign military vessel violates the rules governing its presence in coastal waters, military force may be used only to compel it to leave, but not to detain it, Mr. Novikov added.