The Arbitral Tribunal (UNCLOS, Annex VII) in respect of the Dispute Concerning the Detention of Ukrainian Naval Vessels and Servicemen (Ukraine v. the Russian Federation), PCA Case No. 2019-28, issued its Award on Preliminary Objections of the Russian Federation on 27 June 2022. However, consistent with Article 28(6) of the Rules of Procedure, the Parties to the Dispute were given an opportunity to designate “confidential information that they request to be redacted” and so the Award was only publicly published on 11 July 2022. The Operative part of the Award (Para. 208) unanimously concluded:
For the reasons set out above, the Arbitral Tribunal
Article 298(1)(b) Objection
a. Finds that the events of 25 November 2018 until a point in time after the Ukrainian naval vessels left anchorage area No. 471 constitute “military activities” excluded from the jurisdiction of the Arbitral Tribunal in accordance with Article 298(1)(b) of the Convention;
b. Finds that the events following the arrest of the Ukrainian naval vessels do not constitute “military activities” excluded from the jurisdiction of the Arbitral Tribunal in accordance with Article 298(1)(b) of the Convention;
c. Decides that the determination of the precise point at which the events ceased to be “military activities” within the meaning of Article 298(1)(b) of the Convention shall be ruled upon in conjunction with the merits;
Article 288(1) Objection
d. Declares that the objection that UNCLOS does not provide for an applicable immunity does not possess an exclusively preliminary character;
e. Decides that the objection that UNCLOS does not provide for an applicable immunity shall be ruled upon in conjunction with the merits;
Article 290 and 296 Objection
f. Rejects the objection that the Arbitral Tribunal has no jurisdiction over alleged breaches of the ITLOS Provisional Measures Order;
Article 279 Objection
g. Declares that the objection that Article 279 of the Convention provides no basis for the Arbitral Tribunal to claim jurisdiction as to the alleged aggravation of the dispute does not possess an exclusively preliminary character;
h. Decides that the objection that Article 279 of the Convention provides no basis for the Arbitral Tribunal to claim jurisdiction as to the alleged aggravation of the dispute shall be ruled upon in conjunction with the merits;
Article 283 Objection
i. Rejects the objection that Ukraine has not complied with Article 283 of the Convention;
Further Proceedings
j. Decides that it has jurisdiction over the dispute between the Parties, subject to the jurisdictional limitations set out above;
k. Decides that the proceedings on the merits are hereby resumed, and that the Russian Federation shall submit a Counter-Memorial no later than six months from the date of this Award;
Costs
l. Decides that the question of costs shall be ruled upon in conjunction with the merits.
Dispute Concerning the Detention of Ukrainian Naval Vessels and Servicemen (Ukraine v. the Russian Federation), Award on Preliminary Objections of the Russian Federation [208]
For further information see previous reports.
De Maribus 