On the 16 April 2019, Ukraine submitted a request to the International Tribunal for the Law of the Sea (ITLOS) for the prescription of provisional measures under UNCLOS, Article 290(5) in a dispute between Ukraine and the Russian Federation concerning the immunity of three Ukrainian naval vessels and the twenty-four servicemen on board.
Category Archives: Jurisprudence
ITLOS: Case concerning the detention of three Ukrainian naval vessels (Ukraine v. Russian Federation), Provisional Measures
On the 10 April 2019, the International Tribunal for the Law of the Sea (ITLOS) delivered its Judgment in The M/V “Norstar” Case (Panama v. Italy). The Tribunal found that Italy had violated UNCLOS, Article 87(1) (by 15 votes to 7), that UNCLOS, Article 87(2) was not applicable to the case (unanimously), and that Italy did not violate UNCLOS, Article 300 (20 votes to 2). ITLOS decided to award Panama compensation (with interest) for the loss of the M/V “Norstar” (15 votes to 7).
For more information, see the Judgement and furthermore the case page for numerous Declarations, Separation Opinions and a Joint Dissenting Opinion. As previously reported, incidental proceedings occurred in respect of Preliminary Objections.
An incident between Ukrainian and Russian governmental vessels occurred in the vicinity of the entrance to the Kerch Strait, 25 November 2018, of which the facts are disputed.
In a letter (2) dated 27 November 2018, Ukraine informed the Arbitral Tribunal in the Dispute Concerning Coastal State Rights in the Black Sea, Sea of Azov, and Kerch Strait (Ukraine v. the Russian Federation) (previously reported) about the incident, on the basis it aggravated the parties’ dispute. Ukraine also filed its response to Russia’s jurisdictional objections.
On the 29 November 2018 an inter-State application was lodged by Ukraine before the European Court of Human Rights (ECtHR) under Article 33 of the European Convention on Human Rights, Application no. 55855/18, Ukraine v. Russia (VIII). The ECtHR put factual questions to the Russian Government. The Russian Justice Ministry responded, but objected to the Ukrainian application. On the 4 December 2018 the ECtHR, under Rule 39 of the Rules of Court, indicated interim measures to the Russian Government concerning medical treatment for the captive Ukrainian naval personnel.
ICJ: Judgment in the case concerning Obligation to Negotiate Access to the Pacific Ocean (Bolivia v. Chile) delivered
The International Court of Justice delivered its Judgment in the case concerning Obligation to Negotiate Access to the Pacific Ocean (Bolivia v. Chile). In its Judgment, the Court finds that Chile did not undertake a legal obligation to negotiate a sovereign access to the Pacific Ocean for Bolivia. The Court noted that “the statement by Bolivia, when signing UNCLOS, that referred to “negotiations on the restoration to Bolivia of its own sovereign outlet to the Pacific Ocean” did not imply the allegation of the existence of any obligation for Chile in that regard” and that “acquiescence cannot be considered a legal basis of an obligation to negotiate Bolivia’s sovereign access to the sea”. The full text of the Judgment is available here.
PCA: Dispute Concerning Coastal State Rights in the Black Sea, Sea of Azov, and Kerch Strait (bifurcation of proceedings)
On 20 August 2018, in respect of the Dispute Concerning Coastal State Rights in the Black Sea, Sea of Azov, and Kerch Strait (Ukraine v. the Russian Federation), the Arbitral Tribunal unanimously adopted Procedural Order No. 3 deciding that “the Preliminary Objections of the Russian Federation shall be addressed in a preliminary phase of these proceedings”. Procedural Order No. 4, adopted 27 August 2018, established a timetable for the Parties’ further written pleadings on jurisdiction.
For further information see Procedural Order No. 3, Procedural Order No. 4 and the Statement of the MFA of Ukraine. The US State Department and the Delegation of the European Union to Ukraine have also recently commented on the situation vis-a-vis the Kerch Strait.
The public hearings in the M/V “Norstar” Case (Panama v. Italy) are scheduled to occur 10-15 September 2018, at the International Tribunal for the Law of the Sea (Hamburg, Germany). Members of the general public are requested to register in advance with the Press Office (email@example.com). A live broadcast will also be available (10 a.m. (CET), 10 September 2018).
For more information and the schedule see the ITLOS press release.
The Court of Justice of the European Union (CJEU) has published (11 July 2018) its judgment on Case C-15/17 concerning an oil discharge in the EEZ of Finland by the bulk carrier Bosphorus Queen that took place in 2011. In its decision, the CJEU interpreted the meaning of the expressions “clear objective evidence” and “coastline or related interests” as used in Article 220(6) of the UNCLOS and Article 7(2) of the EC Directive 2005/35 (as amended by EC Directive 2009/123). The CJEU also held that the assessment of a violation, as defined by said articles, takes into consideration:
– the cumulative nature of the damage on several or all of those resources and related interests and the difference in sensitivity of the coastal State with regard to damage to its various resources and related interests;
– the foreseeable harmful consequences of discharge on those resources and related interests, not only on the basis of the available scientific data, but also with regard to the nature of the harmful substance(s) contained in the discharge concerned and the volume, direction, speed and the period of time over which the oil spill spreads
The judgment, as well as the opinion of the Advocate General (delivered on 28 February 2018), may be found here.