(2019) 33 A&NZ Mar LJ 19
CASE NOTE: DETENTION OF THREE UKRAINIAN NAVAL VESSELS (UKRAINE V
RUSSIAN FEDERATION) (PROVISIONAL MEASURES) (INTERNATIONAL
TRIBUNAL FOR THE LAW OF THE SEA, CASE NO 26, 25 MAY 2019)
The International Tribunal for the Law of the Sea (ITLOS or the Tribunal) was established pursuant to the United
Nations Convention for the Law of the Sea (UNCLOS) after the Convention came into force in 1994.1 Annex VI
established the actual Tribunal2 and, as The Free and Hanseatic City of Hamburg agreed to pay for the cost of the
land and premises, so the negotiating par ties agreed that ITLOS have its seat and headquarters t here.3 The
composition of the Tribunal was to b e of 21 judges with recognized competence in law of the sea with the ability for
the parties to appoint an ad hoc judge each if one of their nationality was not alread y on the Tribunal.4
One of the better things fro m UNCLOS was t he establishment of I TLOS and one of the better things from ITLOS is
that it is a convenie nt international Tribunal to which a flag State may apply for the prompt release of its vessel that
has been arrested by a foreign State.5
Over the 22 years of its decision making the Tribunal has decided 26 cases and it has one pending, and of those 27
cases 18 are related to shipping of which most are for prompt release of the vessel. This Case Note is concerned with
the most recent prompt release decision from ITLOS (as at June 2019), namely Detention o f Three Ukrainia n Naval
Vessels (Ukra ine v Russian Feder ation) (Provisional Measur es).6
In 2014 the Ukraine was invaded by Russia, initially under the guise of militia, and there has been armed conflict
ever since, mainly on the land but also in the air and at sea. The Russian Federation was determined to have control
of the Crimean Peninsula as it has the port of Sevastopol, which is Russia’s only warm water port on the European
side of the country.7 Wikipedia put the situation succinctly as:
The location and navigability of the city’s harbours have made Sevastopol a strategically important port and naval base
throughout h istory. The city has been a home to the Russian Black Sea Fleet, which is why it was considered as a
separate city in Crimea of significant military importance and was once operated by the Soviet Union as a closed city.8
The Crimean Peninsula intrudes into the Black Sea and the Kersch Strait, where these events occurred , joins the
main body of t he Black Sea with the Sea of Azov. On 25 November 2018 three Ukrainian naval vessels, two patrol
boats and an auxiliary support vessel, set out to transit from the Black Sea through the Kersch Strait to a Ukrainian
port in the Sea of Azov. There should have been no issue about that as, despite the military tensions, Ukrainian naval
vessels did this from time to time with the last passage being two months before.
On this occasion, however, the Russian Coast Guard challenged them and said the Kersch Strait was closed. The
Ukrainian vessels anc hored and waited for eight hours and then set sail back for home. The Russians ordered them
* Dr Michael White OAM QC, Adjunct Professor in maritime law in the TC Beirne School of Law, University of Queensland.
1  ATS 31.
2 UNCLOS annex VI, art 1(1).
3 ‘The Tribunal: History’, ITLOS (Web Page, 2019) .
4 UNCLOS annex VI, arts 2, 17.
5 UNCLOS Article 290 provides the Tribunal may order Provisional Measures and Article 292 provides that one of those orders can be the
prompt release of the vessels provided the alleged offending party provide a reasonable bond or other financial security.
6 (International Tribunal for the Law of the Sea, Case No 26, 25 May 2019) (‘Three Ukrainian Naval Vessels’).
7 ‘Russian Military Intervention in Ukraine (2014–Present)’, Wikipedia (Web Page, 2019)
8 ‘Sevastopol’, Wikipedia (Web Page, 2019) .