Ukraine’s Crimea shipping ban now in force - 17/07/2014

The recent decree covers the ports of Sevastopol, pictured, Evpatoria, Kerch, Feodosia and Yalta.

UKRAINE’s decision to forbid international shipping from entering ports on the breakaway Crimea peninsula – which comes into force today — is legally well-founded and anybody flouting the ban could find it difficult trading anywhere else, according to legal experts.

The recent decree — which covers the ports of Evpatoria, Kerch, Sevastopol, Feodosia and Yalta— will be difficult physically to enforce on territory that is in effect under the control of Russia.

However, Ukraine remains the legitimate government in Crimea and is recognised as such by the UN, of which the International Maritime Organization is part.

As such, it is entitled to ask other IMO member states to take action against vessels calling in their ports.

Entry into a Crimean port is already a breach of Ukrainian law, according to Odessa-based lawyer Arthur Nitsevych of the law firm Interlegal, who is also president of the local chapter of the Nautical Institute.

A Ukrainian government order from late April makes it a criminal offence to enter these ports, which were closed as part of a general closure of border checkpoints.

“Isolation of the Crimean ports from the international transport market is progressing,” he said in an email to Lloyd’s List. “We may confirm that shipowners themselves pragmatically refuse port calls to the annexed Crimea.”

On that point, he is right, but only up to a point. Data from Lloyd’s List Intelligence suggests that numbers are sharply down, with a drop for the ports concerned from 1,098 calls by vessels of all kinds in the first six months of 2013 to 758 in the first six months of 2014.

The latest move by the Ukrainian authorities should now leave nobody in any doubt what the legal situation is, Mr Nitsevych added.

The ban follows a statement circulated via the IMO in May, in which Ukraine additionally warned that it was not in a position to uphold its obligations on safety and security in the region.

A partner in one of the leading London shipping law firms spoke to Lloyd’s List on condition of anonymity, saying that the issue was sensitive and that he wished to avoid any potential offence to Russian clients.

In general, international law accords port states the power to close ports which form part of their sovereign territory. There is no “right of innocent call” analogous to the right of innocent passage.

“This is complicated stuff, because you have got a situation where the Crimea is Ukraine sovereign territory, despite the Russians’ daft plebiscite and annexation,” he said. “None of that has been recognised by the UN and therefore not by the IMO.

“From an international law perspective, these are Ukrainian ports and therefore the Ukrainian government is perfectly entitled to close them, just like the UK could close the port of Southampton if we had a security issue or whatever.”

Moreover, the basis of saying that it cannot uphold safety and security obligations is also valid, as it does not have de facto control.

Any Russian state assurances that everything is fine is worthless, because while it has de facto control, legally it does not have de jure authority and its annexation is unlawful.

If a UK ship were to ask the UK government whether it should make a call in Crimea, it would almost certainly be told to observe the Ukraine’s ruling.

“A shipping company would deal with that by saying to the charterer, ‘We can’t go in’, and the charterer would have to give alternative orders, or it might be a force majeure.”

In practice, Moscow regards Crimea as part of the Russian Federation and is likely to permit Russian flag shipping to call. Other countries — North Korea is a possible example — may also not feel bound by UN policy.

There is not much that Ukraine can do in the first instance. But if such vessels subsequently call in Ukraine, then they will be subject to arrest and open to legal proceedings against the crew and owner for breach of Ukrainian law.

If the vessel calls at a third country, Ukraine will have the option of asking the port state to arrest the ship on Ukraine’s behalf while a claim is brought against it.

So while it will be possible to flout the closure, there could be negative consequences from doing so.

“Owners would have to say to all potential future charters, ‘We can never go to Ukraine’, which of course reduces the value of the ship, because you want to be able to trade as widely as you can.”

The likelihood, then, is that the ban will be effective and little international shipping will call at the closed ports.

If you still fancy your chances of breaching the ruling without getting noticed, be aware that activist citizens — presumably pro-Kiev residents in Crimea with access to AIS tracking — are already monitoring vessels calls and publishing the names of ships that arrive in Crimean ports on the internet, in English. The allegations can be Googled in seconds.

A briefing from Mr Nitsevych’s firm Interlegal has highlighted the parallels with the internationally unrecognised Turkish Republic of Northern Cyprus, now served largely by Turkish shipping companies in effect running a shuttle service to a captive market.

In 16/07/2014