transitionary phase, just shortly after the initial setup of relevant US sanctions had
been introduced and before broader economic sanctions against Russia had been
intensified by the end of 2014.
3 The Ukraine Situation
3.1 Closure of Five Crimean Ports by Ukraine
Historically, the chief function of ports for coastal States is provision of easy access
to the oceans of the world, the availability of good harbours being a priceless
national asset that geographically disadvantaged (landlocked) countries do not
possess.
49 Consequently, coastal/port States will not surrender this important asset
easily. Additionally, although there is no general right of foreign-flagged vessels to
access ports, there is a reasonable presumption, based on longstanding shipping
practice, that maritime ports shall remain open to foreign-flagged vessels
50 unless
otherwise stated by the port authorities of the port in question. Indeed, an arbitrary
closure of a commercial port without any prior notification (or delayed information
relating to new entry conditions) would render coastal State internationally accountable, at least triggering political demands to establish transparency and (legal)
foreseeability on the matter.
It has also been argued that States are under a customary duty to facilitate
maritime traffic. Yet this duty does not exist in a broad form, particularly illustrated
by the absence of a right of entry to ports, also not generally accepted under the
WTO’s General Agreement on Trade in Services (GATS). In any case, freedom of
navigation as granted by Article 87 para. 1(a) UNCLOS, brought forward sometimes
to favour a customary duty of access to ports, does not apply to the internal waters of
port States and it is reduced to a right of innocent passage in the territorial sea (Art.
17 et seq. UNCLOS). In this context, Article 25 para. 2 UNCLOS states that “in the
case of ships proceeding to internal waters or a call at a port facility outside internal
waters, the coastal State also has the right to take the necessary steps to prevent any
breach of the conditions to which admission of those ships to internal waters or such
a call is subject.” Obviously, under public international law, Ukraine has identified
Article 25 para. 2 UNCLOS as a potential legal basis for its “Closure Directive” of
2014.
51 The provision is broadly drafted and gives the coastal/port State considerable scope for a wide variety of actions. However, UNCLOS is intentionally silent
on the issue of port closures. Ultimately, the convention does not seek to interfere
with the principle of State sovereignty. In particular, coastal/port States can of course
49 McDougal and Burke (1962).
50 See also Article 2 of the Statute on the International Regime of Maritime Ports, Dec. 9 1923,
25 LNTS 202.
51 Directive No. 255, see note 3.
Sanctions Compliance Risks in International Shipping: Closure of Five. . .
301
been introduced and before broader economic sanctions against Russia had been
intensified by the end of 2014.
3 The Ukraine Situation
3.1 Closure of Five Crimean Ports by Ukraine
Historically, the chief function of ports for coastal States is provision of easy access
to the oceans of the world, the availability of good harbours being a priceless
national asset that geographically disadvantaged (landlocked) countries do not
possess.
49 Consequently, coastal/port States will not surrender this important asset
easily. Additionally, although there is no general right of foreign-flagged vessels to
access ports, there is a reasonable presumption, based on longstanding shipping
practice, that maritime ports shall remain open to foreign-flagged vessels
50 unless
otherwise stated by the port authorities of the port in question. Indeed, an arbitrary
closure of a commercial port without any prior notification (or delayed information
relating to new entry conditions) would render coastal State internationally accountable, at least triggering political demands to establish transparency and (legal)
foreseeability on the matter.
It has also been argued that States are under a customary duty to facilitate
maritime traffic. Yet this duty does not exist in a broad form, particularly illustrated
by the absence of a right of entry to ports, also not generally accepted under the
WTO’s General Agreement on Trade in Services (GATS). In any case, freedom of
navigation as granted by Article 87 para. 1(a) UNCLOS, brought forward sometimes
to favour a customary duty of access to ports, does not apply to the internal waters of
port States and it is reduced to a right of innocent passage in the territorial sea (Art.
17 et seq. UNCLOS). In this context, Article 25 para. 2 UNCLOS states that “in the
case of ships proceeding to internal waters or a call at a port facility outside internal
waters, the coastal State also has the right to take the necessary steps to prevent any
breach of the conditions to which admission of those ships to internal waters or such
a call is subject.” Obviously, under public international law, Ukraine has identified
Article 25 para. 2 UNCLOS as a potential legal basis for its “Closure Directive” of
2014.
51 The provision is broadly drafted and gives the coastal/port State considerable scope for a wide variety of actions. However, UNCLOS is intentionally silent
on the issue of port closures. Ultimately, the convention does not seek to interfere
with the principle of State sovereignty. In particular, coastal/port States can of course
49 McDougal and Burke (1962).
50 See also Article 2 of the Statute on the International Regime of Maritime Ports, Dec. 9 1923,
25 LNTS 202.
51 Directive No. 255, see note 3.
Sanctions Compliance Risks in International Shipping: Closure of Five. . .
301