still take sovereign decisions on how to protect themselves from perceived external
threats.
52 Thus, any countermeasure could also include closing domestic ports, be it
temporarily or even permanently.
Nevertheless, a response to external threats and its interpretation in relation to
UNCLOS still depends on the exact circumstances. As ITLOS has implicitly
observed earlier, any such response would be subject to general principles of
international law, such as necessity and proportionality.
53 The Ukrainian government declared the closure of the Crimean ports on the basis that the affected ports
were still sovereign Ukrainian territory. However, as Ukraine no longer exercises
effective control over that territory since March 2014, it is unable to guarantee the
navigational safety for foreign-flagged vessels around and in those ports. The actions
of Ukraine would then have to be construed in the light of whether the actions taken
in the circumstances were functionally “necessary” and legally “proportionate”.
The Ukrainian government notified the International Maritime Organization
(IMO) in May 2014 that the closure of Crimean ports to international shipping
was due to navigational risks in the area. Particularly, Ukraine argued that its port
authorities could not ensure navigational safety anymore around the ports of Crimea.
54 Indeed, if the “official” closing of ports was not legally possible for Ukraine
in such an extraordinary situation then the Ukrainian government could, at least in
theory, be exposed to the risk of claims based on regulatory negligence in upholding
the safety of navigation even though nothing actually suggested that the ports were
in any way physically unsafe. Moreover, there is some existent State practice on the
closure of ports, for example, Cyprus also closed its ports when Turkey annexed
Northern Cyprus.
55 Additionally, the sanctions issued by the EU and the US could
also be seen as an endorsement of the Ukrainian move to close the related Crimean
ports.
52 See Rothwell (2015), p. 153.
53 M/V Saiga (No. 2) Case, International Tribunal for the Law of the Sea, implied at paras. 133 et
seq. and, more explicitly, at para. 155: “Although the Convention does not contain express
provisions on the use of force in the arrest of ships, international law, which is applicable by virtue
of article 293 of the Convention, requires that the use of force must be avoided as far as possible
and, where force is unavoidable, it must not go beyond what is reasonable and necessary in the
circumstances.”
54 See http://worldmaritimenews.com/archives/129526/ukraine-to-close-crimean-ports/.
55 In 1974, following the Turkish occupation of northern parts of the Republic of Cyprus, the Cyprus
Council of Ministers closed three affected ports (Famagusta, Kyrenia and Karavostasi, occupied by
Turkey), see Cyprus Port Authority Law 38/73. Until today, the said restrictions are still in force
with severe administrative and financial penalties being applied by Cyprus in case of any breach
thereto.
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H. Jessen
threats.
52 Thus, any countermeasure could also include closing domestic ports, be it
temporarily or even permanently.
Nevertheless, a response to external threats and its interpretation in relation to
UNCLOS still depends on the exact circumstances. As ITLOS has implicitly
observed earlier, any such response would be subject to general principles of
international law, such as necessity and proportionality.
53 The Ukrainian government declared the closure of the Crimean ports on the basis that the affected ports
were still sovereign Ukrainian territory. However, as Ukraine no longer exercises
effective control over that territory since March 2014, it is unable to guarantee the
navigational safety for foreign-flagged vessels around and in those ports. The actions
of Ukraine would then have to be construed in the light of whether the actions taken
in the circumstances were functionally “necessary” and legally “proportionate”.
The Ukrainian government notified the International Maritime Organization
(IMO) in May 2014 that the closure of Crimean ports to international shipping
was due to navigational risks in the area. Particularly, Ukraine argued that its port
authorities could not ensure navigational safety anymore around the ports of Crimea.
54 Indeed, if the “official” closing of ports was not legally possible for Ukraine
in such an extraordinary situation then the Ukrainian government could, at least in
theory, be exposed to the risk of claims based on regulatory negligence in upholding
the safety of navigation even though nothing actually suggested that the ports were
in any way physically unsafe. Moreover, there is some existent State practice on the
closure of ports, for example, Cyprus also closed its ports when Turkey annexed
Northern Cyprus.
55 Additionally, the sanctions issued by the EU and the US could
also be seen as an endorsement of the Ukrainian move to close the related Crimean
ports.
52 See Rothwell (2015), p. 153.
53 M/V Saiga (No. 2) Case, International Tribunal for the Law of the Sea, implied at paras. 133 et
seq. and, more explicitly, at para. 155: “Although the Convention does not contain express
provisions on the use of force in the arrest of ships, international law, which is applicable by virtue
of article 293 of the Convention, requires that the use of force must be avoided as far as possible
and, where force is unavoidable, it must not go beyond what is reasonable and necessary in the
circumstances.”
54 See http://worldmaritimenews.com/archives/129526/ukraine-to-close-crimean-ports/.
55 In 1974, following the Turkish occupation of northern parts of the Republic of Cyprus, the Cyprus
Council of Ministers closed three affected ports (Famagusta, Kyrenia and Karavostasi, occupied by
Turkey), see Cyprus Port Authority Law 38/73. Until today, the said restrictions are still in force
with severe administrative and financial penalties being applied by Cyprus in case of any breach
thereto.
302
H. Jessen