Maritime legal issues arising out of trading to Ukraine/Crimea

Ship operators trading to Ukraine, and particularly to the ports in the newly annexed Crimea, now face a potential problem of falling foul of international/European law on the one hand and Ukrainian law on the other.

In March 2014, Ince & Co published a client alert entitled ’Shipping issues arising out of the Ukraine crisis’. This article revisits the issues facing owners when considering whether or not to accept orders to load or discharge cargo at ports located in Crimea. Where we refer to the ‘Crimean Ports’, this means the ports recently declared by Ukraine as closed, namely Kerch, Feodosia, Sevastopol, Yalta and Yevpatorya. This is not intended to suggest that Crimea is not part of Ukraine.

Russia’s annexation of Crimea is not recognised by Ukraine, nor indeed by the majority of members of the United Nations, apart from Afghanistan, Cuba, Nicaragua, Syria, Russia and Venezuela. As a matter of international law, and notwithstanding the fact that Russia is in effective control, Crimea is part of Ukraine. Ukraine has now closed the Crimean Ports. As a matter of Ukrainian law, it is illegal for vessels to call there, although Russian-flagged vessels will no doubt continue to do so. That distinction may have importance, as we discuss below. Ukraine says it cannot guarantee the ports’ safety. There is no universal concept of a free and open port and UNCLOS article 25.2 gives any nation the right to decide which of its ports are open to international shipping. There are many examples of where this has been done, notably by Cyprus 40 years ago in relation to a similar annexation of North Cyprus by Turkey. Such an action is understandable. If the closing of ports were not possible, then a government could be exposed to the risk of claims against it where conditions demanded that access should be denied. There is nothing to suggest that the ports in question are physically unsafe, although if ships are sunk strategically to block the waterways (as we saw, albeit in a limited way, at the outset of the Ukraine crisis) then that could change very quickly.

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