В публикации рассматриваются вопросы, связанные с влиянием на судоходство политического кризиса в Украине. Кроме того, приводится в пример ситуация, которая сложилась вокруг Северного Кипра.
The crisis in Ukraine has led to considerable uncertainty about what port activities are permissible – or even safe – in Crimea. Here, Interlegal looks at some of the issues involved.
| Оn 27 March 2014 the UN General Assembly called upon States, international organisations and other institutions not to accept any change in the political status of the Crimea and Sevastopol, and to refrain from any action that could he interpreted as an admission of any changes to that status. After some time, the shape of Russian-Ukrainian relations is becoming clearer and a new status quo has emerged. However, the number of questions has not been reduced. |
On the contrary, progress in resolving some problems creates a chain reaction, creating an increasing number of emerging issues that require solutions in their turn. In this article, we look at one of the more painful questions in the field of maritime transport – the status of a ship arriving at a port in occupied territory. Оn 27 March 2014 the UN General Assembly called upon States, international organisations and other institutions not to accept any change in the political status of the Crimea and Sevastopol, and to refrain from any action that could he interpreted as an admission of any changes to that status. After some time, the shape of Russian-Ukrainian relations is becoming clearer and a new status quo has emerged. However, the number of questions has not been reduced.
Case study – Northern Cyprus
The situation in the Crimea is in some ways similar to that which prevailed until very recently in Northern Cyprus.
The Republic of Cyprus was established as an independent state by the Constitution of 16 August 1960. The UK, Greece and Turkey became guarantors of the independence, territorial integrity and security of Cyprus. In July 1974, with the support of the Athenian military, Cyprus attempted a coup. On 20 July 1974 Turkey put 40,000 troops on the island on the pretext of restoring constitutional order and protecting Turkish Cypriots.
On 3 Octoberl974 the Council of Ministers of the Republic of Cyprus announced that the ports of Famagusta, Kyrenia and Karavostasi, all in Northern Cyprus, were closed to all vessels. The Port Authorities Act 1973 was amended to state that the Master or owner of any vessel arriving and departing from a closed port, or staying there in violation of the rules, would be guilty of an offence and would be subject to imprisonment for a term not exceeding two years and/or a fine. If the ship was registered under the Cyprus flag, the court could decide to strike the vessel from that register.
By amending the Act in this way, the Republic of Cyprus was announcing the protection of its territorial sovereignty. International organisations that maintained relations with the Republic of Cyprus were all made aware of this decision, in particular the IMO, UNCTAD, International Chamber of Shipping, as were classification societies, insurance companies, diplomatic and consular offices.
Until recently, the Masters of vessels entering the Republic of Cyprus after visits to the ports of Northern Cyprus were under threat of criminal penalties, including imprisonment and a pretty serious penalty, despite the progress in resolving this political conflict.
Today, it is easier than ever to trace the route of a ship and the ports at which it called using AIS, GPS and other means.
Situation in Ukraine
The Ukrainian State Inspectorate of Maritime and River Security (Ukrmorrichinspektsiya) suggested closing the Crimean ports as it was unable to ensure the safety of navigation in their waters. Accordingly, the Ukrainian Embassy in the UK informed the IMO that Ukraine cannot ensure an adequate level of maritime safety and compliance with international obligations on the safety of human life at sea, search, rescue, etc. at the ports of Evpatoria, Kerch, Sevastopol, Feodosia and Yalta.
Indeed, the Ukrainian Ministry of Infrastructure’s loss of control over the Crimean ports creates a high- risk situation in terms of the safety of life, health and property on the port approaches and in the ports themselves. So can Ukraine be indifferent to this situation? Definitely not.
What action has been taken?
A new Act, ‘On the rights and freedoms of citizens and legal regime of the temporarily occupied territory of Ukraine’ was adopted on 15 April, 2014. This Act amended the Criminal Code of Ukraine to define the key elements of crimes such as violation of the regime of entry and exit into the temporarily occupied territory of Ukraine. An essential feature of these offences is they are an attempt to diminish the capacity of the Ukrainian state in the economic, military, and/or political spheres.
This is a formal offence, meaning that it is not necessary for a guilty person to actually affect the capacity of the Ukrainian state in any way. just the intent to do so is sufficient to prove the hostile attitude of the perpetrator. However, this intent must be proven. It is also necessary to prove violation of the rules of entry or exit to/from the occupied territories. These rules require, among other things, a special permit for foreigners and stateless persons.
It is interesting to consider the widely discussed case of the Huseyn Javid. After entering the port of Feodosia, the vessel headed to the port of Illichivsk, where she waited in the roads, and then left. She was not there for a full day – yet the crew turned off the AIS transmitter. The Council of Public Security’ instructed the office of the Illichivsk Transport Prosecutor to open a criminal case.
We can assume that an offence has in fact been committed. In summary, again: the ports of Evpatoria, Kerch, Sevastopol, Feodosia and Yalta were closed by the order of the Ukrainian state, as were some other checkpoints across the state border of Ukraine. Therefore, the port call at Feodosia violates the order forbidding entry into the occupied territory of the Crimea. However, the Criminal Procedure
The Ukrainian Embassy has informed the IMO that Ukraine cannot ensure maritime safety in ports within the Crimea.
Code of Ukraine yvas amended so that the pre-trial investigation of the crime falls under Art. 332-1 of the Criminal Code, meaning it is the responsibility’ of the Ukrainian Security Service of Ukraine. This has been somewhat misleading. Part 2 of Art. 332-1 states qualifying elements, specifying the subject of the crime – an official who is using his official position for the purpose. Qualifying elements also include preliminary agreement and repetition of the offence. Part 3 lists elements that aggravate the offence – one of which is that it is committed by an organised group of persons.
In the merchant shipping sector, there are a large number of officials who jointly decide on a ship’s entrance to the port. In the alleged context, Part 2 of Art. 332-1 of the Criminal Code may apply. Part 3 of Art. 28 of the Criminal Code, yvhich defines the concept of an ‘organised group’, is unlikely to be appropriate in this context.
In addition to criminal sanctions, there is also the question of administrative responsibility–. Objectively, this offence is virtually identical to the criminal offence. This offence is not considered inherently dangerous to society because when it is committed there is no specific intention to harm the public interest.
What next?
Crimean ports are becoming increasingly isolated from the international transport market. We can assume that shipowners themselves will pragmatically refuse port calls to the annexed Crimea. Оf course, another possibility is to ban calls to Crimean ports through the ISPS Code. The fact is that, even if the authorities of the Russian Federation or the local authority are able to effectively ensure the safety of navigation in ports in the occupied territory, IMO as a specialised agency of the UN does not formally recognise the certificate of compliance with the Code issued to any Crimean port by the Russian authorities.
Many legal conflicts are arising in connection with the situation in the occupied Crimea. Given the complicated political situation and the complexity of private relations in the merchant shipping sector, it becomes clear that the legal situation in the Crimean peninsula is in need of a transparent legal settlement to bring the necessary certainty’ as to the legal regime for maritime business.
When public and civil law complications develop, they’ have such far-reaching implications that it is not easy to foresee their effects, especially in terms of medium- and long-term economic development. However, we should not ignore the need to make these laws, as the quality of life and the rights and freedoms of people and citizens depend on the development of the economy. www.interlegal.com.ua
This article is based on a presentation first given at the Odessa Maritime Days (Interlegal).
Источник: Seaways. – 2014. – September. – P. 27 – 28.