After ten years of consideration, the international arbitration tribunal in The Hague has issued its decision in the case of Ukraine against Russia on the rights of a coastal state in the Black Sea, the Azov Sea and the Kerch Strait.
The case dragged on for 10 years: Ukraine initiated it on September 14, 2016, because the Russian Federation violated its obligations under the Convention on the Law of the Sea in the waters adjacent to Crimea.
The decision was published on the tribunalʼs website.
After that, both the Ministry of Foreign Affairs of Ukraine and the Ministry of Foreign Affairs of the Russian Federation declared their victory. Babel read the decision and tells what the arbitration specifically ruled.
These waters are not the “historical gulf of Russia” (Ukraine’s victory)
The court rejected the claim that the Azov Sea and the Kerch Strait are the “historical gulf” of the Russian Federation and its internal waters. Thus, the Russian Federation tried to argue that the case does not concern the Convention on the Law of the Sea, and therefore this court does not have jurisdiction.
Russia also argued that after September 30, 2022 (Russia’s annexation of four Ukrainian regions), circumstances had changed and a new dispute over land sovereignty had arisen, and therefore the court lacked jurisdiction.
The court rejected this, stressing that jurisdiction was determined as of the date of the commencement of the proceedings (September 16, 2016). Any further unilateral actions by Russia could not overturn the court’s already established jurisdiction, when “Ukraine and Russia were both indisputably littoral states of the Azov Sea”.
The Kerch Strait is not international, and there are no open waters in the Azov Sea (Ukraineʼs defeat)
Ukraine argued that the Kerch Strait was international and that Russia was obstructing free transit through it. Ukraine also argued that Russia was violating international law by detaining ships in open waters or the exclusive economic zone of the Azov Sea.
The court ruled that the Kerch Strait and the Azov Sea are not international, but internal waters of both states. This conclusion is based on the principles of legal succession after the collapse of the USSR, as well as the 2003 agreement between Ukraine and Russia on cooperation in the use of the Azov Sea and the Kerch Strait.
Therefore, the court refused to assess whether the Russian Federation violated the navigation regime and impeded shipping, as Ukraine claims. The court also recognized that Russia did not violate international law when it closed the Kerch Strait in April-October 2021.
Environmental claims (Ukraineʼs victory)
The tribunal ruled that Russia violated its environmental obligations when it built a bridge across the Kerch Strait, laid power cables and gas pipelines.
The Russian Federation failed to conduct a proper environmental impact assessment, collected sufficient baseline environmental data, provided reports on the results of the assessments, and has not yet fulfilled its obligation to cooperate with Ukraine on the protection of the marine environment.
The Russian Federation should have coordinated its actions with Ukraine, since these waters are an enclosed sea and internal waters of both states.
Underwater cultural heritage (Ukraineʼs loss)
Ukraine claimed that the Russian Federation had damaged or mishandled four underwater heritage sites: a Byzantine ship, the World War II “Kittyhawk” and “Airacobra” aircraft, and a fragment of a terracotta sculpture.
The court ruled that Ukraine had not provided sufficient evidence that Russia had violated its obligations regarding these facilities.
"Boykoʼs Towers" (Ukraineʼs loss)
The court said it had no jurisdiction to consider Russiaʼs seizure of the Tavrida and Sivash gas and oil drilling platforms, known as the Boyko rigs. The arbitration tribunal is governed by the United Nations Convention on the Law of the Sea, which does not allow it to decide who owns the property or whose sovereignty should be over Crimea.
However, the tribunal decided that it could consider the issue of re-registration of the rigs and rejected Ukraineʼs allegations. The court ruled that each state has the right to grant or withdraw a flag to ships (including floating platforms).
Registration of a ship in one country does not prohibit another country from entering it into its register. The court found no violations on the part of the Russian Federation.
Escalation of the dispute (Ukraineʼs loss)
The parties to the arbitration must refrain from actions that would aggravate the situation during the process. Ukraine argued that such actions by the Russian Federation include: building a bridge across the Kerch Strait, obstructing international shipping, and damaging underwater cultural heritage sites.
The tribunal decided that these actions did not reach such an extreme level of seriousness as to be considered an aggravation of the dispute.
Declarative decision
The arbitration rendered a classic “declaratory decision” — it limited itself to stating who was right on which point. The Court considers that the findings of the violation are sufficient, and considers this to be the main result of the process.
The Court considers that since this is a declaratory decision, there is no need to additionally order the cessation of certain actions, provide guarantees that this will not happen again, order the payment of compensation, or eliminate the consequences.
The court ruled that each party would pay its own costs of this process.
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