To explain briefly, what is this case about?
The case states that since 2014, the Russian Federation has been violating its obligations under the UN Convention on the Law of the Sea in the Black and Azov Seas, as well as in the Kerch Strait. Namely, it does not ensure the right to transit passage, freedom of navigation, protection of the underwater environment and underwater cultural heritage. Historically, this is the first case of Ukraine against Russia, that is, in fact, it is the first component of the legal struggle with the Russian Federation.
What are we trying to prove in this case?
First of all, the illegality of the so-called Kerch Bridge. In particular, Russia violated freedom of navigation and transit passage through the Kerch Strait. The height of the permitted passage under the so-called Kerch Bridge is 33 meters, the maximum is 35. And the height above the water of ships that entered Ukrainian ports through the strait is much higher than 33 meters. The so-called Kerch Bridge is the lowest bridge that has ever been built across an international sea strait, there are no other such low bridges. Accordingly, when Russia built this bridge, it violated the freedom of navigation, the transit passage through the Kerch Strait. Therefore, Panamax, Handymax, and Handysize class vessels could not enter the Ukrainian ports of Mariupol and Berdyansk before the full-scale invasion. Mostly these vessels have more than 40 thousand tons of maximum loading.
Secondly, Russia did not assess the impact on the environment according to the proper procedures. It does not comply with international standards, and it is not known what this will ultimately lead to from the point of view of the ecology of these water areas.
And the third component is the protection of the underwater cultural heritage, which was completely destroyed by the Russians. And this is civilization: both the Bosporus kingdom and Byzantium, this is a millennium of history.
And what are the Russians trying to prove in response?
The Russian Federation believes that the Azov Sea is internal waters, and the Kerch Strait is an alleged channel leading to them. And, accordingly, that after the so-called events of the end of September 2022, it is the only coastal state in the Azov Sea and can do whatever it wants. Secondly, they prove that they built the bridge because Ukraine blocked Crimea. Allegedly, the people on the peninsula were in a difficult situation, so this bridge was a "humanitarian necessity" for them.
The last hearings were held. Now weʼre waiting for a decision on this case, right?
Yes. The tribunal still has the right to communicate with the parties, to ask them for any additional materials, explanations, comments, but only in writing.
How long will it take?
Everything depends [on the scope of the case]. For example, in one of the most recent cases of a similar volume — the South China Sea case — seven and a half months passed from the end of the hearings to the announcement of the decision. We can aim for such a time somewhere. Perhaps our case will take more time — nine months, a year.
Unlike the UN International Court of Justice, where hearings are held in public, in arbitration all legal arguments were made behind closed doors. Why?
It is a general rule for such arbitrations that they are confidential.
Is it because there is some secret information being announced?
No. We are talking about the dispute with Russia. Ukraine will definitely not give the Russian Federation secret information. These are just the rules.
The case started back in 2016. Does a full scale invasion affect her?
In this case, Russia committed the main violations even before the full-scale invasion — we are talking about shipping to Mariupol and Berdyansk, which are currently temporarily occupied. Ships do not legally go to Berdyansk and Mariupol, therefore all violations of freedom of navigation, transit passage, inspections date back to years before the full-scale invasion. The co-agent in the case Oksana Zolotaryova said in her final speech that we will definitely restore control over Berdyansk and Mariupol, and the issue of freedom of navigation will arise again. The so-called Kerch Bridge will interfere with shipping and affect the environment.
Letʼs imagine that the court decides that the bridge does violate the convention. What should happen next? It is impossible to force Russia to dismantle it.
The arbitration decision will be binding on the Russian Federation. If we get a decision in our favor, believe me, we will use it. We will strengthen sanctions and influence on the aggressor state.