Ukraine's Ministry of Foreign Affairs (MFA) has commented on an award by the Arbitral Tribunal regarding the preliminary objections of the Russian Federation to jurisdiction in a dispute concerning coastal state rights in the Black Sea, the Sea of Azov, and the Kerch Strait (Ukraine v. the Russian Federation).
"The Tribunal agreed with Ukraine that Russia's claim of an internal waters status was not a proper subject for a jurisdictional objection and should be decided at the merits stage of the case. The ruling means that Russia will face legal scrutiny for its illegal construction of the Kerch Bridge and its harassment of vessels in the Sea of Azov, both of which harm international navigation to Ukrainian ports," the ministry said in a statement on February 21.
As was earlier reported, in an arbitration under Annex VII to the United Nations Convention on the Law of the Sea ("UNCLOS") in respect of coastal State rights in the Black Sea, the Sea of Azov, and the Kerch Strait, the Arbitral Tribunal on February 21 issued an award concerning the preliminary objections of the Russian Federation. The Permanent Court of Arbitration ("PCA") acts as registry for the proceedings.
"The Tribunal rejected Russia's position that it lacks jurisdiction over Ukraine's case and determined that it would hear significant aspects of Ukraine's claims, including those related to Russia's violations of UNCLOS in the Kerch Strait and the Sea of Azov," the ministry said.
Since 2014, however, Russia has excluded Ukraine from its own maritime areas and exploited Ukraine's natural resources, including fisheries and vast oil and gas reserves. Russia has also disregarded environmental protections and harmed international navigation, including by illegally building the Kerch Bridge, harassing international shipping, and seizing Ukrainian jack-up drilling rigs.
"Today, the Tribunal rejected Russia's effort to escape accountability for its conduct in the Sea of Azov and the Kerch Strait. Russia has attempted to remove these two vital international waterways from the law of the sea," the statement said.
In ruling that Ukraine's case will move forward to the merits phase, the Tribunal concluded that it could not hear a portion of claims relating to Ukraine's rights as a coastal state in the waters near Crimea. "The Tribunal concluded that it lacked jurisdiction over those claims because it does not have authority to address issues concerning sovereignty over Crimea. At the same time, the Tribunal has made it clear that recognizing it as having a dispute over the territorial identity of Crimea does not in any way mean alteration of its status. The Tribunal expressly stated that its decision does not imply that the Russian Federation's actions in Crimea were lawful," the ministry said.
According to the statement, the Tribunal's decision supports the international consensus, and the Tribunal itself made clear that it does not endorse Russia's claim of sovereignty.
"Today's ruling is a rebuke to Russia's view that its unilateral actions are immune from legal challenge. As a result of today's ruling, Ukraine will present its case on the merits before the Law of the Sea Tribunal. After further filings, the Tribunal will hold a hearing on the merits at which Ukraine will present its full case. Today's victory is another success for Ukraine in holding Russia accountable for its violations of international law," it said.
In November 2019, the International Court of Justice ("ICJ") rejected Russia's jurisdictional objections to Ukraine's case under treaties concerning terrorism financing and racial discrimination.
According to the ministry, for the first time, Russia will have to answer for its violations of international law before the World Court.
In May 2019, Ukraine also secured historic provisional measures from the International Tribunal for the Law of the Sea, ordering the release of the three naval vessels and twenty-four servicemen Russia had detained.
According to the Rules of Procedure, the award will be publicly available after the parties have expressed their possible objections to the presence of confidential information in the decision, but no later than 21 days after the decision.