Lawyers call upon the Ukrainian state to stop the construction of the Kerch Strait bridge in the temporarily occupied Crimea. There are three possible legal mechanisms for this. This case violates bilateral agreements.
Kyiv, April 18, 2016. Ukraine has done nothing to stop the construction of the Kerch Strait bridge over the two years of Crimea occupation. At the same time there are three possible international mechanisms applicable in this case. Namely, a consultative conclusion by the International Court of Justice (judicial branch of the United Nations), establishing an ad hoc arbitration court and applying temporary measures of provisional nature, said experts on international maritime law speaking at a press briefing at Ukraine Crisis Media Center. They noted that Ukraine may apply all the three instruments simultaneously.
According to Denys Rabomizo, President of the Ukrainian Maritime Bar Association, according to the United Nations Convention on the Law of the Sea of 1982, if Russia refuses the mechanisms available for consideration of the dispute, Ukraine may initiate consideration of the case in the ad hoc arbitration court where parties define the process participants themselves. “If Russia does not initiate appointment of the arbitrators, which is the most likely scenario, they will be appointed by respective bodies in charge,” explained Rabomizo. He explained that provisional measures are to become the next step. “We understand perfectly well that consideration of the dispute in the international arbitration court is nothing like considering a dispute in a local district court in Kyiv that takes up to several months. The procedure is going to take years. […] It is possible that the bridge will have been built by that time,” emphasized Rabomizo. He explained that such provisional measures are applied to protect the rights of one of the parties or environment. The decision can be made by the International Tribunal for the Law of the Sea based in Hamburg.
Vitaliy Nabukhotny, lawyer of the Regional Center for Human Rights spoke about the third opportunity – consultative conclusion by the International Court of Justice, a UN branch. The decision in question is not legally binding, consent from both sides is required to have it adopted. In Russia’s case it is quite an unlikely scenario. However consultative conclusions also have certain importance and are often used by the states in their further international and legal practice. The initiative may be coming out from the UN General Assembly or UN’s International Maritime Organization. “The mechanism that implies action through the General Assembly is technically more complicated but at the same time it is more efficient in practice,” noted Nabukhotny. He added that a powerful diplomatic campaign needs to be conducted. According to the lawyer’s opinion such consultative conclusion could become Ukraine’s “ace in the hole” while resolving other legal issues in the context of the occupied Crimea.
In 2013 Ukraine and Russia signed the agreement on transportation across the Kerch Strait. In 2014 the Ukrainian side terminated the agreement. At the moment construction of the Kerch Strait bridge violates bilateral agreements according to which the two states need to jointly resolve the issues pertinent to activities in the countries’ internal waters.