International arbitrations are among instruments of Ukraine’s policy towards de-occupation of Crimea. In particularly, on February 19, 2018 Ukraine filed its memorial in arbitration proceedings against Russia under the United Nations Convention on the Law of the Sea (UNCLOS) which states that Russia violated Ukraine’s rights in its own maritime zones in the Black Sea, the Sea of Azov, and the Kerch Strait. Applying this arbitration, Ukraine seeks to increase Russia’s price for the annexation of Crimea and receive compensation for substantial damages.
Immense financial, environmental and navigational damages arising from the annexation of Crimea forced Ukraine to file a lawsuit against Russia under the United Nations Convention on the Law of the Sea (UNCLOS). In September 2016, Ukraine initialed arbitration proceeding under UNCLOS regarding the facts that Russia violated Ukraine’s maritime rights in the Black Sea, the Sea of Azov, and the Kerch Strait. On February 19, 2018 Ukraine’s Ministry of Foreign Affairs filed its memorial in this proceeding in which Kyiv proves that Russia violated Ukraine’s rights as the coastal state in respective maritime zones.
In this arbitration proceeding, Ukraine does not raise occupation of the Crimean Peninsula since the arbitration would reject this claim on the grounds it is incompetent to consider territorial disputes. Instead, Ukraine brings an action on the grounds Russia is violating a number of UNCLOS provisions, namely:
- Exploiting natural resources on the Black Sea continental shelf (first of all, oil and natural gas) which legally belong to Ukraine;
- Stealing Ukrainian drilling outfits;
- Exploiting fishing resources and preventing Ukrainian fishing companies from such activities in maritime zones adjacent to Crimea;
- Constructing a bridge, power lines and gas pipeline over the Kerch Strait without Ukraine’s permission;
- Blocking passage of Ukrainian vessels through the Kerch Strait due to construction of the bridge;
- Harming marine ecology due to such construction;
- Conducting archeological excavations at bottom of the Black Sea without Ukraine’s permission.
Ukraine pursues three goals in arbitration proceeding under UNCLOS. First, Ukraine requests the arbitration tribunal to vindicate its rights as the coastal state in maritime zones adjacent to Crimea. Second, Kyiv tries to make Russia terminate the above actions which violate Ukraine’s sovereignty. Third, Ukraine seeks compensations for damages caused by violations of Ukraine’s sovereign rights in these maritime zones.
Ukraine’s priority is to terminate construction of a bridge across the Kerch Strait. Russia’s Ministry of Transport expects that the bridge will be opened to cars in December 2018 and trains in 2019, though some financial and geological problems may disrupt these plans. Its opening will pose serious risks to Ukraine. First, it will facilitate transport connectivity between Russia and the occupied peninsula, enabling Crimea’s stronger dependence on Russia and deeper integration of Crimean population in Russian social and political space. Second, construction of the bridge will have a negative effect on shipment of coal, meal products and grain from Mariupol and Berdiansk to international markets which, in turn, will decrease local budget revenues and heighten social unrest on Ukrainian coastal areas of the Sea of Azov. Third, environmental degradation in the Sea of Azov caused by this construction will have a negative effect on local fishery and tourism.
Realizing Ukraine’s legitimate claims, Russia will try to ease an upcoming arbitral award. Russia may temporarily suspend some economic activities during the arbitration proceeding. According to available information, Russia plans to suspend output on the Odesa gas field till July 1, 2018 in order to deny some Ukraine’s claim. Moreover, Russia may try to engage Ukrainian companies to jointly manage fishing and energy resources in maritime zones around Crimea.
It is highly likely that the arbitration will make an award in Ukraine’s favour, satisfying all or most of its demands from Russia under UNCLOS. However, Russia will delay execution of an arbitral award at best or totally ignore it at worst.
Nevertheless, a positive arbitral award will mean that Ukraine has a solid legal position on Crimea. Winning in international arbitration over maritime zones around Crimea will strengthen Ukraine’s international position and claims to loss compensation against Russia as well as inflict additional reputational losses on the aggressor state. Moreover, it will weaken arguments by proponents of lifting sanctions and allow Ukraine to demand more respective measures against the Kremlin from international partners, especially in case Russia does not fully or partly comply with an arbitral award.