Ukraine v Russian Federation

In Dispute Concerning Coastal State Rights in the Black Sea, Sea of Azov and Kerch Strait, the tribunal held that Russia breached UNCLOS environmental duties in connection with the Kerch Strait bridge, power cables and gas pipeline. Ukraine had also challenged:

1. Russia's bridge design,
2. vessel inspections and vessel stoppages,
3. six-month closure of the southern Kerch Strait entrance to foreign government vessels,
4. control of two Ukrainian drilling rigs and
5. treatment of underwater cultural heritage.

Those claims failed as pleaded.

Background

Ukraine commenced the arbitration in September 2016. It said Russia had used control of waters and infrastructure around Crimea to pressure Ukrainian navigation and maritime assets. Ships travelling to Ukrainian ports faced delay and inspection, the bridge design constrained passage, Russia took two Ukrainian jack-up drilling rigs and treated them as Russian, and construction works across the Kerch Strait created environmental risks without the process UNCLOS requires.

The tribunal's preliminary-objections award removed claims that would require deciding sovereignty over Crimea. The merits award dealt with points the tribunal considered separable from territorial sovereignty: the status of the Sea of Azov and Kerch Strait, navigation, the drilling rigs, environmental assessment and cooperation, underwater cultural heritage, aggravation and relief.

That jurisdictional line drove much of the award. Ukraine wanted the tribunal to examine the bridge, inspections, stoppages, closure and reflagged rigs under UNCLOS. Russia answered that the Sea of Azov and Kerch Strait were internal waters and that the tribunal could not use the case to decide Crimea sovereignty. The tribunal held that the waters were not internal waters by historic title, but that their internal-waters status continued after the dissolution of the USSR.

Decision

On navigation, the tribunal rejected Ukraine's claims because of the legal route Ukraine pleaded. Ukraine alleged concrete interference: a Kerch Strait bridge built at half the clearance Ukraine said proper passage needed, delayed and inspected vessels heading to Ukrainian ports, stopped Ukrainian and third-State vessels in the Sea of Azov, and a six-month closure of the southern Kerch Strait entrance to foreign warships and government vessels.

The tribunal held that the Kerch Strait was not a strait used for international navigation within Article 37 because it treated the Sea of Azov and Kerch Strait as internal waters. The transit-passage provisions in Article 38, Article 43 and Article 44 did not apply. It also rejected Ukraine's Sea of Azov navigation claims under Article 2, Article 58, Article 87 and Article 92.

The drilling-rig claim was also concrete. The award records that Russia took control of two Ukrainian-flagged jack-up drilling rigs, Tavrida and Sivash, in 2014, then de-registered and reflagged them as Russian vessels. The tribunal held that seizure and release were outside its jurisdiction, and that Russia's reflagging did not breach Article 91.

Ukraine won on part of the environmental case. For Article 206, the tribunal took the EIA standard from Pulp Mills on the River Uruguay (Argentina v Uruguay) and Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v Nicaragua): UNCLOS leaves the form and content of an EIA mainly to domestic law, but the assessment must still take a fact-based, due-diligent approach tied to the project's nature and scale.

Applying that standard, the tribunal held that Russia's EIAs for the Kerch Strait bridge, power cables and gas pipeline did not meet Article 206. Russia also failed to communicate EIA reports as required by Article 205 and Article 206. Because of those failures, the tribunal held that Russia had not fulfilled its duties of cooperation and environmental due diligence under Article 123, Article 192 and Article 194.

Other environmental allegations failed. The tribunal did not find a breach for the fibre-optic cable. It also rejected the monitoring-and-reporting claim under Article 204 and Article 205, and the claim based on a 2016 oil-spill incident under the marine-environment provisions Ukraine invoked.

Ukraine also alleged that Russian actors or Russian-supported private groups disturbed underwater cultural sites, removed items near the bridge works and damaged planes recovered from the seabed. The tribunal rejected the underwater-cultural-heritage claim under Article 303.

The tribunal rejected Ukraine's aggravation claim under Article 279 and Article 300. Ukraine had pointed to continued bridge construction, undersea cables and pipeline work, vessel stops and delays, the 2021 closure, and disturbance of archaeological artefacts. The tribunal held that those acts did not meet the threshold for aggravation in this proceeding.

Result

The award gave Ukraine declaratory relief only. It declared Russia responsible for the environmental breaches connected to the bridge, power cables and gas pipeline, but refused to order cessation, guarantees of non-repetition, reparations, bridge modification or release of the drilling rigs. Each party bears its own costs.