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Oct 14, 2021
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Black Sea and Kerch Strait haunt Ukraine and EU

Photo: NATO naval exercises in the Black Sea.

Photo: NATO naval exercises in the Black Sea. (Photo: Impact Press Group / NurPhoto / ZUMA Wire / TASS)

Ukraine and the European Union have agreed to coordinate international efforts in connection with the growing threats to security and stability in the Black Sea region, according to a joint statement by the participants in the Ukraine-EU summit held in Kiev.

Its participants also called on Russia to ensure passage to the Sea of ​​Azov and condemned the decision to close part of the Black Sea to foreign warships.

“We continue to urge Russia to ensure unhindered and free passage to and from the Sea of ​​Azov in accordance with international law. We condemn Russia’s decision to close parts of the Black Sea to non-Russian warships, ”the statement reads.

In April 2021, the Russian government “solely to ensure the country’s defense and state security” provided the Ministry of Defense for 20 years for the separate water use of a part of the Taganrog Bay of the Azov Sea, which, in particular, excludes the use of this site for fish farming and fishing.

Coincidentally, from 11 to 16 October, the international arbitration tribunal in The Hague is holding hearings regarding the incident in the Kerch Strait in 2018. The initiator of the proceedings was Ukraine, accusing Russia of violating the UN Convention on the Law of the Sea and seeking compensation from Moscow. Moscow does not agree with this interpretation.

“The proceedings initiated by Ukraine concern an armed clash between the military of Ukraine and Russia, therefore it cannot be considered in the Arbitration Tribunal,” the Ambassador-at-Large of the Ministry of Foreign Affairs of the Russian Federation said at the opening of the hearing. Dmitry Lobach

He recalled that there were soldiers on two Ukrainian boats and a tug, carrying out the order, and weapons. At the same time, despite the warning from the Russian military about entering the territorial waters of the Russian Federation, the Ukrainians continued to move. The diplomat also noted that in 2019 the sailors and equipment were returned to Ukraine. Kiev refuses to admit that the proceedings are based on an armed conflict and are not subject to the jurisdiction of international arbitration. Moreover, they claim that warships enjoy immunity, which was violated by the Russian side.

In the first two days, the Arbitration Court heard the parties, the second stage of the hearings is scheduled for October 14-15. What decision can the court in The Hague make, given that in recent years accusations of bias, politicization, decision-making under pressure have often been heard against international courts?

D.Labin, Professor of the Department of International Law at MGIMO Dmitry Labin believes that judicial arbitration structures created by international conventions exclude any external pressure and influence:

– In my opinion, in the proceedings it is necessary to proceed from the fact that the process is adversarial and each party must present its arguments well-developed and based on the law.

With regard to arbitration in The Hague, the Convention on the Law of the Sea regulates the navigation of merchant and civil ships and does not apply to the legal regulation of military courts. The convention was concluded to ensure navigation precisely for peaceful purposes and to question the respect for sovereignty, it was not intended, therefore, any coastal state has the sovereign right to ensure the protection of its own borders.

In addition, the Convention on the Law of the Sea regulates and the Tribunal for the Law of the Sea deals exclusively with disputes related to the use of seas and maritime spaces. It cannot touch upon the question of determining the status of the land. Proceeding from this, circumstances have changed radically.

Given the new circumstances that must be taken into account by the arbitration tribunal and must be duly represented by a party, in this case Russia, the Kerch Strait, based on the Convention, became the internal waters of the Russian Federation: the Russian Federation is located on its two opposite banks. The inland waters regime is the full sovereignty of the coastal state. The right of innocent passage is valid only in the territorial sea; it is possible to enter the inland sea only with the permission of the coastal state. That is, even such an institution as “the right of innocent passage” is limited precisely to the passage of territorial waters, the regime of internal waters is different. In my opinion, a lawyer, there were no actions that would violate the Convention on the Law of the Sea.

“SP”: – But the West does not recognize either the entry of Crimea into Russia, or the fact that the Kerch Strait is the territorial waters of Russia and even requires the access of warships to the Sea of ​​Azov. However, this is actually the inland sea of ​​two countries – Russia and Ukraine. Can Moscow refuse the military courts of other countries to be present in its water area, or is it obliged to allow it, if Ukraine insists on it?

– Quite right. This is a semi-enclosed sea that washes the shores of two states, and they once concluded a corresponding agreement on the use of the Sea of ​​Azov. It does not provide for the possibility of entry there by warships of non-coastal states, even if one of the states wishes it. This would be contrary to the obligations of the same state that undertook to abide by the agreements.

Besides, what the West thinks is not a legal issue. The tribunal will proceed from the facts and apply the law accordingly, and the facts are as follows (until proven otherwise) – in this case, effective management by Russia, even if sovereignty is not recognized. There are effective authorities here that effectively manage the territory, and this position has been repeatedly tested in the courts.

Until I heard about the territorial claims of Ukraine on the land issue – no tribunals and courts are considering this dispute. It is very difficult to present any position there, because from the point of view of international law, everything was in accordance with international norms and principles. In the event of the reunification of Crimea with Russia on the basis of an international treaty, they used the right to self-determination of peoples, which is provided for by international law.

The issue of recognition by third states is irrelevant in the proceedings of maritime disputes.

D.Sc., Head of the Department of International Law, Moscow State University Alexey Ispolinov does not believe that the decision can be made unequivocally in favor of Ukraine:

– I am not inclined to believe that there is a deliberate bias. This can be perceived as bias, in fact, all judges of international courts value their reputation. There are hundreds of highly qualified specialists, from us there is a professor (Vladimired.) Golitsyn, one of the leading experts in international maritime law.

“SP”: – Russia may completely abandon the trial if it believes that it not falls within the competence of this court, or are we bound by international obligations?

– The 1982 Convention on International Law of the Sea offers several options for resolving disputes, including the opportunity to go to the tribunal for the law of the sea, but this requires the consent of the two parties. If there is no consent, then the jurisdiction of the arbitration is automatically recognized.

“SP”: – Our representative in the court says that we are talking about an armed clash between the military, and this cannot be considered in arbitration.

– The Convention does not apply to military courts. In this case, we are trying to correctly build a position. It is difficult to say how this will be assessed by arbitration.

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