Global arbitrators tackle naval incident that ratcheted Russia-Ukraine tensions

THE HAGUE, Netherlands (CN) — Moscow got in the first word Monday as the Permanent Court of Arbitration kicked off a week of hearings into the capture of three Ukrainian naval ships in the Kerch Strait, a narrow pass that connects the Sea of Azov to the Black Sea.

In November 2018, two gunboats and a tugboat were attempting to reach the eastern Ukrainian port of Mariupol via the waterway when they were captured by the Russian military. According to the Russian Coast Guard, the ships did not have proper authorization to travel through the strait. Ukraine says that they did. 

As the Russian Federation fights the jurisdiction of a United Nations tribunal, which had previously ruled Moscow was in the wrong, Dmitry Lobach, Russia's ambassador-at-large, argued Monday that the United Nations Convention on the Law of the Sea doesn’t cover military activities.

Due to the ongoing Covid-19 pandemic, some members of both the Russian and Ukrainian delegation appeared virtually for the hearing in an ornate meeting room of the Peace Palace at The Hague.

Russia and Ukraine are supposed to share access to the strait, a peninsula of land that extends into the Black Sea and separates the Sea of Azov, under a 2003 agreement. But following its annexation of Crimea in 2014, Russian gained control of the strait and restricted Ukrainian access. Lobach called the Ukrainian presence there “an act of provocation.” 

Russia refused to participate in 2019 hearings before the International Tribunal for the Law of the Sea, a UN tribunal dealing with maritime issues based on the convention, claiming the tribunal had no authority. Ukraine ultimately prevailed, and the Hamburg-based court ordered Moscow to return the ships and their crew. Instead Russia contested the tribunal’s jurisdiction over the matter, resulting in another legal dispute, now before the PCA. 

The court is one of the oldest venues for international dispute resolutions, established in 1899 by the Hague Convention. Unlike other international courts, parties who bring the disputes nominate the arbiters and set other conditions, such as the language. Hearings are generally confidential, but the parties can agree to make the opening statements public, which they did in this case.

The dispute has made an appearance at more than the International Tribunal for the Law of the Sea. There is also a case pending before the European Court of Human Rights, one of six complaints between Ukraine and Russia before the Strasbourg-based court. The incident has also been mentioned in proceedings before the UN’s top court, the International Court of Justice, which is housed in the same building as the PCA. 

The 24 sailors onboard were held for nearly a year before they were handed over to Ukraine in September 2019 during a high-profile prisoner swap. A month later, Moscow returned the ships, though Kyiv said they were stripped of some equipment.

Ukraine will give its opening statements on Tuesday.

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