Ukraine can stop construction of Kerch Strait bridge, but takes no measures – experts

Ukraine has at least three mechanisms of international law to stop the construction of the Kerch Strait bridge by Russia.

However, the authorities do not use them, claim the experts: lawyer, maritime law expert Denys Rabomizo and Regional Centre for Human Rights lawyer, international public law expert Vitaliy Nabukhotny.

The first mechanism is obtaining an advisory opinion from the International Court of Justice, located in The Hague. For example, such an advisory opinion may be requested by the UN General Assembly through voting and making decision on the request by a simple majority. Another way to ask for an advisory opinion is the UN specialized agency, the International Maritime Organization.

“To use this mechanism, Ukraine should conduct a balanced diplomatic campaign, which is a commonplace practice of the states putting forward certain initiatives at the international level,” Vitaliy Nabukhotny said.

According to him, despite the fact that the advisory opinions of the International Court of Justice are not legally binding, they are rather authoritative documents of international law.

“Having such a conclusion would be a serious advantage for drafting further strategies for the return of Crimea to Ukraine as a whole, not just in context of the specific situation with the Kerch Strait,” he added.

The second mechanism is the ad hoc arbitration. It is about creating a special court and initiating the proceedings on the suit of Ukraine against Russia since the construction of the bridge across the Kerch Strait can, at least, lead to the restriction of freedom of navigation and cause significant harm to the marine environment. Establishment of such a court is possible under the Convention on the Law of the Sea of 1982.

“To do this, Ukraine must first begin the process of exchange of views on settlement of the dispute through negotiation or other peaceful means. This procedure is mandatory for the parties to the dispute. If there is no positive result, our state can begin the process of establishing the arbitration,” Denys Rabomizo said.

Until the judgment on the merits is delivered, the lawyers offer to simultaneously launch the third mechanism – taking interim reliefs. That is, an order to stop construction of the bridge until the judgment on the merits is delivered. Such measures may be imposed by the International Tribunal for the Law of the Sea, which is located in Hamburg.

“If Ukraine and Russia fail to agree within two weeks upon filing the petition for interim relief, which are the most expected result, the court will oblige Russia to suspend construction of the bridge until a competent court or tribunal delivers the judgment on the merits,” Denys Rabomizo commented.

The lawyers point out that Ukraine should immediately apply all three mechanisms simultaneously to stop the aggressor as Russia is actively constructing the bridge and plans to complete works as early as 2018.