Attempted Annexation of Crimea and Maritime Environment Legal Protection

The illegal occupation and the attempted annexation by the Russian Federation (hereinafter - RF) of the Autonomous Republic of Crimea and city of Sevastopol (hereinafter - the Crimea) in 2014 started the Russian-Ukrainian ongoing conflict, which become a key factor for further development of the BS&SA ecosystems. The case relates to Russia's occupation of Crimea in 2014, fundamentally disrupted the maritime order in the BS&SA (Schatz & Koval, 2019).

The attempted annexation of the Crimea have been condemned in a series of international acts, including UN General Assembly resolutions 2014 68/262, 2016 71/205, 2017 72/190, 2018 73/263 2019 74/168, 2020 75/192, 2018 73/194, 2019 74/17, 2020 75/29, resolutions of the OSCE Parliamentary Assembly (Resolution on militarization by the Russian Federation of the Temporarily Occupied Autonomous Republic of Crimea and the City of Sevastopol, Ukraine, the Black Sea and the Sea of Azov, 2019), of the Parliamentary Assembly of the Council of Europe 1988 (2014), 2028 (2015), 2067 (2015), 2112 (2016), 2132 (2016), 2145 (2017), 2198 (2018), 2231 (2018) etc., of the European Parliament's resolutions 2014/2841 (RSP), 2014/2965 (RSP), 2016/2556 (RSP), 2016/2692 (RSP), 2017/2596 (RSP), 2017/2869 (RSP), 2018/2754 (RSP), 2018/2870 (RSP), 2019/2734 (RSP), 2019/2202 (INI) etc.

Those acts paid special attention to the brutal violation by the RF the fundamental human rights, including rights of the indigenous peoples and minorities in the Crimea, to the Russia's ongoing aggression against Ukraine, on committing by the RF's representatives the war crimes and crimes against humanity in the Ukraine's occupied territories. Prosecutor of the International Criminal Court in her reports in 2019 and in 2020 pointed, that during the occupation the Crimea by RF such international crimes allegedly were committed by Russia's authorized representatives on the peninsula, as brutal violations, reflected by the points `i', `ii', `v', `vi' and `vii' of part 2 `a' and by the points viii, xiii and xxi of part 2 `b' of article 8 of the ICC Rome Statute (Report on Preliminary Examination Activities, 2020).

The attempted annexation the Crimea by Russia was not recognized by the international community. Human rights violations in the Crimea, including racial and other discrimination of the Crimean Tatars and ethnic Ukrainians now are the subject to consideration in international courts, including the International Court of Justice (case 166) and the European Court of Human Rights (case 20958/14 and others). European Court established in its Decision on 16 December 2020 that RF's administrative practices exist in the Crimea since 2014 on systematic violation the European Convention of Human Rights.

UN structures, such as UN Human Rights Committee, recognised the responsibility of RF for violations the international law in the Crimea since 2014 (Concluding Observations on the Seventh Periodic Report of the Russian Federation; List of Issues in Relation to the Eighth Periodic Report of the Russian Federation). Numerous cases on protection the investments were started by Ukraine's business entities regarding ongoing events in the Crimea (NJSC Naftogaz of Ukraine (Ukraine) et al. v. the Russian Federation). And more, some cases were initiated by Ukraine on violations the international maritime law such as demands of the UN Convention on the Law of the Sea, 1982 (hereinafter - UNCLOS) in the PCA's Arbitrary Tribunals and International Tribunal for the Law of the Sea (hereinafter - ITLOS).

As experts of the Association of the Reintegration of Crimea (hereinafter - ARC) mentioned already, the attempted annexation of the Crimea such fundamental challenges for the ecology of the entire BS&SA as:

- uncontrolled and unregulated mass industrial fishing (poaching) in temporarily occupied Crimea (as well as in the Novoazovsky district of the Donetsk region) in the BS&SA waters, including the Sivash Bay;

- massive discharge of sewage and household waste from coastal cities of Crimea, including Sevastopol, where sewage treatment facilities have degraded or completely ceased their activities since 2014;

- significant pollution of the BS&SA waters due to the activities of the Black Sea Fleet of the RF, in particular with oil products, propellant components, effluents, and pollution due to the discharge and flooding in the framework of the Russian military facilities in the sea;

- risks of radioactive contamination of the BS&SA water area due to the expected deployment of nuclear weapons in Sevastopol;

- significant pollution of the BS&SA water area with oil products due to the illegal and uncontrolled operation by Russia of drilling facilities on the continental shelf of Ukraine in the Black Sea (Arkhangelskoye, Golitsinskoye, Odeskoe, Shtormovoye oil shelf fields);

- destruction of unique seabed, island and coastal ecosystems of the Karkinitsky and Kalamitsky bays, including the wetlands of global importance and the areas for spawning and feeding of commercial fish stocks, due to the massive uncontrolled excavation of sea sand from the shelf by the Russian-controlled entities;

- the predatory usage by the chemical industry of the Northern Crimea of Sivash for waste disposal, including utilization of the unique Sivash brine as raw material; pollution of the Karkinitsky Bay and the air above it with emissions from this industry;

- the risks from the construction of the industrial desalination plants announced by the RF in Crimea, that might result in the discharge of waste from their activities into the sea;

- the artificial usage by Russia of the external borders of the marine protected areas, established by Ukraine before the occupation of the Crimea, for the further spread of its own territorial claims ("Small Philophoric Field", "Swan Islands", "Karkinitsky" by decree of the Russian Government dated September 13, 2018 № 1091, by prescript of the Russian Government dated November 30, 2019 № 2874-р etc.) (Crimea and Ukrainian Maritime Environmental Strategy).

Realization the UNCLOS mechanisms and BS&SA ecology

Relevant Russia's violations the international demands to the maritime environmental issues, regarding the relevant UNCLOS demands are reflected in the pending case No. 2017-06. (Ukraine v. the RF) "Dispute Concerning Coastal State Rights in the Black Sea, Sea of Azov, and Kerch Strait" in the arbitrary tribunal under aegis of the Permanent Court of Justice. Some issues of the Russia's behavior contrary the UNCLOS demands, relevant to the BS&SA ecology are reflected in other arbitration cases, "Dispute Concerning the Detention of Ukrainian Naval Vessels and Servicemen" (Ukraine v. the RF) No. 2019-28, and "NJSC Naftogaz of Ukraine (Ukraine) et al. v. the RF" No. 2017-16, also as in Case No. 26 Concerning the Detention of Three Ukrainian Naval Vessels (Ukraine v. RF), in the ITLOS.

On 16.09.2016, Ukraine served for this case on the RF a Notification and Statement of Claim under Article 287 and Annex VII to the UNCLOS referring to a dispute concerning Ukraine's rights in the BS&SA. The demands of Ukraine in their major part grounded on its rights as a coastal State for Crimea. In Case No. 2017-06 Ukraine pointed that the RF invaded and occupied the Crimea, and then purported to annex it. The RF "categorically denied" those allegations; instead, the RF pointed out in this case that a "referendum on the future of the peninsula" was allegedly held in response to a "coup d'etat in Kiev in February 2014," which "provoked deep division in the Ukrainian society."

The RF declared that since "the majority of voters opted for reunification" "Crimea declared its independence on March 17, 2014 and on March 18 it concluded an international treaty on accession to the RF". The RF adds in this case that following Crimea's accession, it "assumed all the rights and duties of the coastal State in relation to the waters adjacent to the peninsula" and that "internationally, Russia unconditionally affirmed its status as a coastal State in relation to waters surrounding Crimea".

Regarding the Ukraine's Memorial, 2018 in this Case No. 2017-06 Tribunal researches the alleged violations of UNCLOS by RF, exactly by:

- excluding Ukraine from accessing fisheries within 12 miles of the Ukrainian coastline and within its EEZ, by exploiting such fisheries, and by usurping Ukraine's exclusive jurisdiction over such living resources; by unlawfully interfering with Ukraine's exclusive jurisdiction over Ukrainian-flagged fishing vessels in Ukraine's territorial sea, EEZ, and continental shelf.

- excluding Ukraine from accessing gas fields in its territorial sea, EEZ and continental shelf, and extracting gas found in such fields, and usurping Ukraine's exclusive jurisdiction over the hydrocarbons in such fields; by causing proprietary data on the relevant hydrocarbon resources;

- failing to cooperate with Ukraine concerning the May 2016 oil spill off the coast of Sevastopol etc.

- its unauthorized and unilateral construction of the Kerch Strait bridge and of submarine power cables, gas pipeline across the Kerch Strait; by impeding transit passage through the Kerch Strait as a result of the Kerch Strait bridge; by failing to cooperate and share information with Ukraine concerning the environmental impact and the risks and impediments to navigation concerning of the Kerch Strait bridge;

- aggravating and extending the dispute between the parties since the commencement of this arbitration in September 2016, including by completing construction of the Kerch Strait bridge, expanding its hydrocarbon and fisheries activities in Ukraine's territorial sea, exclusive economic zone (hereinafter - EEZ), and continental shelf (Award Concerning the Preliminary Objections of the Russian Federation; UN Will Research the Maritime Ecology Challenges, Connected with Crimea).

On those issues, Ukraine requested the Tribunal to order the RF to cessation and restitutio in integrum, including ending its purported exercise of prescriptive jurisdiction over the living and non-living resources found in zones within which the UNCLOS guarantees to Ukraine exclusive jurisdiction over such resources.

The RF submits that the PCA's Tribunal has allegedly "no jurisdiction" over Ukraine's claims as "the dispute in this case concerns Ukraine's claim to sovereignty over Crimea" and a "dispute over territorial sovereignty is not a dispute concerning the `interpretation or application of the Convention' pursuant to Article 288(1) of UNCLOS." Also, the RF declared that case No. 2017-06 is allegedly inadmissible as it is related with military activities, as UNCLOS allegedly is not related to the legal regime of Sea of Azov and Kerch Strait, as Ukraine allegedly failed to comply the negotiations procedures demanded by UNCLOS and other acts also (Award Concerning the Preliminary Objections of the Russian Federation).

This PCA's ad hoc Tribunal adopted on February 21, 2020 the Award where it upheld the RF's objection that the Tribunal has no jurisdiction over Ukraine's claims, to the extent that a ruling of the Tribunal on the merits of Ukraine's claims necessarily requires it to decide, directly or implicitly, on the sovereignty of either Party over Crimea. In Award Tribunal agreed that the RF's claims on the Crimea as on the "own" territory and that Tribunal has no competence to research the grounds of those claims. Of course, those claims are absolutely invalid, as it is clear from the international law, but the only fact of their presence allowed to the RF to block the Ukrainian coastal State's demands including ecological ones.

More in the Award the Tribunal found that the RF's objection that the Tribunal has no jurisdiction over Ukraine's claims concerning activities in the Sea of Azov and in the Kerch Strait as on "internal waters of Ukraine and RF where the UNCLOS is not applicable" does not possess an exclusively preliminary character, and accordingly decided to reserve this matter for consideration and decision in the proceedings on the merits. At the same time Tribunal rejected the other objections of the RF to its jurisdiction. It requested Ukraine to file a revised version of its Memorial, which shall take full account of the scope of, and limits to, the Tribunal's jurisdiction as determined in this Award.

Inter alia, the Tribunal rejected the RF's objection on the issue that Ukraine's claims concerning fisheries, protection and preservation of the marine environment, and those demands would be allegedly addressed to a special arbitral tribunal under UNCLOS Annex VIII, but not to the current Tribunal, constituted under Annex VII to the UNCLOS. The PCA's Tribunal mentioned for this issue that "the dispute before it cannot and should not be split or fragmented" (Award Concerning the Preliminary Objections of the Russian Federation). The Memorial Ukraine must give execution the Award is not available, but we may suppose not that the issues of

BS&SA's environment related to the pollution from the Crimea will not be in further well reflected in this case. So, we need to think about some other ways for such environment' protection, except the ongoing UNCLOS arbitration.

Possible steps for protection the BS&SA ecology on the universal level