Bifurcation is a common practice in international arbitration.
The incident happened on Nov 25, 2018 / REUTERS
Ukraine’s Ministry of Foreign Affairs says the Russian Federation will not be able to escape responsibility for the seizure of Ukrainian sailors and ships in the Kerch Strait, which occurred in November 2018.
This is stated in a statement by the Foreign Ministry on November 12.
In particular, the Foreign Ministry noted that the Arbitration Tribunal, formed in accordance with Annex VII of the UN Convention on the Law of the Sea, on November 12 ruled on bifurcation (splitting into two separate trials where the issues of liability and damages are decided separately) of the case between Ukraine and the Russian Federation on detention three naval vessels and their crew members.
“The arbitration tribunal will consider the preliminary objections to jurisdiction filed by the Russian Federation on August 22, 2020, at the preliminary stage of the proceedings. It must be noted that bifurcation is a common practice in international arbitration. Other cases involving Ukraine were considered by a similar mechanism and we have successfully overcome jurisdictional remarks by the Russian Federation both in the International Court of Justice and in the claim under the UN Convention on the Law of the Sea,” the ministry said.
“The Russian Federation will not be able to avoid responsibility for a daring violation of the norms and principles of international law, in particular the absolute immunity of military vessels, which it committed, having seized the Ukrainian naval vessels, Nikopol, Berdyansk and Yany Kapu and 24 members of their crews in the Black Sea,” the statement said.
Kerch Strait attack in 2018: Background
- On the morning of November 25, 2018, Russia, using a tanker they claimed had “ran aground,” blocked the passage in the Kerch Strait for Ukraine’s Yany Kapu tugboat, as well as Berdyansk and Nikopol armored artillery boats. The vessels were on a scheduled redeployment from the port of Odesa in the Black Sea to the port of Mariupol in the Sea of Azov.
- According to Ukraine’s Navy, the Russian side had been informed about transfer plans in advance in accordance with international rules. However, Russia’s Don coast guard ship rammed the Ukrainian tug contrary to the UN Convention on the Law of the Sea and the Treaty between Ukraine and the Russian Federation on Cooperation in the Use of the Sea of Azov and the Kerch Strait.
- Subsequently, during the passage of the ships from the waiting area to the permanently-based point, somewhere at a distance of 13-14 miles from the coast of Crimea and about 40 km southeast of Kerch, the Ukrainian ships, which were accompanied by Russian vessels, were fired upon and blocked. Three Ukrainian seamen were wounded and three were injured.
- Russia captured all 24 crew members and seized the boats, alleging violation of the state border in the area it claims belongs to the Russian Federation following the internationally-unrecognized Crimea grab of 2014.
- On May 25, 2019, the International Tribunal for the Law of the Sea obliged Russia to immediately return the crew and the vessels to Ukraine. Russia ignored the judgment.
- The servicemen were only released on September 7, 2019, in a prisoner swap effort between Ukraine and Russia, while later, the boats were also returned to Ukraine in November 2019.
- On May 22, 2020, Ukraine submitted a memorandum to the UN International Tribunal along with evidence in the case against the Russian Federation on the seizure of the sailors and the ships in the Kerch Strait in November 2018.
- The Ukrainian Foreign Ministry is awaiting that a decision in the case against the Russian Federation on an act of aggression in the Kerch Strait will be made in 2022-2023
- On November 12, 2020, the arbitration in The Hague gave Ukraine three months to provide comments on the objections of the Russian Federation in the Kerch Strait case.