Following Russia’s annexation of Crimea in 2014, international law scholars have faced a range of complex questions ranging from protection of investors to, most recently, building a bridge linking it with Russia’s Krasnodar region.

In December the Russian appointed Prime Minister of Crimea Sergey Aksyonov acknowledged that the initial Russian project to build a bridge though the Kerch Strait might lead to international law problems. The Russian expert community also supports this view.

This article assesses some of the possible risks connected with the bridge construction and looks at what Russia might do to circumvent international law.



Background

The bridge is supposed to connect Crimea with the Krasnodar region of Russia, which would be the only land route from mainland Russia.

Not many people in the West know that it was originally Adolf Hitler’s idea to construct a bridge over the Kerch Strait which would serve as a spearhead for the German invasion of the North Caucasus. However, the Germans started but never managed to complete the project because of the advance of the Soviet army.

In 1943 the Soviet authorities completed construction of the bridge using the materials brought by the Germans. However, due to the absence of groynes the flowing ice destroyed the bridge six months later. The idea of its restoration was subsequently discussed in the USSR and later by the Russian and Ukrainian governments. These discussions, however, failed to materialise into action.

The situation dramatically changed after Russia’s annexation of Crimea in 2014. The peninsula de facto became an island with its only connection to the continent blocked by Ukrainian territory and with no direct connection to Russia except for a very unstable and unpredictable ferry connection to the nearby Russian Krasnodar region. The Russian authorities vowed to build a new bridge.

After the partial Ukrainian blockade of the peninsula which started in December 2014, the Russian authorities promised to accelerate construction works. The construction is likely to be Russia’s largest and most complicated construction project since the dissolution of the Soviet Union.

However, economic crises, sanctions and international law concerns may prevent this idea from reaching implementation. The rapid fall of oil prices makes it harder for Russia to finance such gigantic projects. The European Union and the United States imposed a range of sanctions related to Crimea making it very costly and risky for anyone to engage in the project.

Many contractors, including one of the richest men in Russia Gennady Timchenko are leaving the project. Assistance of the Russian government can help overcome these problems, but is unlikely to resolve international law problems related to construction.

International Law Status

Prior to the dissolution of the USSR in 1991 the Sea of Azov and the Kerch Strait were qualified as the USSR’s internal waters. Nowadays, as Ukraine and Russia never finished the delimitation of the area, they qualify as the internal waters of both countries.

Normally the status of semi-enclosed seas, such as the Sea of Azov is dermined by Articles 122 and 123 of the UN Convention on the Law of the Sea (which imposes on the bordering states the duty to cooperate with each other). In this case the status is determined by a 2003 Agreement on cooperation in use of the Sea of Azov and the Kerch Strait and various other smaller bilateral treaties between the states. The Agreement preserved the status quo and defined the Sea of Azov and the Kerch Strait as the internal waters of both countries. Therefore, their status is determined by this agreement and by the domestic legislation of Russia and Ukraine.

Therefore, the construction of the bridge would most definitely require the consent of Ukrainian authorities which is very unlikely in present circumstances.

Possible Grounds for a Dispute

While the Kerch Strait does not qualify as a strait used for international navigation, Ukraine still, being on the Black Sea and the Sea of Azov, could claim that the construction of the bridge would be detrimental to its economic interests because of limitation of navigation through the strait. For instance, if the bridge is low, it could even make the navigation of deep draught vessels impossible.

There has already been an example of a similar claim, namely that made by Finland against Denmark in the UN International Court of Justice. In 1991 a dispute arose out of construction of a bridge through the Great Belt strait. Finland claimed that Denmark’s bridge project was limiting the right of free passage of its ships, including drill ships, oil rigs and other ships of considerable size. Finland demanded the ICJ issue a provisional measure under Article 41 of the ICJ Statute prohibiting the construction of the bridge.

In its decision the International Court of Justice, while acknowledging its jurisdiction over such claims, unanimously refused to prohibit the construction, stating that the circumstances presented were not such as to require the exercise of this power.

Potential Dispute Resolution

While the Finland v Denmark dispute shows that the International Court of Justice considers that it has jurisdiction over similar types of disputes, there will likely be no jurisdiction over the possible Crimean bridge dispute.

The International Court of Justice has jurisdiction only with the consent of the parties. In Finland v Denmark both parties expressed such consent. However, neither Russia nor Ukraine have accepted the compulsory jurisdiction of the court. Article 4 of the 2003 Sea of Azov Agreement provides that disputes about its interpretation should be resolved by consultations and negotiations. It might be very problematic to obtain Russia’s consent to initiate such proceedings and the court’s decision would not be binding on the parties.

Similarly, initiating a dispute under the United Nations Convention on the Law of the Sea seems unlikely. Both the Kerch Strait and the Sea of Azov under the 2003 Agreement are the internal waters of both countries. The Convention largely leaves regulation of such issues to domestic legislation. Its provisions about the regulation of the straits (Part III) are limited only to those used for international navigation. Moreover, both Ukraine and Russia have made a number of declarations, which have significantly limited the application of the dispute resolution provisions of the Convention.

The Most Realistic Scenario

Almost a year following the annexation of Crimea, the issue of the Crimean bridge remains unresolved. The Ukrainian economic blockade and Western sanctions have turned Crimea into an isolated island in Europe.

Despite economic hardship and international law problems, Russia seems determined to persist with construction of the bridge. Recent leaks suggest that the government has already chosen Stroygazmontazh, a company owned by Arkady Rotenberg as the main contractor for the construction. Rotenberg is one of the closest businessmen to Russian President Vladimir Putin and is blacklisted by the European Union and the United States.

Under international law construction of a bridge would definitely require the consent of Ukraine. However, Russia is likely to do it without any consent from Ukraine and the latter will be unable to initiate a dispute about in international courts without the consent of the former.

Some of them including Sergey Aksyonov and several high-ranked members of the Russian government are pushing for an alternative project – an underwater tunnel. It is claimed to be almost three times cheaper than the construction of the bridge and would not limit navigation through the strait.

However, as UN General Assembly Resolution 68/262 has demonstrated the majority of states still regard Crimea as part of Ukraine and the construction of the tunnel would still be considered to be a breach of Ukraine’s sovereign rights.

The situation with the bridge clearly demonstrates that almost 70 years after the establishment of the United Nations and the International Court of Justice, international law and peaceful dispute resolution still remain largely theoretical concepts.

Ivan Philippov & Yaraslau Kryvoi

Ivan is a Russian London based lawyer. Yaraslau is the editor of the CIS Arbitration Forum.