Coastal State Rights (Ukraine v Russia)

• Jurisdiction: Derecho Internacional
• Judge: Paik,Lowe,Gómez-Robledo,Bouguetaia,Golitsyn
• Court: Arbitration Tribunal (International)
• Date: 21 February 2020

Arbitration Tribunal1

Award Concerning Preliminary Objections of Russian Federation.

(Paik, President; Bouguetaia, Gómez-Robledo, Golitsyn and Lowe, Members)

Dispute Concerning Coastal State Rights in the Black Sea, Sea of Azov and Kerch Strait

(Ukraine

and

Russian Federation)

Arbitration — Jurisdiction — Dispute concerning coastal State rights in Black Sea, Sea of Azov and Kerch Strait — Ukraine instituting proceedings against Russian Federation under Annex VII of United Nations Convention on the Law of the Sea, 1982 — Ukraine alleging unauthorized activities of Russian Federation violating its rights under Convention — Whether Tribunal having jurisdiction — Basis of Tribunal's jurisdiction — Whether Tribunal having jurisdiction to rule on sovereignty over Crimea — Legal status of Crimea — Objection that Tribunal having no jurisdiction over Ukraine's claims concerning activities in Sea of Azov and Kerch Strait — Whether objection possessing exclusively preliminary character — Objection that Tribunal having no jurisdiction in light of Parties' declarations under Article 298(1) of Convention — Objection that Tribunal having no jurisdiction over fisheries claims in light of Article 297(3)(a) of Convention — Objection that Tribunal having no jurisdiction over fisheries, protection and preservation of the marine environment, and navigation in light of Annex VIII to Convention — Objection that Tribunal having no jurisdiction pursuant to Article 281 of Convention — Whether Tribunal having jurisdiction in light of Parties' declarations under Article 298(1) of Convention — Exceptions — Military activities — Law enforcement — Delimitation — Historic bays or titles

Treaties — United Nations Convention on the Law of the Sea, 1982 — Interpretation — Application — Article 288(1) — Tribunal constituted under Annex VII of Convention — Scope of jurisdiction of Tribunal — Dispute between Parties — Whether dispute concerning interpretation or application of Convention falling within jurisdiction of court or tribunal under Article 288(1) — Whether Tribunal having jurisdiction over Ukraine's sovereignty claim

Territory — Sovereignty — Crimea — Legal status — Russian Federation recognizing Ukraine's sovereignty over Crimea before March 2014 — Events in 2014 — Russian Federation claiming sovereignty over Crimea after March 2014 — Opposing views of Parties on sovereignty over Crimea — Question as to whether Russian Federation or Ukraine having sovereignty over Crimea — Whether prerequisite for decision of Tribunal on Ukraine's claims under United Nations Convention on the Law of the Sea, 1982 — Whether Russian Federation or Ukraine coastal State for purposes of Convention — Whether sovereignty dispute over Crimea existing vel non — Whether ancillary to maritime dispute brought by Ukraine — Russian Federation's claim that legal status of Crimea altered — Whether Russian Federation's claim of sovereignty admissible — Principle of non-recognition — Article 41 of International Law Commission's Articles on State Responsibility — United Nations General Assembly resolutions — Principles of good faith and estoppel — Whether Tribunal having jurisdiction over Ukraine's sovereignty claim

International organizations — United Nations — General Assembly — Resolutions — Legal effect and meaning — Interpretation — Relevance — Customary international law — Factual and legal determinations made in resolutions — Effect and weight — Content, conditions and context of adoption of resolutions — Whether Tribunal having power to interpret texts of international organizations — Whether recognizing objective fact of existence of dispute over Crimea contravening resolutions — Whether Tribunal having jurisdiction over claims of sovereignty over Crimea

Sea — Maritime zones — Entitlements — Exclusive economic zone — Entitlements to maritime zones generated by Crimean coast — Overlapping entitlements — Whether determination possible — Jurisdiction of Tribunal to make determination in respect of dispute or on coastal State — Question of sovereignty over Crimea — Jurisdiction of Tribunal

Treaties — Application — United Nations Convention on the Law of the Sea, 1982 — Coastal State rights — Crimean peninsula — Ukraine instituting proceedings under Annex VII to Convention — Scope of Convention — Dispute concerning coastal State rights in Black Sea, Sea of Azov and Kerch Strait — Claims under Convention — Ukraine claiming that Russian Federation violating its rights under Convention — Determination of coastal State necessary for purposes of Convention — Question as to whether Ukraine or Russian Federation having sovereignty over Crimea — Whether determination prerequisite for determining significant part of Ukraine's claims — Whether Tribunal having jurisdiction over Ukraine's sovereignty claim — Jurisdiction of Tribunal

Treaties — United Nations Convention on the Law of the Sea, 1982 — Scope — Sea of Azov and Kerch Strait — Status — Parties agreeing internal waters of Union of Soviet Socialist Republics prior to dissolution — Disagreement as to status thereafter — Legal regime — Historic title — Whether questions for merits phase — Whether outside scope of Convention if underlying events occurring in internal waters — Whether issue regulated by Convention — Whether pertaining to interpretation and application of Convention — Whether Tribunal having jurisdiction over Ukraine's claims concerning activities in the Sea of Azov and in the Kerch Strait — Whether objection of Russian Federation possessing exclusively preliminary character

Treaties — Interpretation — State Border Treaty, Article 5 — Azov/Kerch Cooperation Treaty, Article 1 — Textual interpretation — Context — Negotiating history — Whether Article 4 of Azov/Kerch Cooperation Treaty excluding jurisdiction of Tribunal — Whether Articles 1 and 5 dispute settlement clauses within meaning of Article 281 of United Nations Convention on the Law of the Sea, 1982 — Whether Tribunal having jurisdiction over dispute

Summary:2The facts:—On 16 September 2016, Ukraine instituted proceedings against the Russian Federation under Annex VII of the United Nations Convention on the Law of the Sea, 1982 (“the Convention”)3 in

respect of a dispute concerning coastal State rights in the Black Sea, Sea of Azov and Kerch Strait. The Black Sea and Sea of Azov, which were connected by the Kerch Strait, surrounded the Crimean Peninsula to the west and south, and to the north-east respectively.

Ukraine maintained that, in 2014, the Russian Federation's forces seized control of the Crimean Peninsula, which was subsequently incorporated into the Russian Federation, although Russian sovereignty was not recognized by most other States. According to the Russian Federation, the Crimean Peninsula had acceded to the Russian Federation on 18 March 2014, following a referendum and Crimea's declaration of independence on 16 and 17 March 2014 respectively, after which the Russian Federation had assumed all the rights and duties of the coastal State in relation to the waters adjacent to the peninsula. Although the Russian Federation had recognized Ukraine's sovereignty over Crimea before March 2014, it maintained that it claimed sovereignty in response to a change in the situation of Crimea. The Parties had engaged in controversy regarding Crimea, including in various international fora such as the United Nations General Assembly (“UNGA”), before the commencement of the arbitration proceedings.

Ukraine alleged that various subsequent unauthorized activities of the Russian Federation had violated Ukraine's rights under the Convention. Ukraine claimed that the Russian Federation had violated its rights with respect to hydrocarbon resources in the Black Sea and Sea of Azov and also to living resources in the Black Sea, Sea of Azov and Kerch Strait. Ukraine also accused the Russian Federation of embarking on a campaign of illegal construction in the Kerch Strait that threatened navigation and the marine environment. Ukraine further claimed that the Russian Federation had violated its duty to cooperate with Ukraine to address pollution at sea, as well as Ukraine's rights under the Convention and its own duties in relation to underwater cultural heritage. Ukraine requested the Tribunal to order that the Russian Federation immediately cease its internationally wrongful actions, guarantee non-repetition and make full reparation for injury caused.

The Russian Federation raised preliminary objections to the jurisdiction of the Tribunal. First, it maintained that the Tribunal lacked jurisdiction since the dispute did not concern the interpretation or application of the Convention, as required under its Article 288(1),4 but rather Ukraine's claim to sovereignty over Crimea, a matter not governed by the Convention. Secondly, it claimed that the Tribunal had no jurisdiction over claims concerning activities in the Sea of Azov and in the Kerch Strait. Thirdly, it asserted a lack of jurisdiction in light of the Parties' declarations under Article 298(1) of the Convention (relating to military and law enforcement activities, delimitation, and historic bays or titles).5 Fourthly, it maintained a lack of jurisdiction over fisheries claims in light of Article 297(3)(a) of the Convention.6 Fifthly, it asserted a lack of jurisdiction over fisheries, protection and preservation of the marine environment, and navigation in light of Annex VIII to the Convention.7 Lastly, it maintained that the Tribunal had no jurisdiction pursuant to Article 281 of the Convention8 since the relevant agreement of the Parties was contained in Articles 5 and 1 of the State Border Treaty and the Azov/Kerch Cooperation Treaty respectively.9

The Tribunal decided to address the Russian Federation's preliminary objections in a preliminary phase of the proceedings.

Held (unanimously):—The Tribunal had jurisdiction to the extent determined.

(1) The dispute had been submitted to the...