On June 10, 2019, the positions of Ukraine and the Russian Federation concerning the jurisdiction of the Arbitration Tribunal in the case concerning the coastal state rights in the Black Sea and Sea of Azov and the Kerch Strait were published on the website of the Permanent Court of Arbitration.
On May 22, 2018, the Russian Federation submitted its objections to the jurisdiction of the Arbitration Tribunal to consider a case initiated by Ukraine under the United Nations Convention on the Law of the Sea.
According to the Procedural Order of the Tribunal of September 27, 2018:
On November 27, 2018 Ukraine filed its Written Submissions and Observations
On January 28, 2019, Russia replied;
On March 28, 2019, Ukraine submitted its Rejoinder.
1.Russia thinks that the Tribunal has no jurisdiction over Ukraine’s claim: the tribunal cannot determine which state is sovereign over the land territory of Crimea.
Ukraine proves that since the dissolution of the Soviet Union in 1991, Crimea has universally been accepted, including by Russia, as a part of Ukraine. It is this unquestioned status that the General Assembly acknowledged in its resolutions, and that its call for non-recognition preserves. Absent recognition of an alteration in Crimea’s status as the territory of Ukraine, there can be no question that an Annex VII tribunal has jurisdiction over the UNCLOS violations committed in the areas of the Black Sea, Sea of Azov, and Kerch Strait at issue in this case.
The dispute before this Tribunal concerns Russia’s actions at sea. Specifically, it concerns Russia’s theft of billions of dollars’ worth of sub-soil resources, its usurpation of fishing rights that once supported hundreds of artisanal and industrial fishing enterprises, and its interference with transit through an international strait frequented by almost 20,000 vessels each year.
In this arbitration, Ukraine asks the Tribunal to interpret and apply the Convention to determine the legal consequences of Russia’s maritime conduct. By the plain terms of Articles 286 and 288, which confer jurisdiction over “any dispute concerning the interpretation or application of the Convention,” this Tribunal has the competence to do so.
The dispute concerns interpretation or application of UNCLOS, Russia’s serious breaches of the Convention, the objective of Ukraine in this arbitration is to redress these serious maritime harms.
2.Also Russia thinks that the tribunal has no jurisdiction over claims concerning activities in the Sea of Azov and in the Kerch strait because: a) the Sea of Azov and the Kerch Strait are internal waters; b) claims concerning the regime of internal waters are outside the scope of UNCLOS; and consequently c) a dispute concerning the Sea of Azov and the Kerch Strait is not a dispute concerning the interpretation or application of UNCLOS
Ukraine demonstrates that UNCLOS applies to the Sea of Azov and Kerch Strait.
The Sea of Azov and Kerch Strait do not satisfy the definition of “internal waters” under Articles 8 and 10 of UNCLOS. These articles show that the Convention only contemplates claims of internal waters with respect to a single State, not shared claims among two or more States.
3 exceptional conditions are necessary for the acknowledgment of pluri-State internal waters:
(1) small bodies of water, which are not large enough to contain an exclusive economic zone,
(2) clear agreement between all bordering States to establish a pluri-State internal waters regime, and
(3) the absence of prejudice to third States.
The Sea of Azov and the Kerch Strait do not meet these 3 conditions.
3.According to Russia Ukraine’s claims implying sea boundary delimitations are excluded from the tribunal’s jurisdiction by article 298(1)(a) of UNCLOS
Russia’s Article 298(1)(a) delimitation objection also depends on its claim that the legal status of Crimea has been altered. This Russia’s delimitation objection is subsumed within its first preliminary objection related to sovereignty. As Russia’s first preliminary objection must be rejected, so too must its objection under Article 298(1)(a)(i).
Russia premises its delimitation objection on the assumption that it is entitled to a territorial sea, exclusive economic zone, and continental shelf extending from Crimea.
The delimitation exception only applies in connection with disputes that require the interpretation or application of the three specific articles enumerated in Article 298(1)(a)(i).
4.Russia tries to persuade the Arbitral Tribunal that Ukraine’s claims concerning military activities are excluded from the tribunal’s jurisdiction by Article 298(1)(b) of UNCLOS
But this dispute does not concern military activities:
1) the military activities exception in Article 298(1)(b) applies, by its terms, only to “disputes concerning military activities” and not to disputes that merely have an alleged “causal link” to such activities,
2) none of the specific maritime activities on which Ukraine bases its claims are military in nature.
Russia’s UNCLOS violations occurred “in the period following” Russia’s invasion of the Crimean peninsula. Moreover, Russia’s invasion of the peninsula is not itself the subject of any of Ukraine’s claims, and thus is not what this dispute “concerns».
5.Russia also wants to present that an Annex VIII Tribunal is the proper forum for Ukraine’s claims relating to fisheries, protection and preservation of the marine environment and navigation
But the both parties have consented to Annex VII jurisdiction over disputes of this nature — and Ukraine has not consented to Annex VIII jurisdiction in this type of dispute.
The Convention does not provide that a single, integrated dispute between Ukraine and Russia, presented in the Memorandum of Ukraine, to be subdivided for resolution in multiple Tribunals under Annex VII and Annex VIII.
Russia’s attempt to subdivide this dispute is inconsistent with the Convention, and with both parties’ declarations under Article 287.
Article 5 of the State Border Treaty and Article 1 of the Sea of Azov Treaty do not address the settlement of disputes and do not engage Article 281.
Russia’s attempts to avoid the holistic resolution of this dispute in the normal manner established under UNCLOS Part XV — i.e., through the present Annex VII proceedings — must, therefore, be rejected.