Statement of the MFA of Ukraine on the Jurisdictional Phase of Proceedings in its Case Under UNCLOS Concerning Coastal State Rights in the Black Sea, Sea of Azov and Kerch Strait
On 31 August 2018, the Tribunal hearing Ukraine’s case against the Russian Federation under the 1982 United Nations Convention on the Law of the Sea (“UNCLOS”) published a procedural order determining that it would rule on certain jurisdictional objections raised by the Russian Federation in a preliminary phase of the proceedings.
On 19 February 2018, Ukraine filed a Memorial with the UNCLOS Tribunal establishing that Russia has violated Ukraine’s sovereign rights in the Black Sea, Sea of Azov, and Kerch Strait. Ukraine’s Memorial showed that, since 2014, Russia has unlawfully excluded Ukraine from exercising its maritime rights; it has exploited Ukraine’s sovereign resources for its own ends; and it has usurped Ukraine’s right to regulate within its own maritime areas. Through these violations of international law, Russia is stealing Ukraine’s energy and fisheries resources, harming the livelihoods of Ukrainian fishermen, and blocking traffic to Ukrainian ports with its illegal bridge over the Kerch Strait, among other serious violations.
Rather than respond to the merits of Ukraine’s case, the Russian Federation filed objections to the jurisdiction of the UNCLOS Tribunal on 22 May 2018, as permitted by the Tribunal’s rules of procedure. As is common practice in inter-state disputes, the UNCLOS Tribunal has elected to hear these objections in a preliminary phase of the proceedings, before hearing the case on the merits.
Ukraine does not believe that the Russian Federation’s jurisdictional objections are plausible or that they will be accepted by the Tribunal.
Russia’s primary jurisdictional objection is that Ukraine’s claims do not actually concern UNCLOS, but instead are an attempt to obtain a ruling confirming Ukraine’s sovereignty over the Crimean Peninsula. This objection blatantly misconstrues Ukraine’s claim. Ukraine has brought a dispute concerning maritime rights in the Black Sea, Sea of Azov, and Kerch Strait that are established under and defined by UNCLOS. That Ukraine enjoys such maritime rights is recognized by the international community — for more than two decades after the dissolution of the Soviet Union, Ukraine's continuous and peaceful exercise of the rights now at issue attracted no controversy. It is a core function of the UNCLOS dispute resolution system to address claims of the sort brought by Ukraine, involving an attempt by one State Party to interfere with and usurp the established maritime rights of another State Party. Moreover, Ukraine’s sovereignty over Crimea needs no further confirmation: it is overwhelmingly accepted by the international community as a whole, and it has been affirmed three times by the U.N. General Assembly (in 2014, 2016 and 2017).
Russia’s remaining jurisdictional objections are similarly unfounded. For example, in what Russia describes as its second most important jurisdictional objection, Russia argues that the Sea of Azov and Kerch Strait are not subject to UNCLOS because Ukraine and Russia have agreed to maintain these areas as “common internal waters.” Yet, in reality, Russia has seized Ukrainian gas fields in the Sea of Azov, purported to unilaterally nullify Ukrainian licenses for such gas fields, unilaterally built a bridge and other structures across the Kerch Strait, and imposed unilateral limits on the dimensions of vessels that may pass through the Strait. Each of these actions is irreconcilable with Russia’s assertion that Ukraine and Russia have maintained common sovereignty over the Sea of Azov and Kerch Strait — an arrangement that would entitle Ukraine to participate in the very hydrocarbon extraction, construction, navigational, and other activities in those bodies of water from which Russia has excluded it.
Ministry of Foreign affairs looks forward to fully addressing each of the Russian Federation’s jurisdictional objections before the UNCLOS Tribunal, and to returning to the merits of its case as expeditiously as possible.
Ukraine believes that Russia must and will be held accountable for its serious breaches of the international law of the sea.
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