Dispute before an Arbitral Tribunal constituted under Annex VII to the 1982 UN Convention on the Law of the Sea Concerning Coastal State Rights in the Black Sea, Sea of Azov, and Kerch Strait (Ukraine v. the Russian Federation)
Ukraine vs Russia
Since 2014, the Russian Federation keeps defiantly violating the requirements of the UN Convention on the Law of the Sea dated 10 December 1982 in the maritime zones adjacent to the Crimean coast, the Black Sea, Sea of Azov, and Kerch Strait, including Ukraine's rights to natural resources of the continental shelf.
Pursuant to the UN Convention on the Law of the Sea, Ukraine is endowed with rights in the maritime zone, the exclusive economic zone and on the continental shelf extending from Crimea.
In the absence of Ukraine's authorization, any other State is prohibited from exercising the rights conferred by the Convention exclusively on Ukraine as a coastal State in these maritime zones.
The decision of the Tribunal on jurisdiction is expected by the end of 2019- early 2020.
On 10-14 June 2019, a public hearing of the Preliminary Objections of the Russian Federation was held in the Peace Palace, The Hague within the framework of the Arbitral Tribunal constituted under Annex VII of the UN Convention on the Law of the Sea Concerning Coastal State Rights in the Black Sea, Sea of Azov, and Kerch Strait (Ukraine v. the Russian Federation).
The introductory speeches of the Parties at the public hearings on the jurisdiction of the Tribunal in this case (10-11 June 2019) are public and their videos are available at link.
Position of the Russian Party during the public hearings:
- Ukraine appealed to the Arbitral Tribunal not to settle a dispute with Russia on the interpretation and application of UNCLOS, but to ‘legally’ recognize its sovereignty over the territory of Crimea;
- the Tribunal cannot determine on sovereignty regarding inland part of Crimea;
- the Tribunal has no jurisdiction over the requirements for activities in the Sea of Azov and the Kerch Strait because: a) the Sea of Azov and the Kerch Strait are internal waters; b) the requirements for the internal water regime go beyond UNCLOS; and, therefore, c) the dispute concerning the Sea of Azov and the Kerch Strait does not constitute a dispute concerning the interpretation or application of UNCLOS;
- Ukraine's claims, which indirectly provide for the delimitation of maritime borders, is excluded from the jurisdiction of the Tribunal by Article 298 (1) (A) of UNCLOS;
- Ukraine's claims in this case concern military activity that is excluded from the Tribunal's jurisdiction by Article 298 (1) (C) of UNCLOS;
- the Tribunal constituted under Annex VIII, not Annex VII, is an appropriate platform for reviewing Ukraine's applications regarding fisheries, protection and preservation of the marine environment and shipping;
- Ukraine has not fully complied with the pre-trial dispute settlement procedures.
Position of the Ukrainian Party, represented by lawyers during the public hearings:
- Since the collapse of the Soviet Union in 1991, it has been generally accepted, including by Russia, that Crimea is a part of Ukraine. In the absence of recognition of the change in the status of Crimea as a territory of Ukraine, there can be no doubt that the tribunal constituted under Annex VII has jurisdiction over violations of UNCLOS;
- Ukraine requests the Tribunal to interpret and apply the Convention to determine the legal consequences of Russia's maritime conduct;
- UNCLOS applies to the Sea of Azov and the Kerch Strait, which do not satisfy the definition of ‘internal waters’ set out in 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;
- Russia's objection to the delimitation of maritime borders under Article 298 (1) (a) (i) must be rejected;
- both Parties have consented to Annex VII jurisdiction over disputes concerning fisheries, protection and preservation of the marine environment and shipping – and Ukraine has not consented to Annex VIII jurisdiction in this type of dispute;
- The Convention does not permit this single, comprehensive dispute between Ukraine and Russia, presented in the Memorial of Ukraine, to be subdivided for resolution by several tribunals under Annex VII and Annex VIII.
Rejoinder of Ukraine was filed with the Arbitral Tribunal.
According to the Arbitration Rules, all written observations and submissions of the parties shall be confidential and not subject to disclosure by the parties. The Administrator of the Tribunal shall publish the written observations and submissions of the parties at the beginning of the public hearing.
On 27 November 2018, Ukraine took measures to warn the Arbitral Tribunal about Russia’s actions which significantly worsened the dispute between the parties.
In a letter to the tribunal Ukraine described the continuing hostility towards Ukrainian and international vessels seeking to cross the Kerch Strait and reach Mariupol, Berdiansk and other Ukrainian ports. The letter also warned the tribunal of Russia's recent actions in the Kerch Strait, whereby Russia completely blocked the Kerch Strait for navigation, placing a large cargo ship under the Kerch Bridge after Russia's shelling and seizure of Ukrainian naval vessels. Russia's actions effectively closed the Kerch Strait to all vessels, resulting in protests not only by Ukraine but also by other authorities representing other Black Sea coastal states, including the European Union and Turkey, who insisted on free passage through the Strait.
The reply of the Russian Party was provided in accordance with the fixed timetable.
Opening Statement of H.E. Ms. Olena Zerkal, Agent for Ukraine
Written observations and submissions of the Ukrainian Party were filed in accordance with the fixed timetable.
The President of the Arbitral Tribunal issued Order No. 4, which fixes procedural timetable for further written pleadings of the Parties on jurisdiction.
After receiving the positions of the Parties on the issue of bifurcation of this proceeding, the President of the Arbitral Tribunal by Order No. 3 established that there was no need to postpone and delay the case, and thus rejected Russia's request to bifurcate the proceeding by forming a separate jurisdiction stage. Instead, it was decided to consider the preliminary objections at the preliminary stage.
Accordingly, the proceedings on the merits shall be suspended and the President of the Arbitral Tribunal, after ascertaining the views of the Parties, will fix time-limits for further pleadings in accordance with Article 10, paragraph 5, of the Rules of Procedure.
The Russian Federation filed its comments to the letter of the Ministry of Foreign Affairs of Ukraine with the Arbitral Tribunal.
The arbitral tribunal requested Russia to provide its comments to the letter of the Ministry of Foreign Affairs of Ukraine dated 18 June 2018 regarding the request to consider preliminary objections at the preliminary stage by 4 July 2018.
Ukraine submitted its response to Russia's objections.
The Arbitral Tribunal requested Ukraine to provide its comments regarding Russia's objections.
The Russian Federation filed an objection regarding jurisdiction of the Arbitral Tribunal.
Ukraine filed its Memorial in the arbitration proceeding against the Russian Federation under the UN Convention on the Law of the Sea, which proves that the Russian Federation violated Ukraine's sovereign rights in the Black Sea, Sea of Azov, and Kerch Strait.
Ukraine asks the Arbitral Tribunal to stop the Russian Federation's violation of the UN Convention on the Law of the Sea and restitute Ukraine's rights in the Black Sea, Sea of Azov, and Kerch Strait, in particular, to oblige the Russian Federation to respect Ukraine's sovereign rights in its waters, stop stealing Ukrainian resources and pay compensation for the damage caused.
In accordance with Annex VII to the Convention, an Arbitral Tribunal was constituted to consider the case of Ukraine v. the Russian Federation.
Ukraine is represented by Covington and Burling Law Firm, as well as Professors Alfred Soons, Jean-Marc Thouvenin and Harold Koh.
The Ministry of Foreign Affairs served on the Russian Federation a notification on arbitration, statement of claim, as well as the grounds therefor pursuant to the UN Convention on the Law of the Sea.