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Insights from the Bifurcation Order in the Ukraine vs. Russia Arbitration under Annex VII of UNCLOS

Published on September 6, 2018        Author:  and

By Procedural Order of 20 August 2018 (“Bifurcation Order”), the arbitral tribunal established under Part XV and Annex VII of the 1982 United Nations Convention on the Law of the Sea (UNCLOS) in the “Dispute Concerning Coastal State Rights in the Black Sea, Sea of Azov, and Kerch Strait (Ukraine v. the Russian Federation)” ordered a bifurcation of the proceedings so that Russia’s preliminary objections concerning the arbitral tribunal’s jurisdiction ratione materiae will be examined in a preliminary phase  prior to the merits (see also this statement by Ukraine’s Ministry of Foreign Affairs). This development brought with it some much needed transparency in the arbitration instituted by Ukraine against Russia on 16 September 2016, since the written submissions of both parties remain confidential. What appears from the public statements of Ukraine’s government (here and here), is that Ukraine is claiming that Russia violated Ukraine’s rights under UNCLOS with respect to Russian activities in the Black Sea, the Sea of Azov and Kerch Strait, in particular, involving issues such as the seizure and exploitation of oil fields on Ukraine’s continental shelf, usurpation of fisheries jurisdiction off the coast of Crimea, issues of navigation through Kerch Strait, the construction of Kerch Bridge and related structures, and the conduct of studies of archeological and historical sites in the Black Sea.

The Bifurcation Order discusses (and cites from) a variety of the parties’ arguments concerning jurisdiction ratione materiae, several of which inevitably disclose some of the parties’ substantive positions. With respect to Russia’s request that the arbitral tribunal “adjudge and declare that it is without jurisdiction in respect of the dispute submitted to this Tribunal by Ukraine”, it should be recalled that, under Article 288(1) UNCLOS, the arbitral tribunal’s jurisdiction is limited to “any dispute concerning the interpretation or application of [UNCLOS]”. As Russia’s request to decline jurisdiction is not confined to specific issues or narrow questions of fact or law, it appears that Russia is challenging the arbitral tribunal’s jurisdiction in its entirety. The Bifurcation Order lists six separate preliminary objections. Read the rest of this entry…