Conditional Decisions: A Solution for Ukraine v. Russia and Other Similar Cases?

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On 21 February 2020, the tribunal in the Coastal State Rights arbitration between Ukraine and Russia rendered an award on preliminary objections. Although the tribunal decided that the case would proceed to the merits, it held that it did not have jurisdiction over any of Ukraine’s claims that would “necessarily require[] it to decide, directly or implicitly, on the sovereignty of either Party over Crimea” (para. 492(a)).

This holding is understandable. As previously discussed on this blog here and here, the tribunal faced a rather complex jurisdictional problem. As a tribunal constituted under the United Nations Convention on the Law of the Sea (UNCLOS), it generally had jurisdiction over claims alleging violations of the Convention. And all of Ukraine’s claims were indeed allegations that Russia had violated the Convention. Nevertheless, many of Ukraine’s claims were premised on Ukraine’s sovereignty over Crimea, such that a ruling by the tribunal on those claims would have required the tribunal to determine whether Ukraine or Russia had sovereignty over Crimea, an issue that fell outside the tribunal’s jurisdiction. The tribunal thus held that it could not rule on those claims.

But could it have done so in another way? Here’s an alternative solution that neither the tribunal nor the parties appear to have considered: a conditional decision. That is, the dispositif of the award on the merits could read something along the following lines: “If Ukraine has sovereignty over Crimea, then Russia has violated the Convention. If, on the other hand, Russia has sovereignty over Crimea, then Russia has not violated the Convention.” This way, the tribunal would arguably be exercising its jurisdiction over Ukraine’s claims, without needing to determine whether Ukraine or Russia has sovereignty over Crimea.

I have proposed this idea in informal conversations with colleagues, and the reactions I have received have varied widely. “Brilliant.” “Ridiculous.” “Clearly the right way forward.” “Completely ignorant of fundamental principles of international adjudication.” I admit, I myself am not completely sold on this idea. But I think it is at least worth a thought experiment. After all, it is effectively what the International Court of Justice (ICJ) did in the Pedra Branca case between Malaysia and Singapore.

In that case, Malaysia and Singapore had concluded a special agreement conferring jurisdiction on the Court to determine which State had sovereignty over three maritime features. The Court found that one of the features, South Ledge, was a low-tide elevation, such that it belonged to the State in whose territorial waters it was located. The Court could not, however, determine in whose territorial waters South Ledge was located because the delimitation of the territorial waters between Malaysia and Singapore (not to mention Indonesia) was outside the jurisdiction conferred upon the Court. So the Court, in its dispositif, simply held that “sovereignty over South Ledge belongs to the State in the territorial waters of which it is located” (para. 300(3)). In other words, the Court effectively held (putting aside any potential claims by Indonesia): “If South Ledge is located in Malaysia’s territorial waters, then Malaysia has sovereignty over it. If, on the other hand, South Ledge is located in Singapore’s territorial waters, then Singapore has sovereignty over it.” This was, in essence, a conditional decision.

Can international courts and tribunals render conditional decisions?

Despite this precedent, some might assert that international courts and tribunals do not have the power to render conditional decisions. They might argue that courts and tribunals, outside of advisory cases, have jurisdiction only over disputes, not hypothetical situations. But this argument overlooks the possibility of the existence of a dispute over a hypothetical situation. For example, although it may not be the case here, it is certainly possible for Ukraine and Russia to hold opposing views as to whether, even assuming that Ukraine has sovereignty over Crimea, Russia is violating certain provisions of UNCLOS. In such a scenario, the dispute requirement would still be met.

Along the same lines, some might argue that international courts and tribunals, again outside of advisory cases, have jurisdiction only to settle disputes, which would presumably exclude the possibility of conditional decisions. But the validity of this argument may depend on the specific language of the relevant jurisdictional provision. If, for example, we look at the jurisdictional basis for the Coastal State Rights tribunal, Article 288(1) of UNCLOS, we see that it grants the tribunal “jurisdiction over” UNCLOS disputes, which is arguably broader than “jurisdiction to settle” UNCLOS disputes. It would thus seem that rendering conditional decisions falls within the tribunal’s power.

A third argument worth considering is that rendering a conditional decision would violate the principle of non ultra petita, which provides that a court or tribunal may not go beyond the requests of the parties. But, for the sake of argument, what if Ukraine requested, in the alternative, that the tribunal render a conditional decision? Such a decision would no longer be ultra petita. Moreover, it is worth recalling the ICJ’s statement in Libya/Malta that “[t]he Court must not exceed the jurisdiction conferred upon it by the Parties, but it must also exercise that jurisdiction to its fullest extent” (para. 19 (emphasis added)). Arguably, rendering a conditional decision would allow the Coastal State Rights tribunal to exercise its jurisdiction over Ukraine’s UNCLOS claims to the fullest extent.

Should international courts and tribunals render conditional decisions? 

Just because a court or tribunal can render a conditional decision does not necessarily mean that it should. Indeed, one can certainly make the argument that courts and tribunals should not render conditional decisions. According to this theory, conditional decisions undermine the very purpose of third-party dispute settlement procedures, which is, self-evidently, to settle disputes. Arguably, very little or no progress would be made if the Coastal State Rights tribunal were to render the conditional decision proposed above (“If Ukraine has sovereignty over Crimea, then Russia has violated the Convention. If, on the other hand, Russia has sovereignty over Crimea, then Russia has not violated the Convention.”).

But what if a conditional decision could assist in settling a dispute? Let’s take the example of the classic “mixed dispute”, where two neighbouring coastal States submit a maritime delimitation dispute to an UNCLOS tribunal, but the delimitation line depends on the location of the land boundary terminus, which falls outside the jurisdiction of the tribunal. If, for example, there were two potential locations of the land boundary terminus (A and B), then it would actually be very helpful for the tribunal to render a conditional decision by drawing two delimitation lines, one if terminus A is accepted, and one if terminus B is accepted. This way, if one day in the future the two States settle their dispute over the land boundary terminus, their maritime delimitation dispute would thereafter automatically be settled as well.

The Pedra Branca case is another good example. Sure, the Court ultimately did not settle the sovereignty dispute over South Ledge. But according to the Court’s ruling, once Malaysia and Singapore delimit their territorial waters, their sovereignty dispute over South Ledge will automatically be resolved (again, putting aside any potential claim by Indonesia). The Court’s decision thus eliminated the risk of one State claiming sovereignty over the feature while acknowledging that it is located in the other State’s territorial sea.

There are many more examples of cases where an international court or tribunal has jurisdiction over a dispute, but settling such a dispute would require a determination on an issue that falls outside the court or tribunal’s jurisdiction. But the takeaway here is that, in at least some cases, a conditional decision can actually assist in settling the dispute. It may thus be worthwhile for courts and tribunals faced with such jurisdictional conundrums to consider rendering a conditional decision.

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Benjamin Samson says

March 21, 2020

Thanks for sharing this idea. I find it quite interesting. It may also prove useful in investment arbitration. I have a few remarks/questions from the top of my head for your perusal.

Have you ever suggested a client to offer this way out to the court or tribunal in a case? If yes, how did they react? My impression is that, either for political or strategical reasons, clients would be reluctant to request a conditional decision. They may fear that such a request be seen as a sign of weakness.
Do U.S. Courts render conditional decision?

I think you are too cautious:
- I don't think there is an “hypothetical situation.” Russia did not argue the absence of a dispute over its conduct
- A “conditional decision” in the sense that you give to this expression, is actually a decision tout court – or so it seems. Once the sovereignty dispute is settled, I don’t think there would be need for Ukraine or Russia to come back to the Tribunal for a further decision on the responsibility or absence of responsibility of Russia (leaving aside the potential issue of reparation). In other words, it seems that your “conditional decision” is a final decision. Do I understand correctly what you mean by “conditional decision”?
- I am not sure there would be an ultra petita problem. Without reading all the written pleadings and CRs, in Pedra Branca, it seems that neither Malaysia nor Singapore requested a “conditional decision.”

Two more questions from the top of my head:
- Could Ukraine seek for provisional measures pending the resolution of the sovereignty dispute? It is distinct dispute, outside the jurisdiction of this Tribunal but it has a crucial impact on it.
- What would happen once we know which State is sovereign? If it is Russia, there is no problem. However, if it is Ukraine, would Ukraine simply ask the same Tribunal to resume its proceedings and decide the reparation issue?

Peter Tzeng says

March 24, 2020

Thanks for your comment, Benjamin. Your remarks and questions are all very insightful. I am unfortunately going to have to be very terse in my responses, but I would be happy to continue this conversation in more detail offline.

As for your first two questions, out of an abundance of caution, I would prefer not to respond, even though you fairly ask general questions and not about a specific client. I also do not think I’m in a position to comment on U.S. courts.

Turning to your next set of questions, I use the term “hypothetical situation” in the sense that the dispute between Ukraine and Russia in the arbitration is about reality, not about a situation where both parties assume that Ukraine has sovereignty over Crimea. Apologies for my lack of clarity. As for my understanding of “conditional decision”, you are correct that I envision it as a final decision of the court or tribunal. I do not envision Ukraine or Russia coming back to the tribunal after the sovereignty dispute is settled. That would probably make the arbitration one of the longest-running proceedings in history! As for your point on ultra petita, that is also my understanding of the Pedra Branca case, having just read through the submissions of the parties as quoted in the judgment of the Court (paras. 14-15).

On provisional measures, your question is fascinating; I would have to think about this some more. It’s a shame that Ukraine did not pursue this possibility. As for your last question, consistent with the above, I do not envision that the proceedings would be resumed after the sovereignty dispute is settled.

I know these responses are far from satisfactory, but again I’d be happy to continue this conversation offline.