The Award concerning Preliminary Objections in Ukraine v. Russia : Observations regarding the Implicated Status of Crimea and the Sea of Azov

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On 21 February 2020 the arbitral tribunal constituted under Annex VII of the 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) rendered its award concerning preliminary objections. This case concerns a broad array of submissions of Ukraine – relating to, inter alia, navigational rights, marine resources, and the marine environment in the Black Sea and the Sea of Azov (here, pp. 9-10).

This post will focus on the arbitral tribunal’s findings concerning the Russia’s two most important objections. First, the objection to jurisdiction concerning claims related to activities in the maritime zones of Crimea since dealing with such claims would require the tribunal to rule on which state has sovereignty over that territory. This objection was upheld (para. 492(a)). Second, Russia objected to jurisdiction over claims concerning the Sea of Azov and Kerch Strait due to the status of these waters as (in the view of Russia) internal waters. This objection was found not to possess an exclusively preliminary character and was, accordingly, reserved for consideration and decision in the proceedings on the merits (para. 492(b)). All remaining objections were dismissed (para. 492(c)).

Jurisdiction ratione materiae under Article 288(1) UNCLOS

Pursuant to Articles 286 and 288(1) UNCLOS, jurisdiction ratione materiae of tribunals operating under the compulsory dispute settlement mechanism is limited to disputes concerning the interpretation or application of UNCLOS (see also the limitations and exceptions in Articles 297 and 298). Therefore, the subject-matter jurisdiction of Annex VII arbitral tribunals is limited to submissions based on provisions of UNCLOS, thereby excluding claims based on sources other than UNCLOS (e.g., customary international law or other treaties) in the absence of a renvoi in UNCLOS. Both of the objections addressed in this post concern the scope of Article 288(1).

The Implicated Sovereignty Dispute

As maritime entitlements are generated by territory (“the land dominates the sea”), disputes concerning rights and obligations in a maritime area of national jurisdiction cannot be decided without also determining – as a preliminary question – which State has sovereignty over the relevant territory (the “coastal State”). While a dispute about rights and obligations in a maritime zone may concern UNCLOS, a dispute about territorial sovereignty as such never does. Rather, such disputes are governed by other fields of international such as, for example, the law of acquisition of territory, secession, self-determination, and so on.

The problem of “mixed disputes” involving sovereignty issues most prominently played an important role in Mauritius v. United Kingdom and Philippines v. China. Both these Annex VII tribunals considered that they lacked jurisdiction over claims that implicated a sovereignty dispute, although with slightly different approaches to the issue. In Mauritius v. Maldives, ITLOS will likely for the first time face such an objection in the context of a maritime delimitation dispute. Both the United Kingdom and Mauritius claim sovereignty over the Chagos archipelago (see the ICJ’s advisory opinion here), which is located in the proximity of the Maldives. Thus, the approach taken in Ukraine v. Russia might be relevant for ITLOS, no less because two ITLOS judges who are members of the special chamber in Mauritius v. Maldives (President Paik and Judge Bouguetaia) are also arbitrators in Ukraine v. Russia (as president and arbitrator).

In order to argue that a claim against which an objection to jurisdiction based on alleged implicated sovereignty issue has been raised falls within the scope of Article 288(1) UNCLOS, it is necessary to submit either that there is no sovereignty dispute (or none that the UNCLOS tribunal may recognize as such), or that UNCLOS tribunals have incidental jurisdiction over the kind of implicated sovereignty dispute at issue.

In the case at hand, Ukraine advanced several claims which required a preliminary determination of sovereignty over Crimea in order to determine the “coastal State” for the purposes of UNCLOS (para. 152). In an attempt to get around the implicated sovereignty question, Ukraine unsuccessfully tried both of the avenues mentioned in the last paragraph.  It asked the arbitral tribunal to disregard the sovereignty dispute because Russia’s claim to sovereignty was “inadmissible” and/or “implausible” (para. 152). In the alternative, Ukraine argued that the arbitral tribunal had (incidental) jurisdiction as “sovereignty over land is neither the real dispute in the present case, nor where the relative weight of the dispute lies” (para. 191).

The arbitral tribunal first addressed its jurisdiction under Article 288(1) UNCLOS in general terms to find that it did not have jurisdiction to decide sovereignty issues as such (paras. 155-161). Here, the arbitral tribunal did not add much to the existing jurisprudence. Its analysis could be seen as an implicit endorsement of the approach taken in Mauritius v. United Kingdom.

In the second part of its assessment, the arbitral tribunal found that there was in principle a sovereignty dispute between Ukraine and Russia, which only left Ukraine’s additional “inadmissibility” and “implausibility” arguments open (paras. 163-166).

Starting with the “inadmissibility” argument, the arbitral tribunal first analyzed Ukraine’s submissions that it must not consider the sovereignty dispute based on the duty not to recognize territory that has been acquired unlawfully, as set out in relevant resolutions of the UN General Assembly (paras. 167-178). It found that the duty of non-recognition did not entail an obligation for UNCLOS Annex VII tribunals to deny the objective existence of a sovereignty dispute, nor did the relevant UN General Assembly resolutions have such an effect (paras. 177-178). Next, the arbitral tribunal considered that Russia was not estopped from objecting to jurisdiction on the basis that it had recognized Ukraine’s sovereignty over Crimea in the past “as the basis of the earlier statements has been substantially and materially changed by developments upon which the Arbitral Tribunal has no jurisdiction to adjudicate” (para. 181).

According to Ukraine’s “implausibility” argument, in order to object to jurisdiction due to an implicated sovereignty dispute, the objecting State’s claim to sovereignty would have to be “at least plausible” (para. 183). While Russia did not dispute that “there must be some form of threshold for accepting a party’s claim in order to protect the other party from an abuse of judicial process”, it preferred an approach based on the concepts of abuse of process or abuse of right (para. 184). The arbitral tribunal rejected both approaches and, again, focused on the central question whether a sovereignty dispute objectively existed, noting that while a “mere assertion” was insufficient, the threshold was generally low (para. 188). It did not consider that Russia’s sovereignty claim was “a mere assertion or one which was fabricated solely to defeat its jurisdiction” and, therefore, did not accept Ukraine’s “implausibility” argument (paras. 189-190).

Therefore, , the arbitral tribunal (in my view, convincingly) consistently distinguished between considerations of legality at the level of substantive law and the objective identification of a dispute for the purposes of jurisdiction. In other words, that Russia’s annexation of Crimea may have been clearly unlawful and sovereignty may still rest with Ukraine as a matter of substantive law is irrelevant for the question of jurisdiction, which only requires a dispute.

Having established that a sovereignty dispute existed, the arbitral tribunal was left with Ukraine’s additional argument that the arbitral tribunal had incidental jurisdiction to address the implicated sovereignty dispute as it was neither “the real dispute” in the case and as the “relative weight” of the dispute lay elsewhere (para. 191).  The arbitral tribunal followed the approach taken in Mauritius v. United Kingdom (paras. 218-221), where “a minor issue of territorial sovereignty” characterized as merely “ancillary”, for example in the context of a maritime delimitation dispute,  was found to be potentially within jurisdiction (paras. 193-194). In the case at hand, the sovereignty question was a prerequisite for several of Ukraine’s claims and, therefore, not merely “ancillary” (para. 195). This outcome is in line with the approach in Mauritius v. United Kingdom, but does not clarify the scope of what an “ancillary” sovereignty dispute entails.

Accordingly, the arbitral tribunal found that it did not have jurisdiction over those claims of Ukraine that required a decision of the sovereignty dispute (paras. 196-197). As this affected many of Ukraine’s claims, the arbitral tribunal requested Ukraine to file a revised version of its Memorial that reflects the tribunal’s findings on the extent and limits of its jurisdiction (paras. 198 and 492(d)).

The Status of the Sea of Azov and Kerch Strait

Russia objected to the jurisdiction of the arbitral tribunal with respect to all claims concerning activities in Kerch Strait and the Sea of Azov (see also this post). It submitted that these maritime areas “were historically internal waters of the Russian Empire, and later the USSR, and, since 1991, the common internal waters of Ukraine and the Russian Federation” (para. 199). In Russia’s view, UNCLOS did not regulate internal waters and, therefore, claims concerning these waters did not fall within Article 288(1) UNCLOS (para. 199). Ukraine submitted that “the Sea of Azov is an enclosed or semi-enclosed sea within the meaning of [UNCLOS], containing a territorial sea and exclusive economic zone, and the Kerch Strait is a strait used for international navigation” (para. 200). If true, at least some of Russia’s conduct in these waters would be regulated by UNCLOS and, therefore, fall within the scope of Article 288(1).

An analysis of the legal status of the Sea of Azov and Kerch Strait, as well as the implications of this status on navigational rights, may be found elsewhere (Schatz/Koval, Russia’s Annexation of Crimea and the Passage of Ships Through Kerch Strait, Ocean Development & International Law 2019, 275-297). Suffice it to say that, due to the legal uncertainty surrounding claims to pluri-State bays and/or historic waters, and the continued importance of customary international law in that regard, neither of the two scenarios (internal waters or “normal” maritime areas – see illustrations) can easily be ruled out.

The award spends more than thirty pages on the detailed arguments and evidence supplied by the parties (paras. 199-285). It is beyond the scope of this post to recount the arguments of the parties in detail. In short, the emphasis is on the question whether the notion of pluri-State bays constituting internal waters is in conformity with Article 10 UNCLOS and if so, what the requirements for such a bay are and whether they are fulfilled in the present case. For example, is there a presumption that bay regimes remain intact in a situation of State succession absent agreement of the riparian States to the contrary? Or is the presumption that such a regime will dissolve absent agreement of the riparians to continue it? While Russia can rely on the award in Slovenia v. Croatia in support of its contention that pluri-State bay regimes may exist in situations of State succession (in relation to the Bay of Piran), Ukraine has offered arguments that would allow for distinguishing this case based on scope of jurisdiction and applicable law.

The arbitral tribunal’s own considerations are markedly brief. It noted that the parties agreed on the legal status of Kerch Strait and the Sea of Azov prior to the dissolution of the USSR as internal waters of the USSR, but that they disagreed on the whether this status continued thereafter (para. 290). It considered that this status cannot be determined without a thorough analysis of the parties’ relevant practice (concerning navigation, exploitation of resources, marine environment, etc.) both vis-à-vis each other and vis-à-vis third States (paras. 291-292). Therefore, the issue of the status of the Sea of Azov and Kerch Strait as internal waters, and the impact of such a finding on jurisdiction, was “interwoven with the merits of the present dispute” (para. 293). The arbitral tribunal also pointed out that it was not convinced by Russia’s assertion that the regime of internal waters is not regulated by UNCLOS and gave Articles 8(2), 192, and 32 UNCLOS as examples of provisions that were applicable in internal waters (paras. 294-296). On this basis, the arbitral tribunal concluded that the issue was not of an exclusively preliminary character and reserved the matter for the proceedings on the merits – as Ukraine had requested (para. 297).

An interrelated but separate objection of Russia is based on the optional exception of Article 298(1)(a)(i) UNCLOS, according to which disputes “involving historic bays or titles” are excluded from jurisdiction if one of the parties has made a declaration to this end. Both Russia and Ukraine have made such declarations. As Russia had submitted that the Sea of Azov constituted a historic bay (in addition to a juridical bay), it argued that the arbitral tribunal lacked jurisdiction over claims that required a prior determination of the status of the Sea of Azov as such claims involved “historic bays or titles” (paras. 384-385). The arbitral tribunal decided that this objection was “closely intertwined” with the objection concerning the status of the Sea of Azov and, therefore, equally reserved this objection for the merits (paras. 388-389).

Final Remarks

Prima facie, the parts of the award analyzed here appear thorough, balanced, and convincing. There was room for distinguishing Ukraine v. Russia from previous case law in respect of the implicated sovereignty issue. However, in the circumstances of the case, the arbitral tribunal should arguably be commended for not going down that path. The same may be said about the decision to address the status of the Sea of Azov and Kerch Strait together with the merits. It is particularly noteworthy that the award was rendered unanimously, including by Russia’s party-appointed arbitrator, the former Russian ITLOS Judge and President Golitsyn. Indeed, Russia stated that it was “satisfied that this decision takes into account our main argument”, that it was “of crucial importance that the decision was taken unanimously”, and that it would also participate in the merits phase of the proceedings. Those critical of the awards in Philippines v. China are well-advised to follow the proceedings in Ukraine v. Russia closely.

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Arron says

March 20, 2020

Thanks for a timely and informative post. Have not had a chance to read the whole PO Award, but interesting that on the question of internal waters use is made of a PO Award and Advisory Opinion as precedents but not the Norstar Judgment. Purpositive avoidance of its controversial reasoning?

Dapo Akande says

March 20, 2020

Dear Valentin,

Many thanks for this post. In section on implicated sovereignty you say that the arbitral tribunal (convincingly, in your view) drew a distinction between legality at the level of substantive law and the objective identification of a dispute for the purpose of jurisdiction. You then say that what is required for jurisdiction is a dispute. It is true that for the tribunal to have jurisdiction under UNCLOS there needs to be a dispute relating to the UNCLOS issue. However, here you are dealing with something different. The question is whether the tribunal can deal with an implicated issue over which it does not ordinarily have jurisdiction. Are you saying that the test to be applied for that question is whether there is a dispute over that other question? In other words, are you saying that for the tribunal not to have jurisdiction in this case, it needs to be shown that there is a dispute between Russia and Ukraine with respect to sovereignty over Crimea?

What if there was no dispute between the parties concerned but it was the tribunal itself that raised the issue. For example, in Maldives v Mauritius what would have happened if both of those states agree that Chagos is under the territorial sovereignty of Mauritius.

Valentin Schatz says

March 20, 2020

Dear Dapo,

thank you for your question, which also leads us to the question of how an UNCLOS tribunal should deal with similar problems of implicated issues beyond the case at hand.

My reading of the award is indeed that the approach of arbitral tribunal (with which I generally agree) was (in the first step of the analysis) that it would, in principle, have to decline jurisdiction over UNCLOS claims that required it to decide an implicated sovereignty dispute. In examining the question of the existence of an implicated sovereignty dispute between the parties, the arbitral tribunal addressed Ukraine’s two lines of argument as to why the arbitral tribunal should “disregard” the sovereignty "issue". The arbitral tribunal itself expressed the view that, essentially, Ukraine asked it to find that there was no such dispute for the purposes of the arbitral tribunal’s jurisdiction. Either (1) because of the duty of non-recognition (also vis-à-vis the arbitral tribunal) or Russia being estopped from objecting to jurisdiction – or (2) because Russia’s claim to sovereignty was “implausible”. The arbitral tribunal did not accept these propositions but consistently looked for the objective existence of a dispute between the parties concerning territorial sovereignty. It acknowledged that abusive claims to sovereignty that are made up to challenge jurisdiction could not create such a dispute, but this result could in its view be achieved by assessing whether there was a dispute (a real one as opposed to a unilateral abusive claim). This last point is open to debate, but I would submit that the outcome is convincing and would be the same under a different approach (such as those suggested by Russia, for example).

In the second step, the arbitral tribunal essentially looked at what could be called the “Chagos exception” to the general rule, namely, whether the implicated sovereignty dispute was nonetheless within jurisdiction because it was merely “ancillary”. So if one were to agree with that exception, I guess my answer to your question would have to be slightly modified in that not every implicated sovereignty dispute would deprive an UNCLOS tribunal of jurisdiction.

In the second paragraph, you raise a very important point that will indeed likely surface in Mauritius v. Maldives. An UNCLOS tribunal (in that case ITLOS) arguably has to satisfy itself of its jurisdiction, which in my view means that it must look at whether the requirements of Art. 288(1) are fulfilled regardless of the parties' objections. In Mauritius v. Maldives, there is arguably still a dispute between the UK and Mauritius over sovereignty and the UK is not a party to the case. Thus, ITLOS will be faced with a “Monetary Gold” problem in conjunction with an implicated sovereignty dispute. In my view, in principle, it does not matter if the implicated territorial sovereignty dispute is among the parties to the case or between a party and a third state. It will be interesting to see how ITLOS approaches this aspect, particularly in light of the ICJ's Chagos advisory opinion!

Valentin Schatz says

March 20, 2020

Dear Arron,

this is an interesting observation, particularly as two members of the arbitral tribunal (President Paik and Judge Bouguetaia) were among the ITLOS judges who voted in favour of the judgment in Norstar. However, if I remember correctly, strictly speaking, ITLOS did not say that Art. 87 UNCLOS applied in internal waters, but only that it applied to conduct in the enforcement of high seas regulation without sufficient nexus for jurisdiction (cf. paras. 221 and 226). Thus, there is a difference between the findings in Norstar on Art. 87 and the provisions mentioned in the award, which were held to apply directly in internal waters. So this could potentially serve as an alternative justification for the ommission of a reference to Norstar.

Peter Tzeng says

March 22, 2020

Dear Valentin,

Thank you for your intriguing and well-written post. I have to say, I share Dapo’s skepticism. The question is whether the tribunal can make a determination on an implicated issue ordinarily outside its jurisdiction, not whether there exists a dispute over that implicated issue.

Now, you could argue, as the tribunal appears to do, that the test for these two questions is one and the same. But, in my view, the test for whether there exists a dispute, as developed in the jurisprudence of the PCIJ and the ICJ, focuses on whether “the claim of one party is positively opposed by the other” (South West Africa, Preliminary Objections, Judgment, p. 328). It does not focus on whether the claims of the parties have any merit under international law, which is the issue that was before the tribunal. Indeed, if the test for an existence of a dispute were to be the applicable test, then respondents could regularly avoid the jurisdiction of UNCLOS tribunals by asserting baseless sovereignty claims, as long as they could demonstrate that their claims were “positively opposed”. Instead, it seems to me that the tribunal, in the first sentence of paragraph 189 of the award, may have impliedly accepted Russia’s “abuse of process or abuse of right” test, even though the tribunal stated at paragraph 187 that it was rejecting it. On this point, in case I have not already bored you (or any other dedicated readers), I provided a few observations on what I called “the substantive threshold for the existence of a good faith legal dispute” in my article on the implicated issue problem, at page 504 ( (My sincere apologies for citing my own writing; I just thought it was particularly relevant for this discussion.)

I will refrain from expressing my view on what the appropriate test should have been, for fear that it might prejudice a future client of mine. But it seems like the Costal State Rights tribunal may have avoided expressly adopting a test because it did not wish to pass judgment (even if just based on a “plausibility” or “abuse of process or abuse of right” standard) on Ukraine’s and Russia’s claims of sovereignty over Crimea.


Valentin Schatz says

March 24, 2020

Dear Peter,

thank you for sharing your thoughts on this fascinating legal issue. I understand your skepticism and I agree with your broader point.

What indeed remains unclear is the methodology to be applied in order to identify what you call a "good faith legal dispute" as opposed to claims that should not be recognized as creating an obstacle to jurisdiction even if they are opposed by the other State (and clearly abusive claims will be opposed). Here, my position as indicated in the blog post is that the legal merits of the claim should, in principle, not play a role. Otherwise, the court or tribunal would have to make findings on matters of substantive law for which it does not have jurisdiction (which would be somewhat circular).
At the same time, there is - as you say and as I have also mentioned in a previous post - clearly the danger of abusive claims that needs to be addressed. Here, the distinction between these two legal spheres (merits under substantive law vs. jurisdiction) blurrs a little, and perhaps, some doctrinal sacrifices must be made. I am sure there is much scope for different opinions as to the extent of the role that the merits of a claim should play here (or how far into them a tribunal may look).

Ultimately, it may not matter what the methodology is called as long as it is applied convincingly and consistently. It could be "implausibility" (Ukraine), "abuse of process or abuse of right" (Russia), "good faith legal dispute" (your article) or "dispute" with an implied abuse of rights test (arguably the arbitral tribunal's choice, as you pointed out). In my view, the arbitral tribunal reached a convincing outcome here, and did so in a justifiable manner. I am sure the approach will be further developed in the future.