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The Status of Crimea and the Sea of Azov as a Jurisdictional Hurdle in Ukraine v. Russia

A Comment on the unclos Annex vii Arbitral Tribunal’s Award concerning Preliminary Objections

In: Review of Central and East European Law
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  • 1 Research Associate, Institute for the Law of the Sea and Maritime Law, Faculty of Law, University of Hamburg, Germany, valentin.schatz@uni-hamburg.de
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Abstract

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 comment focuses on the arbitral tribunal’s findings concerning Russia’s two most important and far-reaching objections, both of which concern jurisdiction ratione materiae. First, it argues that the arbitral tribunal convincingly declined jurisdiction over those of Ukraine’s claims, which would have required the arbitral tribunal to decide the dispute between Ukraine and Russia concerning sovereignty over Crimea. Second, this comment analyzes the arbitral tribunal’s conclusion that the parties’ dispute concerning the status of the Sea of Azov and Kerch Strait was not of an exclusively preliminary character and must, therefore, be reserved for the proceedings on the merits.

Abstract

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 comment focuses on the arbitral tribunal’s findings concerning Russia’s two most important and far-reaching objections, both of which concern jurisdiction ratione materiae. First, it argues that the arbitral tribunal convincingly declined jurisdiction over those of Ukraine’s claims, which would have required the arbitral tribunal to decide the dispute between Ukraine and Russia concerning sovereignty over Crimea. Second, this comment analyzes the arbitral tribunal’s conclusion that the parties’ dispute concerning the status of the Sea of Azov and Kerch Strait was not of an exclusively preliminary character and must, therefore, be reserved for the proceedings on the merits.

1 Introduction

On 21 February 20201 the arbitral tribunal constituted under Annex vii of the United Nations Convention on the Law of the Sea (unclos)2 in the Dispute Concerning Coastal State Rights in the Black Sea, Sea of Azov, and Kerch Strait (Ukraine v. the Russian Federation), which is administered by the Permanent Court of Arbitration (pca), rendered its award concerning preliminary objections.3 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.4 That said, the case exclusively concerns disagreements with respect to the waters located off the coast of Crimea and must, therefore, be placed in the broader context of the conflict between Ukraine and Russia and particularly the annexation of Crimea.5 The proceedings had been bifurcated by the arbitral tribunal in light of multiple objections to jurisdiction raised by Russia, which means that the award discussed in this comment addresses issues of jurisdiction and admissibility only, not the merits of the various claims raised by Ukraine in the proceedings.6

This comment focuses on the arbitral tribunal’s findings concerning Russia’s two most important and far-reaching objections, both of which concern jurisdiction ratione materiae pursuant to Article 288(1) unclos. The first is the objection to jurisdiction ratione materiae concerning Ukraine’s claims relating to activities in the maritime zones of Crimea and which, therefore, would require the tribunal to decide which of the two States has sovereignty over that territory. This objection was upheld by the arbitral tribunal.7 The second of Russia’s objections addressed in this comment relates to Ukraine’s claims concerning rights and obligations of Russia and Ukraine in the Sea of Azov and Kerch Strait, with Russia arguing that the arbitral tribunal could not address these claims due to the status of these waters as (in the view of Russia) historic 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.8 All remaining objections were dismissed.9

2 Jurisdiction Ratione Materiae under Article 288(1) unclos

Before turning to a detailed analysis of the arbitral tribunal’s reasoning with respect to the two mentioned Russian objections to jurisdiction ratione materiae, a brief overview of the relevant jurisdictional provisions of the compulsory dispute settlement mechanism of Part xv of unclos is in order.10

Pursuant to Articles 286 and 288(1) unclos, the jurisdiction ratione materiae of tribunals operating under the compulsory dispute settlement mechanism of Part xv of unclos is limited to “disputes concerning the interpretation or application of [unclos]”.11 Therefore, the subject-matter jurisdiction of arbitral tribunals constituted under Article 287(1)(c) and Annex vii of unclos – like that of other unclos tribunals – is limited to submissions based on provisions of unclos, such as claims that a provision of unclos was violated.12 Conversely, claims that are based directly on rights or obligations derived from sources other than unclos (e.g., customary international law or other treaties) do not fall within the scope of Article 288(1) of unclos.13 Exceptionally, the jurisdiction ratione materiae of unclos tribunals may extend to external rules that are incorporated through so-called rules of reference or renvoi-provisions in unclos but even then the claim itself must be based on the unclos-provision, which in turn must contain a right or obligation.14 There is also the possibility of so-called ‘incidental’ jurisdiction, which involves an exercise of jurisdiction over an issue relating to a rule external to unclos if the relevant claim is based on a provision of unclos and the necessary determination cannot be made without also addressing the external issue.15 Finally, the jurisdiction ratione materiae of unclos tribunals is limited by the automatic limitation of jurisdiction for certain categories of disputes in Article 297 unclos and, more importantly for the present purposes, the optional exception from jurisdiction for various categories of disputes in Article 298 unclos, which must be activated by declaration.16

3 The Implicated Dispute Concerning Sovereignty Over Crimea

As maritime entitlements are generated by territory (“the land dominates the sea”),17 disputes concerning rights and obligations in a maritime zone of national jurisdiction (e.g., the Exclusive Economic Zone (eez), continental shelf, territorial sea, archipelagic waters or internal waters18) cannot be decided without also determining – as a preliminary question – which State has sovereignty over the relevant territory (the “coastal State”). In other words, such claims ‘implicate’ the underlying sovereignty dispute. While a dispute about rights and obligations in a maritime zone will often concern the interpretation or application of 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. Prior to the award in Ukraine v. Russia, the problem of “mixed disputes” involving sovereignty issues most prominently played an important role in Mauritius v. United Kingdom19 and Philippines v. China.20 Both these arbitral tribunals constituted under Annex vii of unclos considered that they lacked jurisdiction over claims that implicated a sovereignty dispute,21 although with slightly different approaches to the issue.22

Based on this line of jurisprudence, in order to argue that a claim against which an objection to jurisdiction based on an alleged implicated sovereignty issue has been raised falls within the scope of Article 288(1) unclos, it is necessary to submit either (1) that there is no sovereignty dispute or at least none that the unclos tribunal may legally recognize as such, or (2) 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.23 In an attempt to get around the implicated sovereignty question, Ukraine unsuccessfully tried both of the mentioned avenues. It asked the arbitral tribunal to disregard the sovereignty dispute because Russia’s claim to sovereignty over Crimea was “inadmissible” and/or “implausible”.24 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”.25

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.26 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.27

3.1 Threshold for the Existence of a Sovereignty Dispute

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,28 as set out in relevant resolutions of the UN General Assembly.29 The arbitral tribunal found that the duty of non-recognition did not entail an obligation for unclos tribunals to deny the objective existence of a sovereignty dispute, nor did the relevant UN General Assembly resolutions have such a binding effect.30 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”.31

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”.32 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 rights.33 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.34 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.35

Thus, the arbitral tribunal – in this author’s 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, where the mere existence of a dispute between Russia and Ukraine over territorial sovereignty suffices.

3.2 Incidental Jurisdiction Over “Ancillary” Sovereignty Disputes

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.36 The arbitral tribunal followed the approach taken in Mauritius v. United Kingdom,37 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.38 In the case at hand, the sovereignty question was a prerequisite for several of Ukraine’s claims and, therefore, not merely “ancillary”.39 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.

3.3 Decision of the Arbitral Tribunal

Given its findings on Ukraine’s arguments, the arbitral tribunal upheld Russia’s objection to jurisdiction and found that it did not have jurisdiction over those claims of Ukraine that required a decision of the sovereignty dispute.40 As this affected many of Ukraine’s claims, and given the need to ensure the equality of arms in the proceedings, 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.41

4 The Status of the Sea of Azov and Kerch Strait

In addition to its objection in relation to the implicated sovereignty dispute, Russia objected to the jurisdiction ratione materiae of the arbitral tribunal under Article 288(1) unclos with respect to all claims concerning activities in Kerch Strait and the Sea of Azov. 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”.42 In Russia’s view, unclos did not regulate internal waters and, therefore, claims concerning these waters did not fall within the scope of Article 288(1) unclos.43 It is true that unclos presupposes the existence of the regime of internal waters under customary international law without laying down a “comprehensive legal regime comparable to the one on the territorial sea” in this respect.44 Therefore, if Russia’s view were true, at least some of Ukraine’s claims would indeed not fall outside the scope of jurisdiction ratione materiae because unclos only contains rudimentary for internal waters. However, it should also be noted – as the arbitral tribunal did – that there are some provisions concerning internal waters that contain relevant rights and obligations that fall within the scope of Article 288(1) unclos.45 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”.46 If Ukraine’s view were 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) unclos.

From the above, it becomes clear that the legal status of the Sea of Azov and Kerch Strait is not only an issue of utmost importance from the perspective of substantive law, but equally a central question for the determination of jurisdiction. An analysis of the legal status of the Sea of Azov and Kerch Strait, as well as the implications of this status on, for example, navigational rights, is beyond the scope of this comment.47 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 zones – as shown in Figures 1 and 2 below) can easily be ruled out.48

Figure 1
Figure 1

Sea of Azov and Kerch Strait (shared bay regime)

Citation: Review of Central and East European Law 46, 3-4 (2021) ; 10.1163/15730352-bja10053

Figure 2
Figure 2

Sea of Azov and Kerch Strait (hypothetical maritime zones under unclos)

Citation: Review of Central and East European Law 46, 3-4 (2021) ; 10.1163/15730352-bja10053

The award devotes more than thirty pages to a summary of the detailed arguments and evidence supplied by Ukraine and Russia.49 It is beyond the scope of this comment to recount the arguments of the parties in detail. In short, the emphasis is on the question whether the notion of (historic) pluri-State bays constituting internal waters is in conformity with Article 10 unclos (which only envisages bays “owned” by a single State) and if so, what the requirements for such bays are and whether they are fulfilled in the case of the Sea of Azov and Kerch Strait.50 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 strong authority provided in the award of the arbitral tribunal (not established under unclos but under a bilateral arbitration agreement) 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),51 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.52 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.53 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”.54 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.55 On this basis, the arbitral tribunal concluded that the issue of the status of the Sea of Azov and Kerch Strait was not of an exclusively preliminary character and reserved the matter for the proceedings on the merits – as Ukraine had requested.56

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.57 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”.58 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.59

5 Reception of the Award in the Judgment of the Special Chamber of itlos in Mauritius v. Maldives

The approach taken in the award on preliminary objections in Ukraine v. Russia was highly relevant for the Special Chamber of the International Tribunal for the Law of the Sea (itlos) in the Dispute concerning Delimitation of the Maritime Boundary between Mauritius and Maldives in the Indian Ocean (Mauritius/Maldives). In relevant part, this case concerns the delimitation of the maritime boundary between the Chagos Archipelago and the Maldives, with Mauritius claiming sovereignty over the archipelago. However, the United Kingdom currently administers the Chagos Archipelago (as the British Indian Ocean Territory) and insists that it has sovereignty until it relinquishes this sovereignty in favour of Mauritius. Caught up between these opposing positions on sovereignty, the Maldives objected to the Special Chamber’s jurisdiction, inter alia, on the ground that “the Special Chamber has no jurisdiction to determine the disputed issue of sovereignty over the Chagos Archipelago, which it would necessarily have to do if it were to determine Mauritius’ claims in these proceedings.”60

Against this background, the award in Ukraine v. Russia was of particular relevance for the Special Chamber in Mauritius v. Maldives, in particular given that two itlos judges who are members of the Special Chamber (Judges Paik and Bouguetaia) are also arbitrators in Ukraine v. Russia (as president and arbitrator, respectively). However, the Special Chamber took a very different approach to the question of the implicated sovereignty issue.61 Rather than engaging in detail with the award in Ukraine v. Russia, on the effect of implicated sovereignty disputes and the existence and extent of a potential power to disregard such disputes, the Special Chamber’s references to the award were restricted to statements concerning the effect of resolutions of the UN General Assembly.62 Instead, it made ample reference to the advisory opinion of the International Court of Justice (icj) on Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965,63 in which the icj had held, inter alia, that “the United Kingdom is under an obligation to bring an end to its administration of the Chagos Archipelago as rapidly as possible, thereby enabling Mauritius to complete the decolonization of its territory in a manner consistent with the right of peoples to self-determination.”64 In relevant part, the Special Chamber considered, inter alia, that the advisory opinion was persuasive and, controversially, had legal effects,65 leading the Special Chamber to the conclusion that the United Kingdom’s “claim to sovereignty over the Chagos Archipelago is contrary to the authoritative determinations made in the [icj’s] advisory opinion” and, therefore, there was no sovereignty dispute that would pose an obstacle to its jurisdiction.66 In this respect, the approach of the Special Chamber was criticized by Judge ad hoc Oxman, who considered that the Special Chamber’s treatment of the implicated sovereignty dispute departed from the approach in Ukraine v. Russia and other relevant jurisprudence.67

6 Conclusion

The parts of the award analyzed here are thoroughly reasoned, balanced, and convincing. There was room for distinguishing Ukraine v. Russia from previous case-law in respect of the implicated sovereignty issue due to the relatively straightforward illegality of Russia’s annexation of Crimea and the clarity of Ukraine’s title to sovereignty prior to the annexation. Moreover, most of the international community had not recognized the annexation and the UN General Assembly had called for non-recognition. However, in the circumstances of the case and the factual and political realities, the arbitral tribunal should be commended for not going down the – unpersuasive – path of denying the existence of a sovereignty dispute or classifying the sovereignty dispute as legally insignificant for the determination of jurisdiction ratione materiae. The approach taken by the Special Chamber of itlos in Mauritius v. Maldives is less persuasive and, regrettably, does not take the award in Ukraine v. Russia into account to a sufficient extent, thereby missing an opportunity at consolidating the current trend in jurisprudence. That said, the two cases can be distinguished given that the Special Chamber’s decision in Mauritius v. Maldives places much weight on the icj’s advisory opinion and no such advisory opinion existed in Ukraine v. Russia. Therefore, absent sovereignty issues concerning decolonization that have been addressed by the icj, the approach taken in Ukraine v. Russia should still carry much weight in future cases.

The decision of the arbitral tribunal in Ukraine v. Russia to address the status of the Sea of Azov and Kerch Strait together with the merits was equally reasonable. Claims to historic waters are notorious for their reliance on immense amounts of historical evidence and State practice,68 and given that both States previously treated the Sea of Azov as a pluri-State bay of internal waters, any determination of its status and the status of Kerch Strait should be made on the basis of fully argued legal views and all available evidence.

It is particularly noteworthy that the award was rendered unanimously, with the support of Russia’s party-appointed arbitrator, the former Russian itlos Judge and President Golitsyn. A unanimous decision by arbitrators selected by both parties is more likely to be acceptable to all parties involved, although there is of course no guarantee. At least at this stage of the proceedings, both sides appear ready to accept the award. In particular, 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.69

1

It is notable that with respect to the award of 21 February 2020, the parties had a maximum of 21 days to raise any issue concerning confidential information in the award in accordance with a procedural order of the arbitral tribunal. This is why the award was published by the pca on 16 March 2020. See Dispute Concerning Coastal State Rights in the Black Sea, Sea of Azov, and Kerch Strait (Ukraine v. the Russian Federation), pca Case No. 2017-06, Procedural Order No. 2 Regarding Confidentiality, (18 January 2018).

2

United Nations Convention on the Law of the Sea (10 December 1982), 1833 unts 3.

3

Dispute Concerning Coastal State Rights in the Black Sea, Sea of Azov, and Kerch Strait (Ukraine v. the Russian Federation), pca Case No. 2017-06, Award concerning the Preliminary Objections of the Russian Federation, (21 February 2020).

4

Dispute Concerning Coastal State Rights in the Black Sea, Sea of Azov, and Kerch Strait (Ukraine v. the Russian Federation), pca Case No. 2017-06, Written Observations and Submissions of Ukraine on Jurisdiction, (27 November 2018), paras. 21–23.

5

For legal commentary on the annexation of Crimea, see, e.g., Thomas D. Grant, Aggression against Ukraine: Territory, Responsibility, and International Law (Palgrave Macmillan, New York, 2015); Sergey Sayapin and Evhen Tsybulenko (eds.), The Use of Force against Ukraine and International Law: Jus Ad Bellum, Jus In Bello, Jus Post Bellum (Asser Press/ Springer, The Hague, 2018); Christian Marxsen, “The Crimea Crisis—An International Law Perspective,” 74 Heidelberg Journal of International Law (2014), 367–391, at 389–391; Michael Bothe, “The Current Status of Crimea: Russian Territory, Occupied Territory or What,” Military Law and the Law of War Review 53 (2014), 99–116, at 100–103; and Robin Geiß, “Russia’s Annexation of Crimea: The Mills of International Law Grind Slowly but They Do Grind,” International Law Studies 91 (2015), 425–449, at 447–449.

6

See Dispute Concerning Coastal State Rights in the Black Sea, Sea of Azov, and Kerch Strait (Ukraine v. the Russian Federation), pca Case No. 2017-06, Procedural Order No. 3 Regarding Bifurcation of the Proceedings, (20 August 2018). For commentary, see Valentin J. Schatz and Dmytro Koval, “Insights from the Bifurcation Order in the Ukraine vs. Russia Arbitration under Annex vii of unclosejil: Talk! – Blog of the European Journal of International Law (6 September 2018), available at https://www.ejiltalk.org/insights-from-the-bifurcation-order-in-the-ukraine-vs-russia-arbitration-under-annex-vii-of-unclos/.

7

Dispute Concerning Coastal State Rights in the Black Sea, Sea of Azov, and Kerch Strait (Award concerning the Preliminary Objections of the Russian Federation), op.cit. note 3, para. 492(a).

8

Ibid., para. 492(b).

9

Ibid., para. 492(c).

10

For an overview of Part xv of unclos generally, see, e.g., Bernard H. Oxman, “Courts and Tribunals: The icj, itlos, and Arbitral Tribunals,” in Donald R. Rothwell, Alex G. Oude Elferink, Karen N. Scott and Tim Stephens (eds.), The Oxford Handbook of the Law of the Sea (Oxford University Press, Oxford, 2015), 394–415.

11

See generally Alexander Proelss, “The Limits of Jurisdiction Ratione Materiae of unclos Tribunals” 46 Hitotsubashi Journal of Law and Politics (2018), 47–60.

12

Cf. mox Plant Case (Ireland v. United Kingdom), pca Case No. 2002-01, Procedural Order No. 3, (24 June 2003), para. 19; itlos, Case concerning the Detention of Three Ukrainian Naval Vessels (Ukraine v. Russian Federation), Order (Provisional Measures), (25 May 2019), 2018–2019 itlos Reports 283, para. 43; itlos, The M/T “San Padre Pio” Case (Switzerland v. Nigeria), Order (Provisional Measures), (6 July 2019), 2018–2019 itlos Reports 375, para. 57; Günther Jaenicke, “Dispute Settlement under the Law of the Sea Convention,” 43 Zeitschrift für ausländisches öffentliches Recht und Völkerrecht (1983), 813–827, at 816 and 822; James Harrison, “Defining Disputes and Characterizing Claims: Subject-Matter Jurisdiction in Law of the Sea Convention Litigation,” 48 Ocean Development & International Law (2017), 269–283, at 273; Patibandla Chandrasekhara Rao and Philippe Gautier, The International Tribunal for the Law of the Sea: Law, Practice and Procedure (Edward Elgar Publishing, Cheltenham, 2018), 90.

13

See, e.g., mox Plant Case (Procedural Order No. 3), op.cit. note 12, para. 19; itlos, The “ara Libertad” Case (Argentina v. Ghana), Joint Separate Opinion of Judges Wolfrum and Cot, 2012 itlos Reports 363, para. 7; The Arctic Sunrise Arbitration (Netherlands v. Russia), pca Case No. 2014-02, Award on the Merits, (14 August 2015), pca Case No. 2014-02, para. 197; The Duzgit Integrity Arbitration (Malta v. São Tomé and Príncipe), pca Case 2014-07, Award, (5 September 2016), para. 207. See also Valentin J. Schatz, “The Snow Crab Dispute on the Continental Shelf of Svalbard: A Case-Study on Options for the Settlement of International Fisheries Access Disputes,” 22 International Community Law Review (2020), 455–470, at 463.

14

Peter Tzeng, “Supplemental Jurisdiction under unclos,” 38 Houston Journal of International Law (2016), 499–576; Kate Parlett, “Beyond the Four Corners of the Convention: Expanding the Scope of Jurisdiction of Law of the Sea Tribunals,” 48 Ocean Development & International Law (2017), 284–299.

15

On the role of incidental jurisdiction in the context of implicated issues, see Peter Tzeng, “The Implicated Issue Problem: Indispensable Issues and Incidental Jurisdiction,” 50 New York University Journal of International Law & Politics (2018), 447–507. See also Certain German Interests in Polish Upper Silesia, Judgment (Preliminary Objections), (25 August 1925), 1925 pcij Rep Series A-06 4, 18. See also The ‘Enrica Lexie’ Incident (Italy v. India), pca Case No. 2015–28, Award, (21 May 2020), paras. 808–811. From the literature, see, e.g., Charles T. Kotuby and Luke A. Sobota, General Principles of Law and International Due Process: Principles and Norms Applicable in Transnational Disputes (Oxford University Press, Oxford, 2017), 159–160.

16

See generally Andrew Serdy, “Article 298”, in Alexander Proelss (ed.), United Nations Convention on the Law of the Sea(unclos): A Commentary (C.H. Beck/Hart/Nomos, Munich/Oxford/Baden-Baden, 2017); Andrew Serdy, “Article 297”, in Alexander Proelss (ed.), United Nations Convention on the Law of the Sea (UNCLOS): A Commentary (C.H. Beck/Hart/Nomos, Munich/Oxford/Baden-Baden, 2017).

17

icj, North Sea Continental Shelf Cases (Federal Republic of Germany v. Netherlands/Denmark), Judgment, (20 February 1969), 1969 icj Reports 3, para. 96. See further Bing B. Jia, “The Principle of the Domination of the Land over the Sea: A Historical Perspective on the Adaptability of the Law of the Sea to New Challenges,” 57 German Yearbook of International Law (2014), 1–32; Irini Papanicolopulu, “The Land Dominates the Sea (Dominates the Land Dominates the Sea),” 47 Questions of International Law Zoom-in (2018), 39–48.

18

See generally L. D. M. Nelson, “Maritime Jurisdiction (2010)”, in Rüdiger Wolfrum (ed.), Max Planck Encyclopedia of Public International Law (Oxford University Press, Oxford, 2020).

19

Chagos Marine Protected Area Arbitration (Mauritius v. United Kingdom), pca Case No. 2011-03, Award, (18 March 2015).

20

South China Sea Arbitration (Republic of the Philippines v. People’s Republic of China), pca Case No. 2013–19, Award on Jurisdiction and Admissibility, (29 October 2015); South China Sea Arbitration (Republic of the Philippines v. People’s Republic of China), pca Case No. 2013–19,(Award, 12 July 2016).

21

South China Sea Arbitration (Award on Jurisdiction and Admissibility), op.cit. note 20, paras. 152–154; Chagos Marine Protected Area Arbitration (Award), op.cit. note 19, paras. 207–221.

22

For schorlarly discussion, see, e.g., Bernard H. Oxman, “The Third United Nations Conference on the Law of the Sea: the Ninth Session (1980),” 75 The American Journal of International Law (1981), 211–256, at 233; Sienho Yee, “Conciliation and the 1982 UN Convention on the Law of the Sea,” 44 Ocean Development & International Law (2013), 315–334, at 324–325; Alan E. Boyle, “unclos Dispute Settlement and the Uses and Abuses of Part xv,” 47 Revue Belge de Droit International (2014), 182–204, at 195–197; Abraham D. Sofaer, “The Philippine Law of the Sea Action against China: Relearning the Limits of International Adjudication,” 15 Chinese Journal of International Law (2016), 393–402, at 395; Wensheng Qu, “The Issue of Jurisdiction Over Mixed Disputes in the Chagos Marine Protection Area Arbitration and Beyond,” 47 Ocean Development & International Law (2016), 40–51; Stefan Talmon, “The Chagos Marine Protected Area Arbitration: Expansion of the Jurisdiction of unclos Part xv Courts and Tribunals,” 65 The International and Comparative Law Quarterly (2016), 927–951, at 334–336; Lan N. Nguyen, “The Chagos Marine Protected Area Arbitration: Has the Scope of losc Compulsory Jurisdiction Been Clarified?,” 31 The International Journal of Marine and Coastal Law (2016), 120–143, at 124–135; Peter Tzeng, “Ukraine v. Russia and Philippines v. China: Jurisdiction and Legitimacy,” 46 Denver Journal of International Law & Policy (2017), 1–19, at 3–8; Keyuan Zou and Qiang Ye, “Interpretation and Application of Article 298 of the Law of the Sea Convention in Recent Annex vii Arbitrations: An Appraisal,” 48 Ocean Development & International Law (2017), 331–344, at 338–339; David A. Colson and Brian J. Vohrer, “In re Chagos Marine Protected Area (Mauritius v. United Kingdom),” 109 The American Journal of International Law (2017), 845–851, at 851; Harrison, op.cit. note 12, 276–278; Natalie Klein, “The Vicissitudes of Dispute Settlement under the Law of the Sea Convention,” 32 The International Journal of Marine and Coastal Law (2017), 332–363, at 342–349; Proelss, op.cit. note 11, 50–56; Mario Gervasi, “The Interpretation of the United Nations Convention on the Law of the Sea in the Chagos Marine Protected Area Arbitration: The Influence of the Land Sovereignty Dispute”, in Angela del Vecchio and Roberto Virzo (eds.), Interpretations of the United Nations Convention on the Law of the Sea by International Courts and Tribunals (Springer, Cham, 2019), 191–223.

23

Dispute Concerning Coastal State Rights in the Black Sea, Sea of Azov, and Kerch Strait (Award concerning the Preliminary Objections of the Russian Federation), op.cit. note 3, para. 152.

24

Ibid.

25

Ibid., para. 191.

26

Ibid., paras. 155–161.

27

Ibid., paras. 163–166.

28

Cf. Article 40 of the Draft Articles on Responsibility of States for Internationally Wrongful Acts with Commentaries (2001) U.N. Doc. A/56/10. For discussion, see, e.g., Enrico Milano, “The Non-recognition of Russia’s Annexation of Crimea: Three Different Legal Approaches and One Unanswered Question,” Questions of International Law Zoom-Out (2014), 35–55.

29

Dispute Concerning Coastal State Rights in the Black Sea, Sea of Azov, and Kerch Strait (Award concerning the Preliminary Objections of the Russian Federation), op.cit. note 3, paras. 167–178, with particular reference to United Nations General Assembly Resolution 68/262, (27 March 2014), U.N. Doc. No. a/res/68/262.

30

Dispute Concerning Coastal State Rights in the Black Sea, Sea of Azov, and Kerch Strait (Award concerning the Preliminary Objections of the Russian Federation), op.cit.note 3,, paras. 177–178.

31

Ibid., para. 181.

32

Ibid., para. 183.

33

Ibid., para. 184.

34

Ibid., para. 188.

35

Ibid., paras. 189–190.

36

Ibid., para. 191.

37

Ibid., paras. 218–221.

38

Ibid., paras. 193–194.

39

Ibid., para. 195.

40

Ibid., paras. 196–197.

41

Ibid., paras. 198 and 492(d).

42

Ibid., para. 199.

43

Ibid.

44

The “ara Libertad” Case (Joint Separate Opinion of Judges Wolfrum and Cot), op.cit. note 13, paras. 23–34. For a particularly (in the view of the present author, too) strict view, see Kaare Bangert, “Internal Waters (2018)”, in Wolfrum (ed.), op.cit. note 18, para. 2: “internal waters are […] exclusively regulated under general customary law [and] have been deliberately excluded from [unclos]”. For a very broad contrary view, see Marcelo Kohen, “Is the Internal Waters Regime Excluded from the United Nations Convention on the Law of the Sea?”, in Lilian del Castillo (ed.), Law of the Sea, From Grotius to the International Tribunal for the Law of the Sea: Liber Amicorum Judge Hugo Caminos (Brill, Leiden, 2015), 110–124.

45

Dispute Concerning Coastal State Rights in the Black Sea, Sea of Azov, and Kerch Strait (Award concerning the Preliminary Objections of the Russian Federation), op.cit. note 3, paras. 254–255. See also The “ara Libertad” Case (Joint Separate Opinion of Judges Wolfrum and Cot), op.cit. note 13, para. 23.

46

Dispute Concerning Coastal State Rights in the Black Sea, Sea of Azov, and Kerch Strait (Award concerning the Preliminary Objections of the Russian Federation), op.cit. note 3, para. 200.

47

For an in-depth analysis, see Valentin J. Schatz and Dmytro Koval, “Russia’s Annexation of Crimea and the Passage of Ships Through Kerch Strait: A Law of the Sea Perspective,” 50 Ocean Development & International Law (2019), 275–297. For an earlier discussion, see Alexander Skaridov, “The Sea of Azov and the Kerch Straits”, in David D. Caron and Nilufer Oral (eds.), Navigating Straits: Challenges for International Law (Brill, Leiden, 2014), 220–237.

48

Schatz/Koval, op.cit. note 47.

49

Dispute Concerning Coastal State Rights in the Black Sea, Sea of Azov, and Kerch Strait (Award concerning the Preliminary Objections of the Russian Federation), op.cit. note 3, paras. 199–285.

50

On the regime of bays under Article 10 unclos, see generally Clive R. Symmons, “Article 10”, in Alexander Proelss (ed.), United Nations Convention on the Law of the Sea(unclos): A Commentary (C.H. Beck/Hart/Nomos, Munich/Oxford/Baden-Baden, 2017).

51

Arbitration Between the Republic of Croatia and the Republic of Slovenia, pca Case No. 2012-04, Final Award, (29 June 2017), paras. 771–914.

52

Dispute Concerning Coastal State Rights in the Black Sea, Sea of Azov, and Kerch Strait (Award concerning the Preliminary Objections of the Russian Federation), op.cit. note 3, para. 290.

53

Ibid., paras. 291–292.

54

Ibid., para. 293.

55

Ibid., paras. 294–296.

56

Ibid., para. 297.

58

Dispute Concerning Coastal State Rights in the Black Sea, Sea of Azov, and Kerch Strait (Award concerning the Preliminary Objections of the Russian Federation), op.cit. note 3,, paras. 384–385.

59

Ibid., paras. 388–389.

60

itlos, Dispute concerning Delimitation of the Maritime Boundary between Mauritius and Maldives in the Indian Ocean (Mauritius/Maldives), Judgment on Preliminary Objections, (28 January 2021), para. 79.

61

Ibid., paras. 101–251. There was also an objection based on lack of jurisdiction ratione personae as the United Kingdom was not a party to the proceedings, but this article will refrain from separately addressing this aspect as it is closely connected to the sovereignty dispute as an issue of jurisdiction ratione materiae.

62

Ibid., paras. 224–225.

63

icj, Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965, Advisory Opinion, (25 February 2019), 2019 icj Reports 95. Note that while there are certain parallels between these advisory proceedings and the categories of contentious cases at issue in this article, the icj did not face jurisdictional hurdles similar to those that arise under Article 288(1) unclos with respect to the implicated sovereignty dispute. Therefore, this article refrains from delving into the details of the advisory opinion. For detailed discussion of the advisory opinion, see, e.g., the contributions in Thomas Burri and Jamie Trinidad, The International Court of Justice and Decolonisation: New Directions from the Chagos Advisory Opinion (Cambridge University Press, Cambridge, 2021).

64

Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965, op.cit. note 63, para. 178.

65

Sarah Thin, “The Curious Case of the ‘Legal Effect’ of icj Advisory Opinions in the Mauritius/Maldives Maritime Boundary Dispute”, ejil:Talk, (5 February 2021), available at https://www.ejiltalk.org/the-curious-case-of-the-legal-effect-of-icj-advisory-opinions-in-the-mauritius-maldives-maritime-boundary-dispute/.

66

Dispute concerning Delimitation of the Maritime Boundary between Mauritius and Maldives in the Indian Ocean (Mauritius/Maldives) (Judgment on Preliminary Objections), op.cit. note 60, paras. 247–251.

67

itlos, Dispute concerning Delimitation of the Maritime Boundary between Mauritius and Maldives in the Indian Ocean (Mauritius/Maldives), Separate and Dissenting Opinion of Judge ad hoc Oxman, (28 January 2021), paras. 25–33.

68

On historic waters, including historic bays, see generally Clive R. Symmons, Historic Waters and Historic Rights in the Law of the Sea: A Modern Reappraisal (Brill, Leiden/Boston, 2019, 2nd ed.).

69

Press release on the decision of The Hague Arbitration Court concerning coastal state rights in the case of Ukraine v. the Russian Federation (22 February 2020), available at https://www.mid.ru/en/foreign_policy/news/-/asset_publisher/cKNonkJE02Bw/content/id/4055397.

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