seek a mutually acceptable solution.’
102 However, Russia was disadvantaged by its
non-appearance, an approach in contrast to prior behaviour. Instead, Russia’s stance
was inferred from its diplomatic communications, legislation, and judicial decisions
103 ; as Judges Wolfrum and Kelly noted, this weakened Russia’s position, as
well as the effectiveness of the dispute resolution process.
104
3.2 Issues of Jurisdiction in Ukraine v. Russia
The most recent interstate arbitral dispute to which Russia is party is the matter of
Ukraine v. Russia. Ukraine instituted proceedings under Annex VII of UNCLOS on
16 September 2016,
105 and Russia’s behaviour so far has differed significantly from
its conduct in the Arctic Sunrise matter. Here, Russia has appointed an arbitrator and
sent a delegation to The Hague,
106 attended the first procedural meeting, and
undertaken to file its Counter-Memorial by 19 November 2018.
107 Of particular
relevance is its submission of Preliminary Objections to the tribunal on 21 May
2018.
108 Although the particulars of its objections remain unknown at time of
writing (September 2018), Russia does intend to object on multiple grounds,
confirming its prior practice. Indeed, in addition to Russia’s usual grounds—that
the dispute is outside a convention’s scope; that there has been insufficient negotiation; and that Russia’s declaration limits the scope of the tribunal’s jurisdiction
109
—the matter also raises novel bases.
3.2.1 Declaration to UNCLOS
In its declarations upon signature and ratification to UNCLOS, Russia excluded the
compulsory settlement of disputes under the Convention in relation to certain
matters, including issues of sea boundary delimitations and historic title.
110 Both
102 Note Verbale (22 October 2013).
103 Arctic Sunrise (Provisional Measures), para. 2 (Judge Anderson).
104 Arctic Sunrise (Provisional Measures), para. 5 (Judges Wolfrum and Kelly).
105 Ukraine v. Russia (Rules of Procedure), Article 3.
106 PCA (Ukraine v. Russia), Press Release of 22 May 2017: https://pcacases.com/web/sendAttach/
2135.
107 Ukraine v. Russia (Rules of Procedure), Article 13(2)(a).
108 Ukraine v. Russia (Procedural Order No 3), p. 2.
109 See Sect. 2 above.
110 Ukraine v. Russia (Procedural Order No 3), p. 2.
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G. Kynaston and R. Brown
102 However, Russia was disadvantaged by its
non-appearance, an approach in contrast to prior behaviour. Instead, Russia’s stance
was inferred from its diplomatic communications, legislation, and judicial decisions
103 ; as Judges Wolfrum and Kelly noted, this weakened Russia’s position, as
well as the effectiveness of the dispute resolution process.
104
3.2 Issues of Jurisdiction in Ukraine v. Russia
The most recent interstate arbitral dispute to which Russia is party is the matter of
Ukraine v. Russia. Ukraine instituted proceedings under Annex VII of UNCLOS on
16 September 2016,
105 and Russia’s behaviour so far has differed significantly from
its conduct in the Arctic Sunrise matter. Here, Russia has appointed an arbitrator and
sent a delegation to The Hague,
106 attended the first procedural meeting, and
undertaken to file its Counter-Memorial by 19 November 2018.
107 Of particular
relevance is its submission of Preliminary Objections to the tribunal on 21 May
2018.
108 Although the particulars of its objections remain unknown at time of
writing (September 2018), Russia does intend to object on multiple grounds,
confirming its prior practice. Indeed, in addition to Russia’s usual grounds—that
the dispute is outside a convention’s scope; that there has been insufficient negotiation; and that Russia’s declaration limits the scope of the tribunal’s jurisdiction
109
—the matter also raises novel bases.
3.2.1 Declaration to UNCLOS
In its declarations upon signature and ratification to UNCLOS, Russia excluded the
compulsory settlement of disputes under the Convention in relation to certain
matters, including issues of sea boundary delimitations and historic title.
110 Both
102 Note Verbale (22 October 2013).
103 Arctic Sunrise (Provisional Measures), para. 2 (Judge Anderson).
104 Arctic Sunrise (Provisional Measures), para. 5 (Judges Wolfrum and Kelly).
105 Ukraine v. Russia (Rules of Procedure), Article 3.
106 PCA (Ukraine v. Russia), Press Release of 22 May 2017: https://pcacases.com/web/sendAttach/
2135.
107 Ukraine v. Russia (Rules of Procedure), Article 13(2)(a).
108 Ukraine v. Russia (Procedural Order No 3), p. 2.
109 See Sect. 2 above.
110 Ukraine v. Russia (Procedural Order No 3), p. 2.
298
G. Kynaston and R. Brown