have been the subject of disagreement between Ukraine and Russia since the
dissolution of the USSR.
111
Ukraine’s claims concern violations of its rights, rather than sovereignty over the
maritime area per se.
112 This raises issues akin to those considered in the South
China Sea arbitration: that tribunal held that the Philippines’ submissions on ‘historic rights’ did not fall under China’s exclusion of ‘historic bays or title’ under
Article 298 of UNCLOS,
113 as these were a distinct concept not covered by the
Article.
114 As China had not previously claimed sovereignty over the ‘entirety’ of
the South China Sea, the issue was properly one of rights, not title.
115 Accordingly,
Ukraine, in articulating its claim as one concerning rights, may similarly avoid such
an exclusion. However, the fine line between rights and title, and the States’
particular circumstances, may allow Russia to object under the declaration. The
likelihood of such an objection is higher in light of Russia’s past tendency to rely on
the ground that the claim differs from the ‘real’ dispute, and the tribunal thus lacks
jurisdiction.
116 Moreover, as has been suggested by Schatz and Koval,
117 classification of the Sea of Azov as a historic bay may allow Russia to submit that its
declaration excludes such a claim.
As the approach in the South China Sea arbitration indicates, tribunals constituted
under Annex VII tend to limit States’ ability to rely on Article 298 of UNCLOS to
exclude jurisdiction. However, different tribunals will bring different approaches to
determining the scope of such declarations, and, in light of the lack of consensus on
the regime of historic bays and title,
118 attempts to assess prospectively the success
of such a challenge to jurisdiction are necessarily uncertain.
111 See, e.g., Agreement on Cooperation on the use of the Sea of Azov and the Kerch Strait (Kerch,
24 December 2003), Article 1; Joint Statement by the President of Ukraine and the President of the
Russian Federation on the Sea of Azov and the Strait of Kerch (Kerch, 24 December 2003); Joint
Statement by the President of Ukraine and the President of the Russian Federation (Crimea,
12 July 2012).
112 PCA (Ukraine v. Russia), Press Release of 31 August 2018: https://pcacases.com/web/
sendAttach/2447 (‘Ukraine v. Russia (Press Release, 31 August 2018)’).
113 South China Sea (Jurisdiction), para. 24.
114 Id., para. 226.
115 Id., para. 227.
116 See Sect. 2.1 above.
117 Schatz and Koval (2018).
118 See, e.g., Case Concerning the Continental Shelf (Tunisia/Libyan Arab Jamahiriya) [1982] ICJ
Rep 18, para. 100: ‘The draft convention. . . [does not] contain any detailed provisions on the
“regime” of historic waters: there is neither a definition of the concept nor an elaboration of the
juridical regime of “historic waters” or “historic bays”.’
16 Implementing the Law of the Sea: Russia and Arbitrations Under Annex VII to. . .
299
dissolution of the USSR.
111
Ukraine’s claims concern violations of its rights, rather than sovereignty over the
maritime area per se.
112 This raises issues akin to those considered in the South
China Sea arbitration: that tribunal held that the Philippines’ submissions on ‘historic rights’ did not fall under China’s exclusion of ‘historic bays or title’ under
Article 298 of UNCLOS,
113 as these were a distinct concept not covered by the
Article.
114 As China had not previously claimed sovereignty over the ‘entirety’ of
the South China Sea, the issue was properly one of rights, not title.
115 Accordingly,
Ukraine, in articulating its claim as one concerning rights, may similarly avoid such
an exclusion. However, the fine line between rights and title, and the States’
particular circumstances, may allow Russia to object under the declaration. The
likelihood of such an objection is higher in light of Russia’s past tendency to rely on
the ground that the claim differs from the ‘real’ dispute, and the tribunal thus lacks
jurisdiction.
116 Moreover, as has been suggested by Schatz and Koval,
117 classification of the Sea of Azov as a historic bay may allow Russia to submit that its
declaration excludes such a claim.
As the approach in the South China Sea arbitration indicates, tribunals constituted
under Annex VII tend to limit States’ ability to rely on Article 298 of UNCLOS to
exclude jurisdiction. However, different tribunals will bring different approaches to
determining the scope of such declarations, and, in light of the lack of consensus on
the regime of historic bays and title,
118 attempts to assess prospectively the success
of such a challenge to jurisdiction are necessarily uncertain.
111 See, e.g., Agreement on Cooperation on the use of the Sea of Azov and the Kerch Strait (Kerch,
24 December 2003), Article 1; Joint Statement by the President of Ukraine and the President of the
Russian Federation on the Sea of Azov and the Strait of Kerch (Kerch, 24 December 2003); Joint
Statement by the President of Ukraine and the President of the Russian Federation (Crimea,
12 July 2012).
112 PCA (Ukraine v. Russia), Press Release of 31 August 2018: https://pcacases.com/web/
sendAttach/2447 (‘Ukraine v. Russia (Press Release, 31 August 2018)’).
113 South China Sea (Jurisdiction), para. 24.
114 Id., para. 226.
115 Id., para. 227.
116 See Sect. 2.1 above.
117 Schatz and Koval (2018).
118 See, e.g., Case Concerning the Continental Shelf (Tunisia/Libyan Arab Jamahiriya) [1982] ICJ
Rep 18, para. 100: ‘The draft convention. . . [does not] contain any detailed provisions on the
“regime” of historic waters: there is neither a definition of the concept nor an elaboration of the
juridical regime of “historic waters” or “historic bays”.’
16 Implementing the Law of the Sea: Russia and Arbitrations Under Annex VII to. . .
299