3.2.2 Dispute
The tribunal may need to consider the parties’ underlying territorial dispute before
determining Ukraine’s claim. However, the tribunal’s questionable ability to hear
territorial claims allows for jurisdictional challenge, and this is the primary ground
on which Russia relies.
119
The jurisdiction of a tribunal under Annex VII is limited to disputes concerning
the interpretation or application of UNCLOS.
120 As above, Ukraine’s claims
concerning interference with ‘rights’ suggest prima facie that the proceedings
fall within this scope. However, Ukraine asserts that these rights arise from its status
as coastal State,
121 based on Ukrainian sovereignty over Crimea. The underlying
dispute, therefore, may concern the legality of Russia’s annexation of Crimea,
consideration of which falls outside the UNCLOS regime.
The tribunal in the Chagos Island dispute discussed the extent to which a tribunal
constituted under UNCLOS could consider incidental matters of territorial sovereignty.
122 It held that the claimed violations of Mauritius’ rights over disputed
islands, at its essence, involved determining the islands’ sovereignty; this left it
without jurisdiction.
123 If, however, issues of sovereignty had been only ancillary,
the requisite jurisdiction would have subsisted.
124 Similarly, the South China Sea
arbitration considered whether the Philippines’ submission, that China’s maritime
claims in the South China Sea were excessive,
125 concerned sovereignty. The
tribunal articulated that jurisdiction may be excluded where the tribunal would
need to render a decision on sovereignty, ‘either expressly or implicitly’, and
where the actual objective of the claim was to advance a position in a dispute over
territorial sovereignty.
126
Accordingly, it is likely that the territorial dimension of Ukraine’s claim precludes the tribunal’s jurisdiction: determining Ukraine’s rights necessarily requires
the tribunal to determine first whether Ukraine is the coastal State of an area subject
to longstanding dispute. Alternatively, it would not be unusual for Russia to argue
that the real purpose of Ukraine’s action was to gain prejudicial advantage in the
sovereignty claim, as it frequently criticises States for alleged mala fide purposes.
119 Ukraine v. Russia (Press Release, 31 August 2018).
120 UNCLOS, Art. 288(1).
121 Ministry of Foreign Affairs of Ukraine, Press Release of 14 September 2016: http://mfa.gov.ua/
arbitrazhnogo-provadzhennya-proti-rosijsykoji-federaciji-vidpovidno-do-konvenciji-oon-zmorsykogo-prava (‘Ukraine, Statement on Initiation of Arbitration’).
122 Chagos Islands, para. 221.
123 Ibid.
124 Ibid.
125 Arbitral Tribunal, PCA Case No 2013-19 The South China Sea Arbitration (The Republic of
Philippines v. The People’s Republic of China), Memorial of the Philippines of 30 March 2014,
para. 1.7.
126 South China Sea (Jurisdiction), para. 153.
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The tribunal may need to consider the parties’ underlying territorial dispute before
determining Ukraine’s claim. However, the tribunal’s questionable ability to hear
territorial claims allows for jurisdictional challenge, and this is the primary ground
on which Russia relies.
119
The jurisdiction of a tribunal under Annex VII is limited to disputes concerning
the interpretation or application of UNCLOS.
120 As above, Ukraine’s claims
concerning interference with ‘rights’ suggest prima facie that the proceedings
fall within this scope. However, Ukraine asserts that these rights arise from its status
as coastal State,
121 based on Ukrainian sovereignty over Crimea. The underlying
dispute, therefore, may concern the legality of Russia’s annexation of Crimea,
consideration of which falls outside the UNCLOS regime.
The tribunal in the Chagos Island dispute discussed the extent to which a tribunal
constituted under UNCLOS could consider incidental matters of territorial sovereignty.
122 It held that the claimed violations of Mauritius’ rights over disputed
islands, at its essence, involved determining the islands’ sovereignty; this left it
without jurisdiction.
123 If, however, issues of sovereignty had been only ancillary,
the requisite jurisdiction would have subsisted.
124 Similarly, the South China Sea
arbitration considered whether the Philippines’ submission, that China’s maritime
claims in the South China Sea were excessive,
125 concerned sovereignty. The
tribunal articulated that jurisdiction may be excluded where the tribunal would
need to render a decision on sovereignty, ‘either expressly or implicitly’, and
where the actual objective of the claim was to advance a position in a dispute over
territorial sovereignty.
126
Accordingly, it is likely that the territorial dimension of Ukraine’s claim precludes the tribunal’s jurisdiction: determining Ukraine’s rights necessarily requires
the tribunal to determine first whether Ukraine is the coastal State of an area subject
to longstanding dispute. Alternatively, it would not be unusual for Russia to argue
that the real purpose of Ukraine’s action was to gain prejudicial advantage in the
sovereignty claim, as it frequently criticises States for alleged mala fide purposes.
119 Ukraine v. Russia (Press Release, 31 August 2018).
120 UNCLOS, Art. 288(1).
121 Ministry of Foreign Affairs of Ukraine, Press Release of 14 September 2016: http://mfa.gov.ua/
arbitrazhnogo-provadzhennya-proti-rosijsykoji-federaciji-vidpovidno-do-konvenciji-oon-zmorsykogo-prava (‘Ukraine, Statement on Initiation of Arbitration’).
122 Chagos Islands, para. 221.
123 Ibid.
124 Ibid.
125 Arbitral Tribunal, PCA Case No 2013-19 The South China Sea Arbitration (The Republic of
Philippines v. The People’s Republic of China), Memorial of the Philippines of 30 March 2014,
para. 1.7.
126 South China Sea (Jurisdiction), para. 153.
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