Most pertinently, it has even done so previously in the context of Crimean sovereignty, in the Application of CERD and ICSFT matter.
127
On the other hand, tribunals are reticent to expand this ground of objection, as
doing so would encourage, and even legitimise, raising ‘disputes’ over territory in
order to exclude jurisdiction. In considering Russia’s object, the tribunal may
consider the legitimacy of its claim over Crimea, and thus whether a real dispute
of sovereignty exists, so as to exclude UNCLOS’ dispute resolution mechanisms.
128
3.2.3 Negotiation Between the Parties
A final jurisdictional basis claimed by Russia is that of insufficient negotiation
between the parties.
129 Once a dispute arises, Article 281(1) of UNCLOS requires
some precedent acts indicating attempts to settle the dispute peacefully, before a
State may bring its claim.
130 Tribunals have differed in their approach to excluding
jurisdiction on account of prior negotiation. The majority of tribunals are reticent to
do so.
131 However, the arbitral tribunal in Southern Bluefin Tuna widened the
exception’s scope by permitting other treaties to exclude UNCLOS dispute resolution mechanisms even without an express term.
132 This interpretation was expressly
opposed by the tribunal in the South China Sea arbitration, which stated that there
must be a ‘clear statement of exclusion of further procedures.’
133 Further, tribunals
construe what constitutes an agreement for the purposes of the article narrowly. In
the South China Sea arbitration, the relevant treaty was found not to be an agreement
for the purposes of the article, as it ‘was not intended to create legal rights and
obligations’.
134 Other tribunals have held similarly.
135
Russia and Ukraine have entered several agreements concerning issues related to
maritime rights, each including dispute settlement provisions. Following Tzeng,
136
three such provisions in particular may give rise to an objection under UNCLOS
127 See Sect. 2.1.2 above.
128 See further Tzeng (2017), p. 7.
129 Ukraine v. Russia (Press Release, 31 August 2018).
130 UNCLOS, Art. 281(1).
131 See Sect. 2.2 above. See also Arbitral Tribunal, PCA Case No 2004-02 (Barbados v. Trinidad
and Tobago), Award of 11 April 2006, para. 200; Arbitral Tribunal, PCA Case No 2002-1 The
MOX Plant Case (Ireland v. United Kingdom), Order No 3 (Suspension) of 24 June 2003, para. 18.
132 Arbitral Tribunal, Southern Bluefin Tuna (New Zealand v. Japan; Australia v. Japan), Award on
Jurisdiction and Admissibility of 4 August 2000 (2002) 23 RIAA 1, paras. 40, 57, 65 (‘Southern
Bluefin Tuna (Jurisdiction)’).
133 South China Sea (Jurisdiction), para. 223.
134 Id., para. 217.
135 See, e.g., ITLOS, Case No 12 Land Reclamation in and around the Straits of Johor (Malaysia
v. Singapore), Decision on Provisional Measures of 8 October 2003.
136 Tzeng (2017), p. 10.
16 Implementing the Law of the Sea: Russia and Arbitrations Under Annex VII to. . .
301
127
On the other hand, tribunals are reticent to expand this ground of objection, as
doing so would encourage, and even legitimise, raising ‘disputes’ over territory in
order to exclude jurisdiction. In considering Russia’s object, the tribunal may
consider the legitimacy of its claim over Crimea, and thus whether a real dispute
of sovereignty exists, so as to exclude UNCLOS’ dispute resolution mechanisms.
128
3.2.3 Negotiation Between the Parties
A final jurisdictional basis claimed by Russia is that of insufficient negotiation
between the parties.
129 Once a dispute arises, Article 281(1) of UNCLOS requires
some precedent acts indicating attempts to settle the dispute peacefully, before a
State may bring its claim.
130 Tribunals have differed in their approach to excluding
jurisdiction on account of prior negotiation. The majority of tribunals are reticent to
do so.
131 However, the arbitral tribunal in Southern Bluefin Tuna widened the
exception’s scope by permitting other treaties to exclude UNCLOS dispute resolution mechanisms even without an express term.
132 This interpretation was expressly
opposed by the tribunal in the South China Sea arbitration, which stated that there
must be a ‘clear statement of exclusion of further procedures.’
133 Further, tribunals
construe what constitutes an agreement for the purposes of the article narrowly. In
the South China Sea arbitration, the relevant treaty was found not to be an agreement
for the purposes of the article, as it ‘was not intended to create legal rights and
obligations’.
134 Other tribunals have held similarly.
135
Russia and Ukraine have entered several agreements concerning issues related to
maritime rights, each including dispute settlement provisions. Following Tzeng,
136
three such provisions in particular may give rise to an objection under UNCLOS
127 See Sect. 2.1.2 above.
128 See further Tzeng (2017), p. 7.
129 Ukraine v. Russia (Press Release, 31 August 2018).
130 UNCLOS, Art. 281(1).
131 See Sect. 2.2 above. See also Arbitral Tribunal, PCA Case No 2004-02 (Barbados v. Trinidad
and Tobago), Award of 11 April 2006, para. 200; Arbitral Tribunal, PCA Case No 2002-1 The
MOX Plant Case (Ireland v. United Kingdom), Order No 3 (Suspension) of 24 June 2003, para. 18.
132 Arbitral Tribunal, Southern Bluefin Tuna (New Zealand v. Japan; Australia v. Japan), Award on
Jurisdiction and Admissibility of 4 August 2000 (2002) 23 RIAA 1, paras. 40, 57, 65 (‘Southern
Bluefin Tuna (Jurisdiction)’).
133 South China Sea (Jurisdiction), para. 223.
134 Id., para. 217.
135 See, e.g., ITLOS, Case No 12 Land Reclamation in and around the Straits of Johor (Malaysia
v. Singapore), Decision on Provisional Measures of 8 October 2003.
136 Tzeng (2017), p. 10.
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