Article 281.
137 The first question is whether Ukraine’s claim under UNCLOS is
reflected in a dispute under the relevant convention. This is difficult to determine
without knowledge of the extent of Ukraine’s claims. However, the 1997 Treaty, for
example, provides in Article 17 for the parties’ ‘freedom of transit of persons, freight
and vehicles,’ and Russia may argue that Ukraine’s claims arising from the movement of drilling rigs fall within this provision’s scope.
138 Similarly, the 2003 Border
Treaty governs disputes ‘relating to contiguous maritime waters’,
139 and the 2003
Cooperation Treaty refers to ‘the settlement of issues related to the Kerch Strait
maritime area’.
140 The relevance of each depends on the substance of Ukraine’s
claims, as well as the tribunal’s interpretation of these clauses. The second issue is
whether these sufficiently exclude other settlement procedures. This is not clearly
established: even following the broader view of the tribunal in Southern Bluefin
Tuna,
141 it is difficult to find the requisite intention to exclude UNCLOS in these
treaties.
Overall, it appears that Russia will continue to participate in the Ukraine v. Russia
matter, despite its anomalous non-participation in the Arctic Sunrise matter. Consistent with its past behaviour, it has objected to the tribunal’s jurisdiction on several
grounds. This further confirms Russia’s tenuous relationship with international
dispute resolution processes.
4 Russia’s Compliance with the Law of the Sea
While the Arctic Sunrise and Ukraine v. Russia arbitrations reflect Russia’s
contrasting approaches to participation, they also show the effect the international
law of the sea has on Russia’s compliance in interstate arbitration. From this, it
appears that the law of the sea not only delimits Russia’s relationship with international law, but also has a broader impact on Russian foreign policy.
142
137 See Treaty on Friendship, Cooperation and Partnership Between Ukraine and the Russian
Federation (Kiev, 31 May 1997, in force 1 April 1999) UNTS No 52240, Article 37; Treaty between
Ukraine and the Russian Federation on the Ukrainian-Russian State Border (Kerch, 28 January
2003, in force 23 April 2004), Article 5 (‘Border Treaty’); Treaty Between the Russian Federation
and Ukraine on Cooperation in the Use of the Sea of Azov and the Strait of Kerch (Kerch,
24 December 2003, in force 23 April 2004), Art. 1 (‘Cooperation Treaty’).
138 See Ukraine v. Russia (Press Release, 31 August 2018).
139 Border Treaty, Art. 5.
140 Cooperation Treaty, Art. 1.
141 On the approach’s persuasiveness, see, e.g., Boyle and Evans (2001), and Kwiatkowska (2003).
142 A further example is the relationship between Russia and Norway in the Barents Sea. The two
States have long cooperated on enforcement measures in relation to fisheries violations, and in 2010
resolved their dispute over maritime delimitation. Contrary to its initial position, Russia agreed to
delimit the sea according to the median-line principle, the predominant approach under international
law: Hønneland (2014), and Choi (2014).
302
G. Kynaston and R. Brown
137 The first question is whether Ukraine’s claim under UNCLOS is
reflected in a dispute under the relevant convention. This is difficult to determine
without knowledge of the extent of Ukraine’s claims. However, the 1997 Treaty, for
example, provides in Article 17 for the parties’ ‘freedom of transit of persons, freight
and vehicles,’ and Russia may argue that Ukraine’s claims arising from the movement of drilling rigs fall within this provision’s scope.
138 Similarly, the 2003 Border
Treaty governs disputes ‘relating to contiguous maritime waters’,
139 and the 2003
Cooperation Treaty refers to ‘the settlement of issues related to the Kerch Strait
maritime area’.
140 The relevance of each depends on the substance of Ukraine’s
claims, as well as the tribunal’s interpretation of these clauses. The second issue is
whether these sufficiently exclude other settlement procedures. This is not clearly
established: even following the broader view of the tribunal in Southern Bluefin
Tuna,
141 it is difficult to find the requisite intention to exclude UNCLOS in these
treaties.
Overall, it appears that Russia will continue to participate in the Ukraine v. Russia
matter, despite its anomalous non-participation in the Arctic Sunrise matter. Consistent with its past behaviour, it has objected to the tribunal’s jurisdiction on several
grounds. This further confirms Russia’s tenuous relationship with international
dispute resolution processes.
4 Russia’s Compliance with the Law of the Sea
While the Arctic Sunrise and Ukraine v. Russia arbitrations reflect Russia’s
contrasting approaches to participation, they also show the effect the international
law of the sea has on Russia’s compliance in interstate arbitration. From this, it
appears that the law of the sea not only delimits Russia’s relationship with international law, but also has a broader impact on Russian foreign policy.
142
137 See Treaty on Friendship, Cooperation and Partnership Between Ukraine and the Russian
Federation (Kiev, 31 May 1997, in force 1 April 1999) UNTS No 52240, Article 37; Treaty between
Ukraine and the Russian Federation on the Ukrainian-Russian State Border (Kerch, 28 January
2003, in force 23 April 2004), Article 5 (‘Border Treaty’); Treaty Between the Russian Federation
and Ukraine on Cooperation in the Use of the Sea of Azov and the Strait of Kerch (Kerch,
24 December 2003, in force 23 April 2004), Art. 1 (‘Cooperation Treaty’).
138 See Ukraine v. Russia (Press Release, 31 August 2018).
139 Border Treaty, Art. 5.
140 Cooperation Treaty, Art. 1.
141 On the approach’s persuasiveness, see, e.g., Boyle and Evans (2001), and Kwiatkowska (2003).
142 A further example is the relationship between Russia and Norway in the Barents Sea. The two
States have long cooperated on enforcement measures in relation to fisheries violations, and in 2010
resolved their dispute over maritime delimitation. Contrary to its initial position, Russia agreed to
delimit the sea according to the median-line principle, the predominant approach under international
law: Hønneland (2014), and Choi (2014).
302
G. Kynaston and R. Brown