Chernomorneftegaz is shifting its operations away from extraction in the Black Sea,
and towards concluding supplier agreements with Russia. Indeed, three new electricity plants serviced by this pipeline are planned for commission in Crimea in
2018.
227 This indicates the broader Russian policy in relation to sourcing energy: the
economic plan, preceding the arbitral claim by at least a year—preparatory works on
the pipeline begun by October 2015
228
—may evince a prior Russian intention to
cease Black Sea operations.
Overall, it is difficult to assess the extent to which Ukraine’s arbitral claim caused
Russia to cease operations in the Odessa gas field. On the one hand, the nexus
between the content of Ukraine’s claim, relevant international law, and the direct
impact of Russia’s recent decision on its state of compliance, implies causality.
Alternatively, the decision aligned with Russia’s broader geopolitical and economic
concerns, and may have been made without reference to Ukraine’s legal position.
However, even in the latter case, two points stand. First, these contextual circumstances are not devoid of international legal character. Tensions between Russia and
Ukraine arise on the same facts on which Ukraine bases its claim—unlawful activity
in its waters—and the energy difficulties Crimea faces are linked to sanctions based
on Russia’s alleged violations of international law. Second, at any rate, international
law has substantiated the policy Russia adopted. The very fact that Russia’s stop
order is referable to Ukraine’s claim entails that Ukraine would interpret, and Russia
explain, actions affecting that decision in the language of international law. The
recent ‘legalisation’ of the language of international politics means that such an interpretation or framing of conduct, otherwise devoid of ‘legal’ motivation, is
expected.
229 Thus, the distinction is semantic: either Russia acted in order to comply
with international law, or acted in a way that evinced the same compliance, a signal
Russia knew the international community would recognise.
5 Conclusion
Russia’s relationship with arbitration in the context of the law of the sea is a story of
paradoxes. While it typically supports legal dispute resolution institutions, participating in and contributing to proceedings, this is undermined by consistent jurisdictional challenges and a clear preference for non-binding determinations; in any case,
in the Arctic Sunrise arbitration, where such jurisdictional challenges were available,
Russia was absent. Similarly, while Russia has been sued by affected States for
breaches of the law of the sea, its conduct tends towards compliance, particularly
where arbitral tribunals are constituted and prepared to rule on putative breaches; in
227 Id.
228 See, e.g., ‘Purchases for new gas pipeline from Krasnodar region to Crimea include 200 km of
pipes’, Russian News Agency TASS (online), 1 October 2015: http://tass.com/economy/825243.
229 Sinclair (2010), p. 1; Kratochwil (2014), p. 1.
16 Implementing the Law of the Sea: Russia and Arbitrations Under Annex VII to. . .
315
and towards concluding supplier agreements with Russia. Indeed, three new electricity plants serviced by this pipeline are planned for commission in Crimea in
2018.
227 This indicates the broader Russian policy in relation to sourcing energy: the
economic plan, preceding the arbitral claim by at least a year—preparatory works on
the pipeline begun by October 2015
228
—may evince a prior Russian intention to
cease Black Sea operations.
Overall, it is difficult to assess the extent to which Ukraine’s arbitral claim caused
Russia to cease operations in the Odessa gas field. On the one hand, the nexus
between the content of Ukraine’s claim, relevant international law, and the direct
impact of Russia’s recent decision on its state of compliance, implies causality.
Alternatively, the decision aligned with Russia’s broader geopolitical and economic
concerns, and may have been made without reference to Ukraine’s legal position.
However, even in the latter case, two points stand. First, these contextual circumstances are not devoid of international legal character. Tensions between Russia and
Ukraine arise on the same facts on which Ukraine bases its claim—unlawful activity
in its waters—and the energy difficulties Crimea faces are linked to sanctions based
on Russia’s alleged violations of international law. Second, at any rate, international
law has substantiated the policy Russia adopted. The very fact that Russia’s stop
order is referable to Ukraine’s claim entails that Ukraine would interpret, and Russia
explain, actions affecting that decision in the language of international law. The
recent ‘legalisation’ of the language of international politics means that such an interpretation or framing of conduct, otherwise devoid of ‘legal’ motivation, is
expected.
229 Thus, the distinction is semantic: either Russia acted in order to comply
with international law, or acted in a way that evinced the same compliance, a signal
Russia knew the international community would recognise.
5 Conclusion
Russia’s relationship with arbitration in the context of the law of the sea is a story of
paradoxes. While it typically supports legal dispute resolution institutions, participating in and contributing to proceedings, this is undermined by consistent jurisdictional challenges and a clear preference for non-binding determinations; in any case,
in the Arctic Sunrise arbitration, where such jurisdictional challenges were available,
Russia was absent. Similarly, while Russia has been sued by affected States for
breaches of the law of the sea, its conduct tends towards compliance, particularly
where arbitral tribunals are constituted and prepared to rule on putative breaches; in
227 Id.
228 See, e.g., ‘Purchases for new gas pipeline from Krasnodar region to Crimea include 200 km of
pipes’, Russian News Agency TASS (online), 1 October 2015: http://tass.com/economy/825243.
229 Sinclair (2010), p. 1; Kratochwil (2014), p. 1.
16 Implementing the Law of the Sea: Russia and Arbitrations Under Annex VII to. . .
315