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Lawyers, other representatives, expert(s), tribunal’s secretary

Award Concerning the Preliminary Objections of the Russian Federation

Glossary of Defined Terms / List of Abbreviations

Azov/Kerch Cooperation Treaty Treaty between the Russian Federation and Ukraine on Cooperation in the Use of the Sea of Azov and the Kerch Strait, done at Kerch on 24 December 2003
Convention or UNCLOS United Nations Convention on the Law of the Sea, done at Montego Bay on 10 December 1982
Four Categories The four categories of disputes enumerated in Annex VIII, Article 1, of the Convention
Geneva Convention Convention on the Territorial Sea and the Contiguous Zone, done at Geneva on 29 April 1958
Hearing Hearing on preliminary objections held from 10 to 14 June 2019 at the headquarters of the PCA at the Peace Palace in The Hague, the Netherlands
ICJ International Court of Justice
ILC Articles on State Responsibility International Law Commission’s Articles on the Responsibility of States for Internationally Wrongful Acts
ITLOS International Tribunal for the Law of the Sea
Joint Statement Joint Statement by the President of the Russian Federation and the President of Ukraine on the Sea of Azov and the Kerch Strait, dated 24 December 2003
Notification and Statement of Claim Notification under Article 287 and Annex VII, Article 1 of UNCLOS and Statement of Claim and Grounds on Which it is Based of Ukraine, dated 14 September 2016
PCA Permanent Court of Arbitration
Russian Federation’s Reply Reply to the Written Observations and Submissions of Ukraine on Jurisdiction, dated 28 January 2019
Rules of Procedure Rules of Procedure for the Arbitration adopted by the Arbitral Tribunal, dated 18 May 2017
Russian Federation’s Preliminary Objections Preliminary Objections of the Russian Federation, dated 19 May 2018
State Border Treaty Treaty Between the Russian Federation and Ukraine on the Russian-Ukrainian State Border, done at Kiev on 28 January 2003
Ukraine’s Memorial Memorial of Ukraine, dated 19 February 2018
Ukraine’s Rejoinder Rejoinder of Ukraine on Jurisdiction, dated 28 March 2019
Ukraine’s Written Observations Written Observations and Submissions of Ukraine on Jurisdiction, dated 27 November 2018
UNGA United Nations General Assembly
USSR Union of Soviet Socialist Republics

I. PROCEDURAL HISTORY

A. Introduction

1.
Ukraine and the Russian Federation are States Parties to the United Nations Convention on the Law of the Sea (hereinafter the "Convention" or "UNCLOS"), having ratified the Convention on 26 July 1999 and 12 March 1997, respectively.
2.
The present case has arisen in the wake of events that occurred in 2014 in Crimea, a peninsula surrounded by the Black Sea to the west and south, and the Sea of Azov to the northeast. The Black Sea and the Sea of Azov are connected by the Kerch Strait. In their pleadings, the Parties characterise these events in different ways.
3.
Ukraine takes the view that, in 2014, "the Russian Federation invaded and occupied the Crimean Peninsula, and then purported to annex it."1
4.
The Russian Federation "categorically denies" such allegations.2 Instead, the Russian Federation points out that a "referendum on the future of the [Crimean] peninsula"3 was held on 16 March 2014 in response to a "coup d'état in Kiev in February 2014," which "provoked deep division in the Ukrainian society."4 The Russian Federation states that since "the majority of voters [...] opted for reunification with [the Russian Federation]," "Crimea declared its independence on 17 March 2014 and on 18 March it concluded an international treaty on accession to [the Russian Federation]."5
5.
The Russian Federation adds that following Crimea's accession, it "assumed all the rights and duties of the coastal State in relation to the waters adjacent to the peninsula" and that "[i]nternationally, Russia unconditionally affirmed its status as a coastal State in relation to waters surrounding Crimea."6
6.
Ukraine denies that those events have the legal character and effect attributed to them by the Russian Federation.7 According to Ukraine, the referendum of 16 March 2014 "was held on Ukrainian territory in violation of Ukrainian law."8 Ukraine states that it occurred in the aftermath of "Russia's unlawful use of force in Ukraine,"9 and that the Russian Federation's actions "have been rejected as unlawful and invalid by the international community."10 In particular, Ukraine points out that the United Nations General Assembly, on 27 March 2014, adopted a resolution in which it, inter alia, underscored that the above referendum had "no validity" and "cannot form the basis for any alteration of the status of the Autonomous Republic of Crimea or of the city of Sevastopol."11
7.
In the present Arbitration, Ukraine alleges that various "unauthorized activities" of the Russian Federation occurring subsequently to these events "violate Ukraine's rights under the United Nations Convention on the Law of the Sea of 10 December 1982."12

B. Institution of the Proceedings

8.
This Arbitration was instituted by Ukraine on 16 September 2016 when it served on the Russian Federation a Notification under Article 287 and Annex VII, Article 1 of UNCLOS and Statement of the Claim and Grounds on which it is Based, dated 14 September 2016 (hereinafter the "Notification and Statement of Claim"), in respect of a "Dispute Concerning Coastal State Rights in the Black Sea, Sea of Azov, and Kerch Strait."
9.
In its Notification and Statement of Claim, Ukraine requested the Arbitral Tribunal to adjudge and declare the following:

a. Ukraine has the exclusive right to engage in, authorize, and regulate exploration and exploitation of natural resources, including drilling related to hydrocarbons, in the areas of the Black Sea and Sea of Azov where the Russian Federation did not challenge Ukraine's jurisdiction and rights prior to February 2014; any such activities engaged in or authorized by the Russian Federation in those areas are not compatible with the Convention and constitute internationally wrongful acts for which the Russian Federation bears international responsibility;

b. The Russian Federation's Federal Law 161-FZ of 29 June 2015, and the Decree of 31 August 2015 (#916), are not compatible with the Convention and constitute internationally wrongful acts for which the Russian Federation bears international responsibility;

c. Ukraine has the exclusive right to authorize and regulate fishing in the areas of the Black Sea and Sea of Azov where the Russian Federation did not challenge Ukraine’s jurisdiction and rights prior to February 2014; any fishing activities engaged in or authorized by the Russian Federation in those areas are not compatible with the Convention and constitute internationally wrongful acts for which the Russian Federation bears international responsibility;

d. The Russian Federation shall refrain from preventing Ukrainian vessels from exploiting in a sustainable manner the living resources in the areas of the Black Sea and Sea of Azov where the Russian Federation did not challenge Ukraine’s jurisdiction and rights prior to February 2014; any efforts by the Russian Federation to interfere with Ukrainian vessels in these areas are not compatible with the Convention and constitute internationally wrongful acts for which the Russian Federation bears international responsibility;

e. Order #273 of the Ministry of Agriculture of the Russian Federation is not compatible with the Convention and constitutes an internationally wrongful act for which the Russian Federation bears international responsibility;

f. Ukraine has the right to passage through the Kerch Strait; any restrictions placed by the Russian Federation on Ukrainian transit through the Kerch Strait is not compatible with the Convention and constitutes an internationally wrongful act for which the Russian Federation bears international responsibility;

g. The Russian Federation shall cooperate with Ukraine in the regulation of the Kerch Strait, including pilotage along the canal in the Kerch Strait; the Russian Federation’s failure to cooperate is not compatible with the Convention and constitutes an internationally wrongful act for which the Russian Federation bears international responsibility;

h. The Russian Federation may not lay a submarine cable, construct a bridge, or construct a pipeline through and across the Kerch Strait from Russian territory to the Crimean Peninsula without Ukraine's consent; any such activities engaged in or authorized by the Russian Federation are not compatible with the Convention and constitute internationally wrongful acts for which the Russian Federation bears international responsibility;

i. The Russian Federation is required to provide all due cooperation to Ukraine in the prevention and preservation of the marine environment, including supplying information relating to any oil spill or other pollution incident in the areas of the Black Sea and Sea of Azov where the Russian Federation did not challenge Ukraine’s jurisdiction and rights prior to February 2014, including the reported oil spill in the Black Sea near Sevastopol in May 2016;

j. The Russian Federation may not without Ukraine’s consent and cooperation remove from the seabed or otherwise disrupt or disturb archaeological, historical, or cultural objects or heritage found in Ukraine’s territorial sea and contiguous zone, including the sunken Byzantine ship located in the Black Sea near Sevastopol and any artifacts associated with it; any such activities engaged in or authorized by the Russian Federation in those areas are not compatible with the Convention and constitute internationally wrongful acts for which the Russian Federation bears international responsibility.13

10.
Ukraine further requested the Arbitral Tribunal to "order the Russian Federation to immediately cease its internationally wrongful actions in the Black Sea, Sea of Azov, and Kerch Strait, and provide Ukraine with appropriate assurances and guarantees of non-repetition of all internationally wrongful acts found by the tribunal"14 and to "order the Russian Federation to make full reparation to Ukraine for the injury caused by its internationally wrongful actions in the Black Sea, Sea of Azov, and Kerch Strait, including both restitution and monetary compensation in amounts to be set out in detail in Ukraine's written pleadings."15

C. Constitution of the Arbitral Tribunal and Initial Procedural Decisions

11.
In its Notification and Statement of Claim, Ukraine appointed Professor Vaughan Lowe QC as member of the Arbitral Tribunal.
12.
By note verbale dated 12 October 2016, the Russian Federation appointed H.E. Judge Vladimir Vladimirovich Golitsyn as member of the Arbitral Tribunal.
13.
Since the Parties were unable to reach agreement within 60 days of receipt by the Russian Federation of the Notification and Statement of Claim on the appointment of the remaining members of the Arbitral Tribunal, on 29 November 2016, Ukraine requested that the Vice-President of the International Tribunal for the Law of the Sea (hereinafter "ITLOS") make the appointments pursuant to Annex VII, Article 3, subparagraph (d), of the Convention. On 22 December 2016, H.E. Judge Jin-Hyun Paik, H.E. Judge Boualem Bouguetaia, and H.E. Judge Alonso Gomez-Robledo were appointed as members of the Arbitral Tribunal, and H.E. Judge Jin-Hyun Paik was appointed as President of the Arbitral Tribunal.
14.
On 12 May 2017, the first procedural meeting with the Arbitral Tribunal and the Parties was held at the headquarters of the Permanent Court of Arbitration (hereinafter the "PCA") at the Peace Palace in The Hague, the Netherlands. At that meeting, the procedure to be followed in the Arbitration was considered.
15.
On 18 May 2017, the Arbitral Tribunal with the concurrence of the Parties adopted Procedural Order No. 1, setting forth the Terms of Appointment of the Arbitral Tribunal, as well as the Rules of Procedure for the Arbitration (hereinafter the "Rules of Procedure").16 The Rules of Procedure, inter alia, established a timetable for written pleadings and set out the procedure for addressing any preliminary objections.
16.
On 18 January 2018, the Arbitral Tribunal, having ascertained the views of the Parties, adopted Procedural Order No. 2 on Confidentiality, addressing, inter alia, the definition and treatment of confidential information and restricted information in the context of the present proceedings.

D. Submission of Ukraine’s Memorial

17.
On 19 February 2018, Ukraine submitted its Memorial (hereinafter "Ukraine's Memorial"), in accordance with Article 13 of the Rules of Procedure. In its Memorial, Ukraine requested the Arbitral Tribunal to adjudge and declare that:

a. The Russian Federation has violated Article 2 of the Convention by excluding Ukraine from accessing gas fields in its territorial sea, extracting gas found in such fields, and usurping Ukraine's exclusive jurisdiction over the hydrocarbons in such fields.

b. The Russian Federation has violated Articles 56 and 77 of the Convention by excluding Ukraine from accessing gas fields in its exclusive economic zone and continental shelf, exploring such gas fields, extracting gas found in such fields, and usurping Ukraine's exclusive jurisdiction over the hydrocarbons in such fields.

c. The Russian Federation has violated Articles 2, 56, and 77 by causing proprietary data on the hydrocarbon resources of Ukraine's territorial sea, exclusive economic zone, and continental shelf to be transferred to Russia and to Russian entities.

d. The Russian Federation has violated Articles 2, 56, 58, 77, and 92 of the Convention by unlawfully interfering with Ukraine's exclusive jurisdiction over, and unlawfully taking possession of, Ukrainian-flagged CNG-UA vessels, including mobile jack-up drilling rigs in Ukraine's territorial sea, exclusive economic zone, and continental shelf.

e. The Russian Federation has violated Articles 2, 56, 60, and 77 of the Convention by unlawfully interfering with Ukraine's exclusive jurisdiction over, and unlawfully taking possession of, fixed platforms on Ukraine's territorial sea, exclusive economic zone, and continental shelf.

f. The Russian Federation has violated Articles 2 and 21 of the Convention by excluding Ukraine from accessing fisheries within 12 miles of the Ukrainian coastline, by exploiting such fisheries, and by usurping Ukraine's exclusive jurisdiction over the living resources of its territorial sea.

g. The Russian Federation has violated Articles 56, 58, 61, 62, 73, and 92 of the Convention by excluding Ukraine from accessing fisheries within its exclusive economic zone, by exploiting such fisheries, and by usurping Ukraine's exclusive jurisdiction over the living resources of its exclusive economic zone.

h. The Russian Federation has violated Articles 2, 56, 58, 77, and 92 of the Convention by unlawfully interfering with Ukraine's exclusive jurisdiction over Ukrainian-flagged fishing vessels in Ukraine's territorial sea, exclusive economic zone, and continental shelf.

i. The Russian Federation has violated Articles 2, 21, 33, 56, 58, 73, and 92 of the Convention by unlawfully interfering with the navigation of Ukrainian Sea Guard vessels through Ukraine's territorial sea and exclusive economic zone.

j. The Russian Federation has violated Article 2 of the Convention through its unauthorized and unilateral construction of submarine power cables across the Kerch Strait.

k. The Russian Federation has violated Article 2 of the Convention through its unauthorized and unilateral construction of a submarine gas pipeline across the Kerch Strait.

l. The Russian Federation has violated Article 2 of the Convention through its unauthorized and unilateral construction of the Kerch Strait bridge.

m. The Russian Federation has violated Articles 38 and 44 of the Convention by impeding transit passage through the Kerch Strait as a result of the Kerch Strait bridge.

n. The Russian Federation has violated Articles 43 and 44 of the Convention by failing to share information with Ukraine concerning the risks and impediments to navigation presented by the Kerch Strait bridge.

o. The Russian Federation has violated Articles 123, 192, 194, 204, 205, and 206 of the Convention by failing to cooperate and share information with Ukraine concerning the environmental impact of the Kerch Strait bridge.

p. The Russian Federation has violated Articles 123, 192, 194, 198, 199, 204, 205, and 206 of the Convention by failing to cooperate with Ukraine concerning the May 2016 oil spill off the coast of Sevastopol.

q. The Russian Federation has violated Article 2 of the Convention by interfering with Ukraine’s attempts to protect archaeological and historical objects in its territorial sea and by usurping Ukraine’s right to regulate with regard to such archaeological and historical objects.

r. The Russian Federation has violated Article 303 of the Convention by unlawfully interfering with Ukraine’s exercise of jurisdiction in its contiguous zone and preventing the removal of archaeological and historical objects from the seabed of its contiguous zone.

s. The Russian Federation has violated Article 303 of the Convention by failing to cooperate with Ukraine concerning archaeological and historical objects found at sea.

t. The Russian Federation has violated Article 279 of the Convention by aggravating and extending the dispute between the parties since the commencement of this arbitration in September 2016, including by completing construction of the Kerch Strait bridge, expanding its hydrocarbon and fisheries activities in Ukraine’s territorial sea, exclusive economic zone, and continental shelf, and continuing to disturb and remove archaeological artifacts found in Ukraine’s territorial sea and contiguous zone.17

18.
On this basis, Ukraine requested the Arbitral Tribunal to order the Russian Federation to:

Cessation and Restitutio in Integrum

a. Cease each of the above violations of the Convention, including by: withdrawing its vessels and personnel from Ukraine’s territorial sea, exclusive economic zone, and continental shelf; returning all seized Ukrainian vessels and platforms to Ukraine; returning all proprietary information on Ukrainian hydrocarbon reserves and destroying all copies of such information; and ending its purported exercise of prescriptive jurisdiction over the living and non-living resources found in zones within which the Convention guarantees to Ukraine exclusive jurisdiction over such resources— i.e., its territorial sea, exclusive economic zone, and continental shelf.

b. Share with Ukraine information on the structure and environmental impact of the Kerch Strait bridge, cooperate in good faith with Ukraine to determine mutually agreeable modifications to the Kerch Strait bridge, and apprise the Tribunal on the progress of such cooperation six months after the date of the Tribunal’s Award, so that Ukraine can request further relief as necessary to remedy Russia’s violations.

c. Provide Ukraine with all information the Russian Federation possesses on the May 2016 oil spill near Sevastopol, including its cause and all steps taken to mitigate its harm to the environment

d. Share with Ukraine information on the location of all objects of an archaeological and historical nature that the Russian Federation or its licensees have discovered or surveyed in the seas within 24 nautical miles of Ukraine’s declared baselines around the Crimean coast; restore to Ukraine all archaeological objects that it has removed from Ukraine’s territorial sea and contiguous zone; and refrain from any future disturbance of, or licensing of third parties to disturb, any such objects found in Ukraine’s territorial sea and contiguous zone.

Assurances and Guarantees of Non-Repetition

e. Provide Ukraine with appropriate public assurances and guarantees of non-repetition with respect to Russia’s interference with Ukraine’s sovereignty and sovereign rights over the living and non-living resources of Ukraine’s territorial sea, exclusive economic zone, and continental shelf, including that Russia will not harass or interfere with individuals or entities licensed by Ukraine to fish or to explore or exploit hydrocarbon resources.

f. Provide Ukraine with appropriate public assurances and guarantees of non-repetition with respect to Russia’s hindrance of transit passage through the Kerch Strait.

Compensation and Accounting

g. Provide Ukraine with a complete accounting of the non-living resources extracted from Ukraine’s territorial sea, exclusive economic zone, and continental shelf.

h. Provide Ukraine with a complete accounting of the living resources taken from Ukraine’s territorial sea, exclusive economic zone, and continental shelf.

i. Pay Ukraine financial compensation of US$ 1.94 billion, plus pre- and post-award interest, reflecting the value of Russia’s publicly announced hydrocarbon extraction from Ukraine’s territorial sea, exclusive economic zone, and continental shelf.

j. Pay Ukraine further financial compensation for all other non-living and living resources taken from Ukraine’s territorial sea, exclusive economic zone, and continental shelf.

k. Pay moral damages to Ukraine in an amount deemed appropriate by the Tribunal.18

E. Submission of the Preliminary Objections of the Russian Federation and Written Pleadings related Thereto

19.
On 21 May 2018, the Russian Federation submitted to the Arbitral Tribunal the "Preliminary Objections of the Russian Federation" dated 19 May 2018 (hereinafter the "Russian Federation’s Preliminary Objections") in accordance with Article 10, paragraph 2, of the Rules of Procedure.19 The Russian Federation requested that its Preliminary Objections be heard in a preliminary phase of the proceedings.
20.
On 28 May 2018, the Arbitral Tribunal invited Ukraine to comment on the Russian Federation’s request to address its Preliminary Objections in a preliminary phase. Ukraine provided such comments on 18 June 2018.
21.
On 20 June 2018, the Arbitral Tribunal invited the Russian Federation to reply to Ukraine’s comments of 18 June 2018. The Russian Federation provided such reply on 4 July 2018.
22.
On 20 August 2018, the Arbitral Tribunal issued Procedural Order No. 3 Regarding Bifurcation of the Proceedings. The Arbitral Tribunal unanimously decided:

1. The Arbitral Tribunal considers that the Preliminary Objections of the Russian Federation appear at this stage to be of a character that requires them to be examined in a preliminary phase, and accordingly decides that the Preliminary Objections of the Russian Federation shall be addressed in a preliminary phase of these proceedings.

2. If the Arbitral Tribunal determines after the closure of the preliminary phase of the proceedings that there are Preliminary Objections that do not possess an exclusively preliminary character, then, in accordance with Article 10, paragraph 8, of the Rules of Procedure, such matters shall be reserved for consideration and decision in the context of the proceedings on the merits.

[...]

The proceedings on the merits were accordingly suspended.

23.
On 27 August 2018, having ascertained the views of the Parties, the Arbitral Tribunal issued Procedural Order No. 4 Regarding the Timetable for the Parties’ Written Pleadings on Jurisdiction, establishing such timetable in accordance with Article 10, paragraph 5, of the Rules of Procedure.
24.
With respect to the Russian Federation’s Preliminary Objections, on 27 November 2018, Ukraine submitted its Written Observations and Submissions on Jurisdiction (hereinafter "Ukraine’s Written Observations").
25.
On 28 January 2019, the Russian Federation submitted its Reply to the Written Observations and Submissions of Ukraine on Jurisdiction (hereinafter the "Russian Federation’s Reply").
26.
On 28 March 2019, Ukraine submitted its Rejoinder on Jurisdiction (hereinafter "Ukraine’s Rejoinder").

F. Hearing Concerning the Russian Federation’s Preliminary Objections

27.
On 8 April 2019, the Arbitral Tribunal, having ascertained the views of the Parties, issued Procedural Order No. 5 Regarding the Schedule for the Hearing on Jurisdiction.
28.
From 10 to 14 June 2019, a hearing on Preliminary Objections (hereinafter the "Hearing") was held at the headquarters of the PCA at the Peace Palace in The Hague, the Netherlands. The Hearing consisted of two rounds of oral argument, held on 10 and 11 June 2019 and 13 and 14 June 2019. The following persons were present at the Hearing:

The Arbitral Tribunal
Judge Jin-Hyun Paik, President
Judge Boualem Bouguetaia
Judge Alonso Gómez-Robledo
Judge Vladimir Golitsyn
Professor Vaughan Lowe QC

Ukraine
H.E. Ms. Olena Zerkal
Deputy Minister for Foreign Affairs of Ukraine as Agent

H.E. Mr. Vsevolod Chentsov
Ambassador Extraordinary and Plenipotentiary of Ukraine to the Kingdom of the Netherlands
as Co-Agent

Ms. Marney L. Cheek
Covington & Burling LLP; member of the Bar of the District of Columbia

Mr. Jonathan Gimblett
Covington & Burling LLP; member of the Bars of the District of Columbia and Virginia

Mr. David M. Zionts
Covington & Burling LLP; member of the Bars of the Supreme Court of the United States and the District of Columbia

Professor Harold Hongju Koh
Sterling Professor of International Law, Yale Law School; member of the Bars of New York and the District of Columbia

Professor Alfred H. A. Soons
Emeritus Professor, Utrecht University School of Law; associate member, Institut de Droit International

Professor Jean-Marc Thouvenin
Professor, University of Paris Nanterre; Secretary-General, Hague Academy of International Law; Sygna Partners; member of the Paris Bar

Ms. Oksana Zolotaryova
Acting Director, International Law Department, Ministry of Foreign Affairs of Ukraine

Mr. Nikhil V. Gore
Covington & Burling LLP; member of the Bars of the District of Columbia, Massachusetts and New York

Ms. Clovis Trevino
Covington & Burling LLP; member of the Bars of the District of Columbia, Florida and New York

Mr. Volodymyr Shkilevych
Covington & Burling LLP; member of the Bars of Ukraine and New York

Ms. Megan O’Neill
Covington & Burling LLP; member of the Bars of the District of Columbia and Texas

Mr. George M. Mackie
Covington & Burling LLP; member of the Bars of the District of Columbia and Virginia
as Counsel

Mr. Taras Kachka
Adviser to the Foreign Minister, Ministry of Foreign Affairs of Ukraine
as Adviser

Mr. Roman Andarak
Deputy Head of the Mission of Ukraine to the European Union

Ms. Tamara Cherpakova
Mission of Ukraine to the European Union

Ms. Svitlana Nizhnova
Chornomornaftogaz

Mr. Andrii Kondratov
Chornomornaftogaz

Mr. Ivan Ivanchyk
Ministry of Infrastructure of Ukraine

Mr. Serhii Lopatiuk
State Border Guard Service of Ukraine

Mr. Vladyslav Smirnov
State Border Guard Service of Ukraine
as Observers

Ms. Kateryna Gipenko
Ministry of Foreign Affairs of Ukraine

Ms. Valeriya Budyakova
Ministry of Foreign Affairs of Ukraine

Ms. Olga Bondarenko
Embassy of Ukraine to the Kingdom of the Netherlands

Ms. Sofia Shovikova
Embassy of Ukraine to the Kingdom of the Netherlands

Ms. Angela Gasca
Covington & Burling LLP

Ms. Rebecca Mooney
Covington & Burling LLP

Mr. Iegor Biriukov
Intern, Government of Ukraine

Mr. Maksym Koliada
Intern, Government of Ukraine

Mr. Roman Koliada
Intern, Government of Ukraine
as Assistants

The Russian Federation
H.E. Mr. Dmitry Lobach
Ambassador-at-large, Ministry of Foreign Affairs of the Russian Federation as Agent

Professor Alain Pellet
Emeritus Professor, University of Paris Nanterre; former Chairperson, International Law Commission; member, Institut de Droit International

Professor Tullio Treves
Emeritus Professor, University of Milan; Senior International Consultant, Curtis Mallet-Prevost, Colt & Mosle LLP; member, Institut de Droit International

Mr. Samuel Wordsworth, QC
Essex Court Chambers; member of the English Bar, member of the Paris Bar

Mr. Sergey Usoskin
Member of the Saint Petersburg Bar

Ms. Amy Sander
Essex Court Chambers; member of the English Bar

Mr. Vasily Torkanovskiy
Partner, Ivanyan & Partners; member of the Saint Petersburg Bar

Ms. Tessa Barsac
Consultant in international law

Mr. Renato Raymundo Treves
Associate, Curtis, Mallet-Prevost, Colt & Mosle LLP; member of the New York State Bar and Milan Bar
as Counsel

Ms. Svetlana Shatalova
First Secretary, Legal Department, Ministry of Foreign Affairs of the Russian Federation

Ms. Sofia Sarenkova
Senior Associate, Ivanyan & Partners

Ms. Héloïse Bajer-Pellet
Member of the Paris Bar

Ms. Kseniia Soloveva
Associate, Ivanyan & Partners

Ms. Ksenia Galkina
Third Secretary, Legal Department, Ministry of Foreign Affairs of the Russian Federation

Ms. Viktoria Goncharova
Third Secretary, Embassy of the Russian Federation in the Kingdom of the Netherlands

Ms. Kseniia Kuritcyna
Junior Associate, Ivanyan & Partners
as Advisers

Ms. Elena Semykina
Paralegal, Ivanyan & Partners
as Assistant

Registry
Dr. Dirk Pulkowski
Senior Legal Counsel, Permanent Court of Arbitration

Ms. Ashwita Ambast
Legal Counsel, Permanent Court of Arbitration

Mr. Juan Ignacio Massun
Legal Counsel, Permanent Court of Arbitration

Court Reporting
Ms. Jade King
Mr. Wong Kwong Wai
Ms. Bridget Edwards

Interpreters
Ms. Marie Dalcq
Mr. Jean-Christophe Pierret

29.
After the first round of oral argument, the Arbitral Tribunal put the following questions to the Parties:

To both Parties:

1. Which, if any, elements of the claims in this case do not depend on a prior determination by, or assumption on the part of, the Tribunal as to which State is the coastal State in Crimea?

2. Does UNCLOS determine the extent of the rights and duties of the States concerned in circumstances where there is disagreement as to who exercises coastal State rights in respect of a particular maritime area?

To the Russian Federation:

3. Can the Russian Federation clarify its position in respect of the present status of the Kerch Strait, considering the statements that "both States shared sovereignty over the Sea of Azov" (Transcript of 10 June 2019, 20:10-11) and that, "[a]s concerns the Kerch Strait, the Russian Federation has been exercising sovereignty there since the reintegration of Crimea" (Transcript of 10 June 2019, 20:18-20)?

To Ukraine:

4. Can Ukraine elaborate on its statement that "Ukraine does not accept the general position of Russia, that the internal waters regime is outside the scope of UNCLOS" (Transcript of 11 June 2019, 9:10-12)?20

30.
The Parties responded to the questions in the course of the second round of oral argument. Their responses are reflected in paragraphs 146 to 149, 211, and 273 of the Award.

II. THE PARTIES’ SUBMISSIONS ON JURISDICTION AND ADMISSIBILITY

31.
At the present stage of the proceedings concerning the Russian Federation’s Preliminary Objections, the Parties have made the following submissions to the Arbitral Tribunal.

A. Submissions of the Russian Federation

32.
In its Preliminary Objections, the Russian Federation submitted:

For the reasons set out in these Preliminary Objections the Russian Federation requests the Tribunal to adjudge and declare that it is without jurisdiction in respect of the dispute submitted to this Tribunal by Ukraine.21

33.
In its Reply, the Russian Federation submitted:

For the reasons set out in the Preliminary Objections of the Russian Federation and this Reply, the Russian Federation requests the Tribunal to dismiss the Submissions of Ukraine made in its Written Observations of 27 November 2018 and to adjudge and declare that it is without jurisdiction in respect of the dispute submitted to this Tribunal by Ukraine.22

34.
At the Hearing, on 13 June 2019, the Russian Federation made the following final submission:

Having regard to the arguments set out in the Preliminary Objections of the Russian Federation, Reply of the Russian Federation to the Written Observations and Submissions of Ukraine on Jurisdiction and during the oral proceedings, the Russian Federation requests the Tribunal to adjudge and declare that it lacks jurisdiction in respect of the dispute submitted to this Tribunal by Ukraine.23

B. Submissions of Ukraine

35.
In its Written Observations, Ukraine submitted:

For the foregoing reasons, Russia’s Preliminary Objections fail to show that the Tribunal lacks jurisdiction over any aspect of the submissions in Ukraine’s Memorial.

Ukraine accordingly:

a. reiterates and renews the submissions and requests for relief contained in Chapter 7 of its Memorial;

b. requests that this Tribunal adjudge and declare that its submissions fall within the jurisdiction conferred on the Tribunal pursuant to the Convention; and

c. requests that the Tribunal award Ukraine its costs for the jurisdictional phase of these proceedings, pursuant to Article 25 of the Rules of Procedure.24

36.
In its Rejoinder, Ukraine submitted:

For the foregoing reasons, Ukraine reiterates and renews the submissions and requests for relief contained in Chapter Seven of its Memorial and Chapter Six of its Written Observations on Jurisdiction.25

37.
At the Hearing, on 14 June 2019, Ukraine made the following final submissions:

1. Ukraine respectfully requests that the Tribunal:

a. Reject the Preliminary Objections submitted by the Russian Federation in its submission dated 19 May 2018;

b. Adjudge and declare that it has jurisdiction over each of the submissions and requests for relief contained in Chapter 7 of Ukraine’s Memorial, which are hereby renewed; or

c. In the alternative, adjudge and declare, in accordance with the provisions of Article 10, paragraph 4, of the Rules of Procedure that the objections submitted by the Russian Federation do not possess an exclusively preliminary character and should be ruled upon in conjunction with the merits.

2. Ukraine requests that the Tribunal award Ukraine its costs for the jurisdictional phase of these proceedings, pursuant to Article 25 of the Rules of Procedure.26

III. basis of the arbitral tribunal’s jurisdiction

38.
Article 287, paragraph 1, of the Convention provides that, "[w]hen signing, ratifying or acceding to this Convention [...] a State shall be free to choose, by means of a written declaration, one or more of the [subsequently enumerated] means for the settlement of disputes concerning the interpretation or application of this Convention."27
39.
Upon ratification of the Convention on 26 July 1999, Ukraine declared that, "in accordance with article 287 of the United Nations Convention on the Law of the Sea of 1982, it chooses as the principal means for the settlement of disputes concerning the interpretation or application of this Convention an arbitral tribunal constituted in accordance with Annex VII."28 This declaration mirrors the wording of the declaration made by the Ukrainian Soviet Socialist Republic upon signature of the Convention, on 10 December 1982.
40.
The Russian Federation did not make any declaration in accordance with Article 287 of the Convention upon ratification. The Russian Federation, however, regards itself as the continuator State of the Union of Soviet Socialist Republics (hereinafter the "USSR"). Upon signature of the Convention, on 10 December 1982, the USSR declared that, "under article 287 of the United Nations Convention on the Law of the Sea, it chooses an arbitral tribunal constituted in accordance with Annex VII as the basic means for the settlement of disputes concerning the interpretation or application of the Convention."29
41.
The Arbitral Tribunal notes that the Parties have chosen an arbitral tribunal constituted in accordance with Annex VII to the Convention as the "principal" or "basic" means for the settlement of disputes concerning the interpretation or application of the Convention. Pursuant to Article 287, paragraph 4, of the Convention, such disputes may be submitted to an arbitral tribunal constituted in accordance with Annex VII. The Arbitral Tribunal consequently finds that the dispute was submitted to it in accordance with the Convention and the declarations made by the Parties. The Arbitral Tribunal in this regard takes note of the Russian Federation’s objection that certain aspects of the present dispute should have been submitted to a special arbitral tribunal constituted in accordance with Annex VIII to the Convention, which the Arbitral Tribunal addresses in detail below (see Chapter VIII).
42.
The specific preliminary objections to aspects of the Arbitral Tribunal’s jurisdiction raised by the Russian Federation will be addressed in the following chapters.

IV. THE RUSSIAN FEDERATION’S OBJECTION THAT THE ARBITRAL TRIBUNAL HAS NO JURISDICTION OVER UKRAINE’S SOVEREIGNTY CLAIM

43.
The Russian Federation submits that the Arbitral Tribunal has no jurisdiction over Ukraine's claims because "the dispute in this case concerns Ukraine's claim to sovereignty over Crimea"30 and a "dispute over territorial sovereignty is not a dispute concerning the ‘interpretation or application of the Convention' pursuant to Article 288(1) of UNCLOS."31
44.
For its part, Ukraine submits that the dispute before the Arbitral Tribunal concerns the interpretation or application of the Convention and the Arbitral Tribunal thus has jurisdiction over it.32
45.
The Arbitral Tribunal notes that the Parties hold different views as to: the nature or characterisation of the dispute before the Arbitral Tribunal; the scope of the jurisdiction of the Arbitral Tribunal under Article 288 of the Convention; and the existence vel non of a sovereignty dispute over Crimea. The Arbitral Tribunal will examine the arguments of the Parties on these issues in turn.

A. Characterisation of the Dispute before the Arbitral Tribunal

1. Position of the Russian Federation

46.
The Russian Federation notes that, in order to determine whether the dispute concerns the "interpretation or application of this Convention," the Arbitral Tribunal must characterise the dispute before it.33 The Russian Federation contends that the Arbitral Tribunal is not bound in this regard by Ukraine's characterisation of this dispute.34
47.
The Russian Federation observes that Ukraine characterises the dispute as a dispute concerning its "coastal State rights in the Black Sea, Sea of Azov and Kerch Strait."35 The Russian Federation argues that an answer to the question whether or not Ukraine has "coastal State rights" requires a prior determination by the Arbitral Tribunal of which State is in fact sovereign in the relevant maritime zones.36 Such a determination depends entirely on whether or not Ukraine is sovereign over the land territory of Crimea.37
48.
According to the Russian Federation, the central nature of the sovereignty issue in the current claim is reflected in Ukraine's Notification and Statement of Claim, contemporaneous statements of Ukraine, and its Memorial.38
49.
The Russian Federation observes that Ukraine's Notification and Statement of Claim is entitled "Coastal State Rights in the Black Sea, Sea of Azov, and Kerch Strait" and that Ukraine asserts therein that it "institutes this arbitration under Annex VII of the Convention to vindicate its coastal State rights under the Convention."39 The Russian Federation also points out that Ukraine alleges "an unlawful use of force in blatant violation of the U.N. Charter and fundamental norms of international law" and contends that "[s]ince the seizure of Crimea, the Russian Federation has persistently and flagrantly violated the Convention through its actions in areas of the Black Sea, Sea of Azov, and Kerch Strait where Ukraine’s sovereignty, sovereign rights, and right to exercise jurisdiction are indisputable."40 The Russian Federation notes that Ukraine asserts that "the Russian Federation's actions in the Black Sea, Sea of Azov, and Kerch Strait are inconsistent with Ukraine's rights under the Convention, including its coastal state rights and violate Ukraine’s sovereignty, sovereign rights, and rights to exercise jurisdiction at sea."41
50.
Further, the Russian Federation contends that contemporaneous statements by the President, the Foreign Minister and government officials of Ukraine in the context of the filing of Ukraine's Notification and Statement of Claim refer to a dispute concerning sovereignty over land territory.42 According to the Russian Federation, this claim has been presented by Ukraine "as a response to alleged Russian aggression, and as aimed at securing the ‘restoration' and ‘return' of Crimean sovereignty to Ukraine."43 The Russian Federation refers to a 6 December 2015 statement by the President of Ukraine that he "will do everything to return Crimea through international legal mechanisms, judicial decisions and political mechanisms and diplomatic means."44 The Russian Federation further refers to a statement of the Foreign Ministry of Ukraine of 14 September 2016 that "Ukraine has instituted arbitration proceedings against the Russian Federation under [the Convention] to vindicate its rights as the coastal state in maritime zones adjacent to Crimea in the Black Sea, Sea of Azov, and Kerch Strait. Since the Russian Federation’s illegal acts of aggression in Crimea, Russia has usurped and interfered with Ukraine’s maritime rights in these zones. "45
51.
The Russian Federation also quotes the following statement delivered by Ukraine on 20 February 2018 before a United Nations Committee:

The armed aggression against Ukraine was launched by one of the permanent members of the Security Council. Instead of fulfilling its obligation to maintain peace and security, it continues to temporarily occupy the Autonomous Republic of Crimea [...] we are resorting to all means available to UN Members States to resolve the situation that arose as the result of the Russian military aggression against Ukraine [...] Just yesterday, Ukraine filed its Memorial in arbitration proceedings against the Russian Federation under [the Convention]. The Memorial establishes that Russia has violated Ukraine’s sovereign rights in the Black Sea, Sea of Azov, and Kerch Strait.46

52.
Finally, the Russian Federation relies on a statement by the President of Ukraine of 14 September 2016, which in its view shows that the allegations of violations of Ukraine's coastal State rights are necessarily based on allegations of aggression and annexation by the Russian Federation:47

[t]he lawsuit is filed due to the gross violation of the international law by Russia, aggression against Ukraine, annexation of Crimea, violation of Ukraine's right to natural resources in the Black and Azov Seas [...] the launch of that process would facilitate the restoration of full control over the maritime area of Ukraine and reimbursement of damages suffered by Ukraine as a result of the Russian armed aggression.48

53.
Turning to Ukraine's Memorial in the present Arbitration, the Russian Federation contends that the Memorial is predicated on the argument that Ukraine is the coastal State in the relevant areas.49 The Russian Federation notes that Ukraine asserts that "[a]s a littoral State of the Black Sea, Sea of Azov and Kerch Strait, Ukraine enjoys the rights and bears the responsibilities accorded to coastal States by [the Convention]."50 The Russian Federation points out that Ukraine alleges that the Russian Federation (a) excluded Ukraine from accessing and using its own maritime zones; (b) explored and exploited the natural resources of Ukraine's maritime areas in violation of Ukraine's sovereign rights; and (c) usurped Ukraine's authority to regulate Ukrainian maritime entitlements.51 The Russian Federation highlights that Ukraine devotes Chapter 3 of its Memorial to its exercise of duties and responsibilities as the coastal State,52 and introduces Chapter 4 of its Memorial by stating:

Across an expanse of sea extending out from Crimea west towards Odesa, east toward Mariupol, and south toward Anatolia, the Russian Federation is systematically and brazenly violating Ukraine's coastal State rights, in violation of the Convention. [...] Russia's violations of the Convention began in 2014— i.e. at the time that the Russian Federation invaded and occupied the Crimean peninsula, and then purported to annex it.53

54.
The Russian Federation further highlights that Ukraine's claims with respect to hydrocarbon resources (pursuant to Articles 2, 56, 60, 77, and 92 of the Convention), to living resources (pursuant to Articles 2, 21, 33, 56, 58, 61, 62, 73, and 77 of the Convention), to the Kerch Strait (pursuant to Article 2 of the Convention), and to the underwater cultural heritage (pursuant to Articles 2 and 303 of the Convention) are based on Ukraine's alleged rights as a coastal State.54
55.
This is also true, in the Russian Federation’s view, of the relief requested by Ukraine.55 The Russian Federation notes that Ukraine has requested that the Arbitral Tribunal declare, inter alia, that "Russia is violating Ukraine’s sovereignty and sovereign rights" and that "Russia has interfered with Ukraine’s sovereignty," while claiming moral damages to "vindicate Ukraine’s national sovereignty."56 The Russian Federation notes that Ukraine has also sought from it "public assurances and guarantees of non-repetition" with respect to "Russia’s interference with Ukraine’s sovereignty and sovereign rights" and has requested the Arbitral Tribunal to require the Russian Federation to withdraw vessels and personnel from Ukraine’s maritime areas and end "its purported exercise of prescriptive jurisdiction over the living and non-living resources" found in Ukraine’s maritime zones.57
56.
Citing repeated references in Ukraine’s Memorial to an alleged "annexation" and "unlawful invasion," the Russian Federation "vigorously challenges and denies those accusations" and contends that the core of Ukraine’s claim is rooted in "a pre-supposition of unlawful conduct by Russia in Crimea in 2014."58 The Russian Federation stresses that the "key—indeed defining — issue of disputed land sovereignty cannot somehow be bypassed by asserting that Russia is an aggressor,"59 and that such issue falls outside the scope of Article 288, paragraph 1, of the Convention.60 The Russian Federation points out that, in setting out its claimed entitlement to relief, Ukraine has concluded that "[c]ollectively, [the alleged violations] amount to a sweeping, comprehensive displacement of Ukraine’s coastal State rights within a majority of Ukraine’s exclusive economic zone and continental shelf, as well as long stretches of its territorial sea."61 In the view of the Russian Federation, "this only serves to reinforce Russia’s position that the objective of Ukraine’s claim is to secure a favourable determination on the sovereignty of Crimea."62
57.
The Russian Federation thus submits that "the claim as advanced by Ukraine would require the [Arbitral] Tribunal first to render a decision on sovereignty over Crimea, either expressly or implicitly, while the actual objective of Ukraine's claims is in fact to advance its position in the Parties' disputes over Crimean sovereignty."63

2. Position of Ukraine

58.
Ukraine contends that "[t]he dispute before the Tribunal is one that concerns the interpretation or application of UNCLOS."64 According to Ukraine, its claim is that "through a campaign of exclusion, exploitation, and usurpation across the Black Sea, the Sea of Azov, and the Kerch Strait, Russia has violated rights guaranteed to Ukraine under the Convention."65
59.
Ukraine submits that in its Memorial it presents 20 submissions that concern the legal consequences under the Convention of the Russian Federation's actions in a large and important maritime area.66 In particular, Ukraine explains that the actions of the Russian Federation in the Black Sea, the Sea of Azov, and Kerch Strait violate Ukraine's rights as a coastal State, a flag State, and a littoral State in relation to two semi-enclosed seas and an international strait.67
60.
Ukraine notes that the Russian Federation points to Ukraine's references to "coastal State" and "sovereignty" in its written submissions.68 According to Ukraine, it cannot be faulted for using these terms, which appear in the provisions of the Convention.69 In Ukraine's view, its usage of "coastal State" and "sovereignty" confirms that this dispute concerns the interpretation and application of the Convention.70 Moreover, Ukraine argues that its references to "coastal State" do not imply that the dispute concerns the identity of the coastal State, and maintains that "here, Ukraine is undeniably the coastal State."71
61.
In response to the Russian Federation's reference to statements of various Ukrainian officials expressing a desire to end the Russian Federation's armed aggression against Ukraine, Ukraine takes the view that it has not brought the "illegal occupation of Ukrainian territory" before the Arbitral Tribunal.72 Rather, in the present proceedings, "the only point in discussion" is Ukraine's wish that the Russian Federation, "inter alia [...] stop stealing its living and non-living maritime resources [...] stop disturbing its underwater cultural heritage, and [...] end its harassment of vessels en route to Ukrainian ports."73
62.
Ukraine explains that the "sole actual objective" of its claims is the interpretation and application of the Convention in relation to the Russian Federation’s actions in the Black Sea, Sea of Azov, and the Kerch Strait.74 Ukraine notes that even an express ruling by this Arbitral Tribunal reaffirming Crimea’s status as a part of Ukraine "would not materially improve Ukraine’s legal position on that settled matter."75

B. Scope of the Jurisdiction of the Arbitral Tribunal under Articles 286 and 288 of the Convention

63.
Article 286 of the Convention provides:

Subject to section 3, any dispute concerning the interpretation or application of this Convention shall, where no settlement has been reached by recourse to section 1, be submitted at the request of any party to the dispute to the court or tribunal having jurisdiction under this section.

64.
Article 288, paragraph 1, of the Convention reads:

A court or tribunal referred to in article 287 shall have jurisdiction over any dispute concerning the interpretation or application of this Convention which is submitted to it in accordance with this Part.

1. Position of the Russian Federation

65.
The Russian Federation notes that the jurisdiction of the Arbitral Tribunal is defined and limited by Article 288, paragraph 1, of the Convention.76 According to the Russian Federation, "[a] dispute over territorial sovereignty is not a dispute concerning the ‘interpretation or application of the Convention’ pursuant to Article 288(1) of UNCLOS, the sole jurisdictional basis invoked by Ukraine."77
66.
Interpreting the provision in accordance with Article 31, paragraph 1, of the Vienna Convention on the Law of Treaties,78 the Russian Federation submits that the ordinary meaning of the provision restricts the jurisdiction of an arbitral tribunal to disputes "concerning the interpretation or application of [the Convention]."79 The Russian Federation observes that the Convention contains no provisions regarding sovereignty over land territory and that there is no renvoi in any provisions of the Convention that allows the application of provisions regarding sovereignty over land to be imported from other treaties or from customary international law.80
67.
The Russian Federation rejects Ukraine's argument that the word "any" in Article 288, paragraph 1, of the Convention grants broad scope to an arbitral tribunal's jurisdiction.81 The Russian Federation argues that the word "any" in Article 288, paragraph 1, is modified by the critical words "dispute concerning the interpretation or application of this Convention."82
68.
The Russian Federation considers that its reading of Article 288, paragraph 1, of the Convention is supported by the context of that provision.83 According to the Russian Federation, Article 288, paragraph 2, establishes "supplemental jurisdiction" that is "doubly limited" to disputes "concerning the interpretation or application of an international agreement," which must be "related to the purposes of the Convention."84
69.
The Russian Federation also notes that the first preambular paragraph of the Convention states that States Parties were "prompted by the desire to settle all issues relating to the law of the sea."85
70.
The Russian Federation further argues that the absence of an opt-out mechanism for disputes regarding sovereignty over land, equivalent to that for maritime boundary delimitations in Article 298, paragraph 1, of the Convention, confirms that jurisdiction under Part XV was never intended to extend to disputes concerning sovereignty over land territory.86 According to the Russian Federation, it would be inconceivable that the Convention does not contain an opt-out mechanism if disputes regarding sovereignty over land could be brought within the scope of Article 288, paragraph 1.87 The Russian Federation relies on the ruling in the Chagos Marine Protected Area Arbitration (Mauritius v. United Kingdom) (hereinafter "Chagos") to the same effect.88
71.
The Russian Federation notes that the States Parties to the Convention, in Article 297, paragraph 1, have "expressly and materially restricted the types of disputes concerning the exercise by a coastal State of its sovereign rights or jurisdiction under the Convention."89 It is thus "not tenable," the Russian Federation states, "to consider that State parties would agree to such a restriction on settlement of disputes concerning the exercise of coastal State rights or jurisdiction, and yet agree at the same time to jurisdiction over the anterior and more fundamental question as to whether [...] the given State asserting sovereign rights or jurisdiction was the coastal State."90
72.
The Russian Federation asserts that the consequences of accepting Ukraine's claim would be that, whenever one of the 64 articles of the Convention that refer to the term "coastal State" is invoked by a State, a court or tribunal under Part XV would have jurisdiction to resolve all or any territorial sovereignty disputes to determine whether a State is indeed a "coastal State."91 The Russian Federation submits that this was not the intention of the drafters of the Convention.92
73.
The Russian Federation also argues that the object and purpose of the Convention to establish "‘a legal order for the seas and oceans' (not with respect to abutting coastal territory)" supports its position that arbitral jurisdiction does not extend to sovereignty over land.93 Addressing Ukraine's counter-argument that, according to the Virginia Commentary, in the view of many States, the provisions of the Convention would be acceptable only if their interpretation and application were subject to expeditious, impartial, and binding decisions, the Russian Federation points out that the provisions of the Convention "do not contain rules on matters such as use of force and the right to self-determination, which inevitably arise under Ukraine's claim."94 In addition, the Russian Federation notes that Part XV of the Convention was a matter of intense debate and States looking for compulsory jurisdiction on key matters such as maritime delimitation were not successful.95

2. Position of Ukraine

74.
Turning to the interpretation of Articles 286 and 288 of the Convention, Ukraine contends that these provisions contain a "broad jurisdictional grant" that is designed to establish a legal order capable of settling "all issues relating to the law of the sea" and ensuring that no significant problems of interpretation persist without a final ruling.96
75.
According to Ukraine, the broad scope of the Arbitral Tribunal’s jurisdiction under these provisions is clear from the phrase "any dispute" in Article 286, together with its carefully crafted restrictions.97 Ukraine suggests that the term "‘any’ means any;" it reflects the Convention’s object and purpose to grant broad scope to the arbitral tribunal’s jurisdiction under this provision.98
76.
Ukraine notes that compulsory jurisdiction was the "pivot upon which the delicate equilibrium of the compromise [of the Convention] must be balanced."99 The Convention, in Ukraine’s view, was intended "to settle, in the spirit of mutual understanding and cooperation, all issues relating to the law of the sea."100 Ukraine argues that the Virginia Commentary recounts that the States Parties to the Convention considered that its provisions would be acceptable only if their interpretation and application were subject to expeditious, impartial, and binding decisions.101
77.
With respect to the question whether the Arbitral Tribunal has jurisdiction to address the issue of territorial sovereignty, Ukraine draws attention to the finding of the arbitral tribunal in Chagos that, "where a dispute concerns the interpretation or application of the Convention, the jurisdiction of a court or tribunal pursuant to Article 288(1) extends to making such findings of fact or ancillary determinations of law as are necessary to resolve the dispute presented to it."102 In Ukraine’s view, therefore, "a respondent State’s assertion of a sovereignty claim cannot automatically defeat jurisdiction under Articles 286 and 288, and that, in at least some cases, a tribunal acting pursuant to those articles may resolve a predicate sovereignty dispute."103

C. Existence vel non of a Sovereignty Dispute Over Crimea

1. General Argument

(a) Position of the Russian Federation

78.
Applying its interpretation of Article 288, paragraph 1, of the Convention to the dispute before the Arbitral Tribunal, the Russian Federation submits that this Arbitral Tribunal lacks jurisdiction to determine "the key territorial sovereignty dispute on which Ukraine's case depends."104 According to the Russian Federation, Ukraine cannot avoid the "basic point" that both Parties consider themselves sovereign over Crimea and are thus engaged in a dispute over this "critical issue of sovereignty."105
79.
The Russian Federation contends that, should the Arbitral Tribunal engage in a determination of the sovereignty dispute, it would have to consider issues that fall outside the scope of Article 288, paragraph 1, such as the circumstances in which Crimea was transferred to Ukraine in 1954, Ukraine's proclamation of independence in 1991, the legitimacy of Ukraine's abolition of the Crimean constitution and abrogation of the post of President of Crimea in 1995, the scope of the right to self-determination and its application to this case, the legality of the change in government in Ukraine's capital in February 2014, the Crimean referendum in March 2014, and the alleged unlawful use of force.106
80.
The Russian Federation also points out that Ukraine's claimed relief, including the requests for declaratory relief and moral damages to vindicate Ukraine's national sovereignty, would require the Arbitral Tribunal to first determine that Ukraine is indeed sovereign in Crimea.107 According to the Russian Federation, they are "not the sort of consequences that follow from a dispute" concerning "the ‘interpretation and application' of [the Convention]."108
81.
The Russian Federation contests Ukraine's assertion that it was the Russian Federation that introduced the topic of sovereignty into the Arbitration. The Russian Federation underlines that it was Ukraine that framed its case with respect to coastal State rights, thus raising the issue of who is sovereign over Crimea, and that it was Ukraine that "elected to deal at the earliest possible opportunity" with the issue of sovereignty.109
82.
In addition to these general considerations, the Russian Federation addresses Ukraine's contentions that the Russian Federation's objection premised on a dispute over territorial sovereignty over Crimea is inadmissible; that the objection is implausible; and that, even if there were a predicate territorial sovereignty dispute, the primary issue in the dispute is, and the relative weight of the dispute lies with, the interpretation or application of the Convention. These arguments are addressed in sections 2 to 4 below.

(b) Position of Ukraine

83.
Ukraine emphasises that each of its submissions in this Arbitration seeks a ruling upon the interpretation or application of one or more provisions of the Convention.110 Specifically, Ukraine notes that its submissions "implicate" Parts II, V, and VI (including in connection with the Russian Federation's violations of Ukraine's rights under Articles 2, 56, and 77), Part III (in connection with the Russian Federation's violations of Articles 38 and 44), Parts IX and XII (including in connection with the environmental dangers posed by the Russian Federation's construction activities in the Kerch Strait and its failure to appropriately respond to the oil spill off the coast of Sevastopol), and Part XVI (in connection with the Russian Federation's interference with Ukraine's attempts to preserve underwater cultural heritage pursuant to Article 303).111
84.
Ukraine contends that a dispute concerning the interpretation or application of the Convention does not lose that character simply because the respondent State asserts a claim to land territory.112 According to Ukraine, the Russian Federation is acting contrary to the purposes of the Convention and Articles 286 and 288 by asserting that Crimea is subject to competing claims and that this territorial dispute is the subject of the dispute before the Arbitral Tribunal.113
85.
Ukraine notes that the Russian Federation contends that Ukraine's Memorial draws a causal link between "Russia's invasion of the Crimean Peninsula" and the Russian Federation's alleged violations of the Convention.114 Ukraine argues, however, that the former is "simply a matter of background and context" and not a part of Ukraine's claims.115 In Ukraine's view, its "unquestioned sovereignty over Crimea" should be regarded as an "internationally recognised background fact" that the Arbitral Tribunal may rely upon in making its determinations.116 Ukraine also argues that the Russian Federation has offered no evidence for why the Arbitral Tribunal should treat the Russian Federation and not Ukraine as the lawful coastal State.117 Referring to the statement of counsel for the Russian Federation that, since 2014, the Russian Federation has formally put forward its position on sovereignty in Crimea in a number of fora, Ukraine points out that none has accepted any alteration in Crimea's status.118
86.
In addition to these general considerations, Ukraine maintains that the Russian Federation's objection premised on a dispute over territorial sovereignty over Crimea is inadmissible; that its objection is implausible; and that, even if there were a predicate territorial sovereignty dispute, the primary issue in dispute is, and the relative of the weight of the dispute lies with, the interpretation or application of the Convention. These arguments are addressed at sections 2 to 4 below.

2. Inadmissibility

(a) Position of the Russian Federation

87.
The Russian Federation rejects Ukraine's argument that the Russian Federation's claim regarding the altered legal status of Crimea "is inadmissible and should not be entertained by the [Arbitral] Tribunal."119 In this regard, the Russian Federation stresses that it "is making no claims of any kind before the tribunal."120 The Russian Federation notes that Ukraine's submission on alleged inadmissibility is based on the obligation of non-recognition under customary international law, as reflected in Article 41 of the International Law Commission's Articles on the Responsibility of States for Internationally Wrongful Acts (hereinafter the "ILC Articles on State Responsibility").121 Article 41 states that "[n]o state shall recognise as lawful a situation created by a serious breach within the meaning of article 40,"122 defined as "a gross or systematic failure" to fulfil an obligation "arising under a peremptory norm of general international law."123 According to the Russian Federation, Ukraine's argument, however, suffers from "three flaws."124
88.
First, the Russian Federation claims that the Arbitral Tribunal does not have jurisdiction to determine whether there has in fact been a "gross or systematic" breach of a jus cogens obligation.125
89.
In the view of the Russian Federation, the Arbitral Tribunal cannot circumvent that conclusion by—as Ukraine argues—simply "defer[ring]" to relevant United Nations General Assembly (hereinafter "UNGA") resolutions on the basis that they present a "consensus" or "determination" on that point.126 The Russian Federation observes that Ukraine notably relies on UNGA Resolution 68/262, which inter alia:

Calls upon all States, international organizations and specialized agencies not to recognize any alteration of the status of [Crimea] [...]

and to refrain from any action or dealing that might be interpreted as recognizing any such altered status.127

The Russian Federation notes, however, that 69 States elected not to vote in favour of UNGA Resolution 68/262, with 58 States abstaining and 11 States voting against the Resolution.128 The Russian Federation also points to a "notable dwindling" in support for subsequent UNGA resolutions on this issue;129 "in a recent resolution only 65 States voted in favour of the resolution and 27 States voted against it, with 70 States abstaining."130

90.
Further, the Russian Federation states, referring to the text and drafting history of the United Nations Charter and the practice of the International Court of Justice (hereinafter the "ICJ"), that the UNGA is a political body, not entrusted with general power to make determinations binding on the Arbitral Tribunal on disputed issues of international law.131 It underscores that UNGA Resolution 68/262 is not binding,132 and neither are the statements of third States and international organisations to which the Russian Federation is not a party.133
91.
While the Russian Federation acknowledges that the ICJ may refer to UNGA resolutions as evidence of the existence of opinio juris, or as reflecting obligations arising separately under international law, it emphasises that the weight to be accorded by a given tribunal to a UNGA resolution is entirely context-dependent.134 The Russian Federation observes that, in contrast, what Ukraine asks the Arbitral Tribunal to do in the present case is to "blindly defer" to the UNGA resolutions as "a determination on the disputed question as to whether there has in fact been a serious breach of jus cogens by Russia with respect to Crimea."135 In the Russian Federation’s view, the General Assembly, however, has no authority to do so.136
92.
In any case, the Russian Federation contends that UNGA Resolution 68/262 is not framed as a requirement or a decision, as it merely "calls upon" States, international organisations, and specialised agencies to act or refrain from acting in a certain way.137
93.
Second, the Russian Federation submits that the obligation of non-recognition is an obligation under international law of the State, not an Annex VII arbitral tribunal.138 The Russian Federation maintains that the addressees of a non-binding UNGA resolution cannot "magically broaden" the identity of the entities bound by the obligation of non-recognition.139 Further, according to the Russian Federation, UNGA Resolution 68/262 is directed at "States, international organisations and specialized agencies,"140 and not at an adjudicative body such as this Arbitral Tribunal.141 To illustrate its point, the Russian Federation explains that an international court or tribunal would not be deprived of jurisdiction by virtue of UNGA Resolution 68/262 over a dispute in which the Russian Federation was putting forth a positive case regarding its sovereignty over Crimea.142
94.
Third, the Russian Federation underlines that, while UNGA Resolution 68/262 calls upon States, international organisations, and specialised agencies "not to recognize any alteration of the status of [Crimea]," "[t]he issue of whether or not the legal status of Crimea has in fact altered is not one that Russia asks this tribunal to determine."143 The Russian Federation contends that an acknowledgement by the Arbitral Tribunal of the "inescapable reality of the fact" of the Russian Federation’s claims of sovereignty over Crimea cannot "somehow be characterised as an action that might be interpreted as recognising an ‘altered status’" under the terms of UNGA Resolution 68/262.144
95.
Specifically, the Russian Federation points out that it does not ask the Arbitral Tribunal to recognise the "altered legal status of Crimea" as sovereign territory of the Russian Federation (an issue which it considers would fall outside the jurisdiction of the Arbitral Tribunal).145 Rather, as one aspect of its objections to jurisdiction, the Russian Federation relies on the fact of a "hotly contested dispute as to the status of Crimea," whose existence is not contested.146
96.
The Russian Federation further underscores that the obligation of non-recognition is not concerned with the recognition of facts, but with their legitimation.147 Recognition of the fact of a dispute between Ukraine and the Russian Federation concerning sovereignty over Crimea "is not to recognise or make a determination that either party’s claim is or is not lawful."148 The Russian Federation argues that this position is consistent with the approach of arbitral tribunals that have accepted jurisdiction in investment claims brought against the Russian Federation in relation to Crimea, who in doing so did not imply recognition that the Russian Federation’s position regarding Crimea is lawful.149
97.
The Russian Federation also contends that the obligation of non-recognition is not as "all-encompassing" as Ukraine suggests.150 The Russian Federation notes Ukraine’s point that the obligation of non-recognition may extend to acts that imply a recognition of lawfulness, but submits that this obligation has no application to the present case.151 The Russian Federation further notes that the ICJ has drawn a distinction between the application of a procedural rule impacting the scope of a court's jurisdiction and an act that could imply the recognition of a situation as unlawful.152
98.
Finally, the Russian Federation contests Ukraine's argument that the Russian Federation is bound by principles of good faith and estoppel to respect Ukraine's borders as they stood at the time of its independence.153 The Russian Federation argues that a State may take a new position in response to a new set of facts154 and in response to evolving circumstances.155

(b) Position of Ukraine

99.
Ukraine contends that the Russian Federation's "claim that the legal status of Crimea has been altered, and the objection that is premised on that claim, should be considered inadmissible in this proceeding."156 Ukraine notes that the Russian Federation had formerly accepted that Crimea is part of Ukraine, but now asserts that this "settled status" has changed, and that the Russian Federation has acquired sovereignty over Crimea.157 According to Ukraine, the "international consensus" on this point, however, "dictates that this tribunal should deny Russia's illegal ‘claim' all legal effect under the principle of non-recognition."158
100.
Specifically, Ukraine relies on UNGA Resolution 68/262, reaffirmed in subsequent UNGA Resolutions 73/263, 71/205, and 72/190, which (a) recalled specific commitments made by the Russian Federation to respect the territorial integrity of Ukraine's existing borders, including in Crimea; (b) recalled the obligations of all States to "refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state;" (c) reaffirmed the principle that the "territory of a State shall not be the object of acquisition by another State resulting from the threat or use of force, and that any attempt aimed at the partial or total disruption of the national unity and territorial integrity of a State or country or at its political independence is incompatible with the purposes and principles of the Charter;" (d) noted that the referendum of 16 March 2014 was not authorised by Ukraine, had no validity, and "cannot form the basis of any alteration in the status of the Autonomous Republic of Crimea or of the city of Sevastopol;" and (e) called upon States, international organisations, and specialised agencies "not to recognize any alteration of the status of the Autonomous Republic of Crimea or of the city of Sevastopol [...] and to refrain from any action or dealing that might be interpreted as recognizing such altered status."159 Ukraine notes that the non-recognition principle is re-affirmed by UNGA Resolution 73/194 dated 17 December 2018, "calling on the Russian Federation to take specific actions to end its temporary occupation of Ukraine's territory without delay."160
101.
Ukraine submits that the UNGA resolutions, all of which passed with "overwhelming support," codify a "powerful consensus of the international community" regarding Ukraine's sovereignty in Crimea.161 Ukraine notes that the number of abstentions does not affect the validity of the UNGA resolutions.162 According to Ukraine, even those States that voted against one or more of the UNGA resolutions have explained their votes in a way that does not undermine the international consensus on the non-recognition of the Russian Federation's "attempted annexation."163 Ukraine points out that the UNGA resolutions have been echoed by a number of States and international organisations.164
102.
Ukraine argues that "international tribunals have consistently accorded weight to General Assembly resolutions, particularly those like the Assembly's resolutions on Crimea that expressly state and apply legal principles under the UN Charter and international law."165 In Ukraine's view, the Convention, through its Article 293, contemplates that "this tribunal would account for such rules of international law," just as the ICJ has given weight to UNGA resolutions "in the Nuclear Weapons, Jerusalem Wall, South West Africa, and Chagos Advisory Opinion proceedings, among others."166
103.
Ukraine recalls that the ICJ, in Legal Consequences of the Separation of the Chagos Archipelago, confirmed that the resolutions of the UNGA draw weight from the UNGA's unique role in the United Nations Charter system and from the legal principles embedded in them.167 Ukraine argues that as the ICJ, as the principal judicial organ of the United Nations, could not contradict the UNGA resolutions168 and ITLOS would not contradict the UNGA resolutions on account of its close relations with the United Nations, evidenced in the Agreement on Cooperation and Relationship,169 an Annex VII arbitral tribunal likewise must not ignore the UNGA resolutions because all forums available under UNCLOS are "expected to follow the same judicial approach."170
104.
Ukraine argues that, accordingly, the Arbitral Tribunal should not "contravene a determination made five times by the [UNGA]," given the unique role that the UNGA plays in "coordinating the international law obligation of non-recognition."171 Were the Arbitral Tribunal nonetheless to refuse to exercise jurisdiction over this dispute based on the Russian Federation's territorial claim, it would imply that the status of Crimea as being a part of Ukraine has been altered, "directly contradicting" the UNGA resolutions.172
105.
Ukraine submits that, in rejecting the Russian Federation's preliminary objection, the Arbitral Tribunal would not decide on the merits of the Russian Federation's sovereignty claim but merely defer to the UNGA resolutions.173 Upholding the Russian Federation's preliminary objection, on the other hand, would require the Arbitral Tribunal to recognise an alteration in Crimea's status because it would require an acknowledgement that "Crimea could be Russian."174
106.
In response to the Russian Federation's argument that "the General Assembly's call applies only to formal recognition of [the Russian Federation] sovereignty over Crimea, something that [the Russian Federation] states it does not seek in this case,"175 Ukraine contends that the UNGA's call for non-recognition prohibits not only formal recognition of the sovereignty of the Russian Federation over Crimea, but also acts which would imply such recognition.176 Noting that the obligation of collective non-recognition applies to all States, including the responsible State, Ukraine further submits that the Russian Federation "cannot seek to consolidate" a legal position that is contrary to the obligation of collective non-recognition.177
107.
Finally, Ukraine considers that the Russian Federation is bound by its own past commitments regarding Ukraine's borders as set out in various international instruments.178 Ukraine notes that, after the dissolution of the USSR, the President of the Russian Federation "recognized Crimea as part of the Ukrainian territory de facto and de jure."179 Ukraine contends that principles of good faith, pacta sunt servanda, and estoppel render inadmissible the Russian Federation's present claims, which are inconsistent with its past representations regarding the status of Crimea.180

3. Implausibility

(a) Position of the Russian Federation

108.
The Russian Federation contests Ukraine's argument that the Russian Federation's claim regarding the altered status of Crimea is implausible.181
109.
The Russian Federation submits that Ukraine introduces an unsupported and unworkable "plausibility" test by claiming that circumstances described by the Russian Federation in its preliminary objections would not produce a legally plausible claim to have acquired sovereignty over Crimea.182 In the Russian Federation's view, Ukraine has been unable to point to any legal authority, or any basis in Part XV of or Annex VII to the Convention, for its plausibility test.183 To support its position, the Russian Federation notes that Article 298, paragraph 1, subparagraph (a)(i), of the Convention, in permitting States to exclude any dispute that "necessarily involves the concurrent consideration of any unsettled dispute concerning sovereignty or other rights over continental or insular land territory" from compulsory conciliation, does not require the land sovereignty dispute to be "plausible" for it to be excluded.184
110.
The Russian Federation points out that plausibility tests have been developed to test whether the allegations made by a claimant are plausible. The Russian Federation argues that the test is "consistent with, and indeed supports, the fundamental rule on the need for consent to jurisdiction".185 It is the claimant State that asserts jurisdiction, and the respondent State that must be protected against jurisdiction being asserted in respect of a claim that is not within the scope of the treaty invoked by the claimant State.186 For similar reasons, the Russian Federation finds irrelevant to the present case Ukraine's reliance on the Separate Opinions of Judge Ranjeva and Judge Shahabuddeen in Oil Platforms (Islamic Republic of Iran v. United States of America) (hereinafter "Oil Platforms").187
111.
The Russian Federation also contests Ukraine's argument that the ICJ's decision in the Fisheries Jurisdiction (Spain v. Canada) (hereinafter "Fisheries Jurisdiction") case establishes a presumption in favour of a claimant State's characterisation of a dispute and thus supports the application of a plausibility test to preliminary objections raised by a respondent State.188 The Russian Federation notes that the ICJ in fact stated that it was for the Court to "determine on an objective basis the dispute dividing the parties."189
112.
The Russian Federation argues that the standard of plausibility applied by ITLOS in M/V "Saiga" (No. 1) (St. Vincent and the Grenadines v. Guinea) (hereinafter "M/V Saiga") is not relevant to the present case because the plausibility test in that case was applied in the specific context of prompt release proceedings under Article 292 of the Convention.190
113.
In response to Ukraine's argument that if a plausibility test were not to apply, a respondent State could easily defeat jurisdiction over any claim by fabricating a baseless territorial dispute,191 the Russian Federation maintains that a State would be prevented from manufacturing a territorial dispute to defeat jurisdiction by the rules governing abuse of rights and process.192
114.
The Russian Federation further submits that its position in this Arbitration is not abusive.193 The Russian Federation recalls that it has, since 2014 and well before the present proceedings, put forward its position on sovereignty in Crimea in a range of fora and continues to exercise day-to-day sovereignty over the territory.194 The issues of territorial sovereignty underlying this matter could not have been fabricated in order to defeat this Arbitral Tribunal’s jurisdiction.195

(b) Position of Ukraine

115.
Ukraine argues that even if the Russian Federation’s claim regarding the altered status of Crimea is found to be admissible, it is not plausible and therefore should be rejected.196
116.
Ukraine notes that the Arbitral Tribunal has been seised by Ukraine of a dispute concerning the interpretation and application of the Convention; both Parties recognise the jurisdiction of an Annex VII arbitral tribunal to resolve such a dispute; however, the Russian Federation "tries to escape its own consent to the jurisdiction of the [Arbitral Tribunal] by claiming that the legal status of the applicant’s territory has been altered in Crimea."197
117.
According to Ukraine, a respondent State’s assertion of a claim over territory cannot automatically divest an arbitral tribunal of jurisdiction over a maritime dispute, unless such an assertion is at least plausible.198 Ukraine submits that the plausibility requirement strikes an appropriate balance in the application of Articles 286 and 288 of the Convention.199 If a respondent State could defeat the jurisdiction of an arbitral tribunal by asserting a frivolous sovereignty claim, this would render the dispute settlement provisions of the Convention illusory and without effect.200 Ukraine argues, therefore, that the Arbitral Tribunal should undertake a plausibility analysis of the Russian Federation’s assertion that the status of Crimea as a part of Ukraine has been altered.201
118.
Ukraine acknowledges that a court or tribunal that is seised of an alleged dispute by an applicant, the existence and characterisation of which is contested by the respondent State, must exercise its jurisdiction to verify the existence of the alleged dispute, its subject matter, and whether the dispute pre-existed the seising of the court or tribunal.202 Ukraine submits that a court or tribunal is not competent to decide "the existence or non-existence of an alleged dispute that is not brought to it by the applicant and which does not fall under the instrument that govern[s] its jurisdiction."203
119.
Ukraine asserts that the ICJ has used the standard of plausibility to determine whether claims fall within the scope of the dispute resolution provisions of specific treaties.204 Ukraine relies on Judge Shahabuddeen's observations in Oil Platforms that "as a general matter, there is no dispute within the meaning of the law where the claim lacks any reasonably arguable legal basis or where it is manifestly frivolous or unsupportable."205 Ukraine also cites the observations of Judge Ranjeva in Oil Platforms that, in the event of "conflicting propositions" put forward by the Parties, the Court "must establish the plausibility of each of them in relation to the benchmark provisions which are the text of the Treaty and its Articles."206
120.
Ukraine considers that the Russian Federation misconstrues Chagos and the South China Sea Arbitration (The Republic of Philippines v. The People’s Republic of China) (hereinafter "South China Sea"), which, unlike this case, involved longstanding sovereignty disputes, implicating competing claims to sovereignty that no State had suggested were inadmissible or implausible.207 The UNGA had not in the above cases taken a view on the inadmissibility of one set of claims.208 Unlike Chagos, this case does not require the Arbitral Tribunal to resolve a longstanding dispute over territorial sovereignty, and therefore, Ukraine submits, the test articulated by the majority in Chagos is inapplicable.209
121.
Ukraine recalls that, in South China Sea, the arbitral tribunal concluded that the Philippines’ claim did not require it to resolve any disputes concerning land sovereignty, because China lacked the necessary maritime entitlements to support its actions even if all sovereignty claims were assumed in its favour.210 Ukraine points out that if the Russian Federation were able to "escape its consent to arbitrate" by making a "bare assertion that Crimea has lost its settled status as part of Ukraine," thus creating a "dispute" over land territory, China could have altered the result of South China Sea by asserting invented sovereignty claims to islands in the Philippine archipelago.211
122.
Ukraine argues that the ICJ in Fisheries Jurisdiction also noted that the "formulation of the dispute by the [claimant State]" would only be rebutted through objective support for a contrary characterisation.212 Ukraine submits that, to support its alternative formulation of the claim, the Russian Federation must first establish the plausibility of its argument that the settled status of Crimea has been altered.213
123.
Addressing the Russian Federation’s proposition that the plausibility test is typically used to assess arguments of a claimant State, Ukraine underscores that ITLOS in M/V Saiga applied the plausibility test to claims made by the respondent State.214 In any event, according to Ukraine, there is no principled reason why the plausibility test should only be applied to a claimant State, while a respondent State is taken at its word.215 Instead, Ukraine argues that the plausibility test may be used to assess a legal claim introduced by either party to a dispute.216 According to Ukraine, the plausibility test has a common rationale that is to give no legal effect to the non-plausible claims of one party that could, if taken at face value, harm the other party’s rights.217
124.
Ukraine observes that the Russian Federation agrees that there must be a limiting principle for sovereignty claims made to defeat jurisdiction but the Russian Federation suggests that it must be the lowest possible threshold.218 Ukraine further observes that, in place of a plausibility test, the Russian Federation appears to propose an "abuse of process/rights" test under which a respondent State’s territorial sovereignty claim over a relevant coastal area would always defeat an arbitral tribunal’s jurisdiction unless the sovereignty claim (a) post-dates the commencement of legal proceedings; and (b) has never been articulated to the other party outside the context of the dispute resolution proceedings.219 Ukraine rejects such standard because it would permit States to defeat an arbitral tribunal’s jurisdiction (and therefore the object and purpose of the Convention) based on a prior sovereignty claim, irrespective of how frivolous that sovereignty claim might be.220
125.
Applying its plausibility test set out above, Ukraine contends that the Russian Federation’s claim to have acquired sovereignty over Crimea is not plausible,221 and that there is no land sovereignty issue that precludes the jurisdiction of the Arbitral Tribunal over the present dispute.222 First, Ukraine argues that, as described above, the consensus of the international community as reflected in the UNGA resolutions has rejected the Russian Federation’s claim.223 Second, Ukraine argues that the Russian Federation’s claim contravenes a number of international agreements that bind the Russian Federation and recognise the territory of Crimea as Ukrainian.224 Third, Ukraine contends that the Russian Federation does not put forward sufficient evidence to support its claim.225 According to Ukraine, the Russian Federation’s sole basis for claiming that Crimea’s status has changed is the referendum of 16 March 2014.226 Ukraine highlights that there is no basis in international law for the validity of a referendum held in violation of the law of the State in which it takes place.227 Ukraine reiterates that, therefore, the circumstances described by the Russian Federation would not produce a legally plausible claim to have acquired sovereignty over Crimea.228

4. The Relative Weight of the Dispute

(a) Position of the Russian Federation

126.
The Russian Federation rejects Ukraine’s argument that, even if there exists a predicate territorial sovereignty dispute, the Arbitral Tribunal nonetheless has jurisdiction to make a determination on such predicate dispute because the primary issue in dispute is, or the relative of the weight of the dispute lies with, the interpretation or application of the Convention.229
127.
Relying on the award in Chagos, the Russian Federation suggests that the Arbitral Tribunal, in characterising the dispute before it, should focus on where "the relative weight of the dispute lies" and should consider whether "the Parties' dispute primarily [is] a matter of the interpretation and application of the term ‘coastal State,' with the issue of sovereignty forming one aspect of the larger question" or whether "the Parties' dispute primarily concern[s] sovereignty."230
128.
The Russian Federation argues that Ukraine mischaracterises Chagos when it states that the majority in that arbitration "decided to attach jurisdictional consequences to a situation where the asserted sovereignty issue significantly outweighed, both objectively and subjectively, in view of both parties, the UNCLOS issues in dispute."231 In the Russian Federation's view, it is an attempt to add "a series of qualifications to the test which are not to be found in the award."232
129.
The Russian Federation also refers to the award in South China Sea in which the arbitral tribunal examined:

whether (a) the resolution of the [claimant State's] claims would require the Tribunal to first render a decision on sovereignty, either expressly or implicitly; or (b) the actual objective of the [claimant State's] claims was to advance its position in the Parties' dispute over sovereignty.233

The Russian Federation considers that it is not necessary for both of the above conditions to be met, cumulatively, to conclude that a claim relates to land sovereignty issues.234

130.
Applying the criteria in Chagos and South China Sea to the present Arbitration, the Russian Federation argues that territorial sovereignty lies at "the very heart of the dispute."235 According to the Russian Federation, it is not possible to drive a "jurisdictional wedge" between the contested issue of territorial sovereignty and the sovereign rights of a coastal State claimed by Ukraine236 because "the territorial sovereignty dispute is in no way ancillary to a law of the sea dispute" but is "the broader dispute, which entirely subsumes the dispute as to who is and can exercise the rights of the coastal State."237
131.
The Russian Federation notes that the meaning of the term "coastal State" is not contested by the Parties; the only issue before the Arbitral Tribunal is who can exercise the coastal State rights.238 The Russian Federation notes that a number of Ukraine's claims and the remedies it seeks are based on its alleged rights as a coastal State.239 Under the characterisation tests developed in Chagos and South China Sea,240 the Russian Federation notes that although Ukraine claims that it does not to seek any ruling on territorial sovereignty, it (a) has presented its claim on the basis of an alleged infringement of its rights as a coastal State; (b) bases its claims on Ukraine being found to be the coastal State in Crimea; and (c) states that the relief would "vindicate Ukraine's national sovereignty."241 According to the Russian Federation, the issue of whether Ukraine is the coastal State in Crimea is at "the front and centre" of the matter before this Arbitral Tribunal and "[t]he weight of the dispute thus lies squarely with territorial sovereignty."242
132.
The Russian Federation notes that Ukraine seeks to distinguish Chagos and South China Sea from this Arbitration on the basis that the former cases involved longstanding sovereignty disputes with no question as to the plausibility of the claims on either side.243 In the Russian Federation's view, whether the claims in Chagos and South China Sea were plausible or whether sovereignty disputes were longstanding is irrelevant because the present case unquestionably involves a sovereignty dispute of which there is a clear record and that had crystallised long before the commencement of these proceedings.244
133.
The Russian Federation argues that Ukraine cannot distinguish Chagos from this Arbitration on the basis that in Chagos, the claimant State sought relief to change the status quo on land.245 According to the Russian Federation, Ukraine also seeks to change the status quo on land where the Russian Federation has exercised sovereignty in Crimea, including in its maritime zones, since 2014.246
134.
Further, the Russian Federation notes that Chagos cannot be distinguished from this Arbitration on the basis that Mauritius had anticipated that the relief it sought from that arbitral tribunal would have consequences for the Chagos land territory.247 The Russian Federation points out that Ukraine has sought declarations that the Russian Federation "is violating Ukraine's sovereignty and sovereign rights" and "has interfered with Ukraine's sovereignty" on the basis that Ukraine is the coastal State in Crimea and has also sought to "vindicate Ukraine's national sovereignty."248 Accordingly, in the Russian Federation's view, the question of who is sovereign over the land territory is again central.249
135.
Finally, the Russian Federation denies that the sovereignty dispute over Crimea is ancillary to a dispute concerning the interpretation and application of the Convention.250 If it were, an arbitral tribunal constituted under Part XV of the Convention would have jurisdiction to resolve the territorial sovereignty dispute in any case involving the breach of coastal State rights where the identity of the coastal State was contested.251

(b) Position of Ukraine

136.
Ukraine argues that even if there exists a predicate territorial sovereignty dispute, as the Russian Federation suggests, the Arbitral Tribunal has jurisdiction to make determinations on predicate issues of law that are necessary to perform the functions assigned to it by the Convention.252
137.
In this regard, Ukraine recalls that the majority of the arbitral tribunal in Chagos found that "where a dispute concerns the interpretation or application of the Convention, the jurisdiction of a court or tribunal pursuant to Article 288(1) extends to making such findings of fact or ancillary determinations of law as are necessary to resolve the dispute presented to it," including on matters of territorial sovereignty, provided that the dispute was primarily about claims arising out of the Convention.253
138.
According to Ukraine, the majority in Chagos "decided to attach jurisdictional consequences to a situation where the asserted sovereignty issue significantly outweighed, both objectively and subjectively, in the view of both parties, the [Convention] issues in dispute."254 In order to determine whether the dispute before it concerned the Convention, Ukraine recalls that the majority of the Chagos arbitral tribunal examined where "the relative weight of the dispute lies," and noted that it could rule upon a dispute "primarily [concerning] a matter of the interpretation and application of the term ‘coastal State', with the issue of [land] sovereignty forming one aspect of a larger question."255 In its analysis, Ukraine underlines, the Chagos arbitral tribunal looked at the object of Mauritius' claims, and relied on Mauritius' submission that it sought, through the arbitration, to compel the "British [to] leave" the Chagos islands, so that "[t]he former residents of the Chagos Archipelago who wish to return finally will be free to do so and their exile will come to an end."256
139.
Ukraine further points out that two arbitrators of the Chagos arbitral tribunal argued in their Dissenting Opinion that, so long as the underlying dispute concerned the interpretation or application of the Convention, it was permissible for an arbitral tribunal under the Convention to resolve a territorial sovereignty question that is necessary to resolve a question regarding the Convention.257 Ukraine notes that the minority in Chagos considered that any other reading of Article 288 of the Convention would "introduce a new limitation to the jurisdiction" of "tribunals acting under Part XV" and "change the balance achieved at the Third [United Nations] Conference on the Law of the Sea."258
140.
Ukraine submits that the Chagos arbitral tribunal was therefore unanimous that a respondent State's assertion of sovereignty "cannot automatically defeat jurisdiction" under Articles 286 and 288 and that an arbitral tribunal constituted under the Convention may in some cases resolve a predicate sovereignty dispute.259 According to Ukraine, the Chagos arbitral tribunal sought to guard against an abuse of jurisdiction in cases where a territorial sovereignty dispute is "dressed up" as one pertaining to the law of the sea.260
141.
Ukraine notes that the arbitral tribunal in Chagos accorded particular weight to the fact that Mauritius had specifically anticipated that the relief it sought from the arbitral tribunal would have consequences for the Chagos land territory and had formulated its understanding of the dispute on this basis.261
142.
Ukraine also notes that, like the Chagos arbitral tribunal, the South China Sea arbitral tribunal also recognised that there existed a dispute between the parties concerning land sovereignty.262 According to Ukraine, however, the South China Sea arbitral tribunal distinguished the case before it from Chagos on the basis that, while the majority in Chagos considered that "a decision on Mauritius’ [...] submissions would have required an implicit decision on sovereignty and that sovereignty was the true object of Mauritius’ claims," that was not the case in South China Sea.263 Consequently, Ukraine observes that the South China Sea arbitral tribunal could proceed to hear the case, noting that "[t]here are no grounds to ‘decline to take cognizance of one aspect of a dispute merely because that dispute has other aspects, however important.’"264
143.
Applying these findings to the present Arbitration, Ukraine submits that the relevant question is who is entitled to exercise coastal State rights under the Convention and whether this issue is ancillary to Ukraine’s claims under the Convention.265 Ukraine submits that its claim concerns a series of "serious and pervasive violations, and the corresponding damage to Ukraine and third-party rights under the Convention."266 On the other hand, according to Ukraine, the question of who is entitled to exercise coastal State rights is "not the primary issue in dispute," given the factors presented by Ukraine in its inadmissibility and implausibility arguments.267
144.
Distinguishing Chagos from the present case, Ukraine first submits that, unlike in Chagos, in this Arbitration the land sovereignty claim has been introduced by the respondent State, the Russian Federation.268 Second, Ukraine argues that, unlike Chagos, the present dispute is a "well-evidenced" one that implicates several aspects of the Convention.269 Third, Ukraine argues that, unlike in Chagos, there is "no serious issue of land sovereignty to be resolved" in the present case.270 Ukraine notes that Crimea's status as a part of Ukraine is "settled" and that the Russian Federation has failed to demonstrate the existence of a competing plausible claim with prima facie legal seriousness.271 Fourth, Ukraine contends that, unlike the claimant State in Chagos, it does not seek relief that changes the status quo on land.272
145.
Therefore, Ukraine submits that sovereignty over land is not the "real dispute" in the present case, nor where the relative weight of the dispute lies.273 Ukraine maintains that its "actual objective" in this Arbitration is to protect its maritime rights.274

D. Reply to the Arbitral Tribunal’s Questions

1. Reply of the Russian Federation

146.
In response to the first question posed to the Parties by the Arbitral Tribunal at the Hearing (see paragraph 29 of this Award), the Russian Federation submits that the great majority of the claims advanced by Ukraine depend on a prior determination by, or assumption on the part of, the Arbitral Tribunal as to which State is the coastal State in Crimea.275 The claims that do not so depend, in the Russian Federation's view, are: the submissions advanced at paragraphs 265 (m) and (n) of Ukraine's Memorial with respect to transit passage and navigation and the submissions advanced at paragraphs 265 (o) and (p) of Ukraine's Memorial with respect to a failure to cooperate concerning environmental issues, including the May 2016 oil spill.276 The Russian Federation states that Ukraine's claim pursuant to Article 92 of the Convention is advanced on the basis that it is the coastal State.277 Further, according to the Russian Federation, Ukraine's reliance on Article 279, to the extent that it is invoked on the basis that the relevant conduct occurred in maritime areas claimed to be Ukraine's, depends on a prior determination by the Arbitral Tribunal as to which State is the coastal State in Crimea.278
147.
In response to the second question posed by the Arbitral Tribunal to the Parties,279 the Russian Federation submits that the Convention does not determine the extent of the rights and duties of the States concerned in circumstances where there is disagreement as to who exercises coastal State rights in respect of a particular maritime area.280 The Russian Federation maintains that the absence of legal standards in the Convention for the determination of this issue, particularly compared to the fact that the Convention does make provision for steps to be taken when States Parties cannot agree to maritime delimitation under Articles 74 and 83, highlights that disputed issues of land sovereignty do not fall within Article 288 of the Convention.281

2. Reply of Ukraine

148.
In response to the first question posed to the Parties by the Arbitral Tribunal (see paragraph 29 of this Award), Ukraine submits that the Russian Federation's violations of the following articles of the Convention do not depend on a prior determination by, or assumption on the part of, the Arbitral Tribunal as to which State is sovereign over Crimea: Articles 38, 43, 44, 92 (which applies to the exclusive economic zone by way of Article 58), 123, 192, 194, 198, 199, 204, 205, 206, 279, and 3 03.282 Ukraine clarifies that its argument pursuant to Article 92 is not forwarded on the basis that Ukraine is the coastal State and notes that the violations therefore do not depend on whether they occurred in Ukraine's exclusive economic zone.283 Ukraine further clarifies that its argument regarding the aggravation of the dispute pursuant to Article 279 does not depend on Ukraine's coastal State rights.284
149.
In response to the second question posed by the Arbitral Tribunal to the Parties, Ukraine states that the Convention governs the rights and obligations of parties that are in disagreement as to who exercises the coastal State rights in respect of a particular area.285 If this were not the case, according to Ukraine, the mere existence of an "artificial disagreement" regarding who is entitled to exercise coastal State rights would nullify the rights and obligations under the Convention.286

E. Analysis of the Arbitral Tribunal

150.
The Russian Federation’s first preliminary objection that the Arbitral Tribunal lacks jurisdiction over Ukraine’s sovereignty claim raises several questions. The Arbitral Tribunal will proceed to address them seriatim.

1. Nature or Characterisation of the Dispute before the Arbitral Tribunal

151.
The first question the Arbitral Tribunal has to address is the nature or character of the dispute brought before it by the Applicant. As the arbitral tribunal in South China Sea stated, "[t]he nature of the dispute may have significant jurisdictional implications, including whether the dispute can fairly be said to concern the interpretation or application of the Convention."287 In addressing this question, the Arbitral Tribunal needs to examine the positions of the Parties, while giving particular attention to the formulation of the dispute chosen by Ukraine as Applicant.288 However, it is ultimately for the Arbitral Tribunal itself to determine on an objective basis the nature of the dispute dividing the Parties by "[isolating] the real issue in the case and [identifying] the object of the claim."289
152.
The Arbitral Tribunal notes that, while Ukraine formulates its dispute with the Russian Federation in terms of the alleged violation of its rights under the Convention, thus as a dispute concerning the interpretation or application of the Convention, many of its claims in the Notification and Statement of Claim are based on the premise that Ukraine is sovereign over Crimea, and thus the "coastal State" within the meaning of the various provisions of the Convention it invokes. Ukraine itself acknowledges this and, as will be seen below, submits that this premise must be accepted by the Arbitral Tribunal because the Russian Federation’s claim of sovereignty over Crimea is inadmissible and implausible. However, unless the premise that Crimea belongs to Ukraine is to be taken at face value, the claims as advanced by Ukraine cannot be addressed by the Arbitral Tribunal without first examining and, if necessary, rendering a decision on the question of sovereignty over Crimea.
153.
The Arbitral Tribunal also notes that Ukraine emphasises that it asks for "absolutely no relief" relating to the situation in Crimea, and that the sole objective of Ukraine's claims is the interpretation and application of the Convention in relation to the Russian Federation's actions in the Black Sea, the Sea of Azov, and the Kerch Strait. In the view of the Arbitral Tribunal, however, even if that is the real objective of Ukraine's claims, the fact remains that a significant part of Ukraine's claims under consideration rests on the premise that Ukraine is sovereign over Crimea, the validity of which is challenged by the Russian Federation.
154.
Consequently, if the legal status of Crimea, contrary to Ukraine's assumption, is not settled in the sense that it forms part of Ukraine's territory, but is disputed as the Russian Federation contends, the Arbitral Tribunal would not be able to decide the claims of Ukraine insofar as they are premised on the settled status of Crimea as part of Ukraine without first addressing the question of sovereignty over Crimea. The Arbitral Tribunal therefore considers that the question as to which State is sovereign over Crimea, and thus the "coastal State" within the meaning of several provisions of the Convention invoked by Ukraine, is a prerequisite to the decision of the Arbitral Tribunal on a significant part of the claims of Ukraine. For the purposes of determining the jurisdiction of the Arbitral Tribunal, this characterisation of the dispute before it raises two questions: first, the scope of the jurisdiction of the Arbitral Tribunal under Article 288, paragraph 1, of the Convention; and second, the existence vel non of a sovereignty dispute over Crimea. The Arbitral Tribunal will now examine these two questions in turn.

2. Scope of the Jurisdiction of the Arbitral Tribunal under Article 288(1) of the Convention

155.
Article 288, paragraph 1, of the Convention reads:

A court or tribunal referred to in article 287 shall have jurisdiction over any dispute concerning the interpretation or application of this Convention which is submitted to it in accordance with this Part.

156.
Thus, the jurisdiction of a court or tribunal referred to in Article 287, including this Arbitral Tribunal, is confined to "any dispute concerning the interpretation or application of this Convention." The question the Arbitral Tribunal should address is whether a dispute that involves the determination of a question of territorial sovereignty would fall within the jurisdiction of a court or tribunal under Article 288, paragraph 1, of the Convention. While the text of the Convention provides no clear answer to this question, the Arbitral Tribunal is of the view that, in light of Article 297, which carves out certain categories of disputes relating to the exercise of sovereign rights and jurisdiction in the exclusive economic zone, and Article 298, paragraph 1, which allows States to exclude three categories of disputes, such as disputes concerning such sensitive matters as the delimitation of maritime boundaries, from compulsory dispute settlement procedures, a sovereignty dispute, which is mentioned in neither provision, may not be regarded a dispute concerning the interpretation or application of the Convention. The fact that a sovereignty dispute is not included either in the limitations on, or in the optional exceptions to, the applicability of compulsory dispute settlement procedures supports the view that the drafters of the Convention did not consider such a dispute to be "a dispute concerning the interpretation or application of the Convention."
157.
The Arbitral Tribunal recalls in this regard that the question as to whether a court or tribunal referred to in Article 287 of the Convention has jurisdiction to decide upon a sovereignty dispute has been the subject of scrutiny by arbitral tribunals in previous cases. Those arbitral tribunals were circumspect and generally answered the above question in the negative, except for a situation where a sovereignty issue is "ancillary" to a dispute concerning the interpretation or application of the Convention.
158.
For example, the arbitral tribunal in Chagos stated:

As a general matter, the Tribunal concludes that, where a dispute concerns the interpretation or application of the Convention, the jurisdiction of a court or tribunal pursuant to Article 288(1) extends to making such findings of fact or ancillary determinations of law as are necessary to resolve the dispute presented to it [...] Where the "real issue in the case" and the "object of the claim" [...] do not relate to the interpretation or application of the Convention, however, an incidental connection between the dispute and some matter regulated by the Convention is insufficient to bring the dispute, as a whole, within the ambit of Article 288(1).290

159.
The arbitral tribunal further stated that it "does not categorically exclude that in some instances a minor issue of territorial sovereignty could indeed be ancillary to a dispute concerning the interpretation or application of the Convention."291
160.
In South China Sea, the arbitral tribunal examined whether "either (a) the resolution of the Philippines’ claims would require the Tribunal to first render a decision on sovereignty, either expressly or implicitly; or (b) the actual objective of the Philippines’ claim was to advance its position in the Parties’ dispute over sovereignty."292 It found that neither of these situations was present in the case at hand. The arbitral tribunal went on to state:

The Convention, however, does not address the sovereignty of States over land territory. Accordingly, this Tribunal has not been asked to and does not purport to make any ruling as to which State enjoys sovereignty over any land territory in the South China Sea, in particular with respect to the disputes concerning sovereignty over the Spratly Islands or Scarborough Shoal. None of the Tribunal’s decisions in this Award are dependent on a finding of sovereignty, nor should anything this Award understood to imply a view with respect to questions of land sovereignty.293

161.
The Arbitral Tribunal does not consider that there exists a serious disagreement between the Parties regarding the interpretation of Article 288, paragraph 1, of the Convention per se. While Ukraine seems to favour a broad interpretation of the jurisdiction of a court or tribunal under this provision, it does not go as far as to assert that such jurisdiction should extend to making a decision on any sovereignty dispute. As the Arbitral Tribunal sees it, the essence of the position of Ukraine is not that this Arbitral Tribunal is competent under Article 288, paragraph 1, of the Convention to decide any sovereignty dispute, but that there is no sovereignty dispute between the Parties over Crimea. In the alternative, Ukraine argues that, even if a sovereignty dispute exists over Crimea, this Arbitral Tribunal has jurisdiction to decide it because the sovereignty dispute is ancillary to the dispute concerning the interpretation or application of the Convention. On the other hand, the Russian Federation contends that a predicate dispute on sovereignty over Crimea exists and that such dispute is not ancillary to, but at the heart of, the dispute before the Arbitral Tribunal. In the view of the Arbitral Tribunal, therefore, the real issue of contention between the Parties in the present case is whether there exists a sovereignty dispute over Crimea, and if so, whether such dispute is ancillary to the determination of the maritime dispute brought before the Arbitral Tribunal by Ukraine.

3. Existence vel non of a Sovereignty Dispute over Crimea

162.
The Arbitral Tribunal now turns to the question of whether a sovereignty dispute over Crimea exists between the Parties. The Parties disagree on whether or not such a dispute exists.

(a) General Considerations

163.
The Arbitral Tribunal notes that the concept of "dispute" is well-established in the jurisprudence of international courts and tribunals. According to widely accepted jurisprudence, a dispute is "a disagreement on a point of law or fact, a conflict of legal views or of interests" between parties.294 In order for a dispute to exist, "[i]t must be shown that the claim of one party is positively opposed by the other and that the two sides must ‘hold clearly opposite views' concerning the question of the performance or non-performance of certain international obligations."295
164.
The Arbitral Tribunal further notes that the "determination of the existence of a dispute is a matter of substance, and not a question of form or procedure," and that whether a dispute exists is a matter for "objective determination."296 In other words,

It is not sufficient for one party to a contentious case to assert that a dispute exists with the other party. A mere assertion is not sufficient to prove the existence of a dispute any more than a mere denial of the existence of the dispute proves its nonexistence. Nor is it adequate to show that the interests of the two parties to such a case are in conflict. It must be shown that the claim of one party is positively opposed by the other.297

165.
In the present proceedings, the Russian Federation submitted several documents and statements relating to its claim to sovereignty over Crimea, which it made in various fora, including the United Nations and the International Maritime Organization since March 2014. This claim of the Russian Federation has been positively and repeatedly opposed by Ukraine, and the Parties therefore hold clearly opposite views on the question of sovereignty over Crimea. The documents submitted by the Russian Federation to support its claim to sovereignty over Crimea are not as abundant as in Chagos, as the present proceedings are confined to the jurisdiction of the Arbitral Tribunal whereas in Chagos the question of jurisdiction was joined with that of the merits. On the record before the Arbitral Tribunal, however, it is clear that the Parties are in disagreement on various points of law and facts relating to the question as to which State is sovereign over Crimea, and thus who is the "coastal State" within the meaning of various provisions of the Convention invoked by Ukraine.
166.
This finding would seem to be sufficient for a conclusion that a sovereignty dispute exists between the Parties but for Ukraine's argument that the Russian Federation's claim to sovereignty is inadmissible and implausible, to which the Arbitral Tribunal now turns.

(b) Inadmissibility

167.
Ukraine contends that the Russian Federation's claim that the legal status of Crimea has been altered is inadmissible and cannot be entertained in this proceeding. The Arbitral Tribunal notes that Ukraine justifies its contention by invoking the international law principle of non-recognition, the relevance of which to the situation in Crimea, according to Ukraine, has been reaffirmed by several resolutions adopted by the UNGA and other international organisations since 2014, as well as the principles of good faith and estoppel. The Russian Federation contests the applicability and implications of the principle of non-recognition to the present case. It also denies the relevance of the principles of good faith and estoppel.
168.
The obligation of non-recognition is reflected in Article 41 of the ILC Articles on State Responsibility, the relevant part of which reads:

No State shall recognize as lawful a situation created by a serious breach within the meaning of article 40, nor render aid or assistance in maintaining that situation.

169.
Article 40, in turn, provides:

1. This chapter applies to the international responsibility which is entailed by a serious breach by a State of an obligation arising under a peremptory norm of general international law.

2. A breach of such an obligation is serious if it involves a gross or systematic failure by the responsible State to fulfil the obligation.

[...]

170.
The obligation of non-recognition under Article 41 thus imposes upon all States an obligation not to recognise as lawful a situation created by a gross or systematic failure by the responsible State to fulfil an obligation arising under a peremptory norm of general international law.298 According to Ukraine, UNGA resolutions, in particular Resolution 68/262 of 27 March 2014, reaffirmed this principle with respect to the situation in Crimea, by calling upon "all States, international organizations and specialized agencies not to recognize any alteration of the status of the Autonomous Republic of Crimea and the city of Sevastopol on the basis of the above-mentioned referendum and to refrain from any action or dealing that might be interpreted as recognizing any such altered status."299 While the Russian Federation recognises the principle of non-recognition as a rule of customary international law, it contests its applicability to the present case by pointing out three "flaws" in Ukraine's argument, summarised above in paragraphs 88 to 98.
171.
The Arbitral Tribunal notes that at the centre of the contention between the Parties are the legal effect and meaning of the UNGA resolutions. Ukraine contends that the UNGA resolutions to which it refers reflect the consensus of the international community regarding the territorial status of Crimea, to which the Arbitral Tribunal operating under the Convention must defer. According to Ukraine, therefore, the Arbitral Tribunal need not take any position on the "illegality of any of [the Russian Federation’s] actions," and need only treat Ukraine's acknowledged sovereignty over its own territory as "just one of many internationally recognized background facts" that form the background against which the Arbitral Tribunal should conduct the present Arbitration. The Russian Federation denies that such legal effect should be accorded to the relevant UNGA resolutions. It also disagrees with Ukraine’s interpretation of the UNGA resolutions.
172.
Under the Charter of the United Nations, the General Assembly is empowered to take decisions with legally binding effect in certain enumerated circumstances, related to the functioning of the United Nations.300 In other respects, the General Assembly may make "recommendations,"301 which are not formally binding under international law. The Arbitral Tribunal recalls the statement of the ICJ in the South West Africa Cases (Ethiopia v. South Africa; Liberia v. South Africa) that UNGA resolutions "are not binding, but only recommendatory in character," and that "[t]he persuasive force of Assembly resolutions can indeed be very considerable," yet "[i]t operates on the political not the legal level: it does not make these resolutions binding in law."302
173.
The Arbitral Tribunal considers that, while UNGA resolutions are not binding per se, they can be relevant for ascertaining the existence and contents of a rule of customary international law. In this regard, the Arbitral Tribunal further recalls the statement of the ICJ that:

General Assembly resolutions, even if they are not binding, may sometimes have normative value. They can, in certain circumstances, provide evidence important for establishing the existence of a rule or the emergence of an opinio juris. To establish whether this is true of a given General Assembly resolution, it is necessary to look at its content and the conditions of its adoption; it is also necessary to see whether opinio juris exists as to its normative character.303

174.
Thus, the effect of factual and legal determination made in UNGA resolutions depends largely on their content and the conditions and context of their adoption. So does the weight to be given to such resolutions by an international court or tribunal. In this regard, the Arbitral Tribunal draws attention to the fact that there have been cases in which the ICJ expressly found that it should not accept determinations made in UNGA resolutions. For example, in its Advisory Opinion in respect of Kosovo, referring to the statement of the UNGA that the unilateral declaration of independence had been adopted by the Provisional Institutions of Self-Government of Kosovo, the ICJ held that "[i]t would be incompatible with the proper exercise of the judicial function for the Court to treat that matter [i.e., the identity of the authors of the declaration of independence] as having been determined by the General Assembly."304 Likewise, in the East Timor Case (Portugal v. Australia) (hereinafter "East Timor"), with respect to Portugal’s argument that United Nations resolutions, which affirmed the status of East Timor as that of a non-self-governing territory and Portugal’s capacity as the administering power of that territory, "can be read as imposing an obligation on States not to recognize any authority on the part of Indonesia over the Territory, and [...] to deal only with Portugal," the ICJ stated that, "[w]ithout prejudice to the question whether the resolution under discussion could be binding in nature, [...] they cannot be regarded as ‘givens’ which constitute a sufficient basis for determining the dispute between the Parties."305
175.
The Arbitral Tribunal notes that the UNGA resolutions in question are framed in hortatory language. The Arbitral Tribunal further notes that they were not adopted unanimously or by consensus but with many States abstaining or voting against them.
176.
Regarding the meaning of UNGA resolutions, the Arbitral Tribunal notes that it has the power to interpret the texts of documents of international organisations, including the resolutions of the UNGA. Ukraine’s argument that the Arbitral Tribunal must defer to the UNGA resolutions and need only treat Ukraine’s sovereignty over Crimea as an internationally recognised background fact is equivalent to asking the Arbitral Tribunal to accept the UNGA resolutions as interpreted by Ukraine. Apart from the question of the legal effect of the UNGA resolutions, if the Arbitral Tribunal were to accept Ukraine’s interpretation of those UNGA resolutions as correct, it would ipso facto imply that the Arbitral Tribunal finds that Crimea is part of Ukraine’s territory. However, it has no jurisdiction to do so.
177.
Furthermore, the Arbitral Tribunal does not consider that the UNGA resolutions to which Ukraine refers can be read to go as far as prohibiting it from recognising the existence of a dispute over the territorial status of Crimea. In the Arbitral Tribunal’s view, such a reading would be incompatible with the proper exercise of its judicial function. Without prejudice to the meaning of the phrase "not to recognize any alteration of the status of the Autonomous Republic of Crimea and the city of Sevastopol," the mere recognition of the objective fact of the existence of a dispute over Crimea in the sense that the claim of one party is positively opposed by the other party cannot be considered to contravene the UNGA resolutions.
178.
It must be stressed that the Arbitral Tribunal’s recognition of the existence of a dispute over the territorial status of Crimea in no way amounts to recognising any alteration of the status of Crimea from the territory of one Party to the other, or to "any action or dealing that might be interpreted as recognizing any such altered status." Neither would it imply that the Russian Federation’s actions toward and in Crimea were lawful. In fact, the Russian Federation has not asked the Arbitral Tribunal to find that Crimea belongs to the Russian Federation, nor that it acted lawfully with respect to Crimea. On the contrary, the Russian Federation simply asks the Arbitral Tribunal to recognise the reality that it claims sovereignty over Crimea, which claim is disputed and opposed by Ukraine. The Arbitral Tribunal recognises this reality without engaging in any analysis of whether the Russian Federation’s claim of sovereignty is right or wrong. In this regard, the Arbitral Tribunal recalls the statement of the ICJ in East Timor that Portugal, similarly to the Russian Federation in this case, "has, rightly or wrongly, formulated complaints of fact and law against Australia which the latter has denied. By virtue of this denial, there is a legal dispute."306
179.
The next question the Arbitral Tribunal needs to examine concerns Ukraine’s argument that the Russian Federation’s claim of sovereignty is inadmissible as a consequence of the principles of good faith and estoppel because such claim contradicts the Russian Federation’s own legally binding commitment to Ukraine’s sovereignty over Crimea. These principles, according to Ukraine, bar the Russian Federation from now advancing claims entirely inconsistent with its prior undertakings.
180.
The Arbitral Tribunal recalls the statement made by ITLOS in the Dispute Concerning Delimitation of the Maritime Boundary in Bay of Bengal (hereinafter "Bay of Bengal") that:

In international law, a situation of estoppel exists when a State, by its conduct, has created the appearance of a particular situation and another State, relying on such conduct in good faith, has acted or abstained from an action to its detriment. The effect of the notion of estoppel is that a State is precluded, by its conduct, from asserting that it did not agree to, or recognize, a certain situation.307

181.
The Russian Federation does not contest that before March 2014 it had recognised Ukraine’s sovereignty over Crimea. However, it argues that there was a change in the situation of Crimea and that its claim of sovereignty was a response to that change. The Arbitral Tribunal considers that the principles of good faith and estoppel do not operate so as to bar the Russian Federation from maintaining that a dispute concerning sovereignty over Crimea has arisen since March 2014, as the basis of the earlier statements has been substantially and materially changed by developments upon which the Arbitral Tribunal has no jurisdiction to adjudicate.
182.
The Arbitral Tribunal accordingly does not accept Ukraine's argument that the Russian Federation's claim of sovereignty is inadmissible.

(c) Implausibility

183.
The Arbitral Tribunal now turns to the argument advanced by Ukraine that the Russian Federation's claim of sovereignty is implausible. According to Ukraine, in order to defeat the Arbitral Tribunal's jurisdiction, it is not sufficient for the Russian Federation to put forward a claim to sovereignty, but its claim must be at least plausible. Ukraine contends that the Russian Federation's claim of sovereignty fails the plausibility test and, therefore, must be rejected.
184.
While the Russian Federation acknowledges that there must be some form of threshold for accepting a party's claim in order to protect the other party from an abuse of judicial process, the Russian Federation rejects the plausibility test to this end and instead submits that the appropriate threshold should be that of abuse of process or abuse of right.
185.
In exercising its jurisdiction under Article 288, paragraph 1, of the Convention, the Arbitral Tribunal needs to assess the Russian Federation's claim of sovereignty to the extent necessary to determine the existence vel non of a dispute over land sovereignty in Crimea, as the claims submitted by Ukraine in its Notification and Statement of Claim rest on the premise that the territorial status of Crimea is settled.
186.
The power of the Arbitral Tribunal to undertake such assessment stems from the legal principle that the Arbitral Tribunal has competence to decide its own jurisdiction, as reflected in Article 288, paragraph 4, of the Convention. The Arbitral Tribunal cannot simply take the Russian Federation's assertion at face value, just as it cannot accept Ukraine's premise as "just one of many internationally recognized background facts." However, neither should the Arbitral Tribunal engage in a full evaluation of the sovereignty claims of the Parties, as it has no such competence under Article 288, paragraph 1, of the Convention. The exercise of the Arbitral Tribunal's jurisdictional power in this regard should be limited to assessing the Russian Federation's claim of sovereignty for the sole purpose of verifying whether there exists a dispute as to which State has sovereignty over Crimea.
187.
The Arbitral Tribunal is not convinced by the plausibility test as advanced by Ukraine. Even if such a test exists, Ukraine has failed to state the content or standard of such a test in sufficiently clear terms. The Arbitral Tribunal also considers that the context and circumstances of the previous cases referred to by Ukraine, in which Ukraine argues that the plausibility test has been applied, differ considerably from those of the present case. On the other hand, neither does the Arbitral Tribunal find the threshold of the abuse of rights as presented by the Russian Federation relevant in this regard.
188.
In the view of the Arbitral Tribunal, the key question upon which it should focus is whether a dispute as to which State has sovereignty over Crimea exists. The Arbitral Tribunal already referred in paragraphs 163 and 164 to the various formulations employed by the Permanent Court of International Justice and the ICJ for the determination of the existence of a dispute. The Arbitral Tribunal considers that those formulations are flexible enough to leave considerable room for judgment on its part in verifying the existence of a dispute. The Arbitral Tribunal further considers that the jurisprudence of international courts or tribunals also shows that the threshold for establishing the existence of a dispute is rather low. Certainly a mere assertion would be insufficient in proving the existence of a dispute. However, it does not follow that the validity or strength of the assertion should be put to a plausibility or other test in order to verify the existence of a dispute.
189.
The Arbitral Tribunal does not consider that the Russian Federation’s claim of sovereignty is a mere assertion or one which was fabricated solely to defeat its jurisdiction. The Arbitral Tribunal notes that since March 2014, both Parties have held opposite views on the status of Crimea, and this situation persists today. The Parties have engaged in the controversy regarding sovereignty before and outside these proceedings, including in various international fora such as in debates at the UNGA. Even if the Arbitral Tribunal applied an additional element—as the ICJ did in Nuclear Arms and Disarmament by stating that "evidence must show that [...] the respondent was aware, or could not have been unaware,"308 of a position—the Arbitral Tribunal’s finding on the existence of a sovereignty dispute over Crimea would not change.
190.
For this reason, the Arbitral Tribunal does not accept Ukraine’s argument that the Russian Federation’s claim of sovereignty is implausible.

(d) Relative Weight of the Dispute

191.
The next question the Arbitral Tribunal has to address is related to the argument advanced by Ukraine that, even if it were assumed that there is a legal dispute concerning sovereignty over Crimea that would have to be resolved before addressing Ukraine's claims under the Convention, in the circumstances of the present case the Arbitral Tribunal's jurisdiction would extend to making any determinations of law as are necessary to resolve the UNCLOS dispute presented to it. In this regard, Ukraine argues that sovereignty over land is neither the real dispute in the present case, nor where the relative weight of the dispute lies.
192.
For its part, while the Russian Federation does not contest the test articulated by the arbitral tribunal in Chagos, it maintains that in the present case the territorial sovereignty issue is not ancillary to the law of the sea dispute but at "the front and centre" of the matter before the Arbitral Tribunal. According to the Russian Federation, the weight of the dispute lies squarely with territorial sovereignty.
193.
The Arbitral Tribunal notes that the arbitral tribunal in Chagos implied a possibility that its jurisdiction could be extended to ruling upon an ancillary issue of territorial sovereignty, when it stated:

As a general matter, [...] where a dispute concerns the interpretation or application of the Convention, the jurisdiction of a court or tribunal pursuant to Article 288(1) extends to making such findings of fact or ancillary determinations of law as are necessary to resolve the dispute presented to it [...] The Tribunal does not categorically exclude that in some instances a minor issue of territorial sovereignty could indeed be ancillary to a dispute concerning the interpretation or application of the Convention.309

194.
In the view of the Arbitral Tribunal, the key question it should address, therefore, is whether a sovereignty dispute over Crimea in the present case is an issue ancillary to a dispute concerning the interpretation or application of the Convention, to which its jurisdiction could be extended. The Arbitral Tribunal considers that this question essentially touches upon that of how the dispute before it should be characterised. The Arbitral Tribunal already addressed this question above in paragraphs 151 to 154.
195.
The Arbitral Tribunal is of the view that, in the present case, the Parties' dispute regarding sovereignty over Crimea is not a minor issue ancillary to the dispute concerning the interpretation or application of the Convention. On the contrary, the question of sovereignty is a prerequisite to the Arbitral Tribunal's decision on a number of claims submitted by Ukraine under the Convention. Those claims simply cannot be addressed without deciding which State is sovereign over Crimea and thus the "coastal State" within the meaning of provisions of the Convention invoked by Ukraine.
196.
The Arbitral Tribunal therefore cannot accept Ukraine's argument that even if there exists a predicate territorial sovereignty dispute, the Arbitral Tribunal has jurisdiction to address it because the relative weight of the dispute lies with the interpretation or application of the Convention.

4. Conclusion

197.
In light of the foregoing, the Arbitral Tribunal concludes that pursuant to Article 288, paragraph 1, of the Convention, it lacks jurisdiction over the dispute as submitted by Ukraine to the extent that a ruling of the Arbitral Tribunal on the merits of Ukraine's claims necessarily requires it to decide, expressly or implicitly, on the sovereignty of either Party over Crimea. As a result, the Arbitral Tribunal cannot rule on any claims of Ukraine presented in its Notification and Statement of Claim and its Memorial which are dependent on the premise of Ukraine being sovereign over Crimea.
198.
This conclusion affects many, but not all, of the claims articulated in different forms in Ukraine's Notification and Statement of Claim and Ukraine's Memorial. Since the Russian Federation is "entitled to know precisely the case advanced against it,"310 it is in the interest of procedural fairness and expedition for Ukraine to revise its Memorial so as to take full account of the scope of, and limits to, the Arbitral Tribunal's jurisdiction as determined in the present Award, before the Russian Federation is called upon to respond in a Counter-Memorial.

V. THE RUSSIAN FEDERATION’S OBJECTION THAT THE ARBITRAL TRIBUNAL HAS NO JURISDICTION OVER CLAIMS CONCERNING ACTIVITIES IN THE SEA OF AZOV AND IN THE KERCH STRAIT

199.
The Russian Federation submits that "[i]ndependently of the lack of jurisdiction to decide the question of sovereignty over Crimea, this Tribunal also does not have jurisdiction over any of Ukraine's claims pertaining to the Sea of Azov and the Kerch Strait."311 The Sea of Azov and the Kerch Strait, according to the Russian Federation, were historically internal waters of the Russian Empire, and later the USSR, and, since 1991, the common internal waters of Ukraine and the Russian Federation. The Russian Federation contends that the Convention does not regulate the regime of internal waters and concludes that issues concerning the Sea of Azov and the Kerch Strait are accordingly not issues concerning the interpretation or application of the Convention pursuant to Article 288, paragraph 1, of the Convention.
200.
Ukraine submits that the Arbitral Tribunal should reject the second preliminary objection of the Russian Federation. According to Ukraine, the Sea of Azov and the Kerch Strait are not internal waters; rather, the Sea of Azov is an enclosed or semi-enclosed sea within the meaning of the Convention, containing a territorial sea and exclusive economic zone, and the Kerch Strait is a strait used for international navigation. Ukraine also argues that the second objection of the Russian Federation does not have an exclusively preliminary character, and should be deferred to the merits phase.
201.
The Arbitral Tribunal notes that the Parties hold different views as to the status of the Sea of Azov and the Kerch Strait; the applicability of the Convention to the waters of the Sea of Azov and the Kerch Strait; and the exclusively preliminary character of the present objection. The Arbitral Tribunal will examine the various arguments of the Parties on these issues below.

A. Status of the Sea of Azov and the Kerch Strait Before 1991 and Developments Following the Dissolution of the USSR

1. Position of the Russian Federation

202.
The Russian Federation considers that the Parties agree that the Sea of Azov and the Kerch Strait had the status of internal waters prior to the dissolution of the USSR.312 It notes that the Russian Empire exercised sovereignty over the Sea of Azov and the Kerch Strait,313 and that the Sea of Azov was part of the Russian Empire's internal waters.314 The Russian Federation points to legislation of the USSR treating the Sea of Azov as internal waters.315 Such legislation was also applicable to the Soviet Socialist Republic of Ukraine, pursuant to the terms of the 1924 Constitution of the USSR.316 According to the Russian Federation, the status of the Sea of Azov as internal waters was not protested by other States and was recognised in Soviet international law doctrine.317
203.
The Russian Federation argues that, when the USSR ratified the Geneva Convention on the Territorial Sea and the Contiguous Zone (hereinafter the "Geneva Convention"), on 22 November 1960, the Sea of Azov and the Kerch Strait satisfied the requirements of a bay set out in Article 7 given that the shape of the Sea of Azov met the description of a bay and the opening of the bay, the Kerch Strait, was less than 24 miles wide.318 Once a closing line was drawn, according to the Russian Federation, the Sea of Azov was considered internal waters pursuant to Article 7, paragraph 4, of the Geneva Convention.319
204.
The Russian Federation maintains that "the participation of the USSR in the Geneva Convention and the drawing of baselines across the mouth of the Kerch Strait confirmed the customary internal waters status of the Sea of Azov and the Kerch Strait and established a treaty obligation for the other parties [to that Convention] to recognise such status."320
205.
The Russian Federation submits that the internal waters status of the Sea of Azov and the Kerch Strait remained unchanged after the dissolution of the USSR and the independence of Ukraine.321 In the view of the Russian Federation, there is no basis to assume that the Russian Federation and Ukraine intended to change the internal waters status of the Sea of Azov and the Kerch Strait and consequently lose rights that they had formerly enjoyed in those waters.322
206.
The Russian Federation notes that there has been no waiver on the part of the Russian Federation and Ukraine in respect of their rights.323 It submits that any waiver or renunciation of a State's rights must either be express or unequivocally implied by the conduct of the State.324 To the contrary, according to the Russian Federation, Ukraine and the Russian Federation "expressly confirmed that the Sea of Azov and the Kerch Strait retain their internal water status, inter alia, in the State Border Treaty of 28 January 2003 and in the Treaty325 and Joint Statement of 24 December 2003."326
207.
The Russian Federation contests Ukraine's argument that a sea surrounded by more than one State generally cannot be claimed as internal waters.327 It denies the existence of any "strong norm" to this effect.328 Relying notably on the International Law Commission's commentary to what became Article 7, paragraph 1, of the Geneva Convention, the Russian Federation argues that "Articles 7(1) of the Geneva Convention and 10(1) of UNCLOS do not prohibit the establishment of internal waters in bays with more than one riparian State;" they simply do not address this issue.329 Accordingly, in the Russian Federation's view, it cannot be said that the Convention "disfavours" pluri-State internal waters.330 Furthermore, the Russian Federation asserts that it would be contrary to the spirit of the Convention as "a coastal-oriented instrument" to suggest, as Ukraine does, that upon the dissolution of the USSR, the Sea of Azov and the Kerch Strait became "free for all States" without the agreement of the coastal States.331
208.
The Russian Federation relies on several international cases for the proposition that bays with more than one coastal State can constitute internal waters.332 The Russian Federation refers to the Land, Island and Maritime Frontier Dispute (El Salvador/Honduras : Nicaragua intervening) (hereinafter "Gulf of Fonseca"), in which the ICJ held that the Gulf of Fonseca, an historic bay comprising internal waters, was held in sovereignty by three riparian States.333
209.
The Russian Federation points out that the arbitral tribunal in the Arbitration Between the Republic of Croatia and the Republic of Slovenia (Croatia/Slovenia) (hereinafter "Croatia Slovenia") found that the Bay of Piran formerly constituted the internal waters of the Socialist Federal Republic of Yugoslavia,334 and that it remained so after the "dissolution, and the ensuing transfer of the rights of Yugoslavia to Croatia and Slovenia as successor States."335 The Croatia/Slovenia arbitral tribunal also stated, according to the Russian Federation, that Article 7, paragraph 1, of the Geneva Convention and Article 10 of UNCLOS do not exclude "the existence of bays with the character of internal waters, the coasts of which belong to more than one State."336
210.
Similarly, the Russian Federation notes that, in 1988, Tanzania and Mozambique agreed on a line closing the Rovuma Bay such that "[a]ll waters on the landward side of this line constitute the internal waters of the two countries."337 The Russian Federation also relies on other bilateral agreements that follow a similar approach, including the Maritime Delimitation Treaty between Brazil and France of 30 January 1981338 and the Treaty between Uruguay and Argentina of 19 November 1973.339
211.
As regards the present situation, the Russian Federation explains that, while it exercises sovereignty jointly with Ukraine in the Sea of Azov, it exercises exclusive sovereignty over the waters of the Kerch Strait.340 In response to the question posed to it by the Arbitral Tribunal (see paragraph 29), the Russian Federation clarified its position on the Kerch Strait and stated that "it has been exercising exclusive sovereignty over the waters of the Kerch Strait since it has been exercising its sovereignty on both sides of the strait."341 Nevertheless, the Russian Federation recognises certain rights of Ukraine related to the Kerch Strait, such as freedom of navigation for Ukrainian ships and a right to free passage for foreign non-military vessels sailing to and from Ukrainian ports, by virtue of the Treaty between the Russian Federation and Ukraine on Cooperation in the Use of the Sea of Azov and the Kerch Strait, 24 December 2003 (hereinafter the "Azov/Kerch Cooperation Treaty").342

2. Position of Ukraine

212.
Ukraine submits that prior to 1991 the USSR claimed the Sea of Azov and the Kerch Strait as internal waters on the basis that those waters were entirely surrounded by a single State.343 According to Ukraine, since the dissolution of the USSR, however, these maritime spaces have been bordered by two States, and can no longer qualify as internal waters.344
213.
Ukraine contends that the Sea of Azov is now an "enclosed or semi-enclosed sea" namely "a gulf, basin or sea surrounded by two or more States [the Parties] and connected to another sea or the ocean [the Black Sea] by a narrow outlet [the Kerch Strait] or consisting entirely or primarily of the territorial seas and exclusive economic zones of two or more coastal states," within the meaning of Article 122 of the Convention.345
214.
Ukraine notes that the "Convention distinguishes between enclosed and semi-enclosed seas surrounded by two or more States" (Article 122 of the Convention) and "bays the coasts of which belong to a single State" (Article 10 of the Convention).346 In Ukraine's view, only the latter may classify as internal waters whereas the former remains "subject to the normal regime of the territorial sea, the exclusive economic zone, and the continental shelf."347
215.
Ukraine maintains that the Sea of Azov "comprises the territorial seas and exclusive economic zones" of the Parties.348 In light of the status of the Sea of Azov as an enclosed or semi-enclosed sea comprised of territorial seas and exclusive economic zones, Ukraine submits that the Kerch Strait is an international strait, pursuant to Article 37 of the Convention, connecting "one part of [...] an exclusive economic zone" in the Sea of Azov to "an exclusive economic zone" in the Black Sea.349
216.
According to Ukraine, the Convention reflects the "strong and long-standing norm" that a sea surrounded by more than one State cannot be considered internal waters.350 Ukraine argues that Articles 8 and 10 of the Convention, read together, only contemplate internal waters claims with respect to a single State, not shared claims among two or more States.351 At a minimum, Ukraine contends that, in light of the way the Convention is written and structured, the notion of pluri-State internal waters should be regarded as "disfavoured and highly exceptional."352 For Ukraine, the Russian Federation’s claim to common internal waters is in tension with the Convention’s object and purpose,353 because pluri-State internal waters claims for which no rule exists in the Convention "may upset th[e] careful balance" established by UNCLOS and undermine the predictability and regularity that it intended to provide.354
217.
Ukraine argues that the Russian Federation places disproportionate weight on a few rare instances in which an exception to the rule against pluri-State bays have been recognised.355 According to Ukraine, the Gulf of Fonseca case predates the entry into force of the Convention.356 Moreover, neither the ICJ in the Gulf of Fonseca case nor the arbitral tribunal in the Croatia/Slovenia case "were subject to the Article 293 rule giving priority to the Convention."357
218.
Ukraine submits that, even if the Arbitral Tribunal could recognise that exceptions to the rule against pluri-State bays exist, the conditions for pluri-State internal waters have not been met in this case.358 Ukraine takes the view that the exceptional status of pluri-State bays has only been recognised where: (a) the body of water is small and not large enough to contain an exclusive economic zone, (b) there is a clear agreement between all bordering States to establish a pluri-State internal waters regime, and (c) third States are not prejudiced by the claim.359 (The Parties’ positions in respect of these three criteria set forth by Ukraine will be summarised in the following sections.)
219.
Finally, Ukraine argues that the Russian Federation has "contradicted its pleadings," asserting on the one hand that the Sea of Azov and the Kerch Strait constitute common internal waters and claiming on the other hand that the Kerch Strait is under the full sovereignty of the Russian Federation.360 Ukraine notes that the Russian Federation has only recently claimed that the Kerch Strait "is a Russian strait" and is not "subject to any regulation by international law."361

B. Positions and Practice of the Parties regarding the Status of the Sea of Azov and the Kerch Strait

1. Position of the Russian Federation

220.
The Russian Federation rejects Ukraine's argument that, following the dissolution of the USSR, the Sea of Azov and the Kerch Strait no longer constituted internal waters because there was no agreement between Ukraine and the Russian Federation to hold these waters in common.362 The Russian Federation states that there is no need for an agreement between the States in this respect, because, upon the dissolution of the USSR, the Sea of Azov and the Kerch Strait automatically continued to be internal waters.363 For the Russian Federation, a clear, expressed intention was only required if the Parties wished to change the internal waters status of the bodies of water.364
221.
The Russian Federation argues that under the doctrine of State succession, when the Russian Federation and Ukraine replaced the USSR as coastal States in the Sea of Azov, "they succeeded in the [USSR]'s rights on that sea."365 Therefore, the Russian Federation maintains that upon the dissolution of the USSR there was no need to create an internal waters regime in the Sea of Azov.366 In effect, in the view of the Russian Federation, such an internal waters regime already existed in the Sea of Azov and was "well established."367 The Russian Federation submits that "[t]o change [the internal waters regime] would have required, as it still requires, the agreement of both Russia and Ukraine."368
222.
In this regard, the Russian Federation notably points to the finding of the Croatia/Slovenia arbitral tribunal, in respect of the Bay of Piran, that:

the Bay was internal waters before the dissolution of the [Socialist Federal Republic of Yugoslavia] in 1991, and it remained so after that date. The dissolution, and the ensuing legal transfer of the rights of Yugoslavia to Croatia and Slovenia as successor States, did not have the effect of altering the acquired status.

[...]

In any case, the effect of the dissolution of the [Socialist Federal Republic of Yugoslavia] is a question of State succession. The Tribunal thus determines that the Bay remains internal waters within the pre-existing limits.369

223.
Together with the Croatia/Slovenia award, the Russian Federation relies on the Gulf of Fonseca judgment. According to the Russian Federation, these two cases are the only ones that dealt with the status of the waters of a bay previously held by only one riparian State and that, through State succession, became surrounded by two or more States.370 The Russian Federation submits that in both cases the decision was "that the internal water status of the bay was maintained as common internal waters of the [S]tates replacing the former coastal [S]tate."371
224.
Regarding Ukraine's reliance on the example of the Gulf of Riga, with respect to which Estonia and Latvia concluded an agreement delimiting their territorial seas and exclusive economic zones, the Russian Federation submits that the example does not support Ukraine's position.372 The Russian Federation argues that Estonia's rejection of the proposal by Latvia to declare the Gulf of Riga an historic bay comprised of internal waters does not mean that an agreement between successor riparian States is necessary for the establishment of a common internal waters regime.373 According to the Russian Federation, Estonia's rejection of the internal waters regime for the Gulf of Riga was due to the reasons connected to "its policy of not being considered a successor to the Soviet Union."374 The Russian Federation notes that, after the dissolution of the USSR and before Estonia and Latvia agreed to delimitation, the Gulf of Riga was considered by Latvia as the "enclosed joint internal waters of Estonia and Latvia."375
225.
In any event, the Russian Federation contends that Ukraine and the Russian Federation have agreed that the Sea of Azov and the Kerch Strait constitute internal waters.376 According to the Russian Federation, the Parties' negotiations over years were predicated on the Sea of Azov being internal waters.377 The Russian Federation submits that in their exchanges, negotiations, and joint statements, the Parties agreed that the Sea of Azov constitute their common internal waters.378
226.
Specifically, the Russian Federation refers to the Minutes of the Sub-Commission on Border Issues of the Mixed Russian-Ukrainian Commission on Cooperation of 14 August 1996.379 It also refers to the draft Treaty between Ukraine and the Russian Federation on the Legal Status of the Sea of Azov and Navigation in its Water Area,380 which led to the Azov/Kerch Cooperation Treaty.381
227.
The Russian Federation acknowledges that, during these negotiations, Ukraine insisted on the need "for a delimitation of the state border in the Sea of Azov."382 However, according to the Russian Federation, Ukraine expressed its belief that such delimitation would not have impacted the internal waters status of the Sea of Azov,383 and did not see delimitation as a condition to the existence of common internal waters.384 The Russian Federation points out in this regard that Article 5 of the Treaty Between the Russian Federation and Ukraine on the Russian-Ukrainian State Border of 28 January 2003 (hereinafter the "State Border Treaty") states that "[n]othing in this [State Border Treaty] shall prejudice the positions of the Russian Federation and Ukraine with respect to the status of the Sea of Azov and the Kerch Strait as internal waters of the two States."385
228.
The Russian Federation argues that the Parties agreed in the Azov/Kerch Cooperation Treaty and in the Joint Statement by the President of the Russian Federation and the President of Ukraine on the Sea of Azov and the Kerch Strait of 24 December 2003 (hereinafter the "Joint Statement") that "the Sea of Azov and the Kerch Strait are historically internal waters of the Russian Federation and Ukraine."386 In the Russian Federation’s view, these instruments confirm that the Parties, in the course of their negotiations, regarded the Sea of Azov and the Kerch Strait as internal waters, without prejudice to future agreements regarding delimitation.387
229.
The Russian Federation asserts that Ukraine’s practice, since independence, supports the internal waters status of the Sea of Azov and the Kerch Strait.388
230.
The Russian Federation states that Ukraine relies on a single episode that is inconsistent with Ukraine’s general conduct concerning the treatment of the Sea of Azov and the Kerch Strait as internal waters—the deposit of a list of coordinates with the United Nations to measure the width of territorial waters, exclusive economic zone, and continental shelf of the Sea of Azov389—and submits that this incident "could at best be seen as an anomaly in a consistent pattern."390

2. Position of Ukraine

231.
Ukraine denies the existence of any rule of international law by which successor States automatically hold formerly internal waters of a single State unit as joint, pluri-State waters. Rather, it argues, internal waters generally lose their status following the breakup of the surrounding State.391 Therefore, in Ukraine’s view, the proper presumption to be made upon the dissolution of "a single State bordering a body comprised of internal waters" is that such waters are no longer internal.392 Such presumption can only be overturned if "[a]ll interested States wishing to preserve an internal waters regime [...] manifest an express, clear, and consistent agreement on the communal nature of the regime they wish to create."393
232.
Ukraine is of the view that it is more reasonable to assume that a State which no longer controls the entire coastline of a sea should lose some of the rights it formerly enjoyed, rather than to suppose that "a newly independent State occupying part of that coastline should be denied fundamental rights such as the ability to safeguard trade and commerce on an equal footing with other sovereign States."394 According to Ukraine, it would be inconsistent with the principle of sovereign equality of States to require a newly independent State to seek approval of the State from which it has just separated in order to "escape a common internal waters regime."395
233.
In support of its position, Ukraine points out that, immediately upon the dissolution of the USSR, Latvia sought Estonia's affirmative agreement to treat the Gulf of Riga as pluri-State internal waters.396 According to Ukraine, the Russian Federation's own source for this episode recounts that Estonia rejected Latvia's endeavours, which was possible because "each of the new coastal States needs to recognise the continuous historical status of the bay."397 Eventually, the Gulf of Riga was acknowledged by Estonia and Latvia to comprise the territorial seas and exclusive economic zones of the two States.398
234.
Ukraine argues that the ICJ in Gulf of Fonseca found that the Gulf of Fonseca was internal waters by affirmative agreement of the three littoral States, with all three States "act[ing] jointly to claim historic title to a bay."399 In Ukraine's view, the Gulf of Fonseca case confirms that the internal waters status of a body of water is not automatically transferred to multiple States by virtue of principles of State succession.400
235.
Ukraine finally distinguishes the case of the Bay of Piran from the Sea of Azov and the Kerch Strait on the basis that the arbitration agreement barred the Croatia/Slovenia arbitral tribunal from considering post-1991 practice as legally relevant, thus rendering the issue of post-dissolution agreement among successor States non-applicable in this case.401
236.
Turning to the circumstances of the Sea of Azov and the Kerch Strait, Ukraine acknowledges that the Sea of Azov could formerly be classified as internal waters of the USSR as a single-State juridical bay.402 However, Ukraine denies that this status continued after the dissolution of the USSR as it never consented to treat the Sea of Azov and the Kerch Strait as common internal waters.403
237.
Ukraine argues that, upon its independence, the application of the Convention was the automatic consequence for all its maritime areas, including the Sea of Azov and the Kerch Strait.404 Ukraine points out that, following "Ukraine's establishment as an independent State, [it] made clear its position that the Sea of Azov was subject to the normal rules of the international law of the sea, by depositing ‘baselines for measuring the width of the territorial sea, exclusive economic zone, and continental shelf of Ukraine in the Black Sea and the Sea of Azov'" with the United Nations.405 Ukraine also relies on a 1992 agreement between the Parties on cooperation in the fisheries sector in the Black Sea and Sea of Azov, which specifically takes into account the Convention and makes no reference to the Sea of Azov having any other status.406
238.
Ukraine submits that, after the dissolution of the USSR, "Ukraine and Russia would be negotiating on a blank slate rather than inheriting an internal waters status from the Soviet era that could only be changed by agreements between the two successor States."407 However, according to Ukraine, the Parties did not reach agreement on the internal waters status of the Sea of Azov and the Kerch Strait.408
239.
Ukraine argues that, in the course of negotiations for the Azov/Kerch Cooperation Treaty between 1996 and 2002, Ukraine had considered it "imperative that the concept of an internal waters status be tied to delimitation between the States."409 Ukraine highlights that it never agreed to a common internal waters status without a border;410 and that delimitation was a condition for the treatment of the Sea of Azov and the Kerch Strait as internal waters.411 This position is underscored, according to Ukraine, by Article 5 of the State Border Treaty, which, by indicating that the treaty shall not prejudice the Parties' "positions" regarding the legal status of the Sea of Azov and the Kerch Strait, reflect the two States' conflicting "positions"—in the plural—on the future legal status of those areas.412
240.
Ukraine further explains that the Azov/Kerch Cooperation Treaty was concluded against the background of the Russian Federation's "unilateral construction in the Kerch Strait of a dam in an attempt to connect Tuzla Island—part of Ukraine's territory—to [the Russia Federation's] Taman Peninsula."413 Ukraine points out that the preamble of that treaty states (in Ukraine's translation) that the Sea of Azov and the Kerch Strait "historically constitute internal waters of the Russian Federation and Ukraine," that the "Sea of Azov shall be delimited," and that the "[i]ssues concerning the water area of the Kerch Strait shall be resolved by agreement between the Parties."414 Ukraine therefore considers that the Azov/Kerch Cooperation Treaty supports the view that the Parties had not reached a final agreement regarding the status of the Sea of Azov, and that any final agreement would be contingent on delimitation.415
241.
Ukraine points out that the Parties continued to negotiate the status of the Sea of Azov and the Kerch Strait following the Azov/Kerch Cooperation Treaty.416 According to Ukraine, this suggests that the Azov/Kerch Cooperation Treaty was not regarded by the Parties as a final resolution of the matter.417 Indeed, for Ukraine, what was accomplished by the Azov/Kerch Cooperation Treaty was "only limited and only provisional."418
242.
Ukraine denies that it in practice treated the Sea of Azov and the Kerch Strait as "common internal waters" either before or after the execution of the Azov/Kerch Cooperation Treaty.419 Ukraine contends that not only has it invoked the regime of transit passage in the Kerch Strait, as clearly reflected in the note verbale of its Ministry of Foreign Affairs in 2001 and 2002, but "even where it has consented to describe the Sea of Azov and the Kerch Strait as ‘internal waters', it has claimed a ‘part' or ‘sector' of the Sea of Azov and Kerch Strait in which its rights trump Russia's."420
243.
Ukraine recalls in this regard that it protested a Russian decree extending patrols to the entire Sea of Azov, and that it detained fishing vessels of the Russian Federation in its "sector" of the Sea of Azov.421 Ukraine also recalls that it protested dredging by the Russian Federation in the Ukrainian side of the Kerch Strait.422
244.
Ukraine contends that the Russian Federation's practice since 2014 has not been consistent with a common internal waters regime. According to Ukraine, the Russian Federation has seized Ukrainian gas fields in the Sea of Azov, purported to unilaterally nullify Ukrainian licenses for such gas fields, unilaterally built a bridge, cables, and a pipeline across the Kerch Strait, and imposed unilateral limits on the dimensions of vessels that might pass thought the strait.423 Ukraine also contends that the Russian Federation has only recently stopped vessels transiting the Kerch Strait to and from Ukraine's Sea of Azov ports, on the basis that the Kerch Strait is "under the full sovereignty of [the Russian Federation]."424

C. Rights of Third States

1. Position of the Russian Federation

245.
The Russian Federation denies that any further criteria must be met for the Sea of Azov to be considered pluri-State internal waters.425 Such further conditions, in the Russian Federation’s view, have no basis in the Convention or judicial decisions.426
246.
The Russian Federation disagrees with Ukraine’s proposition that, for the establishment of a pluri-State bay, third States must not be prejudiced.427 In any case, the Russian Federation argues that this alleged criterion is met in the present case.428
247.
According to the Russian Federation, third States are subject to the regime inherent in the internal waters status of the Sea of Azov, and "to nothing more."429 The Russian Federation asserts that third States "never had, and do not have now, navigational rights" in the Sea of Azov and the Kerch Strait, other than those granted to them by the Parties in the Azov/Kerch Cooperation Treaty.430
248.
The Russian Federation contends that third States have not protested the internal waters status of the Sea of Azov and the Kerch Strait.431 The Russian Federation regards recent statements by some entities as "politically inspired" and based on the misapprehension that freedom of transit and navigation under the Convention existed in the Sea of Azov and the Kerch Strait, whereas, in reality, these waters were always considered to be internal.432

2. Position of Ukraine

249.
Ukraine argues that the Russian Federation’s vision of the Sea of Azov and the Kerch Strait as "common internal waters" would prejudice third States, and would result in harm to international navigation.433 Ukraine points out that the ICJ in Gulf of Fonseca ensured that third States retained the right of innocent passage in the internal waters of the gulf.434
250.
Ukraine notes that, since April 2018, the Russian Federation has impeded Ukrainian and third-State vessels in the Sea of Azov and the Kerch Strait and obstructed their access to the Ukrainian ports located there.435 According to Ukraine, by November 2018, the Russian Federation had completely closed the Kerch Strait to navigation, stating that the Kerch Strait is a Russian strait and is not subject to regulation by international law.436 Ukraine highlights that third States and members of the international community, including Bulgaria, the European Union, Romania, Turkey, and the United States, have protested the Russian Federation’s recent actions in the Kerch Strait as an interference with their navigational rights.437
251.
Ukraine emphasises that third States continue to assert their navigational rights in the Sea of Azov, and the international community has not consented to any common internal waters status.438 In this regard, Ukraine refers to a UN General Assembly resolution that calls upon the Russian Federation "to refrain from impeding the lawful exercise of navigational rights and freedoms in the Black Sea, the Sea of Azov and the Kerch Strait in accordance with applicable international law, in particular provisions of the [Convention]."439

D. Relevance of the Size of the Sea of Azov

1. Position of the Russian Federation

252.
The Russian Federation objects to Ukraine's position in favour of limiting the possibility of internal waters in pluri-State bays to bays not large enough to contain an exclusive economic zone or high seas.440 Referring to the Gulf of Riga (formerly the internal waters of the USSR) invoked by Ukraine, in which Latvia and Estonia concluded an agreement delimiting their territorial sea and exclusive economic zone after the dissolution of the USSR, the Russian Federation notes that this precedent does not establish that such course of action was required by the size of the Gulf of Riga.441 Moreover, it adds that there is nothing to suggest that the Gulf of Riga was not pluri-State internal waters between the dissolution of the USSR and the delimitation agreement.442 The Russian Federation also denies the relevance of the Arab States' claim to the Gulf of Aqaba as common internal waters.443 According to the Russian Federation, such claim was based on religious grounds, was not made by all the riparian States, and lacked evidence of peaceful and continuous use by the Ottoman Empire of the Gulf of Aqaba to the exclusion of other nations.444
253.
The Russian Federation argues that, regardless of the specificities of those disputes, both the Gulf of Fonseca judgment and the Croatia/Slovenia award "accepted without difficulty that there could be internal waters common to two or more States."445 The Russian Federation points out that the international agreements concerning the Rovuma Bay, the Bay of Oyapock, and the Rio de la Plata established common internal waters of each pair of riparian States, when they drew closing lines.446 It further notes that no judicial decision states that internal waters established in a bay within one riparian State cannot continue to exist where there is later more than one such State.447
254.
The Russian Federation rejects Ukraine's assertion that the admission of internal waters large enough to contain an exclusive economic zone would conflict with the text and object and purpose of the Convention.448 It argues that, under the Convention, only new claims to sovereignty over areas of the high seas and exclusive economic zones would be invalid.449 By contrast, in the Russian Federation's view, the Convention, as "a consecration of coastal States' claims" and "a victory of coastal States' interests," does not prevent the maintenance of State sovereignty in areas that were never part of the high seas or exclusive economic zones.450
255.
The Russian Federation further notes that, while the Convention regulates and endorses the expansion of coastal States' jurisdiction to areas belonging to the high seas, it does not provide for a process through which areas formerly under the sovereignty of a riparian State would become high seas or exclusive economic zones.451

2. Position of Ukraine

256.
Ukraine notes that the Sea of Azov is large enough to contain an exclusive economic zone.452 In Ukraine's view, the creation of a sui generis regime of common internal waters in an area as significant as the Sea of Azov and the Kerch Strait cannot be easily presumed.453
257.
Ukraine submits that pluri-State internal waters have only been recognised in bodies of water covering smaller geographical areas than the Sea of Azov.454 Specifically, Ukraine notes that the Gulf of Fonseca is 21 times, and the Bay of Piran is 2,000 times smaller than the Sea of Azov, and both the Gulf of Fonseca and the Bay of Piran are too small to contain an exclusive economic zone or high seas.455
258.
According to Ukraine, the ICJ found in the Gulf of Fonseca case that a small gulf was comprised of pluri-State internal waters, based on hundreds of years of consistent practice demonstrating agreement among the States as to that regime and the acquiescence of third States and navigational protections for those States.456 Even so, Ukraine notes, the existence of a pluri-State bay was controversial in that case, with Judge Oda dissenting on the basis that "there did not and still does not (or, even, cannot) exist any such legal concept as a ‘pluri-State bay' the waters of which are internal waters."457
259.
Turning to the example of the Gulf of Aqaba, Ukraine notes that many States objected to the claim of Egypt, Jordan, and Saudi Arabia that its waters were Arab internal waters "by reason partly of its breadth and partly of the fact that its shores belong to four different States."458
260.
Ukraine notes that the Russian Federation has not to date identified any claim to pluri-State internal waters in a sea as large as the Sea of Azov.459 Ukraine highlights that the Rovuma Bay and the Bay of Oyapuck, examples of pluri-State internal waters referred to by the Russian Federation, are small enough to be covered by the territorial seas of the coastal States.460 According to Ukraine, the Rio de la Plata estuary was claimed as a river estuary pursuant to Article 9 of the Convention, and unlike Articles 8 and 10, the drawing of a baseline across river mouths is not limited to bodies of water bordered by a single State.461 Moreover, Ukraine points out that third States have protested the internal waters status of the Rio de la Plata estuary.462
261.
Ukraine argues that extending the internal waters regime to larger water bodies would conflict with the text of the Convention, "which renders invalid any claim to sovereignty over areas that would otherwise be subject to the regime of the exclusive economic zone and/or the high seas."463 Ukraine adds that the Russian Federation’s attempts to apply the internal waters regime to bodies of water large enough to contain an exclusive economic zone would also contravene the purpose of the Convention, which aims to strike a balance between the jurisdiction of coastal States and those of third States in maritime areas.464 In Ukraine’s view, permitting such claims would "disturb the careful balance that the Convention strikes between coastal State jurisdiction and third-State rights" and "deprive third States of navigational rights that they would otherwise enjoy, as well as rights to harvest any surplus of the coastal State’s allowable catch."465

E. Historic Title Argument

1. Position of the Russian Federation

262.
The Russian Federation notes that the Azov/Kerch Cooperation Treaty and Joint Statement recognise the Sea of Azov and the Kerch Strait as "historically internal" waters.466 According to the Russian Federation, the claim of historically internal waters should be interpreted also as claims that the rights exercised in the Sea of Azov and the Kerch Strait are based on historic title.467 The Russian Federation observes that these claims to historic bay status, when published in the Law of the Sea Bulletin, did not receive any objections from third States, while the United States elected to protest the Russian Federation’s claim to the Peter the Great Bay.468
263.
The Russian Federation argues that the concept of historic title is used specifically to refer to historic sovereignty over land or maritime areas. The Russian Federation refers to the United Nations Memorandum on Historic Bays, which states:

[h]istoric rights are claimed not only in respect of bays, but also in respect of maritime areas which do not constitute bays, such as the waters of archipelagos and the water area lying between an archipelago and the neighbouring mainland; historic rights are also claimed in respect of straits, estuaries and other similar bodies of waters.469

264.
Therefore, according to the Russian Federation, rights over the Kerch Strait can be based on historic title "if the Kerch Strait were not to be seen as included in the mouth of the historic bay of the Sea of Azov."470 The Russian Federation argues that there is no reason why a bay that qualifies as a juridical bay, meeting the requirements set out in the Convention, should not also qualify as an historic bay if it has been recognised as comprising internal waters for a long time without meeting objections from third States.471
265.
The Russian Federation also argues that Ukraine has implicitly acknowledged historic title over the Sea of Azov by making a declaration under Article 298, paragraph 1, subparagraph (a), of the Convention, excluding "disputes involving historic bays or titles" from the compulsory procedure.472 According to the Russian Federation, there would be no purpose to this declaration unless Ukraine, which has no other historic bay, considered that the Sea of Azov and the Kerch Strait were subject to rights of historic title.473

2. Position of Ukraine

266.
Ukraine rejects the Russian Federation’s argument that the Sea of Azov and the Kerch Strait are internal waters by reason of their history.474
267.
For Ukraine, the fact that the Sea of Azov and the Kerch Strait may have been a juridical bay, and thus subject to the regime of internal waters, does not turn those waters into an historic bay, since such qualification is meant for areas that would not qualify as juridical bays due to their dimensions.475 Ukraine contends that it cannot be inferred from the lack of objections from third States with respect to a juridical bay that they have acquiesced to such bay obtaining historical title status.476
268.
Ukraine argues that its declaration pursuant to Article 298, paragraph 1, subparagraph (a)(i), of the Convention cannot be taken as an acknowledgement that the Sea of Azov and the Kerch Strait are subject to rights of historic title because the declaration merely paraphrases the content of Article 298, paragraph 1, subparagraph (a)(i).477

F. Applicability of UNCLOS to the Waters of the Sea of Azov and the Kerch Strait

1. Position of the Russian Federation

269.
The Russian Federation argues that, as internal waters, the Sea of Azov and the Kerch Strait are not regulated by the Convention.478
270.
Specifically, the Russian Federation recalls that Article 8 of the Convention provides that internal waters fall within the landward side of the baseline, and Article 2, paragraph 1, of the Convention provides that "[t]he sovereignty of a coastal State extends, beyond its land territory and internal waters [...] to an adjacent belt of sea, described as the territorial sea."479 Article 2, paragraph 2, of the Convention extends the sovereignty to the airspace above and the bed and sub-soil of the territorial sea, while not addressing sovereignty over internal waters.480 Furthermore, the Russian Federation points out that the Convention does not regulate the delimitation of internal waters of States whose coasts are opposite or adjacent to each other.481
271.
The Russian Federation also relies on the Separate Opinion of Judges Cot and Wolfrum in the ARA Libertad (Argentina v. Ghana) (hereinafter "ARA Libertad") case, which suggests that internal waters should be equated with land territory, and no limitations can be assumed on the sovereignty of the coastal State over internal waters.482
272.
The Russian Federation further submits that the Kerch Strait is not a strait "between one part of the high seas or an exclusive economic zone and another part of the high seas or an exclusive economic zone," as defined by Article 37 of the Convention, and is therefore not regulated by the Convention.483 Accordingly, the Russian Federation argues that disputes concerning activities in the Kerch Strait do not concern the interpretation or application of the Convention.484

2. Position of Ukraine

273.
Ukraine contests the Russian Federation’s allegation that the internal waters regime is outside of the scope of the Convention.485 In response to the question posed to it by the Arbitral Tribunal (see paragraph 29), Ukraine submits that "[q]uestions concerning internal waters regulated by provisions of UNCLOS unquestionably are within the scope of UNCLOS and would also come within the scope of the dispute settlement mechanisms of Part XV of the Convention."486
274.
Ukraine notes that the provisions of UNCLOS determine the existence and extent of internal waters.487 In this regard, Ukraine refers to Article 8, paragraph 1, of the Convention and also to Article 7 of the Convention on straight baselines.488
275.
Referring to Article 8, paragraph 2, of the Convention, Ukraine argues that the right of innocent passage applies to those internal waters created by the establishment of a straight baseline in accordance with Article 7.489
276.
Ukraine further notes that Article 2 of the Convention confirms that the sovereignty of the coastal State extends to the internal waters as defined by UNCLOS, but that sovereignty must necessarily be exercised subject to the Convention.490
277.
Ukraine adds that other provisions of the Convention entail the rights and obligations of States with regard to internal waters.491

G. Exclusively Preliminary Character of the Objection

1. Position of the Russian Federation

278.
The Russian Federation disagrees with Ukraine's argument that consideration of this preliminary objection should be deferred to the merits phase.492
279.
According to the Russian Federation, the purpose of the Preliminary Objections phase is to determine the jurisdiction of the Arbitral Tribunal, and, more specifically, the scope of the Russian Federation's consent to jurisdiction. The Russian Federation contends that, in order to ascertain to which disputes the Russian Federation's consent to jurisdiction under UNCLOS extends, it is necessary to determine whether any dispute concerns the interpretation and application of the Convention. In making this determination, in the Russian Federation's view, the Arbitral Tribunal would not apply the Convention to any set of facts, and thus enter into the merits, but simply determine its scope in order to "avoid that a Party should have to ‘give an account of itself on issues of merits before a tribunal which lacks jurisdiction in the matter, or whose jurisdiction has not yet been established'."493
280.
The Russian Federation contends that the Arbitral Tribunal, after reviewing an abundance of material decided in Procedural Order No. 3 that its Preliminary Obj ections are "of a character that requires them to be examined in a preliminary phase."494
281.
The Russian Federation considers that there is nothing that requires the Arbitral Tribunal to reserve this preliminary objection for consideration in the merits phase in accordance with the terms of the operative paragraph 2 of Procedural Order No. 3.495

2. Position of Ukraine

282.
Ukraine contends that, if the Russian Federation’s objection based on the internal waters status of the Sea of Azov and the Kerch Strait is not rejected, it should be deferred to the merits phase496 in accordance with Article 10, paragraph 4, of the Rules of Procedure497 and consistently with Procedural Order No. 3.498
283.
Ukraine recalls its position on the merits that the Sea of Azov is a semi-enclosed sea that includes maritime zones belonging to Ukraine, that the Kerch Strait includes territorial sea belonging to Ukraine and is a strait used for international navigation, and that the Russian Federation’s actions in both areas have breached the terms of the Convention.499 Ukraine maintains that the Russian Federation’s assertion of internal waters status goes to the merits of the dispute because it requires the Arbitral Tribunal to make a determination on the merits as to whether Ukraine has rights in the Sea of Azov and the Kerch Strait recognised by the relevant provisions of the Convention, which the Russian Federation has breached.500
284.
Ukraine adds that the fact that the Russian Federation has behaved entirely inconsistently with its claimed common internal waters status in the Sea of Azov and the Kerch Strait provides yet another reason that its objection cannot be accepted at this stage of the proceedings. In Ukraine’s view, the Arbitral Tribunal cannot uphold the Russian Federation’s claim of common internal waters without first ascertaining whether, as a factual matter, the Russian Federation’s actual conduct is consistent with that claim.501 Ukraine thus submits that this determination is properly made in the merits phase of these proceedings.502
285.
Ukraine notes that the South China Sea arbitral tribunal found that the nature and validity of any historic rights claimed by China in the South China Sea was a determination on the merits.503 Ukraine considers that the Russian Federation has made a "comparable claim" in this Arbitration.504

H. Analysis of the Arbitral Tribunal

286.
Having reviewed the positions of the Parties, the Arbitral Tribunal has to consider whether it has jurisdiction to decide the dispute brought by Ukraine insofar as it extends to events in the Sea of Azov and the Kerch Strait.
287.
The Arbitral Tribunal recalls Article 10, paragraph 8, of the Rules of Procedure, which provides:

The Arbitral Tribunal shall give its decision in the form of an award, by which it shall uphold the objection or reject it or declare that the objection does not possess, in the circumstances of the case, an exclusively preliminary character. If the Arbitral Tribunal rejects the objection or declares that it does not possess an exclusively preliminary character, it shall fix time-limits for the further proceedings.

288.
Pursuant to this provision, the Arbitral Tribunal, in Procedural Order No. 3, decided:

If the Arbitral Tribunal determines after the closure of the preliminary phase of the proceedings that there are Preliminary Objections that do not possess an exclusively preliminary character, then, in accordance Article 10, paragraph 8, of the Rules of Procedure, such matters shall be reserved for consideration and decision in the context of the proceedings on the merits.

289.
The Arbitral Tribunal further recalls that the criteria for ascertaining whether a preliminary objection possesses an exclusively preliminary character were discussed in detail by the Parties in their written pleadings of 18 June 2018 and 4 July 2018 in respect of the Russian Federation’s request to address its preliminary objections in a preliminary phase. Such criteria notably include the risk of the arbitral tribunal prejudging in an award on jurisdiction questions of the merits that, by definition, have not been fully pleaded by the parties at that stage, as well as the related risk of the arbitral tribunal considering, and forming a potentially incomplete view of, evidence that is common to jurisdictional and merits questions.
290.
The Arbitral Tribunal notes that the Parties do not disagree as to the legal status of the Sea of Azov and the Kerch Strait prior to the dissolution of the USSR, being internal waters of the USSR. However, they disagree as to whether such status has continued after the dissolution of the USSR and Ukraine becoming an independent State.
291.
In the view of the Arbitral Tribunal, the legal regime governing the Sea of Azov and the Kerch Strait depends, to a large extent, on how the Parties have treated them in the period following the independence of Ukraine. The positions of the Parties in respect of this question can be found or inferred from the subsequent agreements between them, including the Azov/Kerch Cooperation Treaty and the State Border Treaty, as well as their actual practice in those maritime areas. In order to determine whether the Sea of Azov and the Kerch Strait constitute internal waters, therefore, the Arbitral Tribunal must examine not only the subsequent agreements between the Parties but also how the Parties have acted vis-à-vis each other or vis-à-vis third States in the above areas. In particular, this would require the Arbitral Tribunal to scrutinize the conduct of the Parties with respect to such matters as navigation, exploitation of natural resources, and protection of the marine environment in the Sea of Azov and the Kerch Strait.
292.
The Arbitral Tribunal further notes that the Russian Federation invokes the concept of historical title as an alternative basis for excluding the application of the Convention to the Sea of Azov and the Kerch Strait. Pursuant to that alternative argument, the Arbitral Tribunal must ascertain whether historic title to the waters in question existed, whether such title continued after 1991, and, if so, what the contents of the regime applicable to such waters has been.
293.
The Arbitral Tribunal thus considers that the Russian Federation’s objection based on the Sea of Azov and the Kerch Strait having the legal status of internal waters is interwoven with the merits of the present dispute, which have yet to be pleaded by the Parties. In the Arbitral Tribunal’s view, this objection may not adequately be addressed without touching upon the questions of the merits, which it should not do at this stage of the proceedings.
294.
Furthermore, without prejudice to whether the Sea of Azov and the Kerch Strait are internal waters, the Arbitral Tribunal is not entirely convinced by the rather sweeping premise of the Russian Federation’s objection that the Convention does not regulate a regime of internal waters and, therefore, a dispute relating to events that occurred in internal waters cannot concern the interpretation or application of the Convention. The Arbitral Tribunal notes in this regard that what constitutes internal waters is governed by the Convention. In addition, Article 8, paragraph 2, provides that a right of innocent passage shall exist in internal waters where the establishment of a straight baseline has the effect of enclosing as internal waters areas which had not previously been considered as such.
295.
The Arbitral Tribunal also recalls the statement of ITLOS in Request for Advisory Opinion submitted by the Sub-Regional Fisheries Commission that the obligation to protect and preserve the marine environment under Article 192 applies to "all maritime areas."505 Such areas, in the Arbitral Tribunal’s view, undoubtedly include internal waters. The Arbitral Tribunal further recalls the observation made by ITLOS in the ARA Libertad case that "although article 32 [Immunities of warships and other government ships operated for non-commercial purposes] is included in Part II of the Convention entitled ‘Territorial Sea and Contiguous Zone’, and most of the provisions in this Part relate to the territorial sea, some of the provisions in this Part may be applicable to all maritime areas, as in the case of the definition of warships provided for in article 29 of the Convention."506 ITLOS went on to state that "a difference of opinions exists between [the Parties] as to the applicability of article 32 and thus [...] a dispute appears to exist between the Parties concerning the interpretation or application of the Convention."507
296.
Accordingly, the Arbitral Tribunal is not inclined to accept the proposition that a dispute falls entirely outside the scope of the Convention simply because the underlying events occurred in internal waters. Rather, the relevant question for the Arbitral Tribunal appears to be whether a particular issue raised by the Parties’ dispute is regulated by the Convention or whether the particular conduct complained of implicates, or raises questions of the interpretation or application of the Convention.
297.
For the above reasons, the Arbitral Tribunal finds that this objection of the Russian Federation relating to Ukraine’s claim concerning activities in the Sea of Azov and the Kerch Strait does not possess an exclusively preliminary character. The Arbitral Tribunal accordingly decides to reserve the above matter for consideration and decision in the context of the proceedings on the merits.

VI. THE RUSSIAN FEDERATION’S OBJECTION THAT THE ARBITRAL TRIBUNAL HAS NO JURISDICTION IN LIGHT OF THE PARTIES’ DECLARATIONS UNDER ARTICLE 298(1) OF THE CONVENTION

298.
Upon ratification of the Convention on 12 March 1997, the Russian Federation made a declaration pursuant to Article 298, paragraph 1, which reads:

The Russian Federation declares that, in accordance with article 298 of the United Nations Convention on the Law of the Sea, it does not accept the procedures, provided for in section 2 of Part XV of the Convention, entailing binding decisions with respect to disputes concerning the interpretation or application of articles 15, 74 and 83 of the Convention, relating to sea boundary delimitations, or those involving historic bays or titles; disputes concerning military activities, including military activities by government vessels and aircraft, and disputes concerning law-enforcement activities in regard to the exercise of sovereign rights or jurisdiction; and disputes in respect of which the Security Council of the United Nations is exercising the functions assigned to it by the Charter of the United Nations.508

This declaration mirrors in substance an earlier declaration made by the USSR upon signature of the Convention, on 10 December 1982.509

299.
Upon ratification of the Convention on 26 July 1999, Ukraine made a declaration pursuant to Article 298, paragraph 1, which reads:

Ukraine declares, in accordance with article 298 of the Convention, that it does not accept, unless otherwise provided by specific international treaties of Ukraine with relevant States, the compulsory procedures entailing binding decisions for the consideration of disputes relating to sea boundary delimitations, disputes involving historic bays or titles, and disputes concerning military activities.510

This declaration mirrors in substance an earlier declaration made by the Ukrainian Soviet Socialist Republic upon signature of the Convention, on 10 December 1982.511

300.
The Russian Federation argues that, if there was a dispute regarding the interpretation or application of the Convention, the Arbitral Tribunal would be faced with the exceptions to its jurisdiction set out in Article 298, paragraph 1, of the Convention. The Russian Federation submits that the Arbitral Tribunal lacks jurisdiction because the present dispute concerns (a) military activities, (b) law enforcement activities, (c) issues of sea boundary delimitations, and (d) historic bays or titles, in respect of which the Russian Federation has made declarations in accordance with Article 298 of the Convention.
301.
Ukraine rejects the Russian Federation’s argument that the Arbitral Tribunal’s jurisdiction is precluded by the declarations made by the Parties under Article 298, paragraph 1, of the Convention.
302.
The Arbitral Tribunal will examine the arguments of the Parties as to the military activities exception, law enforcement activities exception, delimitation exception, and historic bay or title exception below.

A. Military Activities Exception

1. Position of the Russian Federation

303.
According to the Russian Federation, if the Arbitral Tribunal were to dismiss the Russian Federation’s first preliminary objection512 on the basis that the Russian Federation "unlawfully used force (quod non), [the Arbitral Tribunal] would then necessarily have to admit that the case involves military activities and is thus outside its jurisdiction pursuant to the declarations made under Article 298(1)(b)."513 The Russian Federation states that "it is because Ukraine has made express and specific allegations of acts of military aggression and unlawful use of force that Russia has raised a jurisdictional objection with respect to the Parties’ declarations pursuant to Article 298(1)."514
304.
While "categorically reject[ing] any allegation that it has engaged in unlawful military activities,"515 the Russian Federation submits that "the central thrust of Ukraine’s claim is the alleged involvement of the Russian military forces in Crimea and all the specific claims concern, whether directly or implicitly, military activities."516
305.
The Russian Federation maintains that Ukraine cannot, on the one hand, argue that the Russian Federation’s "claim to sovereignty over Crimea is in breach of the prohibition on the use of force" and, on the other hand, affirm that "the dispute is ‘not about any instance in which [the Russian Federation] has used force' but that its allegations are purely on civilian matters."517
306.
The Russian Federation argues that, in accordance with the ordinary meaning of those terms, "military activities are simply any activity conducted by the armed forces of a State or paramilitary forces."518 The Russian Federation contends that this "interpretation is not ‘overly broad'," noting that there is "widespread agreement that issues concerning military activities must not be interpreted restrictively."519
307.
The Russian Federation maintains that the "minimal substantive regulations under [the Convention], along with the optional exclusion covering military activities, are indicative of an intention ‘to retain considerable flexibility in the military uses of the oceans and thereby allow States to pursue their assorted strategic objectives'."520
308.
The Russian Federation contends that the South China Sea arbitral tribunal adopted a low threshold for the application of Article 298, paragraph 1, subparagraph (b), of the Convention that "can be triggered by the mere involvement of the military forces."521 The Russian Federation recalls that the arbitral tribunal applied the military activities exception to the Philippines' submission concerning Chinese non-military ships preventing the resupply and rotation of the Philippines troops at Second Thomas Shoal, while China's military vessels were reported to have been in the vicinity.522 The Russian Federation submits that, according to South China Sea, the mere presence of military vessels in the vicinity of the Chinese conduct complained of by the Philippines, which was not military in nature, was enough to make such conduct fall "well within the exception."523
309.
The Russian Federation notes that the South China Sea arbitral tribunal, on the other hand, found that construction activities at Spratly Islands were not military activities because China had opposed such classification.524 The Russian Federation points out that "[t]his is the only reason leading to the rejection of the 298(1)(b) jurisdictional exception."525 According to the Russian Federation, however, Ukraine wrongly relies on this finding to establish that the involvement of military forces is insufficient to trigger the military activities exception.526
310.
The Russian Federation argues that it "did not consent to the mandatory dispute settlement under the Convention with respect to disputes concerning military activities,"527 "[y]et [...] Ukraine's claim is ultimately based on the premise that [the Russian Federation] cannot be sovereign over Crimea because it unlawfully annexed the Peninsula by alleged use of force."528 Therefore, the Russian Federation contends that "the dispute is excluded from the [Arbitral] Tribunal's jurisdiction by Article 298(1)(b)."529
311.
In addition to its "general military activities objection,"530 the Russian Federation argues that the specific conduct complained of by Ukraine is military in nature. The Russian Federation submits that the following claims made in Ukraine's Memorial "directly rely on alleged unlawful uses of force" by the Russian Federation:531 submissions (a), (b), (f), and (g) are based on the Russian Federation's alleged usurpation through "physical force" of gas fields and fisheries allegedly appertaining to Ukraine;532 submissions (d), (e), (h), and (i) concern alleged unlawful interferences with Ukrainian-flagged vessels and fixed platforms "by armed Russian [Federation] FSB guards" that were allegedly issuing threats to Ukrainian vessels, and the alleged seizure and occupation by the Russian Federation military of Ukrainian offshore platforms;533 submission (m) concerns the Russian Federation's alleged obstruction of passage through the Kerch Strait, "thus presumably implying that it did this by force";534 and submissions (q) and (r) concern the Russian Federation military's alleged interference with Ukraine's attempts to protect archaeological and historical objects in Ukraine's maritime areas.535
312.
As regards the construction of the Kerch Strait bridge, the Russian Federation accepts, in response to Ukraine's argument, that the mere construction of that bridge may not be specifically military in nature.536 The Russian Federation maintains that the Arbitral Tribunal would nevertheless be prevented from deciding the dispute regarding its construction pursuant to the general context of the dispute, related to allegations on the use of armed force, as described above.537
313.
The Russian Federation argues that the applicability of the declarations made under Article 298, paragraph 1, subparagraph (b), can be assessed by the Arbitral Tribunal at this jurisdictional phase and need not be deferred to the merits phase.538 The Russian Federation points out that, unlike China in South China Sea, the Russian Federation has specifically availed itself of the Article 298, paragraph 1, subparagraph (b), exception in this Arbitration and has placed sufficient material on the record to enable to Arbitral Tribunal to make its decision.539

2. Position of Ukraine

314.
Ukraine submits that the present dispute does not concern military activities under Article 298, paragraph 1, subparagraph (b), of the Convention.540
315.
Ukraine considers that the Russian Federation misrepresents its argument that the Russian Federation’s infringement of Ukraine's maritime rights occurred "in the period following [the Russian Federation’s] unlawful acts of aggression and purported annexation of the Crimean Peninsula" to be that the infringement of the Convention "happened because of the invasion."541 Ukraine further notes that the Russian Federation then argues that the "the alleged ‘causal link’ between Russia’s invasion of Crimea and Russia’s subsequent violations of [the Convention] implicates Article 298(1)(b) and defeats this [Arbitral] Tribunal’s jurisdiction."542 According to Ukraine, however, this is an "unprecedented and incorrect reading of Article 298(1)(b)."543
316.
Ukraine contends that the ordinary meaning of the term "concerning" in Article 298, paragraph 1, subparagraph (b), of the Convention is "about" or "in reference to" and, therefore, the military activities exception should only apply where the specific conduct complained of is military in nature.544 Ukraine contends that this reading of Article 298, paragraph 1, subparagraph (b), is also supported by South China Sea.545
317.
Ukraine submits that, had the States Parties to the Convention intended that the military activities exception extend to any dispute having a causal link to a military activity, they would have drafted Article 298, paragraph 1, subparagraph (b), so that it covers all disputes "arising out of" or "in connection with" military activities.546 Ukraine notes that the States Parties have throughout the Convention precisely and intentionally used either broader language, such as "arising from or in connection with," "arising from" and "arising out of," or the narrower term "concerning," to define the scope and extent of a provision.547
318.
Ukraine maintains that the Russian Federation’s broad reading of Article 298, paragraph 1, subparagraph (b), conflicts with the object and purpose of the Convention to establish a legal order for the seas based on "the settlement of disputes [as] [...] an essential element of the Convention."548 Ukraine cautions that the Russian Federation’s "unprecedented" interpretation of Article 298, paragraph 1, subparagraph (b), would make the Convention inapplicable to a broad range of "potentially important" disputes that take place against the backdrop of armed conflict, but of which armed conflict is not the actual subject.549 According to Ukraine, if the Russian Federation’s line of argument were to be followed, once a State unlawfully uses force against another, "all subsequent violations of [the Convention] by that aggressor would be immunised."550
319.
Turning to the specific conduct of the Russian Federation in dispute, Ukraine asks the Arbitral Tribunal to follow the approach in South China Sea, wherein the arbitral tribunal declined to characterise activities as military when China had consistently resisted such classification.551 Ukraine notes that the Russian Federation has denied that it has engaged in military activities.552 If the Russian Federation denies that its military personnel were involved in the activities that Ukraine complains of, Ukraine argues that the military activities exception cannot be invoked by the Russian Federation.553
320.
Ukraine acknowledges that the Russian Federation has "deployed armed men and vessels to protect its civilian activities in the Sea of Azov, Black Sea, and Kerch Strait and to prevent Ukraine from accessing these areas."554 However, in Ukraine's view, the mere presence of armed Russian personnel and governmental vessels does not imply that the present dispute concerns "military activities."555 Ukraine recalls in this regard that the South China Sea arbitral tribunal found that construction activities carried out by Chinese military forces on a reef were not military activities.556 Ukraine further relies on a recent ITLOS order,557 in which, Ukraine submits, ITLOS looked to "the immediate context in the circumstances of that case and concluded that the activity was not military, despite some involvement of military vessels."558
321.
Ukraine argues that it is the object of the activities in dispute that must be considered.559 Thus, Ukraine submits, "[t]o the extent that there was any alleged military involvement, it was used to further civilian ends."560 By way of example, Ukraine points to (a) the extraction by a Russian State-owned corporation of fuel allegedly worth nearly USD 2 billion from Ukrainian waters; (b) the increase of fish production in these areas (including for sale into the Russian market); and (c) the construction activities of the Kerch Strait bridge.561
322.
Ukraine notes that the Russian Federation has (a) purported to license hydrocarbon blocks to profit-seeking private entities, pursuant to laws administered by civilian authorities; (b) extended to Crimea the same civilian legal framework for the exploitation of fisheries as is applicable in the Russian Federation's legitimate maritime areas; and (c) described its Kerch Strait construction activity as part of a long-term policy of ensuring the sustainable socio-economic development of Crimea, rather than as military activity.562 Ukraine argues that through such conduct the Russian Federation has confirmed the civilian nature of its activities.563 Specifically with regard to the Kerch Strait bridge, Ukraine contends that "Russia has now withdrawn, quite correctly, its suggestion that interference with navigation in the Kerch Strait by the construction of a bridge is a military activity."564
323.
Ukraine contends that the South China Sea arbitral tribunal held that certain naval activities by China could be adjudicated as part of a claim dependent on a dispute primarily regarding non-military matters.565 For the same reason, Ukraine submits that its own case concerning archaeological objects at sea does not fall outside the Arbitral Tribunal’s jurisdiction merely because such actions were carried out by the Russian Federation’s navy personnel.566
324.
Ukraine recalls that the South China Sea arbitral tribunal considered that the application of Article 298, paragraph 1, subparagraph (b), of the Convention depends on whether "the dispute itself concerns military activities, rather than whether a party has employed its military in some manner in relation to the dispute."567 Ukraine submits that its submissions (a), (b), (d), (e), (f), (g), (h), (i), (m), (q), and (r), consistently with the findings of the South China Sea arbitral tribunal, do not seek adjudication of military issues.568
325.
Ukraine argues that the Russian Federation misreads the findings in South China Sea.569 For Ukraine, the South China Sea arbitral tribunal identified a military activity as one involving a military interaction between the military forces of one side and those of the other.570 However, in the present case, none of the events described involve "military forces arrayed against one another"571 nor does any Party allege that a military confrontation occurred in the waters at issue.572
326.
Finally, Ukraine considers that, to determine the alleged military nature of the Russian Federation’s activities underpinning Ukraine’s claims, the Arbitral Tribunal may have to engage with facts that are "interlinked with the merits and cannot be determined conclusively at this preliminary stage,"573 insofar as the Arbitral Tribunal would have to assess whether each of the alleged activities is a military activity based on the evidence submitted by Ukraine.574 For Ukraine, such assessment could be appropriately deferred to the merits phase.575

3. Analysis of the Arbitral Tribunal

327.
Pursuant to Article 298, paragraph 1, subparagraph (b), of the Convention, a State may choose not to accept the compulsory procedures entailing binding decisions provided for in section 2 of Part XV with respect to "disputes concerning military activities, including military activities by government vessels and aircraft engaged in non-commercial service."
328.
The Russian Federation first raises the military activities exception as "a global objection, establishing the impossibility for this Tribunal to decide globally on the Ukrainian submissions, because to do this, the Tribunal would have to decide on [...] the alleged use of force initially vitiating [...] Crimea's reunification with [the Russian Federation]."576
329.
The Arbitral Tribunal notes that it is common ground between the Parties that the events occurring in Crimea in 2014 do not as such form part of the dispute submitted to it. The Arbitral Tribunal further notes that it has upheld the Russian Federation's first preliminary objection to the extent that its ruling on Ukraine's claims necessarily requires it to decide, expressly or implicitly, on the sovereignty of either Party over Crimea.577 The Arbitral Tribunal accordingly finds that the Russian Federation's global objection has no basis as its premise has not been met.
330.
Article 298, paragraph 1, subparagraph (b), of the Convention allows States Parties to exclude from the compulsory jurisdiction of the Convention "disputes concerning military activities." The Arbitral Tribunal notes that the Convention employs the term "concerning," in contrast to other terms, such as "arising out of," "arising from," or "involving," used elsewhere in the Convention to characterise disputes.578 Compared to such other terms, which are open to a more expansive interpretation, the term "concerning" circumscribes the military activities exception by limiting it to those disputes whose subject matter is military activities. In the Arbitral Tribunal's view, a mere "causal" or historical link between certain alleged military activities and the activities in dispute cannot be sufficient to bar an arbitral tribunal's jurisdiction under Article 298, paragraph 1, subparagraph (b), of the Convention.
331.
The Arbitral Tribunal considers that the military activities exception is not triggered in the present case simply because the conduct of the Russian Federation complained of by Ukraine has its origins in, or occurred against the background of, a broader alleged armed conflict. Rather, in the Arbitral Tribunal’s view, the relevant question is whether "certain specific acts subject of Ukraine's complaints" constitute military activities.579
332.
The Arbitral Tribunal will now examine the specific aspects of the dispute that the Russian Federation contends are precluded by the Parties’ declarations pursuant to Article 298, paragraph 1, subparagraph (b), of the Convention on the basis that they concern military activities.580
333.
The Arbitral Tribunal notes that Article 298, paragraph 1, subparagraph (b), of the Convention refers to "disputes concerning military activities, including military activities by government vessels and aircraft engaged in non-commercial service." This indicates that, in order to qualify as "military activities" within the meaning of the above provision, activities need not necessarily be carried out by military vessels and aircraft but, instead, can equally be performed by "government vessels and aircraft engaged in non-commercial service."
334.
The Arbitral Tribunal does not consider, however, that mere involvement or presence of military vessels is in and by itself sufficient to trigger the military activities exception. While such factor may be relevant in assessing whether a dispute concerns military activities, it is not conclusive. As the arbitral tribunal in South China Sea stated:

Article 298(1)(b) applies to "disputes concerning military activities" and not to "military activities" as such. Accordingly, the Tribunal considers the relevant question to be whether the dispute itself concerns military activities, rather than whether a party has employed its military in some manner in relation to the dispute.581

335.
The Arbitral Tribunal would add that there is no consistent State practice as to the scope of activities that are to be regarded as being exercised by "military" vessels, aircraft, and personnel. Forces that some governments treat as civilian or law enforcement forces may be designated as military by others, even though they may undertake comparable tasks.582 In addition, many States rely on their military forces for non-military functions, such as disaster relief, evacuations, or the reestablishment of public order.
336.
Insofar as Ukraine maintains that the Russian Federation has excluded Ukraine from access to and exploitation of hydrocarbon fields and fisheries,583 the Arbitral Tribunal notes that the Russian Federation argues that the Parties' dispute concerns military activities because Ukraine alleges it has been excluded through "physical force."584 In the view of the Arbitral Tribunal, however, the alleged use of physical force is insufficient to conclude that an activity is military in nature. Law enforcement forces, for example, are generally authorised to use physical force without their activities being considered military for that reason.585 Having examined the broader context in which the alleged events took place, the Arbitral Tribunal notes that in the maritime areas in dispute the Russian Federation has granted offshore hydrocarbon licenses to civilian commercial companies,586 and regulates under a civilian legal framework the exploitation of fisheries resources.587 Taking into account this larger context, the Arbitral Tribunal finds that the use of physical force alleged by Ukraine does not turn the dispute into one concerning military activities; rather such alleged force appears to have been directed towards maintaining civilian activities such as the exploitation of hydrocarbons and fisheries.
337.
Insofar as Ukraine contends that the Russian Federation has unlawfully interfered with Ukrainian-flagged vessels and fixed platforms,588 the Arbitral Tribunal notes that the Russian Federation claims that the Parties' dispute concerns military activities because of the supposed involvement of Russian military vessels, aircraft, and personnel.589 At issue is notably the detention of the captain of a Ukrainian fishing boat by Russian military personnel,590 the deployment of armed men to oversee the work carried out on an oil platform,591 and the alleged harassment of Ukrainian vessels by Russian military vessels and aircraft.592
338.
While it is not clear whether the forces involved in these activities belong to the armed forces, in any case the activities themselves cannot be objectively classified as military in nature. The Arbitral Tribunal considers that the detention, and subsequent release following the payment of a fine,593 of a captain of a civilian boat may appropriately be classified as a law enforcement activity, rather than a "military activity"; and standing guard and supervising works on oil platforms are not inherently military activities but activities that may be, and frequently are, undertaken by private security contractors. The alleged harassment of Ukrainian vessels appears to have mainly consisted of dangerously close approaches, failures to establish radio communication, and general violations of the rules of safe navigation and seamanship. In the Arbitral Tribunal’s view, the fact that some of the Ukrainian vessels whose navigation was impeded belonged to Ukraine’s navy does not cause the dispute to concern military activities.
339.
Insofar as Ukraine challenges the construction of the Kerch Strait bridge and the resulting impediment to navigation through the Kerch Strait,594 the Arbitral Tribunal takes note of the Russian Federation’s acknowledgement at the Hearing that this aspect of the dispute does not specifically concern military activities.595
340.
Lastly, insofar as Ukraine contends that the Russian Federation has prevented Ukraine from accessing, and has failed to protect, archaeological and historical objects located in the disputed maritime areas,596 the Arbitral Tribunal notes that Russian Federation argues that the Parties’ dispute concerns military activities due to the participation of the Russian Federation’s military in the archaeological expeditions in question.597 However, as noted above, the mere involvement of military vessels or personnel in an activity does not ipso facto render the activity military in nature. The Arbitral Tribunal considers that the undertaking of archaeological expeditions by the Russian Federation’s military (at least in some instances in cooperation with civilians)598 does not allow the Arbitral Tribunal to find that the dispute between the Parties regarding underwater cultural heritage concerns military activities.
341.
For the above reasons, the Arbitral Tribunal rejects the Russian Federation’s objection based on the military activities exception under Article 298, paragraph 1, subparagraph (b), of the Convention.

B. Law Enforcement Activities Exception

1. Position of the Russian Federation

342.
The Russian Federation submits that the Arbitral Tribunal has no jurisdiction over the dispute insofar as it concerns law enforcement activities.599 The Russian Federation recalls that Article 298, paragraph 1, subparagraph (b), of the Convention exempts from an arbitral tribunal’s jurisdiction "disputes concerning law enforcement activities in regard to the exercise of sovereign rights or jurisdiction" that are "excluded from the jurisdiction of a court or tribunal under article 297, paragraph 2 or 3."600 Article 297, paragraph 3, subparagraph (a) provides, in relevant part, that "the coastal State shall not be obliged to accept the submission to such settlement of any dispute relating to its sovereign rights with respect to the living resources in the exclusive economic zone or their exercise."
343.
According to the Russian Federation, in South China Sea, the arbitral tribunal found that Article 298, paragraph 1, subparagraph (b), of the Convention would "restrict the Tribunal’s jurisdiction over fishing and fisheries-related law enforcement in the event that the relevant areas formed part of China’s exclusive economic zone" or "the activities took place [...] in an area in which the Parties possess overlapping entitlements to an exclusive economic zone."601 Referring to South China Sea, the Russian Federation submits that the coasts of the Russian Federation and Ukraine can generate maritime entitlements, and that the alleged law enforcement activities took place either in the Russian Federation’s exclusive economic zone or in an area in which the Parties' entitlements overlap.602 The Russian Federation argues that it is the enforcement of rights that the Russian Federation considers to belong to it in its exclusive economic zone of which Ukraine is complaining.603 Therefore, in the Russian Federation's view, the Arbitral Tribunal is precluded from exercising jurisdiction in relation to its fisheries enforcement measures and the operation of its law enforcement vessels in the Black Sea and Sea of Azov.604
344.
The Russian Federation submits that the Arbitral Tribunal cannot rule on Ukraine's allegations that the Russian border and fisheries patrols have taken action against Ukrainian-flagged vessels in the territorial sea around Crimea and parts of its exclusive economic zone.605 In the Russian Federation's view, nor can the Arbitral Tribunal rule on Ukraine's related allegations, regarding the Russian Federation (a) excluding Ukraine from accessing fisheries (in violation of Articles 56, 58, 61, 62, 73, and 92 of the Convention); (b) interfering with Ukraine's exclusive jurisdiction over Ukrainian-flagged vessels in Ukraine's exclusive economic zone (in violation of Articles 56, 58 and 92 of the Convention); and (c) interfering with the navigation of Ukrainian Sea Guard vessels through Ukraine's exclusive economic zone (in violation of Articles 56, 58, 73, and 92 of the Convention).606
345.
The Russian Federation notes that the law enforcement activities exception is less broad in scope than the one concerning military activities.607 The Russian Federation also acknowledges that Article 298, paragraph 1, subparagraph (b), of the Convention, read literally with Article 297, paragraph 3, subparagraph (a), only restricts the Arbitral Tribunal's jurisdiction with respect to law enforcement activities in the exclusive economic zone.608 Even so, the Russian Federation submits that the Arbitral Tribunal's jurisdiction is also precluded insofar as the dispute concerns events in the territorial sea or on the continental shelf because "it would be paradoxical that activities taking place in areas over which the coastal State possesses more (or at least equal) rights as those it has in the [exclusive economic zone], would be submitted to the jurisdiction of the [Arbitral] Tribunal while they are exempted from its jurisdiction when exercised in the [exclusive economic zone]."609
346.
The Russian Federation rejects Ukraine's argument that the law enforcement exception is dependent upon the Arbitral Tribunal acceding to the Russian Federations' first preliminary objection.610 For the Russian Federation, even if the Arbitral Tribunal were to reject the first preliminary objection, it would have to rule that the law enforcement activities took place either within the Russian Federation's exclusive economic zone, or in an area in which the Parties possess overlapping entitlements.611

2. Position of Ukraine

347.
Ukraine submits that the Russian Federation's objection that the present dispute falls within the optional exception to jurisdiction which covers disputes concerning coastal State law enforcement activities with regard to the exercise of sovereign rights or jurisdiction pursuant to Article 298, paragraph 1, subparagraph (b), of the Convention must fail because it rests on the Russian Federation's "claim" that it is the coastal State in the waters adjacent to Crimea and thus, ultimately, on the Russian Federation's claim that the status of Crimea has been altered.612 Ukraine reiterates that it regards this claim as inadmissible and implausible.613
348.
Ukraine submits that if the Russian Federation's objections are based on any maritime entitlements emanating from its own coastline rather than from the Crimean coastline, it is incumbent upon the Russian Federation to articulate this claim and to establish that the conduct underlying Ukraine's claims took place in the Russian Federation's maritime zones.614
349.
Ukraine states that the Russian Federation cannot raise "Article 297(3) and Article 298(1)(b) law enforcement objections in areas where it enjoys overlapping entitlements with Ukraine" because those exceptions apply only in areas which form part of the exclusive economic zone of the respondent State.615 Relying on South China Sea and The Arctic Sunrise Arbitration (The Netherlands v. The Russian Federation), Ukraine submits that the exception in Article 298, paragraph 1, subparagraph (b), does not apply where a State is alleged to have violated the Convention in respect of another State's exclusive economic zone.616 Nor, according to Ukraine, is it sufficient for a respondent State to refer to possible rights, claimed rights, or disputed rights.617