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 |
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
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
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
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.
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
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
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
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
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
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
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
[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
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
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.
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
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
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
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
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
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.
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.
[...]
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
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
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
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
[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
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.
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.
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
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