Academic journal article Denver Journal of International Law and Policy

Ukraine V. Russia and Philippines V. China: Jurisdiction and Legitimacy

Academic journal article Denver Journal of International Law and Policy

Ukraine V. Russia and Philippines V. China: Jurisdiction and Legitimacy

Article excerpt

On September 16, 2016, Ukraine instituted proceedings against Russia under the United Nations Convention on the Law of the Sea. Commentators have drawn parallels between this case and Philippines v. China, but key differences remain. Through a preliminary comparison of Ukraine v. Russia with Philippines v. China, this Article makes two arguments. First, the Ukraine v. Russia tribunal faces jurisdictional obstacles greater than those faced by the Philippines v. China tribunal. Second, the legitimacy of the Ukraine v. Russia proceedings is greater than that of the Philippines v. China proceedings.

I. INTRODUCTION

On September 16, 2016, Ukraine instituted proceedings against Russia under Annex VII of the United Nations Convention on the Law of the Sea (UNCLOS). (1) Ukraine is requesting that the Annex VII tribunal declare that Russia has violated the Convention by interfering with Ukraine's rights in maritime zones adjacent to Crimea. (2)

Commentators have drawn parallels between this case and Philippines v. China. (3) In both cases, a less powerful state is suing a permanent member of the U.N. Security Council. In both cases, the less powerful state has brought the case before an Annex VII tribunal under UNCLOS. And in both cases, the tribunal's exercise of jurisdiction over the dispute arguably implicates issues of territorial sovereignty over which the tribunal does not have jurisdiction ratione materiae, (4)

Key differences, however, remain. Although the Ukraine v. Russia proceedings have only just begun, publicly available information allows for a preliminary comparison of Ukraine v. Russia with Philippines v. China. This Article makes two arguments in this regard. First, the Ukraine v. Russia tribunal faces jurisdictional obstacles greater than those faced by the Philippines v. China tribunal (Part II). Second, the legitimacy of the Ukraine v. Russia proceedings is greater than that of the Philippines v. China proceedings (Part III).

II. THE JURISDICTION OF THE TRIBUNAL

Russia can raise a variety of objections to the jurisdiction of the Ukraine v. Russia tribunal. Two stand out in particular because they were also raised by China in Philippines v. China (5); (1) the implication of territorial sovereignty issues (Section II.A); and (2) Article 281(1) of UNCLOS (Section II.B). A preliminary examination of these two objections reveals that Russia's arguments on these two grounds are stronger than China's arguments were.

A. The Implication of Territorial Sovereignty Issues

Russia can argue that the tribunal does not have jurisdiction because the dispute implicates territorial sovereignty issues. Article 288(1) of UNCLOS defines the jurisdiction of UNCLOS tribunals. It provides that UNCLOS tribunals "shall have jurisdiction over any dispute concerning the interpretation or application of this Convention." (6) As Ukraine has framed the dispute as one concerning rights in maritime zones adjacent to Crimea, (7) the dispute on its face concerns the interpretation and application of provisions of UNCLOS. (8) Nevertheless, in light of Russia's annexation of Crimea, the dispute also implicates issues of territorial sovereignty, issues that do not concern the interpretation or application of UNCLOS and thus fall outside the jurisdiction ratione materiae of the tribunal. (9) The question, then, is whether the UNCLOS tribunal may still exercise jurisdiction over the maritime dispute. The two UNCLOS cases that have addressed this question--Mauritius v. United Kingdom (10) and Philippines v. China (11)--are not very favorable to Ukraine.

The case of Mauritius v. United Kingdom concerned the Chagos Archipelago, a group of approximately sixty islands in the Indian Ocean. (12) As early as 1980, Mauritius and the United Kingdom had each claimed sovereignty over the islands. (13) In April 2010, however, the United Kingdom unilaterally established a marine protected area (MPA) around the archipelago. …

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