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

• Author: Tzeng, Peter

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.

1. 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).

2. 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.

   1. 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. (14) Six months later, Mauritius instituted UNCLOS proceedings against the United Kingdom. (15) Mauritius's first submission was that "the United Kingdom is not entitled to declare [the MPA] because it is not the 'coastal State' within the meaning of [UNCLOS]." (16) In essence, Mauritius was arguing that since it had sovereignty over the archipelago (i.e., since it was the relevant "coastal State"), the United Kingdom interfered with its rights by declaring the MPA. (17) The United Kingdom, however, argued that the sovereignty dispute was "the real issue in the case" (18) and lay at "the heart of the current claim," (19) such that the tribunal did not have jurisdiction over this first submission.

      The tribunal began its assessment of its jurisdiction by characterizing the dispute, (20) in particular by evaluating "where the relative weight of the dispute lies." (21) In making this evaluation, the tribunal observed:

      There is an extensive record, extending across a range of fora and instruments, documenting the Parties' dispute over sovereignty.... Moreover, ... the consequences of a finding that the United Kingdom is not the coastal State extend well beyond the question of the validity of the MPA. (22) In light of these two observations, the tribunal concluded that "the Parties' dispute with respect to Mauritius' First Submission is properly characterized as relating to land sovereignty over the Chagos Archipelago." (23) As a result, the tribunal found itself without jurisdiction to address Mauritius's first submission. (24) The tribunal noted in obiter dictum, however, that if the dispute were properly characterized as an UNCLOS dispute, it would have had the jurisdiction to settle "ancillary" issues of territorial sovereignty. (25)

      The case of Philippines v. China concerned China's maritime claims and activities in the South China Sea. (26) In January 2013, the Philippines instituted UNCLOS proceedings against China, (27) seeking, inter alia, declarations that China's maritime claims based on its nine-dash line are invalid, and that certain maritime features in the South China Sea are properly characterized as rocks or low-tide elevations. (28) The Philippines asserted that none of its submissions "require[d] the Tribunal to express any view at all as to the extent of China's sovereignty over land territory." (29) Although China did not formally participate in the proceedings, (30) its Ministry of Foreign Affairs asserted in a "position paper" that the tribunal did not have jurisdiction because "the essence of the subject-matter of the arbitration is territorial sovereignty." (31)

      Like the Mauritius v. United Kingdom tribunal, the Philippines v. China tribunal began its assessment of its jurisdiction by characterizing the dispute. (32) Unlike the Mauritius v. United Kingdom tribunal, however, the Philippines v. China tribunal expressly adopted a two-part test to answer the characterization question. It held:

      The Tribunal might consider that the Philippines' Submissions could be understood to relate to sovereignty if it were convinced that 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' claims was to advance its position in the Parties' dispute over sovereignty. (33) Applying this two-part test to the facts of the case, the tribunal held that the resolution of the Philippines' claims did not require it to first render a decision on sovereignty, and that the actual objective of the Philippines' claims was not to advance its position in the dispute over sovereignty. (34) The tribunal therefore upheld its jurisdiction over the dispute. (35)

      In Ukraine v. Russia, Ukraine, like Mauritius, is asserting "its rights as the coastal state in maritime zones adjacent to Crimea." (36) Therefore, like Mauritius, Ukraine is in essence arguing that since it has sovereignty over Crimea (i.e., since it is the relevant "coastal state"), Russia has interfered with its rights. (37) If the Ukraine v. Russia tribunal follows the approach of the Mauritius v. United Kingdom tribunal or that of the Philippines v. China tribunal, it will likely find that it does not have jurisdiction over the dispute.

      Under the Mauritius v. United Kingdom approach, the tribunal would examine the historical record of the dispute and the consequences of a finding that Russia is not the relevant "coastal State." (38) The historical record of the dispute would probably show that the dispute has primarily been about sovereignty over Crimea; the question of maritime rights is just an extension of the sovereignty dispute. And a finding that Russia is not the "coastal State," like a finding that the United Kingdom is not the "coastal State" in Mauritius v. United Kingdom, would have consequences that extend well beyond the dispute concerning Russia's actions in the waters adjacent to Crimea. Indeed, such a finding would imply that Russia does not have sovereignty over Crimea. As a result, under the Mauritius v. United Kingdom approach, the tribunal would likely conclude that the "relative weight of the dispute" lies in the sovereignty dispute, such that the tribunal would not have jurisdiction.

      Under the Philippines v. China approach, the tribunal would examine whether the resolution of Ukraine's claims would require it to first render a decision on sovereignty, and also whether the "actual objective" of Ukraine's claims is to advance its position in the sovereignty dispute. (39) As for the first question, there is little doubt that the resolution of Ukraine's claims would require the tribunal to first render a decision on sovereignty over Crimea. After all, under the "land dominates the sea" principle, (40) Ukraine does not have the rights it claims in the maritime zones adjacent to Crimea unless it has sovereignty over Crimea. As for the second question, the "actual objective" of Ukraine's claims is not as clear. But...