Implementing the Law of the Sea: Russia and Arbitrations Under Annex VII to UNCLOS

Abstract

On 16 September 2016, Ukraine instituted arbitral proceedings against the Russian Federation (‘Russia’) under Annex VII to the 1982 United Nations Convention on the Law of the Sea (‘UNCLOS’), alleging violations of its coastal State rights in the Black Sea, the Sea of Azov, and Kerch Strait. Russia has subsequently appointed an arbitrator, sent a delegation to The Hague, and submitted its Preliminary Objections. This marks a dramatic shift in Russia’s recent relationship with interstate arbitration under UNCLOS. Most notably, in late 2013, Russia refused to participate in the arbitration instituted by the Netherlands concerning the Arctic Sunrise, and has made no indication it will comply with the Award on Compensation in the Netherlands’ favour. This chapter compares Russia’s approach in these two cases. First, it addresses its non-participation, contextualising it against Russia’s prior experiences in international dispute resolution processes, and considers the objections that Russia tends to raise against jurisdiction. Second, this chapter analyses how maritime legal considerations interplay with Russia’s posture in international politics, and discusses how each case’s context affected Russia’s response. The authors conclude that Russia’s relationship with the law of the sea is an increasingly important consideration in its political calculus. Russia tends to frame its activities as consistent with the law of the sea and relevant dispute resolution mechanisms, and increased compliance by such a major State promotes the continued effectiveness of the law of the sea.

The authors would like to thank Dr Alison Pert and Professor Tim Stephens, for supporting the authors’ intensive study in this area at the University of Sydney. All translations from Russian and Ukrainian are the authors’ own, as are all mistakes and omissions.