6. The proceedings of this arbitration commenced when Ukraine on 1 April 2019 served on the Russian Federation a “Notification under Article 287 and Annex VII, Article 1, of the United Nations Convention on the Law of the Sea and Statement of the Claim and the Grounds on which it is Based” (the “Notification and Statement of Claim”) dated 31 March 2019, as provided for in Annex VII to UNCLOS.

7. In its Notification and Statement of Claim, Ukraine requested the Arbitral Tribunal to adjudge and declare the following:

8. On 16 April 2019, Ukraine filed with the International Tribunal for the Law of the Sea (“ITLOS”) a request for provisional measures to be prescribed under Article 290(5).

9. By a note verbale dated 30 April 2019, the Russian Federation indicated:

10. The Russian Federation followed its note verbale with a Memorandum dated 7 May 2019, further setting out its positions that ITLOS lacked prima facie jurisdiction and that the requirements for provisional measures had not been met.Footnote ⁹

11. On 10 May 2019, ITLOS heard oral statements from representatives of Ukraine in a public sitting. The Russian Federation did not participate at the public sitting.

12. Pending the constitution of an arbitral tribunal under Part XV, Section 2, of the Convention, on 25 May 2019, ITLOS issued its decision on provisional measures (the “Provisional Measures Order”) prescribing the following provisional measures under Article 290(5):

13. The Provisional Measures Order further provides:

14. In its Notification and Statement of Claim, Ukraine appointed Sir Christopher Greenwood QC as member of the Arbitral Tribunal pursuant to Article 3(b) of Annex VII to the Convention.

15. By a note verbale to Ukraine dated 30 April 2019, the Russian Federation appointed H.E. Judge Vladimir Vladimirovich Golitsyn as member of the Arbitral Tribunal pursuant to Article 3(c) of Annex VII to the Convention.

16. 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 12 June 2019, Ukraine requested that H.E. Judge Jin-Hyun Paik, President of ITLOS, make the appointments pursuant to Article 3(d) of Annex VII to the Convention. On 8 July 2019, Professor Donald M. McRae, H.E. Judge Gudmundur Eiriksson and H.E. Judge Rüdiger Wolfrum were appointed as members of the Arbitral Tribunal, and Professor Donald McRae was appointed as President of the Arbitral Tribunal. At the same time, the Parties agreed to request the Permanent Court of Arbitration (the “PCA”) to act as registry for the arbitration, which the PCA confirmed on 19 July 2019.

17. On 21 November 2019, the Arbitral Tribunal held a procedural meeting with the Parties at the headquarters of the PCA at the Peace Palace in The Hague, the Netherlands, to consider the procedure and timetable for the arbitration.

18. On 22 November 2019, the Arbitral Tribunal, with the agreement of the Parties, adopted Procedural Order No 1, setting forth the Terms of Appointment of the Arbitral Tribunal and Rules of Procedure (the “Rules of Procedure”) for the present arbitration. Procedural Order No 1 set out a timetable for written pleadings, and the Rules of Procedure included a procedure for addressing any preliminary objections.

19. On 22 May 2020, pursuant to paragraph 3 of Procedural Order No 1, Ukraine submitted its Memorial (“Ukraine’s Memorial”). In its Memorial, Ukraine requested the Arbitral Tribunal to adjudge and declare that:

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

21. On 24 August 2020, pursuant to paragraph 5 of Procedural Order No 1, the Russian Federation submitted the following Preliminary Objections (the “Russian Federation’s Preliminary Objections”):

22. The Russian Federation requested that its Preliminary Objections be decided in a preliminary phase of the proceedings in accordance with Article 11, paragraph 3, of the Rules of Procedure.

23. On 7 September 2020, pursuant to paragraph 5(a) of Procedural Order No 1, Ukraine submitted its Observations on the Question of Bifurcation.

24. On 21 September 2020, pursuant to paragraph 5(c) of Procedural Order No 1, the Russian Federation submitted its Response to the Observations of Ukraine on the Question of Bifurcation.

25. On 28 September 2020, pursuant to paragraph 5(d) of Procedural Order No 1, Ukraine submitted its Reply to the Response of the Russian Federation on the Question of Bifurcation.

26. On 27 October 2020, the Arbitral Tribunal issued Procedural Order No 2. The Arbitral Tribunal decided:

27. On 27 January 2021, pursuant to paragraph 5(f) of Procedural Order No l and paragraph 3 of Procedural Order No 2, Ukraine submitted its Written Observations and Submissions on the Preliminary Objections of the Russian Federation (“Ukraine’s Observations”) seeking the dismissal of the Russian Federation’s Preliminary Objections in their entirety.

28. On 5 February 2021, the Arbitral Tribunal decided that the further proceedings in respect to the Russian Federation’s Preliminary Objections would be oral.

29. On 23 February 2021, after considering the Parties’ views, the Arbitral Tribunal decided that an oral hearing was necessary to address the Russian Federation’s Preliminary Objections.

30. On 16 March 2021, the Arbitral Tribunal set the dates of the oral hearing on the Russian Federation’s Preliminary Objections for the week of 11 October 2021 (up to and including Saturday, 16 October 2021, if necessary).

31. On 17 September 2021, the Arbitral Tribunal adopted Procedural Order No 3, fixing the schedule for the Parties’ oral submissions in relation to the Russian Federation’s Preliminary Objections.

32. From 11 to 15 October 2021, a hearing on the Russian Federation’s Preliminary Objections (the “Hearing”) was held at the [Page 618] headquarters of the PCA at the Peace Palace in The Hague, the Netherlands. The Hearing consisted of two rounds of oral argument, held on 11 and 12 October 2021 and 14 and 15 October 2021, respectively. The following persons were present at the Hearing:

The Arbitral Tribunal

• Professor Donald McRae, President

• Judge Gudmundur Eiriksson*

• Judge Rüdiger Wolfrum

• Judge Vladimir Vladimirovich Golitsyn*

• Sir Christopher Greenwood*

Ukraine

• Ms Oksana Zolotaryova

• Director, International Law Department, Ministry of Foreign Affairs of Ukraine as Agent

• Ms Marney L. Cheek

• Covington & Burling LLP, member of the Bar of the District of Columbia

• 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 Alfred H. A. Soons

• Utrecht University School of Law; Associate Member of the Institute of International Law

• Professor Jean-Marc Thouvenin

• Professor at the University of Paris Nanterre, Secretary-General of The Hague Academy of International Law

• Mr Volodymyr Shkilevych*

• Covington & Burling LLP, member of the Bars of Ukraine and New York

• Mr George M. Mackie

• Covington & Burling LLP, member of the Bars of the District of Columbia and Virginia

• Mr Andrii Pasichnyk

• Deputy Director, International Law Department, Ministry of Foreign Affairs of Ukraine

• Ms Olga Bondarenko

• First Secretary, Embassy of Ukraine in the Kingdom of the Netherlands

• Ms Amanda Tuninetti

• [Page 619] Covington & Burling LLP; member of the Bars of the District of Columbia and New York

• Ms Jill Warnock*

• Covington & Burling LLP; member of the Bar of the District of Columbia as Counsel

• Vice Admiral Andrii Tarasov

• Colonel Leonid Zaliubovskyi

• Ms Mariia Bezdieniezhna as Observers

• Ms Anastasiia Chorna

• Ms Ambria Davis-Alexander 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, President of the Institut de Droit International

• Professor Tullio Treves

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

• Mr Samuel Wordsworth, Q.C.

• Member of the English Bar, member of the Paris Bar, Essex Court Chambers

• Ms Amy Sander

• Member of the English Bar, Essex Court Chambers

• Mr Sergey Usoskin

• Member of the Saint Petersburg Bar

• Ms Tessa Barsac

• Consultant in international law, Master (University of Paris Nanterre), LLM (Leiden University)

• Mr Renato Raymundo Treves, LL.M.

• Counsel, Curtis, Mallet-Prevost, Colt & Mosle LLP, member of the New York State Bar and Milan Bar

• Ms Héloïse Bajer-Pellet

• Member of the Paris Bar

• Ms Ksenia Galkina

• Second Secretary, Legal Department, Ministry of Foreign Affairs of the Russian Federation

• [Page 620] Ms Victoria Goncharova

• Second Secretary, Embassy of the Russian Federation in the Kingdom of the Netherlands

• Mr Andrey Gorlenko

• Partner, Ivanyan & Partners

• Ms Elena Burova

• Senior Associate, Ivanyan & Partners

• Ms Elena Semykina

• Associate, Ivanyan & Partners

• Ms Kseniia Kuritcyna

• Junior Associate, Ivanyan & Partners as Counsel and Advisors

Registry

• Mr Martin Doe Rodríguez, Registrar

• Senior Legal Counsel, Permanent Court of Arbitration

• Dr Levent Sabanogullari

• Legal Counsel, Permanent Court of Arbitration

• Ms Jinyoung Seok

• Assistant Legal Counsel, Permanent Court of Arbitration

• Mr Henry Off

• Assistant Legal Counsel, Permanent Court of Arbitration

• Ms Ekaterina Shkarbuta

• Assistant Legal Counsel, Permanent Court of Arbitration

• Ms Magdalena Legris

• Case Manager, Permanent Court of Arbitration

Court Reporting

• Ms Susan McIntyre

• *Participated remotely

33. On 15 October 2021, upon the conclusion of the Hearing, the Arbitral Tribunal invited the Parties to submit any written observations that they had in response to the questions put to the Parties by the Arbitral Tribunal during the Hearing, following which each Party was invited to submit any comments they had on the written observations of the other Party.

34. On 5 November 2021, the Parties submitted their respective written observations in response to the questions of the Arbitral Tribunal.

35. On 12 November 2021, the Parties submitted their respective comments on the written observations of the other Party.

36. In its Preliminary Objections and its final submissions at the Hearing, the Russian Federation requested the Tribunal to “adjudge and declare that it is without jurisdiction in respect of the dispute submitted to this Tribunal by Ukraine”.Footnote ¹³

37. In its Observations and its final submissions at the Hearing, Ukraine requested that the Arbitral Tribunal:

77. The Russian Federation submits that the present dispute falls outside the Arbitral Tribunal’s jurisdiction pursuant to the declaration [Page 630] made by the Russian Federation under Article 298(1)(b) of the Convention. This article allows a State Party to declare in writing that it does not accept binding dispute resolution procedures provided for in Section 2 of Part XV of the Convention for certain kinds of disputes. The relevant declarations made by the Russian Federation and Ukraine pursuant to Article 298(1)(b) exclude “disputes concerning military activities”.Footnote ⁶⁹ The Russian Federation contends that the present dispute is a “dispute concerning military activities”, such that the Arbitral Tribunal lacks jurisdiction over Ukraine’s claims.Footnote ⁷⁰

78. The Russian Federation argues that “the formulation ‘disputes concerning military activities’ is drafted in broad, unqualified terms” encompassing any activities relating to the armed forces. The Russian Federation adds that Article 298(1)(b) requires an “objective evaluation of the relevant activities, and their nature, taking into account the relevant circumstances”, as called for by ITLOS in its Provisional Measures Order.Footnote ⁷¹ More particularly, the Russian Federation submits that the term “military” “means no more and no less than relating to the armed forces”.Footnote ⁷² The Russian Federation contends that this interpretation is supported by the explicit inclusion in Article 298(1)(b) of military activities by government vessels and aircraft engaged in non-commercial service.Footnote ⁷³ The Russian Federation also argues that the term “activities” is “inherently broad” with “no further qualification”.Footnote ⁷⁴ The Russian Federation adds that the term “concerning” is similarly broad [Page 631] and unqualified, drawing comparisons to the findings of other international tribunals regarding the breadth of the term.Footnote ⁷⁵ The Russian Federation concludes that, in light of the “breadth of the terms used” in Article 298(1)(b), “no high threshold should be imposed” in order for activities to qualify as military activities for the purposes of the exclusion.Footnote ⁷⁶

79. The Russian Federation disagrees with Ukraine’s position that the activities at issue are “law enforcement activities” and therefore do not qualify as “military activities” for the purposes of the Article 298(1)(b) exception.Footnote ⁷⁷ In particular, the Russian Federation rejects Ukraine’s characterization of “military activities” and “law enforcement activities” as mutually exclusive categories.Footnote ⁷⁸ The Russian Federation argues that, even if the categories may be seen as separate, this “does not exclude that the same activity may be classified as military when it is also conducted for enforcing the law”.Footnote ⁷⁹

80. The Russian Federation elaborates that, even if “these activities have an element of law enforcement, or even concern mainly law enforcement […] they would remain military activities” excluded from compulsory jurisdiction under Article 298(1)(b).Footnote ⁸⁰ Based on its understanding of the “structure and purpose of Article 298(1)(b)” as well as its negotiating history, the Russian Federation submits that “the concepts of military activities and of law enforcement activities are not mutually exclusive”.Footnote ⁸¹ In the Russian Federation’s view, the terms “military”, “activities”, and “concerning” in Article 298(1)(b) of the Convention are broad enough to encompass military activities that are [Page 632] not “exclusively military” and that also include “an element of law enforcement”.Footnote ⁸² Moreover, the Russian Federation notes that the Convention contains provisions explicitly addressing law enforcement activities that: (i) may only be carried out by warships, military aircraft, or other ships or aircraft marked and identifiable as being on government service and authorized to that effect; but (ii) are not referred to in Article 298(1)(b), save for the “narrow” exceptions of enforcement activities concerning scientific research and fisheries in relation to exclusions from jurisdiction by operation of Articles 297(2) and (3).Footnote ⁸³ The Russian Federation takes these two observations as indications of an overlap between the categories of law enforcement activities and military activities; indeed, according to the Russian Federation, “[s]tructurally, [Article 298(1)(b)] addresses two categories of disputes: those concerning military activities, and a subgroup of those concerning law enforcement activities”.Footnote ⁸⁴

81. Using the Fisheries Jurisdiction (Spain v. Canada) case to illustrate, the Russian Federation adds that there is a functional difference between deciding, on the one hand, whether under Article 288(1) jurisdiction can be asserted over a dispute that includes a matter not concerning the interpretation or application of the Convention and, on the other hand, whether the dispute is excluded from jurisdiction under Article 298(1)(b).Footnote ⁸⁵ The latter, it argues, excludes not only disputes whose immediate “subject-matter” is “military activities”, but also all other disputes “concerning military activities”.Footnote ⁸⁶ The Russian Federation claims that “[a]ny narrower interpretation that confines the relevant question to solely that of the subject matter of the dispute not only cuts across the actual language used—‘concerning military activities’—but fails to take account of the context”.Footnote ⁸⁷ It claims that Ukraine seeks to circumvent Article 298(1)(b) by ignoring context and targeting its pleading on specific activities outside the exclusion.Footnote ⁸⁸ Even where the relevant question turns on identifying the single subject matter of the dispute, the [Page 633] Russian Federation argues that this identification requires a broader focus than on Ukraine’s claims alone.Footnote ⁸⁹ Rather, the Russian Federation contends that the subject matter of a dispute is determined on an objective basis, looking at the Parties’ characterizations and the relevant activities as a whole without isolating the boarding, arrest and detention from the immediately prior use of force or other military activities.Footnote ⁹⁰

82. The Russian Federation considers that the finding by ITLOS that “the dispute does not concern military activities because it concerns law enforcement activities” can “readily be reversed” because the ITLOS Provisional Measures Order is “a prima facie decision” where ITLOS “did not need to ‘definitively satisfy itself that the Annex VII arbitral tribunal has jurisdiction over the dispute submitted to it’”.Footnote ⁹¹ The Russian Federation refers to a number of separate opinions of ITLOS judges in the provisional measures phase of this case which took the position that “military activities” and “law enforcement activities” are not mutually exclusive categories.Footnote ⁹² The Russian Federation further argues that the statements of other tribunals and scholarly commentators on which Ukraine relies do not support Ukraine’s view that “the classification as ‘law enforcement’ of Russia’s activities excludes the applicability of the military activities declaration”.Footnote ⁹³

83. In addition to its submissions on the meaning of the structure and terms employed in Article 298(1)(b), the Russian Federation also argues that the context of Article 298(1)(b) as well as the object and purpose of the Convention support its broad interpretation of “disputes concerning military activities”.Footnote ⁹⁴ The Russian Federation argues that [Page 634] Part XV of the Convention struck a balance between submission to compulsory dispute resolution and the widely shared concern of States to exclude sensitive subjects such as “core aspects of State sovereignty” from such procedures.Footnote ⁹⁵ The Russian Federation urges the Arbitral Tribunal not to interpret declarations excluding military activities from the Convention’s compulsory dispute settlement provisions “in a narrow or restrictive way such that the scope for its practical application is significantly diminished”.Footnote ⁹⁶ In addition, in its view, a high threshold for military activities “may serve as an incentive for States to escalate rather than de-escalate a conflict”.Footnote ⁹⁷

84. Turning to the dispute at issue, the Russian Federation contends that it concerns the activities which took place on 25 November 2018 in the Black Sea.Footnote ⁹⁸ It notes that the detention of Ukrainian military vessels and servicemen “formed part of and resulted directly from that incident of 25 November 2018”.Footnote ⁹⁹ The Russian Federation notes furthermore that Ukraine refers to violations of UNCLOS (specifically, the demand for the vessels to stop as well as the Russian Federation’s continuing exercise of jurisdiction over the vessels and servicemen beginning with their arrest and detention) arising from events on the evening of 25 November 2018.Footnote ¹⁰⁰ In this context, the Russian Federation points to a number of “relevant circumstances” which in [Page 635] its view demonstrate that “the events that are at the heart of the current dispute constitute military activities”.Footnote ¹⁰¹ As the Russian Federation characterizes them, these circumstances include, inter alia:

• (a) that military personnel were present on both sides;Footnote ¹⁰²

• (b) that the three Ukrainian vessels that were detained were military vessels;Footnote ¹⁰³

• (c) that the three Ukrainian vessels were armed with guns and artillery, some of which were operational;Footnote ¹⁰⁴

• (d) that when the Ukrainian vessels did not comply with the Russian Federation’s order to stop, the “Ukrainian military and the Russian Federation’s military were arrayed in opposition to each other”;Footnote ¹⁰⁵

• (e) that there was threatened and actual use of force by the forces of the Russian Federation against the Ukrainian vessels and servicemen;Footnote ¹⁰⁶

• (f) that the Russian Federation’s conduct was in response to “an illegal crossing of its State border by another State’s warships” and that “the Russian military was protecting its State national security interests given the unwarranted (armed) presence of the military of another State”;Footnote ¹⁰⁷

• (g) that the activities of 25 October 2018 were preceded by Ukraine’s military build-up in Berdyansk and the Sea of Azov, and amidst [Page 636] “the wider context of the dispute between Ukraine and Russia about the alleged annexation of Crimea”;Footnote ¹⁰⁸ and

• (h) that the Russian Federation,Footnote ¹⁰⁹ Ukraine,Footnote ¹¹⁰ third StatesFootnote ¹¹¹ and international [Page 637] organizationsFootnote ¹¹² have characterized the activities of 25 November 2018 as “military in nature”.Footnote ¹¹³

85. The Russian Federation highlights several additional circumstances that in its view demonstrate that the events were military in nature.Footnote ¹¹⁴ First, it notes the specific military activity of Ukraine, notably what the Russian Federation characterizes as a “covert military operation” of Ukraine’s warships in their intended redeployment to Berdyansk in the Sea of Azov, as confirmed by a checklist discovered on the Nikopol.Footnote ¹¹⁵ Second, the Russian Federation asserts that the “Ukrainian warships raised their guns towards the Russian vessels, and vessels of the FSB Border Service, supported by Russian naval and military airpower, rammed one Ukrainian vessel and used armed force against another”.Footnote ¹¹⁶ Third, the Russian Federation emphasizes that Ukraine has characterized the activities as military “time and again before multiple international bodies”.Footnote ¹¹⁷

[Page 638] 86. While the Russian Federation argues that weight should be accorded to what both States have said, it contends that particular weight should be accorded to Ukraine’s characterizations of the relevant acts.Footnote ¹¹⁸ It notes that “it is well established under international law that a statement against interest has particular probative value as a form of admission”, and it does not accept that Ukraine’s past characterizations can be explained as being based on limited information.Footnote ¹¹⁹ Citing the Bosnian Genocide case before the International Court of Justice (the “ICJ”), the Russian Federation points to the source, the process of generation, the quality and the character of Ukraine’s pre-arbitration statements as demonstrating that “the greatest of weight” should be placed on them.Footnote ¹²⁰ The Russian Federation also contends that its words and actions are consistent with its position that the activities are military in nature.Footnote ¹²¹

87. The Russian Federation also points out that Ukraine characterizes the activities at issue as domestic law enforcement activities (for the purposes of the military activities exception) while emphasizing the military nature of its vessels (for the purpose of claiming immunities).Footnote ¹²²

88. Ukraine’s position is that the subject matter of this dispute concerns the lawfulness of the Russian Federation’s exercise of law enforcement jurisdiction rather than the lawfulness of any military activities. Ukraine therefore contends that the present dispute is not excluded from the jurisdiction of this Arbitral Tribunal by operation of the military activities exception in Article 298(1)(b) of the Convention.Footnote ¹²³ In particular, Ukraine rejects the Russian Federation’s [Page 639] textual and purposive arguments regarding the breadth of Article 298(1)(b)’s exclusion for “military activities”.Footnote ¹²⁴

89. Ukraine submits that “Article 298(1)(b) expressly distinguishes between military activities and law enforcement activities”,Footnote ¹²⁵ and argues that the two categories are mutually exclusive based on a plain reading of Article 298,Footnote ¹²⁶ interpretations by ITLOS in its Provisional Measures OrderFootnote ¹²⁷ and by the Annex VII Arbitral Tribunal in the Coastal State Rights arbitration,Footnote ¹²⁸ commentatorsFootnote ¹²⁹ and the negotiating history of Article 298(1)(b).Footnote ¹³⁰ Ukraine explains that by referring separately to “disputes concerning military activities” and “disputes concerning [some, but not all] law enforcement activities”, Article 298(1)(b) “requires these concepts to be treated as distinct”.Footnote ¹³¹ The use of the term “law enforcement activities” in Article 298(1)(b), according to Ukraine, specifically refers to juridical acts (as is particularly evident from the use of the terms actes d’exécution forcée and actividades encaminadas a hacer cumplir las normas legales in the French and Spanish texts, respectively) that are “fundamentally distinct” from military activities.Footnote ¹³² Ukraine submits that, contrary to the Russian Federation’s interpretation, Article 298(1)(b) only allows States to exclude two limited subcategories of law enforcement activities (relating to marine scientific research and fisheries) from compulsory dispute resolution, mirroring the exclusion of jurisdiction of courts [Page 640] and tribunals over such disputes under Articles 297(2) and 297(3).Footnote ¹³³ Lastly, Ukraine rejects the Russian Federation’s reliance on the separate opinions issued in the provisional measures proceedings before ITLOS.Footnote ¹³⁴ Ukraine claims that both the ITLOS majority’s decision and the separate opinions thereto recognize that activities must be characterized as having either a military or a law enforcement nature for the purposes of Article 298(1)(b).Footnote ¹³⁵

90. According to Ukraine, “[i]t is well-settled, in both judicial practice and scholarly commentary, that a dispute ‘concerns’ military activities only when the specific subject matter of the dispute, i.e., the basis for the applicant’s legal claim, is a military activity; that the mere involvement of military (or coast guard) vessels does not trigger the exception; and that the acts of law enforcement, such as an attempted exercise of the right of hot pursuit, cannot be characterized as military activities”.Footnote ¹³⁶ Ukraine argues that this requirement arises from the fact that Article 298(1)(b) limits the military activities exception to disputes “concerning” (a direct verb meaning to be “about”) military activities rather than disputes “arising from”, “arising out of”, or “arising from or in connection with” military activities, all of which are terms used elsewhere in the Convention and are “suggestive of looser relationships”.Footnote ¹³⁷ Ukraine submits that both the South China Sea and Coastal State Rights Annex VII arbitral tribunals, as well as ITLOS in its Provisional Measures Order, have held that a dispute “concerns” military activities only if its “subject matter is military activities”, rejecting the proposition that the “mere involvement or presence of military vessels is in and by itself sufficient to trigger the military activities exception”.Footnote ¹³⁸

[Page 641] 91. Ukraine claims that the Russian Federation has not put forward a clear test for identifying what the dispute concerns, and it rejects the Russian Federation’s argument that there is a distinction between the question of deciding what a dispute concerns under Article 288(1) and deciding what a dispute concerns under Article 298(1)(b).Footnote ¹³⁹ Relying on the jurisprudence of the ICJ and the Coastal State Rights arbitration, Ukraine reiterates that the question to be answered in order to identify what a dispute concerns is: “what is the essence of the applicant’s claims or, in other words, what is the subject matter of the dispute?”Footnote ¹⁴⁰

92. In identifying the subject matter of the legal dispute, Ukraine argues that the Arbitral Tribunal must “isolate the real issue in the case and […] identify the object of the claim” on an “objective basis”, while “giving particular attention to the formulation of the dispute chosen by the Applicant”.Footnote ¹⁴¹ Ukraine contends that its submissions in this case advance claims concerning violations of UNCLOS (inter alia, immunity violations) pertaining to the Russian Federation’s boarding, arrest, detention and prosecution of its naval vessels.Footnote ¹⁴² Ukraine concludes that this is the “subject matter” of the dispute, while “[b]y contrast, [Page 642] Ukraine has advanced no claims about, and seeks no relief from, any other ‘activities of the Ukrainian and Russian forces on 25 November 2018’”.Footnote ¹⁴³

93. Ukraine also argues that the Russian Federation’s interpretation of Article 298(1)(b) is at odds with the Convention’s object and purpose.Footnote ¹⁴⁴ Ukraine characterizes mandatory dispute resolution as the “pivot upon which the delicate equilibrium of the compromise [of the Convention] must be balanced”, referring to the “broad jurisdictional grant of Articles 286 and 288” and the “deliberate and precise” drafting of jurisdictional exceptions in Article 298.Footnote ¹⁴⁵ Ukraine acknowledges that the “Convention’s purpose of fostering dispute resolution” is tempered by States’ reluctance to “expose military operations to compulsory adjudication” but argues that the Convention’s travaux préparatoires indicate that the military activities exception was carefully deliberated and worded to exclude conduct that is not in fact military in nature (including the exercise of law enforcement jurisdiction, in its estimation).Footnote ¹⁴⁶ Ukraine resists the assertion that its interpretation is unduly strict, and argues that the military activities exception extends to a wide range of military activities but stops short of law enforcement [Page 643] activities.Footnote ¹⁴⁷ Ukraine argues that the Russian Federation’s interpretation, on the other hand, would “allow States Parties to avoid dispute resolution for any violation of the immunity provisions of the Convention that apply to warships”, which is unsupported by the Convention’s text (which uses categorical exclusions elsewhere, but not in disputes concerning Articles 30, 32, 95 and 96) or by the intent of its drafters, who would not have “exclude[d] a core tenet of the law of the sea—warship immunity—from a central feature of the Convention—mandatory dispute settlement”.Footnote ¹⁴⁸

94. Ukraine also contends that “Russia chose to assert law enforcement jurisdiction”Footnote ¹⁴⁹ and cites the South China Sea arbitral tribunal’s holding that a tribunal should not “deem [a respondent State’s] activities to be military in nature when [that State] itself has consistently and officially resisted such classifications and affirmed the opposite at the highest levels”.Footnote ¹⁵⁰ Ukraine asserts that the “Russian Federation’s own words and actions must be relevant to understanding the nature of its activities”Footnote ¹⁵¹ and submits that, beginning immediately after the events of 25 November 2018, and thereafter consistently, the Russian Federation has maintained that “the arrest, detention, and prosecution of Ukraine’s vessels and servicemen was for the purpose of law enforcement”.Footnote ¹⁵² Specifically, Ukraine points to official statements, correspondence and legal submissions by the [Page 644] Russian Federation, which point to alleged non-compliance by the Ukrainian vessels and servicemen with the Russian Federation’s navigational regulations and statutes as well as the Criminal Code of the Russian Federation.Footnote ¹⁵³

95. Ukraine rejects the Russian Federation’s efforts to reverse its “unwavering position” by arguing that both the Russian Federation and Ukraine have characterized the activities in question as “military in nature”.Footnote ¹⁵⁴ Ukraine notes that the statements to which the Russian Federation refers pertain to the events on the evening of 25 November 2018 (specifically, the alleged provocation arising from the Ukrainian naval vessels’ assertion of a right to transit the Kerch Strait) or its immediate aftermath, when there was limited information as to “the full extent to which Russia was treating the incident as a law enforcement matter”.Footnote ¹⁵⁵ Ukraine points out that the present dispute before the Arbitral Tribunal concerns the Russian Federation’s activities in “arresting, detaining, and prosecuting the Ukrainian naval vessels and servicemen, after those vessels ‘gave up their mission to pass through the strait’”, which the Russian Federation itself has consistently characterized as law enforcement activities.Footnote ¹⁵⁶

96. In this regard, Ukraine rejects the argument that it is bound by its initial legal characterization of the incident on the basis of estoppel or “admissions against interest”.Footnote ¹⁵⁷ Ukraine distinguishes the authorities relied upon by the Russian Federation, noting in particular that the doctrines apply only to statements of fact, and not legal characterizations, and that there has been no reliance by the Russian Federation on Ukraine’s initial characterizations.Footnote ¹⁵⁸

[Page 645] 97. Ukraine also takes issue with the eight “relevant circumstances” cited by the Russian Federation in support of its conclusion that the present dispute concerns military activities:Footnote ¹⁵⁹

• (a) With respect to the Russian Federation’s observations that there were “military personnel on both sides” and that the Ukrainian vessels involved were “military vessels, namely naval warships and an auxiliary vessel”, Ukraine submits that Article 298(1)(b) is focused on the nature of the activities (“military activities”) rather than the actors involved.Footnote ¹⁶⁰ Ukraine suggests that military activities did not take place on the evening of 25 November 2018 because “[t]he Ukrainian naval vessels never engaged with the Russian Federation’s coast guard (or military)” and, at the time of their pursuit and arrest, “the vessels were attempting to exit the territorial sea and return to their home port”.Footnote ¹⁶¹

• (b) Ukraine similarly dismisses the relevance of the Russian Federation’s allegation that Ukraine’s naval vessels “were armed with guns and artillery”, noting that “virtually all military vessels are armed” and yet the mere presence of military vessels does not trigger the exclusion.Footnote ¹⁶² According to Ukraine, “[m]ore salient is the fact […] that the Ukrainian vessels took measures to [Page 646] demonstrate their arms were not being used or deployed”.Footnote ¹⁶³ In this vein, Ukraine insists that the weapons of its warships were not aimed at the Russian Federation’s vessels.Footnote ¹⁶⁴

• (c) Ukraine disputes the Russian Federation’s contention that “when the Ukrainian Military Vessels ignored the Russian order to stop the Ukrainian military and the Russian military were arrayed in opposition to each other”.Footnote ¹⁶⁵ In Ukraine’s view of the facts, the Russian Federation’s coast guard issued the order to stop after the naval vessels had given up their objective of passing through the Kerch Strait and subsequently pursued them out of the territorial sea.Footnote ¹⁶⁶ Ukraine concludes that “[w]hen one set of vessels is peacefully leaving an area and another set of vessels is giving chase to conduct an arrest, they are not ‘arrayed in opposition’”.Footnote ¹⁶⁷

• (d) Ukraine also denies that the Russian Federation’s undisputed use of force against the naval vessels and servicemen suffices to trigger the military activities exclusion, noting that use of force is commonplace in law enforcement activities.Footnote ¹⁶⁸ Furthermore, Ukraine notes that the use of force in law enforcement “follows a standard set of principles, escalating from ‘an auditory or visual signal to stop’, to warnings such as ‘shots across the bows of the ship’, and only then a resort to force”, which were “exactly what the Russian coast guard employed” on the evening of 25 November 2018.Footnote ¹⁶⁹

• (e) Ukraine submits that the reason the Russian Federation offers for its arrests (“protecting its State national security interests given the unwarranted (armed) presence of the military of another State”) is inapposite because Ukraine’s claims concern events following the Ukrainian vessels’ abandonment of plans to transit the Kerch Strait and decision to leave the territorial sea.Footnote ¹⁷⁰ Ukraine also submits [Page 647] that the justification offered is at odds with express Russian Federation statements that “invoke the enforcement of domestic law”; Ukraine contends that “only in this litigation has Russia advanced this post hoc claim of national security interests”.Footnote ¹⁷¹

• (f) Ukraine also decouples the events of 25 November 2018 from the “wider context of the dispute between Ukraine and Russia about the alleged annexation of Crimea” by arguing that the present dispute “does not concern Russia’s […] annexation and occupation of Crimea”, and by relying on the decisions of other arbitral tribunals (both with respect to the general relationship between an instant dispute and the broader context of relations between disputing States, as well as the alleged link to the occupation of Crimea).Footnote ¹⁷²

98. Ukraine also disputes the Russian Federation’s claim that Ukraine’s warships intended to cross the Kerch Strait in secret, which Ukraine deems to be both implausible and irrelevant.Footnote ¹⁷³ Ukraine contends that the word “covert”—which appears in the checklist found on board the Nikopol—is standard language used by the Ukrainian Navy for warships at sea and does not indicate an intention to transit the Kerch Strait in secret.Footnote ¹⁷⁴ Moreover, Ukraine asserts that the plan to sail beyond areas of observation of the Russian Federation’s vessels was meant to avoid provocation rather than ensure secrecy.Footnote ¹⁷⁵ Regardless, according to Ukraine, the factual record does not indicate a covert mission.Footnote ¹⁷⁶ Ukraine asserts that, not only is it impossible to transit the Kerch Strait covertly, but that the commanders of Ukraine’s naval vessels have testified that they were in “proper touch” with the Kerch [Page 648] Port and planned to take a pilot on board the Yani Kapu to transit the Strait under the same procedures that they followed in September 2018 without incident.Footnote ¹⁷⁷ Ukraine notes that this accords with the provisional measures decision of ITLOS concerning the incident, which found “that a non-permitted secret incursion by the Ukrainian naval vessels […] would have been unlikely under the circumstances of the present case”.Footnote ¹⁷⁸

99. Ukraine submits that an objective evaluation of the relevant facts, separate from the characterizations of the activities by the Russian Federation and Ukraine, would equally establish that the arrest and detention of the vessels and crew falls within the law enforcement category of the Convention.Footnote ¹⁷⁹ Ukraine recalls that, by a 19-1 decision, ITLOS concluded that the dispute falls outside the exclusion because “the circumstances of the incident on 25 November 2018 suggest that the arrest and detention of the Ukrainian naval vessels by the Russian Federation took place in the context of a law enforcement operation”.Footnote ¹⁸⁰ Ukraine submits that the more complete record before this Arbitral Tribunal compels the same conclusion.Footnote ¹⁸¹

100. Ukraine submits that its Article 95 and 96 claims concern immunity from one State’s (the Russian Federation’s) exercise of jurisdiction through the enforcement of its domestic laws against another State (Ukraine) that is alleged to have violated those laws.Footnote ¹⁸²

101. Article 95 provides that “[w]arships on the high seas have complete immunity from the jurisdiction of any State other than the flag State”. Article 96 provides that “[s]hips owned or operated by a State and used only on government non-commercial service shall, on the high seas, have complete immunity from the jurisdiction of any State other than the flag State”.

102. The Russian Federation’s exercise of jurisdiction, according to Ukraine, is “as a general matter, law enforcement rather than military in nature”,Footnote ¹⁸³ citing the Arrest Warrant judgment of the ICJ,Footnote ¹⁸⁴ [Page 649] commentary of the International Law Commission (“ILC”)Footnote ¹⁸⁵ and international law scholarship.Footnote ¹⁸⁶ Additionally, Ukraine submits that arrest and detention are considered law enforcement activities in ITLOS jurisprudence,Footnote ¹⁸⁷ law of the sea scholarshipFootnote ¹⁸⁸ and the United Nations Code of Conduct for Law Enforcement Officials.Footnote ¹⁸⁹

103. Ukraine argues that the Russian Federation’s appeal to potentially undesirable consequences of a narrow interpretation of the military activities exception is not grounded in the present dispute.Footnote ¹⁹⁰ Ukraine contends that any “sweeping consequences” that its interpretation might have would relate to States seeking to assert law enforcement jurisdiction over another State’s military warships and crew, which Ukraine submits has no support in State practice.Footnote ¹⁹¹ On the contrary, Ukraine submits that the Russian Federation’s interpretation “would allow States Parties to avoid dispute resolution for any violation of the immunity provisions of the Convention that apply to warships”, which is not contemplated in the text of the Convention (that otherwise includes categorical exclusions from compulsory dispute settlement, such as disputes concerning Article 83) and which was explicitly rejected when it was proposed during the negotiations leading up to the adoption of the Convention.Footnote ¹⁹² Furthermore, Ukraine cites examples of State practice involving Russian and Soviet forces, wherein States refrained from exercising law enforcement jurisdiction against foreign warships in their territorial seas.Footnote ¹⁹³ Ukraine concludes that it is the Russian Federation’s conduct deviating from this State practice that [Page 650] “requires this particular dispute to be classified as concerning law enforcement activities rather than military activities”.Footnote ¹⁹⁴

104. Ukraine’s declaration in accordance with Article 298(1)(b) of the Convention excluded from dispute settlement “disputes concerning military activities”. Russia’s Article 298(1)(b) declaration referred to “disputes concerning military activities including military activities by government vessels and aircraft”. The effect of either declaration is that, to the extent that the dispute is one “concerning military activities”, the Arbitral Tribunal lacks jurisdiction.

105. The Russian Federation argues that the events that are the subject of this dispute concern “military activities”. Ukraine denies this, arguing that the events do not concern “military activities” but rather concern “law enforcement activities”. Thus, the dispute between the Parties under the first preliminary objection is over the meaning of the term “military activities”.

106. The Russian Federation argues that the exception in respect of military activities in Article 298(1)(b) was drafted in “broad” and “unqualified” terms.Footnote ¹⁹⁵ According to the Russian Federation, the argument that some breadth should be given to the interpretation of the phrase “concerning military activities” is reinforced by the use of the words “concerning” and “activities”, both broad in scope. Ukraine rejects this approach to the interpretation of “military activities”, arguing that the exception only applies where the subject matter of the dispute is military activities. It further argues that the Convention creates a dichotomy between military activities and law enforcement activities with the result that, if the activities are law enforcement activities, they cannot be military activities.

107. The Arbitral Tribunal notes that there is no explicit definition in the Convention of what constitutes “military activities”. The use of the term in Article 298(1)(b) has been the subject of comment in some cases, without a consensus emerging on the scope of the “military activities” exception. In the South China Sea arbitration, the arbitral tribunal said that, in the interpretation of Article 298(1)(b), the question is “whether the dispute itself concerns military activities”.Footnote ¹⁹⁶ In the Coastal State Rights arbitration, the arbitral tribunal saw the term [Page 651] “concerning” as limiting the exception to “those disputes whose subject-matter is military activities”.Footnote ¹⁹⁷ What emerges from these cases is that there must be a close connection or relationship between the subject of the dispute and the military activities and that the activities must be military in nature in the sense that they are activities that would be undertaken by military vessels or by government vessels carrying out military functions.

108. In arguing that the “military activities” exception applies, the Russian Federation focuses on the events of 25 November 2018 “that underlie the dispute”.Footnote ¹⁹⁸ Ukraine, on the other hand, sees the subject matter of the dispute as “the arrest, detention, and prosecution of Ukrainian naval vessels and their crew”.Footnote ¹⁹⁹ For its part, the Arbitral Tribunal does not see these approaches as incompatible. The events of 25 November 2018 are relevant to the arrest of the Ukrainian vessels and that arrest is the precursor to the detention of the vessels and the prosecution of their crews.

109. In its decision on provisional measures, ITLOS said that the determination of whether activities are military “must be based primarily on an objective evaluation of the nature of the activities in question, taking into account the relevant circumstances in each case”.Footnote ²⁰⁰ In the view of the Arbitral Tribunal, that is the correct approach to take in determining whether the military activities exception to the Arbitral Tribunal’s jurisdiction can be invoked in this case. Accordingly, the Tribunal will look at the events that occurred leading to the arrest and detention of the Ukrainian naval vessels and the prosecution of their crews, taking account, where relevant, of the events subsequent to the arrest.

110. The Arbitral Tribunal is aware of the context in which this dispute arose. It occurred after the alleged annexation of Crimea by the Russian Federation and there was a continuing period of mistrust and hostility between the two States arising out of their conflicting positions on sovereignty over Crimea and the maritime areas appurtenant to it. These matters are outside the Arbitral Tribunal’s jurisdiction, and it takes no position on them. It simply refers to them as a matter of context.

111. The essential facts for the determination of whether the military activities exception applies start in the evening of [Page 652] 24 November 2018 when two Ukrainian naval vessels, the Yani Kapu and Gorlovka, were contacted by Russian coast guard vessels while they were in the Black Sea and informed about the procedure for crossing the State border and navigating through the Kerch Strait. The Gorlovka informed the Russian coast guard that there was no intention to cross the territorial sea or transit the Kerch Strait, although it is disputed whether this referred to one or both vessels. There was a further communication later that evening from a Russian coast guard vessel to the two Ukrainian vessels regarding the closure of the Kerch Strait and the suspension of innocent passage in the Black Sea approach to the Kerch Strait.

112. On the morning of 25 November 2018, the Ukrainian naval vessel, Berdyansk, which by now together with the Ukrainian naval vessel Nikopol had joined the Yani Kapu and Gorlovka, contacted the Russian coast guard and indicated the intention of the Berdyansk, Nikopol and Yani Kapu to enter the territorial sea and then transit through the Kerch Strait. A short time later the Berdyansk was informed by a Russian coast guard vessel of the closure of the Kerch Strait and the suspension of innocent passage in the Black Sea approach to the Strait.

113. It is not contested that the Berdyansk challenged the claim that the Kerch Strait had been closed and asserted a right to navigation in the area. The Ukrainian vessels continued to navigate towards the Strait. The Russian Border Patrol Ships Izumrud and Don then ordered the Ukrainian vessels to leave and manoeuvred to prevent them from sailing towards the Kerch Strait which included the ramming of one of the Ukrainian vessels. The Ukrainian vessels did not comply with this order to leave but eventually proceeded around the Russian vessels to an anchorage area. By this time, the Russian vessels had been joined by other Russian vessels including at least one naval vessel from the Russian Black Sea fleet.

114. The Ukrainian vessels remained in that anchorage area for approximately eight hours surrounded by Russian vessels and with Russian military helicopters flying overhead. At some time during this period, the guns of the Berdyansk were raised to a 45-50 degree angle. At various times, it is alleged, the Russian coast guard vessels ordered the Ukrainian vessels to leave. However, the Ukrainian vessels did not do so, but eventually decided to abandon their attempt to transit through the Kerch Strait and instead return home. As they navigated away from the anchorage area, they were followed by the Izumrud and Don and ordered to stop, but the Ukrainian vessels did not comply. Eventually shots were fired by the Russian vessels and the Berdyansk, [Page 653] followed by the Yani Kapu and then the Nikopol, were all boarded and arrested.

115. The question for the Arbitral Tribunal is whether these events can be characterized as military activities. The Ukrainian vessels were engaged in a military mission—to redeploy from one port in Ukraine to another Ukrainian port located in the Sea of Azov.Footnote ²⁰¹ Their instructions were to “sail covertly, beyond the coastal and sea areas of observation of the Black Sea Fleet of the Russian Federation and Border Service of the Federal Security Service of the Russian Federation”.Footnote ²⁰² And while such orders may not have meant that the operation was to be clandestine, which patently it could not have been,Footnote ²⁰³ they are certainly orders that indicate that it was a military mission. The vessels were in constant contact with the Ukrainian Ministry of Defence and had Security Service personnel on board. These factors all suggest that Ukraine viewed the movement of its vessels to the port of Berdyansk in the Sea of Azov as having a military character.

116. Moreover, in the course of this mission the Ukrainian vessels were ordered by Russian coast guard and Russian naval vessels to stop, which they refused to do. In addition, at some point the Berdyansk raised its guns and then lowered them. The Parties dispute whether this was an aggressive act by the Berdyansk, as contended by the Russian Federation, or a disavowal of any hostile intent, as Ukraine maintains. Raising and lowering guns may well have been an attempt to limit any confrontation, but at the same time, in the view of the Arbitral Tribunal, it is indicative of the fact that the Ukrainian vessels perceived themselves as being in a confrontation with the naval vessels of the Russian Federation.

117. Furthermore, Ukraine’s actions immediately following the arrest of the vessels were to see the issue as having been one of military activity. When it brought the arrest to the attention of the United Nations Security Council on 26 November 2018, the day after the events, it characterized the matter as an act of aggression.Footnote ²⁰⁴ The Arbitral Tribunal is not suggesting that an estoppel against Ukraine arises from the words it used before the Security Council, or that [Page 654] Ukraine’s words should be characterized as statements against interest. Ukraine’s statements before the Security Council are simply an indication of how at that time Ukraine understood and characterized the events.Footnote ²⁰⁵ Equally, Ukraine’s request that the detained servicemen be treated as prisoners of war is a further indication that at the time Ukraine perceived the confrontation to have been a military one.

118. That the Russian Federation at the time saw this as a military confrontation can be inferred from these events as well. The naval vessels of a State, Ukraine, with which the Russian Federation had a troubled and hostile relationship, particularly regarding the land territory and waters in that area, had indicated that they had no intention to enter the territorial sea. Yet, a short time thereafter they were joined by other naval vessels of that State, which announced that they intended to enter the territorial sea and transit the Kerch Strait. Further, when told that the Kerch Strait was closed and ordered to leave, the Ukrainian naval vessels ignored the orders and continued to sail towards the Kerch Strait. Thus, the Russian vessels were confronting the naval vessels of another State that had refused to obey an order relating to transit within its territorial sea.

119. If these had been commercial vessels refusing to comply with the orders of the Russian coast guard, the matter might well have been seen as law enforcement. But they were vessels of a State that contested Russia’s claims in the area. That the Russian Federation saw this as more than routine law enforcement and rather in the nature of a confrontation between two militaries is also evidenced by the fact that the Russian coast guard vessels were joined by a naval vessel from the Russian Black Sea Fleet and military helicopters. For a period of eight hours, the Ukrainian naval vessels were surrounded by Russian coast guard and naval vessels. Whether this was technically a blockade or not, the fact was that the naval vessels of one State were confronting the naval vessels of another State. And when the vessels decided to leave and were ordered by the Russian vessels to stop, those orders were ignored. Shots were fired and the Ukrainian vessels were arrested. These are the events that ultimately led to the arrest of the Ukrainian [Page 655] vessels and sailors and then the detention and prosecution that is at the heart of the dispute between the Parties.

120. Ukraine argues that these events were in fact law enforcement activities and recognized as such by the Russian Federation. Ukraine cites the fact that the Russian vessels asked the Ukrainian vessels to stop because they had violated Russian law.Footnote ²⁰⁶ It also refers to subsequent statements after the arrest of the Ukrainian vessels by Russian officials publicly and in diplomatic notes.Footnote ²⁰⁷ However, Ukraine’s view that these factors turned what occurred into law enforcement activities is predicated on its view that there is a dichotomy between military activities and law enforcement activities—that it must be one or the other.

121. The Arbitral Tribunal does not accept the rigid “either-or” proposition espoused by Ukraine. In the view of the Arbitral Tribunal, activities that initially have a law enforcement character may become activities with a military character, and vice versa. In the present case, as the interactions between the Russian and Ukrainian vessels developed, their character changed.

122. The Arbitral Tribunal considers that the events which give rise to this dispute can be divided into three phases. The first phase involved a confrontation between the militaries of two States, where orders were given by one to the other that were ignored. There was alleged manoeuvring by the vessels of both States, either to block passage or to gain passage. There was a lengthy period of standoff between the two States with the vessels of one surrounded by the vessels of the other. In the view of the Tribunal, this confrontation between the vessels of the two States involved military activities within the meaning of Article 298(1)(b).

123. The second phase starts from the time that the Ukrainian vessels began to leave the anchorage area and were ordered to stop. It continues until the Ukrainian vessels were boarded and the vessels and their crews arrested. Two possibilities present themselves in this phase. One is that, at the point when the Ukrainian vessels began to leave the territorial sea in order to return to Odesa, the actions of the Russian vessels took on a law enforcement character. At that point, there would have been an end to military activities. The alternative possibility is that it was the boarding and arrest of the Ukrainian vessels that brought the confrontation between the vessels of the two States, and thus the military activities, to an end. The Arbitral Tribunal needs [Page 656] further elucidation of this matter by the Parties before reaching a conclusion and thus postpones that decision to the merits.

124. The third phase commences after the arrest of the Ukrainian vessels and involves the continued detention of the vessels and their crews and the prosecution of the Ukrainian servicemen. The Russian Federation had decided by this time to subject the Ukrainian servicemen to domestic law enforcement processes. This phase, in the view of the Arbitral Tribunal, did not involve military activities.

125. In summary, the Arbitral Tribunal concludes that the actions of the Parties in the first phase were military activities over which the Arbitral Tribunal has no jurisdiction. It also concludes that the actions of the Parties in the third phase were not military activities and the Arbitral Tribunal therefore has jurisdiction over the events in this phase. However, with respect to the second phase, the Arbitral Tribunal needs further elucidation by the Parties before reaching a definitive conclusion on when military activities came to an end. It thus postpones the decision with regard to the second phase to the merits.

131. In its second preliminary objection, the Article 288(1) Objection, the Russian Federation contends that UNCLOS does not provide for an applicable immunity of warships or other government ships operated for non-commercial purposes in the territorial sea either in Article 32 or elsewhere in the Convention.Footnote ²⁰⁹ Accordingly, the dispute between the Parties does not concern the interpretation or application of the Convention under Article 288(1) and the Arbitral Tribunal lacks jurisdiction.Footnote ²¹⁰ The Russian Federation clarifies that it takes no position on whether warships have “extra-conventional” immunity in the territorial sea, but “merely raises the […] jurisdictional issue according to which such immunity is not provided for in the Convention”.Footnote ²¹¹ As a result, the Russian Federation submits that “the alleged breach of the obligation to accord immunity to the Ukrainian vessels in the territorial sea falls outside UNCLOS and the jurisdiction of the Tribunal”.Footnote ²¹²

[Page 658] 132. Specifically, the Russian Federation submits that “[a]s a matter of its ordinary meaning, Article 32 establishes no right to immunity and only addresses exceptions to the potential immunity of warships”.Footnote ²¹³ It cites at length from the Joint Opinion of Judges Wolfrum and Cot in the ARA Libertad case, which takes the position that “[A]rticle 32 constitutes a reference rather than a regulation in itself” and compares Article 32 to Article 95,Footnote ²¹⁴ which in its view “makes very clear that only [A]rticle 95 […] contains a regulation on immunity whereas [A]rticle 32 does not”.Footnote ²¹⁵

133. In support of its interpretation, the Russian Federation points to the travaux préparatoires of the 1958 Convention on the Territorial Sea and the Contiguous Zone (the “Territorial Sea Convention”), which included provisions antecedent to UNCLOS’s provisions on the immunities of warships in the territorial sea.Footnote ²¹⁶ The Russian Federation argues that the failure to adopt a provision that “would have expressly recognized the immunity of warships while exercising innocent passage in the territorial sea […] supports the view that [the 1958 United Nations Conference on the Law of the Sea and the Third United Nations Conference on the Law of the Sea] deliberately refrained from setting up a treaty obligation on the immunities of warships while these exercise passage through the territorial sea”.Footnote ²¹⁷

[Page 659] 134. The Russian Federation argues that while the Convention addresses exceptions to innocent passage (in Subsection A of Section 3 of Part II) and to warship immunity upon non-compliance with coastal State laws and regulations in the territorial sea (Articles 30 and 31), the Convention “says nothing about the immunities of warships, leaving the matter to be dealt with elsewhere”.Footnote ²¹⁸ The Russian Federation also emphasizes the difference between Article 32 and Article 95, noting that Article 95 provides positively that warships in the high seas have complete “immunity”, while Article 32 “merely implies” the existence of undefined “immunities” in the territorial sea and does not regulate them.Footnote ²¹⁹

135. According to the Russian Federation, Article 32 is a “without prejudice” provision with respect to immunities under customary international law.Footnote ²²⁰ The Russian Federation distinguishes between what it views as a matter of applicable law (“the Tribunal may have recourse to general international law not incompatible with the Convention in accordance with Article 293”) as opposed to a matter of jurisdiction (“[the Arbitral Tribunal] is mandated only to decide on disputes concerning the interpretation and application of the Convention in accordance with Article 288”).Footnote ²²¹ The Russian Federation further submits that Article 293 serves to confirm the [Page 660] applicability of other obligations under international law, but not to “empower a Part XV tribunal to decide disputes which have arisen in fields of international law that lie outside the provisions of the Convention”, however fundamental or longstanding the international law obligations invoked might be.Footnote ²²²

136. The Russian Federation also submits that Article 32 is not a rule of incorporation, arguing that, in contrast to “the few provisions of the Convention which […] directly incorporate other rules of international law [by] expressly refer[ring] to treaty law”, the customary immunity of warships has not been incorporated by reference.Footnote ²²³ Likewise, the Russian Federation contends that the relevant customary rules cannot be considered as incorporated into the Convention through Article 30, which it claims is inseparable from Article 32.Footnote ²²⁴

137. Contrary to Ukraine’s position, the Russian Federation argues that Article 32 is the relevant provision of the Convention because “the order to stop [the Ukrainian vessels], warning flares and shots into the air, the use of targeted weapons against [the Berdyansk] and the arrests of [the Yani Kapu] and [the Berdyansk]” all occurred in the Russian Federation’s territorial sea.Footnote ²²⁵ The Russian Federation rejects Ukraine’s argument that the Arbitral Tribunal must decide on the question of whether Ukraine’s claims fall within the Convention only on the basis of the bare allegations advanced by Ukraine.Footnote ²²⁶ The Russian Federation additionally notes that “it does not accept the waters in question as [Page 661] belonging to Ukraine; but the [Arbitral] Tribunal has no jurisdiction to decide on a dispute over territorial sovereignty”.Footnote ²²⁷

138. Alternatively, the Russian Federation asserts that the pursuit of the Nikopol started well within the territorial sea, such that “the correct focus is still on Article 32, by operation of Article 111 [on hot pursuit]”.Footnote ²²⁸ Article 111 provides:

139. The Russian Federation submits that the conditions for hot pursuit under Article 111 were met in the present case: (i) the Russian Federation demanded that the vessels stop because they had violated the law of the Russian Federation while the vessels were in its territorial sea; (ii) hot pursuit was continuous and uninterrupted; (iii) a signal to stop had been given; and (iv) the Russian Federation’s coast guard vessels were clearly marked and identifiable as being authorized to be on government service.Footnote ²²⁹ According to the Russian Federation, “[s]ince Article 32 does not provide for the immunity of warships in the territorial sea, while Article 95 is categorical as regards the existence of such immunity on the high seas, implying a restriction of the right to hot pursuit as enunciated in Article 111, in the present case, the silence in Article 32 trumps and contradicts the rule enunciated in Article 95”.Footnote ²³⁰ In any event, the Russian Federation contends that the Nikopol should be considered to have been captured in the territorial sea because it “stopped within the territorial sea officially surrendering to the jurisdiction of Russia” and then merely drifted 1.21 miles outside the territorial sea as a result of the current, not [Page 663] as a result of the “de facto or de jure” acts of either party.Footnote ²³¹ The Russian Federation further argues that the fate of the three vessels should be considered together as they were all part of the same mission and subject to the same warnings, pursuit and injunctions of the Russian navy.Footnote ²³²

140. With respect to the two alternative bases for the Arbitral Tribunal’s jurisdiction that Ukraine has argued for, the Russian Federation notes that the issue of the immunities of warships is not an incidental question; rather, “it is at the heart of the case” and thus there is no incidental jurisdiction over this question.Footnote ²³³ The Russian Federation also rejects the argument that general international law is incorporated into the Convention through Article 2(3) as “doing so would deprive Article 32 of any material effect”.Footnote ²³⁴ It thus claims that there is no jurisdiction on the basis of Article 2(3) either.Footnote ²³⁵

141. The Russian Federation concludes that since “[t]here is no relevant and applicable rule [providing for the immunities of warships and other government ships operated for non-commercial purposes in the territorial sea] under the Convention, whether self-standing or through incorporation […] [i]t follows that there can be no dispute concerning the interpretation or application of such a rule, as would be required for this [Arbitral] Tribunal to have jurisdiction under Article 288(1) of the Convention”.Footnote ²³⁶

142. Ukraine submits that the Russian Federation’s Article 288(1) Objection is “irrelevant” because, on Ukraine’s view of the facts, “all three vessels were arrested beyond the territorial sea”.Footnote ²³⁷ Ukraine’s claims therefore focus on immunity violations under Articles 58, 95 and 96, “provisions which Russia agrees confer immunity”.Footnote ²³⁸

[Page 664] 143. Ukraine contends that at this preliminary objections stage, “the question of whether Ukraine’s claims fall within the Convention can only be assessed on the basis of the facts advanced by Ukraine”Footnote ²³⁹ that, as attested to by commanders on board the three Ukrainian vessels, “[a]t the time of their boarding, arrest and detention, the Ukrainian naval vessels had exited the territorial sea” and were in the exclusive economic zone (where it is not disputed that Articles 95 and 96 apply to confer immunity).Footnote ²⁴⁰ Ukraine stresses that “[t]here is no question that a dispute concerning violations of Articles 95 and 96—the claim actually advanced by Ukraine—is a dispute concerning interpretation or application of the Convention that is within the Tribunal’s jurisdiction”.Footnote ²⁴¹

144. Ukraine further submits that, whether its account of the facts is accepted pro tem (placing the dispute within the scope of Articles 58, 95 and 96) or whether the Arbitral Tribunal takes up the Russian Federation’s request to adjudicate the Russian Federation’s contrasting account of the facts, the Russian Federation’s Article 288(1) Objection must be rejected.Footnote ²⁴² Ukraine submits that the acts of which it complains “plainly fall within the provisions of UNCLOS”.Footnote ²⁴³ Specifically, it contends that the Russian Federation’s boarding, arrest, detention and prosecution of Ukraine’s vessels and servicemen respectively breached Articles 58, 95 and 96; the Russian Federation’s order for the naval vessels to stop while in the territorial sea and attempts to prevent them from exiting the territorial sea breached Articles 30 and 32; the Russian Federation’s violation of the Provisional Measures [Page 665] Order violated Articles 290 and 296; and the Russian Federation’s aggravation of the dispute violated Article 279.Footnote ²⁴⁴

145. Ukraine adds that the Russian Federation’s argument that Article 32 does not confer immunity is not in fact a preliminary objection because that argument only becomes relevant if the Arbitral Tribunal determines that the arrests of two of the vessels took place within the territorial sea, which is not a matter for the preliminary objections stage.Footnote ²⁴⁵

146. Ukraine also rejects the Russian Federation’s position that the right of hot pursuit under Article 111 overrides the immunity of warships under Articles 95 and 96Footnote ²⁴⁶ and contends that, as a merits defence, it is “not properly presented at this stage of proceedings”.Footnote ²⁴⁷ Ukraine submits that the relevant jurisdictional inquiry is whether the complained-of acts “fall within” the Convention’s provisions, whereas the Russian Federation’s defence “does not present the question of whether provisions of the Convention are applicable, but which provisions of the Convention are applicable”.Footnote ²⁴⁸ Ukraine further argues that there is no textual support either for a “hot pursuit” exception to Article 95 or for the Russian Federation’s position that “the silence in Article 32 trumps and contradicts the rule enunciated in Article 95”.Footnote ²⁴⁹ Indeed, Ukraine submits that the right of hot pursuit serves as a [Page 666] “continuation of a validly commenced act of jurisdiction”, but does not confer enforcement jurisdiction over immune vessels.Footnote ²⁵⁰ Ukraine also argues that there is no legal support for the position that “the Nikopol should be treated as if it was in the territorial sea because it is part of a group of ships and it should have the same fate as the others”.Footnote ²⁵¹

147. Even if Article 32 were to be regarded as properly invoked at the preliminary objections stage, Ukraine disagrees with the Russian Federation’s interpretation that Article 32 is a “without prejudice” provision that does not provide for an applicable immunity of warships and other non-commercial government vessels in the territorial sea.Footnote ²⁵² Ukraine submits that its interpretation of Article 32 comports with the Vienna Convention on the Law of Treaties’ (the “VCLT”) direction that treaty provisions must be interpreted “in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose”,Footnote ²⁵³ and is “widely accepted” among commentators on the law of the sea.Footnote ²⁵⁴ [Page 667] According to Ukraine, interpreted in good faith and in the context of its placement (within Part II, Section 3, Subsection C, of the Convention, which sets out the “rules applicable to warships and other government ships used for non-commercial purposes”), Article 32 on the “[i]mmunities of warships and other government ships operated for non-commercial purposes” must prescribe an applicable immunity in the territorial sea.Footnote ²⁵⁵

148. Ukraine finds further support for its interpretation in the textual links running from Article 32 to Articles 30 and 31, which codify the sole exceptions to Article 32’s “general rule of immunity” and “preserve” the “historic customary immunity of warships”; Ukraine reasons that “[g]iven that the Convention codifies exceptions to the rule of immunity in the territorial sea, and specifically refers to those exceptions in the text of Article 32, it would be anomalous to interpret Article 32 as not also codifying the [customary] rule to which those exceptions apply”.Footnote ²⁵⁶ Ukraine further submits that the variation in language between Article 32 and Article 95 has its roots in the Convention’s precursor, the Territorial Sea Convention, and relates to the different immunities codified in each provision (that is, “complete immunity” on the high seas, as opposed to immunity with limited exceptions in the territorial sea).Footnote ²⁵⁷ It does not, Ukraine continues, sustain the Russian Federation’s conclusions that the Convention does not affirmatively provide for warship immunity in the territorial sea.Footnote ²⁵⁸

[Page 668] 149. Ukraine also submits that Article 32 is not worded like “without prejudice” provisions in other parts of the Convention or in other treaties, which refer to superseding rights or obligations under other sources of law; it contends that, instead, “Article 32 refers to the Convention’s own limited exceptions on [the immunity of warships and non-commercial governmental vessels in the territorial sea]”.Footnote ²⁵⁹ Ukraine further argues that the reference in the Convention’s preamble to “matters not regulated by this Convention” relates to matters “wholly untouched by the Convention” (such as the law of armed conflict), whereas warship immunity is a subject regulated by the Convention.Footnote ²⁶⁰

150. Ukraine submits that the object and purpose of the Convention as a whole (the “codification and progressive development of the law of the sea”), and of Part II in particular (“giv[ing] expression to […] international customary law” governing the territorial sea and contiguous zone), further confirm that “Article 32 was intended to codify the rule of immunity in the territorial sea”.Footnote ²⁶¹ Ukraine argues that there is “no explanation for why the drafters of the Convention, having otherwise codified the customary rules of warship immunity, would have intended to leave this one facet of warship immunity outside the scope of the Convention”.Footnote ²⁶²

151. Finally, Ukraine argues that Article 32 is a “codification of the customary law rule of immunity [of warships and other government ships used for non-commercial purposes in the territorial sea]”,Footnote ²⁶³ which provides two alternative bases for the Arbitral Tribunal’s [Page 669] jurisdiction in the present dispute.Footnote ²⁶⁴ First, following the approach of the Enrica Lexie arbitral tribunal, the Arbitral Tribunal has jurisdiction to apply customary immunity principles as an incidental question arising in the context of the Arbitral Tribunal’s determinations on (i) whether the Russian Federation’s arrest of the Nikopol violated Articles 58 and 95 and (ii) whether the Russian Federation’s order to stop all three vessels violated Article 30.Footnote ²⁶⁵ Second, the Arbitral Tribunal would have jurisdiction under Article 2(3) of UNCLOS, which states that “sovereignty over the territorial sea is exercised subject […] to other rules of international law”, and which thus “incorporates into UNCLOS the obligation to respect customary international law rules of immunity in the territorial sea”.Footnote ²⁶⁶

152. The essence of the second objection of the Russian Federation is that there is no provision in the Convention for the immunity of warships in the territorial sea and thus that the Arbitral Tribunal has no jurisdiction over Ukraine’s claim insofar as it relates to the immunity of its naval vessels within the territorial sea. The Russian Federation does not dispute that there may be immunity for warships under customary international law, but argues that Article 32 does not incorporate customary international law into the Convention. It simply reserves the position in relation to the immunity of warships. Since the jurisdiction of the Arbitral Tribunal extends only to disputes concerning the interpretation and application of the Convention, then, in the view of the Russian Federation, as there is no provision in the Convention that can be interpreted or applied, there is no jurisdiction.

153. Ukraine, while disputing the view of the Russian Federation that the Convention does not provide for the immunity of warships in the territorial sea and its interpretation of Article 32, maintains that the [Page 670] Russian Federation’s objection is only relevant insofar as vessels were arrested within the territorial sea. However, Ukraine argues that the arrest of all of the vessels took place beyond the territorial sea where the immunity of warships is specifically provided for under Articles 58, 95 and 96. In any event, Ukraine argues that, for the purpose of preliminary objections, the facts as pleaded by it must be the basis on which the Tribunal is to rely in reaching its decision. Otherwise, the Arbitral Tribunal would have to make its own factual enquiry, something that is inappropriate at the stage of preliminary objections.

154. The Arbitral Tribunal is faced with the situation where it is unable to determine at this stage if the question whether the Convention provides for an immunity for warships in the territorial sea is a live issue or an abstract question. If the arrest of a Ukrainian vessel took place in the territorial sea, then, without prejudice to the status of the territorial sea,Footnote ²⁶⁷ the interpretation of Article 32 becomes essential in the present case. If, however, the arrest took place outside the territorial sea, there is no Article 32 claim by Ukraine to decide. Accordingly, this preliminary objection of the Russian Federation is not of an exclusively preliminary character and thus it is premature for the Arbitral Tribunal to decide it. The matter must be left for the merits, when the factual question of whether the arrests took place in the territorial sea can be determined.

155. The Arbitral Tribunal decides, therefore, to make no decision on this second procedural objection, and to join it to the merits.

159. The Russian Federation contends that, because the Arbitral Tribunal lacks jurisdiction over the “main dispute” between the Parties, the Arbitral Tribunal also lacks jurisdiction with respect to the Russian Federation’s alleged non-compliance with the Provisional Measures Order.Footnote ²⁶⁹ In support of this position, the Russian Federation relies on the LaGrand judgment, where the ICJ held that, when it has jurisdiction to decide a case, the court also has jurisdiction to address submissions requesting a determination as to whether orders indicating measures seeking to preserve the rights of the parties have been complied with.Footnote ²⁷⁰ The Russian Federation therefore argues that, although there is authority for the proposition that the Arbitral Tribunal’s jurisdiction to decide the main dispute also encompasses jurisdiction to adjudicate allegations of non-compliance with the Provisional Measures Order,Footnote ²⁷¹ “there are several reasons to hold that the [Arbitral Tribunal] does not have jurisdiction over the main dispute”, emphasizing in particular Article 298(1)(b) and Article 32.Footnote ²⁷² The [Page 672] Russian Federation contends that Article 290(6) does not alter this position, as it only confirms the binding character of provisional measures and does not address jurisdiction over non-compliance with provisional measures.Footnote ²⁷³

160. In any event, while the Russian Federation maintains that the Arbitral Tribunal lacks jurisdiction over alleged breaches of the Provisional Measures Order, it submits that the Provisional Measures Order “has been complied with” since “the Ukrainian Military Servicemen were released on 7 September 2019 and the Ukrainian Military Vessels were released on 18 November 2019”.Footnote ²⁷⁴

161. Ukraine argues that “an order prescribing provisional measures must be complied with promptly because Article 290(6) expressly and unequivocally says so”.Footnote ²⁷⁵ According to Ukraine, the disagreement between the Parties over whether the Russian Federation has violated its obligation under Article 290(6) to “comply promptly with any provisional measures prescribed under this article [in this case, by the Provisional Measures Order]” thus creates a dispute concerning the interpretation or application of the Convention, which is within the jurisdiction of the Arbitral Tribunal under Articles 286 and 288(1).Footnote ²⁷⁶

162. Ukraine’s position is that the Russian Federation failed to comply with its obligations under Articles 290 and 296.Footnote ²⁷⁷ Ukraine points out that “Russia waited nearly four months after the [Provisional Measures Order] to release the servicemen, and nearly six months to release the vessels, returning them in an unacceptable state of disrepair, and also aggravated the dispute after the [Provisional Measures Order] was issued”.Footnote ²⁷⁸ Ukraine submits that—as required by ITLOS in the M/V Louisa case—it has “established a link between the facts advanced” and “the provisions of the Convention [as relevant here, [Page 673] Article 290(6)] referred to by it”, and “show[n] that such provisions can sustain the claim or claims submitted by [it]”.Footnote ²⁷⁹

163. Additionally, Ukraine contends that the Russian Federation’s objection must be rejected “because it is predicated on the incorrect premise that the Tribunal lacks jurisdiction over Ukraine’s other claims [for violations of Articles 30, 32, 58, 95 and 96]”.Footnote ²⁸⁰ Ukraine’s position is that UNCLOS grants the Arbitral Tribunal jurisdiction—independently of what the Russian Federation describes as jurisdiction over the “main dispute”—to address the Russian Federation’s alleged violations of the freestanding obligation under Article 290(6) to “comply promptly with any provisional measures prescribed under [Article 290]”, such as the provisional measures prescribed by ITLOS under Article 290(5).Footnote ²⁸¹ Ukraine submits that this specific and independent obligation under Article 290(6) makes the present case distinguishable from the LaGrand case relied upon by the Russian Federation: the jurisdiction of the ICJ in the LaGrand case was based on the Vienna Convention on Consular Relations, which contains no provision requiring prompt compliance with a provisional measures order.Footnote ²⁸² Ukraine finally points out that “[t]here is no provision of the Convention suggesting that a claim for a violation of Article 290(6) can only be decided if accompanied by a claim for violations of other provisions of the Convention”.Footnote ²⁸³

164. The third preliminary objection of the Russian Federation, that the Arbitral Tribunal has no jurisdiction over the claim of Ukraine that the Russian Federation has failed to comply with the ITLOS [Page 674] Provisional Measures Order, rests on the contention, derived from the judgment of the ICJ in LaGrand, that jurisdiction to determine whether provisional measures have been complied with depends on whether there is jurisdiction over the main dispute. The Russian Federation argues that, since there are several bases on which to deny jurisdiction over the main dispute, then there is no jurisdiction over Ukraine’s claim regarding non-compliance with the ITLOS Provisional Measures Order.

165. Ukraine distinguishes LaGrand on the basis that there was no provision in the Vienna Convention on Consular Relations—the jurisdictional basis for the case—requiring compliance with orders for provisional measures. Under Article 290(6) of the Convention, on the other hand, “[t]he parties to the dispute shall comply promptly with any provisional measures prescribed under this article”. This is reinforced by Article 296 according to which decisions of courts and tribunals having jurisdiction under section 2 of Part XV (Compulsory Procedures) “shall be final and shall be complied with by all the parties to the dispute”.

166. The Arbitral Tribunal notes that the Russian Federation denies the relevance of Article 290(6), which according to the Russian Federation is concerned only with whether provisional measures are binding and not with the question of jurisdiction over non-compliance with an order of provisional measures. The difference between the Parties on the scope, application and relevance of Article 290(6) is a dispute concerning the interpretation and application of the Convention, which is a matter over which the Arbitral Tribunal has jurisdiction in accordance with Articles 287 and 288 of the Convention. It involves a matter that will have to be determined at the merits phase and there is no basis for a denial of jurisdiction as the Russian Federation claims.

167. Moreover, the Arbitral Tribunal notes that, even if it were to accept Russia’s contention that the issue of jurisdiction should be resolved on the basis of its interpretation of LaGrand, the Arbitral Tribunal has already found in response to Russia’s first preliminary objection that it would have jurisdiction over part of Ukraine’s claims. Thus, the Russian objection that, since the Arbitral Tribunal has no jurisdiction over the “main dispute”, it has no jurisdiction over the question of compliance with provisional measures, would have to be rejected.

168. Accordingly, the Arbitral Tribunal rejects Russia’s claim that it has no jurisdiction over Ukraine’s claim that the Russian Federation had not complied with the ITLOS Preliminary Measures Order.

171. The Russian Federation’s position is that Ukraine’s claim concerning a violation of Article 279 “should be disregarded”, as the question of jurisdiction over compliance with an obligation of non-aggravation is absorbed by the question of jurisdiction over compliance with the other provisional measures.Footnote ²⁸⁵ The Russian Federation argues that Article 279 does not provide a basis for jurisdiction as a result of the Russian Federation’s alleged continued aggravation of this dispute because Article 279 “contains no reference to aggravation of disputes”.Footnote ²⁸⁶

172. The Russian Federation argues that Ukraine’s reliance on the South China Sea award is misplaced because the award relied on ICJ case law developed in relation to Article 41 of the ICJ Statute, whereas Article 279 of UNCLOS has no similarity to Article 41 of the ICJ Statute and is otherwise not an expression of the principle found [Page 676] therein.Footnote ²⁸⁷ The Russian Federation also contends that “[t]he South China Sea arbitral tribunal is isolated in considering that the principle of non-aggravation is contained in [Article 279]”.Footnote ²⁸⁸

173. The Russian Federation further supports this view by relying on the Ghana/Côte d’Ivoire case, where the Special Chamber of ITLOS made no reference to Article 279 when addressing the question concerning its jurisdiction over Côte d’Ivoire’s claim that Ghana failed to comply with the prescribed provisional measures.Footnote ²⁸⁹

174. In any event, the Russian Federation contends that it has attenuated rather than aggravated the dispute.Footnote ²⁹⁰ The Russian Federation submits that it had “accepted to meet with Ukraine and discuss issues concerning the settlement of the dispute even after Ukraine had already started the present proceedings” and “that Russia successfully negotiated the release of the [servicemen] and vessels”.Footnote ²⁹¹

175. Ukraine submits that the Russian Federation violated Article 279, as it aggravated the dispute between the Parties by extending the detention of Ukraine’s servicemen and continuing to maintain the criminal cases against them after their release.Footnote ²⁹²

176. According to Ukraine, “Article 279 imposes a duty not to aggravate a dispute while it is subject to compulsory dispute settlement”.Footnote ²⁹³ Ukraine submits that good faith performance of the obligation under Article 279 to settle disputes by peaceful means “requires [Page 677] that Parties engaged in a dispute settlement procedure under the Convention refrain from aggravating or extending the dispute”.Footnote ²⁹⁴

177. Ukraine rejects the Russian Federation’s invocation of the Ghana/Côte d’Ivoire case on the grounds that it concerned a claim of non-compliance with provisional measures, not a claim of aggravation.Footnote ²⁹⁵ According to Ukraine, the ITLOS Provisional Measures Order independently imposed an additional duty not to aggravate the dispute beyond the existing Article 279 obligation, such that “any aggravation of the dispute by Russia after 25 May 2019 also constitutes a violation of Article 290(6) of the Convention, in addition to Article 279”.Footnote ²⁹⁶

178. Ukraine further points out that the South China Sea arbitral tribunal located the duty to refrain from aggravating or extending a dispute, not only in the text of UNCLOS, but in “general international law”,Footnote ²⁹⁷ which provides additional support for the duty of non-aggravation since the Arbitral Tribunal has jurisdiction to address alleged violations of “other rules of international law not incompatible with the Convention” pursuant to Article 293.Footnote ²⁹⁸

179. Ukraine characterizes the Russian Federation’s disagreement with its interpretation as a “merits defense rather than a jurisdictional objection”.Footnote ²⁹⁹ According to Ukraine, the Parties’ differing interpretations on the content of the Article 279 obligation (specifically, whether it includes a non-aggravation requirement) creates a “dispute concerning the interpretation or application of [UNCLOS]”, which the Arbitral Tribunal would have the jurisdiction to resolve on the merits.Footnote ³⁰⁰ Similarly, the Russian Federation’s argument that it did [Page 678] not in fact aggravate the dispute “is not proper in a jurisdictional objection [… and] is a question that goes to the merits of Ukraine’s Article 279 claim”.Footnote ³⁰¹

180. The further aspect of the Russian Federation’s third preliminary objection is that the Arbitral Tribunal has no jurisdiction to rule that the Russian Federation has aggravated the dispute contrary to Article 279, which deals with the obligation to settle disputes peacefully and makes no reference to aggravation of disputes. The Russian Federation argues that Ukraine’s Article 279 claim “should be disregarded”. Since the ITLOS Provisional Measures Order itself includes a provision on non-aggravation then, in the view of the Russian Federation, the Article 279 claim is no different from the claim in respect of the alleged non-compliance with the other provisional measures.

181. Ukraine asserts that there is a duty of non-aggravation arising out of Article 279 and that the ITLOS Provisional Measures Order imposed an additional duty of non-aggravation. It views its disagreement with the Russian Federation over the interpretation of Article 279 as a merits question.

182. The Arbitral Tribunal notes that the Operative Provision in paragraph 124(1)(c) of the ITLOS Provisional Measures Order is as follows:

183. This, in the view of the Arbitral Tribunal, imposes a duty of non-aggravation on the Parties to this dispute. Moreover, the Arbitral Tribunal has already concluded that it has jurisdiction to consider allegations of non-compliance with the ITLOS Provisional Measures Order, which includes this obligation of non-aggravation.

184. Nevertheless, the Arbitral Tribunal notes that the ITLOS Provisional Measures Order, including the duty of non-aggravation, only took effect on 25 May 2019 and would not apply to the period between 1 April 2019 and 25 May 2019.Footnote ³⁰³ Accordingly, any alleged [Page 679] breach of the duty of non-aggravation in this period would have to be based on other grounds, including presumably Article 279, whose meaning and scope is in dispute between the Parties. This gives rise to a dispute over the interpretation and application of the Convention over which the Arbitral Tribunal has jurisdiction pursuant to Article 288(1) of the Convention, and which falls to be resolved at the merits phase.

185. Accordingly, the Arbitral Tribunal makes no determination on the interpretation and application of Article 279 which is a matter not of an exclusively preliminary character and joins the issue to the merits.

188. The Russian Federation’s position is that Ukraine has failed to meet the requirement in Article 283 that “parties to [a] dispute [concerning the interpretation or application of the Convention] shall proceed expeditiously to an exchange of views regarding its settlement by negotiation or other peaceful means”.Footnote ³¹¹ Specifically, the Russian Federation submits that it provided an “initial response” to Ukraine’s 15 March 2019 note verbale within ten days (on 25 March 2019), but “Ukraine proceeded to issue its claim within the week”.Footnote ³¹² Furthermore, when the Parties met for consultations on 23 April 2019, Ukraine failed to “engage meaningfully but elected to press on with a hearing on provisional measures before ITLOS”.Footnote ³¹³

189. The Russian Federation submits—citing ITLOS case law—that “while […] ‘a State Party is not obligated to continue with an exchange of views when it concludes that the possibilities of reaching agreement have been exhausted’, a genuine and good faith engagement with the other State is required, otherwise Article 283 of UNCLOS would be reduced to a mere notice requirement”.Footnote ³¹⁴

190. The Russian Federation submits that, bearing in mind the timeline of the relevant events, the precondition established by Article 283 has not been satisfied for the following reasons:

191. Ukraine derives the following propositions on what it argues to be a “well-settled”Footnote ³²⁵ interpretation of Article 283 arising from the decisions of ITLOS and Annex VII arbitral tribunals that have “regularly considered, and always rejected”Footnote ³²⁶ objections under Article 283:

192. Applying these interpretive guideposts to the present dispute, Ukraine submits that it has discharged its obligation under Article 283, while the Russian Federation failed to satisfy its own obligations under the provision.Footnote ³³¹

193. Ukraine contends that it attempted to proceed expeditiously to an exchange of views but was thwarted by the Russian Federation’s failure to respond.Footnote ³³² Ukraine relies on the note verbale that it sent to the Russian Federation on 15 March 2019 requesting consultations between the Parties on the means to resolve the dispute.Footnote ³³³ Ukraine rejects the Russian Federation’s contention that the note verbale was insufficient because it “does not express any view concerning the means for settlement of the dispute”, arguing that it had complied with Article 283’s express directive to “proceed expeditiously to an exchange of views”.Footnote ³³⁴

[Page 685] 194. Ukraine also defends the deadline of ten working days provided to the Russian Federation in its 15 March 2019 note verbale, rejecting the Russian Federation’s argument that the deadline was “clearly insufficient to form and express a view on the means of settling the dispute”.Footnote ³³⁵ Ukraine argues that the use of the term “expeditiously” (in English), “promptement” (in French) and “sin demora” (in Spanish) in the text of Article 283, as well as a 14-day time limit accompanying the use of “expeditiously” in another provision of the Convention, implies that Ukraine’s request for an exchange of views within a matter of ten days was appropriate.Footnote ³³⁶ Ukraine points to ITLOS’s conclusion that “[t]he time-limit of ten days indicated in Ukraine’s note verbale cannot be considered ‘arbitrary’ in light of the obligation to proceed expeditiously to an exchange of views”.Footnote ³³⁷ Ukraine argues that because provisional measures can only be specified after Article 283 is satisfied, “it must be possible to discharge the Article 283 obligation […] in a short period of time”.Footnote ³³⁸

195. In the specific circumstances of the case, Ukraine further contends that its deadline “[reflected] the urgency of the situation and the ongoing harm to Ukraine’s vessels and servicemen” amidst the Russian Federation’s preparations “to subject the servicemen to additional criminal proceedings in mid-April”.Footnote ³³⁹

196. Ukraine also refutes the Russian Federation’s allegations that Ukraine itself was responsible for delays by “commencing the discussion on the means of settlement of the dispute only on 15 March 2019, while the incident occurred on 25 November 2018, 3.5 months earlier”.Footnote ³⁴⁰ Ukraine submits that it “engaged in urgent and intensive diplomatic efforts” immediately after the incident and that it exercised its “sovereign prerogative to decide when those [diplomatic] avenues had failed and when it was appropriate to resort to dispute resolution under UNCLOS”. Both parties had an obligation to proceed [Page 686] expeditiously to an exchange of views and Russia did not meet that obligation.Footnote ³⁴¹

197. Having argued that Article 283 has been interpreted to impose obligations upon both parties, Ukraine emphasizes “Russia’s failure to meet its own obligations under that provision”.Footnote ³⁴² Specifically, Ukraine takes issue with the Russian Federation’s conduct after receiving Ukraine’s 15 March 2019 note verbale.Footnote ³⁴³ The Russian Federation’s reply on 25 March 2019, at the end of the ten-day deadline specified by Ukraine, “merely ‘confirm[ed] the receipt’ of Ukraine’s communication and stated that ‘possible comments on the issues raised in the note are likely to be sent separately’”, without reference to Article 283.Footnote ³⁴⁴ Furthermore, the Russian Federation did not inform Ukraine that ten days was insufficient time to form a view, particularly when in prior diplomatic exchanges, “Russia had shown itself able to respond to communications from Ukraine in less than ten days”.Footnote ³⁴⁵ Ukraine also rejects the Russian Federation’s argument that the Russian Federation’s reply on 25 March 2019 was an implicit request for additional time to provide comments.Footnote ³⁴⁶ It was only on 12 April 2019 that the Russian Federation provided its “consent for holding consultations […] on the basis of Article 283”.Footnote ³⁴⁷ Ukraine emphasizes that 17 days had passed after its 15 March 2019 note verbale “with no demonstration of any intent on the part of Russia to proceed to an exchange of views” before Ukraine initiated arbitration.Footnote ³⁴⁸ Ukraine also highlights that ITLOS had found that the Russian Federation’s response “was of such nature that Ukraine could reasonably conclude under the circumstances that the possibility of reaching agreement was exhausted”.Footnote ³⁴⁹

198. In light of the Russian Federation’s alleged failure “for a month” to engage in the mandated exchange of views, Ukraine [Page 687] contends that it “reasonably concluded that it was necessary to commence proceedings and seek provisional measures in light of the urgency of the situation”.Footnote ³⁵⁰ Ukraine notes the Russian Federation’s concession that “a State Party is not obliged to continue with an exchange of views when it concludes that the possibilities of reaching agreement have been exhausted”.Footnote ³⁵¹ Ukraine argues that the Russian Federation’s “failure to engage constructively” with “Ukraine’s request simply to exchange views” rendered “further attempts to engage with Russia […] futile”.Footnote ³⁵² Drawing a comparison to the conclusions of the Annex VII arbitral tribunal in the Arctic Sunrise case, in which the Russian Federation’s position that the “Arctic 30” were “lawfully detained” partly contributed to the arbitral tribunal’s finding that the possibilities for a negotiated settlement had been exhausted,Footnote ³⁵³ Ukraine argues that the Russian Federation’s insistence that Ukraine’s vessels and servicemen were lawfully detained “made it reasonable for Ukraine to reach the same conclusion”.Footnote ³⁵⁴

199. Ukraine submits that its conclusion was further vindicated when the Parties eventually held consultations in The Hague on 23 April 2019, at which “Russia’s attitude at the meeting confirmed Ukraine’s view that there was no possibility of reaching agreement on a means for resolving the dispute”.Footnote ³⁵⁵ According to Ukraine, at the 23 April 2019 meeting, the Russian Federation rejected Ukraine’s proposal for arbitration as a means of resolving the dispute and “then as a delay tactic proposed further consultations without being able to identify ‘any specific objectives’”; Ukraine rejects the Russian Federation’s narrative that Ukraine rejected the Russian Federation’s proposal for negotiations.Footnote ³⁵⁶ Furthermore, Ukraine argues that Article 283 neither requires parties to “contemplate modifying” their positions [Page 688] nor can it “be understood as an obligation to negotiate the substance of the dispute”.Footnote ³⁵⁷

200. Article 283 imposes an obligation on the parties to a dispute to “proceed expeditiously to an exchange of views regarding its settlement by negotiation or other peaceful means”. It is an obligation that applies to both parties to the dispute.Footnote ³⁵⁸ The Russian Federation argues that Ukraine failed to comply with this obligation. Ukraine invoked Article 283 on 15 March 2019. The Russian Federation responded on 25 March 2019. Without any further communication between the Parties, on 1 April 2019, Ukraine instituted the present arbitration proceedings and requested the prescription of provisional measures pending the constitution of an arbitral tribunal.

201. In the present case, there had been a request by Ukraine to engage in an exchange of views and a response by the Russian Federation that views would be forwarded later. There was no further exchange between the Parties before 1 April 2019. After the initiation of arbitration proceedings there were discussions starting 23 April 2019. However, the Arbitral Tribunal does not view these later discussions as relevant to the question of compliance with Article 283.

202. The question for the Arbitral Tribunal is whether the two communications between Ukraine and the Russian Federation constitute an exchange of views within the meaning of Article 283 and constitute compliance with that provision in the circumstances of this case. In the view of the Arbitral Tribunal, the determination of whether there has been an exchange of views prior to the initiation of arbitration proceedings is a fact-driven determination taking account of the circumstances of the case. Thus, the Arbitral Tribunal has to consider whether what occurred between the Parties is, in the light of the circumstances of this case, sufficient to justify the initiation of arbitration proceedings by Ukraine.

203. As pointed out above, Ukraine’s request for an exchange of views was met with a response by the Russian Federation that views would be sent later. There is disagreement between the Parties over whether this was an expression of an intention to submit views or [Page 689] merely a statement that views might be sent later. In any event, no further communication was received from the Russian Federation by 1 April 2019 when the arbitration was initiated. And, since Ukraine itself had not expressed any views on dispute settlement in its communication of 15 March 2019, there had in fact at the time of the initiation of arbitration proceedings been no exchange of views between the Parties.

204. On these facts alone, the Arbitral Tribunal does not consider that there is a basis for concluding that Article 283 has been complied with. Nor does the Arbitral Tribunal consider that there is enough to conclude that negotiations were futile when they had not really begun. The question, then, is whether there are other circumstances in the case that would justify the initiation of arbitration proceedings notwithstanding the lack of an exchange of views in accordance with Article 283.

205. At the time Ukraine’s request for consultations was sent, the Ukrainian servicemen were being detained by the Russian authorities. Much of the efforts of Ukraine up to that time had been to get access to their servicemen and secure their release. However, the circumstances were about to change and there was a growing likelihood that the criminal case against the Ukrainian servicemen would proceed to trial. Faced with these new circumstances—a growing sense of urgency in respect of the fate of the Ukrainian servicemen and the absence of a substantive response from the Russian Federation to its request for consultations under Article 283—Ukraine decided to act and initiate arbitration proceedings and request provisional measures.

206. The Arbitral Tribunal considers that Ukraine was confronted with the prospect of immediate change in the circumstances of its servicemen. There was urgency in initiating proceedings given the imminent risk to Ukraine’s rights in respect of its vessels and servicemen.Footnote ³⁵⁹ Accordingly, in the particular circumstances of this case, the Arbitral Tribunal does not see Article 283 as a barrier to its exercise of jurisdiction.