Textbook lessons in lawfare from Crimea's aftermath.
[UPDATE: Part III of this trilogy is now available here.]
In the first dispatch of this series on the expansion of Russian-Ukrainian conflict through international litigation, The Westphalian examined the roles which could be played by the UN's highest judicial body, the International Court of Justice. The present report considers other fora available to these States for direct legal confrontation pursuant to multilateral treaties.
Secondary Fronts: Hamburg, Strasbourg, and Geneva
In addition to the conventions discussed in the first part of this series, other such treaties include substantive obligations which appear to have been breached in the conflict between Russia and Ukraine. Some of these, most notably the UN Charter, do not provide any means of unilaterally initiating dispute settlement proceedings in response to their breach. One multilateral treaty which does establish such mechanisms is the UN Convention on the Law of the Sea (UNCLOS). In respect of Russia's March 2014 seizure of the Ukrainian flagship Slavutych in the port of Sevastopol, scholars such as Prof. Alex Oude Elferink have observed that, according to both customary international law and UNCLOS, "these ships enjoy immunity and I cannot see any basis on which the Russian Federation could take over these ships."
In January 2016, Ukrainian Deputy Foreign Minister Olena Zerkal laid out four grounds for a successful UNCLOS claim against Russia: (i) seizure of mineral reserves in the Ukrainian continental shelf; (ii) unlawful fishing and fisheries regulation near Crimea; (iii) unilateral construction of the Kerch Strait Bridge, pipelines, and cables linking Crimea and Russia, with associated blocking of vessel transit; and (iv) nonconsensual research of archeological and historical sites in the Black Sea. Some have speculated that Kiev is prepared to initiate arbitration over these claims, but Kiev is undoubtedly considering a number of hurdles beyond Russia's almost certain non-participation.
While the declaration filed by Russia upon accession to UNCLOS provides that an ad hoc international arbitration tribunal would in principle have compulsory jurisdiction over its disputes regarding the interpretation or application of the Convention, Russia has availed itself of one of the limited optional exceptions to compulsory jurisdiction: "disputes concerning military activities, including military activities by government vessels and aircraft engaged in non-commercial service". Putting aside that the Crimean takeover was implemented by Sevastopol's 'self-defense' forces rather than unambiguously Russian troops, this jurisdictional carve-out in UNCLOS Article 298(1)(b) has been construed broadly in State practice. As noted by Philippe Gautier, Registrar of the International Tribunal for the Law of the Sea (ITLOS), Argentina's reciprocity-minded removal of its identical reservation in 2012—mere days before initiating arbitration over Ghana's seizure of the frigate ARA Libertad—suggests its concern that even the goodwill visit at the heart of that incident could qualify as "military activit[y]".
Another hurdle to at least some of these claims is that jurisdiction under UNCLOS excludes per Article 298(1)(a)(i) "the concurrent consideration of any unsettled dispute concerning sovereignty or other rights over continental or insular land territory". As continental shelf rights derive ipso facto from sovereignty over adjoining land, a tribunal constituted in this matter would certainly consider whether a decision on Russia's seizure of offshore oil and gas resources would impermissibly prejudge the legality of Russia's annexation of Crimea. Variations on this theme have faced other tribunals in the pending South China Sea arbitration between the Philippines and China, as well as the Chagos Marine Protected Area arbitration that concluded last year between Mauritius and the United Kingdom.
The same calculus, however, may not apply to claims regarding fisheries. The right of coastal States to exclusively use and regulate fisheries within 200 nautical miles of their land territory derives not from natural prolongation of land mass or other automatic entitlement based on sovereignty, but from proclamations in accordance with customary international law as reflected in the Convention. If such claims proceed, they may mark the first application of Annex VIII to UNCLOS, as both Ukraine and Russia have issued their prior standing consent to the establishment of tribunals with the specialised fisheries expertise prescribed by that provision of UNCLOS.
The potential claims regarding construction in the Kerch Strait and associated navigational blockage in the Sea of Azov calls to mind the 24 December 2003 Agreement concluded between Moscow and Kiev, which stipulated both the Azov and Kerch waters as historically internal waters of the two States. The parties have undertaken cooperative obligations in Article 3 of the Agreement as regards activities related to navigation, and dispute settlement obligations in Article 4 which appears to recognise the possibility of adjudicatory options chosen by the parties, such as through UNCLOS. The prospect of an UNCLOS arbitration tribunal interpreting the conformity of Russian construction in light of the 2003 Agreement is specifically envisaged in UNCLOS Article 288(2), which provides such tribunals with "jurisdiction over any dispute concerning the interpretation or application of an international agreement related to the purposes of this Convention, which is submitted to it in accordance with the agreement".
A principal concern for Kiev in bringing claims related to the Kerch Strait or Sea of Azov is whether, by virtue of the 2003 Agreement's identification of such waters as internal or otherwise historically exclusive to Ukraine and Russia, it has conceded that UNCLOS is inapplicable to disputes concerning these waters. Yet while the narrow geography of the Kerch Strait would appear to satisfy the geographic requirements for declaring the Sea of Azov as 'internal waters' under UNCLOS Article 10, this provision applies only to bodies of water which are coastal to a single State. Arguments as to the historical status of these waters as internal to the USSR become further muddled by the fact that Ukraine had exercised autonomy in this area of affairs at least since 1982, when it signed UNCLOS in its own capacity. This instance therefore calls to mind not only the issue of plurilaterally internal bays studied by the International Law Commission in 1962 and addressed by Croatia and Slovenia in a pending arbitration and by El Salvador, Honduras, and Nicaragua before the International Court of Justice (ICJ) in the Gulf of Fonseca case, but also the issue of sub-federal autonomy vis-à-vis UNCLOS, as raised in the Atlanto-Scandian Herring arbitration brought against the EU by Denmark in respect of the Faroe Islands.
It would seem sensible for Kiev to accompany any initiation of arbitration with a request for provisional measures, which would be filed before ITLOS in Hamburg, in accordance with UNCLOS Article 290(5). However, this raises at least two concerns. First, Kiev may balk at the possibility of ITLOS refusing to grant provisional measures because the case fails on jurisdictional grounds prima facie. While the Southern Bluefin Tuna case against Japan shows that arbitral tribunals are not bound by the initial jurisdictional findings undertaken by ITLOS during the provisional measures phase, such a finding would undoubtedly hold some persuasive value for the arbitral tribunal in its deliberations. Second, some of the claims raise the question of the urgency required to justify an Order for provisional measures. Specifically, the above said claims regarding the construction of the Kerch Strait Bridge (due to be completed in 2019) may recall the ICJ's decision in the Passage through the Great Belt case, in which the Court found urgency lacking because the case was expected to conclude on the merits prior to the obstruction of Finnish navigation in the Baltic Sea by Danish bridge construction.
Beyond the law of the sea, other multilateral treaty frameworks may offer institutional dispute settlement mechanisms which bear upon the conflict between Russia and Ukraine.
The European Convention on Human Rights, which enjoys ratification by every territory in geographic Europe other than Belarus, is unique for establishing an historically effective court to adjudicate claims submitted by both States and their nationals. The European Court of Human Rights, based in Strasbourg, is currently administering three applications lodged by Kiev against Moscow pursuant to Article 33 of the Convention.
The first of these cases concerns the events leading up to and following the assumption of control by Russia over Crimea and subsequent developments in Eastern Ukraine through summer 2014. The second case concerns the alleged abduction of three groups of children in Eastern Ukraine and their temporary transfer to Russia on three occasions during summer 2014. Another case concerning the alleged ill-treatment of a Ukrainian Tatar national in Crimea during Russian criminal proceedings was withdrawn by Kiev because of similarity to an application raised by the individual in his own capacity before the Court.
In the most recent of its three active applications, Kiev argues that Moscow's effective control over Crimea and de facto control over Donetsk and Luhansk entail responsibility for enforced disappearances and arbitrary arrests of activists and Tatars, use of force and torture by armed groups, search and seizure of churches and detention of priests as hostages, suspension of Ukrainian law enforcement and judicial authorities, restriction of media, hate speech, expropriation of property, elimination of education in Ukrainian and Tatar languages, and rescission of voting rights.
Given the relatively limited number of instances in which the inter-State mechanism has been employed in Strasbourg (which includes as well litigation initiated against Russia by Georgia in 2007), Kiev's use of the mechanism has been characterised by some as a politicised misreading of its intended purpose of addressing systematic human rights abuses. Even reduced to a political tool, however, the use of the Convention's inter-State dispute settlement procedure has helped to spotlight critical threats to the strong compliance record historically associated with the European Court of Human Rights. In particular, the Duma requested the Russian Constitutional Court in July 2015 to review the legality of Moscow's unconditional implementation of decisions by Strasbourg. After the Constitutional Court found that direct implementation of international human rights judgments comported with Russian law, President Vladimir Putin signed a bill to nullify rulings of international bodies if declared unconstitutional. Observers have drawn parallels to a newfound reluctance to implement Strasbourg rulings in other capitals, notably London.
While such actions pose grave systemic challenges to the utility of international adjudication, domestic courts lack institutional incentive to remain idle during disputes arising from contested territory. In some instances, such courts have contributed to the interpretation of international law. In particular, a 1997 decision by the Latvian Constitutional Court regarding former Soviet forces held that territory cannot be lawfully acquired through the stationing of troops. In respect of separatist referenda, the Canadian Supreme Court's 1998 decision regarding the potential secession of Quebec found that even where a fundamental right of self-determination could be said to exist, international law would not necessarily trump domestic legal requirements. As related to the Crimean referendum, alleged human rights violations and electoral fraud may further call into doubt the utility of self-determination as a measure of internationally lawful secession in the absence of domestic legal support.
In this light, Ukraine's cases before the European Court of Human Rights reinforce the enduring link between territorial conflict and human rights, and ensure that regional security remains at the forefront of issues confronting Strasbourg this year. Yet human rights law can permeate other inter-State judicial processes in a diffuse manner that finds victims on both sides of a bilateral conflict, including the human rights of Russian persons targeted by sanctions. In the prolific world of international dispute settlement, such claims by nationals may run parallel to, and interact with, Moscow's challenge of these sanctions before inter-State fora such as the WTO.
Following statements in August 2014 by Russian Permanent Envoy to the EU Vladimir Chizhov that economic sanctions imposed on Russia unilaterally by other WTO Members appeared to violate international trade law, Russian Minister of Economic Development Aleksey Ulyukaev announced that Russia would launch a claim before the WTO Dispute Settlement Body. President Putin subsequently referred to these sanctions as a rejection of WTO principles of equal access to goods and service markets. Statements by European Council President Herman van Rompuy and US President Barack Obama have made clear that their sanctions were rooted in Russia's continuing breaches of international law in respect of Ukraine.
While the status of preliminary stages of Russia's legal action were not made public—and although it was reported in June 2015 that Moscow had suspended any such action—its recourse to the WTO Dispute Settlement Body remains available and merits briefing from a geostrategic perspective. It is worth noting from the outset that one of the premises on which the WTO and other Bretton Woods structures were established in the post-World War II years was that global economic interdependency would displace traditionally political forms of confrontation among States. In the event of military conflict, Article XXI of the WTO's General Agreement on Tariffs and Trade 1947 (GATT) refers to security-related powers through which States may suspend their trade obligations.
However, GATT Article XXI has never been fully considered by the WTO Dispute Settlement Body. It was referenced informally by the EU and US to justify sanctions relating to conflict in the Falkland Islands and Yugoslavia, and was raised once before a WTO Panel as a US defence of its sanctions against Nicaragua. However, the Panel convened in that instance failed to consider the validity of this argument, and its 1986 Report was ultimately not adopted. This provision states in relevant part:
Article XXI (‘Security Exceptions’)
Nothing in this Agreement shall be construed [...]
(b) to prevent any contracting party from taking any action which it considers necessary for the protection of its essential security interests [...]
(iii) taken in time of war or other emergency in international relations; or
(c) to prevent any contracting party from taking any action in pursuance of its obligations under the United Nations Charter for the maintenance of international peace and security.
While some commentators have taken the view that WTO Members have an absolute right to rely on these security exceptions to justify actions violating WTO obligations, others have interpreted these as qualified exceptions which should not be read to undermine the trade liberalisation function of the WTO framework. This underlies the concern among some diplomats that the acceptance of GATT Article XXI as justifying wide-ranging unilateral sanctions against Russia could unravel global mutual trust in a legal framework governing 98% of international trade.
As a potential alternative to the Article XXI defence, Prof. Diane Desierto has outlined arguments that EU and US sanctions are internationally lawful countermeasures against Russia's failure to observe a March 2014 Resolution by the UN General Assembly Resolution, which calls upon all States to refrain from actions that modify the borders or otherwise disrupt the national integrity of Ukraine. Under general international law as codified in Article 49 of the UN International Law Commission Articles on the Responsibility of States for Internationally Wrongful Acts (and parallel language in Article 51 of the Draft Articles on the Responsibility of International Organizations), the EU or US could defend itself against a Russian WTO claim by persuading that it has been personally "injured" by Moscow's breach of this General Assembly Resolution. Yet the relatively indirect nature of injury in the present case raises many unsettled questions regarding the lawfulness of responsive sanctions, and the citation of General Assembly Resolutions (rather than those of the Security Council) as a security-related justification for legal actions may appear at odds with the distribution of competences under the UN Charter. Nevertheless, the WTO Dispute Settlement Body has proven to be a receptive forum for arguments from beyond the four corners of the WTO Agreements, as the Appellate Body made clear in its first-ever decision ("the [GATT] is not to be read in clinical isolation from public international law").
Russia's determination thus far that it has little to gain from directly pursuing a legal claim regarding economic sanctions has left a normative vacuum with broader repercussions. The trade relationship between the EU and Russia has been further complicated by the legal haziness of unilateral sanctions, and Russian persons and entities were hit by wide-ranging Ukrainian sanctions in September 2015. Russian economists have reportedly undertaken studies reassessing Russia's WTO membership.
The next chance for normative clarity on the relationship between sanctions and international trade dispute settlement appears to be a WTO challenge by Turkey against current Russian sanctions, which were issued during the diplomatic fallout of Ankara's November 2015 downing of a Russian bomber that had allegedly entered Turkish airspace. President Putin subsequently signed a decree authorising sanctions on the basis of ensuring Russia's national security. If the WTO case proceeds beyond the preliminary stages, it may be unlikely for Russia to marry this rationale to a GATT Article XXI defence, since by dropping its own WTO challenge to EU and US sanctions it has demonstrated its strategic comfort with Article XXI ambiguity.
Rather, Moscow could look instead to the aforementioned use of countermeasures under general international law, in which direct injury to its air force in the factually contentious November Incident might provide a justifiable impetus for sanctions. In the peripheries of both Turkish airspace and WTO law, Russia may find ambiguity to be legally preferable.
 See further Thomas D. Grant, Aggression against Ukraine: Territory, Responsibility, and International Law (Palgrave Macmillan 2015).
 Cf. UNCLOS Art. 77(3) ("The rights of the coastal State over the continental shelf do not depend on occupation, effective or notional, or on any express proclamation").
 See further Martin Dawidowicz, ‘Public Law Enforcement without Public Law Safeguards? An Analysis of State Practice on Third-party Countermeasures and Their Relationship to the UN Security Council’, British Yearbook of International Law, vol. 77(1) (2006).