Requiem for Crimea: Why Tribunals Should Have Declined Jurisdiction over the Claims of Ukrainian Investors against Russian under the Ukraine–Russia BIT

Abstract

This article examines claims filed by Ukrainian investors against Russia under the Ukraine–Russia BIT alleging violations committed in Crimea after its annexation by Russia in 2014. Six tribunals have recently rendered awards concluding that they have jurisdiction over these disputes. I will argue that the only logical way for them to come to this conclusion is to consider that Crimea is now part of Russia for the application of the BIT. Yet, Crimea is still part of Ukraine under international because the annexation was in violation of the jus cogens prohibition of the use of force. Tribunals should therefore have declined their jurisdiction over these claims. Their decisions have certainly been influenced by the unprecedented context of these proceedings, including Ukraine’s intervention recognizing the effectiveness of the occupation. Yet, such decisions are giving legal effect to Crimea’s change of status contrary to the non-recognition obligation under international law.