Professor Harold Hongju Koh Represents Ukraine Against Russia’s Law-of-the-Sea Violations

Sterling Professor of International Law Harold Hongju Koh appeared on behalf of Ukraine before the Permanent Court of Arbitration in a merits hearing in the Peace Palace in The Hague, The Netherlands. The hearing was held from Sept. 23 to Oct. 4.

The case, “Dispute Concerning Coastal States Rights in the Black Sea, Sea of Azov, and Kerch Strait (Ukraine v. Russian Federation),” was filed by Ukraine in September 2016 before a five-arbitrator panel led by South Korean judge Jin-hyun Paik, former President of the International Tribunal for the Law of the Sea, and other international arbitrators from Algeria, Mexico, Russia, and the United Kingdom.  

“As part of a broader rule of law challenge to Russia’s violations of international law, Ukraine has challenged Russia’s legal violations before a number of international dispute-settlement tribunals including the International Court of Justice, the European Court of Human Rights, the World Trade Organization, the International Tribunal for the Law of the Sea, and numerous arbitral panels,” Koh said. 

Koh is Ukraine’s counsel in four of these cases. He has represented and advocated for Ukraine since 2016. Ukraine brought the case under Annex VII, the dispute-settlement provisions of the U.N. Convention on the Law of the Sea, which permits a five arbitrator panel to hear claims regarding Russian law of the sea treaty violations in and around Crimea, which Russia illegally occupied in 2014.

After a jurisdictional hearing in 2019 that led to a 2020 award on preliminary objections narrowing the issues that could be argued, the latest partially public hearing addressed the merits of Ukraine’s law of the sea claims. 

Ukraine opened with four days of legal arguments and factual proofs regarding Russia’s violation of free navigation and transit passage rights in the Sea of Azov, Russia’s spoiling of the maritime environment in those three waterways, and Russia’s failure to exercise due diligence in their handling of priceless underwater cultural heritage.

Ukraine also rejected various objections to jurisdiction and admissibility interposed by Russia, some of which had been raised earlier but deferred to the merits, and other objections newly raised in the intervening years. Russia responded over four days; each country then had a final day to respond before the hearing concluded on Oct. 5, 2024. A final judgment is expected in 2024. 

Ukraine’s Co-Agent Anton Korynevych, Ambassador-at-Large, Ministry of Foreign Affairs of Ukraine, stated during the public part of the proceeding on the opening day, “Russia wants to take the Sea of Azov and Kerch Strait for itself, and so it has built a great gate at the entrance to keep international shipping out while allowing small Russian river vessels in.” 

The gate referenced is a $3.5-billion, 12-mile bridge built by Russia across the Kerch Strait after the annexation of Crimea to help sustain Russia’s military operations in southern Ukraine.

Also appearing along with Koh were Ukraine’s Co-Agent, Oksana Zolotaryova, Director, Department of International Law, Ministry of Foreign Affairs of Ukraine; Marney Cheek, Jonathan Gimblett, and Nikhil Gore of Covington & Burling; and Professors Alfred H.A. Soons and Jean-Marc Thouvenin.

Koh is the Sterling Professor of International Law at Yale Law School, where he has taught since 1985, and served as Dean from 2004­ to 2009. He is one of the nation’s leading experts in public and private international law, national security law, and human rights. From 2009 to 2013, he served as the 22nd Legal Adviser of the U.S. Department of State in the Obama Administration, and in 2021, he returned to the Office of the Legal Adviser at the start of the Biden Administration as Senior Adviser, the senior political appointee in that office. He is the author of many books and articles, most recently The National Security Constitution in the 21st Century (Yale University Press 2024). He has been given numerous awards for his human rights work, including most recently, the 2023 Raphael Lemkin Rule of Law Guardian Medal from Duke Law School.