International Tribunal for Law of the Sea (ITLOS) issued a provisional measures order to Russian Federation to release three Ukrainian naval vessels and their servicemen on 25 May 2019. In deciding that the Annex VII arbitral tribunal would have prima facie jurisdiction as required under Article 290(5) of United Nations Convention on Law of the Sea (UNCLOS), the Tribunal held that the case was not “disputes concerning military activities” as provided under Article 298(1)(b) (see Kraska).
This is an important decision considering that there is no settled definition of “military activities” which allows state parties to be exempted from the compulsory dispute settlement procedure under UNCLOS. This is the first time that ITLOS held its interpretation on the former half of Article 298(1)(b) (while the latter half was dealt in the provisional measures order in Arctic Sunrise, para.45), and South China Sea arbitration case of 2016 before Annex VII Arbitral Tribunal remains the only precedent where a third-party dispute settlement institution held its interpretation of the same text.
There seems to be a common understanding that in this order, the Tribunal interpreted the scope of the “military activities” under Article 298(1)(b) quite narrowly, if not diminished, and thereby lowered its jurisdictional bar. While assessments of this decision have already been posted (see Kraska, Schatz), this post adds some comments on the legal framework that the Tribunal relied upon.
One thing that should be kept in mind is that, since it is a provisional measures order, it suffices if the provisions invoked by the applicant prima facie appear to afford a basis on which the jurisdiction of the Annex VII arbitral tribunal could be founded, and need not definitively satisfy itself that the tribunal has jurisdiction over the dispute (Order, para. 36; see also ARA Libertad, para. 60). Judge Lijnzaad’s commented that the questions of the applicable law and of whether the issues raised are solely to be understood as being related to the interpretation and application of UNCLOS were left to Annex VII arbitral tribunal at a later stage, as they are “matters that go well beyond the prima facie analysis of a request for provisional measures (Declaration, Lijnzaad, para.8).”
The Tribunal indeed dared to disregard any of the larger context of the dispute, including Ukraine’s characterization of the present incident as an “attack,” an “act of aggression,” and “unlawful use of force” in a number of occasions outside of the courtroom (see Russia’s Memorandum, para.32 and Kraska). This part deserves careful examination. Article 298(1)(b) applies to “disputes concerning military activities” and not to “military activities” as such (South China Sea, para.1158). Nonetheless, the standard of the prima facie jurisdiction is not the main topic of this Post. It will focus on the analysis of Tribunal’s interpretation of Article 290(1)(b) in the following part.
The Distinction between Military and Law Enforcement Activities
In its core, the Tribunal relied on “the distinction between military and law enforcement activities,” which “must be based primarily on an objective evaluation (Order, para.66. Emphasis added).” This is a weak distinction in two respects.
First, the concepts “military” generally refers to the state’s national security interests against external armed threats. The determination of role, scope and nature of military activities is reserved to each state. It inherently involves the assessment of the intent and purpose of the activities (see Separate Opinion, Judge Gao, para. 22). The subjective versus objective distinction is neither sufficiently evident nor the Tribunal seems to have make a clear-cut distinction, shown in the adverb, “primarily.”
Second, there is a logical leap between the text of Article 298(1)(b) and “the distinction between military and law enforcement activities,” which the current decision does not fill in. While these two are often contrasted with each other, they are by definition not mutually exclusive. Judge Kittchaisaree rightly commented that “[c]ertain incidents may comprise a mixture of both military and law enforcement aspects (Declaration, Judge Kittchaisaree, para. 4).”
A number of states have made declarations to certain provisions concerning law enforcement in respect of certain naval operations. One of the most controversial issues is the passage of warships in the territorial sea (see Damrosch, p.274). It thus requires a stretch to decide that “Parties’ differing interpretation of the regime of passage through the Kerch Strait” is “not military in nature (Order, para.72).”
The two are neither collectively exhaustive. If an operation is denied to be a military activity, it does not mean it is counts as law enforcement subject to tribunal’s jurisdiction. This distinction was initially introduced during the negotiation of the convention (Virginia Commentary, vol. V, para. 298.34), but the wording was eventually amended to the current version. The ITLOS’s previous provisional measures order clarified that “law enforcement” under Article 290(1)(b) is limited to the ones provided under Article 297(2) and (3) (i.e., marine scientific research and fisheries) (Arctic Sunrise, para.45). Relying on this distinction thus only leads to an obscure result.
Article 298(1)(b) was indeed adopted after a complex negotiation during the Third Conference. While some delegations claimed that activities by naval vessels should not be subject to judicial proceedings in which some military secrets might have be disclosed, doubts were raised to endorse sovereign immunity generally as the very purpose of international tribunals is to deal with disputes between sovereign states (Virginia Commentary, vol. V, para. 298.33). The compromise was to insert this clause. Its wording is neutral, but taking into account travaux preparatoire, there seems to be a common understanding that the term be interpreted widely considering the highly political nature of military activities (see Klein, p.291; Talmon, p.46). The current order went on to the exactly opposite way.
A Comparison with the South China Sea award
The present order is at odds with the South China Sea arbitration award. Not to mention, the Tribunal is never required to even consider what other institution held in another case. However, since South China Sea’s interpretation also invited discussions, it deserves a brief comparison.
The Annex VII arbitral tribunal considered the applicability of 298(1)(b) to largely two groups of incidents: (1) China’s reclamation activities on certain maritime features and (2) the stand-off between the Philippines’ marine detachment on Second Thomas Shoal and Chinese military and paramilitary vessels. With regards to the former affair, the arbitral tribunal mainly relied on subjective characterization of the respondent state, when it looked at the high officials of China characterized its construction activities as civilian use. It thus did not “deem activities to be military in nature when China itself has consistently resisted such classifications and affirmed the opposite at the highest level (South China Sea, para.938).” With regards to the latter incident, on the other hand, the tribunal stated that the stand-off situation represented “a quintessentially military situation, involving the military forces of one side and a combination of military and paramilitary forces on the other, arrayed in opposition to one another (ibid, para.1161).” In fact, the Philippines claimed that the case was “not military in nature (ibid, para.1131),” but “rather, the activities are more appropriately considered law enforcement activities (ibid).” It is not difficult to see that there is quite a distance between this judgment and the current order.
It would go too far to claim that all naval activities are now excluded from the military activities exception. The scope of the decision was limited to the assessment of the nature of the Ukrainian naval vessel’s passage and the Russia’s use of force against it. Indeed, the current case presents a unique composition that neither state, including the one which took forcible measures, did not claim that the measures itself was not of military nature. However, the reasoning of the Tribunal did not show the threshold of Article 290(1)(b) in a clear manner, and even worse, may bring about unintended consequences (see Kraska).
The characterization of the action taken by Russia encompasses different sets of laws such as jus ad bellum, peacetime law of the sea and law of armed conflict. It may not be an exaggeration to say that the logical structure that the Tribunal relied and its potential ramifications may further push fragmentation (see McLaughlin’s comment). In order to avoid such an unintended ramification, the future Annex VII arbitral tribunal is expected to set a reasonable limit of “dispute concerning military activities.”