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Home Posts tagged "Kerch"

Did ITLOS Just Kill the Military Activities Exemption in Article 298?

Published on May 27, 2019        Author: 
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In a May 25, 2019 interlocutory decision, the International Tribunal for the Law of the Sea (ITLOS) prescribed provisional measures in the case brought by Ukraine against Russia, ordering Russia to release three Ukrainian naval vessels and 24 Ukrainian service members seized on November 25, 2018 in an incident in the Kerch Strait. During the incident last fall, Russian Coast Guard forces, operating in concert with a Russian naval corvette and a military aircraft, fired on two Ukrainian warships and a naval auxiliary as they attempted to transit the strait against the orders of Russian authorities. The ships and their crews were captured and remain in detention in Russia, charged with violating Russian criminal law.

On April 29, Ukraine filed a case with ITLOS requesting provisional measures to order their immediate release. Such measures are authorized under article 290 of the United Nations Convention on the Law of the Sea (UNCLOS) in urgent situations to prevent a real and imminent risk of irreparable prejudice to the rights of a party, in this case Ukraine. Article 290(5) permits such measures before the merits of the case so long as the Tribunal has prima facie jurisdiction in the case. The key question was whether the Russia’s operation constituted a “military activity,” and was therefore exempt from jurisdiction in accordance with a previous Russian declaration under article 298 of UNCLOS. The Tribunal determined that Russia’s operations were not a military activity, but the decision is likely to generate unintended consequences.

The ITLOS order has effectively diminished the military activities exemption which will give pause to the 27 nations that have made such declarations, including China, France, Norway, Denmark, and the United Kingdom – and in the future, most likely the United States, which intends to make such a declaration once it accedes to the Convention. (The states are identified in paragraph 11 of Judge Gao’s separate opinion). In a decision that suggests outcome-based legal reasoning to constrain Russia, ITLOS questions the viability of the military activities exemption based on any rationale.

As part of its analysis for jurisdiction, the Tribunal avoided a determination on whether there was an armed conflict between the two states, as would appear from the application of the Geneva Conventions in article 2 common, and as I suggested in an earlier piece. Instead, the ITLOS order accepts without analysis that Ukraine and Russia are interacting during a time of peace, a dubious assumption. In doing so, the Tribunal vindicates two important rights that will be welcomed by maritime powers: sovereign immunity of warships and other government vessels and the peacetime right of freedom of navigation by Ukrainian military vessels. But in reaching this conclusion, the Tribunal diminished the military activities exemption. In a departure from the broader understanding of military activities evident in the 2016 Philippines v. China arbitration, the Tribunal found that the confrontation over innocent passage was a navigational issue, rather than one concerning a military activity, because innocent passage is a right enjoyed by all ships. The Tribunal also determined that Russia’s temporary suspension of innocent passage declared conveniently to halt the transit of Ukrainian warships was a law enforcement activity rather than a military activity. These factors led the Tribunal to conclude that Russia’s actions were “in the context of a law enforcement operation rather than a military operation.”

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The Kerch Strait Incident: Law of the Sea or Law of Naval Warfare?

Published on December 3, 2018        Author: 
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On Sunday 25 November 2018 Russian coast guard patrol boats, including the Don and the 630-ton Izumrud, first intercepted and later fired on three Ukrainian naval ships near the entrance to the Kerch Strait. Two Ukrainian sailors were injured, the Ukrainian ships seized and the crews arrested. The attack has been roundly condemned in the United States and around the world.

The Russian ships intercepted two Ukrainian Gyurza-M-class artillery boats, Berdyansk and Nikopol and a tugboat, Yany Kapu, as they sailed toward the Ukrainian port of Mariupol. Russian forces seized the vessels and arrested 24 crew members. The Don twice rammed the tugboat and the Russian vessels opened fire on the two smaller Ukrainian warships. The incident occurred in the territorial sea along the approaches to the Kerch Strait, which is bordered in the east by Russia and in the west by Russian-occupied Ukrainian Crimea. The Russian government stated that its forces fired only after the Ukrainian ships violated articles 19 and 21 of the United Nations Convention on the Law of the Sea (UNCLOS) concerning innocent passage in the territorial sea.

Exploring the legal circumstances of the incident requires selection between peacetime rules of the law of the sea and the law of naval warfare, which applies to international armed conflicts. This post concludes that the actual incident on the water is part of a continuing aggression by Russia against Ukraine, in violation of the UN Charter. While unlawful as a matter of the jus ad bellum, the incident would be a lawful in bello use of force by Russia in accordance with the law of naval warfare, notwithstanding Russia’s unlawful invasion of Crimea in 2014 or subsequent unlawful treatment of the Ukrainian sailors as common criminals rather than prisoners of war. In this case the law of naval warfare is lex specialis and supplants mutatis mutandis the peacetime rules of the international law of the sea for Russia and the Ukraine.

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