Attorney at Law 2014-2015 Fellow of the ITLOS-Nippon Capacity-Building and Training Programme on Dispute Settlement under UNCLOS
XV International Scientific and Practical Conference "Maritime Law and Management: Evolution and Modern Challenges" //National University “Odessa Maritime Academy”
Restrictions of freedom of navigation in certain parts of the Black Sea for foreign military and official vessels for the six months period were announced by the Russian Federation in April 2021 due to the planned military exercises. The announcement was expeditiously followed by the protest of the Ministry of Foreign Affairs of Ukraine. In the statement of protest it was expressed that the announced restrictions constitute the gross violation of the right of freedom of navigation guaranteed by the United Nations Convention on the Law of the Sea, 1982 (UNCLOS / the Convention), in particular Article 38 on the right of transit passage through an international strait .
In the pending case Dispute Concerning Coastal State Rights in the Black Sea, Sea of Azov, and Kerch Strait (Ukraine v. the Russian Federation) Ukraine, as the claimant, recognizes the Kerch Strait to be a strait used for international navigation, and the Sea of Azov to be an enclosed or semi-enclosed sea within the meaning of UNCLOS. For its part, the Russian Federation insists on its joint with Ukraine sovereignty over the Sea of Azov as historical internal waters and its exclusive sovereignty over the waters of the Kerch Strait . The different views as to the status of these maritime areas as well as the extent of applicability of the Convention in this region are still to be examined and decided by the Arbitral Tribunal in the merits phase. The final decision will definitely impact the parties’ future relations and the rights to be enjoyed by the third states in the Kerch Strait and the Sea of Azov. However, it is problematic to predict when the final decision is to be taken by the Arbitral Tribunal, as this initially depends on the submission by Ukraine of its revised version of the Memorial.
Meantime, the continuous nature of the conflict in the Black Sea Region and the rise of its tension may potentially lead to new contentious matters, which are to be addressed with the due regard to their nature and methods of their peaceful resolution. It is, therefore, important to recall the specifics of invoking UNCLOS dispute-settlement procedures in the course of tension situations at sea through the lens of the military activities exception available in the Convention.
On the whole, the dispute-settlement mechanism offered by the Convention in Part XV is based on the general international law principle of peaceful settlement of international disputes and recognized to be progressive . Section 2 of Part XV is compulsory and entails binding decision. It can be invoked without necessity to conclude any additional agreement between the parties to a dispute. Moreover, the final decision may be rendered despite nonparticipation of the other party in the proceedings [5-8]. This innovative mechanism differs from the consensual dispute settlement regime aimed at confirming legal title to a disputed land territory in possession, e.g. of a foreign state ‘which can withstand military assault or international diplomatic pressure’ [9; 704-706].
Nevertheless, the provisions of Section 2 are not absolute. Their application is limited inter alia by Article 298 of Part XV which entitles the state parties to declare optional exemption of certain categories of disputes to the compulsory procedures under Section 2. As of today, 28 state parties to UNCLOS ‘(Algeria, Argentina, Belarus, Cabo Verde, Canada, Chile, China, Cuba, Denmark, Ecuador, Egypt, France, Greece, Guinea-Bissau, Mexico, Nicaragua, Norway, Portugal, the Republic of Korea, the Russian Federation, Saudi Arabia, Slovenia, Thailand, Togo, Tunisia, Ukraine, the United Kingdom of Great Britain and Northern Ireland), Uruguay by submitting the relevant declarations have expressly excluded the disputes concerning military activities, including military activities by government vessels and aircraft, from the compulsory jurisdiction of the courts and tribunals under Section 2 .
At the same time, the validity and applicability of any exception available under UNCLOS shall not be judged by the state parties in their sole discretion but shall be thoroughly considered and decided upon by the relevant court or tribunal in each separate case [2; 5].
In order to determine the scope of jurisdiction and any exemptions thereto, the dispute has to be identified . A mere assertion of any party to the dispute on existence or nonexistence of the dispute is not sufficient for the court or tribunal to proceed . In addition, the nature and character of the dispute has to be thoroughly evaluated [3; 11]. As indicated by the Arbitral Tribunal in the South China Sea Arbitration (The Republic of Philippines v. The People’s Republic of China) ‘the nature of the dispute may have significant jurisdictional implications.
Considering the significance of the nature and character of the dispute, their evaluation has to be objective [3; 11; 12]. Thus, the factual background of the dispute has to be analyzed relying not only on application and final submissions of the parties, but ensuring due consideration of ‘diplomatic exchanges, public statements and other pertinent evidence’ as well as their relevance to the invocation of the provision of the Convention.Having the above in mind, it is important to note that Article 298(1)(b) of UNCLOS allows states parties to exclude from the compulsory jurisdiction of the Convention ‘disputes concerning military activities.’In the case Dispute Concerning Coastal State Rights in the Black Sea, Sea of Azov, and Kerch Straitthe Arbitral Tribunal clarified the term ‘concerning’ from a linguistic point of view. According to the Arbitral Tribunal, the term ‘concerning’ was recognized to limit the applicability of the provision to ‘those disputes whose subject matter is military activities’. The analysis was based on the comparison of this term with other terms used in the text of the Convention, such as ‘arising out of,’‘arising from,’ or‘involving,’ ‘which are open to a more expansive interpretation’ .
Further, following the reasoning of the Arbitral Tribunal in the South China Sea Arbitration, Article 298(1)(b) applies to ‘disputes concerning military activities’ and not to ‘military activities’ as such. In other words, for a dispute to fall within this optional exception there is a question to be answered: ‘whether the dispute itself concerns military activities, rather than whether a party has employed its military in some manner in relation to the dispute’ .
Moreover, Article 298(1)(b) expressly states that military activities need not necessarily be carried out by military vessels or aircraft but can equally be performed by: ‘government vessels and aircraft engaged in non-commercial service’ . Nevertheless, in certain situations forces used may be insufficient for the activities to be recognized as military. In these instances activities may be amounted to the law enforcement at sea. The respective example is: the Case Concerning the Detention of Three Ukrainian Naval Vessels (Ukraine v. Russian Federation) decided by the International Tribunal for the Law of the Sea (ITLOS / the Tribunal).
In either situation, things which are important to take into account are not the subjective characterization of the activities performed or equipment, forces used, but rather the actual conduct of the party and objective evaluation of such conduct, considering all circumstances related to the dispute .
The Case Concerning the Detention of Three Ukrainian Naval Vessels is one of the recent cases where the optional exception of Article 298(1)(b) was the core element reviewed judicially. The Tribunal in its final order initially addressed the case the South China Sea Arbitration where the incident 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’ and, thus, fell within the exception . Nevertheless, the arrest and detention of the Ukrainian naval vessels with the crewmembers was recognized by the ITLOS to be the law enforcement operation. On the basis of this recognition the prima facie jurisdiction of the Annex VII arbitral tribunal could be found .
To draw a line between the military and law enforcement activities in this particular case the Tribunal examined a series of events preceding the incident, including the rights of the innocent and transit passage of naval ships. According to the view of the Tribunal, the respective passage of naval ships is not per se amounts to a military activity. The transit and innocent passage regimes under UNCLOS apply to all types of ships. As the result, considering all other circumstances, information and evidences available, the Tribunal concluded that prima facie exception under Article 298(1)(b) was not applicable in the present case . The dispute was considered to be concerning the law enforcement operation rather than military activities, even though the incident involved the naval fleet and use of force .
In the caseDispute Concerning Coastal State Rights in the Black Sea, Sea of Azov, and Kerch Strait the Arbitral Tribunal, relying on the above reasoning of the ITLOS, summarized the issue as follows: ‘[...] there is no consistent State practice as to the scope of activities that are to be regarded as being exercised by “military” vessels, aircraft, and personnel. Forces that some governments treat as civilian or law enforcement forces may be designated as military by others, even though they may undertake comparable tasks. In addition, many States rely on their military forces for non-military functions, such as disaster relief, evacuations, or the reestablishment of public order’ .
Having addressed the above judicial practice, there are grounds to conclude that in general the line which allocates ‘military activities’ in the meaning of Article 298(1)(b) of the Convention seems to be blurred. In this context, the views of ITLOS judges expressed in their Declarations and Separate Opinions in the Case Concerning the Detention of Three Ukrainian Naval Vessels may be also of particular interest.
Thus, Judge Gao drew attention that not only the term ‘military activities’ is not defined in the Convention, but also the literature provides relatively wide interpretation of this concept as well as the judicial practice casts hardly any light on its applicability under UNCLOS regime .
Judge Kittichaisaree also noted that the travaux préparatoires of Article 298 of the Convention does not assist in setting the clear line. Meanwhile, it was pointed out that in practice there exist quintessential military activities at sea, including military exercises, military intelligence-gathering activities, military confrontation as well as counter reaction against such activities. The conduct from any side may comprise mixture of different aspects, both military and law-enforcement .
Further, Judge Jesus shared an overview that, despite the absence of definition of the term, there is the outline of specific activities in the Convention which may be characterized as military in nature, e.g. the activities described in Article 19(2)(a)-(f) of the Convention .
Finally, Judge Gao emphasized that Article 298 of the Convention was a carefully developed compromise between the compulsory dispute-settlement procedures and state sovereignty aiming at achieving a universal acceptance of UNCLOS .
Considering this balance reached at the time of UNCLOS adoption, Judge Gao expressed the major reservations regarding interpretation of the military activities as presented by the Tribunal in the final Order to the case .
According to the provided opinion the concept of military activities is to be interpreted taking into account the previous case law, in particularly the case “ARA Libertad” (Argentina v. Ghana). In this case ITLOS determined ‘that a warship is an expression of the sovereignty of the State whose flag it flies’ . In other words, firing on a naval vessel is equivalent to the use of force against the sovereignty of the flag state. This fact, according to Judge Gao, falls fairly within military activities and should have been the most decisive factor to the Tribunal, but was not referred to in the Order .
It is true to say that an initial law enforcement operation may eventually escalate and gain military character. In the view of Judge Gao, the incident with Ukrainian naval vessels seems to be such mixed dispute and perhaps its law enforcement element let to find the prima facie jurisdiction of the Annex VII arbitral tribunal. However, as mentioned further, the military element of the dispute should have received more attention in the reasoning of ITLOS, but the final Order omits that . Therefore, it was concluded that the approach of the Tribunal differed from the approach used by the Arbitral Tribunal in the South China Sea Arbitration .
Reverting to the compromise embodied in the Article 298(1)(b), the main concern expressed in the opinion is that the conflicting interpretation and application of this provision may create fragmentation in international jurisprudence as well as confusion between the state parties to the Convention.
The expressed concern is to a great extent justifiable and has to be taken into account in the course of future adjudications. Undoubtedly, any uncertainties in interpretation and application of the Convention have inevitable legal and political implications on the international security order and the peaceful uses of the seas and oceans. At the same time, UNCLOS regime has proved to be the only strong and comprehensive legal framework for dealing with the law of the sea disputes in the peaceful manner for the benefit of all.
Considering the above, all facts in such sensitive disputes concerning the military activities at sea have to be objectively, comprehensively and critically assessed. The assessment shall encompass intentions of the parties involved, context of their conduct, manner of the use of force together with special equipment or tactics as well as, in general, background and status of relations between the parties at time of and after the incident. Only the respective balanced approach will enable to identify the real extent of the military element in the conflict and will lead to well-founded decisions.
On the whole, as of today the judicial bodies engaged in the compulsory dispute-settlement procedures offered by the Convention have followed the above approach, demonstrating thereby independence, impartiality and neutrality in addressing in a peaceful manner the complex issues referred to them.