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A Mixed Dispute, Different Exceptions: Comments on Case Concerning the Detention of Three Ukrainian Naval Vessels (Ukraine V. Russian Federation), Provisional Measures Order

Submitted by on 06/07/2019 – 1:31 pmNo Comment

Jing Lu, is postdoctoral researcher of Sun Yat-sen University in China. She obtained her bachelor degree from China University of Political Science and Law, master degree from the School of Law, Sun Yat-sen University, and her doctoral degree from the Faculty of Law, University of Regensburg, Germany.

Recently the International Tribunal for the Law of the Sea (hereinafter tribunal) has prescribed provisional measures ordering the Russian Federation to release three Ukrainian naval vessels and their 24 servicemen. What triggers much debate in the reasoning by the tribunal is the characterization of the dispute between Russia and Ukraine: Russia has characterized its use of force as a military operation and thus, according to Article 298(1)(b) of United Nations Convention on Law of the Sea (UNCLOS) the tribunal lacks jurisdiction over the dispute concerning military activities (Order, para. 49), but the tribunal has characterized it as a law enforcement operation (Order, para. 74) and thus the jurisdiction is not excluded. Lawyers are not satisfied with the characterization by the tribunal, because “such a narrow view of military activities could draw in future states, and thereby weaken trust in ITLOS” (Kraska), and such characterization is also at odds with the arbitral award (South China sea, para. 1161) previously rendered by the tribunal (Ishii). This paper, unlike those works mentioned above, is not focused on the distinction between a law enforcement operation and a military operation, but focused on what if the dispute is of a mixed nature, namely that it concerned not only a law enforcement operation but also a military operation.

As Judge Kittichaisaree has pointed out in his declaration, even the travaux préparatoires of article 298 of the Convention provides little help in distinguishing a law enforcement operation and a military operation, and “incidents may comprise a mixture of both military and law enforcement aspects” (Declaration, Judge Kittichaisaree, para. 4). This case is a typical one of this kind: unlike “I’m Alone” case and the Red Crusader case, in which force was used not against a warship, here the use of force by Russia was directly against naval vessels of Ukraine, which is “tantamount to use of force against the sovereignty of the State whose flag that vessel flies” ( Separate Opinion, Judge Gao, para. 33), as “a warship is an expression of the sovereignty of the State whose flag it flies” (ARA Libertad, para. 94). For this reason, the interception by Russia was, when no force was used, a pure law enforcement operation, but a new dimension was added to it when force was used against naval vessels of Ukraine. In this circumstance, it seems more accurate to acknowledge the military aspect than ignoring it. As noted by Judge Gao, “the dispute in question has, at least, a mixed nature of both military and law enforcement activities” (Separate opinion, Judge Gao, para. 50).

To some extent, it is understandable that the tribunal rejected this more accurate approach: if the tribunal had acknowledged the mixture of both military and law enforcement characters, it would have posed a conundrum to itself, as the jurisdiction over mixed disputes is not clearly prescribed in UNCLOS. Pursuant to article 298, paragraph 1(b),“military activities” and “law enforcement activities” ought to be read as distinct categories (Ibid., para. 49), so following this categorization generally leads to an all-or-nothing result: a dispute should either fall within“military activities” or“law enforcement activities”, and in the former case the jurisdiction of the tribunal is definitely excluded due to declarations made by both Russia and Ukraine (Order, paras 48-49) but in the latter one not definitely. Disputes of a mixed nature are not explicitly presumed in UNCLOS, and for such disputes the all-or-nothing style usually does not fit, except that both disputing parties exclude the jurisdiction over disputes concerning not only military activities but also law enforcement activities. That is to say, if Ukraine, just like Russia, had clearly stated that it does not accept the procedures entailing binding decisions with respect to disputes concerning law-enforcement activities in regard to the exercise of sovereign rights or jurisdiction, the all-or-nothing style would also have worked: when the tribunal lacks the jurisdiction over disputes concerning not only military activities but also law enforcement activities, one can safely infer that the jurisdiction over disputes of both military and law enforcement aspects is similarly excluded. However, the fact is that only Russia has excluded both the jurisdiction over disputes concerning military activities and that concerning law enforcement activities, while Ukraine has just excluded the former. Thus the all-or-nothing style resulted from the prescribed categorization is not intended for this case.

Nevertheless, it does not mean that a preponderance test aimed at determining which aspect is predominant, military or law enforcement, can be directly applied here, not only because “that is a task for the Annex VII arbitral tribunal to be constituted to decide in the subsequent arbitral proceedings” (Separate Opinion, Judge Gao, para. 52), but also because the application of this preponderance test requires such a precondition, namely that the tribunal can ascertain its jurisdiction over disputes concerning law enforcement activities. If both Russia and Ukraine have accepted the jurisdiction of the tribunal over disputes concerning law enforcement activities, one can easily conclude that the tribunal can exercise such jurisdiction. However, as mentioned above, Russia has not accepted the jurisdiction over disputes concerning law enforcement activities, more specifically, “disputes concerning law-enforcement activities in regard to the exercise of sovereign rights or jurisdiction” (Order, para. 49).  That is to say, prior to the application of the preponderance test, it seems necessary for the tribunal to consider whether the law enforcement operation by Russia in this case is concerned with the exercise of sovereign rights or jurisdiction: obviously, if such law enforcement operation is concerned with the exercise of sovereign rights or jurisdiction, the tribunal still needs to decide on whether this factor can exclude its jurisdiction. In the “Arctic Sunrise” case the tribunal has considered this point (Arctic Sunrise, para.45), but in this case the tribunal refused to discuss how this factor can impact on its jurisdiction.

Perhaps the tribunal refused to discuss this issue mainly because Russia itself refused to characterize the dispute as one concerning law enforcement activities and, thus, did not emphasize this exception. Nevertheless, since the tribunal chose to characterize the dispute as one concerning law enforcement activities, it should have considered whether the declaration made by Russia can also exclude its jurisdiction over a dispute concerning law enforcement activities. Undoubtedly, this is a thorny issue for the tribunal, because the tribunal has to decide on which party’s declaration should prevail, the Russian one which excludes the jurisdiction over disputes concerning law enforcement activities or the Ukrainian one which does not. If the tribunal were to find that the Russian reservation should prevail, which would mean that the declaration made by Russia has the effect of excluding the jurisdiction over a dispute concerning law enforcement activities, this would bring the case to the end. If the tribunal were to find that the Ukrainian one should prevail, the tribunal could thus ascertain its jurisdiction over a dispute concerning law enforcement activities; in this circumstance, applying the preponderance test would be unproblematic.

In conclusion, when discussing the jurisdiction of the tribunal in this case, it should be noted that the dispute is comprised of both military and law enforcement aspects, and disputing parties have declared different exceptions to the compulsory jurisdiction of the tribunal. With a view to establishing the jurisdiction in a convincing manner, it is meaningful for the tribunal to consider beyond the rigorous categorization prescribed in UNCLOS and address the thorny issue caused by the different exceptions to the compulsory jurisdiction declared by disputing parties.

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