Ion GÂLEA*

Abstract: The study presents the main elements of the ITLOS Order of 25 May 2019, by which it prescribed provisional measures sought by Ukraine, in relation with the incident that took place in the Kerch Strait on 25 November 2018. The ITLOS ordered Russia to release the three Ukrainian naval vessels and their crewmen, involved in the incident, according to its competence based on article 290 paragraph 5 of UNCLOS, according to which the ITLOS has jurisdiction only for provisional measures, while the principal jurisdiction will belong to an arbitration tribunal formed according to Annex VII of UNCLOS. The main point of interpretation of the Order was represented by the determination of the prima facie jurisdiction, as both Ukraine and the Russian Federation made reservations according to article 298 paragraph 1) b) of UNCLOS, excluding the jurisdiction of the dispute settlement mechanisms with respect to “disputes concerning military activities”. ITLOS interpreted this notion narrowly, concluding that the incident comprised use of force in the context of a law enforcement operation. Thus, the study attempts to examine the interpretative approach of ITLOS towards the notion “military activities”, including from the perspective of the possibility of the situation to be characterized as an “armed conflict”. The general conclusion that the study attempts to propose is that what the ITLOS did was not to increase the “margin” of the “military activities” exception (in order to include what appears to be a “mixed” law enforcement and military activities operation), but to “increase the margin of the determination of the prima facie jurisdiction”.

Key-words: International Tribunal for the Law of the Sea, United Nations Convention on the Law of the Sea, provisional measures, military activities, Kerch Strait incident

*Ion GÂLEA is Senior Lecturer in Public International Law and International Organizations at the University of Bucharest, Faculty of Law. He held the position of director general for legal affairs (legal advisor) within the Ministry of Foreign Affairs of Romania between 2010 and 2016. Since 2016, he is the Ambassador of Romania to the Republic of Bulgaria. The opinions expressed in this paper are solely the author’s and do not engage the institutions he belongs to.