Ion GÂLEA
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”.
