To explain why Permanent Court of the Arbitration does not Jurisdiction over the

To explain why Permanent Court of the Arbitration does not Jurisdiction over the case related to the Kerch incident occurred on 25 November 2018
Need to analysis of two points:
1. UNCLOS – it was military activities, so outside of the UNCLOS under Art. 298.1 b
2. Ukrainian claim is based on the issues of immunity of ships the territorial sea – the Issue that UNCLOS does not govern. It is only for economic zones and high seas.
Here is supporting information:
Almost three years later, the Permanent Court of Arbitration (PTS) located in The Hague is considering the incident in the Kerch Strait . Starting Monday, October 11, 2021, several meetings took place during the week. The issue of jurisdiction is considered key. In an interview with DW, James Kraska, professor of international maritime law at the US Naval War College, spoke about the complexity of this case and what the arbitration decision could be.
DW: In April 2019, Ukraine initiated the consideration of the incident in the Kerch Strait at the Permanent Court of Arbitration in The Hague, accusing Russia of violating the UN Convention on the Law of the Sea. The reason was the detention by Russian ships in the Kerch Strait in the fall of 2018 of two Ukrainian military boats and a tug with crews, which were heading from Odessa to Mariupol. How difficult is this business or is everything clear?
James Kraska: Actually, the situation is very unclear, very opaque, because several questions overlap. First, are Ukraine and Russia in a state of armed conflict? If so, then Ukraine does not have the right to freedom of navigation. The second question – if this is a peaceful situation, then the UN Convention on the Law of the Sea and bilateral agreements are working between the two countries.
Russia objects to the Ukrainian position, referring to the 298th article of the convention, according to which military actions can be excluded from arbitration. Russia believes that this is just such a case. Ukraine and the International Tribunal for the Law of the Sea (ITLA) in Hamburg, in their interim judgment, consider that it is about law enforcement, and therefore the consideration can be continued.
– And what do you lean towards as an expert?
– I would say that the situation is similar to the military activity in which Ukrainian warships were involved, as well as the ships of the Russian coast guard, which were assisted by the Russian armed forces. But the tribunal almost unanimously decided it was law enforcement. In a broader context, the risk is that if we let the Tribunal determine what is military activity and what is not, it will be able to bypass Article 298, which is a safety valve that was used not only by Russia, but by many states, including Great Britain, that have agreed to the convention on the condition that their military action will not be considered.
– What do you think is the most difficult in this matter?
– I think that this is precisely a matter of jurisdiction, that is, can PTS consider this case.
– You mentioned the International Tribunal for the Law of the Sea in Hamburg, which in May 2019 ordered Russia to return ships and crews to Ukraine. This was done a few months later as part of a detainee exchange . How can this decision affect the consideration in the Arbitration Court?
– I believe that that decision was erroneous, since in my understanding it was military action. There is a message in the legal community – to try to solve the problem, not to leave and say that this is not our jurisdiction. But the danger of this approach is that it discourages other states from participating in the reviews if they cannot rely on the military exemption under Article 298.
– From the point of view of Kiev, the matter is clear – international law recognizes Crimea as Ukrainian, which means that it can send its warships wherever it wants along its shores . Or is it not so?
– This is true, but it must be remembered that the arbitration is not authorized to consider territorial issues. And we all know that this is about a larger dispute over Crimea and territorial sovereignty after the Russian invasion. This is an increasingly broader context, but the authority of the Tribunal is limited by the law of the sea.
– What decision do you expect and when? Is it a matter of months or years ?
– I think this is a question of 8-9 months, and the arguments of Ukraine will prevail.
– Is this a completely new situation or have there been similar cases?
– There were several cases when states used Article 298, for example, in the dispute between the Philippines and China in the South China Sea (in 2016, the TCP recognized China’s claims to most of the South China Sea as illegal – Ed. ). Then the PTS judges considered similar exceptions to military activities under Article 298. While China generally lost the dispute, the court said that some of the activities were more military and therefore did not take decisions on them.
– If Ukraine wins , Kiev may want to receive compensation. Will Moscow agree to this ?
– There is always a problem in international law, whether the parties agree with the verdict and whether they will comply with it. I expect that Ukraine will gain the upper hand, perhaps it will be awarded some kind of compensation, but there is reason to doubt that Russia will fulfill its obligations.
– One of the five judges who are considering the case is a representative of Russia . How fair can the consideration be ?
– This is a well-known scientist and lawyer from Russia. In such courts, there is always the problem of whether judges can get rid of their national bias. It is difficult, but the judges often succeed. This is difficult to assess. If you look at the decision of the Hamburg court, then, perhaps, in this case, the votes of the judges will be divided four to one.

Leave a Reply

Your email address will not be published. Required fields are marked *

Previous post I need to read” people like us” by David Brooks and answer the following questio
Next post Format: · Title page including title and student name · To facilitate client use