The Law of the Sea and Military Activities reservations

 

The United Nations Convention for the Law of the Sea (UNCLOS) establishes in article 298 that States can raise optional exceptions in regard to the applicability of one or more compulsory proceedings entailing binding decisions previewed in section 2.^[1] In other words, the Convention allows States to append certain reservations to their declarations accepting the compulsory procedures prescribed.

One of these exceptions regard disputes concerning the military activities of States and can be found in article 298(1)(b), which precludes the initiation of proceeding relating to “disputes concerning military activities, including military activities by government vessels and aircraft engaged in non-commercial service […]”^[2]. However, although the Convention prescribes this possibility, it does not clearly define what would constitute exactly a “military activity”, and what would not. As Judge Gao presents, “the term “military activities” is used but not defined in the Convention. Nor has it been dwelled upon by international courts and tribunals in case law since the entry into force of the Convention.”^[3] Therefore, as it can be expected from topics under International Law with an open field for different interpretations, this matter has already caused some controversies, and more than one description has already been given to what would constitute a military activity.

Under state practice, it seems that the threshold to determine if a certain activity is a military one, or not, is more flexible. The activities that have already been characterized as military range from routine navigation and overflight, to exercises and maneuvers, to weapons firing and testing, to surveys and surveillance.^[4] Accordingly, when illustrating military missions conducted by the United States, Pedrozo points out to the importance of analysing the ‘purpose’ of the activity:

“Because the data collected by these ships are used exclusively by the US armed forces for military purposes, their activities are not MSR [Marine Scientific Research] and are not subject to coastal State control.”

China, for instance, has classified several of its incursions in foreign EEZs as military. On one occasion, a Chinese submarine was spotted 25 miles east of Japan’s Kyushu Island. At the time, Chinese officials indicated that the submarine was engaged in “routine maritime training”^[5]. Also, in 2004, a Chinese naval vessel was found within Japan’s EEZ. When asked to explain the presence of the ship in Japan’s EEZ, Chinese officials indicated that the “ship was engaged in military activities, thus obviating the need for [prior] notification” to the Japanese government.^[6]

Furthermore, the literature generally seems to support a relatively generous interpretation of the concept.^[7] Talmon, for instance, affirms that

“there is a widespread agreement that, considering the highly political nature of military activities, the term must be interpreted widely. Military activities are not limited to actions by warships and military aircraft or government vessels and aircraft engaged in non-commercial service.”^[8]

In 2016, for the first time, a Court was called upon to deal with the military activities reservations issue, in the South China Sea Arbitration, in order to examine whether China’s military activities reservation, would preclude the Court’s subject matter jurisdiction. In that case, Philippines argued that China’s island-building activities did not fall within the jurisdictional exclusion for “military activities”, under article 298(1)(b)^[9], as the nature and the purpose of the activity were not military.^[10] The Court, accepting Philippine’s arguments, understood that the nature, the intent, and the purpose of China’s activities were indeed not military, therefore, dismissing the applicability of the reservation to this submission.

Later, when analysing a different submission, the Court found that the new matter would fall inside China’s reservation because the situation “involved the military forces of one side and a combination of military and paramilitary forces on the other, arrayed in opposition to one another.”^[11] and, in the Court’s opinion, this constituted a quintessentially military situation. Nonetheless, although finding what would be the perfect example of one, the Tribunal did not consider it necessary to “explore the outer bounds of what would or would not constitute military activities for the purposes of Article 298(1)(b).”^[12] Interestingly, one commentator critics the logic applied by the PCA by affirming that “the conflicting interpretation and application of Article 298(1)(b) by the Tribunal are obvious”.^[13]

More recently, the International Tribunal for the Law of the Sea (ITLOS) had the opportunity to deal with the matter, upon the request for the prescription of provisional measures from the Case Concerning the detention of three Ukrainian Naval Vessels, between Ukraine and Russia. In the order issued by the Tribunal, similarly to the South China Sea Arbitration, it had to be analyzed whether Russia’s military activities reservation would be triggered. Russia, referencing the understanding of the PCA, contented that the situation in hand, as the South China Sea one, constituted a quintessential military situation for having involved its military forces against Ukraine’s.[14]

The Tribunal, however, decided to take a step further than the one taken by the PCA, and stated that the evaluation cannot be restricted to an assessment of the nature of the vehicles involved^[15], but rather, it needed to consider the nature of the activity in question, taking into account the relevant circumstances in each case.^[16] Consequently, the ITLOS held that, at the core of the Russia v Ukraine dispute, lied a law enforcement operation flowing from the parties’ differing interpretation of the regime of passage through the Kerch Strait, not a military activity.^[17]

Conversely, Judge Gao in its separate opinion maintained that the ITLOS implemented a way too high threshold for the military activities exception.^[18] Moreover, one commentator suggests that the Tribunal interpreted the scope of “Military activities” quite narrowly and thereby lowered its jurisdictional bar.^[19] In this sense, it can be affirmed that not only in general, the jurisprudence in regard to military activities reservations is misty, but also, specifically, the ITLOS decision has caused some disagreement in the international community.

To conclude, as Judge Gao points out “These contradictory interpretations of article 298, paragraph 1(b), and the double standards employed in its application will certainly give rise to legal confusion between the Parties and among States.”[20] Also, those States that made declarations under article 298.1.b might have their expectations frustrated in regard to what constitutes a military activity and to the range covered by their reservations. Consequently, as it is optimistic to hope for a settlement with regard to what constitutes military activities in the Law of the Sea, it is also certain that Courts are still going to be called upon to provide further interpretations on the matter.

By Augusto Guimarães Carrijo, a student at the Federal University of Uberlândia, under the supervision of Dr. Felipe Kern Moreira, IBDMAR’s Director.

^[1] UNITED NATIONS. United Nations Convention for the Law of the Sea, 10 Dez. 1982, art. 298. Available at: https://www.un.org/depts/los/convention_agreements/texts/unclos/unclos_e.pdf.

^[2] Ibid., art. 298(1)(b)

^[3] ITLOS. Case Concerning the detention of the three Ukrainian Naval Vessels (Ukraine v Russia). Order, Separate Opinion Judge Gao (2019), para. 18.

^[4] PEDROZO, Raul. Preserving Navigational Rights and Freedoms: The Right to Conduct Military Activities in China’s Exclusive Economic Zone. Chinese Journal of International Law, v. 9, n. 1, p. 9-20, 2010. p. 13-14.

^[5] CHINA DAILY. China’s submarine no threat to Japan. China, 19 Nov. 2003. Available at: http://www.chinadaily.com.cn/en/doc/2003-11/19/content_282937.htm.  apud PEDROZO, Raul. Preserving Navigational Rights and Freedoms: The Right to Conduct Military Activities in China’s Exclusive Economic Zone. Chinese Journal of International Law, v. 9, n. 1, p. 9-20, 2010. p. 16

^[6] TKACIK, John. China’s New Challenge to the U.S.-Japan Alliance.  REPORT ASIA. 13 jun. 2004. Available at: https://www.heritage.org/node/17723/print-display apud  PEDROZO, Raul. Preserving Navigational Rights and Freedoms: The Right to Conduct Military Activities in China’s Exclusive Economic Zone. Chinese Journal of International Law, v. 9, n. 1, p. 9-20, 2010. p. 16

^[7] ITLOS. Case Concerning the detention of the three Ukrainian Naval Vessels (Ukraine v Russia). Order, Separate Opinion Judge Gao (2019), para. 19.

^[8] TALMON, Stefan. The South China Sea Arbitrations: is there a Case to Answer?. IN: TALMON, Stefan; JIA, Bing Bing. The South China Sea Arbitration: A Chinese Perspective, Oxford: Hart Publishing, p. 15-79, 2014. p. 57-58.

^[9] PCA. South China Sea Arbitration (Philippines v China), nº 2013-19893. Award (2016), para. 893.

^[10] Ibid., para. 1013.

^[11] Ibid., para. 1161.

^[12] Ibid., para. 1161.

^[13] ZOU, Keyuan; YE, Qiang. Interpretation and application of Article 298 of the Law of the Sea

Convention in Recent Annex VII Arbitrations: An Appraisal. Ocean Development & International Law, v. 48 p. 331-344, 2017. p. 340.

[14] ITLOS. Case Concerning the detention of the three Ukrainian Naval Vessels (Ukraine v Russia). Order (2019), para. 52

^[15] Ibid., para. 64

^[16] Ibid., para. 66.

^[17] Ibid., para. 72-74.

^[18] ITLOS. Case Concerning the detention of the three Ukrainian Naval Vessels (Ukraine v Russia). Order, Separate Opinion Judge Gao (2019), para. 39-41.

^[19] ISHII, Yurika. Introductory note to case concerning the detention of three Ukrainian Naval Vessel (Ukraine v. Russia Federation): Provisional Measures Order (ITLOS). International Legal Matters, v. 58, p. 1148-1166, 2019. p. 1148

[20] ITLOS. Case Concerning the detention of the three Ukrainian Naval Vessels (Ukraine v Russia). Order, Separate Opinion Judge Gao (2019), para. 44.