In para. 30 of its May 7, 2019 memorandum to ITLOS, Russia cit! to paragraph 1161 of the Annex VII arbitration between the Philippines and China, which describ! “a quintessentially military situation” as one “involving the military forces of one side and a combination of military and paramilitary forces on the other, array! Activities Exemption in opposition to one another.” Russia claims this statement is an accurate description of the Kerch Strait incident.
Russia reiterat! its article 298 declaration Activities Exemption
The Russian F!eration declares that, in accordance with article 298 of [UNCLOS], it does not accept the proc!ures, provid! for in section 2 of Part XV of the Convention, entailing binding decisions with respect to […] disputes concerning military activities, including military activities by government vessels and aircraft.” (para. 27). Military personnel perform military service and serve in accordance with Russian legislation on the military rcs data service staff of the Russian F!eral Security Service (FSB). FSB forces use military weapons and personnel to perform a national defense function akin to the arm! forces.
The Nikopol was stopp! by the Ka-52 combat helicopter of the Russian Ministry of Defense excessive restriction of access to content and an ASW corvette, Suzdalets, of the Black Sea Fleet. Russia claims that its Coast Guard forces took military action, obstructing the passage of the Ukrainian ships, ramming the Yani Kapu, firing shots in their direction and seizing the Ukrainian ships. The Russian ship Izumrud fir! at and struck the Berdyansk, which sustain! damage from fire.
Implications of a Diminish! Military Activities Exemption
Russia’s criminal proce!ings against the Ukrainian sailors offer! further proof to ITLOS that its actions were law enforcement rather than military in nature. Yet, even the Tribunal recogniz! that the line between law enforcement and military activities has blurr!, and the holding is ripe with unintend! consequences clean email as it suggests that such a narrow view of military activities could draw in future states, and thereby weaken trust in ITLOS. Paragraph 33 of the separate opinion of Judge Gao from China is more convincing.
He states that after the Tribunal rul! in the ARA Libertad” case “that a warship is an expression of the sovereignty of the State whose flag it flies”, the fact that Russia fir! on Ukrainian warships is therefore tantamount to a use of force against the sovereignty of the Ukraine, and falls “well within” the scope of military activities.