Drawing the line between law enforcement and military activities at sea: the 2018 Russia-Ukraine incident near the Kerch Strait

Abstract

In 2018, Russian coast guard vessels fired upon and apprehended three Ukrainian naval vessels and the crew on board near the Kerch Strait off the coast of Crimea. The case was brought before the ITLOS for the prescription of provisional measures and is pending the decision of the Annex VII arbitral tribunal. Since Russia has issued a declaration in accordance with art. 298(1)(b) of the LOSC, excluding disputes concerning military activities from the compulsory dispute settlement, the question of whether the incident constitutes military or law enforcement activities can impact the jurisdiction of the tribunals over the dispute. The thesis evaluates the nature of the Russia-Ukraine incident by reviewing the background of the Russian-Ukrainian relationships in the maritime domain, recounting the events leading up to and following the Kerch Strait incident, examining the practice of international tribunals in dealing with the optional exceptions from the compulsory dispute settlement, and analysing the criteria put forward for distinguishing between military and law enforcement activities.