Russia perpetrated acts of war against Ukraine in the Kerch Strait and the adjacent portion of the Black Sea on November 25 (see Eurasia Daily Monitor, November 26, 28 and 29). Moreover, during the preceding months, Russia had systematically and aggressively obstructed Ukrainian and international shipping in the Sea of Azov (see EDM, February 22, April 12, May 22 and 31, June 11 and 28, November 6).
Western and Ukrainian responses to these events have often revealed confusion about the legal status of the Azov Sea and the Kerch Strait. Misunderstandings include: referencing the international law of the sea in connection with the Azov Sea and the Kerch Strait, terming the Kerch Strait an international waterway, or proposing Western naval expeditions into the Azov Sea.
For its part, Russia has countered with arbitrary interpretations of the Azov Sea’s and the Kerch Strait’s legal statuses – interpretations that Russia alone is presently able to impose through force in the theater. Western and Ukrainian confusion, as well as Russian rejoinders, stems from legal and pseudo-legal complexities injected by Russia into what passes for the legal status of the Azov Sea and the Kerch Strait.
Whether a legal status of these two bodies of water exists is questionable. To the extent to which it exists, it is murky. Moscow has shaped it this way because Russian policies thrive on exploiting legal vacuums covered by Russian-composed legal formulae, whereby Russia de facto holds sway.
The purported legal status of these two bodies of water is codified in the Treaty on Cooperation Between the Russian Federation and Ukraine on the Use of the Azov Sea and the Kerch Strait, signed in December 2003 and ratified by the parliaments of both countries in April 2004 (text in Diplomaticheskii Vestnik, No. 1, 2004).
The content of this treaty forms Russia’s legal basis for its recent use of force in the Azov Sea and the Kerch Strait. However, Russia has been itself in breach of this and other treaties by seizing Crimea in 2014 – a move that has unilaterally overturned the hitherto agreed-upon basis for the interpretation and application of the 2003 treaty.
Under the terms of the 2003 treaty, the legal status of the Azov Sea and the Kerch Strait is (or purports to be) a purely bilateral arrangement between Russia and Ukraine. Strict bilateralism is meant to preclude (or purports to preclude) Ukraine’s recourse to international law to protect its safety and economic interests in these bodies of water and Ukrainian coastal areas.
This treaty defines the Azov Sea and the Kerch Strait as “historically internal waters of the Russian Federation and Ukraine” (the qualifier “historically internal” is meant to emphasize that they never had an international status in the past). The “Sea of Azov shall be delimited along the line of the state border by agreement between the two sides.” Similarly, “issues related to the waters of the Kerch Strait shall be settled by agreement between the sides.” There is no reference to national sectors in connection with the border in the Azov Sea, and no mention of a border in the Kerch Strait (Article 1).
Commercial ships and warships under either the Russian flag or the Ukrainian flag shall enjoy freedom of movement in the Azov Sea and the Kerch Strait. Commercial ships under third countries’ flags, headed for Russian or Ukrainian ports or returning from them, however, “may [sic] access the Azov Sea and pass through the Kerch Strait.” Whereas “warships and other non-commercial ships” belonging to third states, headed for Russian or Ukrainian ports, “may access the Azov Sea and pass through the Kerch Strait by invitation or permission from one of the Sides [Russia or Ukraine] agreed upon with the other Side.” This provides a basis for a Russian veto on any Ukrainian invitation or permission (Article 2).
Russia and Ukraine shall regulate all questions related to shipping, navigation, search-and-rescue, fishing, ecology and other matters in the Azov Sea and the Kerch Strait either on the basis of existing agreements or by concluding new ones – a potentially open-ended situation of “ex lex” or legal void here (Article 3).
Any disputes over this treaty’s interpretation and application shall be resolved bilaterally, “as well as through other peaceful means chosen by the Sides” – again, a basis for a Russian veto on non-bilateral solutions (Article 4).
The treaty’s preamble (which is non-binding) contains a double reference to the 1997 bilateral inter-state treaty (whereby Russia had legally recognized Ukraine’s territorial integrity and existing borders) and the treaty on the border between Russia and Ukraine (signed in January 2003, and not covering the Azov Sea). The preamble to the treaty on the Azov Sea and the Kerch Strait commits Russia and Ukraine to resolve any issues by peaceful means only, “jointly or by agreement” (i.e., on a bilateral basis only).
This treaty is equally revelatory through its omissions. The Russian side undoubtedly pre-programmed those omissions, and the Ukrainian side (under then-President Leonid Kuchma) caved in when signing the treaty in December 2003.
Those omissions are glaring. The treaty makes no reference to general international law, nor to the United Nations Convention on the Law of the Sea (UNCLOS). The Russian-Ukrainian treaty does not mention any national maritime sectors or exclusive economic zones. Nor does it provide for any third-party arbitration of disputes, other than purely bilateral settlement. The treaty carries no time frame of its validity, no expiry date and no procedure for treaty termination. It is, in Russia’s intention, a treaty that should bind Ukraine in perpetuity to arrangements inherently favoring Russia and which Russia can further interpret at will through the threat or actual use of force, as demonstrated recently.
Facing this situation, the Ukrainian government and public circles are now debating whether they can unilaterally denounce the 2003 bilateral treaty with Russia and embrace international maritime law instead.
Ukraine had signed the treaty on “Cooperation in the Use of the Azov Sea and the Kerch Strait,” under the threat of forcible Russian seizure of the Kerch Strait’s navigable channel from Ukraine. This took place during a period when the United States and NATO were distancing themselves from Ukraine (Kolchuga affair; Melnychenko affair; isolation of then-President Kuchma at NATO’s 2002 and 2004 summits; NATO’s refusal to hold consultations with Ukraine over the situation in the Kerch Strait).
Exploiting that context, Russian President Vladimir Putin ordered and personally oversaw, in the autumn of 2003, the construction of a dam across the Kerch Strait, so as to connect the strait’s Russian mainland to Ukraine’s Tuzla Island in the middle of the strait. Tuzla belonged to Ukraine as a consequence of Crimea belonging to Ukraine. The connecting dam would have transformed Tuzla from a Ukrainian island into the tip of a promontory of the Russian mainland (Tuzla Spit). And that change would have pushed the Kerch Strait’s median line toward the Ukrainian shore, leaving the strait’s navigable channel, Kerch-Yenikale, on the Russian side. Ukraine responded by placing troops on Tuzla Island and positioning ships around it. The bumping and shoving of Russian against Ukrainian ships in 2003 around the island was a foretaste of Russia’s ramming of Ukrainian ships on November 25, 2018 (see EDM, November 26, 28, 29).
President Kuchma ended the confrontation in 2003 through an undeclared compromise: accepting terms disadvantageous to Ukraine throughout the treaty to be signed, in exchange for Russia stopping the dam’s construction and accepting the continuation of Ukrainian sovereignty on the Kerch-Yenikale navigable channel.
That implicit tradeoff reflected Ukraine’s top priority of guaranteeing access for Ukrainian and third countries’ commercial shipping to and from Ukrainian ports on the Azov Sea via the Kerch Strait. From 2003 until 2014, Ukraine continued to be in charge of security, management, navigation and pilotage on the Kerch-Yenikale navigable channel. On the other hand, Ukraine acquiesced to leaving the situation of the Azov Sea in a limbo, to Russia’s potentially unlimited advantage.
The maritime border that the 2003 treaty foresaw between Russia and Ukraine was never drawn in the (putatively shared) Sea of Azov. Since the treaty left the maritime border delimitation subject to follow-up negotiations, Russia stonewalled those negotiations indefinitely. This was predictable, given Russia’s track record of dragging out border delimitation and demarcation negotiations in other former Soviet territories. And it was all the more predictable in the case of the Azov Sea, since the 2003 bilateral treaty envisioning a maritime border made no reference to national sectors or economic zones.
This situation currently “allows” (“legally” under the treaty) Russian warships to roam freely throughout the Azov Sea, stop and search vessels anywhere in that sea, hold naval exercises as they choose, declare temporary exclusion zones in connection with those exercises, and come into the closest proximity to Ukrainian shores, without technically violating the bilateral treaty and amid a vacuum in terms of international law.
The content of the 2003 treaty forms Russia’s pseudo-legal basis for its recent use of force in the Azov Sea and the Kerch Strait. However, Russia itself has been in breach of this and other treaties (e.g., the 1997 inter-state treaty with Ukraine) by seizing Crimea in 2014. Through that unilateral border-changing move, unrecognized though it is, Russia has de facto overturned the previously agreed-upon basis for the interpretation and application of the 2003 treaty.
With Russia’s seizure of Crimea from Ukraine, the Kerch Strait – including the Kerch-Yenikale navigable channel – has become de facto Russian on the Crimean side as well. The Russian government now claims that the strait and the channel are a Russian internal waterway (Kommersant, November 24).
Moscow asserts that Ukraine’s consent was not required for Russia’s construction of the Kerch Strait Bridge, since the strait’s Crimean shore became Russian as well. Russia ignores the international non-recognition of its annexation of Crimea.
Ironically, Tuzla Island has been transferred into the possession of Russia’s central government by the Crimean “republic’s” authorities. The latter had “inherited” Tuzla from Ukraine in March 2014, and the transfer technically achieves the goal that Moscow had pursued in 2003. The transfer in April of this year is supposed to facilitate the completion of the construction of the Kerch Strait Bridge (Interfax, Ukrinform, April 17, 18, 2018).
Moreover, Crimea’s annexation has dramatically lengthened the Russian-held coastline of the Azov Sea, correspondingly shortening Ukraine’s coastline of that sea. Thus, any negotiation to draw a border in the Azov Sea (if Russia were to allow such negotiations to begin, instead of stonewalling them) would heavily favor Russia at the expense of Ukraine.
The article above is reprinted from Eurasia Daily Monitor with permission from its publisher, the Jamestown Foundation, www.jamestown.org.