About the legal status of Kerch Strait
The legal status of Azov Sea and Kerch Strait has been regulated by the Agreement between the Russian Federation and Ukraine on Cooperation in the Use of Azov Sea and Kerch Strait, which was signed in Kerch on December 24, 2003 (hereafter – "the Agreement"). According to the Agreement Azov Sea and Kerch Strait are inland waters of Ukraine and Russia. The Agreement came into force after its ratification of the both sides and came into operation from April 23, 2004.
According to the Article 2 of the Agreement, merchant vessels and navy vessels, as well as other government vessels, sailed under the flag of Ukraine or the Russian Federation, which are operated for non-commercial purposes, thrive on freedom of navigation in Azov Sea and Kerch Strait.
Thus, as merchant vessels, as well as navy vessels, that are sailed under the flags of Russia and Ukraine have the right to proceed unhampered through Kerch Strait without the necessity to go through any permitting procedures.
Delimitation of Azov Sea
According to the Article 15 of the Convention, if the shores of two governments are situated one against another or adjacent to each other, neither the first nor the second government has the right to extend its territorial sea after the median line, drawn in such way that each its point is equally spaced from the nearest points of initial lines, from which the width of the territorial sea of each of these two governments is measured, unless the contrary agreement is concluded between them. However, the abovementioned provision is not applied if in view of the historically established legal grounds or other special circumstances it is necessary to demarcate the territorial seas of two governments in a different way that it is stated in the present provision. In this case the Russian Party during the negotiations on the delimitation of Kerch Strait has noted that Kerch Strait is shallow and has only two navigational routes: Kerch-Yenikale Canal (that is on the balance of Kerch Sea Port and is applicable only for the vessels with draught up to 8 metres) and the fairway № 50 (that is applicable only for the vessels with draught up to 3 metres and was under the management and the control of the Russian Party). The fact that Kerch-Yenikale Canal is on the balance of Kerch Sea Port, from the perspective of the Russian Party, was not to give any advantages to the Ukrainian Party, and for this reason the realization of the delimitation of Kerch Strait upon the median lines, as it is prescribed by Art. 15 of the Convention UNCLOS-82, could not be applicable, and the delimitation should be executed in a different way, because the Convection admits it.
Qualification of the incident by Ukraine
Ukraine accuses the Russian Federation in violation of the whole range of the rules of international legislation:
- Part 3 of the Article 2 of the Convention of the United Nations Organization on the Maritime Law, 1982 (UNCLOS-82) - Sovereignty over the territorial sea is executed in compliance with this Convention and other rules of the international law;
- The Article 17 of the Convention (The Right of Peaceful Passage);
- The Article 38 of the Convention (The Right of Transit Passage);
- Part 2 of the Article 56 of the Convention - The Coastal State, while executing its rights and fulfilling its obligations under this Convention in the exclusive economic zone, shall take due account of the rights and obligations of other governments and act in an order, which is consistent with the provisions of this Convention;
- The Articles 1,2 of the Charter of the United Nations Organization;
- The Article of the Contract.
Qualification of the incident from the side of the Russian Federation
The Russian Federation accuses Ukraine in violation of the Articles 19, 21 of the Convention (the violation of the order and rules of the peaceful passage). Against the Ukrainian seamen a criminal case is opened under the Article 300 and 322 of the Criminal Code of the Russian Federation – "illegal crossing of the state border".
After the annexation of Autonomous Republic of Crimea by Russia in March, 2014, Russia considers the Strait as its inner strait, as it passes through the territories that are included to the Russian Federation (occupied Crimea and the Krasnodar Territory). From this point of view the Russian Federation applies the norms of international and national legislation in respect of the rules / procedure of the passage through Kerch Strait, having established an authorization-based procedure of the passage, which the Ukrainian sailors allegedly violated on November 25, 2018. At the same time, the Agreement, 2003 has not been denounced and remains in effect for both countries.
Potential risks for other Ukrainian Black Sea Ports and Possible Actions of Ukraine
Recently the Naval Fleet and the Customs Service of the Russian Federation have not once taken actions, which were aimed to interfere to the merchant navigation into the Ukrainian ports of Azov Sea (Mariupol, Berdyansk), by means of detaining of merchant vessels for execution of an inspection. The current conflict situation may prompt the Russian Federation to terminate (to denounce) the Agreement, 2003, after that Russia could announce about its sovereign rights upon Kerch Strait and actually to block the Ukrainian ports Mariupol and Berdyansk, as well as to declare about the existence of the territorial dispute with Ukraine. In our opinion, the existence of a valid international agreement with Russia, which regulates the status of Azov Sea and Kerch Strait, is beneficial for Ukraine in the present conditions and its denunciation will only aggravate the situation.
The Russian media with reference to official sources in the government and in the military and security forces characterize the incident, which happened on November 25, 2018 as a provocation from the side of the Ukrainian authorities, aimed at the destabilizing of the situation in Azov Sea and in the North-End of Black Sea, as well as at the discredit of the Russian Federation in the eyes of the world community. Under the pretext of protection of the borders, prevention of the provocations and stabilization of the situation in the region the Russian Federation can reinforce the patrolling of the territorial sea within 12 nautical miles from the base line (taking into account the territory of the annexed Crimea), organize the execution of the naval training drills etc., which could later lead to the creation of artificial obstacles for trade navigation into the ports of "Great Odessa" (Odessa, Chernomorsk, Yuzhny).
The current conflict situation, as well as the possible blockade of the ports, that are situated at Black Sea, it is a violation of the Convention UNCLOS-82, the Charter of the United Nations Organization and the Agreement, 2003, therefore there are legal grounds for notifying the International Maritime Organization (in assembly with the United Nations Organization), Security Council of the United Nations Organization with subsequent appeal at the International Court of Justice (the Article 36 of the Statute of the International Court of Justice) concerning such actions.
Whereas such actions of the Russian Federation violate international agreements in the sphere of navigation and threaten the safety of maritime traffic in the region, there are grounds for lodging a complaint to the International Maritime Organization (IMO) for the purposes of provision of legal evaluation of such actions.
Within this context, please note that from the 3rd till the 7th December, 2018 at the headquarters of IMO in London a meeting of the Maritime Safety Committee will take place, which is planned to be attended by the Ukrainian delegation. Taken into account of the significance of the conflict and the negative consequences for the navigation in Black Sea and Azov Sea, the Ukrainian delegation may initiate a discussion of the situation at a meeting of the IMO Committee. The appropriate appeal may be submitted through the Embassy of Ukraine in the UK, which ensures the permanent representation of Ukraine in IMO. Moreover, for foreign shipowners, whose vessels are systematically inspected by the Border Guard Service of the Federal Security Service of Russia, it is advisable to notify their maritime administrations and insurance clubs about this, in order to determine the fictitious checks (inspections) of vessels by the Russian Federation as an abuse of their rights, that are granted by the Agreement, 2003 with all the consequences, that come with it.
Artem Volkov, Attorney-at-Law of Law Firm "ANK"
Sergey Nedelko, Attorney-at-Law of Law Firm "ANK"