On the Legal status of the Sea of Azov and the Kerch Strait

Vladimir Putin and Leonid Kuchma are signing a document entitled an Agreement Between Ukraine and the Russian Federation on Cooperation in the Use of the Sea of Azov and the Kerch Strait after the Tuzla crisis on December 24, 2003. Photo: www.bbc.com/ukrainian

Bohdan USTYMENKO,
M.J., Attorney at Law

Tetiana USTYMENKO, S.J.D., professor,
Department of Civil Law and Procedure
National Academy of Internal Affairs

On December 24, 2003, in the Ukrainian city of Kerch, President of Ukraine Kuchma and President of the Russian Federation Putin signed a document entitled an Agreement Between Ukraine and the Russian Federation on Cooperation in the Use of the Sea of Azov and the Kerch Strait [1], hereinafter — the Kerch Treaty.

Article 2 of the Agreement includes the following clauses:

1. Merchant ships and warships, as well as other government ships flying the flags of Ukraine or the Russian Federation operated for non-commercial purposes, enjoy freedom of navigation in the Sea of Azov and the Kerch Strait.

2. Merchant ships flying the flags of third countries may enter the Sea of Azov and pass through the Kerch Strait when heading to or returning from a Ukrainian or Russian port.

3. Warships or other government ships of third countries operated for non-commercial purposes may enter the Sea of Azov and pass through the Kerch Strait when heading for a visit or business call to the port of one of the Parties on the invitation or permission of that Party approved by the other Party.

That is, among other things, the Kerch Treaty stipulates that warships or other government ships of third countries operated for non-commercial purposes invited by Ukraine, may not enter the Sea of Azov and pass through the Kerch Strait without the consent of the Russian Federation.

Also, the first paragraph of Article 1 of the Kerch Treaty states that historically, the Azov Sea and the Kerch Strait are internal waters of Ukraine and the Russian Federation.

In view of that statement,
let’s turn to the undeniable historical facts

Maps of the Sea of Azov and the Black Sea. Portolan Pietro Vesconte, 1318. Photo: BSNews archive

About 150,000 years BC Crimea already had a number of Neanderthal settlements later uncovered by archaeologists.

The first ethnic groups in Crimea that can be named were the Cimmerians and Tauri (I millennium BC).

The VII - V centuries BC in Crimea saw the establishment of Pantikapai (modern Kerch area), Chersonese (modern Sevastopol), Kercinitida (modern Yevpatoria), Feodosia and other settlements founded by the Greek colonists.

As the centuries passed, a variety of peoples, cultures and cities appeared and disappeared on the Crimean peninsula. At one point, the region became the last refuge for the Scythian Statehood — from the 2nd century BC to the 3rd century AD, the late Scythian State with the capital in Naples Scythian thrived in the area of present-day Simferopol. At different times, Crimea was under to the Roman Empire, the Goths, Huns, Byzantium, Khazars, Pechenegs, Polovtsians and other peoples. In the 10th-11th centuries the Eastern Crimea was most likely part of the Tmutarakan principality that in turn, was part of the Kievan Rus.

In the 13th century, the Mongolian army of Khan Batu conquered Crimea and the peninsula became part of the Golden Horde.

Later, between 1441 and 1783, for almost 350 years, Crimea, the North Azov and the Black Sea areas were part of the Crimean Tatar state of Crimean Khanate.

In 1783, the Khanate was annexed by the Russian Empire, which had sealed the fate of the peninsula for the next 134 years, after which, in 1917, the empire itself ceased to exist as a subject of international law.

As for the history of the Sea of Azov and the Kerch Strait, the following recap is quite telling.

In ancient times, the Kerch Strait was called the Bosporus Cimmerian.

It’s a well-known fact that the Greeks called the Sea of Azov the Meotian lake, the Romans — the Meotian swamp, the Meotians — Temerinda, the Arabs — Baral-Azov, the Turks - Bahr-Assak, the Slavs — the Blue Sea or according to another version, the Suezian Sea, the Genoese — Mare Tane and so on. Each people that lived in the Crimean peninsula, modern Kherson, Zaporizhia, Donetsk, Rostov and Krasnodar regions, when using the Sea of Azov, gave it its own name.

Starting with the Middle Ages, the Genoese and Venetians began to draw the maps and nautical charts of the Sea of Azov.

Maps of the Sea of Azov and the Black Sea, Piri Reis, 1525. Photo: BSNews archive

So, for thousands of years, the Sea of Azov — Lake of Meotia, Swamp of Meotia, Temerinda, Baral-Azov, Bahr-Assak, Suroz Sea, Mare Tane, etc. — has been used by numerous peoples, as evidenced by the abundant findings.

A curious footnote — while the Sea of Azov is the most shallow sea in the world, it is at the same time, the most continental one, i.e., the farthest from the ocean.

From 1921 to 1954, as part of the Union of Soviet Socialist Republics (USSR), Crimea was included in the Russian Soviet Federal Socialist Republic (RSFSR). As evidenced by the Soviet documents, the administrative border in the Kerch Strait was defined between the Krasnodar Territory and the Crimean Autonomous Socialist Soviet Republic.

Later, on the basis of the Law of the Supreme Soviet of the Union of Soviet Socialist Republics «On the Transfer of the Crimean region from the RSFSR to the Ukrainian SSR» the Crimean region was handed over from the RSFSR to the Ukrainian SSR [2]. At the time, some maps even showed the sea border between the republics.

However, on June 12, 1990, the Congress of People's Deputies of the RSFSR declared the state sovereignty of the RSFSR [3] followed by the declaration of Ukraine’s independence a year later, when on August 24, 1991, the Verkhovna Rada of the Ukrainian SSR proclaimed the creation of an independent Ukrainian state [4].

Map of Northern Caucasia, Krasnodar, 1926. The administrative border in the Kerch Strait was defined between the Krasnodar Territory and the Crimean Autonomous Socialist Soviet Republic. Clickable.

Photo: BSNews archive

 

Map of the USSR Joint Staff, 1989. The official Soviet map shows the administrative border between the USSR and the RSFSR in the Kerch Strait and the adjacent part of the Sea of Azov. Clickable.
 

Photo: BSNews archive

 

 

 

 

The state border between the Russian Federation and Ukraine in the Kerch Strait and the adjoining part of the Sea of Azov is printed on the official Russian map with the corresponding symbol. (in Russian) State Scientific and Implementation Center of Geoinformation Systems and Technologies of FSUE "GOSGISCENTR". 2001, M: 1: 200000. Clickable.

Photo: BSNews archive

 

Our historical flashback wouldn’t be complete, though, without the Agreement Establishing the Commonwealth of Independent States [5], hereinafter referred to as the Belovezh Agreement, that stated that as of the date of the agreement, the Union of Soviet Socialist Republics ceased it existence as a subject of international law and a geopolitical reality. That is, the Belovezh Agreement officially put a historic end to a superpower of the past, the Soviet Union.

All of the above clearly demonstrates that from the Neanderthals age in Tavrida-Crimea approximately 150, 000 years BC until present, the States under the names of Ukraine and the Russian Federation have been using the waters of the Sea of Azov and the Kerch Strait for less than 30 years.

Therefore, considering both the general historical background and the specific facts, the allegation that the waters of the Sea of Azov and the Kerch Strait mentioned in the Kerch Treaty have a certain «historical identity» are simply meaningless.

About "the internal waters"

It should also be noted

that the Kerch Treaty statement regarding the Sea of Azov and the Kerch Strait being the «internal waters of Ukraine and the Russian Federation» contrasts with the provisions of the 1982 United Nations Convention on the Law of the Sea [6] (hereinafter — the UNCLOS), to which both Ukraine and the Russian Federation are parties, since according to Articles 8 and 10 of the Convention, internal waters may belong to no more than one state.

In addition, Article 8 of the UNCLOS establishes that only waters on the landward side of the baseline of the territorial sea form part of the internal waters of the State.

Thus, the Sea of Azov and the Kerch Strait are not «internal waters» of either Ukraine, the Russian Federation, or the two States combined and so, the first paragraph of Article 1 of the Kerch Treaty directly contradicts Articles 8 and 10 of the UNCLOS.

About the borders in the
Sea of Azov and the Kerch Strait

Also, the second paragraph of Article 1 of the Kerch Treaty states that the Sea of Azov is demarcated by the state border in accordance with the agreement between the Parties.

To that end, since declaring independence, Ukraine has insisted on dividing the area of the Azov-Kerch water area and establishing a delimitation line, including in the Black Sea, in accordance with the UNCLOS.

For instance, in 1992, in response to the invitation of the UN Secretary General to participate in the Convention on the Law of the Sea, Ukraine turned in to the UN a list of geographical coordinates of the points defining baselines for measuring the widths of the territorial sea, the exclusive economic zone and the continental shelf in the Black and Azov Seas.

Line of protection of the state border of the country in the Azov and Black Seas and Kerch Strait and securing the rights of Ukraine in the exclusive (maritime) economic zone and the continental shelf in the northeastern part of the Black Sea on the basis of Presidential Order of October 6, 1998 N 515/98-rp (map given by B. Ustymenko)

However, despite the 36 negotiation rounds between Ukraine and the Russian Federation that followed between October 16,1996 and March 3, 2011, the Azov-Kerch waters were not demarcated by a state or sea border, as the Russian side did not wish to establish a border under the UNCLOS and deliberately stalled the negotiations.

The Russian Federation has also refused to delimit the Azov-Kerch waters on the basis of the republican borders marked on the Soviet maps.

About Tuzla and the agreement
under the pressure

There is also a clear evidence that in 2003, Ukraine was coerced to sign the Kerch Treaty due to the threat of force by the Russian Federation. We should remember that in September 2003, the Russian side provoked a serious crisis in the Russian-Ukrainian relations by illegally constructing a bulk dam in the Kerch Strait between Russia’s Taman Peninsula and the Ukrainian island of Tuzla without Ukraine’s approval. Even then, the Russian intention was to violate the territorial and border integrity of Ukraine.

The Kerch Strait after the dyke was constructed. Map: NASA, public domain

The situation was so critical that to guarantee proper control over the state border of Ukraine in the Tuzla area and the adjacent waters of the Kerch Strait, as well as the respective activity of state authorities and officials, the Ukrainian Parliament ruled to establish a Provisional Special Parliamentary Commission for Ensuring Control over the State Border Regime in the Tusla Island Area [7].

And as has been long-known, to avoid an armed conflict, bloodshed and deaths of thousands of Ukrainians, Ukraine’s President Kuchma was forced to sign the infamous treaty with V. Putin — dubious both legally and factually as it may be — ratified later by the Verkhovna Rada of Ukraine [8].

However, despite the effort, the Kerch Treaty managed to delay the «hot» stage of the conflict between Ukraine and Russia only for a decade. Since February 2014, the Russian Federation has occupied the Crimean Peninsula and the adjacent Ukrainian waters — a total area of roughly 100, 000 square kilometers.

In the light of the Tuzla incident and the conclusion of the Kerch Treaty that followed, one should turn to Article 52 of the 1969 Vienna Convention on the Law of Treaties [9] that stipulates that any treaty concluded due to a threat or use of force, thus, violating the principles of international law embodied in the Charter of the United Nations, is regarded null and void.

Therefore, both the provisions of Article 52 of the Vienna Convention on the Law of Treaties and the actual circumstances of the Kerch Treaty conclusion clearly demonstrate that the Treaty is not legally binding.

As for the legal status of the Azov-Kerch waters, the following points are worth considering:

In accordance with Article 122 of the UNCLOS, the Azov Sea is semi-enclosed.

Its total area is 37,600 square kilometers, maximum length — 224 miles, while maximum width —109 miles.

The above space is obviously sufficient to contain both the territorial sea of two coastal States — Ukraine and the Russian Federation — and their exclusive economic zones.

Delimitation of the Sea of Azov and the Kerch Strait under the UN Convention on the Law of the Sea. Map given by B. Ustymenko

In turn, given its width, the Kerch Strait, contains the territorial sea of both Ukraine and the Russian Federation. At the same time, under Article 37 of the UNCLOS, the Kerch Strait is an international strait, since it directly links the exclusive economic zones of the Azov and Black Seas.

In view of the above, as well as the provisions of Articles 38 and 44 of the UNCLOS, all ships and aircraft, including those of the third countries — other than Ukrainian or Russian — may enjoy the unimpeded right of transit passage through the Kerch Strait, as well as entering the Sea of Azov.

Finally, Article 52 of the Vienna Convention on the Law of Treaties, gives Ukraine a fully legitimate right to notify all world States and other relevant subjects of international law that the Kerch Treaty is null and void.

References:

1. Treaty Between the Russian Federation and Ukraine on Cooperation in the Use of the Sea of Azov and the Kerch Strait from December 24, 2003, https://zakon.rada.gov.ua/laws/show/643_205.
2. The decree of the Presidum of the USSR Supreme Soviet transferring the Crimea Oblast from the Russian SFSR to the Ukrainian SSR, April 26, 1954, https://archives.gov.ua/Sections/Crimea_50/photos_03.php?3.
3. Declaration of State Sovereignty of the Russian SFSR: Declaration by the First Congress of People's Deputies of the Russian SFSR from June 12, 1990.
4. Act of Declaration of Independence of Ukraine from August 24, 1991, https://zakon.rada.gov.ua/laws/show/1427-12.
5. Agreement Establishing the Commonwealth of Independent States (Rus/Ukr) from December 8, 1991 (ratified on December 10, 1991), https://zakon.rada.gov.ua/laws/show/997_077 .
6. United Nations Convention on the Law of the Sea (ratified by the Law of Ukraine On Ratification of the 1982 United Nations Convention on the Law of the Sea and the Agreement #728-XIV on the Implementation of Part XI of the 1982 United Nations Convention on the Law of the Sea" from June 3,1999), https://zakon.rada.gov.ua/laws/show/995_057.
7. On Establishing the Provisional Special Parliamentary Commission for Ensuring Control over the State Border Regime in the Tusla Island Area, https://zakon.rada.gov.ua/laws/show/1235-15.
8. On Ratification of the Treaty Between Ukraine and the Russian Federation on Cooperation in the use of the Sea of Azov and the Kerch Strait: a law of Ukraine from April 20, 2004.
9. Vienna Convention on the Law of Treaties from May 23, 1969, https://zakon.rada.gov.ua/laws/show/995_118.