Threats to the National Maritime Security of Ukraine, Arising From Some Agreements and Formats of Cooperation With the Participation of the Russian Federation

Bohdan USTYMENKO,
Lawyer, Director of the Ukrainian Institute for Security and Law of the Sea,
special for BlackSeaNews

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The article provides a selective legal analysis of some international agreements and existing formats of cooperation that have been used, are being used or may be used in the future by the Russian Federation (RF) in order to harm the national interest of Ukraine at sea.

The author of the article has studied the legality of the actual continuation by the Russian Federation of the USSR's permanent membership in the United Nations Security Council, as well as its membership in the Danube Commission.

The article analyses the formats of cooperation within the Black Sea Naval Cooperation Task Group (BLACKSEAFOR) and the Operation Black Sea Harmony in the context of identifying threats to Ukraine's national maritime security.

Particular attention is paid to the Treaty Between Ukraine and the Russian Federation on Cooperation in the Use of the Sea of ​​Azov and the Kerch Strait of 2003 and the legal status of the Azov-Kerch aquatic area.

The results of the legal analysis have led to the conclusion that the illegal actual continuation by Russia of the USSR's permanent membership in the UN Security Council, the RF's membership in the Danube Commission, the formats of cooperation within the BLACKSEAFOR and the Operation Black Sea Harmony, and the Treaty Between Ukraine and the Russian Federation on Cooperation in the Use of the Sea of ​​Azov and the Kerch Strait of 2003 pose a threat to Ukraine's national maritime security.

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It is well known that due to the military occupation of the Autonomous Republic of Crimea and the city of Sevastopol, as well as numerous other illegal actions of the Russian Federation, Ukraine does not control most of its sector (the territorial sea and exclusive economic zone) of the Black Sea and the Sea of Azov – about 100 thousand km2 out of 137 thousand km2 of the total area of ​​the Ukrainian maritime space.

Russia is blocking Ukraine's access to gas and oil fields and fish resources located within the occupied part of the Ukrainian sector of the Black Sea and the Sea of Azov.

The aggressor state has also laid underwater power cables and built the Kerch Bridge and an underwater gas pipeline through the Kerch Strait from the territory of the Russian Federation to the Crimean Peninsula without the consent of Ukraine.

However, part 1 of Article 3 of the Law of Ukraine On Ensuring the Rights and Freedoms of Citizens and the Legal Regime on the Temporarily Occupied Territory of Ukraine [1] provides that, for the purposes of this law, the temporarily occupied territory is:

1. the land territory of the Autonomous Republic of Crimea and the city of Sevastopol, the internal waters of Ukraine of these territories;

2. internal sea waters and the territorial sea of ​​Ukraine around the Crimean Peninsula, the territory of the exclusive (maritime) economic zone of Ukraine along the coast of the Crimean Peninsula and the adjacent coast of the continental shelf of Ukraine, which are subject to the jurisdiction of Ukrainian authorities in accordance with the norms of international law, the Constitution, and laws of Ukraine;

3. subsoil under the territories referred to in paragraphs 1 and 2 and the airspace above those territories.

Paragraph (a) of Article 3 of UN General Assembly Resolution 3314 (XXIX) "Definition of aggression" of 14 December 1974 [2] provides, inter alia, that

"the invasion or attack by the armed forces of a State of the territory of another State, or any military occupation, however temporary, resulting from such invasion or attack, or any annexation by the use of force of the territory of another State or part thereof," regardless of a declaration of war, shall, subject to and in accordance with the provisions of Article 2 of this Resolution, qualify as an act of aggression.

Attention should also be paid to Article 1 of the Law of Ukraine On National Security of Ukraine [3], which states that the strategy for military security of Ukraine – a document that sets out a system of views on the causes, essence, and nature of modern military conflicts, principles and ways of their prevention, preparation of the state for a possible military conflict, as well as the use of military force to protect state sovereignty, territorial integrity, and other vital national interests.

On 25 March 2021, Decree No. 121/2021 of the President of Ukraine approved the Strategy for Military Security of Ukraine [4], which set out that

at the regional level, the most threatening aspect is the likelihood of destabilization in the Balkans, the Baltic and the Black Sea regions, Caucasus, and Eastern Europe, inter alia, as a result of obstruction by the Russian Federation of free navigation in the Black Sea and the Sea of Azov.

The Strategy for Military Security of Ukraine also states

that during the formation and implementation of state policy in the military, defence, and military construction areas, illegal actions of the Russian Federation in the Sea of Azov and the Black Sea – which impede navigation and require that Ukraine take a series of indirect actions and review bilateral agreements and existing cooperation formats used by Russia to harm Ukraine's national interest – have also been taken into consideration.

This article analyses the main, in the author's opinion, international agreements and formats of cooperation and interaction with Russia in the field of maritime activities, namely

1. the Charter of the United Nations, adopted in San Francisco on 26 June 1945 [5],
2. the Convention Regarding the Regime of Navigation on the Danube, signed in Belgrade on 18 August 1948 [6],
3. the Agreement establishing the Black Sea Naval Cooperation Task Group, signed in Istanbul on 2 April 2001 [7] and ratified with a declaration by Law 948-IV of 5 June 2003 [8],
4. the Protocol between the Ministry of Defence of Ukraine and the General Staff of the Armed Forces of the Republic of Turkey on Cooperation in Information Exchange as part of the Operation Black Sea Harmony, signed on 17 January 2007 [9],
5. the Treaty Between Ukraine and the Russian Federation on Cooperation in the Use of the Sea of ​​Azov and the Kerch Strait, signed in Kerch on 24 December 2003 [10] and ratified by Law of Ukraine No. 1682-IV of 20 April 2004 [11],

as well as some factual circumstances in order to determine the phenomena, trends, and factors that make it impossible or difficult or may make it impossible or difficult to act in Ukraine's national interest at sea and ensure the sustainable development of Ukraine as a maritime state.

 

1. Permanent Membership of the Russian Federation in the UN Security Council: Legal Grounds

We consider it expedient to begin a legal analysis of the actual continuation by Russia of the USSR's permanent membership in the United Nations Security Council − the body whose decisions directly affect not only the national security of Ukraine but also the security of the Black Sea region and the whole world. It is on this key body that the Members of the United Nations have placed the primary responsibility for maintaining international peace and security.

However, despite the high mission of the UN Security Council, Ukraine's representatives have had to call its response to conflicts, escalation, and violations of international law "slow and inconsistent," primarily due to the abuse of the right of veto by some permanent members, in particular Russia. (Photo: EPA/UPG)

Volodymyr Yelchenko, a former representative of Ukraine to the UN, cited as examples the situation with Russia's disregard for international norms, its aggression against Ukraine, as well as its abuse of the right of veto in the UN Security Council. Mr Yelchenko reminded that since the 1990s, Moscow has been using "revanchist policies" and military force against other countries, including Moldova, Georgia, and Ukraine [12].

Are there legal grounds for Russia to be a permanent member of the UN Security Council instead of the Soviet Union? Let us start with the historical and legal aspects of this issue.

In 1945, the Belarusian Soviet Socialist Republic, the Ukrainian Soviet Socialist Republic, and the USSR, among other countries, became the founding states of the United Nations. It should be added that the Russian Soviet Federal Socialist Republic (RSFSR) never had the status of a founding member of the United Nations.

At the same time, the current version of Article 23 of the UN Charter states that the USSR, rather than the RSFSR or the Russian Federation, is one of the five permanent members of the UN Security Council.

In addition, the UN Charter does not provide for the possibility of replacing another country as a permanent member or continuing the permanent membership in the UN Security Council instead of another country.

According to the Constitution (Fundamental Law) of the USSR, adopted on 7 October 1977 [13],

• "the Union of Soviet Socialist Republics is an integral, federal, multinational state formed on the principle of socialist federalism as a result of the free self-determination of nations and the voluntary association of equal Soviet Socialist Republics" (Article 70);
• "The territory of the Union of Soviet Socialist Republics is a single entity and comprises the territories of the Union Republics. The sovereignty of the USSR extends throughout its territory" (Article 75);
• The jurisdiction of the Union of Soviet Socialist Republics, as represented by its highest bodies of state authority and administration, shall cover, among other things: "representation of the USSR in international relations; the USSR's relations with other states and with international organisations; establishment of the general procedure for, and coordination of the relations of Union Republics with other states and with international organisations," whereas "a Union Republic [author's note: including the RSFSR] has the right to enter into relations with other states, conclude treaties with them, exchange diplomatic and consular representatives, and take part in the work of international organisations" (Articles 73 and 80);
• "A Union Republic is a sovereign Soviet socialist state that has united with other Soviet Republics in the Union of Soviet Socialist Republics" (Article 76);
• "Each Union Republic shall retain the right to freely secede from the USSR" (Article 72).

That is, the USSR was a state. At the same time, each of the union republics had its own status of a separate state.

As a consequence, according to the Constitution of the USSR, the RSFSR was a separate country from the USSR, which had the right to secede freely from the Union of states. At the same time, the Constitution of the USSR does not provide for the succession to the USSR.

On 4 December 1991, the states that were or had been the republics of the USSR and the Soviet Union itself as a predecessor state,

"… given the need for a radical overhaul of the whole complex of relations between the states that were part of the USSR…,"

concluded the Treaty on Succession to the External Public Debt and Assets of the USSR in Moscow (the Moscow Treaty) [14].

For the purposes of the Moscow Treaty, its Parties defined that the "state succession" means the change of one state to another in bearing responsibility for international relations of any territory, and "the moment of the "state succession" means the date of change of a predecessor state by a successor state in taking responsibility for international relations concerning the territory that is the object of the state succession.

In accordance with Article 4 of the Moscow Treaty, the Parties agreed that the shares of the constituent republics of the former USSR [author's note − special attention should be paid to the phrase "former USSR"] in the total amount of debt and assets are:

• the Russian Soviet Federal Socialist Republic – 61.34%;
• Ukraine – 16.37%;
• the Republic of Belarus – 4.13%;
• the Kazakh Soviet Socialist Republic – 3.86%;
• The Republic of Georgia – 1.62%, etc.

Particular attention should be paid to the fact that the Moscow Treaty does not provide for the replacement of the USSR by the Russian Soviet Federal Socialist Republic in international organizations, including in the UN Security Council.

As early as 8 December 1991, the Agreement on the Establishment of the Commonwealth of Independent States (the Belovezha Accords) [15] between the Republic of Belarus, the Russian Federation, and Ukraine was concluded in Minsk. The Agreement was ratified by Ukraine on 10 December 1991 with reservations [16].

The Belovezha Accords state that the Soviet Union as a subject of international law and geopolitical reality has ceased to exist.

This international agreement also stipulates that the application of the norms of the former USSR is not allowed on the territories of the signatory states and the activity of the former Soviet Union bodies on the territories of the Commonwealth of Independent States (CIS) member countries is terminated.

In addition, the Belovezha Accords stipulate that Belarus, Russia, and Ukraine guarantee the fulfilment of international obligations arising for the mentioned states from the treaties and agreements of the former USSR.

On 21 December 1991, 11 independent states – former republics of the Soviet Union, including the Republic of Belarus, Russia, and Ukraine, signed the Alma-Ata Protocols [17], which reaffirmed that with the formation of the CIS, the USSR ceased to exist. All the signatories to the Protocols also guaranteed, in accordance with their constitutional procedures, the fulfilment of international obligations arising from the treaties and agreements of the former USSR.

On the same day, 21 December 1991, the Council of Heads of States of the CIS made a Decision that the CIS states "support Russia in continuing the Soviet Union's membership in the UN, including permanent membership in the Security Council and other international organizations…" [ 18].

However, as can be seen from the content of the Decision of the Council of Heads of States of the CIS, this document was adopted by only eleven out of the fifteen constituent entities of the former USSR, without the participation and consent of the Soviet Union itself, and after the dissolution of the Soviet Union.

On 26 December 1991, the Council of Republics of the Supreme Soviet of the USSR adopted Declaration No. 142-N in connection with the creation of the Commonwealth of Independent States [19], which stated that the Soviet Union ceased to exist as a state and a subject of international law due to the creation of the CIS and, inter alia, invited the heads of the Independent States to consider the succession to the USSR and Soviet bodies of state power and administration, as well as the ratification, implementation, and denunciation of international treaties concluded by the USSR before the creation of the CIS. Thus, Declaration No. 142-N, along with the other circumstances mentioned above, confirms the invalidity of the Decision of the Council of Heads of States of the CIS of 21 December 1991 to "support Russia in continuing the Soviet Union's membership in the UN, including permanent membership in the Security Council and other international organizations."

Therefore, taking into account the provisions of the UN Charter, the Constitution of the USSR, and other documents, as well as the mentioned factual circumstances in their entirety, the author has come to the following conclusions.

1. According to the Constitution of the USSR, the union republics, including the RSFSR, had the status of individual states with the right to secede from the Union. In turn, the USSR was a separate state from the union republics.

2. The UN Charter does not provide for the possibility of replacing another country as a permanent member or continuing the permanent membership in the UN Security Council instead of another country.

3. The Constitution of the USSR does not stipulate that the Soviet Union can be replaced by a union republic in international organizations and bodies, including the UN Security Council.

4. The highest bodies of state power and administration of the USSR did not take decisions on the replacement of the Soviet Union by the RSFSR in international organizations and bodies, including the UN Security Council.

5. No international treaty made with the participation of the USSR provides for the replacement of the Soviet Union by the RSFSR in international organizations and bodies, including the UN Security Council.

6. The Russian Federation actually enjoys the rights and performs the duties of a permanent member of the UN Security Council without proper legal grounds.

7. Russia's illegal use of the right of veto in the UN Security Council is a threat to Ukraine's national security, including in the maritime sphere.

8. The International Court of Justice may put an end to the question of whether the actual replacement of the USSR by the Russian Federation in the UN Security Council was lawful by issuing an advisory opinion at the request of the UN General Assembly in accordance with Article 96 of the UN Charter and Chapter IV of the Statute of the International Court of Justice, which is an integral part of the UN Charter [20].

 

The Membership of the Russian Federation in the Danube Commission

As part of this research, it is necessary to pay attention to the membership of the Russian Federation in another very influential international organization – the Danube Commission. We will also begin the consideration of this question with the analysis of historical and legal aspects.

On 18 August 1948, in the city of Belgrade, the Union of Soviet Socialist Republics, the People's Republic of Bulgaria, the Hungarian Republic, the People's Republic of Romania, the Ukrainian Soviet Socialist Republic, the Republic of Czechoslovakia, and the Federal People's Republic of Yugoslavia, desirous of providing for free navigation on the Danube in accordance with the interests and sovereign rights of the Danubian States and in order to strengthen the economic and cultural relations of the Danubian States among themselves and with other nations, decided to adopt the Convention Regarding the Regime of Navigation on the Danube (Belgrade Convention).

Article 1 of the Belgrade Convention provides that "navigation on the Danube shall be free and open for the nationals, vessels of commerce and goods of all States, on a footing of equality in regard to port and navigation charges and conditions for merchant shipping. The foregoing shall not apply to traffic between ports of the same State."

In addition, the Belgrade Convention regulates the navigation of warships.

Article 30 specifies that "navigation of the Danube by the naval vessels of any non-Danubian country shall be prohibited. The naval vessels of Danubian States may not navigate the Danube beyond the frontiers of the respective countries whose flags they fly save by arrangement between the Danubian States concerned."

The Parties have also established the Danube Commission, which, in accordance with Article 8 of the Belgrade Convention, has the following functions:

(a) to supervise the implementation of the provisions of this Convention;

(b) to prepare a general plan of the principal works called for in the interests of navigation on the basis of proposals and projects presented by the Danubian States and the Special River Administrations (articles 20 and 21), and likewise to draw up a general budget in connection with such works;

(c) to execute the works in the cases provided for in article 4;

(d) to consult with, and make recommendations to the Danubian States in respect of the execution of the works referred to in paragraph (b) of this article, with due consideration for the technical and economic interests, plans and possibilities of the respective States;

(e) to consult with, and make recommendations to the Special River Administrations (articles 20 and 21), and to exchange information with them;

(f) to establish a uniform system of standards on the whole navigable portion of the Danube and to lay down the basic provisions governing navigation on the Danube, including those governing the pilot service, with due consideration for the specific conditions obtaining on particular sections;

(g) to unify the regulations governing river inspection;

(h) to co-ordinate the hydro-meteorological services on the Danube, and to publish a single hydrological bulletin and short-term and long-term hydrological forecasts for the Danube;

(i) to produce statistics on aspects of navigation on the Danube within the competence of the Commission;

(j) to publish reference works, sailing directions, navigational charts and atlases for purposes of navigation;

(k) to prepare and approve the budget of the Commission and to fix and levy the charges provided for in article 10."

Thus, the competence of the Danube Commission is to address a very important set of issues related to navigation on the Danube.

On 26 March 1998, the Republic of Austria, the Republic of Bulgaria, the Republic of Hungary, the Federal Republic of Germany, the Republic of Moldova, the Russian Federation, Romania, the Slovak Republic, Ukraine, the Republic of Croatia, and the Federal Republic of Yugoslavia adopted the Supplementary Protocol to the Belgrade Convention (Supplementary Protocol) [21]. The Supplementary Protocol was ratified by Ukraine by Law No. 664-XIV of 14 May 1999 [22].

Article 1 of the Supplementary Protocol provided that the Federal Republic of Germany acceded to the Belgrade Convention as a Contracting Party on an equal footing with the participating States and their successors. The participating States and their successors are the Republic of Austria, the Republic of Bulgaria, the Republic of Hungary, the Republic of Moldova, the Russian Federation, Romania, the Slovak Republic, Ukraine, the Republic of Croatia, and the Federal Republic of Yugoslavia.

At the same time, it is obvious that the Russian Federation does not have the status of a Danubian state, as this country has no banks along the Danube. Also, the Russian Federation has no authority to continue the Soviet Union's membership in international organizations, in particular, the Danube Commission.

Despite the circumstances mentioned above, Russia is on the list of members of the Danube Commission under the Supplementary Protocol and has a direct influence on all key decisions of this international organization, which is a threat to Ukraine's national security. In addition, Russia has access to all documents of the Danube Commission as a member state.

 

Russia's Membership in the Regional Naval Cooperation Task Group BLACKSEAFOR and the Operation Black Sea Harmony

In the context of this article, it is also extremely important to consider Ukraine's participation in the Black Sea Naval Cooperation Task Group (BLACKSEAFOR) and the Operation Black Sea Harmony, the creation of which was initiated by the Republic of Turkey.

On 2 April 2001, in Istanbul, the Republic of Bulgaria, Georgia, Romania, the Russian Federation, the Republic of Turkey, and Ukraine signed the Agreement on the Establishment of the Black Sea Naval Cooperation Task Group, an on-call naval task group.

Part 1 of Article 4 of the BLACKSEAFOR Agreement stipulates that the BLACKSEAFOR is established to contribute to the further strengthening of friendship, good relations and mutual confidence among the Black Sea littoral states as well as to improve peace and stability in the region, through the enhancement of cooperation and interoperability among the naval forces.

The parties have also agreed that the BLACKSEAFOR consists of exclusively the naval forces of the participating states without the direct involvement of the air or ground forces. However, the activities of the BLACKSEAFOR may be supported by units of other service arms if necessary (part 1 of Article 5 of the BLACKSEAFOR Agreement).

According to part 2 of Article 4 of the BLACKSEAFOR Agreement, the BLACKSEAFOR objectives are as follows:

• SAR-type operations (Search and Rescue);
• HA-type operations (Humanitarian Assistance);
• MCM-type operations (Mine Counter Measures);
• operations for the protection of the environment;
• goodwill visits;
• any other tasks agreed upon by all the Parties.

The Agreement also establishes that the BLACKSEAFOR shall hold joint exercises in order to ensure effectiveness and inter-operability when performing the above-mentioned tasks.

The BLACKSEAFOR generally operates in the Black Sea, and all decisions regarding the task group are taken by consensus of the Parties (Article 7 (1) and Article 2 (6) of the Agreement).

However, it is obvious that as a result of Russia's ongoing aggression against our country since 2014, including in the Black Sea, the Sea of Azov, and the Kerch Strait, Ukraine's voluntary participation in naval task groups where the Russian Federation also participates can be "automatically" classified as a threat to national security.

Additional attention should be paid to the bilateral Protocol between the Ministry of Defence of Ukraine and the General Staff of the Armed Forces of the Republic of Turkey on Cooperation in Information Exchange under Operation Black Sea Harmony, signed on 17 January 2007, because this Protocol confirms, inter alia, full support for the principles and conditions set out in the BLACKSEAFOR Agreement.

Therefore, it seems appropriate to discuss with the Turkish side the following points.

1. Possible negative consequences for Ukraine related to its further participation in the BLACKSEAFOR and other regional formats of cooperation between Ukraine, Russia, and the Republic of Turkey in the field of security, in particular, maritime security.

2. Ukraine's withdrawal from the BLACKSEAFOR in accordance with the procedure and deadlines established by Article 18 of the BLACKSEAFOR Agreement and from other formats of cooperation between Ukraine, the Russian Federation, and the Republic of Turkey in the field of security, in particular, maritime security.

3. The ways of documenting such a withdrawal of Ukraine from the above-mentioned formats of cooperation, which are acceptable for Ukraine and Turkey.

4. Future participation of Ukraine in a new regional naval task group of the Black Sea countries and other regional security formats of cooperation created without the participation and presence in them of the Russian Federation.

5. Issues of mutual protection of classified information and materials exchanged in the process of cooperation and collaboration in the field of regional security, in particular, maritime security.

The Treaty Between Ukraine and the Russian Federation on Cooperation in the Use of the Sea of ​​Azov and the Kerch Strait

It is also critical to consider the document entitled Treaty Between Ukraine and the Russian Federation on Cooperation in the Use of the Sea of ​​Azov and the Kerch Strait (Kerch Treaty), which President of Ukraine L. Kuchma and President of the Russian Federation V. Putin signed in the Ukrainian city of Kerch on 24 December 2003.

The Kerch Treaty contains the following provisions, among others.

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

2. Merchant vessels flying the flags of third countries may enter the Sea of Azov and pass through the Kerch Strait if they are going to or returning from a Ukrainian or Russian port.

3. Warships or other state vessels of third countries, operated for non-commercial purposes, may enter the Sea of Azov and pass through the Kerch Strait if they visit or make a business call at the port of one of the Parties at its invitation or with its permission, which is agreed with the other Party (Article 2 of the Kerch Treaty).

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

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

But the statement about the mentioned "historical belonging" of these waters to Ukraine and the Russian Federation is obviously absurd, as different peoples and states have used the waters of the Sea of Azov and the Kerch Strait for thousands of years. At the same time, Ukraine and the Russian Federation appeared on the political map of the world only about thirty years ago.

It should also be noted that

the allegations in the Kerch Treaty that the Sea of Azov and the Kerch Strait are "internal waters of Ukraine and the Russian Federation" clearly do not comply with the provisions of the 1982 United Nations Convention on the Law of the Sea (UNCLOS) [23], to which both Ukraine [24] and Russia [25] are the parties, as internal waters can belong to only one state, rather than two, which is directly confirmed by the content of Article 8 of the UNCLOS.

In addition, Article 8 of the UNCLOS provides 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 Ukraine or Russia.

As a consequence, paragraph 1 of Article 1 of the Kerch Treaty directly contradicts Article 8 of the UNCLOS.

There is also every reason to believe that the conclusion of the Kerch Treaty has resulted from Russia's coercion of Ukraine by the threat of force.

It is well known that in September 2003, the Russian side provoked a very serious crisis in relations with Ukraine by illegally building a filling dam in the Kerch Strait between the Russian Taman Peninsula and the Ukrainian island of Kosa Tuzla.

In order to avoid interstate armed conflict, bloodshed, and the deaths of thousands of Ukrainian citizens, Ukrainian President Leonid Kuchma was forced to personally intervene in the conflict around the island of Kosa Tuzla and sign the Kerch Treaty with Russian President Vladimir Putin in December 2003.

In light of the above-mentioned incident around the Ukrainian island of Kosa Tuzla and the conclusion of the Kerch Treaty resulting from it, special attention should be paid to the provision of Article 52 of the Vienna Convention on the Law of Treaties of 1969 (Vienna Convention) [26].

According to this Article,

"a treaty is void if its conclusion has been procured by the threat or use of force in violation of the principles of international law embodied in the Charter of the United Nations."

In accordance with Article 52 of the Vienna Convention and the well-known factual circumstances of the Kerch Treaty signing, it can be concluded that the Kerch Treaty has no legal force.

At the same time, the following points should be made regarding the legal status of the Azov-Kerch aquatic area.

According to Article 122 of the UNCLOS, the Sea of Azov belongs to the category of "enclosed or semi-enclosed seas." Its area is 40 thousand km2 [27], which is obviously sufficient to contain both the territorial seas of the two coastal states, Ukraine and Russia, and their exclusive (maritime) economic zones.

In turn, the Kerch Strait, given its width, contains the territorial seas of both Ukraine and Russia.

At the same time, the Kerch Strait is an international strait under Article 37 of the Convention on the Law of the Sea, as it directly connects the exclusive (maritime) economic zones of the Sea of Azov and the Black Sea.

In view of the above and the provisions of Articles 38 and 44 of the UNCLOS, all ships and aircraft, including those of third countries (not only Ukrainian or Russian ones), enjoy the right of transit passage through the Kerch Strait, which should not be impeded, and to enter the Sea of Azov [28].

At the same time, the lack of a clear state position of Ukraine on determining the legal status of the Azov-Kerch aquatic area in accordance with the requirements of international maritime law is one of the main threats not only to Ukraine's national security but also to the entire Black Sea region.

Based on the results of the legal analysis, the author has come to the general conclusion that the illegal de facto continuation of the USSR's permanent membership in the United Nations Security Council by the RF, Russia's membership in the Danube Commission, formats of cooperation within the Black Sea Naval Cooperation Task Group and the Operation Black Sea Harmony, and the Treaty Between Ukraine and the Russian Federation on Cooperation in the Use of the Sea of ​​Azov and the Kerch Strait of 2003 are threats to Ukraine's national maritime security.

In view of the above, it is recommended that the Ukrainian authorities should take the following actions.

1. The state apparatus with the involvement of the expert community should inspect (revise) all international agreements and existing formats of cooperation that have been used, are being used or may be used in the future by the Russian Federation in order to harm the national interest of Ukraine, in particular, at sea.

2. Upon conducting such an inspection (revision), all appropriate measures, including legal, diplomatic, and political ones, should be taken.

 

References

1. Pro zabezpechennia prav i svobod hromadian ta pravovyi rezhym na tymchasovo okupovanii terytorii Ukrainy [On ensuring the rights and freedoms of citizens and the legal regime on the temporarily occupied territory of Ukraine. Law of Ukraine of 15 April 2014]. https://zakon.rada.gov.ua/laws/show/1207-18#Text
2. Definition of aggression. UN General Assembly Resolution 3314 (XXIX) of 14 December 1974. https://www.un.org/ru/documents/decl_conv/conventions/aggression.shtml
3. Pro natsionalnu bezpeku Ukrainy [On national security of Ukraine]. Law of Ukraine of 21 June 2018. https://zakon.rada.gov.ua/laws/show/2469-19#Text
4. Pro rishennia Rady natsionalnoi bezpeky i oborony Ukrainy vid 25 bereznia 2021 roku Pro Stratehiiu voiennoi bezpeky Ukrainy [On the decision of the National Security and Defence Council of Ukraine of 25 March 2021 On the Strategy for military security of Ukraine]. Decree No. 121/2021 of the President of Ukraine of 25 March 2021. https://www.president.gov.ua/documents/1212021-37661
5. Charter of the United Nations and Statute of the International Court of Justice of 26 June 1945. https://zakon.rada.gov.ua/laws/show/995_010#Text
6. Convention regarding the regime of navigation on the Danube of 18 August 1948. https://zakon.rada.gov.ua/laws/show/995_175#Text
7. Agreement on the establishment of the Black Sea Naval Cooperation Task Group of 02 April 2001. https://zakon.rada.gov.ua/laws/show/998_151#Text
8. Pro ratyfikatsiiu Uhody pro stvorennia Chornomorskoi Hrupy Viiskovo-Morskoho Spivrobitnytstva [On ratification of the Agreement on the establishment of the Black Sea Naval Cooperation Task Group]. Law of 05 June 2003. https://zakon.rada.gov.ua/laws/show/948-15#Text
9. Pro spivrobitnytstvo z pytan obminu informatsiieiu u ramkakh operatsii Chornomorska Harmoniia [On cooperation in information exchange as part of the Operation Black Sea Harmony]. Protocol between the Ministry of Defence of Ukraine and the General Staff of the Armed Forces of the Republic of Turkey of 17 January 2007. https://zakon.rada.gov.ua/laws/show/792_063#Text
10. Dohovir mizh Ukrainoiu ta Rosiiskoiu Federatsiieiu pro spivrobitnytstvo u vykorystanni Azovskoho moria i Kerchenskoi protoky vid 24.12.2003 r. [Treaty between Ukraine and the Russian Federation on cooperation in the use of the Sea of ​​Azov and the Kerch Strait of 24 December 2003]. https://zakon.rada.gov.ua/laws/show/643_205
11. Pro ratyfikatsiiu dohovoru mizh Ukrainoiu ta Rosiiskoiu Federatsiieiu pro spivrobitnytstvo u vykorystanni Azovskoho moria i Kerchenskoi protoky [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]. Law of Ukraine of 20 April 2004. https://zakon.rada.gov.ua/laws/show/1682-15
12. Ukrinform Ukrainian multimedia platform for broadcasting. https://www.ukrinform.ua/rubric-polytics/2462832-ukraina-napolagae-na-reformi-rb-oon-z-obovazkovim-obmezennam-prava-veto.html
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