Maritime Security of Ukraine. A Reference Work. (3) The Exclusive Economic Zone and the Continental Shelf

Bohdan USTYMENKO,
M.J., Attorney at Law

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

From the editors of BlackSeaNews

On 7 December 2021, the interdepartmental working group chaired by Secretary of the National Security and Defence Council (NSDC) of Ukraine Oleksiy Danilov completed work on the draft Maritime Security Strategy of Ukraine, a document initiated by President of Ukraine Volodymyr Zelensky.

The strategy was developed taking into account the current experience of the world's leading maritime powers, the positions of maritime law scholars, the proposals of 16 government agencies, independent experts, and business associations. The working group members approved the draft, and the final text of the document, after coordination of some positions, was sent to the President of Ukraine and members of the NSDC of Ukraine.

The strategy took into account a lot of proposals aimed at solving problems that had been repeatedly addressed in the publications by BlackSeaNews authors. Therefore, the editorial board has decided to create a concise and clear reference work based on the contributions from our authors, which looks at the terminology and problems related to maritime security and provides expert explanations.

Contents

(1) The State Border of Ukraine at Sea

(2) The Contiguous Zone

(3) The Exclusive Economic Zone and the Continental Shelf

(4) Ukraine's Maritime Borders With Turkey and Romania

(5) Ukraine's Maritime Borders With the Russian Federation

(6) "Historical Waters" of the Sea of ​​Azov and the Kerch Strait

(7) "Internal Waters" and Borders in the Sea of ​​Azov and the Kerch Strait

(8) The Tuzla Island Conflict and the Agreement Under Duress

(9) The Delimitation of the Sea of ​​Azov and the Kerch Strait According to the UN Convention on the Law of the Sea

(10). What Mandatory Procedure for the Delimitation of the Maritime Border Between Ukraine and Russia Can Be Adopted

(11) Foreign Military Exercises in the Exclusive Economic Zone of Ukraine

(12) The Legal Aspects of Hydrocarbon Extraction in the Exclusive Economic Zone of Ukraine

(13) The Prohibition Against Vessels and Ships Entering the 12-Mile Zone of the Crimean Peninsula

(14) Threats of Maritime Formats Involving the Russian Federation

(15) Necessary Legal Measures Ukraine Should Take

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Exclusive (Maritime) Economic Zone

Special attention should be also paid to the status and legal regime of marine space termed the exclusive economic zone.

Thus, Article 55 of the Convention establishes that the exclusive economic zone is an area situated outside the territorial sea and adjacent to it that is subject to a special legal regime under which the rights and jurisdiction of a coastal state and the rights and freedoms of other states are governed by the relevant provisions of the Convention.

The width of the exclusive economic zone must not exceed 200 nautical miles measured from the same baselines as the territorial sea of Ukraine (Article 57 of the Convention).

Pursuant to Article 74 of the Convention, the delimitation of the exclusive economic zone between states with opposite or adjacent coasts is effected by concluding agreements on the basis of international law, as indicated in Article 38 of the Statute of the International Court of Justice, in order to achieve an equitable solution. If no agreement has been reached within a reasonable period, the states concerned should resort to the procedures provided for in the Convention.

At the same time, on the basis of the Convention, Ukraine has adopted its own special legislation on the exclusive (marine) economic zone. According to Article 2 of the Law of Ukraine On the Exclusive (Marine) Economic Zone of Ukraine [8], the marine areas externally adjacent to the territorial sea of Ukraine, including the areas around the islands belonging to it, constitute the exclusive (marine) economic zone of Ukraine. The width of the exclusive (marine) economic zone is no more than 200 nautical miles measured from the same baselines as the territorial sea of Ukraine.

Article 3 of the Law of Ukraine On the Exclusive (Marine) Economic Zone of Ukraine stipulates that delimitation of the exclusive (marine) economic zone shall be carried out in accordance with the legislation of Ukraine by concluding agreements with the states whose coasts are opposite or adjacent to the coast of Ukraine on the basis of principles and criteria generally accepted in international law in order to achieve an equitable solution.

Per the provisions of Article 4 of the above Law, in its exclusive (marine) economic zone Ukraine has:

• sovereign rights to explore, develop and conserve the living and non-living natural resources in the waters above seabed, the seabed and subsoil and manage those resources, as well as undertake other economic exploration and development activities in the designated area, including the production of energy through the use of water, currents and wind
• the jurisdiction provided for by the relevant provisions of this Law and the rules of international law for the creation and use of artificial islands, installations and structures, marine scientific research and the protection and conservation of the marine environment
• other rights provided by the Law, other legislative acts of Ukraine and generally recognized norms of international law.

The sovereign rights and jurisdiction of Ukraine regarding the seabed of the exclusive (marine) economic zone and its subsoil are implemented in accordance with the legislation of Ukraine on the continental shelf and the Subsoil Code of Ukraine.

The provisions on the exclusive (marine) economic zone are also addressed in Article 411 of the Economic Code of Ukraine [9] (hereinafter — the EC). The EC stipulates that in order to ensure the sovereign rights of Ukraine for exploration, exploitation, conservation and management of living resources in the exclusive (marine) economic zone, the state undertakes measures — including inspection, arrest and judicial review — to ensure compliance of business entities with the Ukrainian legislation.

The state in the exclusive (marine) economic zone of Ukraine has the exclusive right to facilitate, permit and regulate the construction, operation and use of artificial islands, installations and structures for marine scientific research, exploration and development of natural resources and other economic purposes per Ukrainian legislation.

Continental Shelf

Another marine space whose status and legal regime needs to be reviewed is the continental shelf.

Article 76 of the Convention stipulates that the continental shelf of a coastal state includes the seabed and subsoil of underwater areas extending beyond its territorial sea throughout the natural prolongation of its land territory to the outer edge of the continental margin, or to a distance of 200 nautical miles from the baselines from which the breadth of the territorial sea is measured where the outer edge of the continental margin does not extend up to that distance.

The fixed points comprising the line of the outer limits of the continental shelf on the seabed must not exceed either 350 nautical miles from the baselines from which the breadth of the territorial sea is measured or 100 nautical miles from the 2,500 meter isobath, which is a line connecting the depth of 2,500 meters.

According to Article 77 of the Convention, the coastal State exercises sovereign rights over the continental shelf for the purpose of its exploration and development of its natural resources. These rights are exclusive in the sense that if the coastal state does not explore the continental shelf or exploit its natural resources, no one may undertake these activities without the express consent of the coastal state.

The continental shelf's natural resources include the mineral and other non-living resources of the seabed and subsoil together with living organisms belonging to sedentary species, that is to say, organisms that, at the harvestable stage, either are immobile on or under the seabed or are unable to move except in constant physical contact with the seabed or the subsoil.

Pursuant to Article 83 of the Convention, the delimitation of the continental shelf between states with opposite or adjacent coasts is effected by agreements concluded on the basis of international law, as indicated in Article 38 of the Statute of the International Court of Justice, in order to achieve an equitable solution. If no agreement has been reached within a reasonable period, the states concerned should resort to the procedures provided for in the Convention.

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We have covered the most important terms and definitions that would allow us to move on to an overview of the current situation as a result of Russia's occupation of the Crimean peninsula in the following articles.

To illustrate the problem, we present only 2 maps:

The exclusive maritime economic zone of Ukraine before the occupation of the Crimean peninsula:

The exclusive maritime economic zone of Ukraine after the occupation of the Crimean peninsula (part of the occupied EMEZ of Ukraine marked):

Source: Lamont-Doherty Earth Observatory of Columbia University, https://www.nytimes.com/2014/05/18/world/europe/in-taking-crimea-putin-gains-a-sea-of-fuel-reserves.html

To be continued...

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References:

1. Pro zatverdzhennya Morskoi doktryny Ukrainy na period do 2035 roku: Postanova Cabinetu Ministriv Ukrainy vid 07.10.2009, № 1307. (On Approving the Maritime Doctrine of Ukraine for the Period up to 2035: Resolution of the Cabinet of Ministers of Ukraine from October 7, 2009, #1307). URL: https://zakon.rada.gov.ua/laws/show/1307-2009-%D0%BF.

2. Yoshifumi Tanaka, The International Law of the Sea, third edition (Cambridge University Press, 2019). – p. 554.

3. Konventsiia Organizatsii Ob`yednannykh Natsii z morskogo prava vid 10.12.1982, ratyfikovana Zakonom Ukrainy «Pro ratyfikatsiyu Konventsiia Organizatsii Ob`yednannykh Natsii z morskogo prava 1982 roku ta Ugody pro implementatsiyu Chastyny XI Konventsii Organizatsii Ob`yednannykh Natsii z morskogo prava 1982 roku» № 728-XIV vid 03.06.1999 // Vidomosti Verkhovnoii Rady Ukrainy. – 1999, № 31, stattya 254 (United Nations Convention on the Law of the Sea of December 10, 1982, ratified by the Law of Ukraine "On Ratification of the United Nations Convention on the Law of the Sea of 1982 and the Implementation Agreement for Part XI of the United Nations Convention on the Law of the Sea 1982" # 728-XIV from June 3, 1999, Bulletin of the Verkhovna Rada of Ukraine, 1999, #31, article 254).

4. Кratkoye izlozheniye resheniy, konsultativnykh zaklyuchenii i postanovleniy Mezhdunarodnogo Suda 2008-2012 (Summary of Judgments, Advisory Opinions and Orders of the International Court of Justice 2008-2012), UN, New York, 2014. URL: https://www.icj-cij.org/files/summaries/summaries-2008-2012-ru.pdf - p. 85.

5. Constitutsiya Ukrainy vid 28.06.1996 // Vidomosti Verkhovnoii Rady Ukrainy.- 1996, № 30, stattya 141. (The Constitution of Ukraine of June 28, 1996, Bulletin of the Verkhovna Rada of Ukraine, 1996, #30, article 141).

6. Pro derzhavnyi kordon Ukrainy: Zakon Ukrainy vid 04.11.1991 // Vidomosti Verkhovnoii Rady Ukrainy. - 1992, № 2, stattya 5 (On the State Border of Ukraine: Law of Ukraine of November 4, 1991, Bulletin of the Verkhovna Rada of Ukraine, 1992, #2, Article 5).

7. Pro pryleglu zonu Ukrainy: Zakon Ukrainy vid 06.12.2018 р. / Ofitsiinyi visnyk Ukrainy.- 2019, № 4, stor. 11, stattya 105 (On the Contiguous Zone of Ukraine: Law of Ukraine from December 6, 2018, Official Bulletin of Ukraine, 2019, # 4, p. 11, Article 105). 

8. Pro vyklyuchnu morsku (economichnu) zonu: Zakon Ukrainy vid 16.05.1995 р. // Vidomosti Verkhovnoii Rady Ukrainy. - 1995, № 21, stattya 152 (On the Exclusive (Marine) Economic Zone: Law of Ukraine of May 16, 1995, Bulletin of the Verkhovna Rada of Ukraine, 1995, #21, Article 152).

9. Gospodarkyi kodeks Ukrainy від 16.01.2003 // Ofitsiinyi visnyk Ukrainy.- 2003, № 11, stor. 303, stattya 462 (The Economic Code of Ukraine of January 16, 2003 , Official Bulletin of Ukraine, 2003, #11, p. 303, Article 462).

10. Ugoda mizh Uryadom Ukrainy і Uryadom Respubliky Turechchina pro kordon economichnykh (morskykh) zon Ukrainy і Respubliky Turechchina vid 30.05.1994 (Agreement between the Government of Ukraine and the Government of the Republic of Turkey on the Border of Economic (Marine) Zones of Ukraine and the Republic of Turkey of 30 May 1994). URL: https://zakon.rada.gov.ua/laws/show/792_008.

11. Dogovir pro vidnosyny dobrosusidstva і spivrobitnytstva mizh Ukrainoyu ta Rumuniyeyu vid 02.06.1997, ratyfikovanyi 17.07.1997 (Agreement on Good Neighborly Relations and Cooperation betwen Ukraine and Romania of June 2, 1997, ratified on July 17, 1997). URL: https://zakon.rada.gov.ua/laws/show/642_003 .

12. Кratkoye izlozheniye resheniy, konsultativnykh zaklyuchenii i postanovleniy Mezhdunarodnogo Suda 2008-2012 (Summary of Judgments, Advisory Opinions and Orders of the International Court of Justice 2008-2012), UN, New York, 2014. URL: https://www.icj- cij.org/files/summaries/summaries-2008-2012-ru.pdf. – p. 69.

13. Dogovir mizh Ukrainoyu ta Rosiiskoyu Federatsiyeyu pro spivrobitnytstvo u vykorystanni Azovskogo morya і Kerchenskoi protoky vid 24.12.2003 (Agreement Between Ukraine and the Russian Federation on Cooperation in the Use of the Sea of Azov and the Kerch Strait of December 24, 2003). URL: https://zakon.rada.gov.ua/laws/show/643_205.

14. Rozporyadzhennya Prezidenta Ukrainy «Pro vnesennya zmin do Rozporyadzhennya Prezidenta Ukrainy vid 6 zhovntya 1998 roku № 515 «Pro okhoronu derzhavnogo kordonu Ukrainy v Azovskomu ta Chormonu moryakh і Kerchenskyi prototsi ta zabespechennya prav Ukrainy u vyklyuchniy (morskiy) economichniy zoni ta contynentalnomu shelfi u pivnichno-skhidniy chastyni Chornogo morya» vid 6 serpnya 1999 roku № 187/99-rp (Decree of the President of Ukraine On Amendments to the President of Ukraine’s Decree #515 of October 6, 1998 «On Protection of the State Border of Ukraine in the Azov and Black Seas and the Kerch Strait and the Protection of Rights of Ukraine in the Exclusive (Marine) Economic Zone and Continental Shelf in the North-East part of the Black Sea» from August 6, 1999, #187/99-rp). URL: https://zakon.rada.gov.ua/laws/show/187/99-%D1%80%D0%BF.

The article addresses the types of modern Ukraine’s maritime areas in light of the norms of international maritime law and national legislation provisions, and analyzes international documents that establish maritime borders between Ukraine and other coastal states.

The authors propose that Ukraine: 1) promptly commences the compulsory conciliation on Ukraine-Russia maritime border delimitation per Article 298(1)(a)(i) and Annex V, section 2 of the United Nations Convention on the Law of the Sea and 2) adopts the laws on the internal waters and the territorial sea of Ukraine.

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This publication has been produced with the support of the European Endowment for Democracy (EED). Its contents do not necessarily reflect the official opinion of EED. Responsibility for the information and views expressed in this publication lies entirely with the authors.