Maritime Security of Ukraine. A Reference Work. (9) The Delimitation of the Sea of ​​Azov and the Kerch Strait According to the UN Convention on the Law of the Sea

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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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.

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.

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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.

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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.