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

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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Given the ongoing temporary Russian occupation of the Crimean Peninsula and Russia's aggression against Ukraine since February 2014, the absence of a maritime border between Ukraine and the Russian Federation in the Azov and Black Seas and the Kerch Strait poses a serious threat to our country's national security and defense.

As defined in the Maritime Doctrine of Ukraine for the Period Until 2035, the document that sets out the strategy and directions for Ukraine’s further development as a maritime state (hereinafter -- the Maritime Doctrine of Ukraine),

one of the key pathways for returning the seized territories and securing defense from the sea is delimiting the state border in the Azov and Black Seas and the Kerch Strait, as well as the boundaries of the exclusive maritime economic zones and the continental shelf between Ukraine and Russia in the Black Sea, and ensuring their enhanced protection.

At the same time, we must prevent legitimation of the temporary occupation of the Ukrainian territory, loss of Ukraine’s sovereign rights and jurisdiction over its exclusive maritime economic zone and international recognition of the new territorial division – something the Russian Federation strives for.

Therefore, Ukraine needs to determine legal avenues that will help it achieve these goals.

This article attempts to identify possible ways of applying the legal mechanisms for delimitation of maritime borders between states stipulated in the main international maritime law document, the United Nations Convention on the Law of the Sea (UNCLOS), signed in Montego Bay on December 10, 1982.

For the purposes of our analysis, we will start with UNCLOS Article 298 on optional exceptions to mandatory procedures that entail binding decisions.

According to Article 298, when signing, ratifying or acceding to this Convention or at any time thereafter, a State may, without prejudice to the obligations arising under section 1, declare in writing that it does not accept any one or more of the procedures provided for in section 2 with respect to one or more of the following categories of disputes:

(a) (i) disputes concerning the interpretation or application of articles 15, 74 and 83 relating to sea boundary delimitations, or those involving historic bays or titles, provided that a State having made such a declaration shall, when such a dispute arises subsequent to the entry into force of this Convention and where no agreement within a reasonable period of time is reached in negotiations between the parties,

at the request of any party to the dispute, accept submission of the matter to conciliation under Annex V, section 2; and provided further that any dispute that necessarily involves the concurrent consideration of any unsettled dispute concerning sovereignty or other rights over continental or insular land territory shall be excluded from such submission.

Also, a state that is a party to UNCLOS that has made a declaration under paragraph 1 isn't entitled to submit any dispute falling within the excepted category of disputes to any procedure in this Convention as against another State Party, without the consent of that party.

Therefore, in the light of the possible legal restrictions outlined in Article 298, we must consider the statements by the Russian Federation and Ukraine declaring their refusal to adopt any procedures entailing binding decisions.

That is, in accordance with the Federal Law On Ratification of the United Nations Convention on the Law of the Sea and the Agreement on the Implementation of Part XI of the United Nations Convention on the Law of the Sea [3], the Russian Federation has ratified UNCLOS and the July 29, 1994 Agreement on the Implementation of the Part XI of UNCLOS where, inter alia, stated that it did not accept the procedures provided for in Section 2 of Part XV of the said Convention that entailed binding decisions on disputes concerning the interpretation or application of UNCLOS articles 15, 74 and 83 on the delimitation of sea boundaries.

In turn, Ukraine has also ratified UNCLOS in accordance with the Law on the Ratification of the 1982 United Nations Convention on the Law of the Sea and the Agreement on the Implementation of Part XI of the 1982 United Nations Convention on the Law of the Sea [4] that included a statement that, unless otherwise stipulated in separate international treaties between Ukraine and the relevant States, Ukraine did not recognize binding procedures leading to binding decisions for the consideration of disputes on the delimitation of sea boundaries.

To this day, no separate agreement between Ukraine and Russia stipulating mandatory procedures for the consideration of disputes between them regarding the demarcation of maritime borders has been concluded.

So, using the rights granted by UNCLOS, both Ukraine and the Russian Federation have made statements aimed at avoiding mandatory procedures that entail binding decisions on the parties regarding the interpretation or application of UNCLOS Article 15 Delimitation of the Territorial Sea Between States with Opposite or Adjacent Coasts, Article 74 Delimitation of the Exclusive Economic Zone Between States with Opposite or Adjacent Coasts and Article 83 Delimitation of the Continental Shelf Between States with Opposite or Adjacent Coasts concerning the delimitation of maritime boundaries.

Thus, clearly, courts and arbitral tribunals have no jurisdiction to hear disputes between Ukraine and the Russian Federation regarding the delimitation of maritime borders.

At the same time, it follows from UNCLOS Article 298 and Annex V to the Conciliation Procedure that subject to certain circumstances, a dispute between states regarding the delimitation of maritime borders may be referred to a compulsory conciliation procedure on the initiative of only one of the dispute parties. However, the other dispute party is obligated to give its consent to the conciliation procedure.

The clause is a compromise in the settlement of disputes between states that has resulted from extensive discussions over the UNCLOS draft when some members advocated compulsory and mandatory dispute settlement procedures, while others sought to exclude even the optional dispute settlement procedures.

The first time the compulsory conciliation procedure has been initiated, was by East Timor in April 2016. After several unsuccessful attempts to conclude a delimitation agreement via direct negotiations with Australia following East Timor’s recrudescent sovereign statehood as of May 20, 2002, the latter decided to apply a compulsory conciliation procedure to establish a permanent maritime border between the two countries in the Timor Sea.

As a result, on March 6, 2018, aided by the Conciliation Commission established under UNCLOS Article 298 and Annex V, East Timor and Australia signed a maritime border delimitation agreement with the respective Commission’s report filed on May 9, 2018.

In general, the compulsory conciliation procedure is governed by UNCLOS Annex V that stipulates that a neutral commission is set up to hear the parties, examine their claims and objections, make proposals to the parties, and otherwise assist the parties in a peaceful settlement.

The conciliation procedure is not a judicial process and the Conciliation Commission does not have the authority to obligate the parties to a legally binding decision; instead, the Conciliation Commission may only advise them.

In addition, the Secretary-General of the United Nations plays a critical role in the conciliation process. Namely, according to UNCLOS Annex V, the UN Secretary-General should:

• draw up and maintain a list of conciliators from which the members of the conciliation commission are normally appointed
• appoint members of the conciliation commission when the state-party to the dispute that is not instituting the conciliation proceedings under the conciliation procedure has not done so already
• appoint the fifth member - the Chairman of the conciliation commission - if the four previously appointed members of the conciliation commission have not done so already
• deposit the commission’s report and immediately forward it to all parties to the dispute.

Article 8 of Annex V of UNCLOS also states that parties to the dispute shall notify the Secretary-General of the United Nations in writing on the acceptance of the recommendations of the conciliation commission contained in the report or the rejection thereof.

At the same time, as mentioned earlier,

UNCLOS Article 298 specifies certain circumstances when a dispute on the delimitation of sea boundaries may be transferred to the compulsory conciliation commission.

Such circumstances include:

• the dispute arose after the UNCLOS entry into force
• no delimitation agreement has been reached as a result of the negotiations between the parties
• the submission of a dispute to the Commission precludes consideration of any other dispute that is inevitably linked to the settlement of any outstanding dispute concerning sovereignty or other rights in the continental or insular territory
• the maritime border dispute had not been finally settled between the parties earlier, as evidenced by the lack of an agreement
• the parties to the maritime border dispute have not established a specific procedure for settling the dispute between them by means of a binding agreement.

Let’s take a look at how each of the clauses above applies to the Ukrainian situation:

For instance, in resolution 68/262 from March 27, 2014 Territorial Integrity of Ukraine, the United Nations General Assembly (hereinafter - UNGA or Assembly) inter alia,

• reaffirmed its commitment to the sovereignty, political independence, unity and territorial integrity of Ukraine within its internationally recognized borders;
• urged all states to refuse and refrain from actions aimed at partial or total violation of Ukraine's national unity and territorial integrity, including any attempt to change Ukraine's borders through threats of force or its use or other illegal means;
• stressed that the referendum held in the Autonomous Republic of Crimea and the city of Sevastopol (hereinafter - Crimea) on March 16, 2014 being invalid, could not be the basis for any change in the status of Crimea;
• called on all states, international organizations and specialized agencies not to recognize any change in the status of the Crimea on the basis of the aforementioned referendum and to refrain from any action or steps that could be interpreted as recognition of any such changed status.

In resolution 71/205 from December 19, 2016 The Human Rights Situation in the Autonomous Republic of Crimea and the City of Sevastopol (Ukraine) [9], the UNGA condemned the temporary occupation of Crimea, a territory of Ukraine, by the Russian Federation, and confirmed the non-recognition of its annexation, also condemning the establishment of the RF legal system there and its subsequent negative impact on the human rights situation in Crimea.

In resolution 72/190 from December 19, 2017 The Human Rights Situation in the Autonomous Republic of Crimea and the City of Sevastopol, Ukraine [10], the Assembly condemned the temporary occupation of Crimea by Russia, reaffirmed its non-recognition of the annexation and supported Ukraine’s commitment to adhere to the international law in its efforts to put an end to the Russian occupation of Crimea.

In resolution 73/194 from December 17, 2018 Problem of the Militarization of the Autonomous Republic of Crimea and the City of Sevastopol, Ukraine, as Well as Parts of the Black Sea and the Sea of Azov [11], the UN General Assembly condemned, among other things, the growing military presence of the Russian Federation in the Black and Azov sea regions, including in the Kerch Strait, and Russia's harassment of commercial vessels and restrictions on international shipping there, urging the Russian Federation as an occupying state to withdraw its armed forces from Crimea and immediately end the temporary occupation of Ukraine's territory.

In resolution 73/263 from December 22, 2018 Situation of Human Rights in the Autonomous Republic of Crimea and the City of Sevastopol, Ukraine [12], the Assembly once again condemned the temporary occupation by the Russian Federation and confirmed the non-recognition of its annexation emphasizing that the seizure of Crimea by force was illegal and constituted a violation of international law. In addition, the Assembly emphasized that the territories occupied by the Russian Federation must be returned to Ukraine.

Also, in resolution 74/17 from December 9, 2019 Problem of the Militarization of the Autonomous Republic of Crimea and the City of Sevastopol, Ukraine, as Well as Parts of the Black Sea and the Sea of Azov [13], the UNGA reaffirmed that Russia's seizure of Crimea by force was a violation of international law, stating also that those territories must be immediately returned, and at the same time, called upon the Russian Federation to refrain from impeding the lawful exercise of navigational rights and freedoms in the Black Sea, the Sea of Azov and the Kerch Strait.

Thus, the content of the above six UNGA resolutions on Crimea unequivocally proves that the international community has not recognized the annexation of Crimea and its “accession” to the Russian Federation.

It should be noted here that these UNGA resolutions are sources of international maritime law, as they have been adopted by the Assembly within the powers laid down in Article 10 of the Charter of the United Nations.

In this context, special attention should be paid to the advisory opinion of the International Court of Justice on the legal consequences of the separation of the Chagos Archipelago from Mauritius in 1965, issued on the basis of UNGA resolution 71/292 from June 22, 2017 Request for an Advisory Opinion of the International Court of Justice on the Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965.

According to the legal position of the main UN judicial authority set out in the request received by the International Court of Justice, the Assembly may assume the functions of controlling the states' fulfillment of their responsibilities.

Moreover, the six mentioned Crimean resolutions of the UNGA clearly reflect the principles of international law as set out in the Declaration of Principles of International Law Concerning Friendly Relations and Cooperation Between States, in Accordance with the Charter of the United Nations.

In other words, clearly, the Crimean resolutions have legal significance.

Thus, there is no unresolved dispute between Ukraine and the Russian Federation concerning sovereignty or other rights to the mainland or island territory.

UNCLOS entered into force on November 16, 1994. Between October 16, 1996 and March 3, 2011, Ukraine and the RF conducted over 30 negotiation rounds on the delimitation of the maritime border in the Azov-Black Sea basin with no agreement reached. Thus, the Ukrainian-Russian dispute on the issue clearly dates back to after UNCLOS entering into force.

Considering that the fruitless direct negotiations between the dispute parties lasted for almost 15 years, obviously, any reasonable period of time for reaching a delimitation agreement has long been exhausted.

Despite the continuing Russian occupation and aggression against Ukraine and Russia’s persistent claim to Crimea and Sevastopol [7], the fact that they remain a part of the Ukrainian territory has been reiterated by the international community multiple times.

The maritime border dispute had not been finally settled between Ukraine and the Russian Federation earlier, as evidenced by the lack of an agreement.

Ukraine and the Russian Federation have not established a specific procedure for settling disputes over maritime borders through a binding agreement.

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In view of the above,

the authors of this article consider it expedient to transfer the dispute between Ukraine and the Russian Federation concerning the delimitation of the maritime border in the Azov and Black Seas and the Kerch Strait for settlement via the compulsory conciliation procedure

as per Article 298 and Section 2 of Annex V of UNCLOS, as the resulting report by the conciliation commission would allow the parties to negotiate an agreement on the maritime border.

References:

1.Pro zatverdzhennya Morskoi doktryny Ukrainy na period do 2035 roku: Postanova Kabinetu Ministriv Ukrainy vid 07.10.2009 r #1307 (u redaktsii postanovy Kabinetu Ministriv Ukrainy vid 18.12.2018 #1108). [On adopting the Maritime Doctrine of Ukraine for the Period Until 2035: Decree #1307 of the Cabinet of Ministers of Ukraine from October 7, 2009 (as amended by the Decree #1108 of the Cabinet of Ministers of Ukraine from December 18, 2018 № 1108)]. URL: https://zakon.rada.gov.ua/laws/show/1307-2009-%D0%BF

2.United Nations Convention on the Law of the Sea from December 10, 1982 ratified by the Law of Ukraine Pro ratyfikatsiiu Konventsii Organizatsii Obyednanykh Natsiy z vorskogo prava 1982 roku ta Ugody pro implementatsiyu Chastyny XI Konventsii Organizatsii Obyednanykh Natsiy z morskogo prava 1982 roku #728-XIV from June 3, 1999 [On Ratification of the 1982 United Nations Convention on the Law of the Sea and the Agreement Relating to the Implementation of Part XI of the 1982 United Nations Convention on the Law of the Sea]. URL: https://zakon.rada.gov.ua/laws/show/995_057

3.O ratifikatsii Konventsii Organizatsii Obyedinyonnykh Natsii po morskovy pravu i Soglasheniya ob osushestvlenii chasti XI Konventsii Organizatsii Obyedinyonnykh Natsii po morskovy pravu: Federalnyi zakon ot 26.02.1997 g #30-FZ [On Ratification of the United Nations Convention on the Law of the Sea and the Agreement Relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea: Federal Law #№ 30-FZ from February 26,1997]. URL: www.kremlin.ru/acts/bank/10594

4. Pro ratifikatsiyu Konventsii Organizatsii Obyednanykh Natsiy z morskogo prava 1982 roku #728-XIV from June 3, 1999 [On Ratification of the 1982 United Nations Convention on the Law of the Sea and the Agreement Relating to the Implementation of Part XI of the 1982 United Nations Convention on the Law of the Sea]. URL: https://zakon.rada.gov.ua/laws/show/728-14

5. Y. Tanaka, The International Law of the Sea, 3rd ed. (Cambridge University Press, 2019) - 557 c. 6. Treaty Between the Democratic Republic of Timor-Leste and Australia Establishing their Maritime Boundaries in the Timor Sea: Treaty signed by the Parties on March 6, 2018. URL: https://pcacases.com/web/sendAttach/2356

7. O prinyatii v Rossiiskuyu Federatsiyu Respubliki Krym i obrazovanii v sostave Rossiiskoy Federatsii novykh subyektov — Respubliki Krym i goroda federalnogo znacheniya Sevastopolya: Federalnyi konstitutsionnyi zakon ot 21.03.2014 g #6-FKZ [On Admitting to the Russian Federation the Republic of Crimea and Establishing Within the Russian Federation the New Constituent Entities of the Republic of Crimea and the City of Federal Importance Sevastopol: Federal Constitutional Law of the RF #6-FKZ from March 21, 2014]. URL: http://www.kremlin.ru/acts/bank/38220/page/1

8. Territorial Integrity of Ukraine: Resolution 68/262 adopted by the UN General Assembly on March 27, 2014 (the 68th Session of the GA, agenda item 33 b).URL: https://undocs.org/ru/A/RES/68/262

9. Situation of Human rights in the Autonomous Republic of Crimea and the City of Sevastopol (Ukraine): Resolution 71/205 adopted by the UN General Assembly on December 19, 2016 (the 71st Session, agenda item 68 c). URL: https://undocs.org/ru/A/RES/71/205

10. Situation of Human rights in the Autonomous Republic of Crimea and the City of Sevastopol (Ukraine): Resolution 72/190 adopted by the UN General Assembly on December 19, 2017 (the 72nd Session, agenda item 72 c). URL: https://undocs.org/ru/A/RES/72/190

11. Problem of Militarization of the Autonomous Republic of Crimea and the City of Sevastopol (Ukraine), as well as Parts of the Black Sea and the Sea of Azov: Resolution 73/194 adopted by the UN General Assembly on December 17, 2018 (the 73rd Session, agenda item 34a). URL: https://undocs.org/ru/A/RES/73/194

12. Situation of Human rights in the Autonomous Republic of Crimea and the City of Sevastopol, Ukraine: Resolution 73/263 adopted by the UN General Assembly on December 22, 2018 (the 73rd Session, agenda item 34c). URL: https://undocs.org/ru/A/RES/73/263

13. Problem of Militarization of the Autonomous Republic of Crimea and the City of Sevastopol (Ukraine), as well as Parts of the Black Sea and the Sea of Azov: Resolution 74/17, adopted by the UN General Assembly on December 9, 2019 (the 74th Session, agenda item 31а Prevention of armed conflict). URL: https://digitallibrary.un.org/record/3841716?ln=ru

14. The Charter of the United Nations from June 26, 1945 г. URL: https://www.un.org/ru/charter-united-nations/index.html

15. Request for an Advisory Opinion of the International Court of Justice on the Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965: Resolution 71/292 adopted by the UN General Assembly on June 22, 2017 (the 71st Session, agenda item 87). URL: https://undocs.org/pdf?symbol=ru/A/RES/71/292

16. Declaration of Principles of International Law Concerning Friendly Relations and Co-operation Between States, in Accordance with the Charter of the United Nations adopted by the resolution 2625 (XXV) of the UNGA from October 24, 1970 URL: https://www.un.org/ru/documents/decl_conv/declarations/intlaw_principles.shtml

17. Decision on Australia’s Objections to Competence of 19 September 2016. URL: https://pcacases.com/web/sendAttach/1921

18. Report and Recommendations of the Compulsory Conciliation Commission Between Timor-Leste and Australia on the Timor Sea of 9 May 2018. URL: https://pcacases.com/web/sendAttach/2327

19. Legal consequences of the separation of the Chagos Archipelago from Mauritius in 1965, ICJ Advisory Opinion of 25 February 2019. URL: https://www.icj-cij.org/files/case-related/169/169-20190225-01-00-EN.pdf

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^[1] Legal consequences of the separation of the Chagos Archipelago from Mauritius in 1965, ICJ Advisory Opinion of 25 February 2019, p. 39, pargraph 167. URL: https://www.icj-cij.org/files/case-related/169/169-20190225-01-00-EN.pdf.

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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.