Maritime Security of Ukraine. A Reference Work. (14) Threats of Maritime Formats Involving the Russian Federation

Bohdan USTYMENKO,
M.J., Attorney at Law

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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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.

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.

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.

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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.