On the Necessity to Adopt a Law of Ukraine on the Territorial Sea of Ukraine in the Sea of Azov and the Kerch Strait and the North-Eastern Part of the Black Sea

14:00 19.08.2024

Ukraine

Dr. Bohdan Ustymenko, Head of the National Security Institute,
Associate Expert at the Center for Global Studies "Strategy XXI

Since 1992, independent Ukraine has sought to operate in its maritime spaces in accordance with international law, as well as to establish a border between Ukraine and the Russian Federation in the Azov and Black Seas and the Kerch Strait.

In 1992, Ukraine deposited with the Secretary-General of the United Nations a list of geographical coordinates of the points of the baselines from which the width of the territorial sea, exclusive economic zone and continental shelf of Ukraine in the Black Sea is measured [1], as well as a list of geographical coordinates of the points of the baselines from which the width of the territorial sea, exclusive economic zone and continental shelf of our state in the Sea of Azov is measured [2].

Thus, back in 1992, Ukraine declared its own maritime spaces in the Azov-Black Sea basin, in particular, the territorial sea of Ukraine in the Sea of Azov (see Figure 1 below).

Map 1 (for demonstration purposes only)

According to the Protocol of the meeting of the delegations of Ukraine and the Russian Federation on determining the legal status of the Azov Sea and the Kerch Strait and delimitation of the continental shelf and the exclusive (maritime) economic zone in the Black Sea of October 17, 1996 [3], the Ukrainian delegation considered it necessary to delimit the state border between Ukraine and the Russian Federation in the Azov Sea and the Kerch Strait in accordance with international law.

The delimitation envisages granting the waters of the Azov Sea and the Kerch Strait the status of internal waters of Ukraine and the Russian Federation.

Resolving the issue of the state border between Ukraine and the Russian Federation in the waters of the Azov Sea, the Kerch Strait, and the Black Sea will allow determining the boundary of sovereignty of each state in this region, which in turn will contribute to the rational management, conservation and balanced use of natural resources, environmental protection, and combating crime [3]. This was the position of the Ukrainian side.

The position of the Russian delegation was that the legal status and regime of use of the Azov Sea and the Kerch Strait are inseparably linked and constitute a single whole, and it would be in the interests of both states to secure the status of inland waters and joint use of the Azov Sea and the Kerch Strait in the absence of any delimitation of their maritime spaces [3].

The Russian position was illegal, but understandable, because by dividing the maritime spaces in the Azov Sea and the Kerch Strait in accordance with the provisions of the 1982 UN Convention on the Law of the Sea, Ukraine extends its sovereignty, gains sovereign and other rights to 2/3 or even 3/4 of the Azov-Kerch water area and the strategically important Kerch-Yenikale Canal. The latter actually connects the Azov and Black Seas. Russia did not want this to happen.

Despite the illegality of the Russian side's aspirations, the then President of Ukraine Leonid Kuchma, guided by the provisions of the Laws of Ukraine "On the State Border of Ukraine", "On the Exclusive (Maritime) Economic Zone of Ukraine", as well as the 1982 UN Convention on the Law of the Sea, by his Order "On Protection of the State Border of Ukraine in the Azov and Black Seas and the Kerch Strait and Ensuring the Rights of Ukraine in the Exclusive (Maritime) Economic Zone and Continental Shelf in the North-Eastern Part of the Black Sea" of October 6, 1998, No. 515 obliged state bodies to protect the state border along a line passing through points with geographical coordinates in the Azov and Black Seas and the Kerch Strait.

Such a temporary state/maritime border is valid until a final agreement is reached between Ukraine and the Russian Federation on the definition of the state border in the Azov and Black Seas and the Kerch Strait and the delimitation of the exclusive (maritime) economic zones and the continental shelf in the northeastern part of the Black Sea [4].

Map 2 (for demonstration purposes only)

The Treaty between Ukraine and the Russian Federation on the Ukrainian-Russian State Border of January 28, 2003 [5], ratified by the Law of Ukraine "On Ratification of the Treaty between Ukraine and the Russian Federation on the Ukrainian-Russian State Border" of April 20, 2004 No. 1681-IV [6], contains a provision that the settlement of issues related to adjacent maritime areas is carried out by agreement between the Contracting Parties in accordance with international law. At the same time, nothing in this Treaty prejudices the positions of Ukraine and the Russian Federation regarding the status of the Azov Sea and the Kerch Strait as internal waters of the two states.

However, as a result of the late 2003 provocation by Russian President Vladimir Putin in the form of unauthorized construction of a dam from the Russian Taman Peninsula to the Ukrainian island of Tuzla, as well as the threat of armed conflict between Ukraine and the Russian Federation that stemmed from it, Ukraine made concessions, and on December 24, 2003, signed an extremely unfavorable for itself agreement with the Russian Federation "On Cooperation in the Use of the Sea of Azov and the Kerch Strait" [7].

According to Article 1 of this treaty, the Azov Sea and the Kerch Strait have historically been internal waters of Ukraine and the Russian Federation, and the Azov Sea will be delimited by the state border line in accordance with an agreement between the Parties.

At the same time, part one of Article 8 of the 1982 UN Convention on the Law of the Sea [8], that has been ratified by both Ukraine and Russia [9], clearly states that internal waters can belong to only one state, not two, as written in the documents "squeezed" out of Ukraine by Russia. In turn, the Kerch Strait has international status under Article 37 of the 1982 UN Convention on the Law of the Sea.

It should be added that the provision of the treaty that the Sea of Azov would be delimited by the line of the state border in accordance with the agreement between Ukraine and Russia has not been implemented.

Russia had no intention of fulfilling its contractual obligations or complying with international law.

Years later, in 2014, Russia occupied Crimea together with about 100,000 square kilometers of Ukrainian maritime space in the Azov-Black Sea basin, which has deprived Ukraine access to enormous natural gas reserves on its own offshore shelf.

On October 12, 2018, in order to protect national interests, repel armed aggression by the Russian Federation, strengthen combat and mobilization readiness of the Armed Forces of Ukraine, other military formations and law enforcement agencies of Ukraine, and stabilize the socio-economic situation in the South and East of Ukraine, the National Security and Defense Council of Ukraine (NSDC) adopted a decision "On Urgent Measures to Protect National Interests in the South and East of Ukraine, in the Black and Azov Seas and the Kerch Strait".

The NSDC, among other things, obliged the Cabinet of Ministers to make a decision within a month to submit to the Verkhovna Rada draft laws on inland waters, the territorial sea and the adjacent zone of Ukraine with the definition of the coordinates of the median line, on amendments to some laws of Ukraine on the protection of the state border, in particular, on determining the procedure and methods of involving units of the Armed Forces, other military formations and law enforcement agencies in the tasks of strengthening the protection (cover) of the state border and sovereign rights.

In our opinion, the NSDC decision on the need to adopt a law on maritime spaces of Ukraine with the definition of the coordinates of the median line can only be welcomed, since such a piece of legislation is perhaps the only way for any coastal state to determine the boundaries of its own territorial sea and fully exercise sovereignty in this maritime zone in case when the neighboring state, whose shores are located across/adjacent to the aforementioned coastal state, ignores the provisions of international law and/or refuses to settle a dispute (conflict) through international legal mechanisms [10].

In that regard, it is worth noting one of the provisions of Article 15 of the 1982 UN Convention on the Law of the Sea, that actually stipulates

that any coastal state has the right to extend its territorial sea to a median line, each point of which is equidistant from the nearest points of the baselines from which the width of the territorial sea of both the state in question and its neighboring state is measured.

Despite the circumstances described above, the Government of Ukraine, unfortunately, has not yet made a decision to submit to the Verkhovna Rada a draft law on maritime spaces of Ukraine with the definition of the coordinates of the median line.

It is a well known fact, that due to the February 24, 2022, Russia's full-scale invasion of Ukraine,

Ukrainian seaports and coasts have been under Russian blockade.

On September 20, 2022, the Verkhovna Rada of Ukraine adopted the Statement "On the Aggression of the Russian Federation in the Black and Azov Seas and the Kerch Strait" [11].

In the Statement, the Ukrainian parliament condemned the state policy of the Russian Federation on the growing militarization of the Black and Azov Seas and the Kerch Strait, and systematic cases of hampering or blocking of international navigation by the Russian Federation, which undermines security and stability in the region and beyond; stated the long-term consistent and systematic nature of Russia's policy aimed at causing progressive damage to Ukraine as a maritime state and obstructing its maritime activities, and Russia's de facto transformation of the Sea of Azov, that contains the territorial sea and exclusive economic zone of Ukraine, into its own “inland lake”; as well as the usurpation of Ukraine's rights and jurisdiction as a coastal state in its maritime areas in the Black and Azov Seas and the Kerch Strait [11].

Eventually, the Verkhovna Rada of Ukraine terminated the Treaty between Ukraine and the Russian Federation on Cooperation in the Use of the Sea of Azov and the Kerch Strait by its Law # 2948-IX of February 24, 2023 [12]. As stated in the explanatory note to the draft law, the implementation of that document will help protect the national interests of the state in the Azov-Kerch water area, terminate the document that illegally restricts international navigation in the region, and bring Ukraine's legal framework in line with the current state of relations with the Russian Federation.

After the denunciation of the Treaty, Ukraine will be able to determine the width of its territorial sea in the Sea of Azov and the Kerch Strait in accordance with the provisions of the 1982 UN Convention on the Law of the Sea, which will allow it to take more effective measures to ensure national security and defense and repel and deter the armed aggression of the Russian Federation from the sea. In addition, the denunciation of the Treaty will formally allow Ukraine to invite US ships to conduct annual Freedom of Navigation Operations (FONOPs), annual joint naval exercises with the United States, the United Kingdom and other NATO member states, as well as regular joint patrols in the Azov-Kerch water area with ships of the United States, the United Kingdom and other NATO member states [13].

The fact that part of the Azov Sea is subject to Ukraine's sovereignty is also recognized by the international community, and, among other things, is confirmed by the European Parliament's resolution "On the situation in the Sea of Azov" of October 25, 2018. According to paragraph 4 of the resolution, the European Parliament reiterates its support for the independence and territorial integrity of Ukraine, reaffirms Ukraine's sovereignty over the Crimean peninsula and part of the Sea of Azov, and Ukraine's absolute right to have full access to the Sea of Azov, per the UN Convention on the Law of the Sea [14].

In turn, subparagraph 40 of paragraph 27 of the Maritime Security Strategy of Ukraine, approved by the Decree of the President of Ukraine # 468/2024 of July 17, 2024 [15], refers to the delimitation of maritime spaces in the Black and Azov Seas and the Kerch Strait with the Russian Federation in accordance with international law as one of the Strategy's tasks.

In view of the above, as well as the provisions of the Constitution of Ukraine, we come to the obvious conclusion that our state faces an urgent need to regulate the issue of the extension of Ukraine's territorial sea as a coastal state to the median line in the Sea of Azov and the Kerch Strait and the northeastern part of the Black Sea by means of the Law of Ukraine. We also consider it expedient to provide in the Law the right of the Cabinet of Ministers of Ukraine to temporarily suspend the exercise of the right of innocent passage by foreign vessels in certain areas of the territorial sea of Ukraine, if such suspension is essential for the protection of Ukraine's security.

The above-mentioned Law will comply not only with the 1982 UN Convention on the Law of the Sea, but also with the UN Charter [16], in particular Article 51, which confirms the inherent right of a member of the Organization to self-defense in the event of an armed attack on it.

In the event that the Law of Ukraine "On the Territorial Sea of Ukraine in the Sea of Azov and the Kerch Strait and the North-Eastern Part of the Black Sea" is adopted, we also recommend considering the feasibility of using the quasi-judicial procedure against Russia, which is provided for by the UN Convention on the Law of the Sea and was used in 2016-2018 by East Timor, a small state in Oceania, against the large Australia. Timor unilaterally convened a special group of international mediators under the auspices of the United Nations, defeating Australia, that was forced to obey international law and sign a delimitation treaty. So far, that has been the sole such precedent in the world. Of course, Russia is not Australia, and the current Russian political regime will not sign a maritime delimitation agreement with Ukraine based on the recommendations of the UN Special Task Force. However, the application of such a procedure in 2024 or 2025 could bring enormous political dividends to our country right now and prepare a solid ground for the delimitation of maritime spaces with Russia in the future in accordance with the provisions of the law of the sea [17].

It should also be noted that the text of the draft Law of Ukraine on the Territorial Sea of Ukraine in the Sea of Azov and the Kerch Strait and the North-Eastern Black Sea has already been developed by the Institute of National Security and can be found in Ukrainian here.

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On the Necessity to Adopt a Law of Ukraine on the Territorial Sea of Ukraine in the Sea of Azov and the Kerch Strait and the North-Eastern Part of the Black Sea

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