Maritime Security of Ukraine. A Reference Work. (7) "Internal Waters" and Borders in the Sea of ​​Azov and the Kerch Strait

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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About "the internal waters"

It should also be noted that the Kerch Treaty statement regarding the Sea of Azov and the Kerch Strait being the «internal waters of Ukraine and the Russian Federation» contrasts with the provisions of the 1982 United Nations Convention on the Law of the Sea (hereinafter — the UNCLOS), to which both Ukraine and the Russian Federation are parties, since according to Articles 8 and 10 of the Convention, internal waters may belong to no more than one state.

In addition, Article 8 of the UNCLOS establishes that only waters on the landward side of the baseline of the territorial sea form part of the internal waters of the State.

Thus, the Sea of Azov and the Kerch Strait are not «internal waters» of either Ukraine, the Russian Federation, or the two States combined and so, the first paragraph of Article 1 of the Kerch Treaty directly contradicts Articles 8 and 10 of the UNCLOS.

About the borders in the Sea of Azov and the Kerch Strait

Also, the second paragraph of Article 1 of the Kerch Treaty states that the Sea of Azov is demarcated by the state border in accordance with the agreement between the Parties.

To that end, since declaring independence, Ukraine has insisted on dividing the area of the Azov-Kerch water area and establishing a delimitation line, including in the Black Sea, in accordance with the UNCLOS.

For instance, in 1992, in response to the invitation of the UN Secretary General to participate in the Convention on the Law of the Sea, Ukraine turned in to the UN a list of geographical coordinates of the points defining baselines for measuring the widths of the territorial sea, the exclusive economic zone and the continental shelf in the Black and Azov Seas.

However, despite the 36 negotiation rounds between Ukraine and the Russian Federation that followed between October 16,1996 and March 3, 2011, the Azov-Kerch waters were not demarcated by a state or sea border, as the Russian side did not wish to establish a border under the UNCLOS and deliberately stalled the negotiations.

The Russian Federation has also refused to delimit the Azov-Kerch waters on the basis of the republican borders marked on the Soviet maps.

To be continued...

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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.