Nadia Serbenko
Even the most ancient civilizations that once existed on the territory of modern Ukraine, did have two major components – tellurocracy and thalassocracy - i.e., the land and sea power, respectively.
Today, these same components are integral parts of a geopolitical factor in the formation of Ukraine's foreign policy. The occupation and subsequent annexation of the Crimea by Russia has further exacerbated the unresolved issues regarding the delimitation of the Azov Sea and the bilateral use of the Kerch Strait. Certainly, from geopolitical, geostrategic and international law point of view - this is one of the main factors affecting the relations between Ukraine and the Russian Federation, and its resolving will have an impact not only on their bilateral relations, but also on the stability of the Black Sea region as a whole. Both countries are also showing interest in the natural resources of the Azov Sea, because there are not only a lot of valuable fish species, but also reserves of gas and gas condensate there.
Now, however, there is a paradoxical situation. For de jure after the annexation of the Crimea the status of the Kerch Strait was in no way changed. It remained the same, as defined by bilateral agreements between Ukraine and Russia. Besides, according to the Law of Ukraine “On Ensuring the Rights and Freedoms of Citizens and Legal Regime of the Temporarily Occupied Territory of Ukraine” of April 15, 2014, Ukraine does not recognize the Crimea's becoming part of the Russian Federation, and, therefore, the temporarily occupied Crimean territory, internal waters and the territorial sea of Ukraine around the Crimean peninsula are an integral part of our (Ukrainian!) territory. But de facto it is Russia that rules there, as it believes that having legally fixed the Crimea's entry into the Russian Federation as a subject of the Federation, it automatically has the right to the Kerch Strait too.
But the Kerch Strait, as before is a public water area where unilateral actions is possible, but all questions about the use of the waters of the Strait should be resolved with the consent of the parties, in accordance with the agreements. As for Russia's local management, the mandatory fees taken from merchant ships in the Kerch Sea-Trade Port goes into the state budget of the occupier country (which is more than one hundred ships in the course of the year and millions of dollars!), although the port is subject to the EU's sanctions due to its being illegally expropriated by the occupants. Besides, the Russian Federation has again returned to the idea of construction of a transport (road and rail) passage planning to have built it by the end of 2018 (from the filled up and restored Tuzla Spit on the Taman Peninsula through Tuzla Island to the Kerch Peninsula). The aim of the construction of a transport passage through the Kerch Strait is to ensure traffic (primarily road) between the mainland and the Crimean Peninsula, where Russia already considers itself “the rightful owner”. That is because Russia failed to capture the eastern part of Ukraine, its leadership decided to connect the “Russian territories” (mainland Russia and the Crimea) in a different way.
Don't forget that January 29, 2014 the Ukrainian government approved the signed December 17, 2013 in Moscow Agreement between the Cabinet of Ministers of Ukraine and the Government of the Russian Federation on joint actions in the construction organization of transport crossing (passage) through the Kerch Strait. In fact, the parties agreed that in 2014, after engineering studies they would jointly develop a feasibility study (FS), which will analyze the existing and the calculated future flows of goods and passengers, determine the future type of transport crossing (tunnel or bridge), options of design and construction. The feasibility study was supposed to include the possibility of arrangement of roads and railways, construction of new and development of existing checkpoints across the state border. Besides, the FS was planned to determine the model of the investment project. The feasibility study was expected to be done by the end of 2014. And here we return again and again to the fact that no agreement with Russia is worth the paper on which it is signed...
So, today the Kerch Strait is the only natural way connecting the Azov and Black Seas, and by its legal status and regime it is closely linked to the Sea of Azov. It is therefore necessary to consider this question only in relation to the status and the regime of the Sea of Azov, and to determine the main aspects (ownership and management regime) from both, formal-legal and political points of view.
Thus, the current status of the Azov Sea and the Kerch Strait is determined by the Agreement between the Russian Federation and Ukraine on the Russian-Ukrainian State Border (January 28, 2003) and the Agreement between the Russian Federation and Ukraine on Cooperation in the Use of the Sea of Azov and the Kerch Strait (December 24, 2003).
The first Agreement determines the status (Article 5) as internal waters of the two states. It also mentions that the settlement of issues related to adjacent maritime areas is carried out only by agreement between the parties in accordance with international law.
As for the second of the above-mentioned Agreements, the Sea of Azov and the Kerch Strait historically (Article 1) are the internal waters of Ukraine and the Russian Federation. This means that they are subject to the sovereignty of both, Ukraine and the Russian Federation. Apart from this, the Agreement has it that the Azov Sea is divided by the line of the state border in accordance with the agreement between the parties. An important provision of Article 1 is that the resolution of questions regarding the Kerch Strait is also carried out by a subsequent agreement (which, if necessary, must be signed) between the parties. Thus, in these existing Agreements between the Russian Federation and Ukraine, not a word is said about the existence of any border in the Kerch Strait.
Apart from the acting main Agreements, the following documents are considered as those regulating the issue of the Kerch Strait:
- - Agreement between the Government of the Russian Federation and the Government of Ukraine on Merchant Shipping (signed in Kyiv on February 8, 1995, came into force May 27,1995);
- - Agreement between the Government of the Russian Federation and the Government of Ukraine on Border Inspection Points between the Russian Federation and Ukraine (signed in Kyiv February 8,1995 , came into force November 3, 1995);
- - Agreement between the Government of the Russian Federation and the Government of Ukraine on Amendments to the Agreement between the Government of the Russian Federation and the Government of Ukraine on the Border Inspection Points between the Russian Federation and Ukraine of February 8, 1995 (signed in Moscow February 15, 2011, came into force March 29, 2012);
- - Agreement between the Government of the Russian Federation and the Government of Ukraine on Cooperation in the Joint Control of Persons, Vehicles and Goods on the Russian-Ukrainian State Border (signed in Donetsk October 18, 2011; came into force December 4, 2012);
- Protocol between the Government of the Russian Federation and the Government of Ukraine on Amendments to the Agreement between the Government of the Russian Federation and the Government of Ukraine on Cooperation in Joint Control of Persons, Vehicles and Goods on the Russian-Ukrainian Border of October 18, 2011 (signed in Moscow December 17, 2013) - is an integral part of the above-mentioned Agreement;
- Agreement between Ukraine's State Committee for Fisheries and the Russian Federation's Committee for Fisheries of September 14, 1993 (the main points: the resources of the Azov Sea are a joint property of Azov states, fishing in the Sea of Azov is allowed only for ships flying the flag of Ukraine and Russia; a joint commission on fisheries is created);
- Agreement between the Russian Federation and Ukraine on the Russian-Ukrainian State Border (signed in Kyiv January 28, 2003, came into force April 23, 2004);
- Agreement between the Russian Federation and Ukraine on Cooperation in the Use of the Azov Sea and the Kerch Strait (signed in Kerch December 24, 2003, came into force April 23, 2004);
- Agreement between the Government of the Russian Federation and the Government of Ukraine on Cooperation in Maritime and Aviation Search and Rescue in the Black and Azov Seas (signed in Kyiv October 27, 2010, came into force September 30, 2011);
- Agreement between the Government of the Russian Federation and the Government of Ukraine on Measures to Ensure Safety of Maritime Navigation in the Sea of Azov and the Kerch Strait (signed in Moscow March 20, 2012, came into force November 5, 2012);
- Agreement between the Government of the Russian Federation and the Government of Ukraine on Cooperation and Coordination in Developing Crossing Points on the Russian-Ukrainian State Border (signed in Donetsk October 18, 2011; came into force June 18, 2012);
- Agreement between the Ministry of Transport of the Russian Federation and the Ministry of Transport and Communications of Ukraine on the Direct International Railway-Ferry Communication through PortsKavkaz (Russia) and Crimea (Ukraine) of November 12, 2004, (signed in Kyiv November 12, 2004; came into force November 12, 2004);
- Agreement between the Government of the Russian Federation and the Government of Ukraine on Joint Actions on the Construction of a Transport Passage through the Kerch Strait (signed in Moscow December 17, 2013; came into force February 11, 2014);
- Agreement between the Government of the Russian Federation and the Government of Ukraine on Visa-Free Travel of Citizens of the Russian Federation and Ukraine (signed in Moscow January 16, 1997, amended by the Agreement of January 30, 2015 concerning the termination of certain provisions of the Agreement between the Government of the Russian Federation and the Government of Ukraine on Visa-Free Travel of Citizens of the Russian Federation and Ukraine).
However, the most important for our study are the Agreement between the Russian Federation and Ukraine on the Russian-Ukrainian State Border (from 28.01.2003) and the Agreement between the Russian Federation and Ukraine on Cooperation in the Use of the Azov Sea and the Kerch Strait (from 24.12. 2003), because they determine the regime and status of the Azov Sea and the Kerch Strait. Other aforementioned agreements are related to purely technical procedures, the order of execution of port control, as well as cooperation in the field of safety of navigation.
And now let us try and determine the origins of the status of the Azov Sea and the Kerch Strait, confirmed today in two (above-mentioned) main Agreements. To do this, we should refer to the historical aspects of this issue. The fact is that before the collapse of the Soviet Union and the former Soviet republics' getting independence, the problem of determining the legal status and mode of use of the Azov Sea and the Kerch Strait did not exist.
Before 1453 their usage mode had been determined by Byzantium (that is, before the capture of Constantinople by the Turkish troops), then their (the Sea of Azov's and the Kerch Strait's) coasts belonged to the Ottoman Empire. After it, the Russian Empire spread its sovereignty onto the Sea of Azov and the Kerch Strait (it was after the victory of the Russian fleet in the Battle of Chesma in 1770, that the whole water area of the Sea of Azov, including the Kerch Strait, became an integral part of the Russian Empire, which was confirmed in Kuchuk Kaynardzhi Peace Treaty of July 10th, 1774) and, accordingly, of the Soviet Union - as the successor, and because of geographical features and geo-strategic interests, they were used exclusively as internal waters.
After the collapse of the Soviet Union there arose a question about changing the legal status of the Sea of Azov and the Kerch Strait, as access to the Sea of Azov and the Kerch Strait was received by two sovereign states - Ukraine and the Russian Federation. The Azov Sea has lost the status of the inland sea, the coast of which used to belong to one state. Under such circumstances, to determine the status of the Azov Sea and the Kerch Strait, the scientists, experts and researchers on the issue suggested several approaches - namely, to consider them:
- a Enclosed/Semi-enclosed sea with separate territorial waters and exclusive economic zones of Russia and Ukraine, respectively;
- historically internal waters of both the countries;
- an open sea, and the Kerch Strait - as an international strait divided between Ukraine and Russia.
So, we come to the fact that the Agreement between the Russian Federation and Ukraine on Cooperation in Using the Azov Sea and the Kerch Strait (of December 24, 2003) enshrines the second approach, namely: the Kerch Strait is “historically an internal strait”, leading into historic internal waters of Ukraine and Russia (the Azov Sea). This means that the provisions of Part III of the UN Convention on the Law of the Sea of 1982 cannot be applied to the Kerch Strait, because it is a national sea route. That is, only Ukraine and the Russian Federation have the right to determine the legal mode of the Kerch Strait within the framework of international law and to spread their state sovereignty to their own parts of it.
That is why the Agreement between the Russian Federation and Ukraine on Cooperation in Using the Azov Sea and the Kerch Strait (of December 24, 2003) clearly determines the mode of using them. In accordance with Article 2, merchant vessels and warships and other national vessels under the flag of Ukraine or the Russian Federation, used for non-commercial purposes, have freedom of navigation in the Azov Sea and the Kerch Strait. Merchant ships under the flags of third countries may enter the Sea of Azov and the Kerch Strait to go through if they are sent to a Ukrainian or Russian port or returning from it. Warships and other national ships of third countries used for non-commercial purposes may come into the Sea of Azov and the Kerch Strait to go through if they are sent on a visit or business entry into a port of a Party by invitation or permission, agreed with the other Party.
Ukraine and Russia also determined the scope of bilateral cooperation in the Azov-Kerch water area - a joint activity in the areas of navigation (including its regulation and navigation equipment); fisheries; protection of the marine environment; environmental safety, as well as search and rescue in the Azov Sea and the Kerch Strait (Art. 3 of the Agreement).
But let us consider some theoretical aspects of the issue.
For example, in contemporary international law there is no such term as “historic sea, strait or gulf”. Although the United Nations Convention on the Law of the Sea of 1982 does determine the status of particular historical bays, but international traditions allow to recognize as historical also other maritime areas, seas included. Seas of gulf type or gulfs encircled by the coasts of one state, despite the fact that they are connected to the ocean (for example, the White Sea) and the width of the entrance to them is more than 24 miles, are internal waters of the state due to their specific economic or military importance for the country or historical tradition. An example of this can be the White and the Kara Sea, Laptev Sea, the Chukchi and the East Siberian Sea, historically considered Russia's inner seas. As for other examples, in the United States there are historic Bays of Gesalik, Delaware, Monterey; in Canada - Hudson Bay; in Norway - Varanger Fjord Gulf; in the United Kingdom - Bristol Bay, the Firth of Forth and the Moray Firth; in Argentina - San Matias Gulf, San Jorge and Nuevo.
Besides, the Doctrine of International Maritime Law determines the grounds for recognition of maritime areas historically internal. For example, V. Ya. Suvorova (International law. Ural State Law Academy. Yekaterinburg, 2008) points out that such areas belong to inland sea waters of a certain state due to the fact that they are “... traditionally, due to geographical features, as well as economic and defense significance belonged to this state, which can be qualified as a recognized by other states traditional norm”.
According to the Canadian scientist D. Faran, the main criteria for sea waters being considered historic are as follows:
- exclusive power and control over such waters and their special geographical position;
- spreading of the coastal State's sovereignty onto historic waters for a long time, though the duration of the specific period depends on the circumstances;
- tacit consent of other countries (no persistent objector), especially of those whose interests may be violated by this status.
That is, while in the example with the Russian Federation's inner seas there are no issues, in our case - the situation is quite different, as the Sea of Azov and the Kerch Strait, respectively, are historically internal waters of two states.
So, the current Doctrine of International Maritime Law does not answer the question of whether the inland sea may historically belong to one state or to two or more states, and there is no relevant practice on this issue ether.
Scientists often refer to the recognition as historic of internal waters of the estuary of the River de la Plata (formed by the confluence of the Uruguay and Parana Rivers), the shores of which belong to Argentina and Uruguay. However, to refer to this example in our case is impossible, because in it the status of historic inland waters of the two states got river waters, to which the rules of international maritime law do not apply. That is, to use the example of the estuary of the River de la Plata in regard to the Sea of Azov is unacceptable.
If we talk about traditional nature of the status of the Azov-Kerch water area, it should be noted that at the bilateral level, Ukraine and Russia were unable to establish the status of historic internal waters towards the Sea of Azov and the Kerch Strait, they could just state it. Since the status of these waters as historically domestic has to be recognized by the international community as a whole and, as a minimum, it should be recognized by all the states concerned.
One of the main reasons for enshrining in the Agreement between the Russian Federation and Ukraine on Cooperation in the Use of the Azov Sea and the Kerch Strait (of December 24, 2003) of such (uncertain!) status of the Azov-Kerch water area - was the unwillingness of the Russian side to delimitate, and then - demarcate of the Ukrainian-Russian border. At this, there were 36 rounds (the last was held in 2011 in Kyiv) of negotiations on these issues, but unfortunately, with no desired results. An important step in this context was the signing on the 17th of May 2010 of the Agreement between Ukraine and the Russian Federation On the Demarcation of the Ukrainian-Russian State Border (came into force July 29, 2010) which provided for formation of the Joint Ukrainian-Russian Demarcation Commission (further talks were conducted within the framework of meetings of this Commission).
The commitment of the demarcation of the Ukrainian-Russian state border established by the Agreement between Ukraine and the Russian Federation on the Ukrainian-Russian state border on 28 January 2003 was reconfirmed too. In May 2008 the government delegations of Russia and Ukraine agreed on methods of determining the state border between Russia and Ukraine in the Azov Sea on the basis of the combination of methods of the median and equidistance lines. Later, the experts had to calculate the length of the coast of the Azov Sea in the Russian and Ukrainian side to determine the dividing line. But soon, the Russian side announced that this technique required further clarification and it did not agree with it.
In general, the positions of the sides are as follows.
Ukraine: delimitation of the maritime state border in the Kerch Strait should be realized through the administrative border between the Ukrainian SSR and the RSFSR with the principle of uti possidetis by the formula: hold what you held, which was used by former republics of Yugoslavia regarding the waters of the Adriatic Sea; the link to this principle can also be found in Article 2 of the Federal Law On the State Border of the Russian Federation dated April 4, 1993: “... the state border of the Russian Federation is the border of the Russian Federation, which is confirmed by existing international agreements and legislative acts of the former USSR” and “... the borders of the Russian Federation with the adjacent states, not officially formatted in the international legal order, are subject to their legal confirmation in agreements”.
By the way, the Russian-Estonian border in the Narva Bay and the Gulf of Finland, on Russia's demand, was drawn along the former Soviet administrative borders.
That is, it is extremely important for the Parties to legally recognize the already existing border in the Kerch Strait in compliance with the provisions of the UN Charter, the Final Act of the Conference on Security and Cooperation in Europe of 1975 and the Treaty of Friendship, Cooperation and Partnership between Ukraine and the Russian Federation on May 31, 1997, which Russia blatantly violated and continues to violate, through the occupation and annexation of the Crimea, as well as the continued occupation of a part of Donetsk and Luhansk regions.
Russia - does not recognize the fixed line of the Soviet administrative border between the Ukrainian SSR and the Russian Federation as the state border and offers:
to carry out the delimitation of the border along the Kerch-Yenikal Canal axis;
not to delimit the Kerch Strait and to establish the mode of “sharing” without delimitation;
to establish in the Kerch Strait maritime coastal areas, which would be within the sovereignty of Russia and Ukraine, but the rest of the Kerch Strait would be coexisting area on specially agreed terms.
So, the Agreement between Ukraine and the Russian Federation on the Ukrainian-Russian State Border of January 28, 2003, can be considered a certain compromise between these positions, even though with violations of international law in general and of the international law of the sea - in particular.
At the same time, according to most of the leading Western experts, in accordance with the UN Convention on the Law of the Sea, the Sea of Azov (due to its geographical characteristics) has to have the status of the Enclosed/Semi-enclosed sea with further demarcation of the border.
Thus, according to Article 122 of the UN Convention on the Law of the Sea of 1982, an Enclosed or Semi-enclosed Seas means a gulf, basin or sea surrounded by two or more states, joined to another sea or the ocean by a narrow outlet, or consisting entirely or primarily of territorial seas or exclusive economic zones of two or more coastal States.
So, the United Nations Convention on the Law of the Sea allows two cases for recognition of maritime spaces as Enclosed (or Semi-enclosed):
first - a gulf, bay or sea surrounded by two or more states and is connected to another sea or the ocean by a narrow outlet;
second – a gulf, bay, or sea, which consists entirely or primary of territorial seas and exclusive maritime economic zones of two or more states.
So, the Sea of Azov, by virtue of its geographical characteristics, should be recognized as Enclosed (or Semi-enclosed) Sea whether it has the status of internal waters or not. And in case of the Sea of Azov's getting the status of a Enclosed sea, it will be necessary to determine inland seas, exclusive economic zones of Ukraine and Russia, and this, in turn, according to the UN Convention on the Law of the Sea of 1982, leads the Sea of Azov 's getting international maritime spaces with international legal modes, that will allow third countries to exercise the right of free navigation on the entire Sea of Azov (except water areas with the status of the territorial sea).
And now let's look more attentively at Article 2 of the Agreement between the Russian Federation and Ukraine On Cooperation in Use of the Azov Sea and the Kerch Strait (of December 24, 2003).
It stipulates that merchant ships under the flags of third countries may enter the Sea of Azov and the Kerch Strait to go through if they are sent to the Ukrainian or Russian port or returning from it; warships or other national ships of third countries operated with non-commercial purposes, may come into the Sea of Azov and the Kerch Strait to go through if they are on a a visit or a business call at the port of one of the Parties at its invitation or permission, agreed with the other Party.
But these two provisions in Article 2 are a direct violation of the right of states having no access to and from the sea and freedom of transit, as provided for by Article 125 of the UN Convention on the Law of the Sea of 1982, because it is the Kerch Strait, the Sea of Azov, the River Don, the Volga and the Volga-Don Canal that the only waterway connects the Black and Caspian Seas, and which could be used as a transit way for Caspian states - Azerbaijan, Kazakhstan, Turkmenistan and Iran.
Possibly today Russia does allow these countries to pass through this “one and only waterway” for a fee that comes into its budget, but this must necessarily find its legal consolidation and the provisions of the Agreement between the Russian Federation and Ukraine On Cooperation in Use of the Sea of Azov and the Kerch Strait (of December 24, 2003).
Besides, this right does not come only from the norms of the UN Convention on the Law of the Sea of 1982, but also from the universally recognized international legal customs (traditions), as evidenced by the practice of international courts. Thus, by its decision of April 12, 1960, the International Court of Justice recognized Portugal's right to transit passage through the territory of India to the former's then enclave possessions Dadra and Nagar Haveli.
Conclusions and Suggestions.
The Kerch Strait, due to its unique geographical location, has a weighty geostrategic importance for both Ukraine and the Russian Federation. A well-developed transport infrastructure (first of all, of ports and Kerch-Yenikal Canal) making it one of the most promising transit routes of the Azov Sea and the Black Sea areas. Today, the possibility of Ukraine and Russia in the Azov-Black Sea region are completely asymmetrical, because Russia de facto rules in the Azov-Kerch water area, collecting a fee for the passage of vessels, and having started planning for the construction of the crossing of the Strait. Today are being made public a lot of thoughts, especially by the Russian side, that the need for maritime delimitation in the Azov Sea has been taken off the agenda due to the Crimea's becoming part of the Russian Federation. But this is not so, because the Agreement between Ukraine and the Russian Federation On Cooperation in Use of the Azov Sea and the Kerch Strait (of December 24, 2003) is still valid, despite the both sides' attempts to denounce it (both in Ukraine and in Russia, there had been draft laws to denounce this Agreement). Other bilateral agreements and treaties on cooperation in using the Azov Sea and the Kerch Strait mentioned in this article, are still valid.
The bilateral recognition of the Azov Sea and the Kerch Strait as “historic internal waters of Ukraine and Russia” in the Agreement between Ukraine and the Russian Federation On Cooperation in Use of the Sea of Azov and the Kerch Strait (of December 24, 2003) does not comply with international law and, in particular with the international maritime law, and violates the rights of other states, first of all, of the Caspian ones. Since the concept of historic internal sea waters has traditional character, the question of attribution of certain maritime areas to this category must be carried out by the states concerned in the absence of other states' objecting. Also today, we do not know about other cases of recognition of maritime areas historically internal waters of the two states at the same time. That is, just because of the inconsistency of positions of the parties in the Agreement between the Russian Federation and Ukraine On Cooperation in Use of the Azov Sea and the Kerch Strait (of December 24, 2003) there was secured exactly such status of the Azov Sea and the Kerch Strait and, thus, problems of delimitation of waters and natural resources of the Azov-Kerch basin still have not been solved.
In accordance with the provisions of the UN Convention on the Law of the Sea of 1982, the Sea of Azov should be determined as a Enclosed (Semi-enclosed) sea, with the establishment and delimitation of territorial seas and exclusive economic zones of Ukraine and Russia, as well as with fixing of such a mode of using of the waters of the Azov Sea and the Kerch Strait which would not contradict the norms and principles of modern international law of the sea. That is, all this should be done within the framework of the general rules of international maritime law on maritime delimitation, namely: the provisions of universal treaty norms and usual norms of international law established for maritime delimitation of the territorial sea, exclusive economic zones and continental shelf between adjacent coastal states.
Based on the current situation, in the future, it is advisable to develop and adopt a multilateral convention (with participation of Ukraine, Russia and the Caspian states) to the maximum to ensure the rights of all interested countries. Besides, in the future it is necessary and appropriate to develop and adopt a Law of Ukraine On Inland Waters, Marine Areas and the Adjacent Zone of Ukraine (all previous attempts to adopt such a law were repeatedly blocked in our Parliament).
Although now in the situation of Russia's annexation of the Crimea and aggression in the East of Ukraine, the problematic issue of the delimitation and demarcation of the Sea of Azov and the Kerch Strait is considered untimely, it should not be postponed. Because when the Russian-Ukrainian conflict in the Donbas is over and the Crimea returns to Ukraine, the problem of delimitation and demarcation of both land and, above all, the maritime borders with the Russian Federation, will come to the fore in relations between the states. Besides, in the scientific and theoretical context of international maritime law, this issue will be an important precedent for the settlement of international legal situations of this kind regarding marine areas in relations between other countries.
