Tensions seem to be on the rise between Ukraine and Russia. Yesterday multiple media sources reported that Russia plans to close off parts of the Black Sea and the Kerch Strait between April 24 and October 31. The restrictions were said to apply to military vessels and other government vessels. The reports also state Ukraine’s opposition to this and that it would violate international law, specifically freedom of navigation, regarding international straits.
Today, updates to the reporting said that the Kerch Strait would not be blocked, but just parts of the Black Sea, for military exercise purposes.[1]
Background:
Ukraine’s issues regard both their rights as a coastal state and their rights as a flag state. The Kerch Strait connects the Sea of Azov to the Black Sea. The only two states in the Sea of Azov are Ukraine and Russia. Since Crimea is now part of Russia (not going to give a political stance, although most sources consider it an annexation), Russia has sole control over the strait. Both Russia and Ukraine have ratified the Law of Sea Convention. They have also signed a bilateral treaty regarding this area:
December 24th, 2003 – Agreement on Cooperation on the use of the Sea of Azov and the Kerch Strait was signed by Russia and Ukraine.[2]
- The Sea of Azov was to be considered internal waters of both countries
- No delimitation was agreed regarding boundaries
- Foreign-flagged Russian and Ukrainian merchant vessels have freedom of navigation
- Other merchant vessels can pass the Kerch Strait if going to a port
- Military and state vessels by invitation or permission only
Most significant in this agreement is that the countries believe that the Sea of Azov is considered to be their internal waters.
Internal Waters and Straits under the Law of Sea Convention:
Internal waters are defined in the Law of Sea Convention (LOSC)[3] as:
Article 8
Internal waters
- Except as provided in Part IV, waters on the landward side of the baseline of the territorial sea form part of the internal waters of the State.
- Where the establishment of a straight baseline in accordance with the method set forth in article 7 has the effect of enclosing as internal waters areas which had not previously been considered as such, a right of innocent passage as provided in this Convention shall exist in those waters.
How do the rights to pass through the strait under the LOSC affect a strait that leads to internal waters?
Article 38(2) prescribes the right of transit passage through international straits when one end of the strait is an exclusive economic zone or the high seas and connects to another exclusive economic zone or high seas. Therefore, the Black Sea connecting to internal waters does not work.
Article 45 prescribes the right of innocent passage through international straits excluded from transit passage under article 38(1) or between a part of an exclusive economic zone or high seas and the territorial sea of a foreign State. These two options do not apply to the Kerch Strait. It is not one of the straits excluded from article 38(1) and does not connect to the territorial waters but rather internal waters.
If the Sea of Azov is the internal waters of both Russia and Ukraine, what passage regime should apply?
Probably the regimes agreed upon in their Cooperation Agreement. Scholars have written extensively on the issues, especially since Crimea becoming a part of Russia and Ukraine losing their side of the strait.
Russian and Ukraine have been using an arbitration tribunal to try and resolve these issues. One source writes, “Russian interference with shipping in Ukraine’s internal waters in Kerch Strait and the Sea of Azov would be a violation of customary international law, but not UNCLOS(Law of Sea Convention).”[4] Blocking the Kerch Strait would, of course, damage the Ukrainian ports that rely on the passage of commercial vessels to deliver and transport goods. But, the initial reports stated Russia would ban military and government vessels, not commercial vessels.
A recent article concludes that if the countries stick to their original agreement regarding the Kerch Strait, then the issue can be resolved under the law of the sea and general international law.[5] However, this conclusion does not answer any of the boundary disputes within the Sea of Azov.
In summary, this situation is not so clear. The legal regime covering the Kerch Strait and the Sea of Azov has been in dispute since the Crimea situation in 2014. Several issues need to be resolved between the two countries regarding this dispute (and others)—first, the question of whether the Sea of Azov is internal waters or not. A legal regime for this Sea needs to be agreed upon or decided. If it is not internal, then territorial waters and exclusive economic zones can be formed, and its classification as an international strait under the LOSC could be established. If it remains internal, then provisions on customary international law and their agreement should be honoured and the Kerch Strait shall not be closed. I recommend reviewing the articles found in footnotes 2, 4 and 5 for an examination of the history of the Strait and Sea of Azov, Russia/Ukraine relations, and other possibilities regarding the resolving of the situation.
As of now, Russia is not planning to block the Kerch Strait. Hopefully, cooler heads will prevail regarding the increase in tension in the region.
Sources:
[1] ‘Russia’s Plan to Restrict Foreign Warships near Crimea Will Keep Kerch Strait Open – RIA’ (Reuters, 16 April 2021) <https://www.reuters.com/world/europe/russias-plan-restrict-foreign-warships-near-crimea-will-keep-kerch-strait-open-2021-04-16/> accessed 17 April 2021.
[2] Alexander Skaridov, ‘10 The Sea of Azov and the Kerch Straits’ in David D Caron and Nilufer Oral (eds), Navigating Straits (Brill | Nijhoff 2014) <https://brill.com/view/book/edcoll/9789004266377/B9789004266377_012.xml> accessed 17 April 2021, 222.
[3] United Nations Convention on the Law of the Sea (adopted 10 December 1982, entered into force 16 November 1994) 1833 U.N.T.S. 397 (LOSC).
[4] Valentin J Schatz and Dmytro Koval, ‘Russia’s Annexation of Crimea and the Passage of Ships Through Kerch Strait: A Law of the Sea Perspective’ (2019) 50 Ocean Development & International Law 275 <https://www.tandfonline.com/doi/full/10.1080/00908320.2019.1605677> accessed 17 April 2021, 284.
[5] Alexander Lott, ‘The Passage Regimes of the Kerch Strait—To Each Their Own?’ (2021) 52 Ocean Development & International Law 64 <https://www.tandfonline.com/doi/full/10.1080/00908320.2020.1869445> accessed 17 April 2021.
Image:
By: Aleksander Kaasik
Link:https://en.wikipedia.org/wiki/Kerch_Strait#/media/File:Kert%C5%A1i_v%C3%A4in.jpg
