Azov Sea, Kerch Strait: Evolution of Their Purported Legal Status (Part Four)

*To read Part One, please click here.

*To read Part Two, please click here.

*To Read Part Three, please click here.

On November 24, one day before Russia’s November 25 attacks on Ukrainian ships, Russia’s State Secretary and Deputy Foreign Affairs Minister Grigory Karasin came out with a lengthy account of Moscow’s interpretation of the Azov Sea’s and Kerch Strait’s “legal” status. This unprecedented public intervention attempted to claim legal grounds for Russia’s obstruction of Ukrainian and international shipping during the previous six months (Kommersant, November 24).

Moscow’s view, as detailed by Karasin, is based on two arbitrary contentions: First, it rules out the relevance of international law in the Azov Sea and Kerch Strait. And second, it splits the terms of the 2003 Russia-Ukraine treaty on the Azov Sea and the Kerch Strait into two separate, different categories: the terms governing the Azov Sea remain valid, while the terms governing the Kerch Strait have lost their validity—all of this by Russia’s fiat.

According to Karasin, the terms of the United Nations Convention on the Law of the Sea (UNCLOS), including freedom of international navigation and right of innocent passage, cannot apply, being overridden by the Russia-Ukraine bilateral treaty in the Azov Sea and by full Russian sovereignty in the Kerch Strait. Hence, “assertions that our stop-and-search measures [with regard to Ukrainian and third countries’ ships] contravene international maritime law, are baseless assertions.” Russia is acting within its rights to prevent “terrorist threats,” and is “acting proportionately.”

In this telling, Russia has become, since March 2014 (with Crimea’s “accession”), “the only state riparian to the Kerch Strait, an internal Russian waterway under Russia’s sovereignty. Using this right Russia decided to build the Kerch Strait Bridge.” At the same time and nevertheless, “in conformance with the existing [2003] treaty, Russia not only recognizes but practically ensures the right of Ukrainian and third-countries’ commercial ships to pass through the Kerch Strait,” according to Karasin (Kommersant, November 24).

Apart from the falsity of “ensures” in that telling, Moscow implies that it continues voluntarily to abide in part by the same 2003 treaty, even as it deems that treaty to have been overtaken by Crimea’s annexation and overridden by Russian sovereignty in the Kerch Strait. Indeed, Russian authorities continue to provide passage through the Kerch Strait, to and from Ukrainian ports, not as an obligation under the treaty, but at Russia’s own discretion, selectively, unpredictably, imposing interruptions and delays; and, moreover, invoking Russia’s sovereignty to justify setting the height of the Kerch Strait Bridge too low to admit Panamax-type cargo ships.

Russia regards the 2003 treaty as imprescriptible, and wants Ukraine to adhere to the treaty in the Azov Sea, hence Russia never abrogated the treaty (see Part Three in EDM, December 10). However, Moscow insists that the treaty has simply lapsed in the Kerch Strait, and on that excuse it applies the treaty in a discretionary manner there. Expectations that Russia might “block” or “close off” the Kerch Strait for any length of time miss the mark. Russia’s method is to interfere and restrict while maintaining ambiguity and uncertainty.

There are two clear goals behind that method. The medium-term goal is to ruin the economy of the Ukrainian ports of Mariupol and Berdyansk on the Azov Sea, and ruin by extension the Ukrainian-controlled industrial hinterlands to those ports. The short-term goal is to extract de facto acceptance (a silent form of recognition) of Russian sovereignty in the Kerch Strait, compelling Ukrainian and international shippers to deal with Russia’s authorities at all the relevant levels and pay the full range of taxes and dues (and fines) to the Russian state. Russian authorities also provide mandatory pilotage service for Ukrainian and third-countries’ vessels through the Kerch-Yenikale navigable channel. The authority that regulates maritime traffic in the Kerch Strait is the Kerch Merchant Marine Port, formerly a Ukrainian state enterprise, taken over by Russia in 2014 (“Russia’s Economic War against Ukraine in the Kerch Strait and Azov Sea,” Institute of Strategic Black Sea Studies, December 1).

The passage of Ukrainian military vessels through the Kerch Strait poses a different set of problems. In April 2014, several Ukrainian coast guard vessels avoided Russian capture in Crimea by sailing through the Kerch Strait to Mariupol. No other Ukrainian military vessels passed through that strait until September 23, 2018. On that date, two Ukrainian naval auxiliary vessels (a search-and-rescue vessel and a tugboat), both unarmed, were transferred from Ukraine’s Black Sea port of Mykolayiv via the Kerch Strait to the Azov Sea, joining a fledgling Ukrainian flotilla there. Russian coast guard vessels and other units escorted the two Ukrainian ships, from a relatively safe distance, through what Russia claims to be its post-2014 exclusive economic zone (legally Ukraine’s EEZ) and through the Kerch Strait, with the mandatory Russian pilotage through the navigable channel. At least one intelligence-gathering airplane of the United States observed the proceedings (TASS, September 22; Kyiv Post, September 24; Jane’s Defense Weekly, September 25).

Russia, however, used force to block the next Ukrainian naval passage through the Kerch Strait on November 25. Two Ukrainian light armored gunboats (with armaments on board this time) and one tugboat sought permission to pass from the Black Sea through the Kerch Strait into the Azov Sea, so as to join the Ukrainian flotilla planned to be based in Berdyansk. The Russian authorities, apparently deciding this time to interdict even a small Ukrainian reinforcement heading for the Azov Sea, refused permission to pass through the Kerch Strait. They physically blocked the access by positioning a large tanker across the strait’s central passage (directly under the Bridge) and deployed a stronger Russian naval group with air cover to attack the Ukrainian boats twice: first in the Strait, and a second time in international waters in the Black Sea after the Ukrainian boats had turned southward, exited the Kerch Strait and were headed back to home base. The fate of 24 Ukrainian sailors now in Russian captivity is turning into a major international issue (see EDM, November 26, 28, 29).

This attack has suddenly dramatized a process that had been under way since at least May of this year, with scant international attention and belated Ukrainian countermoves. This process is Russia’s opening of a third front against Ukraine, now in the Azov Sea, adding to the fronts on land in Donbas and Crimea.