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

*To read Part One, please click here.

The 2003 treaty between Russia and Ukraine on “Cooperation in the Use of the Azov Sea and Kerch Strait,” officially in effect to this day and “sine die,” purports to place those two bodies of water outside the scope of international law or third-party arbitration. Not only do the treaty’s terms inherently favor Russia, but the bilateral nature of this arrangement has allowed Russia further to interpret the treaty at will, by dint of force superiority in the theater (see EDM, December 3).

Ukraine had signed this treaty under the threat of forcible Russian seizure of the Kerch Strait’s navigable channel from Ukraine. This took place during a period when the United States and NATO were distancing themselves from Ukraine (Kolchuga affair; Melnychenko affair; isolation of then-president Leonid Kuchma at the North Atlantic Treaty Organization’s 2002 and 2004 summits; NATO’s refusal to hold consultations with Ukraine over the situation in the Kerch Strait). Exploiting that context, Russian President Vladimir Putin ordered and personally oversaw, in the autumn of 2003, the construction of a dam across the Kerch Strait, so as to connect the strait’s Russian mainland to Ukraine’s Tuzla Island in the middle of the strait. Tuzla belonged to Ukraine as a consequence of Crimea belonging to Ukraine. The connecting dam would have transformed Tuzla from a Ukrainian island into the tip of a promontory of the Russian mainland (Tuzla Spit). And that change would have pushed the Kerch Strait’s median line toward the Ukrainian shore, leaving the Strait’s navigable channel, Kerch–Yenikale, on the Russian side. Ukraine responded by placing troops on Tuzla Island and positioning ships around it. The bumping-and-shoving of Russian against Ukrainian ships in 2003 around the island was a foretaste of Russia’s ramming of Ukrainian ships on November 25, 2018 (see EDM, November 26, 28, 29).

President Kuchma ended the confrontation in 2003 through an undeclared compromise: accepting terms disadvantageous to Ukraine throughout the treaty to be signed, in exchange for Russia stopping the dam’s construction and accepting the continuation of Ukrainian sovereignty on the Kerch–Yenikale navigable channel.

That implicit tradeoff reflected Ukraine’s top priority of guaranteeing access for Ukrainian and third countries’ commercial shipping to and from Ukrainian ports on the Azov Sea via the Kerch Strait. From 2003 until 2014, Ukraine continued to be in charge of security, management, navigation and pilotage on the Kerch–Yenikale navigable channel. On the other hand, Ukraine acquiesced to leaving the situation of the Azov Sea in a limbo, to Russia’s potentially unlimited advantage.

The maritime border that the 2003 treaty foresaw between Russia and Ukraine has never drawn in the (putatively shared) Sea of Azov. Since the treaty left the maritime border delimitation subject to follow-up negotiations, Russia stonewalled those negotiations indefinitely. This was predictable, given Russia’s track record of dragging out border delimitation and demarcation negotiations in other former Soviet territories. And it was all the more predictable in the case of the Azov Sea, since the 2003 bilateral treaty envisioning a maritime border made no reference to national sectors or economic zones.

This situation currently “allows” (“legally” under the treaty) Russian warships to roam freely throughout the Azov Sea, stop and search vessels anywhere in that sea, hold naval exercises they choose, declare temporary exclusion zones in connection with those exercises, and come into the closest proximity to Ukrainian shores, without technically violating the bilateral treaty, and amid a vacuum in terms of international law.

The content of the 2003 treaty forms Russia’s pseudo-legal basis for its recent use of force in the Azov Sea and Kerch Strait. However, Russia has been itself in breach of this and other treaties (e.g., the 1997 inter-state treaty with Ukraine) by seizing Crimea in 2014. Through that unilateral border-changing move, unrecognized though it is, Russia has de facto overturned the previously agreed-upon basis for the interpretation and application of the 2003 treaty.

With Russia’s seizure of Crimea from Ukraine, the Kerch Strait—including the Kerch–Yenikale navigable channel—has become de facto Russian on the Crimean side as well. The Russian government now claims that the strait and the channel are a Russian internal waterway (Kommersant, November 24).

Moscow asserts that Ukraine’s consent was not required for Russia’s construction of the Kerch Strait Bridge, since the Strait’s Crimean shore became Russian as well. Russia ignores the international non-recognition of its annexation of Crimea.

Ironically, Tuzla Island (see above) has been transferred into the possession of Russia’s central government by the Crimean “republic’s” authorities. The latter had “inherited” Tuzla from Ukraine in March 2014, and the transfer technically achieves the goal that Moscow had pursued in 2003. The transfer in April 2018 is supposed to facilitate the completion of the construction of the Kerch Strait Bridge (Interfax, Ukrinform, April 17, 18, 2018).

Moreover, Crimea’s annexation has dramatically lengthened the Russian-held coastline of the Azov Sea, correspondingly shortening Ukraine’s coastline of that sea. Thus, any negotiation to draw a border in the Azov Sea (if Russia were to allow such negotiations to begin, instead of stonewalling tem) would heavily favor Russia at the expense of Ukraine.

*To read Part Three, please click here.