by Scott Humor
On 15th September 2016, Ukraine has instituted arbitration proceedings against the Russian Federation under the 1982 United Nations Convention on the Law of the Sea (“UNCLOS”) to vindicate its rights as the coastal state in maritime zones adjacent to Crimea in the Black Sea, Sea of Azov, and Kerch Strait.
According to the Permanent Court of Arbitration website the case is still pending: Dispute Concerning Coastal State Rights in the Black Sea, Sea of Azov, and Kerch Strait (Ukraine v. the Russian Federation)
On 16 September 2016, Ukraine served on the Russian Federation a Notification and Statement of Claim under Annex VII to the 1982 United Nations Convention on the Law of the Sea (UNCLOS) referring to a dispute concerning coastal state rights in the Black Sea, Sea of Azov, and Kerch Strait. The Permanent Court of Arbitration acts as Registry in this arbitration.
In court, the Kiev authorities are being represented by Ukrainian Deputy Foreign Minister Olena Zerkal, and the partners of Covington & Burling law firm, which has also been involved in the “Russia collusion” scandal.
I wrote about this group of people in my research “Behind Ukraine vs. Russia case in the UN International Court icj-cij” and in my profile of Olena Zerkal, “France 24 channel interviews Ukraine’s Olena Zerkal who invokes Hitler and Himmler.”
A 2002 Draft Law on Inland Water, the Territorial Sea and the adjacent zone of Ukraine defined the territorial sea of Ukraine as including Ukraine’s coastal waters in the Sea of Azov within a breadth of 12 nautical miles (Article 2). However, this draft law was never adopted.
In a Joint Statement by the President of Ukraine and the President of the Russian Federation on the Sea of Azov and the Strait of Kerch of 24 December 2003 (for a translation, see Law of the Sea Bulletin 54 (2004), p. 131) both States reiterated the terms of the Cooperation Agreement and claimed that “historically the Sea of Azov and the Strait of Kerch are internal waters of Ukraine and Russia”. See an Agreement on Cooperation on the Use of the Sea of Azov and the Kerch Strait (Cooperation Agreement) 2018
Ukraine v. Russia: Passage through Kerch…
A detailed and well substantiated presentation of the issues were given by contributors of the Völkerrechtsblog, on international law, in January of this year.
Ukraine’s claims under the Cooperation Agreement, the Safety and Navigation Agreement, and the FCN-Treaty do not fall within the arbitral tribunal’s jurisdiction ratione materiae. Equally, claims based solely on customary international law are excluded from the scope of Part XV.
Russia’s Declaration under Article 298(1)(a) UNCLOS
Russia has, by way of declaration under Article 298(1)(a) UNCLOS, excluded any disputes “involving historic bays or titles” from the applicability of the compulsory dispute settlement mechanism of Part XV. On that basis, Russia might argue that any claims concerning Kerch Strait and the Sea of Azov involve such questions which, if true, would deprive the arbitral tribunal of jurisdiction in that respect. While we will refrain from discussing whether this argument would be successful, it should be noted that claims concerning historic bays have not been extinguished by UNCLOS per se. In any case, classifying the Sea of Azov as a historic bay would arguably mean to limit Ukraine’s potential claims to those based on customary international law, which in turn would probably not fall within the limited scope of Article 288(1) UNCLOS.
The arbitral tribunal would only have jurisdiction over issues which do not require an incidental decision on sovereignty over Crimea. This would exclude the question of Ukraine’s coastal State rights in the Crimean territorial sea.
Finally, as has been pointed out by Tzeng, relevant agreements may potentially contain dispute settlement clauses which constitute agreements of Russia and Ukraine “to seek settlement of the dispute by a peaceful means of their own choice” which “exclude any further procedure”, thus posing an obstacle to jurisdiction under Article 281(1) UNCLOS.
Ukraine v. Russia: Passage through Kerch Strait and the Sea of Azov (Part III): The Jurisdiction of the Arbitral Tribunal
Could Russia’s and Ukraine’s “joint sovereignty” over the Sea of Azov be compared to one of El Salvador, Honduras and Nicaragua?
“In the light of the special circumstances of that case, it is unclear whether a similar argument can be made with respect to the Sea of Azov. It could be argued that Russia and Ukraine, after “inheriting” the bay, expressly or tacitly consented to keep the original regime and later codified this practice in the Cooperation Agreement
On 16 July 2015, a group of Ukrainian members of parliament submitted a Draft Law on the Denunciation of the Treaty between Ukraine and the Russian Federation on Cooperation in the Use of the Azov Sea and the Kerch Strait which was not, however, adopted. This is not surprising as Ukraine apparently relies on the Cooperation Agreement for both its claim that the construction of Kerch Strait Bridge is illegal and for its passage rights through Kerch Strait (see Part II of this contribution). In 2016, a number of Ukrainian State agencies requested satellite photos from Ukraine’s State Space Agency, naming part of Sea of Azov Ukraine’s Exclusive Economic Zone (EEZ). Thus, even if a shared bay regime of internal waters exists in the Sea of Azov, it might not be here to stay.
This begs the question whether the Russian measures violate any rights of Ukraine concerning passage through Kerch Strait. If no such rights existed for the vessels of Ukraine (and third States), all Ukrainian ports in the Sea of Azov would effectively be “locked in” (if not, strictly speaking, “land-locked”) and lose much of their economic potential. There appear to be at least four issues which deserve attention: (1) Ukraine’s rights in its internal waters or territorial sea, (2) the Cooperation Agreement, (3) the 1997 Treaty on Friendship, Cooperation and Partnership Between Ukraine and the Russian Federation (FCN-Treaty), and (4) passage rights under Part III of UNCLOS and/or customary international law. The following analysis takes note of both possible Scenarios for the legal status of the Sea of Azov and Kerch Strait introduced in Part I of this contribution (Scenario 1: internal waters; Scenario 2: territorial sea and high seas/EEZ).
It arguably follows that this is a violation of customary international law only. Interestingly, claims based on Ukraine’s coastal State rights would most closely align with the title under which the PCA registered the dispute (“Dispute Concerning Coastal State Rights in the Black Sea, Sea of Azov, and Kerch Strait”).voelkerrechtsblog
The Cooperation Agreement affords Russian and Ukrainian merchant vessels, warships, and State ships flying the flag of Russia or Ukraine “freedom of navigation” in the Sea of Azov and in Kerch Strait (Article 2(1)).
The devil is always in the details.
The reason why Ukraine and the Western powers behind Poroshenko’s regime have filed the dispute titled “Dispute Concerning Coastal State Rights in the Black Sea, Sea of Azov, and Kerch Strait” is that they try to secure passage of the NATO warships into the Azov Sea.
“Foreign flagged warships and government vessels may only pass through Kerch Strait and the Sea of Azov upon invitation or permission of Russia or Ukraine, subject to agreement by the other State (Article 2(3)). Assuming that the Cooperation Agreement is still in force, Ukraine seems to have – irrespective of the territorial status of Crimea – treaty-based passage rights both for commercial and non-commercial vessels. These rights also appear to exist irrespective of whether Scenario 1 or Scenario 2 applies for the legal status of Kerch Strait and the Sea of Azov.”
Voelkerrechtsblog even provides a videos of “Warship ‘Azov’ sailing under section of new Crimean bridge,” for “visualization only.”
This was written in January, and it looked that prior to filing disputes and lawsuits in different international bodies, Ukraine had more right just based on existing agreements with Russia. In meantime, the Ministry of Foreign Affairs of Ukraine has prepared a number of proposals concerning the Treaty on Friendship, Cooperation and Partnership between Ukraine and Russia, including its partial or complete suspension of the Russia-Ukraine Treaty on Friendship, Cooperation, and Partnership was signed on May 31, 1997. The two countries formally recognized the borders of each other and consolidated the principles of strategic partnership and respect for territorial integrity in this agreement. Also, the Cooperation Agreement acknowledges pre-existing passage rights based on consistent practice.
Again, according to the researchers from the Voelkerrechtsblog, under Scenario 1, the regime of transit passage pursuant to Articles 37 ff. UNCLOS is not applicable and the only avenue left is that of customary international law. That’s it’s not entirely clear how Ukraine is going to operate in near future granted that Kiev regime has suspended and canceled most agreements that governed the “existing right of innocent passage.”
The hijacking of the Nord and its crew, with the following suspension by Russia of the Agreement of use of Azov Sea signed in October 2017, and Russia’s MOD decision to start patrolling maritime border with Ukraine, leaves Kiev regime high and dry, literally pushed further inland. There is also a talk to suspend the permission for merchant traffic in and out of the Azov sea until Kiev comes to its senses and returns the fishing boat and its crew.
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author of The enemy of the State
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