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1/10/2018 Ukraine v. Russia: Passage through Kerch Strait and the Sea of Azov | Völkerrechtsblog
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BLOG SERVICE COMMUNITY ABOUT
DMYTRO KOVAL —VALENTIN J. SCHATZ — 10 January, 2018
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RUSSIAN PERSPECTIVES ON INTERNATIONAL LAW SYMPOSIUM
Ukraine v. Russia: Passage
through Kerch Strait and the
Sea of Azov
Part I: The Legal Status of Kerch Strait and the Sea of Azov
On 16 September 2016, Ukraine instituted arbitral proceedings against
Russia under Part XV and Annex VII of the 1982 United Nations
Convention on the Law of the Sea (UNCLOS) in the Dispute
Concerning Coastal State Rights in the Black Sea, Sea of Azov, and
1/10/2018 Ukraine v. Russia: Passage through Kerch Strait and the Sea of Azov | Völkerrechtsblog
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Kerch Strait (Ukraine v. the Russian Federation). The case relates to
Russia’s occupation of Crimea in 2014, which fundamentally disrupted
the maritime order in the Black Sea and the Sea of Azov. While the
exact content of Ukraine’s claims is not publicly known, it is
understood (see statements here, here, here, here and here) that they
include Russia’s ongoing construction of a bridge across Kerch Strait
and restrictions on passage of Ukrainian vessels through Kerch Strait
and the Sea of Azov (third States’ vessels are also affected, but would
not be part of the Ukrainian claim). Kerch Strait Bridge is intended to
create a land connection between Crimea and Krasnodar region which,
in light of Ukraine’s blockade of Crimea, is crucial for supplies from
Russia.
In three consecutive posts, we will map some legal issues that the
arbitral tribunal might face in the context of Ukrainian rights of
passage and Russia’s challenge of the arbitral tribunal’s jurisdiction – if
these issues indeed form part of Ukraine’s application. Our rst post
provides some context and addresses the question of the legal status
of Kerch Strait and the Sea of Azov. Our second post deals with the
issue of potential Ukrainian passage rights, most of which depend on
the legal status discussed in the rst post. In our third and nal post,
we examine the impact of these substantive ndings on the question of
the arbitral tribunal’s jurisdiction ratione materiae over Ukraine’s
corresponding claims.
Of course, it is beyond the scope of our contribution to provide an
exhaustive analysis of all relevant facts and law and to arrive at any
nal conclusions. We do, however, intend to point to some of the most
1/10/2018 Ukraine v. Russia: Passage through Kerch Strait and the Sea of Azov | Völkerrechtsblog
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intricate legal questions and trigger further debate on an interesting
case that –in our view– deserves more attention by commentators. We
would also like to point out that we will refrain from discussing the
question of whether Crimea remains Ukrainian territory or has been
lawfully incorporated into Russia as a matter of public international
law. Instead, we will – for the purposes of this analysis – accept the
predominant view that the former is the case.
The Potential Impact of the Sovereignty Dispute over Crimea on the Sea
of Azov
1/10/2018 Ukraine v. Russia: Passage through Kerch Strait and the Sea of Azov | Völkerrechtsblog
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The Sea of Azov is a small, shallow sea connected to the Black Sea.
Kerch Strait, which is the only connection between the Azov Sea and
the Black Sea, is located between Kerch peninsula in the West and
Taman peninsula in the East. While the former peninsula is part of
Crimea, the latter is located in Russia’s Krasnodar Krai. Kerch Strait is
approximately 45 km in length and, at its narrowest point at the
northern end of Chushka landspit, only about 3–5 km wide. Kerch-
Yenikalsky canal, which was rst built in 1877 and used to be operated
by Ukraine, is the only waterway through Kerch Strait that is navigable
by large ships. Smaller vessels can use the Russian fairway passages
#50 and #52 situated east of the canal.
Reportedly, more than 8.000 mostly (but not exclusively) Russian and
Ukrainian ships used to pass through Kerch Strait in an average year
prior to 2014. This reportedly secured at least USD 80 million of
revenues for the providers of pilotage services in Kerch seaport. After
the Russian occupation of Crimea in 2014, the Ukrainian Ministry of
Infrastructure adopted an order which closed all Crimean ports,
including two ports on the banks of the Kerch Strait (Kerch Fishing
Seaport and Crimea port). These measures signicantly reduced the
number of vessels entering Crimean ports. For example, as part of its
non-recognition policy, the EU has banned vessels ying the ag of EU
member States “from making any payments to the Port Authority of
Kerch and the Port Authority of Sevastopol”. Ukraine also reported to
the International Maritime Organization (IMO) that it is no longer able
to guarantee safety of navigation in the ports of the peninsula and the
adjacent waters.
1/10/2018 Ukraine v. Russia: Passage through Kerch Strait and the Sea of Azov | Völkerrechtsblog
http://voelkerrechtsblog.org/ukraine-v-russia-passage-through-kerch-strait-and-the-sea-of-azov/ 6/13
Picture 2: Trafc through Kerch Strait on 9 November 2017 (Source:
Marine Trafc).
Legal Status of Kerch Strait and the Sea of Azov before 1991
In his treatise “The Law of Territorial Waters and Maritime
Jurisdiction” published in 1927, Philip C. Jessup considered that a claim
to the Sea of Azov as part of the Union of Soviet Socialist Republics’
(USSR) territorial sea “seems reasonable and […] would not be
contested” (at p. 383). Until 1991, the Sea of Azov fullled the
requirements of a “bay the coasts of which belong to a single State”
within the meaning of Article 7 of the 1958 Convention on the
Territorial Sea and the Contiguous Zone (CTSCZ) and today’s Article 10
UNCLOS. Accordingly, the USSR drew a bay closing line across Kerch
1/10/2018 Ukraine v. Russia: Passage through Kerch Strait and the Sea of Azov | Völkerrechtsblog
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Strait (see here and here), connecting Cape Kyz-Aul and Cape Zhelezny
Rog – and declared the Sea of Azov internal waters. Consequently, it
was unnecessary for the USSR to also claim the Sea of Azov as a
“historic bay” (for which kind of bay no written rules exist, see Article
7(6) CTSCZ and Article 10(6) UNCLOS). As one author has put it:
“[S]ome ‘claims’ categorised as being ‘historic’ today – such as the Sea
of Azoz [sic!] – were probably misnamed or at least loosely entitled as
‘historic’, because they were – even at the time of the inception of the
‘claim’ – in any case internal waters in the light of then-existent
international law or at least constituted ‘ancient rights’” (Clive
Symmons, Historic Waters in the Law of the Sea: A Modern Re-
Appraisal, 2008, p. 299).
Legal Status of Kerch Strait and the Sea of Azov after 1991
When Ukraine declared its independence on 24 August 1991 (see also
1991 Agreement establishing the Commonwealth of Independent
States), its sovereignty extended to most of the Western shore of the
Sea of Azov including Crimea, which borders Kerch Strait (Crimea had
been ceded to the Ukrainian Soviet Socialist Republic in 1954). A
maritime boundary between Russia and Ukraine in the Sea of Azov was
not, however, established and the issue remained a point of contention
between the two States. Notably, Ukraine unilaterally proclaimed a
boundary line in Kerch Strait in 1999 which would have put Tuzla
Island on the Ukrainian side of the strait. There are also signs that at
least Ukraine may have considered (or was going to consider) parts of
the Sea of Azov as its territorial sea rather than as internal waters. For
example, a 2002 Draft Law on Inland Water, the Territorial Sea and the
1/10/2018 Ukraine v. Russia: Passage through Kerch Strait and the Sea of Azov | Völkerrechtsblog
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adjacent zone of Ukraine dened 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, because Russia put further pressure on Ukraine by
unilaterally initiating the construction of a dam between the Russian
coast and Tuzla Island in 2003.
That year, the negotiations gained new momentum. Russia and Ukraine
not only concluded the Treaty Between Ukraine and the Russian
Federation on the Ukrainian-Russian State Border but also settled part
of their maritime differences in an Agreement on Cooperation on the
Use of the Sea of Azov and the Kerch Strait (Cooperation Agreement)
(we provide an unofcial translation here). The Cooperation
Agreement left the question of delimitation to a future separate
agreement (Article 1), which was, however, never concluded despite
ongoing negotiations (for details, see Alexander Skaridov, The Sea of
Azov and the Kerch Straits, in: David D. Caron and Nilufer Oral (eds.),
Navigating Straits (2014), pps. 221 ff.). In addition, Article 1 Cooperation
Agreement proclaimed that the Sea of Azov and Kerch Strait were
“internal waters” of Russia and Ukraine (but note that Skaridov doubts
that this was actually meant as a legal rather than a geographical or
historical term). 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”.
1/10/2018 Ukraine v. Russia: Passage through Kerch Strait and the Sea of Azov | Völkerrechtsblog
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These developments seem to have been met with little opposition,
which may also be owed to the Sea of Azov’s little importance for
strategic purposes. While Article 10 UNCLOS and Article 7 CTSCZ only
cover bays which belong to one State, they also do not necessarily
exclude the possibility of a multi-State bay consisting of internal
waters if that regime is based on the consent of all relevant coastal
States or State practice, even if many commentators take that position.
This question remains one of general international law. An often-used
example of such a bay is that of Ruvuma Bay, which, according to a
1988 treaty between Tanzania and Mozambique, constitutes internal
waters of these two States. In many cases, however, attempts to create
such shared border bays have attracted international protests, which,
according to some, calls into question the existence of such a
customary rule (Clive Symmons, Article 10 UNCLOS, in: Alexander
Proelss (ed.), United Nations Convention on the Law of the Sea: A
Commentary, 2017, MN. 21, 29). In the case of the Sea of Azov, it has
been argued that there was no automatic transformation into
territorial seas in 1991 and that Russia and Ukraine now share a
“condominium” of internal waters. The idea of such an “inherited”
condominium in a multi-State bay is not entirely new. In its 1992
judgment in the Land, Island and Maritime Frontier Dispute (El
Salvador/Honduras: Nicaragua intervening), the International Court of
Justice (ICJ) held that the Gulf of Fonseca, which was held under the
single control of Spain until 1821, afterwards retained its status as a
“historic bay” of internal waters and was thus subject to “joint
sovereignty” of El Salvador, Honduras and Nicaragua.
1/10/2018 Ukraine v. Russia: Passage through Kerch Strait and the Sea of Azov | Völkerrechtsblog
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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 codied this practice in the Cooperation Agreement. However, it
can be doubted whether both States consistently upheld their consent
in light of the lack of any proper shared governance system and the
continuing delimitation dispute in the Sea of Azov. In addition, there
seem to be new indications that Ukraine will distance itself from the
bay regime (if any) in the light of waning chances of a return of Crimea.
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.
1/10/2018 Ukraine v. Russia: Passage through Kerch Strait and the Sea of Azov | Völkerrechtsblog
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Picture 3: Maritime boundaries in the Sea of Azov in accordance with a
normal territorial sea regime (potential contiguous
zone/EEZ/continental shelf claims remain undelimited) (Source:
http://opennauticalchart.org/).
Preliminary Conclusion
In this post, we have argued that there are two possible Scenarios for
the current legal status of Kerch Strait and the Sea of Azov. Under the
rst Scenario these waters are internal waters of Russia and Ukraine as
they form part of a single bay regime that has only later evolved into a
border bay. Under the second Scenario, the original bay regime
dissolved with Ukraine’s independence or thereafter and Kerch Strait
1/10/2018 Ukraine v. Russia: Passage through Kerch Strait and the Sea of Azov | Völkerrechtsblog
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and the Sea of Azov largely are part of the territorial sea of Ukraine
and Russia. In addition, a patch of high seas (or potentially EEZs) exists
in the central Sea of Azov (see Picture 3). While the second Scenario
seems more likely, the following two parts of our contribution will take
both Scenarios into account.
Valentin J. Schatz is a Ph.D. Candidate and Research Associate at the
Chair of Public Law, in particular Public International Law and
European Law (Professor Alexander Proelss) of Trier University,
Germany.
Dmytro Koval, Ph.D., is an Associate Professor of International Law and
International Relations at National University “Odessa Law Academy”,
Ukraine.
The authors would like to express their gratitude for helpful comments
on previous drafts of this contribution to: Arron Honniball (Netherlands
Institute for the Law of the Sea (NILOS)), Millicent McCreath (Centre of
International Law, National University of Singapore), Jan Solski (K.G.
Jebsen Centre for the Law of the Sea, University of Tromsø) and Hilde
Woker (K.G. Jebsen Centre for the Law of the Sea, University of Tromsø).
Cite as: Valentin J. Schatz and Dmytro Koval, “Ukraine
v. Russia: Passage through Kerch Strait and the Sea of
Azov (Part I)”, Völkerrechtsblog, 10 January 2018, doi:
10.17176/20180110-131019.
1/10/2018 Ukraine v. Russia: Passage through Kerch Strait and the Sea of Azov | Völkerrechtsblog
http://voelkerrechtsblog.org/ukraine-v-russia-passage-through-kerch-strait-and-the-sea-of-azov/ 13/13
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