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

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

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To readPart Oneclick 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 treatys 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 (seeEDM, December 3).
Ukraine had signed this treaty under the threat of forcible Russian seizure of the Kerch Straits 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 Organizations 2002 and 2004 summits; NATOs 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 straits Russian mainland to Ukraines 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 Straits median line toward the Ukrainian shore, leaving the Straits navigable channel, KerchYenikale, 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 Russias 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 dams construction and accepting the continuation of Ukrainian sovereignty on the KerchYenikale navigable channel.
That implicit tradeoff reflected Ukraines 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 KerchYenikale navigable channel. On the other hand, Ukraine acquiesced to leaving the situation of the Azov Sea in a limbo, to Russias 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 Russias 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 Russias 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 Russias seizure of Crimea from Ukraine, the Kerch Straitincluding the KerchYenikale navigable channelhas becomede factoRussian 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 Ukraines consent was not required for Russias construction of the Kerch Strait Bridge, since the Straits 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 Russias central government by the Crimean republics 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, Crimeas annexation has dramatically lengthened the Russian-held coastline of the Azov Sea, correspondingly shortening Ukraines 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.
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