Sea of Azov - Legal Status
Up until 2014, different options of possible border delimitation and demarcation were considered, according to the positions of the parties. Ukraine's position remains unchanged – between the countries there has been a border along the administrative border between the former Ukrainian SSR and the Russian SSR, so using the principle of “uti possidetis” based on the formula: “newly formed sovereign states should have the same borders that their preceding dependent area had before their independence”. Ukraine's approach to the border in Kerch Strait also remains unchanged. At the same time, according to the bilateral Treaty signed in 2003, trade and naval vessels under the flags of Ukraine or the Russian Federation enjoy the freedom of navigation in the Sea of Azov.
Russia's position envisaged drawing midline along the points equally distant from coastal lines and islands of both countries. Since 2014 and illegal annexation of Crimea, the Kremlin believes that recognition of Crimea as a constituent entity of the Federation automatically gives rights not only to the territory of the peninsula but also to the sea waters around it, including Kerch Strait. Although there were no official statements from Moscow, de-facto Black Sea Fleet of the Russian Federation fully controls it.
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).
By a January 15, 1985, Declaration by the Council of Ministers the Soviet Union claimed straight baselines off its continental coasts and islands of the Arctic Ocean, and off its coasts on the Baltic and Black Seas. Segment 35-36 closed a body of water that leads to the Sea of Azov. The Soviets claimed the Sea of Azov as a "historic bay" - a claim which closed off the Sea of Azov. This was seen as an acceptable drawing of straight baselines in the mouth of the bay, declaring that all the waters on the inside became internal waters. Even the United States, which is normally very reluctant to accept baselines from other countries, didn't have problems with the Soviet Union calling this "historic waters." But when the Soviet Union ceased to exist in 1991 and the bay no longer was surrounded by one single state, that provision of international law no longer applied, because it only applies to bays that are surrounded by one single state.
Although Kyiv and Moscow signed a state border treaty in 2003, it said nothing about delimitating the water area of the Sea of Azov and the Strait of Kerch, which can supposedly be used by both Ukraine and Russia under certain agreements. It is common knowledge that there is no border as such, for the sea is under a common jurisdiction of Ukraine and Russia. It was said that the other country’s territory began 4 km off the shore.
The 24 December 2003 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)). 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)).
" 1. Commercial vessels and warships, as well as other state vessels under the flag of the Russian Federation or Ukraine, operated for non-commercial purposes, enjoy the freedom of navigation in the Sea of Azov and the Kerch Strait.
2. Merchant ships under the flags of third States may enter the Sea of Azov and pass through the Kerch Strait, if they are bound for a Russian or Ukrainian port or return from it.
3. Warships and other state vessels of third States, operated for non-commercial purposes, may enter the Sea of Azov and pass through the Kerch Strait, if they are bound for a visit or business calling to a port of one of the parties on its prior Agreement with the other party."
The maritime boundary with Ukraine through the Sea of Azov and Kerchenskiy Proliv (Kerch Strait) remains unresolved despite the 2003 framework agreement and ongoing discussions; further discussions on this dispute were suspended due to the Russian occupation of Crimea. In 2003, the Kerch Strait was at the center of a dispute between Russia and Ukraine, after the authorities of the Krasnodar Territory, trying to prevent the erosion of the coast, began to build a dam from Taman towards the Ukrainian island of Tuzla. Russia was accused of encroaching on Ukrainian territory. After the intervention of the leaders of both countries in the conflict, the construction of the dam was stopped. As a reciprocal concession, Ukraine agreed to sign an agreement, according to which the Kerch Strait was recognized as the joint inland waters of Russia and Ukraine.
On September 14, 2016 Ukraine announced that it had initiated arbitration proceedings against Russia under Annex VII of the United Nations Convention on the Law of the Sea (UNCLOS). In bringing this suit, Ukraine sought validation of its maritime rights in the vicinity of Crimea in the Black Sea, the Sea of Azov, and the Kerch Strait. The Ukrainian Ministry of Foreign Affairs stated that "Ukraine has asked the arbitral tribunal to enforce its maritime rights by ordering the Russian Federation to cease its internationally wrongful actions in the relevant waters, to provide Ukraine with appropriate guarantees that it will respect Ukraine's rights under UNCLOS, and to make full reparation to Ukraine for the injuries the Russian Federation has caused."
Russia warned Ukraine against what it called attempts to alter the status of the Sea of Azov as inland waters shared by the two countries, saying the move violates international law; Moscow urged Kiev to refrain from risky steps aimed at establishing state borders there unilaterally, the Russian Foreign Ministry said 21 November 2018. "Russia is open to a constructive dialogue on the situation in the Sea of Azov and would like to warn Ukraine against attempts to revise the current status of the Sea of Azov as internal waters of two countries in violation of international laws," the ministry said in a statement. "In this regard, we urge Kiev to refrain from any risky steps aimed at the unilateral establishment of a state border in the Sea of Azov which Russia does not recognise," the ministry added.
The Foreign Ministry emphasised that Russia regarded the waters east of Crimea as an integral part of its territory. "Contrary to the statements of Kiev and Brussels, Russia is not increasing its military presence in the Sea of Azov. The forces stationed there are mainly used to guard the Crimean Bridge … While the actions of Ukraine, which announced the creation of a naval base in Berdiansk and systematically blocks certain areas of the Sea of Azov for artillery fire, are just aimed at militarizing the Sea of Azov," the ministry stressed.
Heather Nauert, US State Department Spokesperson, said August 30, 2018 "The United States condemns Russia’s harassment of international shipping in the Sea of Azov and the Kerch Strait. Russia has delayed hundreds of commercial vessels since April and in recent weeks has stopped at least 16 commercial ships attempting to reach Ukrainian ports. Russia’s actions to impede maritime transit are further examples of its ongoing campaign to undermine and destabilize Ukraine, as well as its disregard for international norms. The United States supports Ukraine’s sovereignty and territorial integrity within its internationally recognized borders, extending to its territorial waters. We call on Russia to cease its harassment of international shipping in the Sea of Azov and the Kerch Strait."
The conflict escalated in October 2018, when the Ukrainian parliament passed a draft law authorising Kiev to expand maritime controls by 12 nautical miles off its southern coast, in an effort to counter smuggling in the Black Sea.
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