Construction of the Kerch Bridge and obstruction of navigation in the Sea of Azov hit Ukraine’s economy and increase social tensions in coastal areas of Donetsk and Zaporizhia regions. In response, Ukraine seeks to protect navigation in the Sea of Azov by means of establishing military presence, as well as hopes to bring Russia to justice by virtue of sanctions and international arbitrations. However, the protection of Ukraine’s interests is complicated by the fact that Ukrainian state authorities do not speak with a single voice in response to the situation in the Sea of Azov.
- Construction of the Kerch Bridge and obstruction of navigation in the Sea of Azov by Russia have become a serious challenge for Ukraine. Such Russia’s actions hit Ukrainian economy, threaten with destabilization in coastal areas, as well as pose a risk that the Sea of Azov may become another theater of war.
- Russia’s aggressive behaviour in the Sea of Azov forced Ukraine to establish a naval base in Berdiansk to protect navigation. Detentions of Ukrainian and foreign vessels put Ukraine in a dilemma over a possible denunciation of the Treaty on Cooperation in the Use the Sea of Azov and the Kerch Strait of 2003.
- The protection of Ukraine’s interests is complicated by the fact that Ukrainian state authorities do not speak with a single voice in response to the situation in the Sea of Azov. As a result, international partners do not understand how Ukraine plans to protect its maritime interests.
In 2017-2018, the situation in the Sea of Azov has been gradually deteriorating. Experts calculated that since spring 2018 Russian border guards have detained more than 500 Ukrainian and foreign vessels for inspections which take from 3 to 50 hours. Moreover, in August-September 2017 Russian authorities closed the Kerch Strait for navigation for several weeks due to illegal bridge construction. Russia also significantly increased its military footprint in the sea after the bridge was opened. In turn, Ukraine intends to build a naval base in the Sea of Azov in order to protect its economic interests.
Such Russia’s behaviour is a challenge to Ukraine’s vital interests.
Regular detentions and inspections of Ukrainian and foreign vessels heading for or returning from Mariupol and Berdiansk considerably impede Ukraine’s foreign trade. A noticeable share of Ukrainian metal products and grain – Ukraine’s vital export items – are exported via both seaports. According to the Ministry of Infrastructure and the Ukrainian Sea Ports Authority, revenues of Mariupol seaport over the period from January to July 2018 decreased to UAH 637 million in comparison with UAH 783 million over the same period in 2017, revenues of Berdiansk seaport dropped to UAH 105.6 million from UAH 185.5 million respectively.
Detentions of vessels in the Sea of Azov and the Kerch Strait cause noticeable navigational damages to shipping companies. According to the Minister of Infrastructure Volodymyr Omelyan, a shipowner has to pay at least USD 20,000 for daily downtime of each vessel detained by Russian border guards. Such damages result in decreasing economic attractiveness of Ukrainian ports in the Sea of Azov.
A construction of the Kerch Bridge also contributed to diminishing navigation in the Sea of Azov. According to a head of Mariupol seaport, 144 vessels cannot enter the Sea of Azov any longer due to space limitations of an arch support of the bridge (33 metres in height and 160 metres in length). The seaport admiration also states that for this reason Mariupol seaport lost almost a third of its traditional fleet which could secure, inter alia, cast iron export to the U.S.
Decrease in navigation threatens with destabilization of coastal areas in Donetsk and Zaporizhia regions. Interruptions in shipping may result in increasing unemployment and deteriorating social situation in the region. As a result, it may lead to a raising support for pro-Russian forces in presidential and parliamentary election in 2019, considering that 27% of residents in eastern regions and 33% of residents in southern regions stand for peace at any price. Some Ukrainian experts do not rule out that separatist movements in coastal areas may intensify after the elections.
After the annexation of Crimea, Ukraine practically appeared unprotected from naval threats from the Sea of Azov. According to estimations by military experts, the Russian Black Sea Fleet has more than 2,800 warships and around 25,000 servicemen while the Ukrainian Naval Forces have 66 combat and auxiliary vessels and around 11,000 servicemen. In addition, Russia may also relocate dozens of vessels of the Caspian Flotilla to the Sea of Azov.
Militarization of the Sea of Azov increases a risk that a new theatre of war may appear. As Russia obstructs navigation, Ukraine is forced to establish its military presence in the Sea of Azov. In September 2018, two Ukrainian warships entered the Sea of Azov, passing the Kerch Strait for the first time since the annexation of Crimea. They are expected to be a part of the Azov Naval Base in Berdiansk which is planned to be established by the end of 2018. In turn, in October 2018, the Russian Ministry of Defense received a maritime zone near Yeysk to organize a naval range at a distance of 65 km from Mariupol.
In the current situation, legal status of the Sea of Azov makes protection of Ukraine’s maritime interests more complicated. In accordance with the Treaty on Cooperation in the Use the Sea of Azov and the Kerch Strait signed in 2003, both maritime zones are historically internal waters of Ukraine and Russia where merchant vessels and warships of two countries enjoy freedom of navigation. Article 1 of this treaty specifies that the Sea of Azov shall be delimited upon a special agreement, however Russia was unwilling to negotiate for delimitation. After the annexation of Crimea Russia made use of legal uncertainty and military advantage to establish practical control over waterways in the Sea of Azov and detain vessels near Ukrainian coast. Current Russia’s actions put Ukraine in a dilemma with regard to denunciation of the Sea of Azov treaty of 2003. Both state authorities and experts in international humanitarian law have divergent views on its denunciation.
Despite these challenges, Ukraine does not pursue a coordinated policy of countering Russia’s aggressive behaviour in the Sea of Azov. In particularly, Petro Poroshenko stated that Russian coastal guards have no right to stop Ukrainian vessels and accused Russia of occupation of the Sea of Azov. Meanwhile, a spokesperson of the State Border Guard Service said that Russia may freely move around the Sea of Azov and inspect Ukrainian vessels which look suspicious. Moreover, the presidential representative in the Autonomous Republic of Crimea Borys Babin stands for denunciation of the Sea of Azov treaty of 2003 while the Deputy Minister of Foreign Affairs Olena Zerkal fears that termination of the treaty would give Russia an opportunity to declare a territorial dispute. As a result, international partners do not understand Ukraine’s position on the situation in the Sea of Azov when Ukrainian authorities do not speak with a single voice.
Ukraine may take the following measures to protect its interests in the Sea of Azov.
Military build-up in the Sea of Azov. Besides establishment of the naval base, Russia’s aggressive behaviour will force Ukraine to locate additional combat vessels, strengthen anti-airborne defense and coast guard, and adopt a new military doctrine. These forces are aimed to protect navigation within a 12 nautical mile zone from Ukrainian coast. Obviously, Ukraine is unable to reach military parity with Russia, though the country seeks to increase risks for the Kremlin over the obstruction of shipping.
Sanctions against Russia. Petro Poroshenko repeatedly called for new sanctions on Russia for detentions of Ukrainian and foreign vessels. Efficiency of such measures will depend on how Ukraine will succeed to coordinate its positions with the US, the EU and Canada. Ukraine’s international partners are likely to take a wait-and-see approach in order to make a legal assessment of Russia’s actions in the Sea of Azov. If imposed, sanctions may target Russian shipping companies and ports in the Black Sea and the Sea of Azov.
Termination of bilateral legal base on the Sea of Azov. Currently, Ukraine is considering a possibility to denounce the Treaty on Cooperation in the Use the Sea of Azov and the Kerch Strait of 2003, the Agreement on Fisheries of 1993, as well as adopt the Law “On internal waters, territorial sea and contiguous zone of Ukraine”. Such steps will enable to extend the jurisdiction of the United Nations Convention on the Law of the Sea of 1982 (UNCLOS) over the Sea of Azov and the Kerch Strait. On the one hand, it will give Ukraine grounds for exercising sovereignty over a 12 nautical mile zone from baselines and take more decisive steps to ensure freedom of navigation and fishery within this maritime zone. On the other hand, there is a risk that denunciation of the Sea of Azov treaty of 2003 may give Russia cause for closing the Kerch Strait for vessels, headed for Ukrainian seaports, as well as make protection of Ukraine’s interests in the International Tribunal for the Law of the Sea (ITLOS) more complicated.
Presentation of new evidences to ITLOS. Within the present arbitration proceedings, Ukraine’s MFA has to file a second memorial before April 19, 2019 in which Kyiv should prove that Russia violated Ukraine’s rights as the coastal state. Ukrainian diplomats may give new evidences indicating that Russia obstructs vessels which are headed for Mariupol and Berdiansk or are on the way back. There will be a discussion on how preservation or denunciation of the Sea of Azov treaty of 2003 will impact Ukraine’s legal position in the arbitration proceedings.
Construction of a bypass canal around Crimea. Some Ukrainian experts propose to get free of Russia’s pressure in the Sea of Azov and the Kerch Strait in this manner. However, it is a costly project which may be implemented only in the long-term. Nevertheless, a construction of such a canal may have a negative environmental effect. Moreover, international partners may perceive that Ukraine practically acknowledges its inability to return Crimea in the near future.