Boris Babin, Doctor of Law, Professor, Senior Legal Advisor at Barristers, LLC.

Presentation at the International Conference on Maritime Security, November 14, 2019, Odesa

Manipulation of International Law and Risks to the Azov and Black Seas

Today, Ukraine finds itself in a difficult situation marked by the continued escalation of Russian aggression, which, unfortunately, not everyone is willing to acknowledge or accurately assess.

This escalation is taking place both in the maritime waters of the Azov and Black Seas and in the World Ocean, at a time when our—I hope—common adversary is exploiting the legal conditions of so-called “peacetime.”

Such tactics have been traditional for Russia since the Cold War and its access to the world’s oceans, when it established a series of coastal zones under what was then Soviet military dominance.

Although Russia has not been involved in the development of modern maritime law, its desire to transform and alter its norms to cover up its own expansion is insurmountable.

A concept dating back to Soviet times is the covert, large-scale use of merchant ships for military purposes and attempts to extend immunities to them that are not provided for under international law.

Another long-standing practice is Russia’s abuse of the so-called “historic waters” regime in the Arctic, the Pacific Ocean, and in our region as well.

Relatively new forms of manipulation include the widespread use by Russian owners of unflagged merchant vessels—particularly in the Black Sea—to serve political objectives, a practice that other maritime states choose to ignore.

The Russian authorities are also known for their widespread unlawful interference with satellite-based vessel monitoring systems and for tolerating the operation of vessels with their automatic identification systems turned off.

Abusing the right to rescue merchant vessels, Russian-controlled merchant vessels enter restricted ports and waters for political purposes.

Abusing the right to safety and environmental protection, the Russians use the pipelines they have laid and the offshore structures they have installed or seized as staging grounds for military forces, particularly reconnaissance and sabotage units.

By abusing a shipowner’s right to choose a classification society, the Russians have turned the Russian Maritime Register of Shipping and the Russian River Register into a global network of influence that, among other things, helps cover up all of the aforementioned forms of manipulation.

For example, it is precisely through their own classification societies and corresponding corrupt ties that the Russians effectively control the Ukrainian ocean-going fishing fleet, which is still formally flying the Ukrainian flag or owned by the Ukrainian state.

Turning to the manipulation of regional agreements, I would also like to draw attention to the 1936 Montreux Convention, which concerns the regime governing the use of the Bosporus and Dardanelles straits.

After all, this treaty is today more of an international custom than a practical document, since its participants number only thirteen states—a group that does not include either Black Sea-bordering Georgia or a number of NATO countries, including the United States.

Incidentally, Ukraine has never ratified the Montreux Convention, and for us this agreement is in force pursuant to the law on the succession of the USSR, but only to the extent that it does not conflict with the “interests of the republic.”

It is very interesting to consider on what basis this Convention can impose obligations on third countries, which, among other things, directly contradicts the 1969 Vienna Convention. It is also unclear how to address the obvious conflicts between the Montreux Convention and the 1982 United Nations Convention on the Law of the Sea.

The situation is complicated by the fact that the Montreux Convention was concluded for a term of twenty years, and oversight of its implementation was to be carried out by the League of Nations, which has long since ceased to exist, while the UN, for some reason, does not wish to exercise the relevant rights.

 Under these circumstances, Russia’s scrupulous attention to NATO countries’ compliance with the formal requirements of this primarily historical document—at the very same time that the Russian Federation cynically and openly disregards the requirements of this convention—is nothing more than a manipulation of international law. This is all the more important, since the Montreux Convention does not regulate such important issues as the passage of military ships through the straits—not to visit the Black Sea, but for the purpose of entering the Sea of Azov, the Danube, the Dnieper, and other navigable rivers of the basin, for transit to the Caspian Sea.

Even more cynical is Russia’s use of the 2003 bilateral Treaty on Cooperation in the Use of the Sea of Azov and the Kerch Strait, which prohibits military vessels of third countries from entering the waters of the Sea of Azov and Ukrainian ports without Russia’s consent.

This treaty was concluded with Ukraine under the direct threat of the use of force during the 2003 Tuzly incident, when Russia threatened direct invasion. Furthermore, the Russian Federation never actually implemented this treaty in substance, as the border line in the Sea of Azov stipulated by the treaty was never established, precisely because of Russia’s position.

Furthermore, with the start of the Russian invasion of Crimea in 2014—including the use of the Kerch Strait and the subsequent occupation of Crimea—this treaty lost its very purpose and objective.

Such a fundamental change in circumstances and the 2003 Agreement’s inconsistency with the 1982 Convention have not yet led Ukraine to declare this agreement invalid, solely due to the intense pressure exerted on our state by the aggressor.

And as one of the tools of such pressure, the Russians are using the 1993 intergovernmental Ukrainian-Russian agreement on fisheries in the Sea of Azov, which not only allows Russian fishermen to be present at anypoint in the Azov Sea, but also effectively permits Russian border guard vessels to be present there and allows a specially equipped Russian vessel to conduct so-called “scientific research” off the coast of Ukraine.

This agreement undermines the maritime regime in the Azov Sea and creates enormous corruption risks for Ukrainian officials, as the financial scope of this agreement amounts to several million dollars annually. Furthermore, since 2014, this agreement has served as a tool for Ukrainian officials to de facto recognize the attempt to annex Crimea.

Unfortunately, just yesterday, November 13, in accordance with the new government decree No. 1043-r, an attempt was made to hold a virtual “session” of the Ukrainian-Russian Commission on Fisheries in Berdiansk and to extend the old practice of implementing the relevant agreement into 2020. But already that evening, the relevant parliamentary committee on foreign affairs approved a demand that the Government of Ukraine review its approach to implementing this agreement and more closely examine the tense situation in the Sea of Azov.

However, in fact, as early as 1992, Ukraine notified the UN of the establishment by our state of baselines in the Azov Sea. Using this information from the official UN website, experts determined the approximate boundaries of Ukraine’s maritime zones in the Azov Sea. As can be seen today, Ukraine does not control the waters of the Azov Sea adjacent to Russian waters; this applies to the waters near Crimea and the Novoazovsk district of Donetsk Oblast.

Therefore, there is no prospect of officially defining Ukraine’s maritime borders in the Sea of Azov in the section adjacent to the Russian Federation until these territories are de-occupied.

However, nothing currently prevents Ukraine from unilaterally establishing, in accordance with international law, the outer limit of its territorial sea and contiguous zone, as well as in the waters adjacent to the territory under its control, and to exercise control over these areas through the force of international law and the presence of combat-ready ships of the Ukrainian Navy in the waters.

I would also like to add that the proximity of the occupied areas of Donetsk Oblast to the Sea of Azov effectively makes it impossible—even in theory—to implement the so-called “Minsk Agreements.” After all, these “agreements” do not provide for Ukraine to establish control over the border line in the waters of the Azov Sea. This creates unlimited opportunities for Russia to supply mercenaries, weapons, and military equipment to the occupied Donbas.

Already today, this maritime zone has become a significant source of danger for shipping and fishing. In particular, it is worth recalling the well-documented facts that, since 2015, the Russians have been using floating mines in these waters—an act that, among other things, constitutes an international crime.