BORIS BABIN, LEGAL ADVISOR AT BARRISTERS, ON MARITIME LAW, THE THEORY OF INTEGRATION WITH THE EU, AND THE PRACTICE OF AGGRESSION BY THE RUSSIAN FEDERATION

In the context of a de facto armed conflict, Ukraine needs to make more active use of the instruments of international maritime law (Ukrainian)

The current challenges facing Ukraine’s maritime industry have reached a level that has clearly approached the point of no return. Of course, the reduction of the national merchant fleet, the decline of oceanic fishing, and the chronic crisis in shipbuilding cannot be explained by Russian aggression to the same extent as, for example, the state of the Ukrainian Navy’s fleet. At the same time, however, the new and as yet unfulfilled requirements and obligations for Ukraine’s maritime sector, arising from the Association Agreement with the EU, have compounded our country’s long-standing “debts” under treaties in the field of maritime law.

This situation was discussed on April 19 at a roundtable titled “Implementation of International Maritime Law Standards in the Context of Ukraine’s European Integration” at the Verkhovna Rada’s Institute of Legislation, with the participation of experts from relevant parliamentary committees, the Naval Forces, the State Service of Maritime and River Transport, the Maritime Search and Rescue Service, the Maritime Administration, the Association of Maritime Agencies of Ukraine, and scholars from key domestic universities.

Of course, the obvious and acute situation of armed conflict not only heightens general questions regarding the application of international humanitarian law to the maritime sector, but also once again brings us back to the issue of bilateral agreements with the Russian Federation regarding the Sea of Azov and the Kerch Strait, as well as to the current framework for the application of the Montreux Convention.

The main aspect of the “law of war” today remains the boundaries of Ukraine’s maritime areas around Crimea that are under the control of the aggressor state. After all, it is well known that the Russian Federation’s territorial ambitions end only where they encounter real and effective military-security and political-legal resistance. The aggressor’s zone of de facto control over the waters of the Karkinitsky Gulf, the Syvash, and the part of the Azov Sea adjacent to Crimea is currently limited solely by its own desires. Furthermore, Ukraine’s maritime areas with special rights (the continental shelf and the exclusive economic zone) are not part of our state’s territory; therefore, their unilateral designation as temporarily occupied territories of Ukraine under Law No. 1207-VII of April 15, 2014, at the very least does not comply with international legal standards and, at the same time, has created significant political risks. A special situation is presented by the waters of the Azov Sea adjacent to the areas of Donetsk Oblast seized by the aggressor, which we recognized as occupied by Law No. 2268-VIII of January 18, 2018. This is because the conditions for conflict resolution set forth in the Minsk Agreements do not address the specific challenges of de-occupying these waters and establishing peacekeepers’ control over them. At the same time, control over the land portion of the state border with the Russian Federation will clearly not be effective without similar measures in the waters of the Azov Sea, given the developed coastal infrastructure and logistics in those areas.

A separate problem is posed by the infamous 2003 Agreement between Ukraine and the Russian Federation on Cooperation in the Use of the Sea of Azov and the Kerch Strait in the context of Russian aggression. Once again, at the roundtable, key officials from the Ukrainian Navy and the Ministry of Infrastructure highlighted the direct challenges and threats that this agreement has created for Ukraine’s defense capabilities, in the areas of maritime safety and ensuring unimpeded passage through the Kerch Strait. In addition, experts emphasized the need to urgently develop a clear plan of action for Ukraine to implement once the 2003 Treaty ceases to be in effect. At present, however, this document remains in force solely because its provisions—which Ukraine continues to implement—are advantageous to the aggressor state (of course, the Russian Federation has not even bothered to feign compliance with this agreement since 2014). Separately, the defense, security, economic, and corruption risks posed by Ukraine’s continued participation in the mechanisms of the 1993 intergovernmental Ukrainian-Russian agreement on Azov fisheries were discussed once again.

However, aside from issues of the laws of war and the regulatory framework for maritime economic cooperation with the aggressor—which, contrary to common sense, continues to this day—the current state of the industry is driven by a number of regulatory problems. For nearly three decades, due to a behind-the-scenes power struggle among a group of beneficiaries, Ukraine has failed to pass a law on inland waterway transport, and the post-Soviet Code of Merchant Shipping remains in effect, which prevents the development of a merchant fleet flying the Ukrainian flag. Law No. 4709-VI on Seaports, dated May 17, 2012, did not lead to the declared systematic privatization of port infrastructure, but rather to the creation of yet another state bureaucratic behemoth that, for a long time and in the best Soviet traditions, combined the functions of economic activity with state management of that activity.

The issue of our country’s non-participation in the 2006 Maritime Labor Convention and the 1982 Paris Memorandum of Understanding on Port State Control has been discussed on numerous occasions. Despite the fact that these steps by Ukraine—which would not only stimulate the development of the domestic maritime industry but also reduce corruption in the sector—were envisaged by the Association Agreement with the EU, the position of the highest state authorities indicates that a resolution to this problem cannot be expected in the near future.

Moreover, even the preparatory work on European integration in the maritime sector is currently more of a pretense than a process proceeding according to schedule. This is because even the issue of translating into the official language and publishing the EU “maritime” regulations and directives specified in the Association Agreement remains unresolved; attempts to implement these acts, even at the sub-legislative level, have yielded no results. A similar situation persists with a number of technical maritime conventions, amendments to which are usually approved through a simplified and expedited procedure—a process that the domestic bureaucratic apparatus cannot keep up with, even at the level of translation and publication (let alone implementation)—the domestic bureaucratic apparatus is unable to keep up.

Frankly speaking, the glaring inadequacy of the regulatory framework for Ukraine’s maritime sector did not become apparent overnight. However, for many years now, no changes have been observed to rectify the situation, despite repeated reshuffles of personnel and their roles in the high-level offices at 14 Peremohy Avenue in Kyiv. Some attribute this to the profound, rampant incompetence of the officials involved, while others point to their total indifference to the industry’s fate, with all their efforts focused exclusively on their own well-being. Personally, I sadly lean toward a middle ground.