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As you know, the Permanent Court of Arbitration in The Hague began the second round of hearings in the case of Ukraine’s lawsuit regarding the rights of the coastal state in the Black and Azov Seas and in the Kerch Strait. The debate between the parties is going on.
The evidence that Russia violates the sovereign rights of Ukraine in the region was filed in the Hague on February 19, 2018. “We expect the tribunal to last for six months. It can be fast or maybe not very fast, but by the end of the year we will get the final decision for certain,” – says Olena Zerkal, Deputy Foreign Minister of Ukraine.
Meanwhile, Ukraine’s ability to exercise its right of freedom of navigation and movement in its own marine waters remains restricted. Azov-Black Sea region has become a space of dominance of military force. Such state confirms the existing divergence of interests of key geopolitical actors. Therefore, the normalization of the situation in the region and bringing it back to relations based on international law will unlikely be settled in the near or mid-term future.
How do national and foreign experts see the ways of solving this problem, in particular, representatives of the neighboring countries – Turkey, Bulgaria, Georgia?
Here is a brief outline of some relevant thoughts and pieces of advice on the Azov-Black Sea conflict issues.
As you may well know, Russia considers the Black Sea region as a zone of its special influence required as a springboard for the country’s presence in the Mediterranean region, the Middle East, North Africa aimed to strengthen Russia’s positions there. Accordingly, the Black Sea strategy of Russia covers two purposes:
• Blocking Ukraine from the sea (as part of its overall strategy to restore control over the whole Ukraine);
• Obtaining indisputable dominance in the Black Sea, with the limited presence of NATO in the Black Sea area, and the unhindered use of the Black Sea Straits.
The Russia’s Black Sea domination (with that of the role of frozen conflicts in the region) will allow Moscow:
1. To influence the economic and political activities of the states of the Black Sea region;
2. Control trade and energy Black Sea routes from Europe to Central Asia, China, India and South Asia. Maintain the monopoly status as the supplier of energy resources to the EU countries, strengthen the political influence on the South Caucasus and Central Asia.
Actual control over the Azov Sea, which Russia acquired as a result of the occupation of the Crimean peninsula and the construction of the Kerch Bridge, and the contractual and legal regime with Ukraine has been maintained (the current Agreement between Ukraine and the Russian Federation on cooperation in the use of the Azov Sea and the Kerch Strait of December 24, 2003 ) provides Moscow with practically unlimited possibilities of presence in the waters of the Azov Sea and the use of its bioresources.
Taking advantage of its military superiority and actual control of the Kerch Strait, Russia blocked the Azov Sea for Ukrainian warships and restricted trade shipping to the ports of Berdyansk and Mariupol.
As a result, now we have:
1. a limited access to the Sea of Azov for ships of third states;
2. Russia prefers to argue with Western allies that the Sea of Azov is a common internal waters of two states – Ukraine and Russia;
3. Significant power superiority of Russia and limited capacity of Ukraine to build up its naval presence in the waters of the Azov Sea.
4. Practical lack of Ukraine’s opportunities for full enjoyment of their rights in the waters of the Azov Sea.
In order to achieve the purpose of isolation of the Azov coast of Ukraine, the Russian Federation applies both administrative and legal methods (control, verification, creation of artificial motions for prolonged delay of vessels) and military (closing certain areas of the water area of the Azov Sea under the pretext of conducting naval exercises).
The Azovian waters have actually become the territory of the clash between Russian power structures and Ukrainian forces – the SBGS, the Navy. Actually, there is a hindrance to the economic activity of the Ukrainian Azov Sea, the activity of ports and fishing, which may result in the destruction of the region’s economy with further political destabilization.
In the political and legal field for Ukraine, there is a threat to Russia’s use of Ukraine’s actions in the framework of existing treaties and agreements (both from the 2003 Treaty and the annual Fisheries Protocols in the Azov Sea) to strengthen its position in international litigation.
Ensuring the observance of the rights of merchant ships with unobstructed passage through the Azov Sea to the ports of Berdyansk and Mariupol may effectively be achieved by means of the military support. Therefore, it would be highly desirable for Ukraine to increase its own military presence in the waters of the Azov Sea to ensure unhindered economic and economic activity.
Consequently, adequate naval presence should become an important component of the military security complex for the Azov coast of Ukraine. It will also enable the Azov Sea and the Kerch Strait to be liberated for the ships of third states.
A legal precondition for this is the denunciation of the Treaty between Ukraine and the Russian Federation on cooperation in the use of the Azov Sea and the Kerch Strait since 2003 and the extension to the Sea of Azov and the Kerch Strait of the UN Convention on the Law of the Sea. This issue requires careful legal analysis and diplomatic approval.
How do the main regional players react to the situation?
Russia’s sole rival for influence in the Black Sea and the South Caucasus may only be Turkey, whose naval power is so far dominated by that of Russia’s, and which controls the passage through the Bosporus and Dardanelles straits.
Turkey’s foreign policy is aimed at maintaining the strategic balance of forces in the region and strengthening its own regional significance through international institutional projects (including those in the military sphere). Turkey is also a member of the two politico-military alliances that extend to the Black Sea region: NATO and the Turkish-Azerbaijani security alliance.
At the same time, Turkey is vulnerable to Russian influence. Its strategic transport and energy transit projects depend on the stability in the Southern Caucasus, where Russian presence is significant. The joint Russian-Turkish energy projects (Turkish Stream 1 and 2) in are likely to become an instrument of Moscow’s future influence on Ankara. Turkey is well aware of the risks in facing energy dependence on Russia.
A large share of the Russian gas in Turkish imports is Ankara’s constant concern and moves it to find ways to energy diversification. For Turkey, Russia’s role in the Syrian settlement is also important. The Kremlin successfully uses this factor to strengthen political contacts with Turkey and turn them in perspective to strategic interaction with the elements of Russian domination.
On the other hand, the Turkey’s choice for deepening cooperation with Russia may also be explained by NATO’s ongoing indecision whether to increase its strategic presence in the Black Sea region. Indeed, unlike NATO’s policy in the Baltic region (Enhanced Transparent Presence), where the entire Euro-Atlantic Bloc is involved, a regional intergovernmental policy (Special Transparent Presence) was adopted for the Black Sea region. It is likely that NATO’s special forward presence in its south-eastern flank envisaged any strengthening of military capabilities of the regional member states of NATO (Romania, Bulgaria, Turkey).
Meanwhile, Ankara advocates Ukraine’s accession to NATO, and shows its firm support for the swift accession of Georgia by the Alliance. Turkey takes a consistent stand in failing to recognize the annexation of the Crimea and the condemnation of the occupation of Ukrainian territories and Russia’s aggression against Ukraine, but refrains from joining the sanctions against Russia applied by the EU and the United States. Turkey’s main task for itself in the Russian-Ukrainian conflict is to support and protect the interests of the Crimean Tatars.
Turkey adheres to the provisions of the Montreux Convention and is interested in doing so in the future, in order to preserve the validity of the Convention and the protection of Turkish interests in the Black Sea, as enshrined in this document. At the same time, some Ankara’s complacency with Moscow in the treatment of the provisions of the Montreux Convention is viewed, taking into account reports of the passage of the Russian submarines “Veliky Novgorod”, “Kolpino”, “Krasnodar” and “Stary Oskol”, which is an actual violation of Article 12 of the Convention.
Particular attention deserves Ankara plans to build an alternative Bosphorus to the Istanbul Channel. The creation of such channel may likely trigger further discussions on the extension of the rules of the Montreal Convention – both to a whole document and its separate provisions. Quite likely, Ankara may decide to build in the future an additional parallel channel to the Dardanelles, which will create a fundamentally new geopolitical reality in this part of the Black Sea region and will put on the agenda the need to revise the legal procedure for using ducts.
One may assume that Russia is considering the prospect of building an alternative connecting channels between the Mediterranean and the Black Sea as an opportunity to create a new legal regime for the passage of ships in and from the Black Sea and to limit the possibility of access to the Black Sea warships, especially non-Black Sea states.
Additional grounds for the Russian military presence in the Black Sea Straits area and their control may appear after the completion of the construction of the Turkish stream, since Moscow traditionally uses such an infrastructure as an occasion for military or intelligence activities.
The rest of the coastal Black Sea states do not actually have the capacity to influence the maritime policy in the region due to limited military capabilities.
Georgia, for example, has no priority to develop its own naval forces and instead implements a strategy of converting the economic interest of influential world actors into Georgia’s security through their participation in major economic projects.
An example of such strategy is the simultaneous involvement of the US and Chinese companies in the construction of a seaport in Anakli and attracting foreign investors to a number of other infrastructure projects in Georgia. Tbilisi also successfully develops a regional alliance strategy based on common economic interests, as shown by the development of trilateral security cooperation between Turkey, Georgia and Azerbaijan to enhance the security of joint tripartite projects. In turn, Tbilisi is interested in increasing the presence of NATO and the United States in the Black Sea, and especially in the South Caucasus.
The strategy for the development of security of Romania and Bulgaria in the Black Sea is also linked to NATO. At the same time, Bulgaria acts merely as a consumer of collective security, and sometimes even plays a destructive role, hampering the Alliance’s presence in the Black Sea, because it does not regard itself as a threat to Russia’s policy in the Black Sea region.
Unlike Bulgaria, since 2014, Romania has taken a rather rigid stand on Russia’s actions in the Black Sea region and identified them as a personal threat. Accordingly, right after the occupation and annexation of Crimea by Russia, Romania declared the need to deploy additional NATO forces on the territory of Romania and in fact became the leader and the main advocate for increasing NATO’s activities in the Black Sea.
Despite the position of Romania and Turkey on the need to expand NATO presence in the Black Sea region, the Alliance has limited itself to the concept of a Special Advancement Presence, which mainly involves training and coordinating activities. The presence of NATO ships in the Black Sea has increased due to their participation in the joint military exercises (80 days in 2017, 120 days in 2018). At the same time, the idea of Romania to create a united naval force of the Black Sea NATO countries was not supported by Bulgaria so far.
It is worth mentioning that in the absence of NATO’s operational collective reaction to the Russian threat in the Black Sea, the United States and some other NATO member states (primarily the United Kingdom and Canada) have taken an active role, which are actually using naval training as an opportunity to patrol the Black Sea on a rotating basis.
In June 2014, the United States launched the European Reassurance Initiative (ERI), whose mission was to provide resources for increasing the number of military exercises and the deployment of additional military capabilities in Europe. The ERI funded the Operation Atlantic Convolution, in which all military personnel are deployed. US engagement in securing the security of the Black Sea Allies, working with the Black Sea partners of the Alliance (including Ukraine) and increasing the military presence of the United States and their allies in the Black Sea.
How should Ukraine act under such complex circumstances?
Under the secondary role of international law, as security guarantees, only states with high security capabilities (military strength, security unions) are able to protect their own interests. The high demand for security by regional countries forces them to actively join security alliances based on common interests, and where it is problematic – to develop bilateral security cooperation.
Ukraine is a state with a limited ability to protect its interests in the region when confronting the Russian aggression. The risk factor in this context lays in Ukraine’s staying outside security blocs, both global and regional, which is only partly offset by security cooperation with NATO and the United States.
The main threat to Ukraine in the Black Sea is the aggressive intentions and actions of Russia for further destabilization of the southern regions of Ukraine. The initial stage of what could be the establishment of Russian navigation control to the Black Sea ports of Ukraine: Odessa, Mykolaiv and Kherson.
Control over the Crimea and the installation of exploration equipment on the mining and drilling platforms of the Ukrainian state-owned company “Chornomornaftogaz” give the Black Sea Fleet of Russia opportunities for conducting radio and radio intelligence. The permanent military presence of the Russian naval vessels on these sites is a demonstration of the “rights” of the Russian Federation over this part of the Black Sea.
The occupied Crimea itself is also a source for a number of threats of both military and non-military character. According to expert estimates, over the past five years of occupation, Russia has turned the Crimea into a powerful military base with a set of weapons allowing it to expand the zone of damage to a larger area of Western Europe, the Eastern Mediterranean, South Africa and the Middle East.
Russia’s strategic intentions indicate that Ukraine must take into personal account the military threat from the Crimea as quite probable. And although the military threat is conventional, in the case of the Crimea, it acquires hybrid characteristics because it unfolds beyond the legal framework. The occupied Crimea today remains a closed territory for access to international organizations and monitoring missions. The international community does not have sufficient capacity to control the situation on the peninsula, and to be sure of the absence of, for example, nuclear weapons there.
The location of the Crimea makes the peninsula an integral part of future military security agreements on the European continent, the borders of which are now ruined. In this context, Russia is interested in initiating such negotiations, as it will create an additional platform for promoting the legitimization of the peninsula’s annexation. Today the unregistered status of Crimea and the uncompromising position of Ukraine makes it impossible even to start such a dialogue.
However, in the event of Ukraine’s loss of opportunity to influence the political agenda on the Crimea in the EU and NATO, one can expect to consolidate Russia’s actual control over the Crimea and in the international legal field.
Russia, however, can not completely abandon the system of international law, because its interests also require legal protection.
Therefore, starting from 2014, Russian lawyers began to promote alternative interpretations of the fundamental norms and principles of international law regarding the principles of territorial integrity, inviolability of borders and national self-determination. In the maritime policy, Russia embodies the concept of the spread of sovereign rights to maritime space, in contrast to the principle of freedom of navigation.
For Ukraine, as a weak non-aligned state, such maritime order bears the risks of prolonged maritime isolation by Russia. Another danger for Ukraine is the EU’s willingness to find compromise with Russia at the expense of Ukraine’s interests and international institutional insecurity in the context of the conflict between Russia and Ukraine.
The Crimea has become a “gray zone”, a territory to which international organizations (the UN, OSCE, etc.) cannot get even with the appropriate mandate. At the same time, Russia uses international organizations and some European politicians to “normalize” the illegal status of the peninsula. An example is the visits of some European politicians to the Crimea and the lack of proper reaction from the International Federation of Red Cross and Red Crescent Societies, as well as the International Committee of the Red Cross for the illegal activities of the Russian Red Cross in Crimea.
The new threat, which in recent years has become only more clearly outlined, is the introduction of hostage-taking by Russia into the area of interstate relations. Russia’s policy on the detention and imprisonment of the Ukrainian citizens today has reached massive scope. Russia blocks the negotiations and the process of exchanging prisoners and publicly declares political demands.
In this context, a special role belongs to the Ukrainian navy personnel seized by the Russians on November 25, 2018 in the Black Sea international waters. By keeping the said Ukrainian seamen, Russia violates not only the UN Convention on the Law of the Sea, but also the Geneva Convention of 1949 on the Treatment of Prisoners of War. In the international legal field there is no unambiguous position regarding the logic of legal interpretation of this fact of aggression.
Such uncertainty itself creates a risk for Ukraine to delay the process of releasing those captive seamen, but a much more serious threat may be the lack of international coercion to release imprisoned seamen even in case of a favorable court decision. Russia’s impunity on this issue may encourage it to go along with similar actions toward the Ukrainian navy vessels and crews in any other parts of the Black Sea.
Taking into account the force factor which has become a principal factor of influence on the formation of international agenda in the Black Sea-Azov region, Ukraine faces the task of strengthening its naval capabilities and increasing the military presence of its allies, namely NATO and in particular the United States, Great Britain and Canada.
In order to move in this direction, it is necessary, on the one hand, to persuade NATO member states to create a NATO flotilla in the Black Sea, and on the other, to promote a legal regime for the maximum openness of the Black Sea for navy ships.
The need to protect national interests in the Black Sea requires Ukraine to solve the problem of ensuring safety of the sea routes to the Ukrainian Black Sea ports and realization of their rights to the development of the Black Sea shelf.
It is in Ukraine’s vital interests to create the most favorable climate for the international relations with other Black Sea countries in both bilateral and multilateral formats. It should be borne in mind that the priority of regional interaction and interest of the Black Sea countries is today lies mainly in the sphere of security. Within this context, Ukraine should join both the existing alliances and also put forward new initiatives.
The Black Sea-Azov policy of Ukraine should also solve the problem of political and economic isolation of the occupied Crimea and reduce the opportunities for Russia’s presence on the peninsula. Since this task can now be solved only in the political and legal field, it is necessary to take maximum diplomatic and legal measures to prevent the sea and air communication of the occupied peninsula with the outside world.
It is also necessary to ensure proper legal and diplomatic responses to all offenses in Russia in the Black Sea and the Azov Sea, including those of environmental (illegal activities in the Karkinitsky Bay in violation of the 1972 Ramsar Convention) and offenses in the area of the Global Navigation Satellite System.
Ukraine should also consider launching a revision of the shipping rules on the Danube River for navy vessels. In this context, it is necessary to review the status of Russia as the only non-Danube member of the Danube Commission.
Consequently, at this stage the Ukrainian side should complement its efforts in the political and legal sphere with effective security cooperation with regional and strategic foreign partners in order to counteract the aggressive intentions of the Russian Federation in the Black Sea-Azov region. Such activities should be of a systemic nature and correlate with clearly defined directions of the military-political and economic strategy of Ukraine in the region.
Obviously, the conflict situation will not be quick to resolve. At the same time, only a systematic work will allow in the long term to turn the Black Sea-Azov basin from the high-risk zone into the territory of mutually beneficial international cooperation.