The total area of Ukrainian seas before the Russian invasion was 137,000 sq. km. Since 2014 has lost control of over approximately 100,000 sq. km.

The Russian-occupied Ukrainian sea territory is equivalent to, for example, the total land area of the State of Kentucky (105,000 sq. km) or South Korea (100,000 sq. km) is preventing Ukraine from accessing gas fields, hydrocarbon resources and fisheries within Ukraine’s own maritime areas – its territorial sea and exclusive economic zone. Russia has laid underwater power cables, a gas pipeline, and constructed the Strait Bridge through and across the from Russian territory to the Crimean Peninsula without Ukraine’s consent.

Russia has violated the United Nations Convention on the Law of the Sea (UNCLOS) by unlawfully interfering with the navigation of Ukrainian vessels/warships through Ukrainian sea waters and by impeding transit passage through the Kerch Strait. This ‘maritime creeping occupation’ continues. Given this critical situation Ukraine should take 5 Legal Steps in the sphere of maritime security Ukraine must adopt a Law on Ukraine’s Internal Waters and Territorial Sea. This Law must:

STEP 1 - Set the width and the outer border of its territorial sea (pic. 1); Establish the breadth of - Temporarily – until de-occupation occurs – establish a Special Zone within Ukraine’s the Ukrainian territorial territorial maritime belt around the Russian- occupied Crimean peninsula (pic. 2). sea Within this Special Zone Ukraine should ban any movement by, or presence of, non-military shipping and warships. Pic. 1 Pic. 2 After establishing the Special Zone Ukraine must add to the Ukrainian Criminal Code a special article that extends criminal responsibility to captains of cargo vessels and the management of shipping companies for violations of the Special Zone around and pursuing the individuals involved using all available instruments, including Interpol mechanisms. Since 1996, Ukraine has without success STEP 2 been trying to establish a permanent maritime border with the Russian Federation through Delimit the maritime direct negotiations. But there is a special compulsory procedure for such cases. In boundaries accordance with the UNCLOS it is possible to establish an International Delimitation (Ukraine/Russia & Commission under the auspices of the United Nations. Georgia/Russia) The “conventionally forced negotiations” procedure for the delimitation of sea boundaries was successfully applied for the first time in 2016 by East Timor against Australia.

Georgia has the same problems as Ukraine with Russia in the . Russia occupied most of the Georgian sea and so there is no maritime boundary between the Russian Federation and Georgia. It would make sense for and Tbilisi to synchronize their activities on the basis of the UNCLOS with the aim of creating permanent maritime boundaries with Russia.

By working together, Ukraine and Georgia would have more opportunities to show the international community what is occurring in the Black Sea and how brazenly Russia is violating the maritime rights of neighboring countries. In December 2003, in order to prevent STEP 3 armed conflict over the Ukrainian Tuzla Island in Inform all States the Kerch Strait, provoked in September by President Putin, former Ukrainian President that the Azov Treaty Kuchma was forced to sign an agreement with Russia “On Cooperation over the Use of the Sea of is being Voided Azov and the Kerch Strait” (the Azov Treaty).

Under the Azov Treaty warships from third countries, such as the US or NATO, may pass through the Kerch Strait and enter the only with the consent of both signatories, i.e. Ukraine and Russia. However, according to Article 52 of the 1969 Vienna Convention on the Law of Treaties, a treaty is void if its conclusion has been procured through the threat or actual use of force. This is why the Azov Treaty has no legal force and Ukraine should inform every country and the UN about this fact. At the same time, in accordance with international maritime law the Kerch Strait is an international strait since it directly links the exclusive economic zones of the Azov and Black Seas. All ships and aircraft, including those of third countries — other than Ukrainian or Russian — should enjoy an unimpeded right of transit passage through the Kerch Strait, as well as when entering the Sea of Azov. Ukraine should create a small but highly professional Joint Maritime Operations Center that will coordinate the activities of all civil, STEP 4 military and law enforcement agencies and enterprises involved in maritime security. Create a Joint Maritime The Center should also coordinate operational information exchange between its agencies Operations Center and their counterparts in the US, NATO and Georgia. A similar center has already been established in Georgia with US assistance.

STEP 5 Adopt a Ukrainian Ukraine needs to adopt a very practical, realistic and clear Ukrainian Maritime Security Maritime Security Strategy (UMSS) and ensure its rigorous Strategy (UMSS) implementation. POST SCRIPTUM The Montreux Convention on the Regime of Straits is a 1936 agreement that gives Turkey control over the Bosphorus and Dardanelles straits and regulates the transit of warships and other vessels. Under the Montreux Convention vessels of war belonging to non-riparian states (i.e. countries that do not border the Black Sea) cannot stay in the Black Sea for more than 21 days. At the same time, the Montreux Convention does not cover the Sea of Azov, or the Danube and rivers.

Maritime ‘Lawfare’

Ukraine vs the Russian Federation The case concerning the detention of three Ukrainian naval vessels (Ukraine v. Russian Federation), Provisional Measures On 25 November 2018, three Ukrainian naval vessels - the , the Nikopol, the Yani Kapu and their 24 crew members - were arrested and detained by Russian authorities. The incident took place in the Black Sea near the Kerch Strait. The Berdyansk and the Nikopol are artillery boats and the Yani Kapu is a naval tugboat. The three vessels had departed from the Black Sea port of Odesa and their mission was to transit through the Kerch Strait to the port of Berdyansk in the Sea of Azov. On 25 May 2019, the International Tribunal for the Law of the Sea prescribed provisional measures ordering Russia to release the three Ukrainian naval vessels and their crews and allow them to return to Ukraine. Pending cases against the Russian Federation

Ukraine has initiated two other cases against Russia in accordance with the UNCLOS: 1. Dispute Concerning Coastal State Rights in the Black Sea, Sea of Azov, and Kerch Strait (Ukraine v. the Russian Federation), date of commencement of proceedings: 16 September 2016, case number: 2017-06; 2. Case Concerning the Detention of Three Ukrainian Naval Vessels (Ukraine v. the Russian Federation), date of commencement of proceedings: 01 April 2019, case number: 2019-26. The Permanent Court of Arbitration (PCA) is acting as Registry in both arbitrations. The Danube Commission

The Danube Commission was established in accordance with the 1948 Convention regarding the Regime of Navigation on the Danube river. Russia is not a Danubian State but it is still a member of the Danube Commission without any reasonable justification. The E40 Waterway

The E40 Waterway is a 2,000-kilometer inland shipping route that, if completed, would connect the Baltic with the Black Sea and run through Ukraine, Belarus and Poland. This waterway will certainly have great geopolitical significance not only for Ukraine but for the whole Baltic-Black Sea region.

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