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Pro Et Contra: Should Ukraine Denounce the Azov Agreement?

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Memo https://www.facebook.com/NECUkraine/ http://neweurope.org.ua/ [email protected] https://twitter.com/NEC_Ukraine https://t.me/n_e_c , 2018 PRO ET CONTRA: SHOULD UKRAINE DENOUNCE THE AZOV AGREEMENT? The denunciation of the Ukraine-Russia Agreement on Cooperation in the Azov Sea and the Kerch Strait of 2003 would narrow down the scope of Moscow’s legal manipulations and establish at least a minimum of certainty. This is the main argument for termination of the Azov Agreement. In case of its denunciation, Ukraine and Russia would have to adhere to the provisions of the 1982 United Nations Convention on the Law of the Sea, which would allow to establish a territorial sea regime in the form of a 12-mile zone from the outgoing lines. The international status should deprive Russia of the grounds for arbitrary actions on the legal side. Finally, the denunciation would restore historic justice, since the Ukrainian President had signed the agreement in 2003 under considerable pressure from Moscow. The most controversial issue, which obviously holds back the Ukrainian diplomats, is the possible impact of such a step on The paper was written within the Think Tank Development Initiative resolving the disputes between Ukraine and Russia in international for Ukraine (TTDI), carried out by judicial instances. It should be noted that not all lawyers in Ukraine the International Renaissance support this position, considering that the existing agreement does Foundation in partnership with the Think Tank Fund of the Open not allow that. There is also a certain risk of a discrediting campaign Society Initiative for Europe (OSIFE) that Moscow has actually already initiated against Ukraine. with financial support of the Embassy of Sweden in Ukraine. The views and opinions expressed The New Europe Center recommends informing the international in this paper are those of the partners about the situation in the Azov Sea as much as possible. author and do not necessarily reflect the position of the Embassy of Sweden in Ukraine, Representatives of the Ukrainian authorities should also speak with the International Renaissance a single voice about the situation in the Azov Sea, as any ambiguous Foundation, and the Open Society Initiative for Europe (OSIFE) PRO ET CONTRA: Should Ukraine denounce the Azov Agreement? statements would weaken Ukraine’s position on is not established, and the outgoing lines the international scene. are not defined. This means that Russian warships can reach even up to one meter to The New Europe Center asked diplomats, military the coast of Ukraine. In terms of delimiting officers, lawyers, and scholars to assess the the line of the state border in the Azov Sea, degree of risks and threats to Ukraine both in Russia will base its argument on the fact the event of denunciation of the agreement, that Crimea belongs to it. Therefore, Ukraine and in the case of its survival. This memo can rely only on the international law. should contribute to a balanced approach to Denunciation of the Agreement will change the final decision. During the preparation of this the status of the Azov Sea to the open sea, analytical document, we used the Center’s own and the passage through the Kerch Strait expertise, as well as expert assessments by Andriy will be regulated according to the rules of Ryzhenko, Borys Babin, Volodymyr Vasylenko, Anton free transit passage. International status Korynevych, and Tymur Korotky. would deprive Russia of the grounds for arbitrariness on the legal side. OPTION TO APPEAL TO INTERNATIONAL ARGUMENTS FOR DENUNCIATION 3 COURTS. The Agreement provides that all disputes between Ukraine and Russia NARROW DOWN THE SCOPE OF RUSSIA’S related to the application of the Agreement 1 LEGAL MANIPULATIONS. The agreement shall be resolved “through consultations between Ukraine and the Russian Federation and negotiations, as well as other peaceful on cooperation in the use of the Azov means of choice of the Parties” (Article 4). In Sea and the Kerch Strait does not resolve fact, this means that Ukraine has the right to the main issue, as it does not contain any appeal to international courts only if Russia specifics about the state border line, which agrees. Any appeals to international legal should be determined by an additional bodies is not provided for in the document agreement. The lack of that border line at all (unlike, for example, the Agreement allows Russia to perceive the entire Azov between Ukraine and Romania of 1997). Sea as its own internal waters, including the Denunciation would provide the clear coastal waters of Ukraine. This is a security international dispute settlement procedure threat. Russia is already making claims and legal liability mechanism according to regarding the Azov Sea waters adjacent to the provisions of the UN Convention on the Crimea, and the Gulf of Sivash. Law of the Sea, which are mandatory for Russia. LEGAL CERTAINTY. The application of the UN 2 Convention on the Law of the Sea enables ELIMINATING CERTAIN LIMITATIONS Ukraine to establish a territorial sea regime 4 OF THE INTERNATIONAL LAW. The Azov in the form of a twelve-mile zone from Agreement partially limits the effect of the the outgoing lines and will provide clear 1982 United Nations Convention on the regulation of the airspace over the territorial Law of the Sea, ratified by Ukraine in 1999. sea, as well as bed and subsoil. As of today, For instance, the Convention regulates the the territorial sea regime on the Azov Sea free passage for military vessels of third 2 countries. The present Agreement, however, Russia’s violation of the Agreement is demands Russia’s approval for the passage beyond any doubt. of warships of third states (Article 3, Clause 3). From the very beginning of the COUNTERING INTERNAL POLITICAL relevant negotiation process with Ukraine, 8 TENSIONS. Ukrainian politicians have Russia has been blocking the issue of been criticizing the state authorities for defining the international legal status of a long time because of their inactivity the Azov Sea. in this regard. The relevant resolution calling on the President of Ukraine OPERATIVE ADVANTAGE. 12-mile territorial to denounce the Agreement has been 5 waters would bring greater clarity in the submitted to the Verkhovna Rada as early legal regime, and thus would provide as on July 10, 2018. Since then Russia has Ukraine with a certain operational only intensified its violations in the Azov advantage in terms of the defense of the Sea. The denunciation of the Agreement Azov Sea coast. In turn, continuation of the would also decrease the flow of criticism Agreement would facilitate Russia’s seizure regarding consistency of actions of the of the sea area and Ukrainian coast, preserve Ukrainian authorities, which is sometimes Russia’s advantage in capturing the territory accused of secret cooperation with the of Ukraine, and ensure further loss of Russian authorities during the war. sovereign rights of Ukraine on the Azov Sea. FACILITATING THE FUTURE PEACEKEEPING INTERNATIONAL SUPPORT. The US and the 9 MISSION. The international community 6 EU condemned Russia’s violations in the and Ukraine are seeking to establish a Azov Sea. For example, in a statement issued United Nations peacekeeping mission in by the State Department on August 30, the occupied territories. In this context, 2018, the US condemned Russia’s violation there is the question of the presence of of the trade maritime law in the Azov peacekeepers in the Azov Sea, since Russia Sea and the Kerch Strait. Thus, we could could provide military support to insurgents partially argue that there is reason to hope and Russian army by sea. The presence for international support in the event of of international peacekeeping forces is denunciation (however, for these hopes to be regulated by the UN Convention on the fulfilled, appropriate negotiations before the Law of the Sea, but the Agreement between denunciation are required). Ukraine and Russia of 2003 does not include any relevant clause. ADHERENCE TO THE VIENNA CONVENTION. 7 In the case of denunciation, Ukraine has RESTORATION OF HISTORICAL JUSTICE. the right to refer to the Vienna Convention 10 At the time of Leonid Kuchma’s Presidency, on the Law of Treaties. For instance, in who was weakened by numerous internal accordance with article 60 of this document, scandals and virtually cut off from the a significant violation of a bilateral dialogue with Western partners, Ukraine agreement by one of the parties enables signed the Agreement under Vladimir Putin’s the other party to refer to that violation as pressure. Under different conditions, Russia a ground for termination of the agreement. sought to complete the construction of a 3 PRO ET CONTRA: Should Ukraine denounce the Azov Agreement? dam to the island of Tuzla, which would countries in the UN International Tribunal affect the delimitation of the state border for the Law of the Sea and distort the line in the Azov-Kerch water area. Maritime situation, presenting it as it was Ukraine’s law specialists highlight the absurdity of the decision that led to the violations in document that was prepared in a hurry. the Azov Sea. According to lawyers, denunciation will not affect the existing ADDITIONAL SANCTIONS. If Russia lawsuit to the International Tribunal, as 11 violates international law in the event of the Agreement was in force at that time. denunciation of the bilateral Agreement, In the case of new lawsuits, Ukraine e.g. if Moscow resorts to a blockade, Ukraine should refer to the UN Convention on the will have grounds not only to appeal to Law of the Sea. However, there are also international courts for protection and specialists who call to take into account appropriate compensation, but also to the “psychological effect,” as it is hard expect from the partners (the US and the to predict how the court’s position may EU) to immediately strengthen the sanctions change under the influence of a particular against Russia.
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