Bohdan Ustymenko: 10 steps to save the disappearing Ukrainian sea

May 3, 2020

The Crimean Tatar Resource Center continues to publish recommendations and abstracts of expert speeches of the XII session of the Crimean discussion club on the topic “The marine dimension of the occupation of Crimea.” We bring to your attention an article by Bohdan Ustymenko, an international lawyer, on 10 necessary measures to counter the “creeping” occupation of the Black and Azov Seas by the Russian Federation.

First of all, it is necessary to pay attention to the fact that between Ukraine and Russia there is no sea border in the Black and Azov Seas. This is one of the basic problems in the field of national security and defense of Ukraine, which must be solved in any circumstances.

Also, after the Russian invasion in 2014, our state lost control of 80% of its sea: about 100,000 km² of the total area of Ukrainian sea spaces, which together make up 137,000 km². But Russia does not stop there and continues the “creeping” occupation of our sea.

In addition, the work of Ukrainian state bodies that are engaged in maritime security is inefficient and fragmented, the state of Ukraine does not coordinate these activities in an appropriate manner.

Despite these problems, President Zelensky and other politicians do not have a clear strategy to counter Russian aggression at sea. Only a declaration.

The fact that 90% of the total world trade turnover is transported by the navy is also very important. As a result, our country in the current conditions risks completely losing access to the sea and then millions of Ukrainians will be left without work.

Given the aforementioned, I propose to:

1. Adopt the Law of Ukraine “On Inland Waters and the Territorial Sea of Ukraine”. With the help of this Law it is necessary to:

– Establish the status and determine the legal regime of inland waters and the territorial sea of Ukraine;

– Set the width (outer border) of the territorial sea of Ukraine;

– Temporarily establish the Closed Area in the belt of the Ukrainian territorial sea around the Crimean peninsula, since Ukraine does not have the ability to ensure the safety of navigation in this section due to its occupation by Russia. In the Closed Area, prohibit the navigation of non-military ships and warships, while providing for the possibility of humanitarian calls, including those related to the protection of human life at sea.

2. To create, on the basis of a special Law, a small and highly professional Joint Center for Maritime Operations, which will coordinate all civil, military and law enforcement agencies and enterprises whose activities are related to ensuring maritime security. The Center will also carry out an operational exchange of information between its participants and friendly countries. A similar Center was created in Georgia and is now successfully operating.

3. Ukraine since 1996 in vain tried to establish the maritime border with the Russian Federation through direct negotiations. Official Moscow did not want any border, as Moscow security officers began to hatchet plans for an attack on Ukraine immediately after its independence.

Given the relationship with Russia, this dispute regarding the maritime border must be referred for settlement by a special compulsory procedure, which is provided for by the UN Convention on the Law of the Sea (Article 298 and Section 2 of Annex V of the UN Convention).

4. Georgia and Russia also have not established a border in the Black Sea. In this regard, Ukraine and Georgia need to negotiate on the implementation of synchronized actions in the international arena, including the implementation of coercive procedures provided for by the UN Convention on the Law of the Sea.

Thus, together with the Georgian allies, we will be able to achieve results faster and demonstrate to the whole world how Russia grossly violates the maritime rights of other states.

5. It is proved that on the shelf of the Black Sea there are huge reserves of gas and oil, producing which Ukraine can finally become energy independent.

It is necessary to adopt at the level of the Cabinet of Ministers of Ukraine the “Strategy for the development of energy resources in the Ukrainian sector of the Black and Azov Seas” and approve favorable conditions for investing in the business of extracting raw materials on the shelf.

6. Also, the Cabinet of Ministers must adopt the State program of financial support for the safety of navigation system for 2021-2025.

A similar program was adopted by the Cabinet of Ministers only once, it was in force from 2002 to 2006 and helped to significantly and comprehensively increase the level of shipping safety.

Most of the money and other resources for a professionally compiled program for 2021-2025 can be allocated by the West and some other countries.

7. “Minsk Agreements” are illegal and directly contradict international law, in particular, the provisions of the Vienna Convention on the Law of Treaties of 1969.

As a result, Ukraine, on the basis of clause 6 of the legally binding Budapest Memorandum, should call on Russia, the USA and Great Britain to hold official interstate consultations on the issues of de-occupation of the occupied territories of Ukraine, including the Ukrainian sea and airspace.

8. In December 2003, President Kuchma was forced to sign a document entitled “An Agreement between the Russian Federation and Ukraine on Cooperation in the use of the Sea of Azov and the Kerch Strait” in order to prevent the armed conflict provoked by Putin since September 2003 near the Ukrainian island of Tuzla Island.

As a result, this “Treaty” has no legal force and Ukraine, on the basis of Article 52 of the Vienna Convention on the Law of Treaties of 1969, can notify the UN and all countries of the world that “contractual obligations” that are disadvantageous for Ukrainians are null and void and arose through threat from the authoritatrian Putin’s regime.

9. Update the current Law of Ukraine “On the exclusive (marine) economic zone of Ukraine”, which, among other things, should establish the procedure for granting permits by Ukraine for military exercises with firing in the marine economic zone, as well as inform the UN and other countries about such a new order.

10. Supplement the Criminal Code of Ukraine with a new article, with the help of which criminal liability is established for captains of merchant / fishing vessels and aircraft commanders, as well as heads of companies-employers of these ship captains and airborne commanders, for being in the Closed Area referred to in paragraph 1 of this post around Crimea or flying over it.

It is also possible to organize an international search for violators of the restricted regime of the Closed Area with the help of Interpol and transfer them to Ukraine to serve their sentences.

Bohdan Ustymenko, international lawyer