To develop a clear state position on whether Ukraine should denounce a treaty with the Russian Federation on cooperation in the use of the Azov sea and the Kerch strait, it is necessary to create an expert group under the National Security and Defense Council of Ukraine. This is the main conclusion of the expert discussion at Ukraine Crisis Media Center as part of the presentation of the analytical document of the New Europe Center, which analyzes pro et con arguments regarding the denunciation of the treaty.
“In 2003, Ukraine was under pressure to sign a treaty, which greatly narrowed its rights that could be provided under international maritime law. Denouncement, according to its supporters, would bring legal clarity [on this issue],”said Sergey Solodky, deputy director of the New Europe Center. He added that it is important for Ukraine to communicate as actively as possible with the international partners on this issue, to inform about what is happening in the Azov sea, what violations Russia has already caused and can resort to in the future.
Oleksandr Motsyk, Ambassador Extraordinary and Plenipotentiary of Ukraine, said that the current treaty has been problematic from the beginning. Even at the stage of mere negotiations on the delineation of marine waters, the Russian side did not agree to perceive the UN Convention on the Law of the Sea of 1982 as basis for the treaty, but promoted the idea of “internal sea.” In his opinion, Ukraine should consider again the bill on territorial sea of Ukraine, which was adopted by the Verkhovna Rada in the first reading in 2002. “In my opinion, an expert group should be set up under the National Security and Defense Council, with the involvement of the heads of relevant ministries and departments, as well as experts, who are well aware of the situation from the point of view of international law,” Alexander Motsyk emphasized.
“There will be no violations on the part of Ukraine [on the terms of terminating the treaty], since the treaty itself states that the parties should begin negotiations regarding the demarcation of the waters of the Azov Sea,” said Volodymyr Vasylenko, PhD in Law and Ambassador Extraordinary and Plenipotentiary of Ukraine. He added that due to Russian sabotage of negotiations on the establishment of a state maritime border line, as provided by the treaty, Ukraine has the right to apply the Vienna Convention on the Rights of International Treaties to denounce it.
In the opinion of Boris Babin, the representative of the President of Ukraine in the Autonomous Republic of Crimea, the position against denunciation may be the interests of fishing business, which benefits from the status quo. He recalled that fishing quotas in the Azov sea are still determined jointly with Russia, in accordance with the Interagency Agreement of 1993 on fisheries in the Azov sea. Although this is not explicitly provided for by the agreement, Russia has assumed the responsibility to allocate fishing quotas each year, which are then approved by the Ukrainian side. Under the Presidential Administration, a working group is already established, which deals with cases of illegal encroachments on the interests of Ukraine in the field of maritime economy. Boris Babin expressed disagreement with a position that after the denunciation of the treaty, Russia would interfere with the activities of Ukrainian fishermen, noting that this is already going on for a long time. “As the President and the Ministry of Defense keenly note, our main road to Azov is to strengthen our military and security capabilities, and we already have the first results. […] There is a recent precedent, when Ukrainian navy ships sailed through the Kerch strait for the first time since 2014,” said the representative of the President of Ukraine in the Autonomous Republic of Crimea. He added that Western partners are closely monitoring the situation and are determined to support Ukraine.
Anton Korynevych, PhD in Law and Associate Professor, Department of International Law at the Institute of International Relations, Taras Shevchenko National University of Kyiv, warned against denunciation of the treaty before the formation of a common position of all officials on which alternatives would be better for Ukraine. “The Azov sea is closed or semi-enclosed, in accordance with the provisions of the UN Convention on the Law of the Sea. Accordingly, one way or another we will need to enter into some contractual relationship with the Russian Federation to use of the resources of this sea. The question is whether we can now secure a better deal, taking into account the de facto Russian control over the Azov sea and the Kerch strait,” he explained. In his opinion, it is important to wait for the interpretation of the treaty from the International Tribunal for the Law of the Sea. Also, Anton Korynevych also explained that the treaty on the Azov sea, in contrast to the treaty with Russia on friendship, partnership and cooperation, is a technical rather than a political document, therefore it is impossible to say whether the situation in the Azov sea will improve after it has been denounced.