Incident in the Kerch Strait: basic facts

On Sunday, November 25, there was an aggravation in relations between Russia and Ukraine. The FSB of Russia said that the warships of Ukraine “illegally ” crossed the border. The naval forces of Ukraine reported that the boats of the FSB of Russia opened fire on the ship group of the Ukrainian Navy and seized three ships. As a result of the incident, Ukrainian sailors were injured — Kiev reports six wounded, Moscow claims that three people were injured. What do Russia and Ukraine accuse each other? What does international law say? How does the status of Crimea influence the situation? And what will happen next-in questions and answers.

What Russia is accuses Ukraine?

In Russia reported that the Ukrainian warships “Berdyansk”, “Nikopol” and “Yana Kapu” violated the state border of Russia. As they did not respond to the demands to stop and maneuvered dangerously, fire was opened on them. Russia called the attack on Ukrainian ships a “provocation of Kiev” and to claimed a violation of norm of the international Maritime law.

“There is irrefutable evidence of preparation and carrying out by Kiev of provocation by forces of Navy of Ukraine in the black sea water area. These materials will soon be made public, ” – said the FSB, without saying what kind of evidence in question.

What Ukraine is accuses Russia?

The Ukrainian Navy, in turn, reported that the ships made the transition from Odessa to Mariupol, but the Russian ships made “openly aggressive actions against the ships of the Navy of the armed forces of Ukraine.” According to Kiev, Russia was given information about the passage of ships. According to Moscow, applications for the passage of Ukrainian ships were not filed, they were not included in the schedule of the passage of ships.

Press Secretary of the Ukrainian Navy Oleg Chaly said that Ukraine warned Russia about this planned transition, so Russia’s actions are a violation of the UN Convention on the law of the sea and the Treaty on cooperation on the use of the Azov Sea and the Kerch Strait.

Tension in the waters of the Azov Sea and the Kerch Strait intensified after Russia declared Crimea its territory, and the construction of the Crimean bridge. Long before Sunday events Kiev complained of long stops and inspections of the Ukrainian trade ship following to the Azov ports Mariupol and Berdyansk, the Russian authorities. The European Union also threatened Russia with “concrete measures” because of excessive inspections of ships, especially since the EU courts also faced problems.

What does the law of the sea say?

The UN Convention on the law of the sea establishes a 12-mile (22.2 km) zone from the coastline called the “territorial sea” over which States have full sovereignty. However, in order to ensure navigation, this sovereignty is limited to the right of “peaceful passage” through the territorial sea. This right means that vessels of all States may cross the territorial sea, anchor at the port if necessary, but provided that the passage of the vessel is rapid and uninterrupted and truly peaceful. Ukraine accuses Russia of violating this right. And RF refers to the violation of article 19 and 21 of the Convention, in fact indicating that the passage was not peaceful, and Russia lawfully restricted passage in the territorial sea.

In international law, it is debated whether the passage of a warship in peacetime is “peaceful” and, accordingly, whether the right of innocent passage extends to warships. Many States, signing the Convention, made reservations that reserve the right to restrict the passage of warships in the territorial sea, or require mandatory notification before passage.

Neither Russia nor Ukraine has not made such reservations to the UN Convention on the law of the sea 1982, but made them to the Geneva Convention on the territorial sea and the contiguous zone of 1958 (which repeats the story of the peaceful passage), stating that “the coastal state has the right to establish procedures for the authorization of the passage of foreign warships through its territorial waters”.

In situations where the territorial waters of one state coincide or intersect with the territorial waters of another state, such “neighbours” usually conclude a special Treaty that regulates the use of the common water area. So did in this case. In 2003, the governments of Ukraine and Russia concluded an Agreement on cooperation in the use of the Azov Sea and the Kerch Strait, which States that Russian and Ukrainian military vessels enjoy freedom of navigation in the Azov sea and the Kerch Strait. And based on the fact that the special law (the Treaty of 2003) prevails over the General law (the Convention of 1982 and the Convention of 1958), Russia’s actions from the point of view of international law were illegal.

Does the status of Crimea change the situation?

After Russia declared Crimea its territory, both coasts of the Kerch Strait (and, accordingly, the water area of Crimea) are de facto controlled by Russia. From the point of view of the international community (with the exception of Russia and several States), Ukraine has the legal title to the territory of Crimea. The new agreement on the delimitation of the water area in the actual state of Affairs for Ukraine is unacceptable, because it will indirectly legitimize the annexation of Crimea by Russia.

Even if we do not take into account the status of the Crimea, Ukraine still has and controls the territorial waters in the Sea of Azov, and the only possible way from the port of Odessa to the port of Mariupol lies through the Kerch Strait — so Russia can not block it.
Questions are also raised by Russia’s statement that Ukraine has violated its state border. From the point of view of international law, if it happened in the 12-mile zone from the Crimea, the Ukrainian ships were legally in their own waters.

Whether the actions of Russia aggression?

In Ukraine, the actions of the Russian ships — the RAM of the tug and the discovery of fire, called “aggression”. There is no legal definition of “aggression” in international law, although it is contained in “soft law”. In the UN resolution of December 14, 1974 “definition of aggression” calls such, among other things, “an attack by the armed forces of a state on the land, sea or air forces, or the naval and air fleets of another state.” Aggression is an international crime under the Rome Statute of the International criminal court.

Moreover, the UN Charter (already a binding document) prohibits the use of force or the threat of force — this is a fundamental principle of international law.
Even if the Ukrainian ships really made “dangerous maneuvers which created threat for normal movement of vessels on this water area”, fire on vessels can be opened only in two cases — with the sanction of the UN Security Council and in case of self-defense.

And then?

Much now depends on the actions of the parties and their ability to prevent the situation into an open armed conflict. President of Ukraine Petro Poroshenko announced the bringing of the army in full combat readiness and introduced to the Verkhovnaya Rada the question of the introduction of martial law in the country.
Also, on the initiative of the Russian and Ukrainian side, a meeting of the UN Security Council will be held on November 26 due to the situation in the Kerch Strait. The fact that the meeting will adopt a resolution that suits both sides, can not be expected.

The European Union, the United States and other States have already expressed their concern, demanded freedom of navigation and the release of captured ships and military.