Russian attack on Ukrainian ships: who has a right to do what in the Azov Sea

Russia is preparing to put 24 Ukrainian sailors on trial after attacking and seizing their three Navy vessels near the Kerch Strait on 25 November. The vessels were heading to the Ukrainian port of Mariupol in a bid to strengthen the Ukrainian military presence in the Azov Sea, in response to Russia's ongoing blockade in the area. The Ukrainian National Defense and Security Council recognized the Russian attack as an act of unprovoked aggression and Ukraine has imposed a state of martial law in nearly half of the country in response. Meanwhile, Russian President Vladimir Putin has called the whole incident a Ukrainian "provocation" and the FSB is claiming Ukraine trespassed on Russia’s territorial waters.

We dug into the intricacies of maritime law to see whether Russia's accusations have any ground.

According to the Ukrainian Navy, on 25 November, the tugboat Yany Kapu and two artillery armored boats Berdiansk and Nikopol, were headed from Odesa to Mariupol. They notified the coastal post of the Russian border guards service and the seaports of Kerch and Kavkaz of the intended passage via the Kerch Strait, but were not answered. Then, the Russian border guard ship Don rammed into Yany Kapu and damaged its engine and hull. As the Ukrainian ships approached the Kerch Bridge, Russia blocked the passage with a cargo vessel, however moving it aside to let its own ships pass. Additionally, Russia deployed several more seacrafts, as well as K-52 combat helicopters, and even Su-25 fighter jets in the Kerch Bridge area.

After the blockage, Ukrainian ships headed back to Odesa, but shortly after they crossed the 12-nautical-mile baseline and reached neutral waters, the Russian ships opened fire on Ukrainian seacrafts wounding at least one sailor, reported the Ukrainian Navy as of 20:33. Yany Kapu and Berdiansk lost engines and were seized by Russian special forces. The third seacraft, Nikopol, was surrounded by Russian ships and forced to follow their course.

[Read more: Russian attack on Ukrainian ships near Kerch Strait – full chronology]

According to Russia, the group of three Ukrainian military ships (two cutters and a tugboat) heading to the newly established naval base in Berdiansk did not ask permission to enter the Kerch Strait. A document published by the FSB claims that the Marine administration of the Kerch port had to be informed 48 and 24 hours prior to passage and receive confirmation 4 hours prior to passage, claiming that the Ukrainian ships had not done that. It says nothing of the Russian border service ship Don ramming through the Ukrainian tugboat Yany Kapu, despite a video of the episode being published by Russian sailors. It also makes no mention of the lethal fire of the Russians, speaking only of warning fire and three wounded.

Russia claims that these measures were needed because "the artillery installations were uncovered, raised at 45 degrees, and directed towards the ships and boats of the Russian Federation." However, the photographs published by the FSB don't show the two artillery cutters, depicting only the tugboat which usually doesn’t carry artillery. Belarusian journalist Franak Viačorka noted in twitter that the artillery marks on the ship Berdiansk show that Russians were aiming at the crew and not the engines.

– the Ukrainian ships needed to inform the Kerch Marine administration 48 and 24 hours prior to and get permission 4 hours prior to passage through the Kerch Strait; – Russia had a right to close the Kerch Strait for the Ukrainian ships and the Ukrainian ships violated P.3 Art.25 of the 1982 UN Convention on Maritime Law and P.2 Art.12 of the 1998 Russian law #155-FZ "On the internal sea waters, territorial waters and the adjacent zone of the Russian Federation" when they entered Russia's territorial waters at 44°52'N 36°31'E at 7:10; – the Ukrainian ships violated the 1982 UN Convention on Maritime Law and the 1998 Russian law #155-FZ "On the internal sea waters, territorial waters and the adjacent zone of the Russian Federation" when they didn't obey the Russian border guards' orders to stop, which is why the Russian ships shot at the Ukrainian ships according to pp24,25 of the Russian state decree #80 "On Approval of the Rules for the Use of Weapons and Military Equipment while Protecting the State Border of the Russian Federation and the Exclusive Economic Zone and the continental shelf of the Russian Federation" (2010).

Click to enlarge. The open sources coordinates of the attacks are taken from: A- coordinates of two incidents when the Russian border guard ship Don collided with the Ukrainian tugboat Yany Kapu voiced in an intercepted call between the Russian military leadership and Russian border guards; B – a distress call sent by Berdiansk. The FSB version of events coordinates are taken from the FSB communique regarding the events of 25 November

The territorial waters of a state, or the 12-mile (22.224 km) strip of water adjacent to its coast, are considered sovereign territory of the state, although foreign ships (military and civilian) are allowed innocent passage through it, or transit passage for straits, according to Art.17 of the 1982 United Nations Convention on the Law of the Sea.

P.1 Art.36 of the UN Convention outlines that "in straits referred to in article 37 [used for international navigation], all ships and aircraft enjoy the right of transit passage, which shall not be impeded."

After Russia illegally annexed Crimea in 2014, it decided to annex the waters as well and now considers the 12-mile strip around the Ukrainian peninsula its state border, claiming that the Azov Sea is its internal sea. This is why the Russian ships demanded Ukraine get permission to pass through the Kerch Strait. In its explanation of the incident on 25 November, the FSB cited the "#313 order of the Ministry of Transport of Russia" as the document which obliges Ukraine to receive a permit to enter the Kerch Strait.

According to the 1982 UN Convention, all vessels have the right of movement through international straits. Additionally, they have the right of innocent passage through the territorial waters of a state. Russia is a signatory to the Convention since 1997. Russia is a signatory to the 2003 Ukraine-Russia agreement on collaboration in using the Azov Sea and Kerch Strait which defines the Azov Sea as internal waters of both Russia and Ukraine.

The Ukraine-Russia agreement on collaboration in using the Azov Sea and Kerch Strait signed by Russia and Ukraine in 2003 is the base document regulating the two countries' usage of the Azov Sea. According to it, the Azov Sea is historically the internal waters of Ukraine and Russia. Accordingly, all trade and military ships, as well as other state ships under Ukrainian or Russian flags used in non-commercial goals, have the freedom of navigation in the Azov Sea and Kerch Strait.

Freedom of navigation means that Ukrainian military ships are allowed to freely pass through the Kerch Strait at any time if they comply with safety measures. Thus, Ukraine should have been allowed innocent passage through any Russian territorial waters whatsoever in order to get to any international strait, not even mentioning the Kerch Strait, which has a separate law governing Russia’s and Ukraine's actions. Moreover, speaking in terms of international law, the territorial waters around Crimea belong to Ukraine.

Russia still recognizes the agreement as valid. Therefore, Russia's complaints about Ukraine "violating its territorial waters" are completely bogus.

So are its claims that Ukraine should have applied for a permit 48 prior to passing through the Strait. The FSB description of events mentions that Ukraine had at 5:35 informed the technical observation post at cape Takil that it plans to pass through the Kerch Strait – and that is precisely what Ukraine was supposed to do under its right to free navigation.

Russia claims it had a right to close the Kerch Strait for the Ukrainian ships and the Ukrainian ships violated P.3 Art.25 of the 1982 UN Convention on Maritime Law and P.2 Art.12 of the 1998 Russian law #155-FZ "On the internal sea waters, territorial waters and the adjacent zone of the Russian Federation" when they entered Russia's territorial waters at 44°52'N 36°31'E at 7:10, the FSB claimed.

First of all, that location (triangle 2 on the map above) is located outside of the territorial waters of both Russia and occupied Crimea.

Second, the mentioned legal acts state that "the coastal State may, without discrimination in form or in fact among foreign ships, suspend temporarily in specified areas of its territorial sea the innocent passage of foreign ships if such suspension is essential for the protection of its security, including weapons exercises. Such suspension shall take effect only after having been duly published."

There was no duly published suspension. There were no weapons exercises. And there was no known threat to Russia's security. There was only, as the FSB admitted itself, an arbitrary prohibition of the Russian border guard ships at 5:45 Moscow time. Russia did not have any right to arbitrarily stop the Ukrainian ships.

The FSB cited pp24,25 of the Russian state decree #80 "On Approval of the Rules for the Use of Weapons and Military Equipment while Protecting the State Border of the Russian Federation and the Exclusive Economic Zone and the continental shelf of the Russian Federation" (2010) as the legal grounds on which Russia shot at the Ukrainian ships.

The decree #80 states that weapons can be used against vessels violating rules of crossing the Russian state border and rules of conduct established by Russian law and international agreements.

Ukraine has freedom of navigation in the Azov Sea and Kerch Strait. It was acting in accordance with all existing international treaties.

On the contrary, in the FSB's own description, Russia had arbitrarily attempted to stop Ukraine from exercising the rights it has under those treaties. And attempting to do so, engaged in an act of aggression, ramming into the Ukrainian tugboat in the morning before the Ukrainian fleet approached the Kerch Strait (Red asterisk A on the map).

And in the end, contrary to its own claims, used lethal force against Ukrainian Navy ships outside of its own territorial waters, and outside of the territorial waters of the Crimean peninsula it had occupied (asterisk B on the map).

Russian attack on Ukrainian ships near Kerch Strait – full chronology Russia takes 24 prisoners of war after attacking Ukrainian ships in Azov, televises “confessions” Martial law to be imposed in nearly half of Ukraine. Here is what will change Russia attacks Ukrainian ships near Kerch strait – video, audio intercepts]

41 posted on 12/01/2018 1:33:05 AM PST by Jimmy Valentine (DemocRATS - when they speak, they lie; when they are silent, they are stealing the American Dream)

42 posted on 12/01/2018 3:43:48 PM PST by Eleutheria5 (If you are not prepared to use force to defend civilization, then be prepared to accept barbarism.)

Well said.

The Obama White House backed a coup in Ukraine, complete with snipers.

When that happened the Russians acted to protect their assets and people in theatre. And why wouldn't they - they had as much right as the new 'government'.

Also: we should note that the Russians didn't invade Crimea. They had bases there already. Their troops just got out of bed.

Pepes ought to be damned glad Vlad didn’t decide to go more belligerant than he did. I was afraid he might try to reconstitute the old Soviet Union and that would have meant Ukraine was dead meat. Why should Ukraine fear the bear? Because they belong to the bear. It’s like if Kansas, Nebraska, Iowa, and the dakotas decided they didn’t want to be part of the USA anymore. No Chance!

“If Ukraine wants to remain a sovereign nation it better get its act together quickly.”

This has to do with Russia, once again, losing credibility as a civilized and responsible nation. Putin’s reckless actions simply focus people on the failed state of Russia, it’s economy and political humiliations. Nobody wants to be part of the Russian Sphere, which is why all the Euro’s want to be part of NATO.

It’s a Russian delusion that they control Crimea. We can obliterate it at any time of our choosing. It’s very much like a Fake Illegal Annexation. Russia has become a joke and Putin a tin pot dictator.

We can obliterate it at any time of our choosing.

With the current placement of S-400 batteries...very doubtful.

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