The recent clash between Russia and Ukraine is about access to the Sea of Azov especially arising from the Russian bridge connecting Crimea to the Russian mainland. Russian and Ukrainian claims and explanations are entirely predictable as is NATO’s condemnation of Russia. The Russians claim that it is all the fault of Ukraine for illegally entering Russian territorial waters while Ukraine says Russia is to blame and that it is yet another example of Russian aggression against Ukraine. The legal position is disputed and somewhat murky but Russia is clearly in breach of a 2003 agreement on the Sea of Azov and the Kerch Strait. There have been tensions and minor incidents for some years but. tension has escalated with threats from both sides and even an offer from Turkey to mediate.
So what is the legal position? In 2003 Moscow and Kiev signed an agreement under which the Kerch Strait and the Sea of Azov are jointly the territorial waters of both Russia and Ukraine. The body of water is an inland, semi-enclosed sea and governed by Article 123 of the United Nations Convention on the Law of the Sea which means Russia and Ukraine are required to cooperate on all maritime matters, including access to the strait. According to Mikhail Barabanov, a Russian naval analyst at the Moscow-based Centre for the Analysis of Strategies and Technologies:“The status of the Kerch Strait is very much a matter of interpretation. After the annexation of Crimea, the interpretation of the 2003 treaty regarding passage through the strait has inevitably changed since Moscow now views the Kerch Strait as purely Russian territorial waters.” However, according to an American international law professor, Günther Handl: “At a minimum there is a non-suspendable right of innocent passage through the Kerch Strait given that Ukraine has an irrevocable right to access its ports on the Sea of Azov.” Much would seem to depend on whether you accept that Russian incorporation of Crimea gives Russia the Kerch Straits as territorial waters whereas if you do not it remains Ukrainian littoral. Most countries do not recognise Russian incorporation of Crimea but that doesn’t worry Russia. This of course is relevant to how you see the public claim by President Putin that Ukrainian ships breached Russian territorial waters and the Ukrainian claim that they were exercising legal rights. It does seem clear nevertheless that Russia has unilaterally changed the situation and laid claim to territorial waters not envisaged in the 2003 agreement. No attempt has been made to renegotiate the 2003 agreement.
We can only speculate on why Russia chose to up the ante at this time. President Putin is always happy to create an incident which will enable him to beat his hairy nationalist chest for domestic purposes but why now? It is probably related to maritime claims around Crimean waters and close to the bridge which may be an impressive engineering achievement but is also a nationalist symbol and a way of consolidating the integration of Crimea into the Motherland. It is almost certainly only about this region and not the preliminary to an invasion of Ukraine as the Ukrainians say. Many Russians have never really accepted that “Little Russia” is a separate entity and certainly the annexation of Crimea was popular domestically. Russia also would prefer Ukraine to be a pro-Russian buffer and not a NATO client. The building of the bridge and the subsequent claim to territorial waters in the Sea of Azov, which is also historical Russian territory, can be seen as an extension of the annexation. So the most likely Russian motive is to shore up Putin’s domestic image and to consolidate Russian control over and claims to Crimea.
Ukrainian President Poroshenko faces an election next year which he will be very lucky to win. He is therefore stepping up the nationalist rhetoric too and relating it to what he claims is Russia’s plan to invade and take over Ukraine. Since Ukraine doesn’t recognise Russian occupation of Crimea he can legitimately deny that Ukrainian vessels entered Russian territorial waters and that the 2003 agreement still holds. He has declared martial law in some regions which makes him look good by standing up to Russia. Some fear that he may use this to help his campaign for re-election or even put off the election but this remains to be seen. The fact that it is restricted to what may be seen as relevant areas and not the whole country argues against this. Europe makes appropriate noises but European countries have their own troubles and are unlikely to do more than fulminate. In response to Petroshenko’s unrealistic demand that NATO send warships to the Sea of Azov German chancellor Merkel said that there is no military solution to the problem.
NATO’s response is also predictable. It is all Russia’s fault and US Ambassador Nicky Haley has thundered forth at the UN in entirely predictable terms. There is talk of more sanctions against Russia but there is nothing much NATO can do without going to war against Russia which is not going to happen. President Trump remains better disposed to Putin than most other Americans so he is unlikely to be pushing for action. Putin knows that Ukraine cannot stand up to Russia militarily and that NATO is a paper tiger. Sanctions and condemnation of Russia by foreigners will only give him yet another tub to thump about foreign interference in Mother Russia etc etc. The most likely outcome is that Russia will exercise de facto control over the area but tension will remain and further incidents cannot be ruled out. Both Russia and Ukraine are threatening violence but are unlikely to carry out their threats. Ukraine knows it would lose any war with Russia and so will confine its reaction to warlike words and calls for other countries to do something about Russia. Ideally, Russia and Ukraine will reach agreement on a modus vivendi but we do not live in an ideal world. NATO and the USA will huff and puff but will not blow the Russian house down.
Australia is not a player in this game and nobody is interested in our views. We will follow the US and NATO as we always do but perhaps even more be guided by domestic politics as we increasingly do. Ukrainians in Australia have demanded that Australia take action so this may encourage the Government to appear to be doing something to get the Ukrainian vote.
Cavan Hogue is a former Australian Ambassador to Russia dually accredited to Ukraine.