Maritime Security of Ukraine. A Reference Work. (13) The Prohibition Against Vessels and Ships Entering the 12-Mile Zone of the Crimean Peninsula

Bohdan USTYMENKO,
M.J., Attorney at Law

Tetiana USTYMENKO,
S.J.D., professor,
Department of Civil Law and Procedure
National Academy of Internal Affairs

From the editors of BlackSeaNews

On 7 December 2021, the interdepartmental working group chaired by Secretary of the National Security and Defence Council (NSDC) of Ukraine Oleksiy Danilov completed work on the draft Maritime Security Strategy of Ukraine, a document initiated by President of Ukraine Volodymyr Zelensky.

The strategy was developed taking into account the current experience of the world's leading maritime powers, the positions of maritime law scholars, the proposals of 16 government agencies, independent experts, and business associations. The working group members approved the draft, and the final text of the document, after coordination of some positions, was sent to the President of Ukraine and members of the NSDC of Ukraine.

The strategy took into account a lot of proposals aimed at solving problems that had been repeatedly addressed in the publications by BlackSeaNews authors. Therefore, the editorial board has decided to create a concise and clear reference work based on the contributions from our authors, which looks at the terminology and problems related to maritime security and provides expert explanations.

Contents

(1) The State Border of Ukraine at Sea

(2) The Contiguous Zone

(3) The Exclusive Economic Zone and the Continental Shelf

(4) Ukraine's Maritime Borders With Turkey and Romania

(5) Ukraine's Maritime Borders With the Russian Federation

(6) "Historical Waters" of the Sea of ​​Azov and the Kerch Strait

(7) "Internal Waters" and Borders in the Sea of ​​Azov and the Kerch Strait

(8) The Tuzla Island Conflict and the Agreement Under Duress

(9) The Delimitation of the Sea of ​​Azov and the Kerch Strait According to the UN Convention on the Law of the Sea

(10). What Mandatory Procedure for the Delimitation of the Maritime Border Between Ukraine and Russia Can Be Adopted

(11) Foreign Military Exercises in the Exclusive Economic Zone of Ukraine

(12) The Legal Aspects of Hydrocarbon Extraction in the Exclusive Economic Zone of Ukraine

(13) The Prohibition Against Vessels and Ships Entering the 12-Mile Zone of the Crimean Peninsula

(14) Threats of Maritime Formats Involving the Russian Federation

(15) Necessary Legal Measures Ukraine Should Take

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It is a generally acknowledged fact that in 2014, the Russian Federation occupied the Ukrainian territories, namely the Autonomous Republic of Crimea and the city of Sevastopol.

Subsequently, in order to determine the status of the temporarily occupied territory, the Law of Ukraine On Ensuring the Rights and Freedoms of Citizens and the Legal Regime in the Occupied Territory of Ukraine (hereinafter — the Law on Occupation) established a special legal regime for that area. The special regime defined the new scope and specifics of the activity of local self-government and state bodies, enterprises, institutions and organizations and compliance and protection of human and citizen's rights and rights and freedoms of legal entities.

Paragraph 1 of Article 1 of the Law on Occupation specifies that a temporarily occupied territory of Ukraine (hereinafter — temporarily occupied territory) is an integral part of the territory of Ukraine where the Constitution and laws of Ukraine apply in full. The official date of the beginning of the temporary occupation is February 20, 2014. In addition, Article 3 (1) of the Law on Occupation stipulates that for the purposes of this Law, a temporarily occupied territory is defined as:

1. land area of the Autonomous Republic of Crimea and the city of Sevastopol and Ukrainian inland waters in these areas
2. inland sea waters and territorial sea of Ukraine around the Crimean peninsula, as well as the territory of the exclusive (marine) economic zone of Ukraine along the coast of the Crimean peninsula and adjacent to the coast continental shelf of Ukraine within the jurisdiction of the Ukrainian state authorities per international legal norms and the Constitution and laws of Ukraine
3. subsoil beneath the territories defined above and the airspace above them.

We would like to point out that due to the occupation of the Autonomous Republic of Crimea and the city of Sevastopol and other numerous illegal actions of the Russian Federation, Ukraine has lost control over most of its territorial sea and exclusive economic zone — all in all, about 100,000 square kilometers in the Black and Azov seas of the 137,000 square kilometers of sea waters total that Ukraine's sovereignty or sovereign rights extend to.

In response, the decree of Ukraine’s Ministry of Infrastructure On Closure of the Seaports has closed the Ukrainian seaports of Kerch, Sevastopol, Feodosia, Yalta and Yevpatoria until the constitutional order of Ukraine in the temporarily occupied territory of the Autonomous Republic of Crimea and the city of Sevastopol is restored.

In addition, due to the inability of servicing ships and passengers, facilitating cargo, transport, freight forwarding and other related activities, ensuring proper level of navigation safety and Ukraine’s compliance with the international treaties requirements as well as adequate environmental protection at sea fishing ports in the Autonomous Republic of Crimea and the city of Sevastopol, by resolution On the Temporary Closure of the Sea Fishing Ports, the Cabinet of Ministers of Ukraine has closed the Kerch and Sevastopol Sea Fishing Ports until the constitutional order of Ukraine in these temporarily occupied area is restored.

In turn, Article 25 (1) of the UNCLOS allows a coastal state to take the necessary steps in its territorial sea to prevent a non-innocent passage.

As is apparent from Article 19 (1) of the UNCLOS, a passage is considered peaceful if it proceeds in accordance with the Convention and other rules of international law and does not breach peace, good order or security of the coastal state.

In accordance with Paragraph 2 of Article 19 of the Convention, a passage of a foreign vessel is considered to be in breach of the peace, good order or security of a coastal state if it engages in the following activities in the territorial sea:

• any threat or use of force against the sovereignty, territorial integrity or
• political independence of the coastal State, or in any other manner in
• violation of the principles of international law embodied in the Charter of
• the UN
• any exercise or practice with weapons of any kind
• any act aimed at collecting information to the prejudice of the
• defense or security of the coastal state
• any act of propaganda aimed at affecting the defense or security
• of the coastal state
• the launching, landing or taking on board of any aircraft
• the launching, landing or taking on board of any military
• device
• the loading or unloading of any commodity, currency or person
• contrary to the customs, fiscal, immigration or sanitary laws and
• regulations of the coastal state
• any act of willful and serious pollution contrary to the UNCLOS
• any fishing activities
• any research or survey activities
• actions aimed at interfering with any systems of communication
• or any other facilities or installations of the coastal state
• any other activity that doesn’t have a direct bearing on passage.

Meanwhile, a coastal state may adopt laws and regulations conforming with the provisions of the UNCLOS and other rules of international law relating to innocent passage through the territorial sea in respect to all or any of the following:

• safety of navigation and regulation of maritime traffic
• protection of navigational and other aids, facilities or installations
• protection of cables and pipelines
• conservation of the living resources of the sea
• prevention of infringement of the fisheries laws and
• regulations of the coastal state
• preservation of the environment of the coastal state and
• prevention, reduction and control of pollution thereof
• marine scientific research and hydrographic surveys
• prevention of infringement of the customs, fiscal,
• immigration or sanitary laws and regulations of the coastal
• state (Article 21 (1) of the Convention).

Additionally, without discrimination in form or in fact among foreign ships, a coastal state may temporarily suspend 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. (Article 25 (3) of the UNCLOS).

Finally, Article 24 (2) of the Convention stipulates that a coastal state must give appropriate publicity to any known danger to navigation within its territorial sea.

According to Article 5 of the State Border Law, the territorial sea of Ukraine includes coastal waters extending for twelve nautical miles from the lowest water line both on the mainland and in the islands belonging to Ukraine or from direct baselines connecting the corresponding points. The geographical coordinates of these points are approved in the order established by the Cabinet of Ministers of Ukraine.

In some cases, a different breadth of Ukraine’s territorial sea may be established by international treaties of Ukraine, and in the absence of treaties — in accordance with the generally recognized principles and norms of international law.

At the same time, in accordance with Article 17 of the Law on State Border, respective Ukrainian authorities may establish areas in the territorial sea and inland waters of Ukraine where navigation and stay of Ukrainian and foreign non-military ships and warships is temporarily prohibited. The establishment of such areas has to be announced in due course.

Also, Paragraph 6 of the Rules of Navigation and Stay of Foreign Warships in the Territorial Sea, Inland Waters, Raids and Ports of Ukraine [4] stipulates that foreign warships must not enter and remain in the areas of territorial sea and inland waters where navigation is prohibited.

Nor should we ignore another international instrument critically important to the ocean safety, namely, the International Convention for the Safety of Life at Sea [5] (as amended) (hereinafter — SOLAS).

Thus, under Regulation 4 Navigational Warnings of SOLAS Chapter V Safety of Navigation, each contracting government shall take all necessary measures to ensure that when intelligence of any dangers is received from whatever reliable source, it must be promptly brought to the knowledge of those concerned and communicated to other interested governments.

Moreover, the provisions of Regulation 9 Hydrographic Services of SOLAS Chapter V stipulate that the contracting governments undertake steps to collect and compile hydrographic data, as well as publish, disseminate and update all maritime information necessary for safe navigation. In particular, the contracting governments undertake to cooperate in carrying out, as far as possible, the following navigation and hydrographic services in a manner most suitable for the purpose of aiding navigation:

1. ensure that hydrographic surveying is carried out, as far as possible, adequate to the requirements of safe navigation
2. prepare and issue nautical charts, sailing directions, lists of lights, tide tables and other nautical publications, where applicable, satisfying the needs of safe navigation
3. promulgate notices to mariners in order that nautical charts and publications are kept, as far as possible, up to date and
4. provide data management arrangements to support these services.

The above SOLAS provisions are duly reflected in Article 76 of the Merchant Shipping Code of Ukraine (hereinafter — KTM). Namely, this article of KTM stipulates that nautical and hydrographic support of navigation in Ukraine’s inland waters, territorial sea and exclusive (marine) economic zone is provided by means of:

• installing, developing and maintaining the navigation equipment required by the intensity of the navigation traffic and the degree of navigation hazard
• conducting hydrographic surveys
• collecting navigation information
• timely preparation, publication and provision of seafarers with navigational charts, advisories, guides, messages and warnings, as well as other up-to-date navigation and hydrographic information.

* * *

Therefore, taking into account the above facts, the requirements of the international maritime law and Ukraine’s national legislation, as well as the present objective impossibility for Ukraine to comply with the Regulation 4 Navigational Warnings, Regulation 9 Hydrographic Services and Regulation 13 Establishment and Operation of Aids to Navigation of SOLAS Chapter V Safety of Navigation in the RF-occupied inland waters and territorial sea around the Crimean peninsula, as a coastal state, Ukraine is obligated to establish within its inland waters and territorial sea around the Crimean peninsula an area where navigation and stay of Ukrainian and foreign non-military vessels and warships is temporarily prohibited until Ukraine’s constitutional order there is restored.

Map of the Area Temporarily Prohibited for Navigation in the Occupied Ukrainian Territorial Sea Adjacent to the Crimean Peninsula

* * *

References:

1. Konstytutsiia Ukrainy: Osnovnyi Zakon Ukrainy vid 28.06.2996 r. // Vidomosti Verkhovnoi Rady Ukrainy. – 1996. - № 30, stattia 141. [The Constitution of Ukraine: the Basic Law of Ukraine. The Bulletin of the Verkhovna Rada of Ukraine, 1996, #30, article 141].

2. Konventsiia Orhanizatsii Obiednanykh Natsii z morskoho prava vid 10.12.1982 r., ratyfikovana Zakonom Ukrainy «Pro ratyfikatsiiu Konventsii Orhanizatsii Obiednanykh Natsii z morskoho prava 1982 roku ta Uhody pro implementatsiiu Chastyny XI Konventsii Orhanizatsii Obiednanykh Natsii z morskoho prava 1982 roku» № 728-XIV vid 03.06.1999 r. Vidomosti Verkhovnoi Rady Ukrainy. – 1999. - № 31, stattia 254. [The United Nations Convention on the Law of the Sea from December 10, 1982, ratified by the Law of Ukraine On Ratification of the 1982 United Nations Convention on the Law of the Sea and the Agreement Relating to the Implementation of Part XI of the 1982 United Nations Convention on the Law of the Sea # 728-XIV from June 3,1999. The Bulletin of the Verkhovna Rada of Ukraine, 1999, #31, article 254]. 

3. Pro derzhavnyi kordon Ukrainy: Zakon Ukrainy vid 04.11.1991 r. // Vidomosti Verkhovnoi Rady Ukrainy. - 1992. - № 2, stattia 5. [On the State Border of Ukraine: Law of Ukraine from November 4, 1991. The Bulletin of the Verkhovna Rada of Ukraine, 1992, #2, article 5].

4. Pro zatverdzhennia Pravyl plavannia i perebuvannia v terytorialnomu mori, vnutrishnikh vodakh, na reidakh ta v portakh Ukrainy inozemnykh viiskovykh korabliv: Postanova Kabinetu Ministriv Ukrainy vid 16.05.1996 r., № 529. [On Approving Rules of Navigation and Stay of Foreign Warships in the Territorial Sea, Inland Waters, Raids and Ports of Ukraine: Decree of the Cabinet of Ministers of Ukraine #529 from May 16, 1996].

5. Mizhnarodnoi konventsii z okhorony liudskoho zhyttia na mori 1974 roku (SOLAS-74) (SOLAS) vid 01.11.1974 [International Convention for the Safety of Life at Sea (SOLAS-74) from November 1, 1974].

6. Kodeks torhovelnoho moreplavstva Ukrainy vid 23.05.1995 r. // Vidomosti Verkhovnoi Rady Ukrainy. – 1995. - № 47, stattia 349. [The Merchant Shipping Code of Ukraine from May 23, 1995. The Bulletin of the Verkhovna Rada of Ukraine, 1995, #47, article 349].

7. Pro zatverdzhennia Polozhennia pro Ministerstvo infrastruktury Ukrainy: Postanova Kabinetu Ministriv Ukrainy vid 30.06.2015 r., № 460 // Ofitsiinyi visnyk Ukrainy. – 2015. - № 54, stor. 82, stattia 1755, kod akta 77634/2015. [On Approving the Regulation on the Ministry of Infrastructure of Ukraine: Decree of the Cabinet of Ministers of Ukraine #460 from June 30, 2015. The Official Bulletin of Ukraine, 2015, #54, p.82, article 1755, act code 77634/2015].

8. Pro zatverdzhennia Polozhennia pro navihatsiino-hidrohrafichne zabezpechennia moreplavstva u vnutrishnikh morskykh vodakh, terytorialnomu mori ta vykliuchnii (morskii) ekonomichnii zoni Ukrainy: Nakaz Ministerstva transportu ta zviazku Ukrainy vid 29.05.2006 r., № 514, zareiestrovanyi v Ministerstvi yustytsii Ukrainy 14.06.2006 r. za № 708/12582 // Ofitsiinyi visnyk Ukrainy. - 2006.- № 24, str. 177, stattia 1792, kod akta 36603/2006 [On Approving the Regulation on the Nautical and Hydro graphic Support to Navigation in the inland sea waters, territorial sea and the exclusive (marine) economic zone of Ukraine: Order #514 of the Ministry of Transport and Connection of Ukraine from May 29, 2005, registration #708/12582. The Official Bulletin of Ukraine, 2006, #24, p.177, article 1792, act code 36603/2006].

9. Pro zabezpechennia prav i svobod hromadian ta pravovyi rezhym na tymchasovo okupovanii terytorii Ukrainy: Zakon Ukrainy vid 15.04.2014 r. // Ofitsiinyi visnyk Ukrainy. – 2014. - № 36, stor. 35, stattia 957 [On Ensuring Rights and Freedoms of Citizens and the Legal Regime in the Temporarily Occupied Territory of Ukraine: Law of Ukraine from April 15, 2014. The Official Bulletin of Ukraine, 2014, #36, p.35, article 957].

10. Pro zakryttia morskykh portiv: Nakaz Ministerstva infrastruktury Ukrainy vid 16.06.2014 r., № 255, zareiestrovanyi u Ministerstvi yustytsii Ukrainy 24.06.2014 r. za № 690/25467 // Ofitsiinyi visnyk Ukrainy.- 2014. - № 54, stor. 116, stattia 1461, kod akta 73050/2014. [On Closure of the Sea Ports: Order #255 of the Ministry of Infrastructure of Ukraine from June 16, 2014 registered at the Ministry of Justice of Ukraine
on June 24, 2014 under the #690/25467. The Official Bulletin of Ukraine, 2014, #54, p.116, article 1461, act code 73050/2014].

11. Pro tymchasove zakryttia morskykh rybnykh portiv: Postanova Kabinetu Ministriv Ukrainy vid 06.04.2016 r., № 263 // Ofitsiinyi visnyk Ukrainy. – 2016. - № 30, stor. 67, stattia 1198, kod akta 81545/2016. [On the Temporary Closure of the Sea Fishing Ports: : Decree of the Cabinet of Ministers of Ukraine #263 from April 6, 2016. The Official Bulletin of Ukraine, 2016, #30, p.67, article 1198, act code 81545/2016]. 

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This publication has been produced with the support of the European Endowment for Democracy (EED). Its contents do not necessarily reflect the official opinion of EED. Responsibility for the information and views expressed in this publication lies entirely with the authors.