Feb 13, 20193 min read

INTERNATIONAL LAW : KERCH STRAIT : RUSSIA & UKRAINE ESCALATION OF TENSIONS

WHAT’S IN THE NEWS?

An “immediate de-escalation” of tensions is needed in the Sea of Azov and the Black Sea, the United Nations top political official has said, underlining the importance of “earnest attempts” to find a peaceful resolution to years of simmering conflict between Russia and Ukraine.

WHAT HAPPENED ON 25TH NOVEMBER 2018 ?

An international incident occurred on 25 November 2018 when the Russian Federal Security Service (FSB) coast guard fired upon and captured three Ukrainian Navy vessels attempting to pass from the Black Sea into the Sea of Azov through the Kerch Strait on their way to the port of Mariupol.

Three Ukrainian crew members were injured in the clash, and all twenty-four Ukrainian sailors from the captured ships were detained by Russia.
The Ukrainian government characterised the incident as a potential precursor to a Russian invasion, and declared martial law along the border with Russia and in Black Sea coastal areas, which expired on 26 December 2018.

BACKGROUND : In December 2003, Ukraine and the Russian Federation agreed to treat the sea and the Strait of Kerch as shared internal waters. In September 2018, Ukraine announced the intention to add navy ships and further ground forces along the coast of the Sea of Azov, with the ships based at Berdyansk.

WHY KERCH STRAIT IS IMPORTANT? The Kerch Strait is the only connection between the Black Sea and the Sea of Azov, and the only way to reach two important Ukrainian ports, Mariupol and Berdiansk. Russia has controlled the strait since annexing Crimea in 2014, which has made traffic significantly more difficult for Ukrainian ships.

DISPUTE OVER MARITIME LAW :

Ukraine and Russia accuse each other of violating international maritime law. They refer to the 1982 UN Convention on the Law of the Sea, which both states joined in the 1990s.
Ukraine insists on freedom of movement in the Kerch Strait and the Sea of Azov in accordance with this agreement, while the Russian side is trying to draw territorial borders.
The countries also have a bilateral agreement on the free use of the Kerch Strait and the Sea of Azov, an accord that Russia has never called into question.

UN INTERVENTION : UN statement issued: The two countries to “exercise maximum restraint” and to take steps without delay to contain the incident and reduce tensions through all available peaceful means in accordance with the UN Charter.

INNOCENT PASSAGE & TRANSIT PASSAGE PRINCIPLE UNDER UNCLOS :

The UN Convention on the Law of the Sea (UNCLOS) sets out various scenarios that give a state freedom of passage, irrespective of a state's territorial waters.

1. RIGHT OF INNOCENT PASSAGE :

All ships, including foreign warships, enjoy the right of "innocent passage" within another state's territorial sea under international law.

Russia has disputed whether the passage was innocent. The UN law states that a passage is innocent "so long as it is not prejudicial to the peace, good order or security of the coastal state". That includes threat or use of force, exercise or practice with weapons or any act of propaganda affecting the security of the state.

Russia would need to prove that the passage of the Ukrainian vessels was not innocent and that Ukraine had showed "some form of hostile intent" to act against them.

2. TRANSIT PASSAGE :

Ukraine has also highlighted provisions (Article 38 and Article 44) of the convention, which require all ships to be given the freedom to travel through a strait from one part of the high seas to another - known as transit passage.

There are also rules within the UN convention that "ensure that ports which can only be reached by a single route through the strait, as is true of all ports in the Sea of Azov, always remain accessible".

IMPORTANCE : Right of innocent passage & Transit Passage - both are very important and frequently asked questions in UPSC MAINS LAW OPTIONAL.

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