ORLANDO, Fla., and MOSCOW — Russia’s brazen seizure of three Ukrainian navy ships on Sunday set off a firestorm of finger-pointing and appeals to international law on both sides. But the clash over the Kerch Strait and access to the Sea of Azov isn’t likely to become a long-running international spectacle like the ongoing maritime feud between the U.S. and China over China’s claims in the South China Sea.
The Kerch Strait became a flashpoint when Russian coast guard vessels first rammed a Ukrainian tugboat, then later fired on two accompanying gunboats, attempting to transit the strait. The clash set off a furious round of diplomacy, featuring Western nations and the Russian Federation trading barbs at the UN and in the media while Ukraine began preparing for a wider conflict.
In the wake of Sunday’s clash in the strip of water running between the Russian-controlled Crimean Peninsula and the Russian mainland, some wondered if the U.S. or other Western countries should consider a South China Sea-like strategy of “freedom of navigation operations” where warships drive through a disputed feature or choke point to assert international rules and challenge excessive claims.
And while Russia is surely claiming territorial dominion over Crimea, the highly contested root of the conflict here, Moscow knows that the Sea of Azov likely won’t turn into the kind of international debacle China created with ludicrously expansive claims in the South China Sea, and that gives Russia enormous leverage.
Russia already has internationally recognized rights in the Kerch Strait and Sea of Azov that China could only dream of in the South China Sea, a situation presciently described by the head of U.S. Navy forces in Europe, Adm. James Foggo, during an October talk at the Atlantic Council in Washington.
Whereas China’s claims of maritime rights over most of the South China Sea have been rejected by an international tribunal, Russia’s rights in the Kerch Strait are well defined. 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, Foggo said Oct. 5, meaning the two nations that border it – Russia and Ukraine – are required to cooperate on all maritime matters, including access to the strait.
That’s very different from the South China Sea where the U.S. and many of its allies claim China is asserting dominion over what are essentially international waters.
In practice that means the world won’t see the kind of FONOPs that send U.S. ships barging through the strait, with no means short of escalatory aggressive action to stop them, because for all intents and purposes, that strait and the body of water it leads to are property of Ukraine and Russia.
“The Sea of Azov,” Foggo said, “that is controlled by Ukraine and Russia. I would not expect us to go in there.”
The standing international law makes it clear that any solution would have to come via a bilateral agreement between Russia and Ukraine, experts told Defense News. And while the two parties have an agreement on the books to cooperate in all matters relating to the strait, the facts on the ground have cast doubt over how viable it is.
But either way, neither the U.S. nor anyone else other than Ukraine could conduct freedom of navigation operations against Russian claims with any degree of legitimacy because Ukraine and Russia are the only parties with clearly delineated rights under international law in matters relating to the Sea of Azov.
Under the original agreement between Ukraine and Russia over the strait, Ukraine would be allowed to invite U.S. or NATO warships to visit its ports there, a suggestion advanced by an Op-Ed on the Atlantic Council website, but such actions would be seen as highly provocative and could prompt some kind of response from Russia.
Who owns Crimea?
The overall dispute between Russia and Ukraine over the Strait of Kerch can easily get bogged down in legal questions but is really quite simple: It comes down to who you think owns Crimea.
Russia claims Ukrainian ships attempted to violate a Russian closure of the strait without warning, encroached on its territorial waters, performed dangerous maneuvers inside those waters, ultimately resulting in the attack on, and seizure of, the three-vessel flotilla.
Ukraine disputes every part of that claim: They say they attempted to radio Russian security at the strait; they deny the ships entered Russian-claimed waters; they deny any dangerous maneuvers; and they dispute the underlying assumption that Russia has the right to close the strait or that they have a right to claim the waters off Crimea as theirs in the first place.
The 2014 annexation of Crimea precipitated by a revolution in Ukraine is not recognized by Ukraine, the U.S. or the vast majority of nations. However, some nations including China, North Korea and Iran have recognized it.
Russia and Ukraine agreed to cooperate in the strait and in the Sea of Azov as dictated by international law in a 2003 agreement between Russian President Vladimir Putin and then-Ukrainian President Leonid Kuchma, which Ukraine cited in its protest of Russia actions Sunday.
But, to paraphrase Darth Vader, Russia has altered the deal.
The Crimea annexation gave Russia de facto control of both sides of the strait, leaving the 2003 agreement in legal limbo and, if you accept Russian control of Crimea, created some ambiguity around what Ukraine can and can’t do in and around the strait under international law, said Mikhail Barabanov, a Russian naval analyst at the Moscow-based Center for the Analysis of Strategies and Technologies.
“The status of the Kerch Strait is very much a matter of interpretation,” Barabanov said. “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, experts say, even if Russia owned Crimea, Russia could not legally stop Ukraine from transiting the strait.
“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, said Günther Handl, a professor of international law at Tulane.
The situation at the Kerch Strait had been relatively stable compared to flashpoints along Ukraine’s front with Donetsk and Luhansk – Eastern Ukraine’s breakaway regions controlled by Russia-backed separatists.
But two recent developments have caused the situation to boil over: the build-up of Ukrainian naval bases and forces in the Sea of Azov in general, and Russia’s construction of a $3.7 billion bridge over the strait linking mainland Russia to the Crimean Peninsula. Developments on one side are naturally viewed as ominous by the other.
The bridge was completed in May to much fanfare in Russia, but Moscow has made an ever-greater fuss about unspecified security threats to this massive, high-profile infrastructure project. This has been used to justify steadily increasing Russian security presence around the strait.
"There has been some irresponsible activity in the Sea of Azov in the last couple of months and the Ukrainians are not happy about it,” said Foggo, head of Naval Forces Europe. “Russians have delayed shipping, held them at sea unable to enter port or leave port. This is costing the Ukraine millions of dollars and it’s an unfair practice.”
From Russia’s perspective, tensions began flaring in March, when Ukrainian coast guard vessels in the Sea of Azov seized the Nord, a Russian-flagged fishing boat operating out of the Crimean city of Kerch. Russia soon responded with arresting a Ukrainian fishing boat in the Black Sea. Civilian traffic from both sides has been subject to regular inspections and seizures.
In a direct challenge to Russia’s apparent restriction of passage, Ukraine dispatched vessels on a surprise run through the strait on Sept 23. The ships drew some heat, but Russia was apparently unprepared or unwilling to check Kiev’s move. Foggo in October praised the Ukrainians for what he called a freedom of navigation operation.
It is not clear why, then, Russia reacted the way it did when Ukraine attempted a similar journey on Sunday. Russian officials from the Kremlin on down have accused Ukrainian President Petro Poroshenko of provoking a clash to drum up international outrage against Russia and popular support at home ahead of presidential elections in March, in which he may very well face defeat.
What is clear, however, is that in the dispute over access to the strait, Russia believes Ukraine is playing a weak hand, said Barabanov, the Moscow-based analyst.
“Ukraine holds very bad cards in this crisis,” Barabanov said. “And on Sunday they showed clearly that they don’t really hold any real cards at all. Ukraine’s actions have been inevitably hysterical and provocative because they have no other options.”
As tensions continue to run high over Sunday’s confrontation, it’s unclear if this will lead to open warfare between Russia and Ukraine, something Russia has been at pains to avoid for fear of international blowback. Russia has instead opted for what the U.S. calls “gray zone” conflict, seeking policy victories by aggressive actions that fall just below the level of war.
The Sea of Azov is not seen as a strategically important body of water in Moscow, and that the Kremlin isn’t seeking a war over access to it via the Kerch Strait, Barabanov said.
“In general, this is peripheral problem for Russia,” he said, not worth a war.
“The situation around the Sea of Azov will remain shakey for the time being but Russia does not seek conflict there, rather Moscow’s only desire is to return to the status quo observed before the seizure of Nord – when no one interfered with anyone, and Ukraine was forced to accept the new reality of everyday business around Crimea and the Kerch Strait.”
Not everyone in Russia shares this view, however. Writing in the Novaya Gazeta newspaper on Tuesday, prominent Russian military analyst Pavel Felgenhauer suggested Moscow instigated Sunday’s crisis out of concern that Ukraine’s naval bases in the Sea of Azov may eventually host visiting NATO patrols, and therefore hopes to assert control over Kerch and Azov.
During Sunday’s standoff with the Ukrainian navy, the Russian coast guard closed the Kerch Strait to all traffic – even moving a tanker in to position under the Kerch bridge to physically impede passage. Dozens of civilian ships were stranded on either side, and two additional Ukrainian naval vessels approaching the strait from the Sea of Azov were denied access.
Wrestling full control of the Sea of Azov would fall well in line with Russia’s revanchist arguments underpinning its 2014 annexation of Crimea. Viewed from Moscow, the Sea of Azov – like Crimea – has been part of Russia’s inland waters since Catherine the Great. They were also part of the Soviet Union before its dissolution and Ukraine became an independent state.
“[The Sea of Azov] was always considered internal waters of the Soviet Union and the Russian Empire before that,” said Handl, the Tulane professor. “Everything changed in 1991.”
Despite Russia’s historic dominion over the Kerch Strait, it would be hard to see this situation as anything but the latest small move by Russia that adds up to a massive intrusion on Ukraine’s sovereignty, said Bryan Clark, a former top aide to former Chief of Naval Operations Adm. Jon Greenert and analyst with the Center of Strategic and Budgetary Assessments.
“With the Russians it’s always, ‘We want this next little thing,’” Clark said.
“Before the annexation of the Crimea it was, ‘We want unfettered access to Sevastopol,’” he continued, referencing the home of the Russian Black Sea Fleet. “Well that turned into, ‘Now we are going to annex Crimea.’ So, it’s ‘the next little thing’ that doesn’t seem too escalatory, but then when you look back on it all the sudden you’ve lost territory or sovereignty to the Russians.”