The news that Russia’s Ministry of Defense has announced it will close the waters leading to the Kerch Strait to non-Russian military and other non-commercial vessels is ominous. I feel a sense of foreboding, not just for Ukraine, but for shipping in general.
My immediate reaction was that this a pre-cursor to Russia taking over eastern Ukraine, especially as it is combined with a massing of troops on the Ukrainian/Russian border to the east. My second reaction was that it was a power play by Russia to flex its muscles at the start of Joe Biden’s presidency, and in response to the latest sanctions imposed by the US on Russia. Both may well be true, but it is also the continuation of a recent trend chipping away at the stability and status of the many treaties and conventions that govern the law of the sea, and threaten the whole system of laws and rights of freedom of navigation.
The Ukrainian Ministry of Foreign Affairs seems to think so.
“Such actions of the Russian Federation are yet another attempt, in violation of the norms and principles of international law, to usurp the sovereign rights of Ukraine as a coastal state, since it is Ukraine that has the right to regulate shipping in these waters of the Black Sea,” they said in statement.
The Treaty between the Russian Federation and Ukraine on Co-operation in the Use of the Sea Of Azov and the Kerch Strait, signed in 2003, stated that:
– The Azov-Kerch area of water is preserved as an integral economic and natural complex used in the interests of both states;
– Historically the Sea of Azov and the Strait of Kerch are inland waters of Ukraine and Russia, and settlement of matters relating to the said area of water is realised by agreement between the Ukraine and Russia in accordance with international law;
– Ukrainian and Russian military ships and trade boats enjoy the freedom of navigation in the Sea of Azov and the Strait of Kerch;
– Military ships under the flags of other states can enter the Sea of Azov and go through the Strait of Kerch only by an invitation of Ukraine or Russia agreed with the other state;
– The Ukrainian – Russian co-operation….. [is] guaranteed by the implementation of existing agreements and the signing of new agreements in the relevant cases.
This seems such a long time ago, and indeed things have changed much since. The annexation of the Crimea by Russia in 2014 certainly turned the tables from a situation where the Ukraine let Russian ships into the Sea of Azov to one where Russia now controls access. Freedom of navigation, or the lack of it, through the Kerch Strait was evident in November 2018 when the Russian Federal Security Service fired on and then captured three Ukrainian navy vessels attempting to pass into the Sea of Azov. The ships were returned to Ukraine a year later. This was seen at the time as an attempt to remind Ukrainians of Russian power just before significant elections, but arguably can now be seen as a test run.
Shortly after the Ukrainian ships were seized the US destroyer USS Donald Cook arrived in the Black Sea, following the arrival of landing ship USS Fort McHenry. The arrival of the destroyer, was accompanied by the following statement from its commander:
“The U.S. Navy continues to support our allies and partners in the common regional interests to ensure stability at sea. Our visit to the Black Sea will demonstrate the cooperation of the Navy in achieving common security goals in the region.”
Earlier this month, the US Navy notified Turkey, which manages traffic through the Bosporus and Dardanelles straits leading to the Black Sea under the 1936 Montreux Convention, that they were tentatively planning a routine transit by two destroyers. That plan was cancelled on Wednesday following a warning from Russia that the US should stay away from the area “for their own good.” That the US decided not to provoke Russia further makes the situation appear very serious, but by backing off it seems to me that the US have tacitly accepted Russia’s announcement, and will be hoping that the Ukraine do not invite their navy into the Sea of Azov any time soon.
Whether the US insists on freedom of navigation or not is fraught with risks on either sides, and the avoidance of provocation is probably wise in the short term. But the Black Sea is not a Russian sea, and the only way in and out by sea is through the Bosporus.
Turkey’s relationships with both NATO and Russia can be best described as ‘fluid’, and indeed Turkey is not adverse to rewriting treaties. It would like to return to the Lausanne Treaty – the one before Montreux – or at least the part would demilitarise the Greek islands of Limnos and Samothraki. Turkey’s unique way of redrawing maritime maps in the eastern Mediterranean also shows a flexible approach to maritime conventions and laws.
One of the reasons that Turkey joined NATO in 1952 however was to make sure that they had powerful allies to keep the straits open, and guarantee the Treaty of Montreux of 1936 which gave them control of the straits. In return Turkey guarantees the passage of all civilian tonnage and regulates military transit. The Treaty however restricts the passage of naval ships not belonging to Black Sea states.
Russia is a Black Sea state, and wants to keep NATO allies out. Turkey is a NATO member, if not a particularly enthusiastic one. Putin and Erdogan have found themselves on different sides of some military conflicts recently, but they also co-operate where required. The Turkish and Ukrainian presidents met in Istanbul last week to reaffirm their ten year strategic partnership. The Bosporus is vital to Turkey as a bargaining chip; continuing control of it is essential. Complicated, isn’t it?
The reaction of NATO, the US and other states to Russia’s actions will set a precedent that other states may wish to follow. Not only can they use Russia as an example – “we’re only doing what they’ve done” – but they can also gauge how other countries react to violations of treaties, and how vigourously they defend the rights enshrined in them. Because it’s not just the Kerch Strait that is becoming a concern these days. The Taiwan Strait, the Miyako Strait will be subject to varying claims of freedom of navigation or sovereignty, and soon.
For many years, it was thought that the Black Sea drained into the Mediterranean: the water seemed to flow north to south along the Bosporus. It was in 1680 that Luigi Ferdinando Marsigli proved otherwise: it was brackish surface water that flowed out, but a saltier denser water from the Mediterranean flowed back in underneath, a simple consequence of the different water densities in the Black and Mediterranean Seas.
The geography of the Bosporous and the Black Sea is fascinating. The Bosporous divides Europe from Asia, but at the same time allows access to and from the Black Sea for trade to flow both ways. It is vital for the countries the border the sea, and it is vital it remains open. But the currents that flow in and out at the same time seems to me to be an apt metaphor for the macroeconomic and geopolitical currents at work in the region. Strong, dense currents are hidden from the view of the casual observer by lighter currents moving in the opposite direction.
Macro-economic and geopolitical currents drive trade, but they sometimes flow, like the Bosporus, in different directions at the same time. We cannot always see what is going on under the surface. But if access to the Sea of Azov can be altered by an announcement, then other countries, in other parts of the world, may be emboldened to disregard other treaties, agreements, conventions or in fact the whole apparatus of international maritime law for their own advantage. The long era of freedom of the seas as we have known seems to be coming to an end, not by climate change, or social media, or the coronavirus, but by the old-fashioned games of Great Powers. In the absence of any meaningful opposition to these trends shipping and trade will be affected, and then we could find ourselves in dire straits indeed.