Talking about the historical and geopolitical context of the Azov Sea issue, it should be noted that Russia has consistently intended to create conditions for the Sea of Azov to be classified as an inland sea – that is, the sea lying between Russia and Ukraine with Russia being a dominant power. This concept by Russia envisaged that the norms of international maritime law would not apply to the Sea of Azov.
The concept was partially implemented after the Tuzla conflict in 2003. Back in the day, following the crisis, Russia succeeded in pressing Ukraine into signing an agreement on the use of the Azov Sea by Ukraine and Russia. In particular, this agreement contains the phrase that the Azov Sea is historically the inland sea of Ukraine and Russia.
However, there is another interesting point in the agreement. It also says that the borders in the Azov Sea shall be determined by a separate agreement. Negotiations on the issue between Ukraine and Russia have dragged for many years, but the parties have never reached any common solution. As a result, as of the start of Russian aggression in Crimea and then against mainland Ukraine the question remained uncertain, just as it does today. That is, there is no delimitation deal on the Azov water area.
That is, the present legal vacuum in the Sea of Azov allows Russia to freely interpret and independently determine such borders, acting as a more powerful player it considers itself
This means that Russia has created a situation where international law cannot be applied in the Azov water area . At the same time, there is no clearly defined border between Ukraine and Russia, in accordance with the bilateral agreement.
That is, the present legal vacuum in the Sea of Azov allows Russia to freely interpret and independently determine such borders, acting as a more powerful player it considers itself.
Moreover, in view of the Crimea annexation, Russia now proceeds from the fact that the Sea of Azov is no longer just an inland sea of Ukraine and Russia, but actually a Russian sea. After all, one of the positions on how the borders of Ukraine and Russia in the Azov Sea could be determined was to see them as a continuation of land borderlines. Accordingly, before the annexation of Crimea, Russia's share in the Azov Sea was rather small, which apparently was not what the Kremlin sought. Now, of course, Russia believes that if Crimea is Russian, and, according to the approach mentioned, much of the Azov Sea is now Russian.
This creates a situation where Russia in the Sea of Azov can resort to all kinds of provocations and steps to block Ukraine's economic, naval and military interests.
Ukraine's position on the issue is rather moderate (although a different word would suit the situation much better). The Ukrainian side for some reason proved unprepared for such developments. Although the authorities have long been aware of the fact that the legal status of the Azov Sea and the border between Russia and Ukraine in the area are not entirely regulated. The problem actually arose along with the collapse of the Soviet Union and the start of Ukraine's independence. Plenty of rounds of negotiations have already been held to no avail.
Therefore, Ukraine, from the moment of the Crimea annexation, should have prepared a military response to such moves by Russia by creating a naval system of countering the Kremlin forces in the Azov Sea. A clear diplomatic position should have also been defined. But this has not been done so far.
Ukraine's position on the issue is rather moderate
From the military perspective, Ukraine has no sufficient forces in the area that could deter Russia, so they should be amassed there, which is obvious. The situation in the Azov Sea should push the Ukrainian Navy's Command to more actively implement the "mosquito fleet" concept – setting up a number of small mobile sea platforms to operate both in the Black Sea and the Azov Sea and actively counteract the Russian Federation, rather than trying to build large ships that will be unsuitable for missions that must now be carried out to counteract Russia in the Azov Sea.
Regarding diplomatic efforts, I believe that Ukraine needs to take much more active steps, in particular, to constantly inform the international community about the latest developments in the area and to explain the background and the legal vacuum that has developed. After all, the international community understands very little about what is happening in the Sea of Azov, believing that this is just another conflict between Russia and Ukraine, because such conflicts occur in all dimensions where Ukraine and Russia's interests clash.
But there are some absolutely clear issues that need to be covered in media and brought to the attention of foreign diplomats, the expert community, and the public in other countries – the international community in general. It needs to be explained that Russia is deliberately blocking the process of defining the legal status of the Azov Sea, while following the annexation of Crimea, Moscow generally considers the sea its territory, trying to prevent the application of international maritime law in the area.
It is also necessary to consider the possibility of denouncing the agreement with Russia on the use of the Sea of Azov, which says that this is an inland sea, and proceeding from the fact that it is an international sea, we need to start unilaterally applying international maritime law there. Then it will clearly define both our territorial waters and our economic zone and will in fact enable us to ban Russia from setting up such provocations as, for example, the closure of Ukrainian territorial waters of the Sea of Azov for live fire drills of their navy or the illegal detention of Ukrainian ships, or obstruction of Ukraine's implementation of lawful navigation.
As reported earlier, Ukraine has closed down for fire exercises three areas of the Sea of Azov near its coast. In other words, it can be stated that Ukraine closed down its territorial waters
We should proceed from the fact that, if Russia refuses to properly negotiate with Ukraine on border delimitation, while starting to pose a threat to both the economic and maritime security of Ukraine, Kyiv needs to act more rigorously, to abandon the agreement, insisting on the international status of the Azov Sea with appropriate steps taken, as well as to address the UN and other bodies dealing with international maritime law, as well as the courts.
It seems to me that now the position of the Ukrainian side is not sufficiently active.
As reported earlier, Ukraine has closed down for fire exercises three areas of the Sea of Azov near its coast. In other words, it can be stated that Ukraine closed down its territorial waters. For Russia, this does not create any significant obstacles. However, this is an indication that Ukraine is beginning to act and take some steps in the Azov Sea, and that Ukraine is about to move toward addressing the issue. But this is still not enough.
In essence, we begin to mirror Russia's steps, while, in my opinion, in this case it is necessary to act in a completely different way.
Further militarization of the Azov Sea and the emergence of a new round of conflict escalation are beneficial for Russia. Meanwhile, Ukraine would gain from putting relations with Russia on the rails of international law rather than the rules of street gangs. As always, Russia is trying to have the relations boil down to the level of "the one who's stronger is always right," completely defying any international rules. It is critically important for Ukraine to prevent these relations from being brought to the level of "I will block the area here and here, and there I will sink your vessel, etc." because then we will act just like Russia. So, whenever we decide to appeal to some international authorities, they will respond that this is a purely internal conflict, because both parties act the same.
At the same time, within the framework of the treaty that defines the Azov Sea as an inland sea, both parties can actually allow themselves pretty much anything
So this is Russia's strategy to bring Ukraine to a level of conflict beyond the framework of international law. It is important for Ukraine to move this issue to the format of international law and denounce the treaty with Russia (no problem here), since, in fact, Russia has long ceased implementing it and the deal now brings Ukraine more harm than it does benefits. And, of course, it is necessary to begin to establish in the Sea of Azov international rules that apply to any seas.
Of course, Russia will resist, but Ukraine should have its own clear position to be voiced at all international platforms. We can't just sit here within the narrow framework of the treaty with Russia and tolerate their navy inspecting and detaining our vessels, limiting our navigation through the Kerch Strait Bridge, and blocking our territorial waters for their missile tests.
All this is totally unacceptable in terms of international law. But within the framework of the agreement, which defines the Sea of Azov an inland sea, both parties can allow themselves pretty much anything. But in a situation where Ukraine and Russia are in a state of war, the treaty looks very confusing.
Mykhailo Samus is a Deputy Director on Foreign Affairs of the Center for Army, Conversion and Disarmament Studies