The Kerch Strait skirmish: a Law of the Sea perspective

The following article was published as a Strategic Analysis piece by the European Centre of Excellence for Countering Hybrid Threats. It’s an expansion of some of the themes mentioned in a piece I co-authored with Michael Kofman for the Monkey Cage in the immediate aftermath of the Kerch Strait skirmish.

The November 25 naval skirmish between Russian and Ukrainian forces in the Kerch Strait was significant first and foremost as an open military confrontation between the two countries’ armed forces. But it also highlighted the fraught legal status of the strait and the Azov Sea, a status that Russia has been exploiting in recent months to exert political and economic pressure on Ukraine.

A slow march to confrontation

The confrontation began months before the recent events that brought the conflict to worldwide attention. In March 2018, Ukrainian border guard vessels detained a Russian fishing vessel in the Azov Sea for violating exit procedures from the “temporarily occupied territory of Ukraine”, namely from Crimea. The crew of that vessel remained in detention for several months, until they were exchanged in October for Ukrainian sailors. The captain of the Russian ship remains in Ukraine and is facing prosecution for illegal fishing and “violation of the procedure for entry and exit from the temporarily occupied territory of Ukraine”. Since that incident, Russia has retaliated by detaining several Ukrainian fishing vessels.

In May, Russia also began to regularly hold Ukrainian commercial ships for inspection before allowing them to pass through the Kerch Strait. The initiation of this inspection regime largely coincided with the opening of a road and rail bridge across the strait. Russia claimed that the inspections were required to ensure the safety and security of the bridge at a time when some Ukrainians had publicly threatened to attack the bridge. The delays caused by the inspection regime, together with ship height restrictions caused by the bridge, have led to a 30 percent reduction in revenues at Ukraine’s commercial ports of Mariupol and Berdyansk, raising fears that Russia is trying to strangle the economy of eastern Ukraine.

In the same period, Russia also began to build up its naval presence in the Azov Sea, with at least three missile ships based there since summer 2018. Reports indicate that Russia plans to set up a full-fledged flotilla in the Azov in the near future. Ukraine has also strengthened its naval presence in the region, placing several armoured boats in Berdyansk and seeking to expand the base there.

The transfer of ships from Odesa to Berdyansk that caused the skirmish was part of this effort. Ukraine had moved naval ships through the Kerch Strait as recently as September 2018, but these ships were not armed. In that case, the ships were allowed to pass through without incident, although they were closely followed by Russian border guard vessels. The passage of two armoured boats through the strait in late November was thus the first attempt by the Ukrainian Navy to bring armed ships through the Kerch Strait since tensions began to mount and the bridge was completed in spring 2018.

The legal background

The status of the Azov Sea and the Kerch Strait is regulated by a bilateral treaty that was signed by Russia and Ukraine in 2003. According to the terms of the treaty, the sea is considered to be internal waters for both countries, and both Ukrainian and Russian commercial and military ships have the right of free passage through the strait. Furthermore, the treaty does not specify any particular advance notice procedures for passage through the strait. Foreign commercial ships are allowed to pass through the strait and enter the sea if they are heading to or from a Ukrainian or Russian port. Military ships belonging to other countries may be allowed passage if they are invited by one of the signatories to the treaty, but only with the agreement of the other signatory. In 2015, Russia unilaterally adopted a set of rules requiring ships passing through the strait to give advance notification to the Russian authorities, ostensibly to assure safety of navigation. These rules have not been accepted by Ukraine.


 

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Circumstances Have Changed Since 1991, but Russia’s Core Foreign Policy Goals Have Not

I have a new policy memo out with PONARS Eurasia. Here’s the first half.


Since the Ukraine crisis, the dominant Western perspective on Russian foreign policy has come to emphasize its increasingly confrontational, even revanchist, nature. Experts have focused on discontinuities in Russian foreign policy either between the ostensibly more pro-Western Yeltsin presidency and the anti-Western Putin presidency or between the more cooperatively inclined early Putin period (2000-2008) and the more confrontational late Putin period (2012-present). In this memo, I argue that Russian foreign policy preferences and activities have been largely continuous since the early 1990s. These preferences have focused on the quest to restore Russia’s great power status and maintain a zone of influence in states around its borders as a buffer against potential security threats. Throughout this time, Russian foreign policy has been neither revanchist nor expansionist in nature. Instead, it has been focused on first stopping and then reversing the decline of Russian power in the late 1980s and the 1990s and on ensuring that Russia was protected against encroachment by the Western alliance led by the United States. However, perceptions of Russian foreign policy during the post-Soviet period among other powers and outside observers have changed markedly as a consequence of a gradual increase in the extent of Russian relative power vis-à-vis its neighbors and especially vis-à-vis Western powers.

The Discontinuity Argument

The argument that Russia’s foreign policy has changed markedly over time comes in two versions. The first version of the discontinuity argument paints a sharp contrast between the pro-Western foreign policy followed by Russia in the 1990s under President Boris Yeltsin with the anti-Western foreign policy preferred by Vladimir Putin after he took over the presidency. In this reading, Russia under Yeltsin was in the process of transitioning to democracy and generally supportive of Western foreign policy initiatives despite some occasional disagreements. Putin’s Russia, on the other hand, has been committed to countering U.S. interests in the world, especially when it comes to the spread of democracy.

This narrative overstates the continuity of Russian foreign policy under Putin while understating continuities between the 1990s and 2000s. In particular, Russian support for the United States’ intervention in Afghanistan in 2001, which included putting pressure on Central Asian states to accept U.S. bases on their soil and a 2009 agreement to allow for the transit of military goods and personnel to and from Afghanistan through Russia, is downplayed in favor of a focus on Russian opposition to the U.S. intervention in Iraq. Serious disagreements during the Yeltsin period, particularly regarding Western interventions in Bosnia and Kosovo, are seen as aberrations in agenerally pro-Western Russian foreign policy, while Russian involvement in the early 1990s in internal conflicts in neighboring states such as Moldova and Georgia is ignored altogether.

The second version of the discontinuity argument runs counter to the “good Yeltsin, evil Putin” narrative. It focuses on the very aspects of Putin’s first two terms as president that the first narrative elides. This narrative highlights differences between Russian foreign policy in 2000-2012 and the period after Putin’s return to the presidency. Here, Russia is described as a status quo power until the Ukraine crisis and a revisionist power thereafter. The episodes of cooperation in the 2000s are contrasted with Russia’s confrontational statements and actions after 2012. Meanwhile, the confrontational aspects of Russian foreign policy during Putin’s first two terms in office, such as efforts to divide the Euro-Atlantic alliance over the U.S. invasion of Iraq in 2003, to force the United States military out of Central Asia after 2005, and to highlight the consequences of Western recognition of Kosovo independence in 2008, are downplayed. The result is a picture of Russian foreign policy under Putin that gradually slides from cooperation with the United States and Western institutions early in his presidency to all-out confrontation in recent years. While this trajectory is largely accurate in terms of the overall relationship, I argue that it is less the result of changes in Russian foreign policy goals and more a consequence of changes in Russia’s relative power in the international system.

The Argument for Consistency in Russian Foreign Policy Goals

While the two readings of post-Soviet Russian foreign policy presented above are at odds with each other, they both overstate the extent of discontinuity. In reality, with the possible exception of the very beginning of the Yeltsin period, Russian foreign policy goals have been largely consistent throughout the post-Soviet period. The main driver of Russian foreign policy both under Yeltsin and under Putin has been the effort to restore respect for Russia as a major power in world affairs. From the Russian point of view, this respect was lost as a result of Russia’s political and economic weakness after the collapse of the Soviet Union. Evidence for this lack of respect in the 1990s included disregard for Russia’s opposition to NATO enlargement to Central Europe and NATO’s interventions in Bosnia and Kosovo. When NATO chose to admit Poland, Hungary, and the Czech Republic in 1997, Russian politicians condemned the move as a betrayal of Russian trust and a sign that Western leaders and military planners still perceived Russia as a potential military threat. Russian leaders also felt betrayed and humiliated by the lack of consultation by NATO and Western state officials during the process leading up to the decision to bomb Serbia to stop its ethnic cleansing campaign in Kosovo. They argued that NATO enlargement and the Kosovo War showed that Russia had become so weak that its opinion no longer mattered in determining world reaction to regional crises. Further confirmation of this point of view came in the early 2000s, when Russian opinion was ignored in the U.S. withdrawal from the ABM Treaty and in the lead-up to the U.S. invasion of Iraq.

The response, both in the 1990s and under Putin, was to seek to restore Russia’s great power status while maintaining a zone of influence in states on Russia’s border as a buffer against potential security threats. As early as 1993, Russia’s Security Council promulgated a foreign policy concept that included “ensuring Russia an active role as a great power” as a key foreign policy goal and asserted a special role for Russia in the former Soviet republics.


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