B Explanatory memorandum
by Mr Andreas Nick, rapporteur
1. On Sunday 25 November 2018,
two Ukrainian artillery ships, the Berdyansk and
the Nikopol, as well as the
tugboat Yany Kapu, were travelling
from Odessa, on the Black Sea coast, to Mariupol on the Sea of Azov. As
the three ships were preparing to enter the Kerch Strait, they were
stopped by the Russian Coast Guard Service and seized. Twenty-four
Ukrainian servicemen were captured. Russia reported three servicemen
were wounded while the Ukrainian media reported six wounded.
2. Tensions in the Sea of Azov have been simmering since Russia
illegally annexed the Crimean Peninsula in March 2014 and the November
incident has sparked concern over further military escalation between
Russia and Ukraine ahead of Ukrainian elections in 2019.
3. The claims by Ukraine and the Russian Federation on what precisely
happened on 25November 2018 and afterwards
differ considerably. To start with, they disagree about the exact
location where the incident took place and its specific legal status.
Both sides blame each other for the growing tensions in the region.
Kiev stated that it took place in international waters and was a
Russian “act of aggression”. Moscow said that the Ukrainian ships
had illegally entered its waters.
4. On 21 January 2019, the Parliamentary Assembly decided to
hold an urgent procedure debate on the issue of “The escalation
of tensions around the Sea of Azov and the Kerch Strait and threats
to European security” and the Committee on Political Affairs and
Democracy appointed me as rapporteur.
5. The Kerch Strait connects the
Black Sea and the Sea of Azov and separates the Taman Peninsula
from the Crimean Peninsula. Navigation through the Kerch Strait
is only possible via the Kerch-Yenikale Canal dredged in 1874-1877
and extended in 1965-1970. The Canal is 24 kilometres long, 120
metres wide and can accommodate vessels up to 215 metres long with
a draft of up to 8 metres.
6. The legal status of both the Kerch Strait and the Sea of Azov
is defined in the “Treaty between the Russian Federation and Ukraine
on Cooperation in the Use of the Sea of Azov and the Kerch Strait”,
signed in December 2003 and ratified by both countries in April
2004 (see Appendix).
7. The Treaty aimed to settle several essential issues, for example
to ensure the safe passage of Russian and Ukrainian merchant vessels
and warships through the Kerch Strait; to stress the inland status
of the Sea of Azov; and to state that its entry by warships under
third States’ flags needs both Russian and Ukrainian authorisation.
8. Article 1 of this Treaty states that “The Sea of Azov and
the Kerch Strait historically constitute inland waters of the Russian
Federation and Ukraine”.
9. According to Article 2.1 of this Treaty, merchant vessels
and warships of both States “shall enjoy free passage in the Sea
of Azov and the Kerch Strait”.
10. However, warships and other State vessels of third States
“may enter the Sea of Azov and pass through the Kerch Strait if
they are making a visit or business call to a port of one of the
Parties at its invitation or with its permission, approved by the
other Party” (Article 2.3).
11. Article 4 of the Treaty states that “[d]isputes between the
Parties associated with the interpretation and application of this
Treaty shall be resolved by means of consultations and negotiations,
as well as other amicable means as may be selected by the Parties”.
12. The current (Russian) regulations for navigation through the
Canal are identical to those introduced by the Ukrainian legislation
in 2002: all vessels are obliged to inform the Captain of the Kerch
Harbor 48 and 24 hours prior to the planned passage, with final
confirmation four hours before the approach, and can only move once
the authorisation is granted, with compulsory pilot assistance.
13. On earlier occasions, for instance on 25 September 2018, Ukrainian
vessels had followed the current regulations for navigation through
the Canal and requested all the permissions for passage through
the Kerch Strait requested by Russian legislation. It seems however,
that since July 2018, systematic Russian searches of Ukrainian and
other vessels have considerably hindered Ukrainian exports from
its ports of Berdyansk and Mariupol.
14. Russia completed building a bridge over the Kerch Strait (which
it named “Crimean bridge”) in May 2018, securing access to the peninsula
from its territory but reducing the space for passage. This bridge,
which is considered illegal by the international community and constitutes
a breach of Ukraine’s sovereignty, limits the size of ships that
can reach the ports on the Sea of Azov to an air draft of less than
33 metres and a length of less than 160 metres and has made it impossible
for Panamax-class vessels, accounting for over 20% of all ship traffic
before the construction, to enter the Sea of Azov.
15. It is also worth noting that another incident took place a
few months earlier in the Sea of Azov. On 25 March 2018, the Ukrainian
Coast Guard detained – allegedly in Ukrainian territorial waters
– the fishing vessel Nord,
registered in Crimea and sailing under Russian flag. The ship was
taken to the Ukrainian port of Berdyansk and its crew of 10 fishermen
were detained for violation of border/passport regulations. According to
Russia, the ship was fishing outside Ukrainian waters. The fishermen
were subsequently released and all of them, except the captain,
were able to return to Crimea on 30 October 2018, in exchange for
seven Ukrainian servicemen arrested by Russia for “illegal fishing”.
On 25 October, Ukraine’s authorities stated that the vessel Nord would be auctioned.
16. In the early morning of 25
November 2018, two Ukrainian warships, the Berdyansk and
the Nikopol, and the tugboat Yany Kapu, travelling from Odessa
on the Black Sea to Mariupol on the Sea of Azov, approached the
Kerch Strait. At 11:04 Moscow time, the Ukrainian Navy reported
that the Russian Coast Guard cruiser Don rammed
into the Yany Kapu, damaging
the Ukrainian tugboat’s main engine and piercing the ship’s plating.
17. After the collision with the Yany
Kapu, the Ukrainian warships tried to continue moving
towards the Kerch Strait, but Russian naval vessels blocked them
and kept them blocked until 18:30 (Moscow time).
18. At 18.30, the Ukrainian vessels broke through the blockade
and fled; the Russian border guards pursued them and summoned the
Ukrainian vessels to stop. The latter did not stop and the Russian
vessels opened warning fire at 20:45.
19. At 20:55, the Russian Coast Guard vessel Izumrud fired at the Berdyansk. The latter stopped, announced
that there were wounded on board, and asked for help. The Izumrud took on board the seven members
of Berdyansk crew; primary
medical help was provided to the wounded.
20. The Yany Kapu was stopped
and seized at 21:15 by the Russian Coast Guard vessel Don.
21. The Nikopol was stopped
at 21:27 by a Ka-52 helicopter of the Russian Army and seized at
23:21 by the Don.
22. Twenty-four Ukrainian servicemen were captured; three wounded
were taken to hospital. The seized Ukrainian ships were handed over
to the Russian authorities and are currently in the port of Kerch.
23. On 26 November 2018, Ukraine’s
Security and Defence Council proposed the imposition of martial
law for 60 days. The Ukrainian President, Petro Poroshenko, suggested
to the Parliament, Verkhovna Rada, a period
of martial law of 30 days.
24. The Ukrainian Parliament backed the decision to impose martial
law for 30 days from 26 November 2018 onwards in 10 Ukrainian regions.
25. The imposed martial law included restrictions on constitutional
rights and freedoms of civilians, the introduction of a “labour
duty”, the construction of military checkpoints, document checking
of individuals, bans on peaceful protests, and the prohibition of
or restrictions on mass media and social networks.
26. Martial law was lifted on 26 December 2018, a fact which should
of the Ukrainian servicemen
27. The 24 detained Ukrainian servicemen
were initially held in Crimea and three wounded servicemen were treated
at Kerch’s Pirogov Hospital No. 1 before being transferred to the
medical unit of the Matrosskaya Tishina prison in Moscow.
28. A criminal investigation into the violation of Russia’s State
borders has been opened. The servicemen face a charge of illegally
crossing Russian borders. This can carry a sentence of up to six
years in prison.
29. On 27-28 November 2018, a Russian court in Simferopol, Crimea,
put the 24 Ukrainian servicemen under arrest for 60 days. All the
detained servicemen were subsequently transferred to Moscow and
kept in custody. Russia has indicated its intention to charge them.
30. On 15 January, the Lefortovo District Court in Moscow extended
their arrest for three months, i.e. until 24 April 2019. During
the hearings in court, all Ukrainian servicemen refused to testify,
referring to the Geneva Convention and claiming to be prisoners
of war. Their lawyers requested that they should be tried by a military court.
The court dismissed these requests as ungrounded.
incident from Ukrainian and Russian perspectives
According to the Ukrainian
Navy, on 25 November 2018, at 5:58 Moscow time, the vessel, Berdyansk
, notified the coastal
post of the Russian border service of the intention to pass via
the Kerch Strait in accordance with the Treaty between the Russian
Federation and Ukraine on Cooperation in the Use of the Sea of Azov and
the Kerch Strait. “The information was conveyed, but no reply was
given”, according to the Ukrainian report.Note
32. Ukraine demands that international rules and the right to
free passage through the Kerch Strait be respected by the Russian
33. For Ukraine, Russian actions constitute a military aggression
with the aim of greater maritime control in the area.
In an interview with BILD
President Poroshenko described the actions of Russia as “unprovoked
and crazy” and asked the North Atlantic Treaty Organization (NATO)
to send naval ships to the Sea of Azov “to assist Ukraine and provide
The head of the Ukrainian navy reported that the Ukrainian
servicemen were forced to give false testimonies.Note
36. Ukraine’s Security Service has opened an investigation into
what it considers as an act of aggression by the Russian military,
under Article 437 of Ukraine’s Criminal Code “On the Planning, Preparation,
Initiation and Conduct of a War of Aggression”.
Volodymr Yelchenko, the Ukrainian representative to the United
Nations, said that Ukraine acted strictly in line with international
law and the bilateral treaty on the Kerch Strait. He stated that
“requests by the Ukrainian vessels for passage were made to the
Russian Federation maritime authorities. However, those requests
were not answered until one of the Ukrainian vessels was rammed.
In addition, Ukrainian naval vessels that came to offer assistance
were pursued by Russian vessels, which were given clear orders to
shoot to kill”.Note
Ukraine’s Foreign Minister, Pavlo Klimkin, asked the International
Committee of the Red Cross to arrange a visit to the Ukrainian prisoners.
For him, it was not a political issue, as there could be an argument about
the legal status, but it was simply for the purpose of protecting
and helping Ukrainian prisoners.Note
39. President Poroshenko declared that Ukraine was not planning
to prolong its Treaty on Friendship, Cooperation and Partnership
with Russia beyond 1 April 2019. On 6 December 2018, Ukraine’s Parliament upheld
President Poroshenko’s decision to terminate this Treaty.
According to the Russian Federal
Security Service (FSB), the Ukrainian vessels were detected and identified
on 24 November in the afternoon. As they approached the Russian
maritime border at 21:30 (Moscow time), they were informed about
the procedures for the crossing of the State border and the regulations
for navigation through the Kerch-Yenikale Canal, including the need
to inform the Captain of the Kerch Harbour 48 and 24 hours before
the planned passage and provide final confirmation four hours before the
approach. The Ukrainian captains responded that they were not planning
to cross the border and to pass through the Strait. At 22:23 (Moscow
time), the Russian Coast Guard patrol informed the Ukrainian vessels about
the closure of the area, within the territorial waters of the Russian
Federation, on the approach to the Kerch Strait.Note
41. Russia claims that the Ukrainian vessels crossed Russia’s
border, “dangerously manoeuvred” and did not respond to the requests
made by the Coast Guard ships.
42. Russia accused Ukraine of illegally entering its temporarily
closed territorial waters and thus violating Articles 19 and 21
of the United Nations Convention on the Law of the Sea, defining
the coastal State’s right to ensure security in its maritime space.
According to the Kremlin spokesman, Dmitry Peskov, “[f]oreign
military ships entered Russia’s territorial waters without responding
to any requests made by our border guards. Therefore, all actions
were taken with strict compliance with the law”.Note
Sergei Lavrov, the Minister of Foreign Affairs of Russia,
stated on 26 November 2018 that the incident in the Sea of Azov
was “definitely a Ukrainian provocation”.Note
The official representative of the Russian Federation to the
United Nations, Dmitry Polyanskiy, declared that “it was a provocation,
pre-planned with western States, in order to generate hatred for
[Russia] ahead of Ukrainian elections in which the current President
is facing low ratings. The regime in Kiev does not want peace or
dialogue, nor does it embrace European values as it claims; it only
wants to hold on to power and justify its failings”.Note
Additionally, while answering the critics of his colleagues,
Mr Polyanskiy underlined that the Minsk agreements did not mention
Crimea. In his view, “support for Ukraine’s provocation has already
resulted in escalating violence in eastern Ukraine”.Note
On 27 November 2018, in a call with the German Chancellor
Angela Merkel, President Putin stated that Ukraine had “deliberately
ignored the rules of peaceful passage in the territorial sea of
the Russian Federation”.Note
48. Russia insists that the responsibility for the incident in
the Kerch Strait must be borne by those who gave illegal commands
to the Ukrainian crew.
49. To assert its claims that the Kerch incident was a premeditated
provocation by the Ukrainian side, Russia made public several documents
seized on board the seized Ukrainian warships, including an order
to the commander of the naval group “to attempt to covertly pass
through the Kerch Strait”, and a handwritten compendium on applicable
regulations regarding the passage of the Kerch Strait.
On 25 October 2018, a month
prior to the November incidents, the European Parliament was among
the first organisations to adopt a resolution calling for tougher
sanctions from the European Union against Russia, should the situation
in the Sea of Azov continue to deteriorate. The text stated that
the Kerch bridge was built illegally, therefore the European Parliament
welcomed the Council’s decision to impose restrictive measures against
the companies involved in its construction. It also suggested the
creation of the position of special envoy on Crimea and the Donbass
region in order to monitor the development of events there. Furthermore,
it warned about wider security implications that directly affect
the European Union and demanded that Russia “immediately end the
intensive and discriminatory inspections of vessels and to consider,
if necessary, appropriate countermeasures.”NoteNote
On 25 November 2018, the NATO spokeswoman Oana Lungescu declared
that “NATO is closely monitoring developments in the Sea of Azov
and the Kerch Strait”. NATO called for restraint and de-escalation. It
also reaffirmed its support of Ukraine's sovereignty and territorial
integrity, including its navigational rights in its territorial
waters. NATO stated that Russia should “ensure unhindered access
to Ukrainian ports in the Sea of Azov”.Note
On 26 November 2018, the Secretary General of the Council
of Europe, Thorbjørn Jagland, also commented on the situation around
the Sea of Azov and the Kerch Strait, stating that the free passage
of the Kerch Strait is guaranteed in the Treaty between the Russian
Federation and Ukraine, which was signed in 2003 and came into force
On 26 November 2018, Assembly President Liliane Maury Pasquier
commented on the escalation of tensions around the Sea of Azov and
the Kerch Strait: “I am greatly concerned by the events on Sunday
in which force was used and people were injured in the seizure of
Ukrainian vessels in the Sea of Azov. It is important to highlight
that the basic rules of international law need to be respected.
These rules include the right of freedom to navigate within one’s
own territorial waters”.Note
On 26 November 2018, the United Nations Security Council failed
to support a Russian-proposed agenda item entitled “Violation of
the borders of the Russian Federation”, which was rejected by a
procedural vote of seven against (France, Kuwait, Netherlands, Poland,
Sweden, United Kingdom, United States) to four in favour (Bolivia,
China, Kazakhstan, Russian Federation), with four abstentions (Ivory
Coast, Equatorial Guinea, Ethiopia, Peru).Note
On 26 November 2018, the President of the European Council,
Donald Tusk, condemned the Russian use of force in the Sea of Azov.
He urged the Russian authorities to hand over the Ukrainian servicemen
and vessels and refrain from any further provocations.Note
On 26 November 2018, a group of leading MEPs working on EU–Ukraine
relations also issued a follow-up statement urging “all sides to
de-escalate the situation immediately” and stressing once again
that the “construction of the Kerch Bridge without Ukraine’s consent
already constitutes a violation of Ukraine's sovereignty and territorial
integrity and has led to the militarisation of the Sea of Azov,
as well as to the conflict escalating further”. They also demanded
that “Russia resorts to responsible behaviour and immediately de-escalates
the situation, which has the potential to pose a threat to European
security and stability”.Note
On 30 November 2018, the EU delegation to the Council of Europe
expected Russia “to immediately release the Ukrainian crew and ensure
the needed medical assistance to the Ukrainian servicemen”.Note
58. On 11 December 2018, following an exchange of views with committee
members, the Chairperson of the Committee on Political Affairs and
Democracy called for the immediate release of the crew members of
the Ukrainian military vessels captured by Russia.
On 17 December 2018, the United Nations General Assembly adopted
and expressed its “concern over the Russian Federation’s
ongoing actions in parts of the Black Sea surrounding Crimea and
the Sea of Azov, including their militarisation, which pose further
threats to Ukraine and undermine the stability of the broader region”
and urged the Russian Federation, “as the occupying Power, to withdraw
its military forces from Crimea and to end its temporary occupation
of Ukraine’s territory without delay”.Note
60. Germany and France have proposed that observers from their
countries could monitor shipping traffic and guarantee freedom of
navigation in the Kerch Strait.
61. While tensions in the Sea of
Azov have been simmering since Russia illegally annexed the Crimean Peninsula
in March 2014, the November incident has sparked concern over further
military escalation between Russia and Ukraine, ahead of Ukrainian
elections in 2019.
62. Considering that it is not the role of our Assembly to decide
on the specific legal status surrounding the incident of 25November
2018, in a situation where the two sides concerned disagree about
almost everything, the action I am proposing in the draft resolution
is primarily political and guided by the principled position our Assembly
has taken on numerous occasions in favour of Ukraine’s sovereignty
and territorial integrity within its internationally recognised
63. Given the nature of a debate under urgent procedure and the
fact that the Assembly has, since 2014, adopted numerous detailed
reports on the illegal annexation of Crimea, the military conflict
in the Donbass region and other infringements of Ukraine’s sovereignty
and territorial integrity by the Russian Federation and its supposed
allies, the report has deliberately abstained from dealing with
these subjects in detail, but refers to the above-mentioned reports
to reaffirm the Assembly’s unchanged positions in this regard.
64. My immediate concern is about the 24 detained Ukrainian servicemen
who should be immediately released by Russia and, pending their
release, be granted medical, legal and/or consular assistance as appropriate.
International bodies which have competence in the field, such as
the International Committee of the Red Cross and the CPT, should
visit the Ukrainian servicemen in prison and the Assembly should
support any diplomatic action taken by Council of Europe member
States aimed at their release.
65. Specific recommendations are addressed to the Russian Federation
concerning the fundamental issues of ensuring freedom of passage
in the Sea of Azov and the Kerch Strait, in accordance with the
relevant Treaty and any other mutually agreed procedures, and refraining
from violence in case of differing opinions about alleged border
66. Considering that both the Russian Federation and Ukraine have
committed themselves, when acceding to the Council of Europe, to
solving their conflicts peacefully, I propose that we call on both
of them to respect the Treaty on the Use of the Sea of Azov and
Kerch Strait and the agreed regulations for navigation through the
Canal and refrain from any further steps which might escalate the
conflict and threaten security in the wider region. Efforts made
through diplomatic channels and legal procedures of both sides concerned
should be supported.
67. Last but not least, I propose in paragraph 8 of the draft
resolution that the Assembly takes position on a number of principled
matters, supports initiatives taken by other international actors
aimed at the de-escalation of the situation and urges Council of
Europe member States to do everything in their power to avoid further escalation
of violence with potentially dangerous consequences for security
in the wider region.