The Passage Regimes of the Kerch Strait To Each Their Own

OCEAN DEVELOPMENT & INTERNATIONAL LAW 13
Kerch Strait, not for the purpose of visiting Ukrainian or Russian ports, are, in any case,
not entitled to enter the Sea of Azov under Article 2 of the 2003 Kerch Treaty.
Article 2(2) of the 2003 Kerch Treaty does not exclude the possibility that strait states
may exercise considerable control over the passage of ships of third states in the Kerch
Strait. In principle, this provision appears to allow for an authorization-based passage
regime with respect to commercial vessels flying the flags of third states. Moreover, this
provision explicitly makes foreign commercial ships’ access to the Sea of Azov dependent
on whether they are seeking access to either Ukrainian or Russian ports. Under
international law, coastal states have considerable discretion to regulate a foreign ship’s
access to ports (see Articles 25(2), 38(3), and 211(3) of UNCLOS). A general right of
foreign ships to enter ports is absent from UNCLOS and states have retained their freedom
to close ports, 63 subject to the exception relating to instances requiring humanitarian
assistance, as well as to conditions of proportionality and the prohibition of
discrimination. The ICJ has concluded, with regard to the contemporary state practice,
that it is “by virtue of its sovereignty that the coastal State may regulate access to its
ports.” 64 Therefore, the coastal state has a wide discretion in deciding whether to allow
foreign ships to enter its ports. 65 Hence, the Russian Federation may arguably exercise
its permit system in relation to foreign commercial ships that seek access to the Sea of
Azov for the purpose of entering its ports under Article 2(2) of the 2003 Kerch Treaty.
With respect to ships that seek to enter the Sea of Azov not for the purpose of visiting ports,
the Russian Federation’s permit-based passage regime could be lawful if it meets the conditions
of Art 311(2) of UNCLOS, which provides that “This Convention shall not alter the
rights and obligations of States Parties which arise from other agreements compatible with this
Convention and which do not affect the enjoyment by other States Parties of their rights or
the performance of their obligations under this Convention.” These conditions could be satisfied
if the maritime area of the Kerch Strait and the Sea of Azov constitutes a historic bay,
owing to which no passage rights would apply therein, as discussed further in the following.
The Russian Federation’s authorization-based Kerch VTS rules clearly hinder the
transit of those commercial ships that seek access to Ukrainian ports in the Sea of
Azov. Therefore, the Russian Federation’s claim in the judicial proceedings about the
applicability of “free passage” in the Kerch Strait to foreign nonmilitary vessels sailing
to and from Ukrainian ports appears to contradict both the Russian Federation’s previous
practice and its domestic rules. The Russian Federation presumably cannot apply
the permit requirement in relation to commercial ships that seek access to Ukrainian
ports in the Sea of Azov under Article 2(2) of the 2003 Kerch Treaty. Furthermore,
Ukraine contests in toto the legality of the Russian Federation’s permit-based passage
regime on the grounds that, instead, the regime of transit passage is applicable to the
Kerch Strait, as discussed in the following.
63 Narrowly, Art 255 of UNCLOS stipulates an obligation of means according to which states shall endeavor to facilitate,
subject to the provisions of their laws and regulations, only research vessels’ access to their harbors.
64 Case Concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America),
Judgment, ICJ Reports 1986, p. 111 [213].
65 Molenaar, note 59, 101. Robin R. Churchill and Vaughan Lowe, The Law of the Sea (Manchester University Press,
1999), 52.