The Azov Crisis and Martial Law in Ukraine

The essence of the Azov crisis lies in the fact that the developments demonstrated fragility of the current ceasefire between Ukraine and the Russian Federation, as well as a huge lack of trust from the Ukrainian society to the current country’s leadership. The situation which evolved in the Ukrainian-Russian conflict and the region in general continues to contain a huge explosive potential which, if combined with several circumstances, can lead to the restoration of a full-fledged conflict. The Ukrainian leadership not only failed to develop an effective defense system or a conflict settlement concept over the past five years, but lost a trust credit, which the society gave to it five years ago.

Under these circumstances, any radical change either in the Ukraine-Russia relations, or in the Ukrainian internal politics can lead to destabilization which was possible to be observed on November 25-26, 2018. All the parties should adhere to maximum restraint in rhetoric and action, and the resumption of a peace settlement process or adoption of internal decisions in that regard is possible only after the reboot of power in March 2019.

Introduction

On November, 26th, the Ukrainian Parliament approved martial law, suggested by the President of Ukraine following the recommendations of the National Security and Defense Council.

Initially recommendations of the NSDC and the President’s decree were about introducing martial law for the period of 60 days on the whole territory of Ukraine. The decree had to be approved by the Parliament, where a number of fractions expressed concerns over possible postponement of the presidential elections, scheduled for March, 31st, 2019. Tough negotiations over the issue resulted in a modified version of the Presidential decree, approved by the majority of 276 members of Parliament: martial law will be introduced starting November, 28th, for a period of 30 days in ten regions of Ukraine, bordering Russia and Trasnistrian part of Moldova. Presidential elections would be held on March, 31st, 2019.

The Azov Crisis

These events followed the incident near the Kerch Strait a day before, when Russia attacked and later seized three Ukrainian vessels, capturing 23 crew members; six of them have been wounded.

Ukrainian ships have been heading to Mariupol from Odesa. The transfer has been reported to the Russian authorities beforehand to arrange the passing through the strait, currently dominated by the Crimean bridge recently constructed by the Russian side – of course, against the norms of international law. It should be noted, that back in September two Ukrainian ships have already passed through the Kerch Strait, staying at a distance of 12 miles from the shore according to Russian statements.

During the transfer on November, 25th, Russia has blocked the movement of the ships; subsequently ‘Yany Kapu’ tugboat of the Ukrainian Navy has been rammed by the Russian sea tugboat ‘Don’. Later on Russian combat helicopters Alligator K-52 approached the Ukrainian ships, while the movement under the bridge has been blocked by a tanker. Russian side has demanded Ukrainian ships to stop further movement and warned of possible use of weapons. When Ukrainian ships left a 12-mile zone around Crimea heading back to Odesa, Russian ships opened fire, injuring crew members and damaging the ships; and eventually captured them.

Legal Assessment

By openly using weapons against Ukrainian ships Russia violated a number of international norms and agreements, in particular UN Charter and the Convention on the Law of the Sea.

Given that according to international law, Crimea is a part of Ukrainian territory, in no way Ukraine violated anything: its ships have been moving in its territorial waters and/or exclusive economic zone. Russian claims that Ukrainian ships violated Russian border have no sense. According to international law, Russia has attacked Ukrainian ships in Ukrainian waters, which is an act of aggression.

At the same time, there’s an obvious discrepancy between legal principles and situation at hand, caused by Russian occupation of Crimea. Formally Ukrainian ships have an unquestionable right to move in Ukraine’s sovereign waters, but in fact these waters are under Russian control. The same applies to Ukrainian army units if they decide to travel to Donetsk. One can’t just follow formal procedure, since the risk of escalation is unacceptably high. Moreover, situation in Donbas has been regulated by the UN SC Resolution 2202, which framed the Minsk-2 agreement and limits Ukrainian Army’s freedom to maneuver. Anything like this is absent for Crimea and Kerch Strait. Thus only Russia violated the norms of international law, but while we will be accusing Moscow in violating international law, Moscow will be accusing us in violating its territory.

There’s a bilateral Treaty for Cooperation in Utilizing the Azov Sea and the Kerch Strait between Ukraine and Russia, singed in 2003 – another Treaty violated by Russia. Free passage of the Kerch Strait is guaranteed by this Agreement, according to which the Azov Sea and the Kerch Strait are shared territorial waters. The Treaty is still valid, although it has lost most of its sense following the occupation of the Crimea and non-prolongation of the “Big Treaty” between Ukraine and Russia.

International Reaction

A meeting of the UN Security Council has been convened on November, 26th. Agenda offered by Russia has been rejected, as was the Russia’s arguments about Ukrainian ships violating Russia’s state border. The US, the Great Britain, France, Germany, Poland, Sweden, and the Netherlands expressed their support for Ukraine. At the same time China, Cote-d’Ivoire, Kazakhstan, Bolivia, Peru, Kuwait, Ethiopia, and Equatorial Guinea refrained from putting blame on Russian and called for both parties to avoid escalation.

Before the attack on Ukrainian vessels Lithuanian Foreign Ministry strongly condemned blocking of the Kerch Strait by Russia and ramming the Ukrainian ships, calling it the act of aggression. Later Estonia joined the condemnation of Russia’s attack on Ukrainian ships and called on release of the ships. Latvian Foreign Ministry called for international community to condemn the attack.

NATO urged Russia to open access to Ukrainian ports and called for restraint. The EU also demanded Russia to restore freedom of passage at the Kerch Strait and urged both countries to act with utmost restraint – a phrase which raised so many questions and critical remarks in Ukraine. Secretary General of the Council of Europe outlined the importance of avoiding escalation.

Canada and Poland also condemned Russia’s aggressive actions.

Implications

The crisis indicated constant presence of a high risk of possible escalation around the Kerch Strait. Legal and political implications of occupation of Crimea by Russia are going to accumulate and generate regional instability even in relatively simple cases.

Politically Ukraine has got a better position: Russia is responsible according to international law. However, opportunities to hold Moscow responsible are not huge. The issue is most likely going to get back to possible expansion of the sanctions, which would hardly be an effective measure. A better political position of Ukraine is still to be converted into bargaining power.

Ukraine will also face some questions, for instance the one about the aim of sending military ships to waters heavily controlled by an aggressive neighbor. International support will largely depend on the level of trust to Ukraine.

If Ukraine fails to provide its Western partners with clear and understandable explanations on the purposes and plans of the Ukrainian military, it will not play in favour of Ukraine in terms of its perception as a predictable partner. That is why the Ukrainian leadership now has to make good efforts to ensure that both international partners and Ukrainians believe that the recent decisions are not political intrigues, but indeed a part of a well-developed strategy of defending the Ukrainian sovereignty. If such arguments are not provided, it will be extremely complicated to keep the trust, and the suspicions on internal political motives will only intensify.

Introduction of martial law in Ukraine triggered fears of significant limitations of freedoms and possible postponement of presidential elections. Partly they’ve been dismissed by amendments into Presidential order, but it still remains to be seen how the provisions of the Law will be used.

Economic aspect

The approval of the martial law has become a precedent for Ukraine and the Ukrainian economy. Therefore, it is very difficult to predict the economic consequences under current realities.

In general, it is possible to say that such situation has an internal and external aspect. The government can somehow influence the situation inside the country and may try to assure that the economy will not "suffer" (the main idea is to prevent panic), however it will not be able to influence the external factors. They may include the following:

1) Investment attractiveness will decrease: none of the investors will risk investing in a country that will give preferences only to military priorities, where there is a risk of alienation of property and deepening the relation problems of with our neighbor. However, the level of investments was not so high. The credit rating will fall with all the consequences.

2) Regarding the relations with the IMF, the martial law may, on the contrary, push the Fund to a more substantial support of Ukraine. Under positive scenario, it may lead to the Stand-by program. However, this program will show that the country really has serious problems with the economy. That will shake expectations of investors.

3) The attitude of the Russian Federation. Russia can "ignore" the situation, or may increase the pressure on Ukraine. In particular, after the official announcement of a martial law, restrictions on the movement of capital from Russia (and vice versa) may occur, the Azov ports may be blocked (under negative scenario): if the conflict intensifies, this may be reflected on the economic activity in the waters of the Azov Sea. Under full blockade, ports will lose up to $ 2 billion.

The problem is that in case the martial law is introduced declaratively ("verbally"), then the economy will not be endangered. In case it is not declarative, then the economy can suffer from losses: the feasibility of such measures is doubtful, especially now. First and foremost, the government and the country must be economically prepared and ready to introduce such a law, rather than "it somehow will happen." Over the past four years, the government has not been able to lobby the interests, negotiate with Western partners and create an airbag that could minimize negative consequences in the event of a further deterioration of the situation.

This implies Ukraine's dependence on mineral fertilizers and nuclear fuel for the NPP from Russia (30-40%): in case of the worst case scenario, the Russian Federation can stop the exports of these commodities and eventually our raw material economy will collapse. Ukraine did not establish the import substitution from our European partners.

The martial law in the adopted form (some kind of hybrid version: it seems that nothing is limited according to official rhetoric) causes a lot of questions. It is not clear what exactly it changes and why it was adopted. It seems that the main goal, apart from checking the political "ability" to push the decisions, while changing them “on the go”, can still shield an attempt to attract the attention of the world community and the additional “transferring” of all the economic problems to external factors.

Conclusion

The developments with the Ukrainian ships in the Kerch Strait and the following consideration of the martial law introduction in the Ukrainian parliament demonstrated:

• huge level of distrust of the Ukrainian society to the current authorities. The idea on martial law introduction was perceived as a step for achieving political or business goals of the current country’s leadership, but not as a step towards the country’s defence. Martial law became synonymous to a direct threat of authoritarianism and human rights violation for various groups of political establishment, experts, media and the society. The country’s leadership has repeatedly used a threat of Russian attack to cover their illicit acts and the martial law initiative was perceived as a new game element, but not as a real step on protecting the national interests. Such initiatives are possible only if there is a significant level of trust to the authorities, thus, are possible only after the conduction of elections, i.e. the reboot of power is the only legitimate solution to the current crisis.
• demonstration of helplessness. From a legal point of view, the Ukrainian side has not violated anything and acted according to the law. But the decision to plan and conduct such an operation in the Kerch Strait on the fifth year of de-facto war without consideration of all risks and threats raises additional questions. The crisis demonstrated helplessness in front of a real challenge, for which the Ukrainian military have to ‘pay off’ now.
• lack of a strategic planning and systemic vision of the conflict settlement. Unfortunately, now one can observe only tactical calculations with short-term goals without any effective proposals on leading the country out of the current conflict deadlock. The introduction of martial law and shifting the economy and state governance into ‘military mode’ had to be done back in 2014 as nowadays it is unlikely to significantly contribute to improving the current situation.