In November 2020, the Ministry of Environmental Protection and Natural Resources of Ukraine published the draft of the governmental prescript on the adoption of the Maritime Environmental Strategy of Ukraine (MESU), to receive comments and suggestions [1]. As the specialists of the ministry explained, the MESU is aimed on determining the foundations of the state marine environmental policy and was developed in fulfillment of Ukraine’s obligations under the Association Agreement between Ukraine and the European Union in terms of the implementation of the relevant Directive 2008/56/EU and Directive 2000/60/EU [2].

The ARC experts analyzed the proposed MESU draft and identified its systemic shortcomings, in particular – its inconsistency with international treaties, binding for Ukraine in the field of environmental and humanitarian law and human rights. In particular, this project does not reflect the actual situation of the environment of the Azov and Black Seas and the Kerch Strait (ABSKS), and it does not take into account the significant legal risks that are likely to arise in case the project is approved.

The project does not pay sufficient attention to the state of occupation of Crimea by the Russian Federation, and that Russia effectively controls a significant portion of the exclusive economic zone of Ukraine and of the continental shelf of Ukraine in the Black Sea and the Azov Sea, as well as territorial waters and internal waters of the ABSKS around Crimea.Therefore, the analysis of threats to the environment of the ABSKS, including to the part of its sea waters controlled by Ukraine, should not be simply mentioned, but must be defined as the key and the most acute one for the ABSKS basin.

It is the duty of Ukraine to protect the rights of its citizens, in Crimea and in the controlled territory, including the right to a safe environment. International law imposes on Ukraine an obligation to take all possible measures to monitor the situation of the marine environment of the part of the ABSKS seized by Russia; so Ukraine should apply all reasonable and achievable means to bring Russia and the persons, controlled by Russia, to responsibility, to achieve recovery of the damage caused.

However, the draft only mentions the need for “the international assessment of the environmental impact of the recently built Crimean Bridge and emissions into the atmospheric air from movement along this structure”. It contains a separate indication for nothing but only the related problems of assessing the situation with the Sea of Azov and mentions the jeopardy of degradation of Ukraine’s maritime protected areas near Crimea.

Nonetheless, the project generally ignores such fundamental challenges for the ecology of the entire ABSKS as:

1) uncontrolled and unregulated mass industrial fishing (poaching) in temporarily occupied Crimea (as well as in the Novoazovsky district of the Donetsk region) in the ABSKS waters, including the Sivash Bay;

2) massive discharge of sewage and household waste from coastal cities of Crimea, including Sevastopol, where sewage treatment facilities have degraded or completely ceased their activities since 2014;

 3) significant pollution of the ABSKS waters  due to the activities of the Black Sea Fleet of the Russian Federation, in particular with oil products, propellant components, effluents, and pollution due to the discharge and flooding in the framework of the Russian military facilities in the sea;

4) the risks of radioactive contamination of the ABSKS water area due to the expected deployment of nuclear weapons in Sevastopol;

5) the significant pollution of the ABSKS water area with oil products due to the illegal and uncontrolled operation by Russia of drilling facilities on the continental shelf of Ukraine in the Black Sea (Arkhangelskoye, Golitsinskoye, Odeskoe, Shtormovoye oil shelf fields);

6) the destruction of unique seabed, island and coastal ecosystems of the Karkinitsky and Kalamitsky bays, including the wetlands of global importance and the areas for spawning and feeding of commercial fish stocks, due to the massive uncontrolled excavation of sea sand from the shelf by the Russian-controlled entities;

7) the predatory usage by the chemical industry of the Northern Crimea of Sivash for waste disposal, including utilization of the unique Sivash brine as raw material; pollution of the Karkinitsky Bay and the air above it with emissions from this industry;

8) the risks from the construction of the industrial desalination plants announced by the Russian Federation in Crimea, that might result in the discharge of waste from their activities into the sea;

9) the artificial usage by Russia of the external borders of the marine protected areas, established by Ukraine before the occupation of Crimea, for the further spread of its own territorial claims (“Small Philophoric Field”, “Swan Islands”, “Karkinitsky” by decree of the Russian Government dated September 13, 2018 № 1091, by presctipt of the Russian Government dated November 30, 2019 № 2874-р etc.) [3].

Except for reference to the issue of air pollution by the traffic on the Crimean Bridge, the MESU project does not provide for any mechanisms for international monitoring of the situation with the maritime environment in the temporarily occupied territory, nor any efforts by Ukraine to create such a format within the powers of the UN Environment Program, IMO, FAO, of the regional environmental intergovernmental organizations, in cooperation with reputable non-governmental environmental structures or with with other states.

Despite of the declaration of the need to approve the draft MESU in compliance with the environmental law of the EU, and the Association Agreement, the MESU fails to explain how the EU could be involved into cooperation within the existing mechanisms, including those of cooperation and monitoring.

Importantly, the project does not address the issue of Ukraine’s possible applications to the international institutions due to the above challenges to the marine ecology of Crimea. In addition, both in the measurement of the Crimean marine ecology, and in other formats, the draft does not mention at all the possibility of bilateral interaction with the Black Sea countries, as well as the application of the mechanisms provided for by the Convention on the Protection of the Black Sea from Pollution, 1992 and its protocols.

In addition, the draft MESU contains certain theses that look ambiguous from the point of view of international law.

For example, with reference to the Agreement between Ukraine and the Russian Federation on Cooperation in the Use of the Sea of Azov and the Kerch Strait and to the Agreement between Ukraine and the Russian Federation on the Russian-Ukrainian State Border, the draft MESU contains a vague statement that allegedly “the Sea of Azov and the Kerch Strait – these are common internal waters, which are not covered by the UN Convention on territorial waters, therefore, in fact, the border line between Ukraine and Russia in the Sea of Azov runs along the coast”.

In fact, international maritime law allows us to confidently state the following:

1) the UN Convention on the Law of the Sea, 1982 undoubtedly applies to the Sea of Azov and the Kerch Strait;

2) there are no “common” internal waters at all, neither in international law, nor in treaties between Ukraine and the Russian Federation, and in general, the presence of internal sea waters necessarily entails the need for their bilateral delimitation;

3) it has not yet been established, which areas of the Sea of Azov are the internal waters of Ukraine and (separately) Russia, because, for example, it can only be internal sea waters towards the coast relative to the baselines for both states and so on;

4) the line of the state border between Ukraine and the Russian Federation on the Sea of Azov, under any circumstances, must be determined by the baselines, which Ukraine established properly in 1992, with the notification of the UN Secretariat, therefore it does not “pass along the coast”.

The cited equivocal thesis of the draft may, among other things, contradict the position of Ukraine regarding the legal status of the Sea of Azov and the Kerch Strait in case № 2017-06 in the Arbitration on the application of the 1982 UN Convention on the Law of the Sea “Dispute on the Rights of the Coastal States of the Black Sea, the Sea of Azov and the Kerch Strait (Ukraine v. Russia)”, in which there is no final decision yet, but in February 2020 the arbitration tribunal adopted the Order on the preliminary objections of the Russia on the admissibility of the case [4]

Finally, it is advisable that the MESU reflects the issues of environmental impact assessment of the ABSKS, taking into account the Law of Ukraine “On Environmental Impact Assessment” of 2017 and in fulfillment of Ukraine’s obligations under international customary law, reflected in the decisions of the International Court of Justice in “Argentina v. Uruguay (Case for the Construction of Pulp Mills on the Uruguay River)” and “Nicaragua v. Costa Rica (Case for the Construction of a Road along the San Juan River)” [5]. Under such conditions, the MESU should reflect the need for actions to collect information on the failure of the Russian to fulfill its obligation to assess risks when carrying out activities in the occupied territory of Ukraine, in particular during the construction of the Kerch bridge, treatment facilities of Sevastopol, industrial desalination plants.

It must be concluded, that the draft of the Maritime Environmental Strategy of Ukraine requires substantial revision, taking into account the position of specialists at the international level, experts in the fields of ecology and maritime law. These proposals were officially sent by “ARC” to the authors of the project, as well as to relevant ministries, departments, parliamentary committees and the office of the President of Ukraine.

Sources:

1. Повідомлення про оприлюднення проєкту розпорядження Кабінету Міністрів України «Про схвалення Морської природоохоронної стратегії України. 26 Листопада 2020. URL: https://mepr.gov.ua/news/36344.html

2. Marine Strategy Framework Directive 2008/56/EC. URL: https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:32008L0056&from=EN ;  Directive 2000/60/EC Establishing a Framework for Community Action in the Field of Water Policy. URL: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A32000L0060

3. “ООПТ России”. URL: http://oopt.aari.ru/oopt/Крымский-1/map

4.  Dispute Concerning Coastal State Rights in the Black Sea, Sea of Azov, and Kerch Strait (Ukraine v. the Russian Federation). URL: https://pca-cpa.org/en/cases/149/

5.  Pulp Mills on the River Uruguay (Argentina v. Uruguay). ICJ Judgment of 20 April 2010. URL: https://www.icj-cij.org/en/case/135/judgments ; Construction of a Road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica). ICJ Judgment of 16 December 2015. URL: https://www.icj-cij.org/public/files/case-related/152/152-20151216-JUD-01-00-EN.pdf