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Ukraine allowed its Sea Guard to open fire without warning

Author : Olexiy Buriachenko

Source : 112 Ukraine

International aspects of the use of weapons without warning by the ships of Ukraine's Marine Guard
23:34, 11 December 2018

Open source

Ukraine’s Verkhovna Rada decided to terminate the Treaty on Friendship, Cooperation, and Partnership between Ukraine and the Russian Federation. 277 deputies voted for this decision on December 6.

Analyzing the bill №0206, we can recall that the official letter about the non-renewal of the validity of this agreement by the Ministry of Foreign Affairs of Ukraine to the Russian Federation was sent back in September 2018. Indeed, according to the agreement, the issue of renewal is solved automatically (every 10 years) if one of the parties does not declare a desire to cease it.

That is, in fact, the issue of the prolongation of this agreement for the next 10 years was withdrawn as early as September 2018, but in reality, this agreement ceased to operate with the beginning of the events of 2014.

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In other words, the Treaty on Friendship between Ukraine and the Russian Federation would not be prolonged on April 1, 2019, due to the reluctance of the Ukrainian side and would automatically lose its strength.

But the question is as follows: why is this bill passed now, not in September? Moreover, this draft law does not mean an urgent unilateral break in the given agreement. It repeats what was said before; the termination of the Agreement from April 1, 2019.

This suggests the idea that these actions and events were carefully planned and should have happened right now, on the eve of the presidential elections in Ukraine. Although it is necessary to pay tribute to the parliament and the president, that this decision was important and necessary. And he once again confirmed the vector of Ukrainian diplomacy and the choice of the Ukrainian society.

Another bill (No. 8361) "On the Adjacent Zone of Ukraine" adopted by the Verkhovna Rada on December 6, is of particular attention too.

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Some provisions of the bill, which allegedly allow the State Border Service of Ukraine to use weapons without warning at a distance of 24 nautical miles from the border of the territorial sea (12 miles) has caused the main resonance.

The essence and the purpose of this draft law and the relevant UN Convention should be considered in more detail.

So, art. 33 of the UN Convention on the Law of the Sea (1982) states that in the zone adjacent to the territorial sea, which has the name of the adjacent zone, the state can exercise the necessary controls:

  1. a) to prevent violations of customs, fiscal, immigration or health laws and regulations within its territory or territorial sea;
  2. b) to punish for violation of the above laws and regulations committed within its territory or territorial sea.

The contiguous zone might not extend beyond twenty-four nautical miles from the baselines from which the width of the territorial sea is measured.

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Considering the requirements of the UN Convention, the adjacent area might be introduced to prevent or punish only in cases of violations of customs, fiscal, immigration or health laws, and regulations within its territory or territorial waters.

What are the territorial waters? The territorial waters (or closed sea) is a sea belt of 12 nautical miles wide, adjacent to the land territory of the state or its internal sea waters and part of the state territory, the legal regime of which is determined by the norms of national legislation and international law.

Important: the sovereignty of the coastal state, according to the UN Convention, extends to the airspace, bottom, and subsoil of the borders of the territorial sea.

Given the above and the norms of the UN Convention on the Law of the Sea (1982), it can be concluded that the adjacent zone is part of the high seas, but with its own special regime.

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Art. 17 of the 1982 Convention establishes: "Subject to this Convention, ships of all States, whether coastal or land-locked, enjoy the right of innocent passage through the territorial sea." The passage must be continuous and fast. A passage can be considered peaceful only if it does not violate the peace, law, and order or the security of the coastal state. Submarines must rise to the surface and raise their flag.

The Convention (Art. 19) also contains a list of actions that violate the peace, order or security of a coastal state when a foreign ship passes through territorial waters:

(a) any threat or use of force against the sovereignty, territorial integrity or political independence of the coastal State, or in any other manner in violation of the principles of international law embodied in the Charter of the United Nations;

(b) any exercise or practice with weapons of any kind;

(c) any act aimed at collecting information to the prejudice of the defense or security of the coastal State;

(d) any act of propaganda aimed at affecting the defense or security of the coastal State;

(e) the launching, landing or taking on the board of any aircraft;

(f) the launching, landing or taking on the board of any military device;

(g) the loading or unloading of any commodity, currency or person contrary to the customs, fiscal, immigration or sanitary laws and regulations of the coastal State;

(h) any act of willful and serious pollution contrary to this Convention;

(i) any fishing activities;

(j) the carrying out of research or survey activities;

(k) any act aimed at interfering with any systems of communication or any other facilities or installations of the coastal State;

(l) any other activity not having a direct bearing on passage.

Summarizing, it is necessary to say that the provisions of the aforementioned UN Convention are fairly well integrated into the text of draft law No. 8361 “On the adjacent zone of Ukraine.” This bill, after coming into force, will be able to significantly increase the legal influence of Ukraine in the waters of the Black and Azov Seas.

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With the adoption of the appropriate law, Ukraine will get a new format for the use of adjacent zones, including when martial law is declared in the country. The formation of this precedent can further drastically change the interpretation of the concept of adjacent areas in international law.

Read the original text at 112.ua

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This column does not necessarily reflect the opinion of the editorial board or 112.International and its owners.

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