The ongoing Russian-Ukrainian drama at the Kerch Strait and the Sea of Azov shows that the Kremlin attitude to international law has changed. Russia used to be legalistic but not legal. Now it is just ignoring international law. Has Russia become a rogue state? The United States and the West need to adjust accordingly.
Under Leonid Brezhnev, the Soviet Union was surprisingly legalistic. The essence of the Helsinki Final Act of 1975 among European and North American nations was based on the West’s official recognition of the post-World War II borders while Brezhnev made certain commitments to human rights. The human rights commitment in the pact ultimately facilitated the collapse of the Soviet Union.
After the collapse, Russia aspired to join the West, acceding to the International Monetary Fund and the World Bank, as well as the Council of Europe, an all-European organization aimed at advancing democracy, human rights, and the rule of law. The Council’s European Court of Human Rights has received many thousands of Russian cases, and these have been mostly respected by the Russian judiciary, though less so by Russian government agencies that have ignored the court’s advice on ways to end their violations.
Over time, however, the Kremlin’s acceptance of international law has decreased. The NATO bombing of Yugoslavia in 1999 was a major crisis, but Kosovo’s declaration of independence in February 2008 and its recognition by most Western countries became the tipping point for the Kremlin’s attitude to international law.
One after another, President Vladimir Putin has increasingly used ostensibly “frozen” territorial conflicts to undermine the sovereignty of the countries concerned. Since the five-day war between Russia and Georgia in August 2008, when Russian troops acquired full control of the regions of Abkhazia and South Ossetia while the West did nothing to punish the aggression, the Kremlin has continued to consolidate its hold over the breakaway territories and chipped away at Georgia’s strength. After the war, Russia unilaterally recognized these tiny vassals as independent states, revoking its prior opposition to the secession of states.
Moscow also began to change its view of the European Union. Rather than considering it a paper tiger, as it had in the past, the Kremlin in 2013 suddenly perceived the EU as a major threat. Four former Soviet republics – Armenia, Georgia, Moldova, and Ukraine – were about to conclude substantial EU Association Agreements. In September 2013, Putin strong-armed the Armenian president Serzh Sargisyan to abandon such an endeavor.
Eye on Ukraine
Putin focused on Ukraine, where the pro-Russian President Viktor Yanukovych was ruling in an ever-more authoritarian fashion. From July 2013, the Kremlin imposed trade sanctions on pro-European Ukrainian businessmen. The political heat rose in Ukraine, as public opinion strongly favored closer relations with the EU, even as Yanukovych resisted EU political demands such as adopting a Western-style law on prosecution and releasing former Prime Minister and opposition leader Yulia Tymoshenko from prison.
On Nov. 21, 2013, popular mass protests that became known as the Euromaidan erupted in Kyiv against the government’s opposition to the EU Association Agreement. Eventually, the Yanukovych regime unleashed severe violence on the demonstrators, killing some 125 people in the center of the capital. Major businessmen who had supported Yanukovych did not want to be associated with this violence and turned against him. Yanukovych was ousted by a majority of more than two-thirds in the Ukrainian Parliament in a brief impeachment proceeding on Feb. 22, 2014.
The Kremlin responded instantly. On Feb. 27, Russian special forces without insignia, the now notorious “little green men,” seized the Crimean regional Parliament in Simferopol, and within days captured the whole of Crimea without bloodshed. The Russians accomplished this so easily because they had some 10,000 troops in a leased naval base at Sevastopol in Crimea, and the surprised Ukrainian troops failed to offer any resistance not least because Yanukovych’s minister of defense and his chairman of the Ukrainian Security Services were both Russian generals.
The March 18 formal annexation of Crimea by the Russian Parliament at Putin’s behest violated multiple international agreements: the United Nations Charter, the Helsinki Final Act, the 1994 Budapest Memorandum on Ukraine’s denuclearization, and the Russia-Ukraine Friendship Treaty of 1997. This was the first unilateral annexation of another country’s territory in Europe since World War II.
The West Wakes Up … Barely
Finally, the West woke up. The United States and the European Union, with their allies, imposed substantial sanctions on people and enterprises responsible for the annexation. But for Putin, the annexation of Crimea was a tremendous domestic success. It took his popularity rating to 88 percent, a level that it had reached only once before, after his war in Georgia.
Just weeks later, in April 2014, Russian special forces without insignia popped up in eight other Ukrainian regions with a majority of Russian speakers, trying to instigate popular uprisings. They were accompanied by Russian military “volunteers,” some of whom were special forces, others Russian nationalist recruits. However weak the Ukrainian military were after Yanukovych, Ukrainian military volunteers mobilized with amazing speed, and the Russian-backed and Russian-commanded forces managed to take control of only part of two more Ukraine regions, Donetsk and Luhansk.
The war in these two territories has continued. Rather than a frozen conflict, it is a hot conflict, as Ambassador Kurt Volker, the U.S. special representative for Ukraine negotiations, has noted. So far, 10,300 people have been killed on the Ukrainian government side, while the losses on the Russian-backed side remain unknown.
Russia officially denies its obvious occupation of these territories and offers no justification. Fortunately, the West has not accepted this hypocrisy, and has imposed sanctions on the financial, defense, and oil sectors since July 2014.
It is in this context that we must consider the Russian aggression in the Kerch Strait. On Nov. 25, border guard forces of Russia’s Federal Security Services (FSB), the successor to the KGB, blocked Ukrainian vessels from entering Ukrainian waters to reach their own ports.
Another Bilateral Treaty Ditched
Russia and Ukraine had concluded a bilateral treaty in 2003 on the Kerch Strait and the Sea of Azov that declared the two areas to be internal waters of both countries, with both nations entitled to enter these waters with commercial and navy ships. These waters also were supposed to be open to international commercial shipping, and other nations’ navy ships may enter if both countries agree.
Since February 2018, Russia has gradually reinforced inspections of foreign ships headed to the two big Ukrainian export ports of Mariupol and Berdyansk. It has delayed foreign commercial ships ever longer, increasing their costs while keeping the pattern of abuse below the international media radar.
As a consequence, steel and grain exports from eastern Ukraine are transported increasingly by rail to the southwest Ukrainian ports of Odesa and Yuzhny. The obvious Russian intention is to render the costs excessive to commercial shipping, essentially turning the vast Azov Sea, with its mainly Ukrainian coast, into Russian internal waters.
If that succeeds, the Kremlin presumably will use the same tactics to deprive Ukraine of its sovereignty in other areas as well. Russia already has installed the powerful S-400 air defense system in Crimea, giving it the ability to effectively control the whole of the Black Sea.
This creeping Russian aggression must not be allowed to proceed. The West needs to respond. U.S. military jets reportedly fly over these areas, keeping the Russians awake at night, but that is not enough.
The West should impose further sanctions on Russia for this new military aggression, preferably sanctions on new sovereign debt and on Russian state financial institutions. The West must insist on the release of the Ukrainian sailors that Russia in effect has kidnapped.
The Montreux Treaty of 1936 that regulates transit and navigation in the Dardanelles, the Sea of Marmara, and the Bosporus allows foreign naval ships to enter the Black Sea for a limited period. The U.S. Navy should do so regularly. Three NATO states have coasts on the Black Sea – Romania, Bulgaria and Turkey. They should establish a NATO naval base there.
Finally, the West must realize that a rogue Kremlin only respects force. If Russia no longer respects any international treaty, the West must not shy away. NATO countries should send ships to accompany Ukrainian naval ships to ensure their rightful passage into the Sea of Azov.