Part I
The German government has submitted a revamped proposal for Russia to “ensure” unimpeded shipping through the Kerch Strait and Azov Sea, where Russia’s de facto control is usurping Ukraine’s rights. Berlin’s offer centers on international monitoring of the safety of navigation there (see Eurasia Daily Monitor, January 21, 2019).
Berlin’s new pitch takes onboard Moscow’s objections to the previous German proposal last December. At that point, Russia rejected: a) Berlin’s suggestion to assign the Organization for Security and Cooperation in Europe’s Special Monitoring Mission in Ukraine (OSCE SMM, which is active in the Donbas) to also conduct the proposed monitoring of the Azov Sea and Kerch Strait; b) Berlin’s suggestion to discuss the proposed maritime monitoring within the “Normandy” diplomatic forum (Germany, France, Russia, Ukraine); c) Berlin’s suggestion that the maritime monitoring should encompass both the Kerch Strait and the Azov Sea, without differentiating between the two in terms of access.
German Chancellor Angela Merkel, who had initiated the December 2018 proposal, and whose office negotiated it with Moscow, bowed to Russia’s rejection of those points (and possibly some undisclosed ones). Berlin did accept Moscow’s suggestions that: a) any maritime monitoring should be only conducted by German and French observers; b) their mandate be shaped on that tripartite basis (not in the OSCE and not in the Normandy forum); c) more conditionalities be placed on the monitors’ access in the Kerch Strait than in the Azov Sea; and d) the monitors should watch and report on the (safe) passage of ships.
The German government agreed to re-start the bilateral negotiation with Moscow on those Moscow-defined premises. Yet some potential leeway for negotiation, albeit narrowly, remained (see EDM, December 13, 2018).
On January 18, Germany’s Foreign Affairs Minister Heiko Maas presented the revised-down proposal to his Russian counterpart, Sergei Lavrov, in Moscow (see EDM, January 21, 2019). Berlin’s concessions at Russian insistence signify that: a) bypassing the OSCE (warts and all) in favor of a German-French mission would exclude the United States and other pro-Ukraine countries from negotiating the monitors’ mandate; b) bypassing the “Normandy” forum (again, warts and all) in favor of a German-French-Russian negotiation on the mandate would exclude Ukraine itself from shaping that mandate, and negate Ukraine’s legal titles in that process; c) the proposal seems implicitly to accept Russia’s differentiation between the Kerch Strait (claimed as fully sovereign Russian territory following Russia’s seizure of Crimea from Ukraine) and the Azov Sea (which Russia deems a Russian-Ukrainian shared internal water); and d) the proposal focuses on safety of navigation more than on freedom of navigation, potentially sacrificing principle to expediency, even if the proposal’s authors have no way to enforce anything seemingly gained through expediency.
That much could be gleaned from Mr. Maas’s snippet-style press conference remarks in Moscow and Kyiv, as well as from Ukrainian Foreign Affairs Minister Pavlo Klimkin’s more candid public comments after learning it from Mr. Maas post factum in Kyiv (Interfax, RIA Novosti, Ukrinform, Ukrayinska Pravda, January 18, 2019).
Those points also corroborate the gist of Ms. Merkel’s December 2018 remarks foreshadowing the content of a revised-down proposal. To be sure, Berlin’s concessions go only halfway in some aspects. While Moscow wanted Kyiv to be excluded from this negotiation, Mr. Maas compromised: he did consult with Kyiv, but only after presenting Berlin’s proposal to Moscow; and he did say that a decision reached between Berlin and Moscow would have to be cleared with Ukraine afterwards. Ambiguous, too, was Mr. Maas’s remark in Moscow that the monitoring group should “certify” the fact of free passage of ships, rather than upholding the principle of freedom of navigation. In his concluding joint news conference with Mr. Klimkin in Kyiv, Mr. Maas adjusted his remarks somewhat, undoubtedly in response to Mr. Klimkin’s comments on the proposal.
Mr. Klimkin registered Ukraine’s concerns during the joint press conference with Mr. Maas and, separately, in publicized comments to the Ukrainian Foreign Affairs Ministry’s assembled staff. Ukraine would welcome an international presence in the Kerch Strait and the Azov Sea. However, Russia would “undoubtedly try to manipulate this mission” in ways that would signify acceptance of the Russian occupation. The proposed mission should not give Russia such opportunities.
The mission should not even hint at acknowledging a “border” (between Ukraine and the Russian-occupied Crimea), and should not apply to Russia for admission of the mission’s members to the occupied territory in the Kerch Strait (i.e., the strait’s Crimean shore and the legally Ukrainian side of the water surface). The proposed mission should not be based in Russian-occupied Crimea, and should not operate through the Kerch Port Authority or acknowledge it (this point responds to Moscow’s insistence that monitors should accept pilotage and other services from the Kerch Port Authority, which Russia has usurped from Ukraine). Mr. Klimkin termed such concessions as unacceptable.
Highlighting the distinction between “safe navigation” and “free navigation,” Mr. Klimkin urged that any monitoring not be limited to the physical movement of ships or the provision of pilotage. The proposed mission must affirm the principle of freedom of navigation under international norms in the Kerch Strait and Azov Sea: “This is a basic prerequisite to our consideration of any monitoring mission” (UNIAN, Ukrayinska Pravda, Ukrinform, Interfax-Ukraine, January 18, 19, 2019).
Part II
Russia’s Foreign Affairs Minister Lavrov seems actually keen for German and French observers to arrive as soon as possible at the Kerch Strait – albeit on Russian-defined ground rules. Following the November 25, 2018, assault on Ukrainian naval ships, the short-lived blockade of the strait and a cooling-off period (see EDM, November 26, 28, 2018), Russia has put on its best behavior in recent weeks by “allowing” safe passage of commercial ships. Moscow wants its “de-escalation” gesture to be confirmed through international procedures that would in no way affect Russia’s seizure of that territory, or (even better) would tacitly comply with it de facto (acceptance of Kerch Port Authority pilotage would be one of the forms of such compliance).
Concluding the talks with his German counterpart Mr. Maas in Moscow (see EDM, January 21, 22, 2019), Mr. Lavrov explained the background to this initiative at their joint news conference. German Chancellor Merkel had asked Russian President Vladimir Putin to allow German experts to “arrive in the area of the Kerch Strait, observe how shipping moves through it, and see that the necessary safety measures, including pilotage, are being complied with,” explained Mr. Lavrov. The German chancellor followed up with a request that French experts should join the German ones in that observation mission. Mr. Putin promptly approved both requests, Mr. Lavrov said, “but no experts arrived during the intervening month. For our part, we can proceed even today, tomorrow, any day” (Interfax, RIA Novosti, January 18, 2019).
Mr. Lavrov, however, objected to Mr. Maas’s suggestion that observation procedures first agreed between Russia and Germany should afterward be cleared with Ukraine. This, Mr. Lavrov retorted, would end up in a deadlock such as already experienced in the Normandy forum.
Mr. Maas seemed keen to proceed with a short-term fix and, eventually, to showcase a long-term “solution”: “Germany and France could address themselves to matters of free passage of ships through the Kerch Strait. Free passage is now assured, as all interested parties confirm now. Germany and France, as Normandy group members, could in one way or another certify that free passage is assured.” Moreover, Germany and France could finance a possible monitoring mission, “so that the international community sees that we have found a long-term solution for passage through the Kerch Strait” (Interfax, RIA Novosti, January 18, 2019).
Kyiv’s lawful objections and reservations, however (see EDM, January 22, 2019), seem to have inspired a time-out for further reflection in Berlin, and an expectation-management step by Moscow. Russia’s state secretary and deputy minister of foreign affairs, Grigory Karasin, has clarified for the press that Moscow has not (as yet?) agreed with Germany and France about a long-term presence of their observers in the Kerch Strait. “Our president, in his recent telephone conversation with the German chancellor, has [only] agreed that there would be a one-time visit by German and French observers at the level of experts, who would then report their findings back to their governments. This is all that has been agreed” (RIA Novosti, January 22, 2019).
An incremental approach such as implied in Mr. Karasin’s statement would make sense for Moscow. It could turn that first reporting exercise into a test of how an eventual full-fledged monitoring mission might cooperate with Russian occupation authorities; whether the mission would de facto accept the “new realities on the ground” (Russian “sovereignty,” “border,” contacts with local Crimean “authorities”) as a price for proceeding with the mission; as well as to what extent would it be prepared (as part of the aforementioned price) to tolerate interference with the mission’s equipment or engage in self-censorship. Russia’s interactions with the OSCE over the years in post-Soviet conflict theaters can be a reassuring experience for Moscow in all of those respects.
Following Mr. Maas’s back-to-back visits to Moscow and Kyiv, the possible next steps are: First, some re-drafting of the proposal in Berlin, taking into consideration Ukrainian Foreign Affairs Minister Klimkin’s observations (see EDM, January 22, 2019). Second (as Mr. Maas agreed at Kyiv’s request), bilateral German-Ukrainian expert-level consultations on legal and technical aspects of the proposed monitoring mission. And third (which Kyiv proposes but Moscow opposes), adding the proposed mission to the agenda of the quadripartite Normandy forum, whether on the technical or the political level. There, Ukraine would officially play its role in shaping the proposed monitoring mission’s mandate.
This whole initiative is bypassing the OSCE, and not only on account of German-Russian bilateralism. The OSCE is experiencing serious budgetary problems, which it kept under silence for some time, but were brought into the open recently (IPN, Agerpres citing DPA, January 10, 2019). The organization’s current chairperson-in-office, the widely-respected Slovak Minister Miroslav Lajcak, told the press on his first visit in this capacity to Kyiv that the OSCE is not being asked to extend its Special Monitoring Mission from the Donbas into the Sea of Azov (UNIAN, September 15, 2018).
The article above is reprinted from Eurasia Daily Monitor with permission from its publisher, the Jamestown Foundation, www.jamestown.org.