III. Ukraine’s Map: North Crimean Canal As A Domestic Ukrainian Waterway
In 2014, Russian President Vladimir Putin tapped into this historical legacy and animosity toward Ukraine among many Russians to drum up support for the seizure of Crimea. President Putin sought to justify the seizure of Crimea with the claim that Russia was liberating Russians living in Crimea from harassment by the Ukraine government and even went so far as to label Ukrainians as “Nazis” for such harassment (playing into the anger of many older Russians at those Ukrainians who collaborated with Nazi Germany).
Putin tapped into these same sentiments in early 2022 to justify Russia’s invasion, claiming that it was necessary to liberate Russian-speaking residents in the Donbas region of eastern Ukraine from harassment by local Ukrainians and the Ukrainian government. Prior to 2022, for many years President Putin had been providing military support for Russian-speaking residents in the Donbas interested in severing ties with Ukraine (whose efforts Putin could then later point to justify Russia’s broader invasion of Ukraine).
Although President Putin has sought to affix the Nazi label on Ukraine, his provided justification for both the annexation of Crimea in 2014 and the 2022 invasion are similar to the justifications offered by Adolf Hitler for Germany’s seizure and annexation of the Sudetenland in Czechoslovakia and the Alsace in France in the early days of World War II. That is, Hitler claimed that the seizure and annexation of these areas outside of Germany was necessary to liberate the ethnic Germans and German-speaking residents that lived in the Sudetenland and Alsace from harassment by the Czech and French governments, respectively.
In terms of relevant international law supporting Ukraine’s map, following the collapse of the USSR in 1997, Ukraine and Russia signed the Treaty on Friendship, Cooperation, and Partnership between Ukraine and the Russian Federation. In this 1997 treaty Russia and Ukraine agreed to borders that acknowledged that Crimea and the North Crimean Canal were geographically part of Ukraine. Then in 2003, Ukraine and Russia signed another border agreement which again confirmed that Crimea and the North Crimean Canal were located in Ukraine. Ukraine therefore maintains that Russia’s unilateral 2014 seizure and annexation are inconsistent with these earlier agreements.
Beyond the 1997 agreement and 2003 border agreement, there are also United Nations Resolutions 2625 and 3314. Resolution 2625 provides that “any attempt aimed at the partial or total disruption of the national unity and territorial integrity of a state or country or at its political independence is incompatible with the purposes and principles of the [United Nations] Charter.” (bold added.) Resolution 3314 defines unlawful aggression as “the use of armed force by a state against the sovereignty, territorial integrity or political independence of another state.”
Relying on the terms of the 1997 agreement, the 2003 border agreement and the provisions of United Nations Resolutions 2625 and 3314, Ukraine maintains that Russia’s unilateral military seizure of Crimea was and is unlawful and illegitimate under international law. That is, current Russian military occupations notwithstanding, Ukraine maintains that Crimea is considered part of Ukraine and that the Canal should be viewed as entirely within Ukraine.
In discontinuing water deliveries to Crimea via the North Crimean Canal following the 2014 seizure, Ukraine views the cessation of such water deliveries as a justified response to Russia’s illegitimate and unlawful seizure of Crimea. Moreover, if Crimea is considered part of Ukraine rather than Russia then the Canal is not a crossborder waterway.
As detailed below, to the extent the Canal was recognized as a crossborder waterway, there may be sources and principles of law that could potentially support Russia’s claims to entitlement to continue to receive deliveries from the waterway. But these sources and principles of law would likely not apply if the Canal was a domestic waterway entirely within Ukraine.
To make this distinction more salient to an American audience, consider the California Aqueduct which transports water diverted from the Sacramento River and San Joaquin River in northern California to cities in southern California. The California Aqueduct, the Sacramento River and the San Joaquin River are all located entirely in the United States. Mexico might be interested in receiving water from these waterways located in the United States but would not have an entitlement under international law to insist on such deliveries. This can be contrasted with the Colorado River, which flows from the United States across the border into Mexico and is therefore a crossborder waterway. As indicated below, international law offers support to Mexico’s claim to divert and use a portion of the Colorado River.
IV. Russia’s Map: North Crimean Canal as a Crossborder Waterway
Pursuant to Russia’s map, Crimea should be recognized as a part of Russia since 2014. If Crimea is part of Russia then the Canal spans both Ukraine and Russia and should be considered a crossborder waterway. If the North Crimean Canal is recognized as a crossborder waterway, then Russia may be in a position to contend that there are certain sources and principles of international law that support its claim to continue to receive deliveries from the waterway.
For instance, a key principle in the 1997 United Nations Transboundary Watercourse Convention is that of “equitable utilization,” which calls for sharing the waters of transboundary watercourses. Putting aside the question of whether or not the Canal qualifies as a “watercourse” under the Transboundary Watercourse Convention (which focuses on natural rivers rather than mad-made canals) there is a sub-principle of the “equitable utilization” principle which provides that paramount concern should be given to water to meet “vital human needs.” If Crimea is considered part of Russia and the Canal is considered a transboundary watercourse, then Russia may be in a position to assert that Ukraine is obligated under international water law principles to share the waters of the cross-border Canal to meet the vital human needs of people in Crimea.
If Crimea is considered part of Russia and the Canal is considered a crossborder waterway, Russia may also be in a position to appeal to the emerging right to water in international law. In 2010, the United Nations General Assembly adopted Resolution 292 on “The Right to Water and Sanitation” which established the obligation of signatory nations to provide clean and safe drinking water. This obligation bolsters the provisions of the Transboundary Watercourse convention giving paramount concern to “vital human needs.” Pursuant to Russia’s map which shows Crimea as part of Russia, it could allege that the emerging human right to water provides additional support under international law for why Ukraine is obligated to share the waters of the crossborder Canal with Russia and people living in Crimea.
In a 2021 complaint filed with the European Court of Human Rights, Russia made similar claims, alleging that Ukraine’s damming of the Canal after 2014 amounted to a violation of international water law and emerging international human rights law.
Yet, if one recognizes Ukraine’s map rather than Russia’s map, Russia’s arguments under international water law and the emerging international right to water begin to evaporate. This is because (to date) the international water law principles of equitable utilization and vital human needs pertain to transboundary rather than domestic waterways. And this is because currently the emerging human right to water focuses on the obligation of signatory nations to provide water to their own citizens rather than an obligation to deliver water from an entirely domestic waterway to another bordering nation.
V. Conclusion: Different Maps Implicate Different Sources of International Law
In the end, it is all about which map is used to frame the situation. If the map used recognizes Crimea as a permanent part of Russia then the North Crimean Canal can be perceived as a crossborder waterway shared by Russia and Ukraine. In contrast, if the map used recognizes Crimea as part of Ukraine that has been temporarily and illegitimately seized by Russia then the Canal is perceived as a domestic Ukrainian waterway. These competing maps in turn point to contrasting rights under and violations of international law in connection with the Canal in the context of Russia’s invasion of Ukraine.
