On the Sanctions Adopted by the EU against the Russian Federation

On 5 June 2018, Italy’s newly appointed Presidente del Consiglio dei Ministri (President of the Council of Ministers), Mr Giuseppe Conte, made his first address to Parliament, seeking a confidence vote in the Senato della Repubblica (Senate of the Republic, 9th Meeting, XVIII Legislature). While outlining the foreign policy program of his Government, he also made reference to the sanctions adopted by the European Union after the annexation of Ukraine by the Russian Federation^[1]. In this context, Mr Conte stated:

With regard to international scenarios, markets and security, firstly we intend to confirm our country’s convinced belonging to the North Atlantic Alliance, with the United States of America as a privileged, traditionally privileged, ally. But pay close attention! We will be advocates of an opening towards Russia. A Russia that has consolidated its international role in various geopolitical crises in recent years. We will push for a review of the sanctions system, starting from those [measures] that risk humiliating the Russian civil society.

It is noteworthy, however, that on the following day NATO Secretary General, Mr Jens Stoltenberg, emphasized the importance of political dialogue but also recalled the role of sanctions^[2]. In similar terms, the US Ambassador to NATO, Mr Bailey Hutchinson, underlined the need to maintain sanctions and avoid any hesitation, highlighting that the lack of unity between allies would be a bad signal to Russia^[3].

On the Non-Recognition of the Annexation of Crimea and Sevastopol to the Russian Federation

On 25 July 2018, in its reply to a parliamentary question at the Camera dei Deputati (Chamber of Deputies, 33rd Meeting, XVIII Legislature), and also addressing an analogous request for clarification by his Ukrainian counterpart, the Ministro per gli Affari esteri e la Cooperazione internazionale (Minister for Foreign Affairs and International Cooperation), Mr Enzo Moavero Milanesi, described his Government’s position on the annexation of Crimea by the Russian Federation. Both requests concerned the statements made by the Ministro dell’Interno (Minister of the Interior), Mr Matteo Salvini, who in an interview with the Washington Post had qualified as “legitimate” the occupation of Crimea by the Russian Federation and branded the Ukrainian revolution of 2014 as a “fake”, “pseudo-revolution” that was financed from abroad. He had also expressed himself in favour of the lifting of sanctions against Russia^[4]. In his answer to the parliamentary question, Mr Moavero Milanesi underlined the importance of full respect for international law and, in particular, the principle of territorial integrity. He stated:

The Italian Government has a position on the subject that is absolutely consistent with the one expressed collectively within the European Union.

On the restrictive measures adopted as a consequence of the annexation of Crimea, Mr Moavero Milanesi observed:

Italy has endorsed the adoption of the restrictive measures of a personal nature, the so-called sanctions on people who have found themselves having financial activities in the Crimean peninsula, and Italy has not recognized the so-called regional authorities that were designated in March 2014 and this is in line with what was agreed with international partners at the G7 and European Union levels. On the second type of sanctions concerning the issues related to eastern Ukraine, in particular, the Donbass region, the stance of the Italian Government at the European Council of 28 and 29 June was not to oppose the consensus there, thus, to allow the six month extension of these sanctions. Having stressed that, the Italian Government believes that sanctions are a tool to obtain compliance with the agreements relating to the rules of international law.

Moreover, the Minister observed that

in the present case, these are the agreements signed in Minsk and signed by all of the parties, including Russia. Therefore, the instrumental character of the sanctions means that they are not a punishment for an event that has occurred, but they are intended to foster the restoration of the correct situation. This is the position that the Italian Government has expressed, in the framework of both the European Union summit in June and the NATO summit at the beginning of July, as well as in the framework of the G7.

Finally, Mr Moavero Milanesi underlined that the Government believes in the action of the so-called Normandy contact group, that is, the mediators who are trying to ensure respect for the Minsk Agreements. He stressed that it is within this framework, and in the various international fora that are competent in this matter, that the Government manifests its position.

On the Capture of Some Ukrainian Navy Vessels by the Russian Security Service in the Kerch Strait

On 25 November 2018, the Russian Federal Security Service coast guard fired upon and captured three Ukrainian Navy vessels attempting to pass from the Black Sea into the Sea of Azov through the Kerch Strait on their way to the port of Mariupol. On the basis of a 2003 treaty between the Russian Federation and Ukraine, the strait and the Azov Sea are shared territorial waters of both countries, and are freely accessible^[5]. After the annexation of Crimea and Sevastopol, however, the Russian Federation built a bridge in the Kerch Strait between the Black Sea and the Sea of Azov.

On 4 December 2018, in its reply to a parliamentary question before the Senate of the Republic (66th Meeting, XVIII Legislature), the Sottosegretario di Stato per gli Affari esteri e la Cooperazione internazionale (Undersecretary of State for Foreign Affairs and International Cooperation), Mr Manlio Di Stefano, dwelled upon the position of the Italian Government on the Kerch Strait incident. First of all, he stated:

Italy does not recognize the illegitimate annexation of Crimea by Russia since 2014. It is a violation of the territorial integrity, sovereignty and political independence of Ukraine, with serious repercussions also on the security and stability of the region. This position implies the simultaneous non-recognition of the claims made by the Russian side on the Crimean Peninsula.

The Undersecretary of State also underlined that

The legal qualification of the Kerch Strait depends on the related, but distinct, question of the legal regime of the Azov Sea. Specifically, Russia believes that the Azov Sea should be considered a historic bay, and therefore internal waters, of the Russian Empire, of the USSR, and today, by succession, of Russia and Ukraine: the maritime spaces in the Azov Sea would not be subject to the regime of the territorial sea and the exclusive economic zone referred to in the 1982 United Nations Convention on the Law of the Sea (UNCLOS) and the Kerch Strait would not be an international strait. Therefore, according to Russia, today the regime of these maritime spaces would be regulated by the treaty between the Russian Federation and Ukraine on cooperation in the use of the Azov Sea and the Kerch Strait, done at Kerch on 24 December 2003, which would consolidate as between the parties the qualification of the Azov Sea as a historic bay, and establish a legal regime fully in line with this qualification with respect to third-country ships. However, this subject is complex, as the legal notion of historic bays – of which international law provides no established definition – is of difficult application. The issue is being investigated by the EU legal experts. Furthermore, it should be noted that Ukraine has sued Russia before an arbitration tribunal pursuant to Annex VII of UNCLOS. The arbitral tribunal will therefore find itself, should it recognize its jurisdiction and the admissibility of the Ukrainian application, to decide a matter on which the debate has been going on for years, in the presence of a scarce and very diverse international practice. From the legal standpoint, any stance inevitably entails the risk of being contradicted. Since May 2018, following the construction of the Kerch bridge and the proliferation of naval inspections, by the Russian side, of commercial vessels bound for Ukrainian ports, Italy has shared in the EU its concerns about the growing tension between the parties in the waters of the Sea of Azov and the risk of militarization of the area.

On the incident of 25 November 2018, Mr Di Stefano maintained that

Italy considers the Russian military action unjustified and disproportionate, while bearing in mind the seeming attempt of Ukrainian military ships to proceed towards the straits despite the warnings of the Russian coast guard. We consider it necessary that the Russian Federation ensures full restoration of the freedom of transit in the straits (in line, moreover, with its own declared commitments and with Article 2 of the aforementioned 2003 treaty) as well as the release of the sailors and the Ukrainian vessels.

In particular, the Undersecretary of State highlighted that, after the incident, Minister Moavero Milanesi, as holder of the OSCE Chairmanship in 2018, together with the OSCE Secretary General, Mr Thomas Greminger, had issued a statement expressing concern about the incident and invoking respect for territorial integrity and sovereignty. The Undersecretary of State also underlined that Italy had joined its EU, NATO and G7 partners in more detailed and stronger statements on the issue.

Finally, on the relationship with Russia and the sanctions regimes, Mr Di Stefano stated:

Italy has privileged diplomatic channels with Moscow, both bilaterally and at the European level. It also joined the EU in the adoption of targeted restrictive measures against eight Russian individuals working in the military and security fields and involved in the November 25 incident, in order to send a clear political signal to Moscow without compromising the prospects for dialogue. Italy therefore continues to invite both parties to take a moderate stance and to constructively commit themselves to reducing tension. At the European level, Italy considers it necessary, at this stage, to keep pursuing the objectives of restoring freedom of navigation in the straits and releasing the Ukrainian sailors and ships through political-diplomatic channels, thereby avoiding contributing to a further escalation of words and positions that could be counterproductive for the purpose of achieving the same goals and regional stability.

With respect to the incident of the Strait of Kerch, it is worth recalling that, on 31 March 2019, Ukraine instituted arbitral proceedings under Annex VII to UNCLOS against the Russian Federation, in a dispute concerning “the immunity of three Ukrainian naval vessels and the twenty-four servicemen on board”. On 16 April 2019, Ukraine submitted to the Tribunal a request for the prescription of provisional measures under Article 290(5) of the Convention. On 25 May 2019, pending a final decision, the Tribunal ordered the immediate release of the Ukrainian naval vessels Berdyansk, Nikopol and Yani Kapu, as well as of the 24 detained Ukrainian servicemen^[6]. As of the end of June 2019, Russia has still to comply with the order of the Tribunal.

[1] Marco Pertile, “Italy’s Position on Sanctions against the Russian Federation”, IYIL, 2017, pp. 604-605.

[2] “Talk to Russia but keep sanctions, NATO tells Italy”, Ansa, 6 June 2018, available here.

[3] Ibid.

[4] See Lally Waymouth, “Italy has done a lot – Maybe too much”, Washington Post, 19 July 2018, available here.

[5] Agreement between the Russian Federation and the Ukraine on cooperation in the use of the sea of Azov and the strait of Kerch of 24 December 2003, available here.

[6] Ukraine v. Russian Federation, Request for the prescription of provisional measures, Order of 25 May 2019, available here.

Mr Giuseppe Conte, Senate of the Repubblic, 5 June 2018.

Minister Moavero Milanesi, Chamber of Deputies, 25 July 2018.

Undersecretary Manlio Di Stefano, Senate of the Republic, 4 December 2018.