The Regulatory borders of the Black Sea through the Cartography of European Union Law and International Law

The Regulatory borders of the Black Sea through the Cartography of European Union Law and International Law

A Case Study – Romania’s Maritime Security Strategy: What About It?

Author: Associate professor Cristina Elena POPA TACHE[1] ,Expert Maritime Security Forum

              Abstract

            The study deepens the research on the causal actions between international and national legal norms in shaping and regulating the maritime space around the Black Sea with a focus on the Maritime Security Strategy. By bringing into discussion specific aspects of the law of the sea and relevant national legislation, it attempts to identify these boundaries in terms of natural resources, navigation and regional security. The issue of (in)sufficiency of regulation vis-à-vis the development and use of technologies for surveillance of naval activities, intelligence gathering, data analysis and to enhance security capabilities is raised. The methodology used in this research is based on an inter- and multidisciplinary approach from the perspective of relevant international documents and treaties, to which is added a careful look at known case law. The case study deals with the lack of a Maritime Security Strategy for Romania and Bulgaria. Particular emphasis is placed on the interpretation and application of how the compass of international law marks boundaries and responsibilities within the Black Sea. At the same time, the discussions converge towards reconciling differences in the interpretation and implementation of international rules and adapting them to the specific context of the littoral states, which is by no means an easy task, as history has shown. The findings contribute to a clearer understanding of the legal processes involved in the delimitation of regulations and their effects on regional and international cooperation.      

Keywords: public international law, security, treaty, law of the sea, state responsibility, international intergovernmental organisations, domestic law.

         JEL Codes: K33, F5.

1. Introduction

‘In this century, countries benefit from healthy, prosperous and confident partners. Weak and troubled nations export their ills – problems like economic instability and illegal immigration, crime and terrorism. America and others … understand that healthy, prosperous nations export and import goods and services that help stabilise regions and add security to every nation.’ [2]

In this analysis we consider both the role of States and international intergovernmental organisations and their hierarchy in the group of subjects of international law. The case study is intended to raise the awareness of the actors involved in security of some interpretations from which they must not miss the classic, traditional role of states as subjects of international law versus the role of international intergovernmental organisations as derived subjects of international law (these being the creation of states and not vice versa). 

The mapping of international, regional and national regulation is not a fairy tale but, as we will see, it highlights a great lack of regulation in the face of important issues such as climate change or security. This is why I have included a case study on Romania in my article. I focused on the right of states to individual self-defence. This is an essential element of national sovereignty and is recognised by international law. This right is closely linked to national security strategies, which are designed to ensure that states are prepared to exercise this right effectively. National security strategies provide the necessary framework for developing defence capabilities and coordinating the response to threats, thus ensuring the protection of state sovereignty and security. This involves a comprehensive approach that integrates defence, law enforcement, environmental protection, and economic development.

But let’s not forget that the right to individual self-defence is a central component of national security strategies. Security strategies are developed to ensure that a state is prepared to exercise this right effectively and proportionately. These strategies include as a common body the follow: military defence measures, international alliances, strategic partnerships and crisis response policies. We cannot choose just one of these.

Let’s think logically. If a Black Sea littoral state does not capitalise on this right or neglects it, we have several categories of risks and consequences: immediate consequences like an abnormal dependence on strategic allies, human and material loss, occupation of territory, political and diplomatic consequences as weakening of sovereignty, plus long-term consequences as internal instability, precedent for future aggression, and not validating the right means limited capacity.

We cannot discuss the Black Sea without discussing Romania. This would have been possible if we were still in the Ottoman Empire, when the Black Sea was considered an internal Turkish lake, a closed sea where only Turkish ships could sail. Today, in the midst of the turbulent waves of international events and politics, Romania is at a crossroads in terms of maritime security, while the other littoral states may or may not have their own maritime security strategy. As a country with access to the Black Sea, its entry into a new era of maritime strategy is essential not only for its own security but also for the stability of the whole region. This paper focuses on possible directions and strategies that Romania (and Bulgaria) could adopt to strengthen its position on the frontiers of international and EU maritime regulations, with a particular focus on the legal mapping of the Black Sea in search of a clear vision of where Romania’s maritime security strategy is heading.

In this context, we cannot fail to start the discussion with the Montreux Convention on the Regime of Straits, which governs the Bosphorus and Dardanelles straits in Turkey. Signed on 20 July 1936 at the Montreux Palace in Switzerland, it entered into force on 9 November 1936, addressing the long-standing issue of straits, and who has stood to control the vital strategic link between the Black Sea and the Mediterranean. The Montreux Convention effectively regulates maritime traffic across the Black Sea. It guarantees ‘full freedom’ of passage for all civilian ships in peacetime and allows Turkey to restrict the passage of military vessels not belonging to Black Sea states. Military vessels are limited in number, tonnage and armament, with specific provisions governing their entry and the duration of their stationing. Warships must inform the Turkish authorities in advance, who in turn must inform the parties to the Convention. Although designed for a particular geopolitical context and unchanged since its adoption, the Montreux Convention has endured as ‘a solid example of a rules-based international order’, as most of its terms are still respected^[3].

Competition between the major powers has generated threats and risks that are much different and much greater than those we have faced since the end of the Second World War. The Law of the Sea still seems to be an abstract notion, far removed from the actual and real peace and security issues facing the Black Sea. From a regional perspective, the Russian-Ukrainian war has only exacerbated these gaps and has further increased the danger of the use of disruptive military technologies, especially for states neighbouring conflict zones. This has raised concerns about peace and security in the Black Sea region. Some states on the shores of the Mediterranean appear not to be concerned with their own strategy, developing a whataboutism[4] specific to the rhetoric ‘but the neighbouring state also believes that the strategies advanced by the international organisations involved are sufficient’. Discussions are focused on the EU Maritime Security Strategy (EUMSS), which, on the one hand, is based on closer collaboration within the EU, at the regional and national level, but, on the other hand, does not exclude the development of their own maritime security strategies. It can even be argued that Member States have an international obligation to reinforce at the national level the reference provisions of EU or international instruments.

• Some Reflections on the Possibilities of Legal or Administrative Regulation for a Maritime Security Strategy. Why not a Black Sea Convention?

The international law instruments adopted so far do not contain sufficient provisions for the appropriate regulation of technological change or of the dangers of new wars such as the Russo-Ukrainian war. The focus of this paper is to identify the security clauses in the main regional or international instruments, taking into account all types of security, not just military security. Maritime security facilitates the blue economy (by protecting shipping lanes, by providing oceanographic data important to marine industries, and by protecting rights to valuable marine resources and activities in claimed maritime jurisdiction areas), and is itself a source of economic development and growth (through increased demand for maritime security capabilities, and hence increased investment)[5]. On the horizon, security can be classified as national, regional or global, and from this perspective the whole regulatory framework needs to be analysed[6].

The United Nations Convention on the Law of the Sea (UNCLOS) on the General Body of Rights and Responsibilities in the Maritime Areas[7] was concluded by the States Parties ‘convinced that the codification and progressive development of the law of the sea, embodied in this Convention, will contribute to the strengthening of peace, security, cooperation and friendly relations among all nations in accordance with the principles of justice and equal rights, and will promote the economic and social advancement of all peoples of the world, in conformity with the purposes and principles of the United Nations as set forth in the Charter of the United Nations’. The Convention includes provisions on security only in the articles governing safe passage[8]. Article 21 of the Convention leaves it to the discretion of riparian States, also in the context of innocent passage, to adopt, in accordance with the provisions of UNCLOS ‘and other rules of international law, laws and regulations relating to innocent passage in its territorial sea, which may concern the safety of navigation and the regulation of maritime traffic’. We infer from this that the littoral states have the regulatory competence recognised by international law to ensure the best safety conditions. Finally, in Articles 29 to 32, the Convention also sets out a number of rules applicable to warships, including a general definition of a warship, which also draws our attention to the domestic laws and regulations of the riparian states for the best possible security protection adapted to these purposes.

• Convention on the Regime of the Straits of the Black Sea of 20.07.1936 (Montreaux Convention)

This Convention, which will be 100 years old in 11 years’ time, remains an international instrument that is still applicable and useful, given that there is no other comprehensive regulatory framework that is more adapted and dedicated exclusively to the Black Sea, a sea that is forced, in a rather cumbersome way, to draw its legal protection from a series of other instruments, as we shall see below.

The treaty, signed in 1936 in Montreux, aims to control the Bosphorus and Dardanelles straits, which connect the Black Sea to the Mediterranean Sea. The convention lays down clear rules on the passage of merchant and military ships through the straits, indicating, for example, that merchant ships are allowed free passage while military ships are subject to strict restrictions. At the same time, it reaffirms the neutrality of the straits and prohibits any power from using them for military purposes in ways that could threaten the security of other states. The preamble states the intention of the signatory parties, declaring: ’Mindful of the desire to regulate the passage and navigation of the Straits of Dardanelles, the Sea of Marmara and the Bosphorus, which are included under the general name of ‘Straits’, so as to safeguard, in the framework of the Turkish security and the security of the Black Sea riparian States, the principle enshrined in Article 23 of the Peace Treaty signed at Lausanne on 24 July 1923′[9]. Clear limits are set on the foreign military presence in the Black Sea to avoid escalating tensions between the littoral states and Turkey’s right to control the Bosphorus and Dardanelles straits is reaffirmed, giving it the status of a neutral state in time of war.

Article 12.2, however, seems to prevent NATO in some actions: ‘2. Whatever the purpose of their presence in the Black Sea, warships of non-neighbouring Powers shall not remain in its waters for more than twenty-one days.’ This is why during 2023 some opinions appeared in the press such as ’How can NATO circumvent the Montreux Convention to defend Romania and the other Black Sea states?’[10]

The document prohibits hostile acts only in the straits, not in the Black Sea, so the question of maritime security remains open: ‘In time of war, Turkey not being a belligerent, warships shall enjoy full freedom of passage and navigation through the Straits under conditions identical with those stipulated in Articles 10 to 18.

It shall, however, be prohibited for warships of any belligerent Power to pass through the Straits, except in the cases provided for in Article 25 of this Convention, and in the case of assistance to a State victim of aggression under a treaty of mutual assistance binding on Turkey, concluded within the framework of the Covenant of the League of Nations, registered and published in accordance with the provisions of Article 18 of the said Covenant.

The limitations set out in Articles 10 to 18 shall not apply in the exceptional cases provided for in the preceding paragraph.

Notwithstanding the prohibition of passage enacted by paragraph 2 above, warships of belligerent Powers bordering or not bordering the Black Sea which are separated from their home ports shall be authorised to return to those ports.

It is forbidden for belligerent warships to take any captures, to exercise visitation rights or to commit any hostile acts in the Straits.’ The essential condition is that Turkey remains ‘non-belligerent’.

The analysis takes into account both the strategic importance of the Montreux Convention in the Black Sea region and the fact that it has been subject over time to interpretations and adaptations to the global geopolitical landscape.

One of the current security issues is PMCs (private-military companies). In terms of international legal regulation, a PMC is not defined in any binding international law (only mercenaries are mentioned). As is known there are only two documents of a rather recommendatory character – the Montreaux Document of September 2008 on the activities and good practices of private military and security companies in war zones and the International Code of Conduct for Private Security Providers (ICoC) of September 2010. In international law a convention is binding only between the signatory parties, or, the Russian Federation is not a signatory to either of these documents[11].

Following the Vienna Convention on the Law of Treaties, concluded in Vienna on 23 May 1969, the interpretation of the conditions for amending or withdrawing from the Convention is to be based on the clauses of this Convention. We shall have regard to Article 41: ‘Agreements to amend multilateral treaties only in relations between certain parties: 1. Two or more parties to a multilateral treaty may conclude an agreement to amend the treaty only in their mutual relations (…)’.

The Vienna Convention also clarifies the conditions for an exit from a treaty, which the Montreaux Convention does not contain: ‘Article 44 Severability of provisions of a treaty: 1. The right of a party, provided for in a treaty or arising under Article 56, to denounce, withdraw from or suspend the operation of the treaty may be exercised only in respect of the treaty as a whole, unless the treaty otherwise provides or the parties have otherwise agreed. 2. A ground of nullity or termination of a treaty, or of withdrawal of a part of a treaty, or of the suspension of the operation of a treaty, recognised in accordance with the provisions of this Convention, may be invoked only in respect of the treaty as a whole, except as provided in the following paragraphs or in Article 60. 3. If the case in question concerns only certain specified clauses, it may be invoked only in respect of those clauses alone where: (a) those clauses are severable from the rest of the treaty as regards their performance; (b) it appears from the treaty or is otherwise established that the acceptance of the clauses in question did not constitute for the other party or parties to the treaty an essential basis of their consent to be bound by the treaty as a whole; and (c) it is not just to continue the performance of what remains of the treaty.’

Depending on the intentions of a State Party, it may, especially in the light of changed circumstances, use the provisions of the Vienna Convention to terminate a treaty or even to suspend its application[12]. We should also consider in this context whether we are dealing with the emergence of a new peremptory norm of general international law (jus cogens), since the Convention provides that: ‘If a new peremptory norm of general international law arises, any existing treaty which is in conflict with that norm becomes null and void and terminates.’ An important element is also the practice of States Parties as to how they intend to respect and interpret the provisions of treaties in general. Without going into details, leaving open some possibilities, we will move on to the analysis of other relevant instruments.

Another issue is the interpretation of access to the Black Sea, which raises the question of the stationing period in the region for ships using access routes other than the Bosphorus and Dardanelles straits. In practice, the rivers and streams of the Black Sea basin are not covered by the Convention.

The prospect of changing the status of straits, through a revision of the Montreux Convention, has raised concerns about the further implications.

Russia has shown its opposition to this project in various ways, as the current regime guarantees its status as a singular power in the Black Sea, protects its interests very well and imposes restrictions against a possible increased presence of warships from non-Black Sea countries or NATO vessels. Although there have been voices in Russia at times arguing for the need to amend the Convention, regarding the restriction of access to and the length of stay of warships from non-nearshore states, the prevailing opinion in Moscow seems to be one that does not support a revision of the Convention[13].

On the other hand, several US officials have said that the Montreux Convention provisions are outdated and can no longer respond to the security situation in the region. In this regard, it has been proposed to review the rules of entry of warships, the issues of the period of stay and the requirements to notify Turkey of the passage of warships through the straits.

Turkey has its own approach to the straits regime, promoting its own interests by showing everyone that it maintains control over the straits, even to the extent of unilaterally changing their regime. Thus Turkey indirectly amended the Montreux Convention on 20.07.2018, imposing new rules considered internal by Ankara, as follows: ‘Merchant vessels carrying warships must pass through Turkish straits under the status of warships.’

The construction of the Istanbul Canal will also automatically require an analysis of the Convention’s provisions, in a simple interpretation of the very creation of a new corridor, which is not foreseen in the Straits Convention, which is in a way equivalent to a de facto revocation of the Convention.

 To all these aspects, we can also add the fact that some of the countries bordering the Black Sea (Ukraine and Georgia) did not take part in the negotiations prior to the signing of the Convention, thus giving rise to more and more arguments supporting the need to initiate steps to amend the Montreux Convention to take into account the reality of the situation in the region.

Romania, on the other hand, must anticipate the possibility that the international agenda will discuss the need to analyse the situation of the Black Sea, whether it can remain a closed sea according to the provisions of the Montreux Convention, or become an open sea by applying the Montego Bay Convention. It is a most appropriate moment, given that the actions of the Russian Federation have led to a violation of the spirit of the Convention, and in recent years, with a not-insignificant contribution from Romania and Romanian diplomacy, the region has received increasing attention on the agenda of the EU, NATO and the USA, materialised by multiple initiatives related to this region[14]. In July 2022, the Black Sea Security Act of 2022 was introduced in the US Congress and in December 2022 it was passed by the Senate Foreign Relations Committee. In 2023, the document is subject to a formal adoption procedure, entitled the Black Sea Security Act of 2023[15]. According to official US sources, under no circumstances will the US push for a revision of the Montreux Convention, which regulates access to the Black Sea through the Turkish Strait and prevents escalation of naval confrontations in this crucial waterway. Turkey would never agree to changes; if the US were to press for such a course of action, it would risk serious disruption of relations with Ankara. The most likely scenario is that the strategic stalemate in Russia’s war against Ukraine forces the US to continue to focus on the Black Sea, regardless of the outcome of the November elections (either a Republican or Democratic administration will support initiatives for a free and open Black Sea). These initiatives are likely to be in the following areas: capacity building, cooperation and investment as the United States will continue to support investment to expand infrastructure capacity in the Black Sea region, extending into the Caucasus and the Middle Corridor[16]. By strengthening trade and east-west transit through the eastern Black Sea, Washington is advancing concrete and productive alternatives.

 However, as I suggested in the introduction, the focus on security must be on the three inseparable pillars: national, regional and global.

• Towards a Black Sea Convention

At the planetary level, the number of seas varies depending on how they are defined and classified. According to most geographical sources, there are about 50 to 70 seas, but some are considered parts of the main ocean or are referred to differently in various sources[17].

The most famous seas are the Mediterranean Sea, the Black Sea, the Red Sea, the Baltic Sea, the North Sea, the Caribbean Sea, the Aegean Sea, the Adriatic Sea, the South China Sea and the Sea of Japan. In the search for international conventions governing the use, protection and management of the seas, we note that some of these conventions have been adopted, particularly on the environmental side. For example, the Barcelona Convention (for the Mediterranean Sea), a regional treaty aimed at the protection of the marine environment and the coastal zone of the Mediterranean Sea[18]; the Helsinki Convention (for the Baltic Sea) on the protection of the marine environment of the Baltic Sea[19]; the OSPAR Convention (for the North-East Atlantic, including the North Sea) on the protection of the marine environment of the North-East Atlantic[20]; Cartagena Convention (for the Caribbean Sea), a regional treaty for the protection and development of the marine and coastal environment of the Caribbean region and the Cartagena Protocol on Biosafety to the Convention on Biological Diversity[21]; and for the Black Sea there is the Convention on the Protection of the Black Sea against Pollution[22] supplemented by three specific protocols.

In June 2023 the UN[23] adopted the first treaty for the protection of the seas and oceans. The drafting of the document took over 15 years and will need to be ratified by member countries by 2025. While Russia has already rejected the text of the new treaty, Romania signed the Treaty on the Conservation and Sustainable Use of Marine Biodiversity in Areas beyond National Jurisdiction, on the margins of its participation in the high-level segment of the 78th session of the UN General Assembly[24]. The treaty is welcome as long as its outcome does not encourage some transnational companies to make huge profits in undesirable ways from managing or ‘policing’ the oceans, which remains an open issue for the attention of signatory states. The preamble to the document leaves open the possibility, like UNCLOS, for States Parties to make their own regulations, stating, among other things: ‘Respect for the sovereignty, territorial integrity and political independence of all states’. To this end these provisions can be corroborated with Article 4.2 of the Treaty: ‘This Agreement shall be interpreted and applied in a manner which is without prejudice to relevant global, regional, sub-regional and sectoral instruments and legal frameworks and bodies and which promotes coherence and coordination with these instruments, frameworks and bodies’.

Provisions on different security aspects are not included in the text. Article 3a states in the exceptions that ’This Agreement shall not apply to warships, military aircraft or naval auxiliaries. With the exception of Part II, this Agreement shall not apply to other vessels or aircraft owned or operated by one of the Parties and used, for the time being, only on government non-commercial service. Part II provides in Article 8, the final sentence that ‘The obligations set out in this Part shall not apply to military activities of a Party, including military activities performed by government vessels and aircraft engaged in non-commercial services’. However, this treaty calls for some legislative and administrative changes in the domestic law of States Parties, and these provisions are repeated throughout the text (see Art. 10, Art. 10 bis, Art. 11.3, Art. 11.8, Art. 53 in particular), to which end they are to be provided with technical assistance for the implementation of the provisions of this Agreement, including monitoring and reporting (Annex IId (iii)).

So far, all these instruments encourage States Parties to work on their own regulatory framework, be it legal or administrative. The idea of a monopoly over the Black Sea is utopian and even the belligerent states realise the important role of cooperation[25].

The search for tailor-made regulations for the Black Sea has not yielded results that have the potential to take the place of an international Convention dedicated to the Black Sea. There have been some isolated initiatives which do not have the legal force of a treaty but have the characteristics of joint programmes. The Black Sea Naval Cooperation Task Group (BLACKSEAFOR) is made up of Bulgaria, Georgia, Romania, Russia, Turkey and Ukraine. Its aim is to promote peace and stability in the Black Sea region through joint naval exercises, search and rescue operations, and measures to combat terrorism and illegal trafficking. NATO conducts various military operations and exercises in the Black Sea to ensure regional security: monitoring maritime traffic, joint exercises with the naval forces of member and partner countries, and ensuring freedom of navigation. In addition, there are regional cooperation initiatives on cyber security and critical infrastructure protection. Various countries in the Black Sea region are working together to improve cyber security and protect critical infrastructure such as ports and sea pipelines.

But to further improve security and protection in the Black Sea, additional initiatives and conventions are needed to address these issues in a targeted, unified and more direct way. The hard-to-reach ideal, given the different interests of the littoral states, would be a specific regional convention on maritime security for all Black Sea littoral states, setting clear rules for cooperation on maritime security and protection against common threats. The desire for such a convention remains for now the holy grail of regional cooperation. The most unregulated aspect remains the response to various emergencies (increasingly predictable, especially in the light of climate change), which underlines the need for a national maritime security strategy. A Black Sea treaty would provide an integrated legal framework and could establish a new higher regional coordination body, but for now it remains an ambitious goal.

Until then, steps towards this goal may include cooperation programmes to protect critical maritime infrastructure such as oil and gas platforms, submarine cables and ports.

• Are the Measures of International Intergovernmental Organisations Sufficient in the Defence of States?

Before continuing, we will highlight the role of international intergovernmental organisations.

As I have presented in my previous monographs, these international organisations (or institutions) are the creation of and belong to states, playing an expansive role^[26] in the development of international legal norms^[27]. They specialise in one or more fields of activity and have legal personality recognised in the domestic legal order of states and in the international legal order.

‘The world is getting smaller and more interdependent every day. As a result, national and regional developments are a matter of necessity, seen in a global framework. States want to retain their independence, but face a growing list of problems that they can only solve in collaboration with others. Therefore, national decisions and outcomes and intergovernmental cooperation have become closely interlinked^[28]’.

An international intergovernmental organisation was defined in Article 1 of the 1975 Convention concerning the Representation of States in their Relations with International Organisations of a Universal Character as an association of states established by treaty, having its own constitution and common organs, and having legal personality distinct from that of its Member States.

Article 2 of the 1969 Convention on the Law of Treaties defines the international organisation as an intergovernmental organisation, emphasising the membership^[29].

Characteristic of these organisations are derived legal personality because it is conferred by the Member States through the constituent act; specialised legal personality, they have one or more areas in which they operate; and limited legal personality because they have certain established functions and objectives. These elements have a correlative influence on the legal capacity of these organisations, as follows:

1. By acquiring rights and assuming obligations, entering into relations with other subjects of international law; and by exercising the following rights: if their constituent instrument does not prohibit it, they may enter into treaties; they have the right of representation (active and passive legateship); they have the right of international claims for damage suffered by the organisation in its own name and by its agents; they have the right to establish and administer their budgetary resources.

2. By assuming international obligations such as respecting and applying the rules and principles of international law in its relations with Member States, third states, other international organisations and other subjects of international law, and in case of non-compliance with these obligations, it is responsible under international law.

In general, citizens and policy-makers have recognised that there can be no peace without law and that there can be no law without certain limitations on sovereignty. They have therefore begun to pool their sovereignties to the extent necessary to maintain peace and prosperity – for example, the North Atlantic Treaty Organisation (NATO), the World Trade Organisation (WTO) and the European Union (EU) – and sovereignty has increasingly been exercised on behalf of the world’s peoples, not only by national governments but also by regional and international organisations. Thus, the theory of divided sovereignty, first developed in federal states, began to apply internationally^[30].

Thus, a fundamental principle of international law is that a state can generally control all activities in the territory over which it has sovereignty. Outside this territory, a state is generally limited to controlling the activities of its citizens and of ships or aircraft registered in its territory. Sovereignty is a notoriously difficult concept to define, but in essence, under international law, it is a power and a right, recognised or effectively asserted in respect of a defined part of the globe, to govern in respect of that part, to the exclusion of nations or states or peoples occupying other parts of the globe^[31].

The two international intergovernmental organisations: the European Union and NATO, according to their objectives, can neither fully nor partially replace the national security strategies of the member states.

The North Atlantic Treaty Organisation (NATO) is a political-military alliance of 32 North American and European states created to protect the freedom and security of its member states by political and military means, in accordance with the North Atlantic Treaty, signed on 4 April 1949 in Washington, DC. The organisation provides the necessary structures to facilitate consultations and cooperation between member states in political, military, scientific and educational matters. It does not guarantee the absolute security of any member state, and any guarantee obligation carries with it sanctions for non-compliance. In referring to NATO’s competences, we will only consider military security.

  Article 5 of the treaty is the best known and is the one that underpins the Alliance: collective defence. This article states that an attack on one member state is considered an attack on all, which could trigger deliberations on a potential military response. Specifically, the 32-member countries ’agree that an armed attack against one or more of them in Europe or North America will be considered an attack against all of them, and accordingly agree that, in the event of such an armed attack, each of them, in exercise of the right of individual or collective self-defence recognised in Article 51 of the Charter of the United Nations, will assist the Party or Parties under attack by taking forthwith, individually and in concert with the other Parties, such measures as they deem necessary, including the use of armed force, to restore and maintain security in the North Atlantic area[32].

Article 3 states that ‘In order to achieve more effectively the objectives of this Treaty, the Parties shall, individually or jointly, through self-help and continued mutual support, maintain and develop their individual and collective capacity to resist an armed attack.’[33] .

Article 4 stipulates that ‘the Parties shall consult whenever, in the opinion of either Party, the territorial integrity, political independence or security of either Party is threatened’[34].

Article 4 has been invoked seven times since NATO was founded. The last time was in February 2022 after the Russian invasion of Ukraine, when Latvia, Lithuania, Poland, Bulgaria, the Czech Republic, Estonia, Romania and Slovakia used it to hold several meetings.

Solidarity and cohesion within the Alliance underpin the fact that no member country can be forced to rely solely on its own national efforts in the event of threats to its security. Without depriving member states of their sovereign defence responsibilities, the Alliance helps them to achieve their national security objectives as a collective effort. So the Alliance is a strong support but does not take over all sovereign security interests. From this point of view we will see further how Bulgaria has an almost toxic attitude expressed through the 2023 National Defence Strategy in which it clings only to NATO in all strategic lines.

‘The US fights, the UN feeds, the EU funds’ sums things up with a slogan popular in military circles. It follows from this that none of the three international organisations can be expected by a member state to guarantee security, for example.

In a letter Stoltenberg sent to von der Leyen on January 26, seen by Politico, he warned ‘I am concerned about potential overlap with existing NATO activities,’ adding: ‘In particular, I would be concerned if the EU were to move to set standards for ammunition.’ Until these organisations have defined their roles and competences, member states need to work on their own security strategies.

In reality, all security efforts are complementary, never definitive or static, based on multilateralism, which has not been excluded and never excludes national security strategies.

This is a context in which to take stock of history, look at Romania’s national security tradition and ask whether our country has ever had a maritime security strategy[35].

Neighbourhood, however, orients the analysis of this article starting from the subsequent implication of Romania’s accession to both NATO and the EU. In 2007, the Black Sea became a ‘direct neighbour’ of the European Union, a moment that arrived with discussions about regional and continental stability in Europe, some importance derived both from developments in the region’s states and from the major role played by the Black Sea in connecting Europe, Asia and the Middle East. Thus, Romania contributed to the launch of the E. U. Black Sea Synergy[36]. (European Commission Communication of 2007 – Commission of the European Communities) and to the advancement of the processes initiated by it, including the Black Sea NGO Forum, environmental protection, strengthening EU-Black Sea relations[37].

In the 2007 Communication, it is recognised in the introduction that ‘There are significant opportunities and challenges in the Black Sea area that require coordinated action at a regional level. These include key sectors such as energy, transport, environment, movement and security. Enhanced regional cooperation is not intended to directly address long-standing conflicts in the region, but it could generate greater mutual cooperation, greater trust and, over time, help remove some of the obstacles that stand in the way.

Given the confluence of cultures in the Black Sea area, increased regional cooperation could also have beneficial effects beyond the region.’

Article 3.2 entitled ‘Managing traffic and improving security’ launches in 2007 some security initiatives. These were aimed at improving border management and customs cooperation at regional level to enhance security and to combat cross-border organised crime, such as trafficking in human beings, arms, goods and drugs, with a focus on preventing and managing illegal migration. Some successful examples such as the EU Border Assistance Mission to Moldova and Ukraine were given in 2007 to highlight the contribution to conflict resolution. The same document also recognises that important illegal migration routes pass through the Black Sea region, making regional cooperation in these areas particularly important. According to the quoted text, ‘The Commission encouraged the countries of the region to further develop practical cooperation in the fight against cross-border crime in general, by channelling experience from other similar initiatives in South-East Europe and the Baltic area. Further strengthening regional cooperation will improve the performance of national law enforcement, in particular in the fight against corruption and organised crime. Black Sea regional actors could usefully develop best practices, introduce common standards for rescue and information exchange, establish early warning systems on transnational crime and develop training programmes.’ From these expressed possibilities, it is again possible for the ‘Black Sea regional actors’ to develop legal and administrative regulations to this end. There is therefore continuity in this call, which is found in all the main instruments.

Also important is Article 3.3 of the document, entitled ‘Frozen’ conflicts. According to the text, the Commission ‘calls for a more active role for the EU through increased political involvement in ongoing conflict resolution efforts (Transnistria, Abkhazia, South Ossetia and Nagorno-Karabakh) and proposed that the EU should also explore ways to enhance its involvement, for example, in monitoring. The Black Sea Synergy could provide a means of addressing the overall climate by tackling the underlying problems of governance and lack of economic development, lack of social cohesion, security and stability. Particular attention should be paid to promote confidence-building measures in the affected regions, including cooperation programmes specifically designed to bring otherwise divided parties together.’

Article 3.5 notes the importance of transport security: ‘The Commission should continue to actively support regional transport cooperation with a view to improving the efficiency, safety and security of transport operations.’ We are considering TRACECA – The TRAnsport Corridor Europe-Caucasus and Central Asia (TRACECA) programme provide technical assistance for the road, rail, air and maritime transport links from Central Asia to Europe. Originally a Community programme, it has been governed since 1999 by a multilateral agreement with intergovernmental structures[38].

In the same document, alongside transport security, energy security is highlighted. The INOGATE project[39] (Interstate Oil and GAs to Europe Pipelines) is seen as improving the security of energy supply through multi-year technical assistance programmes. It was supported by the EUBlack Sea and Caspian Sea Basin and its Neighbouring Countries Energy Cooperation Secretariat, as agreed at the Astana Ministerial Conference on 30 November 2006.

Another riparian state, Bulgaria, through its National Defence Strategy of 2023 states:

‘14.      The conflict potential of the Black Sea region will remain high in the long term. Russia is expanding the areas where it imposes restrictions on freedom of navigation. This leads to an increased Alliance focus on the region, the need to increase the Alliance’s presence and to enhance partners’ resilience and defence capabilities. Territorial disputes will continue to hamper integration processes, the economic and social development of individual states and will be a generator of political instability. Despite its loss of influence, Russia sees the post-Soviet area as a buffer with the West (NATO and the EU). Russia’s long-term objectives will therefore be to prevent not only Ukraine’s Euro-Atlantic integration but also its existence as an independent entity within internationally recognised borders. There is a danger that a similar approach will be applied in relations with Moldova and Georgia. Changes in the balance of power in the region and Russian aggression create the conditions for the reigniting of other frozen conflicts.

45. (…)In addition, integration requires a focus on: active participation in the implementation of measures to strengthen NATO’s deterrence and defence capabilities in the Black Sea region; the establishment of allied military formations on the territory of Bulgaria and participation in such formations on the territory of other NATO countries; the development of capabilities to support allied forces as a host country; the contribution to the EU’s Common Security and Defence Policy; effective bilateral and regional military cooperation; the development of strategic dialogue and partnership with the US.

53.       Security in the Black Sea region is only possible through the collective efforts of NATO and the EU and an enhanced Alliance commitment, including a naval presence on the ground, by strengthening the capabilities and interoperability of allies and partners in the region to address threats and challenges, including by enhancing capabilities to defend against maritime threats and to support freedom of navigation and trade. Early warning and situational awareness capabilities will be intensively developed in all areas.’

            Alongside all this, looking at the major powers, we can see the inestimable value of having our own maritime security strategy[40].

• Romania’s Position

As a result of the growing role of intergovernmental organisations, Romania has expressed its interest through several initiatives in the framework of EU policies and instruments for the Eastern Neighbourhood, including the Eastern Partnership (2009), the EU Strategy for the Danube Region (2010), the EU Strategy for Connecting Europe and Asia (2018). These are on a regional level, while the issue of the regulatory gap at internal level remains open.

In 2019 Romania adopted two framework documents: Common Maritime Agenda for the Black Sea and the Black Sea Strategic Research and Innovation Agenda. Both Agendas are subsumed to the Black Sea Synergy, contributing to its substantiation and implementation, in line with the results already acknowledged in the Black Sea Synergy implementation report drafted by the EEAS and published on 5 March 2019. The legal force of these documents is one of cooperation and commitment rather than one of obligation that would be carried out within a certain timeframe under the consequence of the application of sanctions. Ministers responsible for maritime affairs from the participating countries – the Republic of Bulgaria, Georgia, the Republic of Moldova, Romania, the Russian Federation, the Republic of Turkey and Ukraine – met on 21 May 2019 in the presence of H. E. Karmenu Vella, European Commissioner for Environment, Fisheries and Maritime Affairs, and H.E. Ambassador Selim Yenel, First Deputy Secretary General of the Organisation of the Black Sea Economic Cooperation and signed the Ministerial Declaration on a Common Maritime Agenda for the Black Sea in Bucharest on 21 May 2019.

 But committees of ministers adopt declarations or resolutions on topical political issues, but these must also be followed up in their national legislation. However, this Declaration left full autonomy to the states on how to manifest their cooperation: ‘Participating countries have full autonomy to cooperate with one or more of the participating countries, while contributing to the implementation of the common priorities and actions set by the countries in the framework of the Common Maritime Agenda’. These types of documents are not legally binding, like treaties, for example. They had no significant security relevance, but only economic and environmental relevance, being of a soft law of nature. The Common Maritime Agenda for the Black Sea was established and agreed by the seven participating countries (Bulgaria, Georgia, Republic of Moldova, Romania, Russian Federation, Turkey, Ukraine), following the commitment in the 2018 Burgas Ministerial Declaration: ‘Towards a Common Maritime Agenda for the Black Sea’. The document does not contain any mention of security issues. So does Annexe II which contains the process of implementing the agenda. It states that ‘participating countries set priorities, take ownership, align policies and funds at the national level, encourage participation of private investors and provide relevant resources, according to the countries’ capacity. Countries should propose regional flagship projects – potential joint regional projects and bankable investment projects at the national and regional level – to guide the implementation of the Agenda and attract investors’.

On its website, the Ministry of Foreign Affairs states that the EU’s recognition of the renewed importance of this region and the potential of regional cooperation, with EU support, in the Black Sea area was made by the adoption of the ACE Conclusions (dedicated to the EU’s role in Black Sea regional cooperation on 17 June 2019. This was another notable result of Romania’s activism on the Black Sea at European level”[41]. However, on maritime security Romania’s activism was insignificant. Point 3 of the FAC Conclusions[42] states, ‘The Council remains concerned about the security challenges in the Black Sea area. In this context, the Council reiterates that respect for international law, including the principles of independence, sovereignty and territorial integrity, the United Nations Convention on the Law of the Sea, including freedom of navigation, as well as the EU’s political decisions and its policy of non-recognition of the illegal annexation of Crimea are fundamental to the EU’s approach to regional cooperation in the Black Sea area.’

Romania, as the most stable and responsible political actor in the region, seeks to become the most important pillar of European engagement in the wider Black Sea region, becoming an important security and defence actor, a connector in terms of multilateral commitments and regional initiatives. From an economic point of view, Bucharest would like to actively contribute to the reconstruction of Ukraine and wants to help Kiev and Chisinau on their European path.

Romania is interested in ensuring the freedom of communication routes in the Black Sea for the development of trade, the resolution of frozen conflicts in the area, the protection of economic activities in the Black Sea Exclusive Economic Zone, as well as the development of projects aimed at diversifying access to resources, increasing interconnection capacity and competitiveness.

At the moment, the Romanian state is by far the strongest supporter of a substantial Alliance presence in the region and, after signing a 10-year cooperation agreement with the US, can be considered an anchor of stability for NATO in the region. Romania’s participation in the development of the European component of the US missile defence system is a success for our country, which is thus consolidating its position as a reliable ally within NATO. Our country has also facilitated and encouraged the growth of NATO’s military presence on its territory and is working to develop access, stationing, training, protection and force coordination capabilities.

As such, Romania is the right state to launch negotiations on a Black Sea Convention, and its geostrategic position increases its chances of hosting a higher regional coordination body.

• European Union Involvement

            Focusing on maritime security strategies, we continue our analysis with the EU Global Strategy (2016)[43] considered as the guiding framework for the Union’s external action in the medium and long term, which succeeded the 2003 EU Strategy (A secure Europe in a better world). This document does not contain specific provisions on the Black Sea, but it does mention on p. 33: ‘However, peace and stability in Europe are no longer a given. Russia’s violation of international law and the destabilisation of Ukraine, in addition to the protracted conflicts in the wider Black Sea region, have challenged the European security order at its core. The EU will remain united in defending international law, democracy, human rights, cooperation and the rights of every country. Managing relations with Russia is a key strategic challenge. A coherent and united approach must remain the cornerstone of EU policy towards Russia. Substantial changes in EU-Russia relations require full respect for international law and the principles underpinning the European security order, including the Helsinki Final Act and the Charter of Paris.’

Interestingly, page 41 contains some promises by the European Union, which, whether or not they would have materialised in legal instruments with the Black Sea security strategy as their main legal object, did not exempt Romania from working on the development and implementation of its own strategy: ‘As a global provider of maritime security, the EU will seek to further universalise and implement the UN Convention on the Law of the Sea, including its dispute settlement mechanisms. We will also promote the conservation and sustainable use of marine resources and biological diversity, and the growth of the blue economy, by working to fill legal gaps and increase knowledge and awareness of the oceans.’

On page 20 the idea is initiated: ‘For example, Common Security and Defence Policy (CSDP) missions and operations can work alongside the European Border and Coast Guard and specialised EU agencies to strengthen border protection and maritime security, save more lives, fight cross-border crime and dismantle smuggling networks.’ We note that at no point is the context of a war specified, although the document contains several references to ‘substantial changes in EU-Russia relations’.

On page 33 it is specified that, in addition to the foreign policy issues on which cooperation was already taking place at the time of the document, selective engagement could also take place on issues of European interest, including climate, the Arctic, maritime security, education, research and cross-border cooperation. Further, on p. 37 it states that the EU will deepen its partnership with NATO through coordinated development of defence capabilities, parallel and synchronised exercises and mutually reinforcing actions to strengthen the capabilities of its partners, counter hybrid and cyber threats and promote maritime security.

On page 43, the supporting and cooperative role is highlighted by stating that, in terms of maritime multilateralism, the EU will work with the UN and its specialised agencies, NATO, its strategic partners and ASEAN.

Finally, p. 45 comes and concludes thus: ‘We need to develop capabilities in trusted digital services and products and cyber technologies to increase our resilience. We will encourage increased investment and skills in all Member States through cooperative research and development, training, exercises and procurement. Third, in terms of cutting-edge military capabilities, Member States need all the major equipment to respond to external crises and keep Europe safe. This means having a full spectrum of land, air, space and maritime capabilities, including strategic capabilities.’

            The conclusion is that the development of maritime security strategies at the national level is an act of precision, given that this is a particularly important task, but also a difficult one, given the complexity of the maritime neighbourhood in which it seeks to achieve its strategic objectives, as is the case for India[44].

• Some Reflections

            No matter how much we analyse regional or international documents, we will not find a sure             ‘Saviour’ of Romania from this situation in which the Romanian state itself must and has the obligation to protect its interests and maritime resources.

Failure to comply with the obligation to protect its maritime interests and resources, because we can talk about an obligation in this sense, but not optional, could have serious consequences for Romania, both economically and strategically, and in terms of international security and reputation. For the Romanian state, the situation is equivalent to a ship sailing without a crew or lighthouses, exposing itself to the unknown dangers of darkness. Ignoring maritime security could leave Romania at the mercy of the winds and waves, with no clear direction and no safety on this voyage. Let us hope that Romania will be a Ulysses and not an Icarus[45].

Otherwise, the period of vulnerability to maritime threats and risks, such as piracy, smuggling, trafficking in drugs or human beings, marine pollution and other illegal or unauthorised activities in the maritime area, continues. A particularly serious but real consequence of the Russian-Ukrainian war may be the loss of sovereignty and control over maritime areas or even conflict with other states or international organisations. On the economic and investment front in particular, the failure to adopt an effective maritime security policy and strategy has a high potential to deprive the country of important economic and strategic opportunities related to the use and exploitation of maritime resources, as well as the development of infrastructure and economic activities in the maritime area already affected by the conflict situation in Ukraine.

            The European Union cannot take over this role. The European Union’s role, tasks and competences with regard to Romania’s maritime security strategy are not similar to a Prometheus, but are limited to coordinating maritime security policies and strategies at European level to ensure their coherence and effectiveness across the region; providing technical, financial and operational support for the implementation of security measures; developing and promoting common standards and best practices; monitoring and assessing risks and threats in the Black Sea region and other areas of strategic interest, in cooperation with Member States; promoting cooperation and coordination in information exchange, joint exercises and other activities aimed at enhancing maritime security; contributing to the development of monitoring, surveillance and response capabilities through tools and mechanisms available at European level; or supporting efforts to strengthen regional cooperation. Nowhere in any of the documents is the possibility for the EU to develop a maritime security strategy for Romania included. These are not enough.

• NATO’s Role

            The NATO Summit in Warsaw (8–9 July 2016), issued by the Heads of State and Government participating in the North Atlantic Council meeting in Warsaw, contains some references to this issue, but nowhere does it appear that NATO is in the place of Romania’s maritime security strategy. NATO’s maritime presence does not equate to an appropriate strategy for Romania as a sovereign state, a traditional subject of international law capable of expressing its international legal personality in accordance with its sovereign interests. The document says: ‘In the North Atlantic, as elsewhere, the Alliance will be ready to deter and defend against any potential threats, including maritime lines of communication and maritime approaches to NATO territory. In this context, we will further strengthen our maritime posture and detailed situational awareness.’

Paragraph 37 states, ‘Through the Longer Term Adaptation Measures of the Alliance’s Action Plan for Increased Responsiveness, we have a. Enhanced the NATO Response Force, increasing its readiness and significantly increasing its size, making it a more capable and flexible joint force, consisting of a division-level land element with air, maritime and special operations force components.’

Paragraph 48 talks about NATO’s maritime posture, which further underlines the need for Romania’s own strategy that would enhance this posture: ’The Alliance’s maritime posture supports the four roles of collective defence and deterrence, crisis management, cooperative security and maritime security, thereby also contributing to the projection of stability. Standing Naval Forces are a key maritime capability of the Alliance and are the centrepiece of NATO’s maritime posture. They are being augmented and will be aligned with the Alliance’s enhanced NATO Response Force to ensure that NATO benefits from the highest readiness maritime forces. We will continue to improve our maritime posture by exploiting the full potential of the Alliance’s maritime power as a whole. Work is underway to operationalise the Alliance’s maritime strategy, as well as on the future of NATO’s maritime operations, which are central to NATO’s maritime posture. Allies are also considering complementary maritime governance initiatives to contribute to this effort.’

These are issues that can underpin a maritime security strategy for our country, but are not intended to replace it. The Alliance aims to strengthen its role in projecting stability, including by improving regional understanding and situational awareness, continuing to adapt in the face of challenges and threats from all sides, strengthening its maritime dimension and developing a more strategic, coherent and effective approach to partnerships. Again, the focus is on partnerships and partners need to respond appropriately to these agreed roles.

NATO’s actions are visible in the fight against hybrid threats, enhancing resilience, building defence capabilities, cyber defence, maritime security and exercises. They can greatly support a national maritime security strategy, but do not eliminate it; on the contrary, they are intended to underline its role in enhancing the Alliance’s posture, welcoming the strengthening of European defence and crisis management. NATO supports the sovereignty and territorial integrity of states, but cannot guarantee it, as this depends on many interlinked factors that cannot be precisely controlled. The primary responsibility for ensuring maritime security remains primarily with each member state, and NATO can only provide support and complementarity in this regard.

A sea change in the Alliance’s approach to the Black Sea region was the Vilnius Summit on 11–12 JUN 2023, which demonstrated the strength of the transatlantic link and the unity of the Alliance. The summit strongly underlined the danger posed by the actions of the Russian Federation, ‘Peace in the Euro-Atlantic area has been shattered. The Russian Federation has violated the rules and principles that have contributed to a stable and predictable European security environment. The Russian Federation is the most significant and direct threat to the peace, security and stability of NATO member countries in the Euro-Atlantic area. Terrorism, in all its forms and manifestations, is the most direct asymmetric threat to the security of our citizens and to international peace and prosperity. The threats we face are global and interconnected.’ [46]

The strategic importance of the Black Sea region was also underlined, ‘The Black Sea region is of strategic importance for the Alliance. This is further underlined by Russia’s war of aggression against Ukraine. We underline our continued support for Allied regional efforts aimed at maintaining security, safety, stability and freedom of navigation in the Black Sea region, including, as appropriate, through the 1936 Montreux Convention. We will continue to monitor and assess developments in the region and improve our situational awareness, with a particular focus on threats to our security and potential opportunities for closer cooperation with our partners in the region, as appropriate.’[47]  This is the first time that the Black Sea has been given a separate paragraph in the Final Communiqué of a Summit, which mentions, at Romania’s request, allied efforts in the region to ensure security, safety, stability and freedom of navigation.

On defence posture and deterrence, new NATO regional defence plans have been adopted, including a joint plan for the Mediterranean, Black Sea region. Thus a high level of security was planned for the Eastern Flank, the Black Sea, including Romania.

            All the considerations so far converge towards the conclusion that Romania needs a maritime security strategy and that this cannot be replaced at any time by the connection of the Black Sea area to European and Euro-Atlantic values and cooperation processes and the dynamisation of regional cooperation with a focus on concrete projects and benefits for the citizens of the states in the region. The latter values support and encourage the development of a strategy but cannot claim to replace it.

• Further Background Notes for the Development of a Maritime Security Strategy

Another supporting element that can underpin the development of a maritime security strategy is the Common Security and Defence Policy (CSDP) which is an integral part of the European Union’s Common Foreign and Security Policy (CFSP). The CSDP is the main policy framework through which Member States can develop a European strategic security and defence culture, address conflicts and crises together, protect the Union and its citizens and strengthen international peace and security. It is explained in Title V (General provisions on the Union’s external action and special provisions on the common foreign and security policy), Chapter 2 (special provisions on the common foreign and security policy) and Section 2 (provisions on the common security and defence policy) of the Treaty of Lisbon (also known as the Treaty on European Union – TEU – , which entered into force in 2009).

            Since 2003 and the first intervention in the Western Balkans, the EU has launched and deployed 37 operations and missions on three continents. As of October 2023, 22 CSDP missions and operations were ongoing (12 civilian missions and 9 military operations, including 2 maritime). Using the momentum to strengthen CSDP, as well as all other regional or international documents, are only sources that underpin the need to develop a maritime security strategy. European Parliament resolution of 18 January 2023 on the implementation of the Common Security and Defence Policy – annual report 2022 (2022/2050 – INI)[48] states: ‘23. emphasises that the EU’s role as a global provider of maritime security must be further strengthened; welcomes the review of the EU Maritime Security Strategy and stresses that it must be aligned with the Strategic Busola and reflect new opportunities and challenges; considers that similar assessments should be carried out with regard to other EU policies and therefore welcomes the forthcoming Communication on Space and CSDP expected in early 2023; Stresses that, given the growing geopolitical tensions on the seas, the EU must protect freedom of navigation and ensure that its external maritime borders are effectively monitored in order to prevent illegal activities; calls on the Member States to strengthen their naval military capabilities in order to improve the EU’s presence and visibility in the maritime sector;

24. Recognises the importance of coordinated maritime presences as an essential tool to better meet the EU’s maritime security commitments worldwide; underlines the contribution of the coordinated maritime presence pilot project in the Gulf of Guinea to reducing maritime security incidents and welcomes its extension until 2024; welcomes the extension of the coordinated maritime presence to the North West Indian Ocean; Stresses the importance of close cooperation and complementary action with other CSDP missions in the region, including with Operation EU NAVFOR Atalanta, among others; supports the valuable work of the CSDP missions EUBAM Libya and EU NAVFOR MED IRINI in contributing to sustainable peace, security and stability; continues to support in particular the fulfilment of IRINI’s core task of enforcing the UN arms embargo on Libya.’

            The same document stresses that, given the growing geopolitical tensions at sea, the EU must protect freedom of navigation and ensure that its external maritime borders are effectively monitored to prevent illegal activities; calls on Member States to strengthen their naval military capabilities to improve the EU’s presence and visibility in the maritime sector. A strategy is therefore needed for these very reasons.

            All these initiatives have revealed some regulatory loopholes and the document notes these shortcomings: ‘28. notes that Member States can assess the reform of the decision-making process with a view to harnessing the considerable untapped potential within the Treaties, in particular by activating Article 31 TEU, extending Qualified Majority Voting (QMV) to areas related to the CSDP and pursuing full use of the “bridging clauses” and the scope of the articles strengthening EU solidarity and mutual assistance in case of crisis and ensuring EU sovereignty; Proposes to consider treaty changes in the case of CSDP, to be discussed and decided in a post-Conference on the Future of Europe Convention, which should address (1) the shift from unanimity to qualified majority voting for Council decisions with military implications, with an exception for the mutual defence clause in Article 42(7) and on defence matters for situations where no bridging clauses apply and only in the case of deployment of military equipment or in the case of CSDP missions not involving an executive mandate, (2) the introduction of provisions in Articles 42 and 46 TEU allowing for the joint procurement of defence equipment and other security-related expenditures from the Union budget, as well as the establishment of joint and permanent multinational military units, including command structures, and (3) the revision of Article 346 TFEU to limit the possibility for EU Member States to deviate from the provisions of the Public Procurement Directive and to introduce the obligation for a justification of such deviations to be assessed by the Commission and communicated to Parliament;

29. Calls on the VP/HR and the Member States to exploit the full potential of the Treaty provisions on CSDP and to give serious consideration to ways of implementing Article 44 TEU on entrusting the implementation of a CSDP mission to a group of Member States in order to make CSDP more flexible and effective on the ground, while maintaining a strong collective European dimension; stresses the importance of continuing exercises; Stresses the importance of further operationalising Article 42(7) of the TEU on mutual assistance in the short term and of clarifying its consistency with Article 5 of the North Atlantic Treaty, given that not all EU Member States are members of NATO; Stresses that the conditions for activating Article 42(7) and the modalities for providing the necessary assistance have never been clearly defined; points out that an amendment to the Treaty could define terrorist attacks, hybrid attacks, disinformation campaigns and economic coercion by third countries as elements that would trigger the implementation of Article 42(7) TEU.’

            The strategic guidelines contained in this document justify the need to develop a maritime security strategy for Romania, based on cooperation, communication and strategic culture, on the Strategic Busola, ‘R. whereas data and new technologies, such as AI, are increasingly important in maintaining military competitiveness and are being used in the development of new or improved military capabilities, such as AI-based cyber weapons, drones, autonomous or semi-autonomous weapons and vehicles, and covert intelligence and situational awareness tools, all of which have a transformative effect on military operations and strategy.’

            The EU Council endorsed on 21 March 2022 the Strategic Compass (‘A Strategic Security and Defence Compass – For a European Union that protects its citizens, values and interests and contributes to international peace and security’)[49]. At its meeting on 24–25 March 2022, the European Council ‘endorsed’ the new EU strategy[50]. The Compass highlights the importance of very good strategies, setting out ‘an ambitious but achievable plan to strengthen security and defence policy by 2030. The case for a new impetus for EU security and defence is compelling: a more hostile context and broader geopolitical trends require the EU to take greater responsibility for its own security’[51].

            The imperative of tailored national strategies culminates on p. 29 with precise provisions to this effect: ‘By the end of 2023, with a view to the full implementation of the Roadmap on Climate Change and Defence, Member States will develop national strategies to prepare their armed forces for climate change. By 2025, all CSDP missions and operations will have an environmental advisor and report on their environmental footprint.’ Page 22 states under the chapter: ‘Hybrid threats, cyber diplomacy, and foreign intelligence manipulation and foreign interference’ that ‘Member States may propose coordinated attribution of hybrid activities, recognising that attribution is a sovereign national prerogative. Our response requires full mobilisation of all relevant civilian and military instruments, as appropriate, based on foreign and domestic policies. It must also be based on a common understanding and assessment of these threats.’ Busola complements this wish on p. 31: ‘We must ensure that all EU defence initiatives and all capability planning and development instruments are integrated into national defence planning.’

            In other words, the Strategic Compass is a precise    guide to a maritime security strategy for our country, which makes the process easier. We just need to work on the administrative side and adapt it to national maritime security needs and characteristics.

Along the same lines of synergy and complementarity, a key instrument is the revised EU Maritime Security Strategy (EUMSS) and its Action Plan, as endorsed by the Council (General Affairs) on 24 October 2023[52]. The latter document endorsed a revised EU Maritime Security Strategy and Action Plan, which replaces the 2014 EU Maritime Security Strategy and the 2018 revised Action Plan and builds on their achievements; the EU Maritime Security Strategy and its Action Plan aim to strengthen the EU’s regional and international role and further secure the EU’s access to an increasingly contested maritime domain, particularly in light of the consequences of Russia’s war of aggression against Ukraine. The Act underlines that the revised EUMSS Action Plan will be implemented by the EU and its Member States in accordance with their respective competences and in close cooperation with like-minded countries and organisations. The time has therefore come to develop the strategy which is the subject of this article.

Strong models of maritime security strategies exist worldwide: The United States, China, Japan, the United Kingdom have all developed strategies that interlink national defence, energy security, counter-terrorism, marine environmental protection and the promotion of trade and shipping.

An analysis of the most recent national maritime security strategies, from 2013/2014 to 2022, drawn up by states with considerable maritime power such as the USA, the Russian Federation, the UK, France, but also those with significant maritime power such as Spain and Poland, clearly shows that they are based primarily on their own national maritime interests, take into account the risks and threats to these interests from state and non-state actors and natural disasters/disasters, international and domestic legislation related to maritime governance and safety, national and individual security, specific or related maritime economic activities, etc. It is clear that maritime security is part of national security and requires specific maritime policies, appropriate legislation and complex structures under national leadership and coordination, comprising representatives, forces and assets from all areas that can contribute to maritime security and safety in maritime (and rivers) areas of national interest.

At the citizen level, any discussion or negotiation of any security model starts from the premise that ‘security’, broadly understood, can be treated as a ‘public good’[53]. Individuals assess human rights protection on their own scale from these perspectives. The lack of a national maritime security strategy can seriously affect human rights by exposing the state to piracy, human trafficking, illegal fishing and marine pollution. Personal security, the right to work and a healthy environment are compromised, affecting the economy and livelihoods of local communities. There is a danger of inadequate management of migrant flows and destruction of underwater cultural heritage. An effective strategy is needed to protect the rights and safety of citizens and ensure economic and social stability.

 This interpretation comes from various analyses of the notion of state fragility which refer to the limited capacity of the state, the inability of institutions to cope with social and political tensions, or problems of state legitimacy[54]. From this we can draw the conclusion that Romania’s delay in adopting a maritime security strategy can be seen as a governance deficit. Is Romania a fragile state in this respect?

Romania does not yet have clearly defined national maritime interests. The national security interest, according to the country’s National Defence Strategy for 2020–2024, ‘is the desirable state of existence of a nation, an organic and inclusive community, aimed at defending and promoting fundamental national values, ensuring prosperity, guaranteeing respect for democratic rights and freedoms, the protection and security of its members’.

Based on the national security interests contained in this strategy, we can identify several national maritime interests of Romania without, however, limiting ourselves to these:

1. Ensuring Romania’s independence and territorial integrity, as well as the inviolability of its sovereignty over the territorial sea, inland maritime waters and maintaining control over access from the Danube to the Black Sea, through the arms of the river, and the Danube-Black Sea Canal;
2. Securing sovereign rights and self-jurisdiction in the exclusive economic zone, the continental shelf and the maritime and river areas of interest for the purpose of economic exploitation and unhindered development of activities in this area;
3. Promoting Romania’s maritime and river interests by contributing to maintaining stability and security in the Black Sea and the Danube River, strengthening national influence and developing mutually beneficial partnerships in maritime and river activities;
4. Promote and ensure freedom of navigation on sea and inland waterways and on the high seas, including freedom of flight, fishing, scientific research, the right to lay submarine cables and pipelines, and the right to explore and exploit mineral resources in the international seabed area;
5. Safe installation and operation of offshore platforms and pipeline systems for the transport of strategically important raw materials and hydrocarbons for domestic consumption;
6. Ensuring the protection of human life at sea and on the river in the area of responsibility;
7. Ensuring environmental safety during work on the sea and river, preventing pollution, ensuring the disposal of production and consumption waste, preserving the biodiversity of the aquatic environment, including the Danube Delta.

These are just a few guidelines from which to start analysing all elements of maritime security.

• Conclusions

Based on the analysis of the current situation, the objectives and priorities of Romania’s maritime security strategy should be established, which should reflect the country’s strategic interests and needs in the maritime area and define the main directions of action in line with the documents discussed in this material. Key national authorities that should work on this strategy include: 1) the Ministry of National Defence (MApN) having primary responsibility for the defence of Romania’s territory, including the maritime area (relevant military and defence capabilities); 2) the Ministry of Internal Affairs (MAI) considering its capabilities in the field of border police, maritime police and other law enforcement structures; 3) the Ministry of Transport, Infrastructure and Communications (MTIC) considering issues related to port infrastructure, navigation safety and maritime traffic management; 4) Ministry of Environment, Water and Forests (MMAP) regarding aspects related to the protection of the marine environment and maritime ecosystems; 5) Ministry of Foreign Affairs (MAE) considering the external dimension and relations with other states and international organisations; 6) Romanian Naval Authority (ANR) through its role in enforcing maritime regulations and ensuring the safety of navigation.

The Ministry of Foreign Affairs currently acts as the national coordinator/focal point for the Common Maritime Agenda, representing Romania in the Steering Committee of the implementation process.

The analysis of the maritime component is absolutely necessary in a process of developing new national and international documents. The initiation of the steps takes place at the national security and defence level, assessing the capacity of the maritime system to face, adapt and respond to all metamorphoses or dangers in its environment, responding to the defence needs not only for Romania but also for the European Union. Such vulnerability in the Black Sea could, by extension, endanger international peace and security. It calls for a re-examination of the traditional notion of defence of coastal states in the Black Sea region.

Another subsidiary question is whether national political and administrative systems are prepared and adapted to address these issues. A state’s administrative system underpins the process of drafting, implementing and managing international documents, ensuring compliance with international commitments and their integration into the legislative and administrative framework of the state concerned. With good coordination and a rigorous strategic plan, however, these dangers can be mitigated. It may be late, but it is not yet too late.

For Romania: ‘Maritime security, as part of national security, is a coordinated set of organisational and practical measures that ensure a favourable domestic and international political situation/state that allows the assertion, promotion and, if necessary, defence of Romania’s maritime interests in relations with other state and non-state actors involved and/or active in the maritime domain and the protection of these interests against any risks and threats’[55].

The current situation calls for the development of a maritime policy and maritime strategy, adapted to the national specificities, integrated into Romania’s national policies and strategies, which can become a country project on the basis of a broad consultation of the economic, social and governmental environment.

The countries with a coastline have the duty to promote their interests in the Planetary Ocean and to develop their defence capabilities in the maritime field, and in the case of Romania also in the river field, as the economic development of the country may depend on this space. From this perspective, Romania is obliged to exercise its role as a regional maritime power. This obligation must be supported doctrinally by the ‘National Defence Strategy’. In the current circumstances, no state can evade its regional responsibilities to promote and ensure a climate of stability and security in the Black Sea region.

Bibliography

1. Britannica, The Editors of Encyclopaedia, ‘sovereignty’, Encyclopedia Britannica, 2020 (https://www.britannica.com/topic/sovereignty), accessed 6.08.2022.
2. Clipperton Island Case (1932) 2 UNRIAA, 1105.
3. Communication from the Commission to the Council and the European Parliament Black Sea Synergy – A New Regional Cooperation Initiative, Commission of the European Communities Brussels, 11.4.2007 COM(2007) 160 final, available at: https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:52007DC0160&from=EN, accessed on 06.05.2024.
4. Constantin Mihai Banu (2022) ’EU Common Security and Defence Policy – from the Global Strategy (2016) to the Strategic Compass (2022). Towards reconfiguration through the effect of the war in Ukraine?’12 July 2022, Edited by the Chamber of Deputies, Department for Parliamentary Studies and EU Policies, European Union Directorate. Here you can access the page containing the studies carried out by the Directorate for the European Union: https://www.cdep.ro/afaceri_europene/afeur/2022/st_3517.pdf, accessed on 10.05.2024.
5. Convention for the Protection of the Marine Environment of the North-East Atlantic, OJ L 104, 3.4.1998, pp. 2–21.
6. Convention of 21 April 1992 on the Protection of the Black Sea against Pollution*), published in the Official Journal No. 242 of 29 September 1992.
7. Convention on Biological Diversity, OJ L 309, 13.12.1993, pp. 3–20 and Cartagena Protocol on Biosafety, OJ L 201, 31.7.2002, pp. 50–65. See also Decision 2002/628/EC concerning the conclusion, on behalf of the European Community, of the Cartagena Protocol on Biosafety.
8. Convention on the Protection of the Marine Environment of the Baltic Sea Area, 1992 (Helsinki Convention, revised 1992).
9. Convention on the protection of the Mediterranean Sea against pollution (Barcelona Convention) Official Journal L 240, 19/09/1977 P. 0003 – 0011. See the Convention for the protection of the marine environment and the coastal region of the Mediterranean in its consolidated version of 2004 here: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A01976A0216%2801%29-20040709, accessed on 29.05.2024.
10. Convention on the Regime of the Straits of the Black Sea of 20.07.1936, text published in the Booklet of 1 January 2001, in force since 20 July 1936.
11. Council conclusions on the EU’s commitment to regional cooperation in the Black Sea region, as adopted by the Foreign Affairs Council (FAC) on 17 June 2019.
12. Council conclusions on the Revised EU Maritime Security Strategy (EUMSS) and its Action Plan, General Secretariat of the Council of the European Union, Brussels, 24 October 2023 (OR. en) 14,280/23, available here: https://www.consilium.europa.eu/media/67499/st14280-en23.pdf, accessed on 10.05.2024.
13. Cross, Sharyl (2015) ‘NATO-Russia Security Challenges in the Aftermath of Ukraine Conflict: Managing Black Sea Security and Beyond.’ Southeast European and Black Sea Studies 15 (2): 151-77. doi:10.1080/14683857.2015.1060017.
14. D.W. McNemar, The Future Role of International Institutions, in C. E. Black, R. A. Falk (eds.), The Future of the International Legal Order, vol. IV, 1972, pp. 448–449, 459–462.
15. Dumitra Popescu (2006)’Public International Law’, university course, Ed. Titu Maiorescu Bucharest.
16. European Parliament Resolution of 18 January 2023 on the implementation of the common security and defence policy – annual report 2022 (2022/2050 – INI) can be found here: https://www.europarl.europa.eu/doceo/document/TA-9-2023-0010_RO.html, accessed on 10.05.2024.
17. G. I. Tunkin, ’Theory of International Law’, edited and translated by W. E. Butler, Harvard University Press, 1974.
18. Gaufman, Elizaveta (2016), ‘The USA as the Primary Threat to Russia’, Security Threats and Public Perception: Digital Russia and the Ukraine Crisis, New Security Challenges, Palgrave Macmillan, p. 91.
19. General Secretariat of the Council of the European Union (2022) ’A Strategic Compass for Security and Defence for a European Union that protects its citizens, values and interests and contributes to international peace and security,Brussels, 21 March 2022 (OR. en) 7371/22, document available here: https://data.consilium.europa.eu/doc/document/ST-7371-2022-INIT/ro/pdf, accessed on 10.05.2024.
20. General Secretariat of the Council of the European Union (2022) ’A Strategic Compass for Security and Defence For a European Union that protects its citizens, values and interests and contributes to international peace and security, Brussels, 21 March 2022 (OR. en) 7371/22, p. 4, document available here: https://data.consilium.europa.eu/doc/document/ST-7371-2022-INIT/ro/pdf, accessed on 10.05.2024.
21. Gopal, Prakash (2020) ‘Maritime Domain Awareness and India’s Maritime Security Strategy: Role, Effectiveness and the Way Ahead.’ Maritime Affairs: Journal of the National Maritime Foundation of India 16 (2): 1–12. doi:10.1080/09733159.2020.1840060. see some useful considerations in
22. Graffy C. Who Will Control the Black Sea? //GIS. October 11, 2022. URL: https://www.gisreportsonline.com/r/black-sea-russia-turkey/ (accessed: 25.05.2024).
23. Guitton, Matthieu J. (2019) ‘Sovereignty of Maritime Microstates: Maintaining an International Presence in a Changing Context.’ The International Journal of Intelligence, Security, and Public Affairs 21 (3): 251-62. doi:10.1080/23800992.2019.1695716.
24. Guy Faulconbridge and Tuvan Gumrukcu, ’Exclusive: Russia-Ukraine Black Sea shipping deal was almost reached last month, sources say’, article published by Reuters on 15.04.2024, material available here: https://www.reuters.com/world/europe/russia-ukraine-black-sea-shipping-deal-was-almost-reached-last-month-sources-say-2024-04-15/, accessed 05.06.2024.
25. HandWiki. Whataboutism. Encyclopedia. Available online: https://encyclopedia.pub/entry/35272 (accessed on 5 June 2024).
26. Hout, Will (2010) ’Between Development and Security: The European Union, Governance and Fragile States.’ Third World Quarterly 31 (1): 141-57. doi:10.1080/01436590903557462.
27. How NATO can bypass the Montreux Convention to defend Romania and the other Black Sea states is an article published in Adevărul online on 05.07.2023, signed by Viorica Marin. The article is available here: https://adevarul.ro/stiri-interne/evenimente/cum-poate-ocoli-nato-conventia-de-la-montreux-2281432.html, accessed on 10.05.2024.
28. Island of Palmas Case (1928) 2 UNRIAA, 829.
29. J. Wouters, Intergovernmental Organizations, Wolters Kluwer International, 2014.
30. James Jay Carafano, The U.S. perspective on Black Sea security, an article published in Gisreportsonline on 6 March 2024, available here: https://www.gisreportsonline.com/r/u-s-black-sea/, accessed 05.06.2024.
31. John J. Chin, Kiron Skinner, and Clay Yoo (2023) ’Understanding National Security Strategies Through Time’, in The Strategist, Vol. 6, Iss 4, pp. 103–124, http://dx.doi.org/10.26153/tsw/48842.
32. Legal Status of Eastern Greenland 1933 PCIJ Ser. A/ B No. 53:22.
33. Moskalenko, O. A., Muradov, G. L., Irkhin, A. A., Demeshko, N. E., & Nagornyak, K. I. (2023). ’The Montreux Convention after the beginning of the special military operation. Status quo or denunciation: Discourse of international actors and possible geopolitical implications for the Black Sea region’. Vestnik RUDN. International Relations, 23(4), 643–661. https://doi.org/10.22363/2313-0660-2023-23-4-643-661.Available from: https://www.researchgate.net/publication/377462567_The_Montreux_Convention_After_the_Beginning_of_the_Special_Military_Operation_Status_Quo_or_Denunciation_Discourse_of_International_Actors_and_Possible_Geopolitical_Implications_for_the_Black_Sea_Regi [accessed Jun 5, 2024].
34. National Geographics Education, World’s Seas, article available here: https://education.nationalgeographic.org/resource/worlds-seas/, accessed on 29.05.2024.
35. North-Atlantic Treaty Washington DC, April 4, 1949, available here: https://www.mae.ro/sites/default/files/file/pdf/TRATATUL%2520NORD-ATLANTIC.pdf, accessed 05.06.2024.
36. NSW v. Commonwealth (1975) 135 CLR 337 (the Seas and Submerged Lands Act Case) at 479, Jacobs J.
37. Péri, Márton (2020) « US Naval Strategy and National Security: The Evolution of American Maritime Power: By Sebastian Bruns, Abingdon and New York, Routledge, 2018, in Defense & Security Analysis 36 (1): 127-28. doi:10.1080/14751798.2020.1712036.
38. Popławski, Maciej, Marian Kopczewski, and Col. Jacek Narloch (2020) ‘Model of Negotiation Strategy in the Process of Building European Security.’ Journal of Decision Systems 29 (sup1): 460-72. doi:10.1080/12460125.2020.1818444.
39. Potočňák, Adam, and Miroslav Mareš (2022) ‘Russia’s Private Military Enterprises as a Multipurpose Tool of Hybrid Warfare.’ The Journal of Slavic Military Studies 35 (2): 181–204. doi:10.1080/13518046.2022.2132608.
40. Romania’s Maritime Resilience in the Era of Hybrid Threats and the Importance of a Maritime Security Strategy, Maritime Security Forum study online, page 121.
41. S.4509 – Black Sea Security Act of 2022. 117thCongress (2021–2022)//Congress.gov. URL:https://www.congress.gov/bill/117th-congress/senate-bill/4509 (accessed: 25.03.2023).
42. The European Union’s 2016 Comprehensive Strategy on Foreign and Security Policy can be found here: https://eeas.europa.eu/archives/docs/top_stories/pdf/eugs_review_web.pdf, accessed on 10.05.2024.
43. The Treaty on the Conservation and Sustainable Use of Marine Biodiversity beyond Areas of National Jurisdiction (BBNJ) has been signed by the Member States of the United Nations (UN). The full text of this treaty can be read here: https://www.un.org/depts/los/XXI10CTC%28EN%29.pdf, accessed on 10.05.2024.
44. The United Nations Convention on the Law of the Sea (UNCLOS), in force since 1994.
45. Vilnius Summit Communiqué, Issued by NATO Heads of State and Government attending the North Atlantic Council meeting in Vilnius 11 July 2023, p. 79: https://www.nato.int/cps/en/natohq/official_texts_217320.htm
46. Voyer, Michelle, Clive Schofield, Kamal Azmi, Robin Warner, Alistair McIlgorm, and Genevieve Quirk (2018), ‘Maritime Security and the Blue Economy: Intersections and Interdependencies in the Indian Ocean.’ Journal of the Indian Ocean Region 14 (1): 28–48. doi:10.1080/19480881.2018.1418155.
47. Wood, John Robert (2019) ‘China’s Maritime Strategy and National Security in the South China Sea.’ Intelligence and National Security 36 (3): 444-50. doi:10.1080/02684527.2019.1620548.

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[1] Cristina Elena Popa Tache is a researcher member of CIRET – Center International de Recherches et Études Transdisciplinaires Paris, Co-Chair for ESIL IG International Business and Human Rights, associate professor at the Faculty of Psychology, Behavioral and Legal Sciences of the ‘Andrei Șaguna’ University in Constanța, Romania, and expert of the Maritime Security Forum. E-mail: cristinapopatache@gmail.com. Web of Science Researcher ID: http://www.webofscience.com/wos/author/record/HGA-3707-2022. ORCID Researcher ID: https://orcid.org/0000-0003-1508-7658.  

[2] President George W. Bush on 20 November 2004.

[3] For details, see Wikipedia (https://en.wikipedia.org/wiki/Montreux_Convention_Regarding_the_Regime_of_the_Straits), accessed 19.08.2022.

[4] ‘Whataboutism’ is a word that was coined to describe the frequent use of a rhetorical diversion by Soviet apologists and dictators who would counter accusations of their oppression, ‘massacres, gulags and forced deportations’ by invoking American slavery, racism, lynchings, etc. Whataboutism was also used by other politicians and countries. The expression is particularly associated with Soviet and Russian propaganda. When the Soviet Union was criticized during the Cold War, the Soviet response often used the style ‘and what about you?’ See for more details HandWiki. Whataboutism. Encyclopedia. Available online: https://encyclopedia.pub/entry/35272 (accessed on 5 June 2024). Gaufman, Elizaveta (2016), ‘The USA as the Primary Threat to Russia’, Security Threats and Public Perception: Digital Russia and the Ukraine Crisis, New Security Challenges, Palgrave Macmillan, p. 91.

[5] Voyer, Michelle, Clive Schofield, Kamal Azmi, Robin Warner, Alistair McIlgorm, and Genevieve Quirk (2018), ‘Maritime Security and the Blue Economy: Intersections and Interdependencies in the Indian Ocean.’ Journal of the Indian Ocean Region 14 (1): 28–48. doi:10.1080/19480881.2018.1418155.

[6] Cross, Sharyl (2015) ‘NATO-Russia Security Challenges in the Aftermath of Ukraine Conflict: Managing Black Sea Security and Beyond.’ Southeast European and Black Sea Studies 15 (2): 151-77. doi:10.1080/14683857.2015.1060017.

[7] The United Nations Convention on the Law of the Sea (UNCLOS), in force since 1994, is generally accepted as a codification of customary international rules of the law of the sea and is sometimes considered the ‘constitution of the oceans’. The Convention has been adopted by 167 states and the European Union, and disputes are settled at the ITLOS tribunal in Hamburg.

[8][8] Article 19: Meaning of the expression ‘harmless crossing’
1. The crossing is harmless as long as it does not prejudice the peace, order or security of the riparian State. It shall be carried out in accordance with the provisions of the Convention and other rules of international law.
2. The passage of a foreign vessel shall be considered to be prejudicial to the peace, order or security of the coastal State if, in the territorial sea, such vessel engages in any of the following activities: (a) the threat or use of force against the sovereignty, territorial integrity or political independence of the riparian State or in any other manner contrary to the principles of international law as set forth in the Charter of the United Nations; (b) the exercise or manoeuvring of weapons of any kind; (c) the gathering of information to the prejudice of the defence or security of the riparian State; (d) propaganda to the prejudice of the defence or security of the riparian State; (e) the launching, landing on ships or boarding of aircraft; (f) launching, landing or embarking on military equipment; (g) embarking or disembarking goods, funds or persons contrary to the customs, fiscal, sanitary or immigration laws and regulations of the riparian State; (h) deliberate and serious pollution in violation of this Convention; (i) fishing; (j) hydrographic surveys or research; (k) disruption of the operation of any communication system or other equipment or installations of the riparian State; (l) any other activity not directly related to the passage.

[9] Convention on the Regime of the Straits of the Black Sea of 20.07.1936, text published in the Booklet of 1 January 2001, in force since 20 July 1936.

[10] How NATO can bypass the Montreux Convention to defend Romania and the other Black Sea states is an article published in Adevărul online on 05.07.2023, signed by Viorica Marin. The article is available here: https://adevarul.ro/stiri-interne/evenimente/cum-poate-ocoli-nato-conventia-de-la-montreux-2281432.html, accessed on 10.05.2024.

[11] Potočňák, Adam, and Miroslav Mareš (2022) ‘Russia’s Private Military Enterprises as a Multipurpose Tool of Hybrid Warfare.’ The Journal of Slavic Military Studies 35 (2): 181–204. doi:10.1080/13518046.2022.2132608.

[12] Article 62 of the Vienna Convention sets out the conditions for activating the ‘Fundamental Change of Circumstances’ clause and states that: ‘1. A fundamental change of circumstances which has occurred in relation to those existing at the time of the conclusion of a treaty and which had not been foreseen by the parties may not be invoked as a ground for terminating or withdrawing from the treaty unless: (a) the existence of such circumstances constituted an essential basis of the consent to be bound by the treaty; and (b) such change has had the effect of radically transforming the nature of the obligations remaining to be performed under the treaty. 2. A fundamental change of circumstances may not be invoked as a ground for terminating or withdrawing from the treaty: (a) if it is a treaty establishing a frontier; or (b) if the fundamental change results from a breach by the party invoking it of either an obligation in the treaty or of any other international obligation towards any other party to the treaty. 3. If a party may, under the preceding paragraphs, invoke a fundamental change of circumstances as a ground for terminating or withdrawing from a treaty, it may also invoke it only for the suspension of the operation of the treaty.’

[13] Moskalenko, O. A., Muradov, G. L., Irkhin, A. A., Demeshko, N. E., & Nagornyak, K. I. (2023). TheMontreux Convention after the beginning of the special military operation. Status quo or denunciation: Discourse of international actors and possible geopolitical implications for the Black Sea region. Vestnik RUDN. InternationalRelations, 23(4), 643–661. https://doi.org/10.22363/2313-0660-2023-23-4-643-661.Available from: https://www.researchgate.net/publication/377462567_The_Montreux_Convention_After_the_Beginning_of_the_Special_Military_Operation_Status_Quo_or_Denunciation_Discourse_of_International_Actors_and_Possible_Geopolitical_Implications_for_the_Black_Sea_Regi [accessed Jun 5, 2024].

[14] The options put forward by experts are the danger of the Black Sea becoming a Russian lake; Russia losing the war but due to the lack of political will of the West, the 1936 Convention remains unchanged; the US, the EU, NATO and the Black Sea states having the power to reformulate the Montreux Convention in line with the Black Sea Security Act, but Turkey’s sovereignty over the Straits remaining unchanged; and the complete abolition of the Convention and the passage of the Straits to the general provisions of international maritime law. Graffy C. Who Will Control the Black Sea? //GIS. October 11, 2022. URL: https://www.gisreportsonline.com/r/black-sea-russia-turkey/ (accessed: 25.05.2024).

[15]  S.4509 – Black Sea Security Act of 2022. 117thCongress (2021–2022)//Congress.gov. URL:https://www.congress.gov/bill/117th-congress/senate-bill/4509 (accessed: 25.03.2023).

[16] James Jay Carafano, The U.S. perspective on Black Sea security, an article published in Gisreportsonline on 6 March 2024, available here: https://www.gisreportsonline.com/r/u-s-black-sea/, accessed 05.06.2024.

[17] National Geographics Education, World’s Seas, article available here: https://education.nationalgeographic.org/resource/worlds-seas/, accessed on 29.05.2024.

[18] Convention on the protection of the Mediterranean Sea against pollution (Barcelona Convention) Official Journal L 240, 19/09/1977 P. 0003 – 0011. See the Convention for the protection of the marine environment and the coastal region of the Mediterranean in its consolidated version of 2004 here: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A01976A0216%2801%29-20040709, accessed on 29.05.2024.

[19] Convention on the Protection of the Marine Environment of the Baltic Sea Area, 1992 (Helsinki Convention, revised 1992).

[20] Convention for the Protection of the Marine Environment of the North-East Atlantic, OJ L 104, 3.4.1998, pp. 2–21.

[21] Convention on Biological Diversity, OJ L 309, 13.12.1993, pp. 3–20 and Cartagena Protocol on Biosafety, OJ L 201, 31.7.2002, pp. 50–65. See also Decision 2002/628/EC concerning the conclusion, on behalf of the European Community, of the Cartagena Protocol on Biosafety.

[22] Convention of 21 April 1992 on the Protection of the Black Sea against Pollution*), published in the Official Journal No. 242 of 29 September 1992.

[23] Acronyms used for the United Nations.

[24] The Treaty on the Conservation and Sustainable Use of Marine Biodiversity beyond Areas of National Jurisdiction (BBNJ) has been signed by the Member States of the United Nations (UN). This treaty aims to conserve and sustainably use marine biodiversity in areas beyond national jurisdiction, such as international waters or deep-sea areas beyond the exclusive economic zones and maritime territories of States. Signatory Parties include UN Member States that have agreed to the text and that consent to be bound by the provisions of the Treaty. The full text of this treaty can be read here: https://www.un.org/depts/los/XXI10CTC%28EN%29.pdf, accessed on 10.05.2024.

[25] Guy Faulconbridge and Tuvan Gumrukcu, Exclusive: Russia-Ukraine Black Sea shipping deal was almost reached last month, sources say, article published by Reuters on 15.04.2024, material available here: https://www.reuters.com/world/europe/russia-ukraine-black-sea-shipping-deal-was-almost-reached-last-month-sources-say-2024-04-15/, accessed 05.06.2024.

[26] The Soviets, however, were more reluctant about the international legal personality of international organisations and their role in developing new rules of international law. See, in this regard, G. I. Tunkin, Theory of International Law, edited and translated by W. E. Butler, Harvard University Press, 1974, pp. 327–336.

[27] D.W. McNemar, The Future Role of International Institutions, in C. E. Black, R. A. Falk (eds.), The Future of the International Legal Order, vol. IV, 1972, pp. 448–449, 459–462.

[28] J. Wouters, Intergovernmental Organizations, Wolters Kluwer International, 2014.

[29] D. Popescu, Public International Law, university course, Ed. Titu Maiorescu, 2006, p. 68.

[30] Britannica, The Editors of Encyclopaedia, ‘sovereignty’, Encyclopedia Britannica, 2020 (https://www.britannica.com/topic/sovereignty), accessed 6.08.2022.

[31] NSW v. Commonwealth (1975) 135 CLR 337 (the Seas and Submerged Lands Act Case) at 479, Jacobs J.; Island of Palmas Case (1928) 2 UNRIAA, 829; Legal Status of Eastern Greenland 1933 PCIJ Ser. A/ B No. 53:22; Clipperton Island Case (1932) 2 UNRIAA, 1105.

[32] NORTH-ATLANTIC TREATY Washington DC, April 4, 1949, available here: https://www.mae.ro/sites/default/files/file/pdf/TRATATUL%2520NORD-ATLANTIC.pdf, accessed 05.06.2024.

[33] Ibid

[34] Ibid

[35] By following the actions of the great powers, we can compile our own national interests and become responsible. See John J. Chin, Kiron Skinner, and Clay Yoo, Understanding National Security Strategies Through Time, in The Strategist, Vol. 6, Iss 4 Fall 2023, pp. 103–124, http://dx.doi.org/10.26153/tsw/48842.

[36] See Communication from the Commission to the Council and the European Parliament Black Sea Synergy – A New Regional Cooperation Initiative, Commission of the European Communities Brussels, 11.4.2007 COM(2007) 160 final, available at: https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:52007DC0160&from=EN, accessed on 06.05.2024.

[37] Organisation of the Black Sea Economic Cooperation.

[38] On 8 September 1998, in Baku, Republic of Azerbaijan, the Heads of Government of the Republic of Azerbaijan, the Republic of Armenia, the Republic of Bulgaria, the Republic of Georgia, the Republic of Kazakhstan, the Kyrgyz Republic, the Republic of Moldova, Romania, the Republic of Tajikistan, the Republic of Turkey, the Republic of Ukraine, the Republic of Uzbekistan and their plenipotentiaries, wishing to develop economic relations, trade and transport communications in the regions of Europe, the Black Sea, the Caucasus, the Caspian Sea and Asia, have signed the ‘Basic Multilateral Agreement on International Transport for the Development of the Europe – Caucasus – Asia Corridor’. Following the signing of the Basic Multilateral Agreement at the 1998 Summit ‘Restoration of the Historic Silk Road’, institutional structures have been developed to implement the objectives of this agreement.

[39] INOGATE is an international energy cooperation programme between the European Union (EU), the countries bordering the Black Sea and the Caspian Sea, and their neighbouring countries. The programme has been operational since 1996.

[40] See details in Péri, Márton. 2020. ‘US Naval Strategy and National Security: The Evolution of American Maritime Power: By Sebastian Bruns, Abingdon and New York, Routledge, 2018, 270 Pp., £105 (Hbk), ISBN 9,711,138,651,739.’ Defense & Security Analysis 36 (1): 127-28. doi:10.1080/14751798.2020.1712036. Also see Wood, John Robert. 2019. ‘China’s Maritime Strategy and National Security in the South China Sea.’ Intelligence and National Security 36 (3): 444-50. doi:10.1080/02684527.2019.1620548.

[41] See the website of the Ministry of Foreign Affairs which can be consulted here: https://www.mae.ro/node/1431, accessed on 10.05.2024.

[42] These are the Council conclusions on the EU’s commitment to regional cooperation in the Black Sea region, as adopted by the Foreign Affairs Council (FAC) on 17 June 2019.

[43] The European Union’s 2016 Comprehensive Strategy on Foreign and Security Policy can be found here: https://eeas.europa.eu/archives/docs/top_stories/pdf/eugs_review_web.pdf, accessed on 10.05.2024.

[44] We can learn from the experience of other countries. See Gopal, Prakash. 2020. ‘Maritime Domain Awareness and India’s Maritime Security Strategy: Role, Effectiveness and the Way Ahead.’ Maritime Affairs: Journal of the National Maritime Foundation of India 16 (2): 1–12. doi:10.1080/09733159.2020.1840060. see some useful considerations in Guitton, Matthieu J. 2019. ‘Sovereignty of Maritime Microstates: Maintaining an International Presence in a Changing Context.’ The International Journal of Intelligence, Security, and Public Affairs 21 (3): 251-62. doi:10.1080/23800992.2019.1695716.

[45] The story of Ulysses, or the Odyssey, is one of the most famous epics of Greek antiquity and is attributed to the poet Homer. The Odyssey recounts the journey of Ulysses (or Odysseus), a Greek hero, on his way home from the Trojan War. After many adventures and trials, including an encounter with the god Poseidon, who angrily pursues those who have harmed his Cyclops Polyphemus, Odysseus finally arrives home. With the help of his son, Telemachus, and a divine helper, he regains his throne and reunites with his wife, Penelope. Icarus, son of Daedalus, tried to escape from the Minotaur’s labyrinth by flying on wings made of feathers and wax. Daedalus warned Icarus not to fly too close to the sun, but Icarus, drunk with the sensation of freedom, did not listen and flew too close to the sun. The wax on his wings melted and Icarus fell into the sea and died. Like Icarus, if Romania does not manage its maritime strategy wisely and prudently, there is a risk that it will face serious consequences or even dramatic failures. By ignoring or neglecting the crucial aspects of maritime security, Romania could lose direction and collapse in the face of difficulties and threats.

[46] Vilnius Summit Communiqué, Issued by NATO Heads of State and Government participating in the North Atlantic Council meeting in Vilnius 11 July 2023, p. 5: https://www.nato.int/cps/en/natohq/official_texts_217320.htm

[47] Vilnius Summit Communiqué, Issued by NATO Heads of State and Government attending the North Atlantic Council meeting in Vilnius 11 July 2023, p. 79: https://www.nato.int/cps/en/natohq/official_texts_217320.htm

[48] European Parliament resolution of 18 January 2023 on the implementation of the common security and defence policy – annual report 2022 (2022/2050 – INI) can be found here: https://www.europarl.europa.eu/doceo/document/TA-9-2023-0010_RO.html, accessed on 10.05.2024.

[49] General Secretariat of the Council of the European Union, A Strategic Compass for Security and Defence for a European Union that protects its citizens, values and interests and contributes to international peace and security, Brussels, 21 March 2022 (OR. en) 7371/22, document available here: https://data.consilium.europa.eu/doc/document/ST-7371-2022-INIT/ro/pdf, accessed on 10.05.2024.

[50] Constantin Mihai Banu, EU Common Security and Defence Policy – from the Global Strategy (2016) to the Strategic Compass (2022). Towards reconfiguration through the effect of the war in Ukraine? 12 July 2022, Edited by the Chamber of Deputies, Department for Parliamentary Studies and EU Policies, European Union Directorate. Here you can access the page containing the studies carried out by the Directorate for the European Union: https://www.cdep.ro/afaceri_europene/afeur/2022/st_3517.pdf, accessed on 10.05.2024.

[51] General Secretariat of the Council of the European Union, A Strategic Compass for Security and Defence For a European Union that protects its citizens, values and interests and contributes to international peace and security, Brussels, 21 March 2022 (OR. en) 7371/22, p. 4, document available here: https://data.consilium.europa.eu/doc/document/ST-7371-2022-INIT/ro/pdf, accessed on 10.05.2024.

[52] See Council conclusions on the Revised EU Maritime Security Strategy (EUMSS) and its Action Plan, General Secretariat of the Council of the European Union, Brussels, 24 October 2023 (OR. en) 14,280/23, available here: https://www.consilium.europa.eu/media/67499/st14280-en23.pdf, accessed on 10.05.2024.

[53] Popławski, Maciej, Marian Kopczewski, and Col. Jacek Narloch. 2020. ‘Model of Negotiation Strategy in the Process of Building European Security.’ Journal of Decision Systems 29 (sup1): 460-72. doi:10.1080/12460125.2020.1818444.

[54] Hout, Wil. Between Development and Security: The European Union, Governance and Fragile States.’ Third World Quarterly 31 (1): 141-57. doi:10.1080/01436590903557462.

[55] Romania’s Maritime Resilience in the Era of Hybrid Threats and the Importance of a Maritime Security Strategy, Maritime Security Forum study page 121.

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