Russias Disturbing Actions on Innocent Passage in the Black Sea

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According to a June 23 announcement by Russia’s Ministry of Defence the British Royal Navy destroyer HMS Defender, which was navigating to the south of the Crimean Peninsula, had committed a border violation, prompting a vessel from the Russian Coast Guard, which is part of the Border Guard Service, to fire warning shots and a warplane to drop munitions in an attempt to get the Defender to change course. For its part, the U.K. Ministry of Defence affirmed that the Defender had engaged in innocent passage in “Ukranian territorial waters” in accordance with international law, but denied that there had been any warning shots or air munitions.

The two parties’ accounts directly contradict each other, but based on public information we can conjecture the following sequence of events. The Defender was headed from the Ukranian port of Odessa to Batumi in Georgia. It entered the internationally used traffic separation scheme (TSS) in southern Crimea and temporarily approached Crimea 10 nautical miles from the south. A BBC reporter who was aboard the Defender observed that it was followed by two Russian Coast Guard vessels, which issued the warning that, “If you don’t change course, we will open fire,” after which gunfire was heard. Subsequently, about 20 Russian military aircraft flew overhead. Footage released by Russia shows gunfire within visual range of the Defender on the horizon, but no munitions dropped in the Defender’s path. In fact, the Defender did change course temporarily to evade the approaching Russian Coast Guard ships, but it then returned to its plotted course and moved away from Crimea.

Moscow’s aim here is disinformation, creating the erroneous impression that its warning removed the Royal Navy from the territorial waters off Crimea. Russia annexed the Ukrainian territory of Crimea in 2014, but that has not been recognized by the U.K. or the international community. Russia used this incident to assert its sovereignty and jurisdiction over Crimea. Another factor that very likely played a part is that it occurred close to the port of Sevastopol, the principal base of Russia’s Black Sea Fleet.

The issue of who possesses Crimea undoubtedly figures in the background, but the crux of the situation is what kind of basis in international law Russia used to obstruct the Royal Navy destroyer. In fact, a similar incident occurred between the U.S. Navy and the former Soviet Navy in the same area in 1988. At that time, the Soviet Union warned that it would attack if the Americans entered Soviet territorial waters and two Soviet Navy ships shouldered two U.S. Navy ships that were in innocent passage not far from Sevastopol.

Following the incident, the U.S. and the Soviet Union held talks and announced a unified interpretation of innocent passage the following year. The two countries based this on Section 3 of the United Nations Convention on the Law of the Sea (UNCLOS), which had yet to come into force, and confirmed that all ships, including warships, enjoy the right of innocent passage through territorial waters (Article 17), that there is no need for advance notification or permission, that one should abide by any TSS established by the coastal state. They also defined innocent passage (Article 19), and confirmed that ships should respond to the coastal state’s inquiries about the purpose of the navigation, that the coastal state has the right to defend itself against non-innocent passage (Article 25), and that a warship may be requested to leave if its passage is not innocent (Article 30), but that the issue ought to be resolved through diplomatic means if the warship refuses to acquiesce to the request.

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Moscow still claims to adhere to this interpretation, but its actions this time were clearly in contravention of it. Russia hints that the British acted provocatively, as in “HMS Defender turns HMS Provocateur,” by claiming that the British did not respond to the Russian warning about the violation of territorial waters. The British counter that the Russian coastguard vessels had notified them that they would conduct a live-ammunition exercise nearby, after which they had several formal interactions. Consequently, the claims of the two countries contradict each other.

In fact, the Russian authorities issued on April 14, 2021 a notification that innocent passage by foreign warships in the waters around Crimea, including the area in question, was to be suspended for half a year. Russia has not explained the legal basis for this, but one likely aim is to prevent the navies of NATO countries from passing through the TSS in the waters near Sevastopol, which was established by Ukraine before the annexation of Crimea in accordance with the regulations of the International Maritime Organization (IMO). According to classified documents of the British Ministry of Defence obtained by the BBC, the Ministry had sought to assert that the TSS is Ukrainian territorial waters by having the Defender pass through.

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In fact, international law does not recognize restrictions on innocent passage for extended periods such as half a year. Article 25 of Section 3 of UNCLOS states that the coastal state may temporarily suspend innocent passage of foreign ships for the state’s own safety, but it cannot be applied exclusively to certain ships. It is unreasonable to consider half a year as temporary and the prohibition on the passage of warships alone violates UNCLOS. If we were to accept this, then coastal states would de facto have the power to arbitrarily establish zones where passage is not permitted.

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Likewise, it is a violation of internal law that Russia claims to have used the forceful means of warning shots to expel a Royal Navy destroyer from their territorial waters. The principle of sovereign immunity applies to warships, so all the coastal state is permitted to do, except in the case of self-defense, is to request the warship to leave and then lodge a diplomatic protest if it fails to do so. If the Defender were to have regarded the warning shots as illegal military action, then it may well have gained the right to self-defense under Article 51 of the United Nations Charter. The Russian Deputy Foreign Minister stated that this was just a warning and that Russia would initiate a direct attack next time if the U.K. continues to refuse to recognize Russian territorial waters. At a time when NATO is stepping up its activities in the Black Sea, this interpretation of internal law by Russia is exceedingly dangerous. In fact, following the Defender incident, the Russian military went on to disrupt the operations of Dutch and U.S. navies in the Black Sea.

China has engaged in similar actions in the South China Sea â€" disrupting U.S. freedom of navigation operations and then announcing that it has “driven away” the U.S. warships. The Defender belongs to the U.K. Carrier Strike Group, which is due to next visit Northeast Asia via the South China Sea. It is quite conceivable that China will obstruct the Royal Navy when it does.

Chinese domestic law establishes that the innocent passage of foreign warships requires prior permission. Article 17 of the China Coast Guard Law (CCG Law) went into force on February 1, 2021. It calls for the use of force against foreign warships believed to be engaging in passage that is not innocent, similar to the response of the Russian Coast Guard in the case of the Defender. Meanwhile, Article 25 of the CCG Law states that provisional maritime warning areas may be set up to restrict the passage of vessels, which makes it very likely that China will adopt measures similar to Russia’s suspension of innocent passage off Crimea.

The Soviet Union used to share its interpretations of navigational rights with other naval powers. Today, Russia and China have their own, similar interpretations of the law of the sea. As China and Russia become ever more aggressive in their peripheral waters, the international community should be deeply concerned about such revisionist interpretations. Be it the Black Sea or the South China Sea, maritime rules must be universal. Seafaring nations in Asia, Europe and elsewhere must continue to their efforts to ensure that universal maritime rules are maintained through diplomatic means and freedom of navigation operations.

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