Tensions in Crimean Waters: Can Russia’s Actions Amount to Threat of Force?

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On 23 June 2021, multiple reports (here and here) suggested that the British warship HMS Defender sailing in the Black Sea en route to Georgia, found itself involved in maritime tensions offshore of the Crimean Peninsula. Reports were officially confirmed the same evening by the Ministry of Defence of Russia stating that Britain violated the United Nations Convention on the Law of the Sea (UNCLOS) and that its military fired warning shots, while its warplane dropped bombs to force the destroyer to depart from waters near Crimea. Official sources of the UK denied Russia’s version of the incident arguing that Russians were having drills and that the Royal Navy ship was conducting innocent passage through Ukrainian territorial waters in compliance with international law. However, the audio-video footage released by Russia’s Federal Security Service later that day rebuts Britain’s version of the incident and proves that a warning had been issued and shots were fired. Although the protest note of Russia, handed to the British representative in Moscow, is not available publicly, it is clear that the problem lies in the disputed status of Crimea’s territorial waters, because what Britain considers Ukrainian territory, Russia sees it as its own.

The Status of Maritime Territories of Crimea and Special Regime Applicable Thereto

In 2014 Russia unilaterally annexed Crimea in a move that is not recognised by the international community, and the peninsula is widely considered as occupied territory of Ukraine (Dinstein,para.34; RULAC). The question that remains is whether the occupation extends to the territorial waters adjacent to Crimea as well. The Hague Regulations do not refer specifically to land or maritime territories; art.42 merely indicates that the territory is considered occupied when it is placed under the authority of a hostile army. As Longobardo (p.332) suggests, the normative context of the article 42 establishes that it refers to both land and maritime territory; however, to consider maritime territory under occupation, the occupying power must exercise actual authority, be able to expel enemy naval forces and substitute ousted government (ibid.344-45). In the present case, Russia’s navy has an entire fleet stationed in the port of Sevastopol in Crimea with the exclusion of Ukrainian marine forces and is in full control of waters, therefore it is clear that Russia occupies both land and sea of Crimea and thus special regime of occupation extends to the peninsula and its territorial waters.

Additionally, Ukraine recognises maritime territories of Crimea as temporarily occupied (here, art.3.1(2)), while Russia’s claim of integration of Crimea’s land and maritime areas into its territory is not accepted globally as it constitutes an acquisition of territory contrary to international legal order.

Although Ukraine retains legal sovereignty over Crimea and its maritime territories, the actual control is suspended by Russia’s occupation. Therefore, the territory in question falls under a special legal regime whereas Russia, as an occupying power, is the de facto ruler of the area and the primary obligation vested to it under the Hague Regulations (art.43) is to restore and ensure maintenance of public order and safety. Under this umbrella of maintenance of ordinary civil life, the occupant has a wide margin of discretion to take any measures, but all its actions must serve the security needs of its army or the welfare of the local population (Sassoli). Moreover, the law of occupation further stresses the importance of continuation of applicability of local laws unless their observance is impossible and, in that case, the occupant is allowed to replace existing laws in occupied territories (Arai-Takahashi,p.104).

Russia’s actions to prevent British warships to pass by Ukraine’s territorial waters can be justified only if proved that this was necessary for the maintenance of public order and safety in Crimean waters or this was otherwise in the interests of the welfare of the local population

The Right of Innocent Passage

The UNCLOS recognises the right to innocent passage in the territorial seas for all types of vessels, including warships, unless their passage does not qualify as innocent, which is defined as a passage that is not prejudicial to the peace, good order or security of the coastal State (art.17-19 and 29-32). The Manual on International Maritime Law (p.39) clarifies that this right is not absolute and can be restricted in exceptional cases, which are provided under the UNCLOS itself. According to the available information, the HMS Defender was passing without threatening peace and security in the area and thus its activities do not fall under the conventional definition of activities that are considered prejudicial to the peace, good order, and security. Thus, the warship could enjoy the right of the innocent passage under international law of the seas.

Even though the international law of belligerent occupation does not provide the explicit possibility to restrict the application of the maritime law in occupied areas, it still allows the occupant to legislate or to take all measures which are necessary for public order, military needs of the occupation army or welfare of the local population. Therefore, it was still possible to impose limitations on the application of UNCLOS if it served any of the above-mentioned grounds. Russia’s claim is based on neither of these reasons because the HMS Defender never showed any intentions to pose danger to either public order, the welfare of the local population or the security of Russia’s navy. Therefore, pursuing a British warship in Crimean waters was justified neither under the law of the seas nor the law of occupation.

Threat of Force

Although the incident ended up promptly without any casualties, tensions further escalated in the aftermath by statements of the officials from both sides. The British Prime Minister said that the UK does not recognise Russia’s annexation of Crimea and it was pursuing freedom of navigation in international waters. UK’s Defence Secretary stressed that The Royal Navy will always uphold international law and will not accept unlawful interference with the innocent passage and the HMS Defender would continue with planned deployment and program of visits. These statements by British officials and their defiance of Russia’s account of the incident angered Russia – the British ambassador in Moscow was summoned to the Ministry of Foreign Affairs, where she was warned that in case of repetition of this kind of ‘provocations’ all responsibility on consequences would lie on Britain. Commenting on the developments in the Black Sea, Russia’s Deputy Foreign Minister warned that Moscow would always “stand guard” over its borders by diplomatic, political, and, if necessary, military means and that they can bomb not only in the direction but also on target if others do not understand. On journalist’s question whether during this maritime tension between Russian and British navy the world stood on the verge of the World War III, Russia’s President Putin said it did not seem so, while he denounced the HMS Defender’s sail through Crimean territorial waters, labelling the move as ‘provocation’ with the military objectives to gather intelligence about Russian fleet. Furthermore, the Kremlin representative threatened that Russia will take all reactive measures for every single violation of its territorial waters by the British warships. Another high official of Moscow described Britain’s behavior and its subsequent reaction to the incident as ‘bewildering’, saying that similar actions will be thwarted with the harshest methods in future by Russia.

This militaristic rhetoric raises important legal questions on the legality of Russia’s actions and whether warning of possible military strikes against British warships potentially sailing through Crimean waters  constitutes the threat of  force, which is outlawed under the UN Charter (art.2.4). Commentaries (p.218) to the Charter stress that only a threat, having coercive intent and directed towards a specific reaction or behaviour on the part of the target State is unlawful under the terms of Art. 2.4. Furthermore, the ICJ in the Nuclear Weapons Advisory Opinion (para.47) held that if the envisaged use of force is itself unlawful, the stated readiness to use it would be a threat prohibited under international law. As mentioned above, the British warship passed peacefully without posing threat to the security of the coastal state (Ukraine) or occupant state (Russia). The warship was exercising the right to innocent passage without violating international law. The mere fact that it appeared in the close vicinity of Crimea and thus entered the area, which Russia claims as its territorial sea, is not sufficient to consider the passage as prejudicial to peace and security. Russia jeopardised freedom of navigation and the right of innocent passage by shadowing the British warship with navy and military aircrafts and even firing warning shots and further threatening with the use of military force in case of recurrence. That said, since Russia’s indication of its readiness to use force can be qualified as unlawful, it follows that the threat of force voiced by Russian officials and directed to a specific behaviour by Britain, can also be considered illegal.

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Paula Silfverstolpe says

August 12, 2021

Dear Saba, than you for an excellent article. I believe one piece is missing in the analysis. On 14 April 2021 Russia issued a Notice to Mariners (NOTAM) which suspended the right of innocent passage to foreign warships in three areas around Crimea from April 21 to October 31, 2021. Suspension of innocent passage by the coastal state is allowed under certain circumstances pursuant to article 25(3) of UNCLOS. Arguably, an Occupying Power could also suspend innocent passage under article 43 of the Hague Regulations.

When HMS Defender briefly crossed into one of those areas around the Crimean Peninsula a Russian response was triggered. I would be interested in your view regarding the right of an occupying power to suspend innocent passage, as Russia did in this case, and the use force by the occupying power, if necessary and proportionate, to prevent entry into such restricted zones.

Here is an interesting article on this topic:

https://gpil.jura.uni-bonn.de/2021/05/germany-mistakenly-considers-russias-restrictions-on-navigation-of-warships-in-the-black-sea-to-be-very-problematic-and-in-part-contrary-to-international-law/

Thanks,

Paula Silfverstolpe