The incident of the HMS Defender off the coast of Crimea

In late June, news reports put the European public on alert. According to the Russian Ministry of Defence, Russian forces escorted a British warship, the HMS Defender, from “its” territorial waters off Crimea. According to Russian media, shots were fired in the direction of the HMS Defender and fighter jets “buzzed” alongside the ship when she ventured about ten nautical miles off the Crimean Peninsula. Whereas the details of the incident remain contested, the show of force by Russia raises numerous questions under International Law as Saba Pipia discusses here.

According to the view of most States, Russia itself entered the territorial waters of the Ukraine when escorting the British HMS off the Crimean coast, raising the question of an innocent passage not just of the British warship but of its own vessels as well. Moreover, Russia is in breach of the general principle of non-intervention existing under customary international law. Without any justification for this, Russia itself is violating international law in regard to the Ukrainian State’s sovereign rights and the right of innocent passage of ships of all States under the law of the sea.

This blogpost addresses the implications under the Law of the Sea. It argues that the HMS Defender undertook innocent passage in the territorial waters surrounding Crimea and that the Russian harassment constitutes an infringement of the principles enshrined in the United Nations Convention on the Law of the Sea (UNCLOS). This blogpost shows why Russia’s argument that its actions were necessary to counter a provocation do not hold up under international law and constitute a smokescreen to assert its sovereign rights of the illegally annexed Crimean Peninsula. This is particularly salient as Russia likewise interfered with the passage of a Dutch ship only a few days later.

A Standoff in Crimean territorial waters

According to Russia, the HMS Defender’s venturing was “a deliberate and premeditated provocation”. Therefore, the British warship could not rely on the right to innocent passage as it did, first, not conduct a passage, and, second, even if it did, this passage was not innocent. Consequently, Russia claims its undertakings in the Crimean waters constitute a “necessary” reaction to a foreign warship’s non-innocent passage under Art. 25 UNCLOS.

While the British narrative on this incident – unsurprisingly – differs on both the facts and the law, the major question remaining concerns the legality of the incident from the perspective of  the law of the sea.

A passage under the law of the sea

The right of innocent passage, which according to Art. 17 UNCLOS “ships of all States” enjoy, allows the “vessels to navigate through the territorial sea without stopping or anchoring”, granting them navigational rights to advance global values such as trade, communication and security without violating the coastal State’s sovereign rights if complying with Arts. 18 et seq. UNCLOS.

According to Russia, the HMS Defender’s venturing was in contrast with the required “act of navigation” as it was taking part in an ongoing campaign by Western States and did not move continuously and expeditiously.

This claim is contrasted by the fact that the British warship followed an internationally recognized transit route from Odessa to Georgia. Hence, the British warship was indeed “navigating” through the seas.

Taking further into consideration that, according to the ILC (UN Doc. A/3159 (1956)), the intention behind the requirements for passage was to preclude ships from hovering, the HMS Defender’s venture was continuously and expeditiously and therefore qualifies as passage.

 A not so innocent provocation?   

However, the gist of Russia’s claim of an act of “blatant provocation” is that the UK’s passage was not innocent.

According to Art. 19(1) UNCLOS, passage is innocent “as long as it is not prejudicial to the peace, good order or security of the coastal Sate”. Art. 19(2) UNCLOS provides a list of activities that preclude a passage from being innocent. With no clear practice existing, the question whether this list is exhaustive remains disputed. Most scholars argue that the list is non-exhaustive as Art. 19(1) UNCLOS would be redundant. Further argumentation builds on the language of Art. 19(2) lit. I) UNCLOS which covers for “’any’ other activity…” and would as well be redundant if the list was considered exhaustive.

In the concrete case, the HMS Defender’s venturing seems far from “a threat or use of force” that would render her passage non-innocent under Art. 19(2) lit. a) UNCLOS. Nor does it involve acts of communication that could qualify as propaganda aimed at affecting the defense or security of the coastal State in terms of Art. 19(2) lit. d) UNCLOS.

As concerns the “other activity not having a direct bearing on passage” that may preclude a ship’s passage from being innocent according to Art. 19(2) lit. l) UNCLOS, some positive act is required for reasons of objectivity and within the context of the freedom of navigation.

Missing any positive act that is as far from navigation or passage as required by Art. 19(2) lit. l) UNCLOS, the alleged “act of provocation” could only qualify the British ship’s passage as non-innocent, if it was prejudicial to the peace, good order or security of the coastal State under Art. 19(1) UNCLOS.

For its general formulation is criticized as allowing subjective and arbitrary claims, the clause requires a narrow interpretation. While considering both the interests of the coastal States and of the ships exercising their right of innocent passage, its elements have in recent years been put into the context of preventing the proliferation of weapons of mass destruction and hindering vessels suspected to carry such weapons or related material. Combined with an even more literal reading, the question of being prejudicial to coastal States’ safety may be set into the context of third States or community interests.

Taking into consideration earlier incidents, a further requirement might be a specific intensity of an act of provocation. While such requirements open up for additional arbitrariness, the entering of a foreign ship of arguably well-known and internationally recognized sea lanes favors the conclusion of its passing innocently and in respect of both international law as well as national legislation under Art. 21 UNCLOS.

For these reasons, the HMS Defender’s passage should in principle be considered innocent.

A change on the innocence of warships?

However, the question of whether warships may at all be eligible to the right of innocent passages is among the most controversial questions under the law of the sea.

Arts. 17 et seq. UNCLOS in principle address the right of innocent passage without restricting its applicability on certain ships – as can also be taken from the heading of the subsection. Still, some argue that the requirement Art. 30 UNCLOS sets up for warships in the sense of Art. 29 UNCLOS to “comply with the laws and regulations of the coastal State” leads to restrictions of their right to innocent passage. For historic reasons and as various States continue to require prior notification or authorization of foreign warships for passing their territorial waters, some argue that this should be read as a restriction of their right to innocent passage.

Opponents to this argument point to, first, any such legislation contrasting with Art. 24(1) UNCLOS, which prohibits coastal States from imposing “requirements on foreign ships which have the practical effects of denying or impairing the right of innocent passage”. Second, they refer to the successive abandonment of such national legislation requiring notification.

Another argument can be based on the 1989 USA-USSR Joint Statement on a “Uniform Interpretation of Rules of International Law Governing Innocent Passage” (28 ILM 1444) wherein the US and the USSR explicitly award the right to innocent passage to all ships, “including warships”.

Russia claims to be a continuator state of the USSR and is widely considered as having this status. As it has not corrected the 1989 statement or issued a new one, it would be an orthodox interpretation to accept this concrete incident as the official contestation of its former position.

Lastly, the list of activities in Art. 19(2) UNCLOS that may preclude a passage from being innocent favours the idea of the applicability of the regime of innocent passage to all ships  Since most of the activities included can in fact only be fulfilled by warships, listing them would be redundant if the regime of innocent passage was not applicable to warships at all.

Overall, one may accept that the British HMS, even as a warship, conducted an innocent passage. Hence, the conditions of Art. 25(1) UNCLOS are also missing.

On the politicization and de-politicization over the right of innocent passage

The incident shows that even seven years after the illegal annexation of Crimea, Russia wants – as has been argued – “to bully the West into de facto recognizing Crimea” whereas Western States by their support show that they “keep reaffirming and reminding that Crimea has not been accepted as a fait accompli”.

What remains even more obscure is that the British narrative on the actions taken by Russia has changed for seemingly unknown reasons. First, British Media reported that as soon as the British HMS entered the territorial waters, Russia fired warning shots and even dropped bombs in her path to lead her out again of this zone. The British Government meanwhile contested these early reports, speaking only of a “gunnery exercise” with prior-warning but neither shooting nor bomb-dropping.

While Russia has been keen to demonstrate its full sovereign and effective control, the UK, by changing its narrative of what happened, follows a policy of playing down the relevance of the incident and therefore challenging the apparent success of the Russian actions.