Sailing into Black Sea trouble: the right of innocent passage (with some caveats of course)

HMS Defender’s highly visible transit past the Crimea coastline, off Cape Fiolent, is the latest bout of heated tensions in the Black Sea and in this article, I’d like to present some aspects relating to UNCLOS and consider some interesting issues that have been revealed following the incident.

The UK sailed a warship, HMS Defender, inside 12nm territorial waters near to the main Russian naval base of Sevastopol. The location of the event was subsequently corroborated by satellite imagery and AIS data. Also nearby was the Dutch warship HHLMS ‘Evertsen’, (not in territorial waters apparently), according to radio communications. Still in the Black Sea at the was the US Navy destroyer, ‘USS Laboon’, (which has now since left the Black Sea).

The incident was quickly escalated via the media and on social media. Interestingly, a BBC journalist crew and a Daily Mail reporter were on board the vessel and the BCC showed footage and gave accounts of the events, (more on this later).

The Russian MoD was VERY quick in releasing information, its version of events, which ultimately caused a flurry of lurid headlines, given the reported spectacular nature of actions, including the firing of warning shots, taken to get the Royal Navy destroyer to leave territorial waters. Although the journalist onboard reported that the shots were out of range, the UK MoD denied that this happened, (see tweet below).

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The whole package of information needs to be treated with a pinch of salt and to emphasise that there some kernels of truth are hidden away in the mass of posts, articles and reports.

Part 2 — dates and events

Some more context with regards to the political dynamics at play, needs to be added as well, given that:

  1. Self-declared adversarial state, (part of current state policy) and NATO member, who consider Russia as a near-peer adversary.
  2. 22 June: The Nazi operation to invade the USSR started in 1941.
  3. 22 June:   Signing of joint UK-Ukrainian military agreement onboard HMS Defender in Odessa on military.
  4. Ongoing NATO activities and exercises in the region, (Sea Defender 21 just finished.
  5.  Large-scale ‘Sea Breeze 21’ soon to happen, (28 June — 10 July). The U.S. lead annual will be headed by Ukraine will lead 32 countries in a naval exercise including Israel, Brasil, Japan and South Korea, (personnel, aircraft or ships);
  6.  Annual MCIS— ongoing in Moscow.
  7. Signing end of May of a Russia and UK protocol updating the bilateral IncSea agreement.

Durable and worthwhile, (long-game) diplomacy got kicked into touch, several times over, considering some of the events and dates listed above, (22 June in particular, as it is a highly significant day, so the timing could be viewed in a jaundiced manner by Russia).

A very poorly thought-out stunt pulled by the UK government, that could have easily backfired, just over a pretext of demonstrating the UK’s policy on non-recognition of Crimea as Russian territory, via several nautical miles. The Russian Navy head called the incident: ” a crude, ops-ended provocation”.

Back to the past and present, one of naval gunboat ‘diplomacy’ to score futile points in the “rule-based international order”. This one incident has temporarily but very visibly overshadowed diplomat events such as MSC or the post work after the Biden-Putin Summit, as it once more shows the disparity between rhetoric and actions on the grounds.  Certainly, Washington would have known of the UK intentions relating to the passage of HMS Defender, (see later).

Part 2 – UNCLOS aspects

It isn’t quite an open and shut cases of innocent passage transit, as some would like to portray and leave like that.  The transit was vigorously challenged by the Russian authorities, more intensely than the last time that a British destroyer, HMS Dragon tried in the same area back in autumn 2020, (but without the attendant intense media storm). There are some factors to consider that are different to HMS Dragon’s voyage, (more later), which have a bearing on how this incident developed in the way it did.

There are several provisions in UNCLOS that are specific to innocent passage, (Article 17 outlines the right and Article 18 defines it). In a nutshell, naval ships as well as commercial ships may be permitted “innocent passage”, as a key right under UNCLOS, but there is a list of caveats attached.  As always with UNCLOS, there’s more than what first meets the eye.

On the face of it, HMS Defender was proceeding as per the right and definition under UNCLOS. Western experts, media outlets and politicians leave like that. The consensus generally is on ‘innocent passage” as a right enshrined in UNCLOS, as long it genuinely innocent. Of course, a coastal state can respond or resort to this if innocent passage is deemed not to fully meet the criteria of innocent passage.  Zooming in on Article 19 (2), which outlines the situations when a coastal state can act:

  • (a) any threat or use of force against the sovereignty, territorial integrity or political independence of the coastal State, or in any other manner in violation of the principles of international law embodied in the Charter of the United Nations;
  • (b) any exercise or practice with weapons of any kind;
  • (c) any act aimed at collecting information to the prejudice of the defence or security of the coastal State;  (x)
  • (d) any act of propaganda aimed at affecting the defence or security of the coastal State; (x)
  • (e) the launching, landing or taking on board of any aircraft;
  • (f) the launching, landing or taking on board of any military device;
  •  (g) the loading or unloading of any commodity, currency or person contrary to the customs, fiscal, immigration or sanitary laws and regulations of the coastal State;
  • (h) any act of willful and serious pollution contrary to this Convention;
  • (i) any fishing activities;
  • (j) the carrying out of research or survey activities;
  • (k)  any act aimed at interfering with any systems of communication or any other facilities or installations of the coastal State; (x)
  • (l) any other activity not having a direct bearing on passage. (x)

(x) is my denotation — possibility of where the coastal state could deem the passage of HMS Defender as being non-innocent). Explanations for this are given later on.

It has to be noted that Russia took the steps as contained in Article 25, to prevent and force the warship to leave territorial waters. Additionally, a number of examples are outlined later on in this article that highlight the potential categories that fall under a non-innocent passage, as also noted under Article 30 of UNCLOS.

Bearing in mind that a combination of Russian Coastguard and naval ships were shadowing the two NATO warships that had left Odessa in Ukraine, movements and activities would have been duly logged by the escorting ships.

Part 3 — Certain aspects

Quick run through of some of the issues to consider:

a. Gunnery exercises (as initially mentioned in the radio comms) taking place in nearby area, (seen as an exclusive pretext some Western Think Tank experts and pundits), but the publication and the radio comms between the Russian coastguard and HMS Defender, indicate the application of Article 24 (2)

Article 24 (2) Article 24 (2)

Taking note of this part of Article 25: “suspend temporarily in specified areas of its territorial sea the innocent passage of foreign ships if such suspension is essential for the protection of its security, including weapons exercises. Such suspension shall take effect only after having been duly published.”

Article 25(3)

Article 25(3)

(Yet the referred published  NAVAREA expired on 21 June).

The closed areas were mentioned in many articles when they were first published back in April 2021, the Kommersant published an article including a map of these areas:

Kommersant

 Source: Kommersant

Back in April 2021, a coastal warning No 152/21 was issued “on the temporary suspension of the right of innocent passage for foreign warships and state-owned vessels” for the Black Sea near the entrance to the Kerchenska Strait and around the southern coast of the Crimean Peninsula during the period from April 24 to 31 October 2021.  This was followed by another warning No 0392/21.

Effectively, Russia created an obstacle and limitations on only navigation of warships and government-owned vessels. (The aspect that the think tank experts and pundits miss completely). To note, that this is situation of suspending the right to innocent passage is provided under international law, not you would hear much about it, under the status of “occupying power”, irrespective of whether Russia is the ‘coastal state’ or not. This status is confirmed by the UN Assembly Resolution 68/292, (For further details – legal opinion provided by Stefan Tamlon on Russia’s restrictions of warships in the Black Sea). This maritime precedent was set by the U.S. in 2004 in Iraq. Thus, the current administration of a territory is a distinct element as to the question whether Russia has lawfully gained Crimea or not.

b. No prior notification or authorisation for transit. — Contentious  and thorny issue all round. Not going down any of those rabbit holes now.

c. Initial disregard of multiple radio requests to change course, followed by refusal to comply with directions. (Radio comms) (Just that alone would suffice getting an Article 30 situation requirement to “leave the territorial sea immediately’).

Article 30 Article 30

The catch-all for the coastal state to use: “any other activity not having a direct bearing on passage. “.

One thing is for sure, Russia has not stated publicly the reasons why it took issue to the transit of HMS Defender, under UNCLOS.

d. The UK stated that HMS Defender was passing through Ukrainian waters in a commonly used and internationally recognised transit route.  

 

There is a Traffic Separation Scheme (TSS) in area, (internationally recognised by the IMO), so this is what is being referred to and referred to in Article 25 of UNCLOS.  This is also mentioned in the BBC report:

 Screenshot of BBC report @0:56sec https://www.bbc.com/news/world-europe-57583363

However, the use of a TSS as part of an innocent passage is somewhat made irrelevant given the BBC report that consider the ship making a “deliberate move to make a point to Russia.” Not exactly innocent passage in the cited context given.  (See also point 2 on mode of operation below to see how the concept of using an internationally or legally (as the BBC reported) recognised transit route got mangled and made a farce of. This is not the same as transits through the Dover Straits, (straits is the keyword here and there is a huge difference in re UNCLOS rules).

A TSS is used to regulate the traffic at busy, confined waterways or around capes, notably for commercial ships, and the one off Folient Cape partly runs just inside the 12 NM. Yet, via the Coastal Warnings, the TSS from Cape Khersones to Cape Aitodor was out of bounds to NATO and other foreign warships.  HMS Defender duly ignored these yet deliberately chose to voluntarily comply with an IMO-approved routing for a short period of time that happens to skirt inside the 12NM, to validate its ‘innocent passage” claim under Article 22 of UNCLOS. Warships can voluntarily comply with a TSS in the same way as they can comply with AIS requirements.

According to the Russian coastguard video screenshot of the radar screen, the two ships’ tracks and projected course are clearly visible.

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Strange indeed, that HNMS Evertsen managed not to need to pass through the TSS in the same way as HMS Defender, in order to sail from Ukraine to Georgia.

Part 4 -Things of interest to note

  1. Media

The presence of a BBC and Daily Mail journalist ought not be ignored, one it reaffirms that the BBC  is the state broadcaster, any information, reporting would be deliberate slanted. As such, the Russian military provocation will be recorded and reported.  It does make me wonder if the ‘innocent passage’ wasn’t that innocent, if the BBC gets a spectacular scoop, which could be seen as being as an “act of propaganda aimed at affecting the defence or security of the coastal State” under UNCLOS. (The box has now been ticked for the next incursion by a British warship) — handy to note response by journalist that it is common to have journalists on ships when in the Black Sea. Nice for the UK MoD to have handily arranged press coverage but also at the same time, clumsily bolstered a number of legal implications for any future FONOP challenge.

“Our correspondent, who had been invited on board the ship before the incident happened, saw more than 20 aircraft overhead and two Russian coastguard boats which at times were just 100m (328ft) away.”

The BBC reporter outlines the events in an article:

Source: https://www.bbc.com/news/world-europe-57583363

Cringeworthy headline from the Daily Mail

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(Notice the cannon shots, those warning shots fired at a very safe distance & elevation by the Russian Coastguard, which the UK MoD and Pentagon spokesman claim as Russian lies).

2. Mode of operation

The first thing to stand out is this part mentioned by the BBC journalist:

“The crew were already at action stations as they approached the southern tip of Russian-occupied Crimea. Weapons systems on board the Royal Navy destroyer had already been loaded.”

“Already at Action Stations”, not a normal mode of operations for a naval ship on an ‘innocent-passage, add in the fact that weapons systems had been loaded, (something more than likely to have been noticed by the Russian ships shadowing the destroyer). Double ‘no’ normal mode of operating a warship, jeopardizing and likely voiding its ‘innocent passage” by having carried out these actions alone.

Normal mode of operation is the basis for an innocent passage, otherwise it is likely fall under one of the categories listed in Article 19(2).

“As they approached the southern tip”, meaning as they entered the TSS parallel  to the coast, (see note about TSS above) on a “routine transit” at action stations, (explanation). (See 0:13s in BBC report, “hands to action stations”).

Passage can only be declared to be innocent so long as it is not prejudicial to the peace, good order or security of the coastal State.  Is it peaceful, is it in good order for a warship to transit with weapons loaded and at action stations? No, not in my book and if an incident like this happened with another non-US or non-NATO vessel, the would be absolute howling from the rafters on the negative behaviour and activities.

Another important aspect to consider re Article 19 is: “any act aimed at collecting information to the prejudice of the defence or security of the coastal State;”.  There is no information in open sources or media to suggest that this was being done.  However, if the crew were already at ‘action stations’, then part of this is collect information on military activities in the area, at sea and in the air, so it could be construed that this was indeed happening.  Certainly not “normal mode of operation” either.

Whether it was prejudicial to the coastal State, that’s open to debate, but the timing and location do not do anything to reduce tensions or improve security conditions. Another element to consider is the deployment of an US intelligence gathering military aircraft in the area, certainly collecting information on the Russian activities and response at the same time.   If HMS Defender was really on an innocent passage, then it is just coincidental that the US military is flying in the area? Not to mention what HNLMS ‘Evertsen’ could provide in support on the other side of the 12NM limit if in area, (judging by Russian radio comms, the ship was in the area and the wording used by the RN watchkeeper, “ both of our vessels” 0:55s radio comms on video).

I’m not going to discuss the maritime security aspect as viewed by Russia to the incursion of an UK warship, or the relationship of the UK and Ukraine, as I presume the reader will be aware of the hostile nature and geopolitical environment anyway.

The mission planners and commanding officer of HMS Defender knew what they were doing,  by carrying out a mission, of a nature as to affect the security or welfare of the coastal state, to activate a military response, by carrying actions coming from a country that has Russia as adversarial state in its military doctrine, sailing under 12nm, from the main Russian Black Sea Fleet base.

Hubris and provocation.

Part 5 — Conclusion

There has been numerous controversial debate and international disputes relates to the innocent passage of warships since the early days of UNCLOS, the incident will be just one in the latest of events, fondly termed as a FONOPs by Washington.

The bottom line that the right of “innocent passage” will be invariably subject to the interpretation and application relevant to the national law adopted by the coastal state.  The issue that blurs this is the recognition of sovereignty as a coastal state, (Ukrainian rather than Russian in this area). However, since there are so many nuances involved, it is too complex to outline it all here.

Proving a point based on selected application of international law norms, that suit the narrative and agenda, rather than to maintain or defuse overall tensions, was the objective of the Royal Navy ship, sabre-rattling and hubris well demonstrated. HMS Defender stated “mission confidence and not provocative”.  No attempt to keep tensions at bay or to keep the door ajar for security detente. But the shots to do this were called from Whitehall.

To say that the British warship had international law on its side is ridiculous, by stating that it was in recognised international seaway but also at action stations, and while US and Dutch military units are operating in the area, is stretching the understanding of the concept of ‘innocent passage”. That’s just from the glimpse of information available in the public domain, but the story of the moral superiority of a ship on ‘innocent passage” is in tatters. This particular incident will undoubtedly set the baseline for any future challenges of this kind in the Black Sea. More trouble on the horizon is forecast for the next NATO warship.

by Nat South Via http://thesaker.is/sailing-into-black-sea-trouble-the-right-of-innocent-passage-with-some-caveats-of-course/