Russian forces oppose the UK Navy’s Freedom of Navigation Operation off Crimea

Pulses raced in the British 8,500-tonne destroyer HMS Defender two days ago as she was buzzed by Russian fast jets (of unknown designation) off Sevastopol. Moscow promptly claimed that Defender was trespassing in Russian Territorial Waters and refusing to follow Russian orders, while the UK’s Ministry of Defence briefed a different narrative but failed to post a formal statement either on its own website or via the Minister in Parliament. At the time of writing the MoD’s website remains silent on the episode.

Before we look at what happened it is necessary first to understand the international law governing access to a state’s Territorial Waters, which extend 12 nautical miles (22.2 km) from a defined baseline, usually the adjacent shore.

The right of Innocent Passage

All ships of any state, crucially including warships and submarines, have a free and irreversible right under International Law to make “innocent passage” through the Territorial Waters of any state. This right is not trammelled by the need to ask permission or give notice, but is constrained by connected obligations. To be “innocent” a passage must be direct (from point a to point b) and expeditious (so at a reasonable speed of advance). During an Innocent Passage a warship must not transmit on fire control radars or on sonars, conduct any military-related exercises, aim or direct any weapons, conduct any flying operations or, in general, do anything “military”. In the case of a submarine, innocent passage must be conducted surfaced.

There is no need, in this case, to consider or debate whose waters these were. Innocent Passage applies equally to Ukrainian Territorial Waters as to Russian, so wherever one stands on the legal status of Crimea (illegally occupied by Russia, or now part of the Russian State by a free act of self-determination), Defender’s right of Innocent Passage is unarguable.

The passage concerned was part of Defender’s route from a port visit to Odesa to another port visit in Georgia. Examination of the Black Sea chart shows that the fastest route between these points does indeed pass through the IMO’s Traffic Separation Scheme off Sevastopol and inside Crimea’s Territorial Waters (whoever owns Crimea – that makes no difference). The nature of the route is clearly an “innocent” passage from point a to point b. Thus far neither Russia nor Ukraine would have any reason to object.

 

Not so innocent in this case?

Clearly, though, Defender’s route was not chosen for entirely innocent purposes. The UK and its Nato allies do not recognise the transfer of Crimea to Russia, so the passage was obviously intended to provoke a reaction from Moscow, presumably with the intention of placing Moscow’s illegal occupation in the centre of the global news agenda for a few days. This is not just speculation. With the benefit of a BBC camera crew and correspondent aboard Defender we have an unusually well-informed picture of the events that followed.

The BBC’s footage shows that Defender went to Action Stations on leaving Odesa, with the words “this is not a drill” clearly heard over the ship’s main broadcast (her internal loudspeaker announcement system). From Odesa to her first entry into Crimean Territorial Waters Defender had 90 nautical miles (167 km) to sail – three hours at her maximum speed. From there to the Sevastopol Traffic Separation Scheme is another 60 miles (111 km), or two hours. With a Federal Russian Navy frigate on her quarter Moscow had her position, course and speed in front of it at all times, and even Defender’s crew, interviewed on the BBC, have confirmed that she remained at Action Stations after entering Crimean Territorial Waters.

 

Russian coastguard takes on Defender

At a point in time not revealed by the BBC narrative a lightly armed 600-tonne Rubin-class Russian coastguard cutter closed Defender’s port side, threatening a collision – the naval equivalent of shoulder-shoving. Defender appears to have maintained her course and speed, causing the coastguard ship to veer away (a good idea given the disparity in displacements). The BBC film clip released on youtube this morning reveals a Russian officer (presumably aboard the coastguard cutter) threatening to open fire on Defender if she proceeded into Crimean Territorial Waters – an illegal threat under International Law if the passage was indeed Innocent. The threat was followed by shots actually being fired, but by then the cutter was visibly half a dozen miles distant, and there is no evidence of the direction in which those shots were aimed. At that range, even if they had been aimed at Defender they would have splashed at least two miles short of the British warship.

At some point after this (we don’t know how long) Defender was “buzzed” by at least two Russian Air Force fast jets. This manoeuvre is calculated to inflict a “brown trouser” moment on the bridge crew of a warship (who are the only people able to see outside her), as 20 tonnes of aircraft approaches at eye level and 500 knots, only to pull up and overfly a second or two before an impact from either the aircraft or 30mm cannon rounds. The act of buzzing may be intimidating, but is in no way an act of war. Defender detected approximately 20 aircraft within her radar coverage, which covers a very large area. Nothing in Russia’s reaction can be considered a hostile act in Law.

 

Russia claims a naval victory

Some time (again unreported) after this drama Defender’s track took her out of the Traffic Separation Scheme from where her course to Georgia would have quickly taken her east south-east and out of Crimean Territorial Waters.

So much for the facts (or at least those we have so far). What about the narrative? The first question is whether Defender was indeed conducting an “Innocent Passage”. The BBC film shows Defender closing up at Action Stations after leaving Odesa, and therefore (probably) a couple of hours before entering Crimean waters. Assuming that she remained at Action Stations when she crossed the border it seems likely that she was transmitting on “forbidden” radars and sonar, and therefore probably in breach of the rules of Innocent Passage. In addition, there is a nice (legal) question of whether being at Action Stations itself can possibly be consistent with the obligations of Innocent Passage. Those two ideas seem hard to reconcile, and if the answer is “no”, then the legal owners of those Territorial Waters would be fully within their rights to obstruct the passage, up to and including the use of proportionate violence, which in this case would take the form of armed boarding from rotary wing aircraft.

 

Toke, anyone?

The next question is what substances were the UK’s Minister of Defence Ben Wallace, head of the Royal Navy Admiral Sir Tony Radakin and/or Prime Minister Boris Johnson smoking when they came up with this scheme?

If the plan was to support and reinforce Ukraine’s legal ownership of Crimea it failed in both practical and propaganda terms. Practically, Defender had the right of Innocent Passage through Crimea’s waters irrespective of what state owns or claims those waters, so the passage established and could establish nothing in relation to Crimea’s legal status.

If the UK wanted to make a point about ownership of Crimea a better approach would have been to obtain an invitation from Kyiv to transit Ukrainian Territorial Waters, along with an invitation to conduct military exercises therein. That permission would be a very clear statement of the UK’s view of the ownership of Crimea, and would have authorised Defender to sail at Action Stations. If the UK had announced either one of those alternatives (an invited passage, or an uninvited but legal passage) a week in advance then it would have been down to Moscow to object, and the debate that would have followed would have been framed by a correct and useful interpretation of International Law, with Moscow firmly in the wrong on all points.

 

Operation has the reverse of its intended effect

The passage as carried out was guaranteed to provoke a hostile reaction by Moscow, and has therefore actually succeeded in reinforcing Russia’s claim over Crimea, by demonstrating to the world that Ukraine has no capacity to guard Crimea’s Territorial Waters, while Russia does. A key legal point to remember here is that International Law is not made solely by Treaty, but can also be made by “Custom”. If the majority of the nations of the world customarily came to accept Russian ownership of Ukraine that acceptance alone has the capacity over time to legalise Russia’s occupation of Crimea. The world’s acceptance of Russia’s reaction is one more brick in that wall.

Next, since Defender was ostensibly exercising the right of Innocent Passage she was bound to pass smoothly from entry to exit. That predictable and immutable fact handed Moscow a large propaganda prize – the ability to present Defender’s exit from Crimea’s Territorial Waters as “…we drove the mighty Royal Navy from our waters with its tail between its legs” – exactly the narrative that is now playing on Russian internal news channels and on RT worldwide. Russian domestic TV is showing the UK’s Defence Attache in Moscow, a Royal Navy Captain, walking into a Russian Admiral’s office hunched like a naughty schoolboy for a dressing down. These juicy chunks of red propaganda meat are now being enthusiastically consumed by Russia’s younger voters, who are otherwise beginning to mutter that perhaps Mr Putin should move on.

 

UK participants clearly ignorant of International Law

To add injury to the insult, UK authorities from Defender’s commanding officer upwards to the Ministry of Defence were clearly completely unprepared and unbriefed to place the correct legal framework around Defender’s passage. Not one of the interviewees put up by British authorities has mentioned the key phrase “Innocent Passage”. Commander Vince Owen (CO of Defender) made the crass error, standing on his own bridge, of saying “The UK and the Royal Navy are here to maintain international water (sic), and uphold that for the global peace and security (sic).” To be fair to Commander Owen he is not employed as an international lawyer, but his statement does reveal the completely muddled thinking of the people who gave him his orders, and who do have the services of trained international lawyers in RN uniform at their beck and call in Whitehall.

The BBC’s own Diplomatic Correspondent unintentionally corroborated the MoD’s evident confusion by stating that he had been told by “UK authorities” that Defender was transiting International Waters – a blatant error. The authorities he cited he described as “the highest level of the British Government”, which probably means Prime Minister Boris Johnson – hardly a student of law of any kind, much less International Law.

 

Russia 1, UK nil

In sum, Defender’s transit has handed Mr Putin a juicy and politically nutritious plum for domestic consumption, while doing nothing either for Ukraine’s claims to Crimea in particular or for the international rules-based system as a whole.