Experts: British HMS Defender Stunt Near Crimea Was Patently Illegal

By Bernhard, editor of Moon of Alabama

On Wednesday the British Royal Navy destroyer HMS Defender staged a provocation by sailing through territorial waters of Crimea. The British government, which had explicitly instructed the destroyer to do so, insists that the move was legal:

The British government signed off on a plan to sail a battleship through disputed waters off the coast of Crimea, over the objections of its foreign policy chief, according to bombshell new claims in London's Telegraph newspaper.

In a report released on Thursday night, the outlet – known to be close to Prime Minister Boris Johnson – alleged that Foreign Secretary Dominic Raab had "raised concerns" about the mission, proposed by defense chiefs, in advance. He was reportedly worried that the move could hand a potential victory to Moscow.

The account of events claims that Johnson was ultimately called in to settle the dispute. The Type-45 destroyer HMS Defender was given its orders on Monday, ahead of a clash with the Russian navy and air force two days later.

The British government then lied about the incident insisting that no warning shots had been fired when the destroyer was in the relevant area. However, video material from the BBC, which had embedded with the destroyer, as well as footage from the Russian coastguard proved that to be false. The ship was warned to leave the area and warning shots were fired.

The FSB published a video of yesterday's encounter with the HMS Defender, which confirms that a Russian Project 22460 Okhotnik-class Coast Guard patrol ship did fire warning shots from its AK-630 30mm cannon. However, this occurred far behind the Defender.https://t.co/7ZbirKu50j pic.twitter.com/UTctuPGVzE

— Rob Lee (@RALee85) June 24, 2021

Russia insists that the 'innocent passage' of the warship through the relevant territorial waters was illegal.

Craig Murray, a former British diplomat who himself has negotiated several sea treaties, concurs with Russia's position:

The presence of a BBC correspondent is more than a political point. In fact it has important legal consequences. One thing that is plain is that the Defender cannot possible claim it was engaged in “innocent passage” through territorial waters, between Odessa and Georgia. Let me for now leave aside the fact that there is absolutely no necessity to pass within 12 miles of Cape Fiolent on such passage, and the designated sea lane (originally designated by Ukraine) stays just out of the territorial sea. Look at the definition of innocent passage in Article 19 of the UN Convention on the Law of the Sea:
...
Very plainly this was not innocent passage. It was certainly 2 (d) an act of propaganda, and equally certainly 2 (c), an exercise in collecting information on military defences. I would argue it is also 2 (a), a threat of force.

So far as I can establish, the British are not claiming they were engaged in innocent passage, which is plainly nonsense, but that they were entering territorial waters off Crimea at the invitation of the government of Ukraine, and that they regard Crimea as the territory of Ukraine and Crimean territorial waters as Ukrainian territorial waters.

Murray goes on to explain why that is an unsound argument but he misses an important legal point.

During the Ukrainian-Russian standoff in April this year both sides amassed troops near their border. Russia then introduced special restrictions on navigation of warships in parts of the Black Sea. In a Notice to Mariners Russia designated the areas around Crimea depicted below as forbidden for any foreign warship. No 'innocent passage' through these is allowed. The restrictions will be valid until October this year but may be extended.

It was through one of these zones, which are next to sensitive military sites on land, that the British destroyer passed.

The British government insists that Crimea still belongs to the Ukraine and that the Ukraine had allowed it to pass through its territorial waters. It calls Russia's presence on Crimea an occupation. It supports the view of the Ukrainian government which insists that it alone can regulate the water areas around Crimea.

That view is wrong.

Prof. Dr. Stefan Talmon LL.M. M.A is the Director at the Institute of Public International Law at the University of Bonn. On May 4 he had published a legal opinion on the legality of the zones Russia had declared. On the above point he noted (emph. added):

Ukraine protested the Russian announcement, inter alia, on the ground that Russia was not the “coastal State” with regard to the territorial sea surrounding the “temporarily occupied territory of the Autonomous Republic of Crimea and the city of Sevastopol.” According to the Ukrainian Government:

“These actions of the Russian Federation constitute another attempt to usurp Ukraine’s sovereign rights of a coastal state in violation of the norms and principles of international law, as Ukraine is in fact endowed with the right to regulate the navigation in these water areas of the Black Sea.”

The UN General Assembly condemned “the ongoing temporary occupation” of Crimea and urged the Russian Federation to “uphold all of its obligations under applicable international law as an occupying Power”. This raises the question of whether as an “occupying Power” the Russian Federation could temporarily suspend the innocent passage of foreign ships in the territorial sea of the occupied Crimean Peninsula. Occupation also extends to the occupied State’s territorial waters (internal waters and territorial sea) to the extent that effective control is established over the adjacent land territory. Under the law of armed conflict, the occupant may take measures to ensure “public order and safety” in the occupied territory, including its territorial waters. In particular, the occupying Power may take measures “to ensure the security of the Occupying Power, of the members and property of the occupying forces or administration, and likewise of the establishments and lines of communication used by them.” Under the laws of armed conflict, the occupying power has the right to suspend in all or in parts of the territorial sea of the occupied territory the innocent passage of foreign ships, if it considers it necessary for imperative reasons of security.

In determining whether such suspension is necessary, the occupying power enjoys a wide margin of discretion.

Even if Britain does not recognize that Crimea is Russian it still has to recognize that Russia, as the 'occupying power,' can regulate the traffic in the territorial waters of Crimea:

During the ongoing armed conflict between Russia and Ukraine the law of the sea is at least partly supplanted by the law of armed conflict and, in particular, the law of occupation. Germany and other States cannot consider Russia to be an occupying Power in Crimea and, at the same time, deny it the rights that come with that status.

There is precedence for Russia's move of which the British government is likely well aware of:

[O]n 2 May 2004, the United States, acting as an occupying Power in Iraq, issued a notice to mariners establishing with immediate effect a 2,000-metre exclusion zone around the Khawr Al’Amaya and Al Basra oil terminals in the Persian Gulf and temporarily suspended “the right of innocent passage […] in accordance with international law around [these] oil terminals within Iraqi territorial waters.”

That zone was continued until at least February 2006.

Prof. Talmon discusses various other arguments against Russia's declared zones. He finds that the zones are legal under all aspects of international law.

Ukraine has no right to interfere in the restrictions that Russia, which in the Ukrainian and British view is an occupying power, has posed on the territorial waters of Crimea. Russia has suspended the 'right of innocent passage' in those zones and the British destroyer acted illegally when it passed through them.

Professor Talmon published his legal analysis seven weeks before the HMS Defender incident. It is thus free from any undue influence.

Moreover Talmon is also a Supernumerary Fellow of St. Anne’s College, Oxford, where he previously taught, and practices as a Barrister from Twenty Essex, London.

The British government would be well advised to consult with him.

It otherwise might quite legally lose a warship to Russian missiles when it orders a repetition of Wednesday's patently illegal stunt.

Posted by b on June 25, 2021 at 14:29 UTC | Permalink

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