Over the last month we witnessed a massive Russian mobilization on the Ukrainian borders. The exact purpose of the show of force is still uncertain, but the immediate risk of war seems to be over as most of the soldiers are now back in their barracks. However, the closed areas in the Black Sea that Russia established remain in place.
There has been much confusion as to what exactly it is that Russia is doing with these zones. For example there are reports like this one saying that the Kerch Strait is closed for Ukrainian vessels, while others say that the Kerch Strait will stay open. So I thought it would be useful to look into the question.
What is Russia doing?
Russia has announced that from 24 April until 31 October 2021, the right to innocent passage of Russian territorial waters is suspended for foreign warships and other state ships in three defined zones in the Black Sea. The coordinates are listed on page 28 in the Russian navigational warnings 17/21.
I have marked the three zones in the image below. As can be seen, one of the zones covers the southern approaches to the Kerch Strait. This means that in practical terms the Kerch Strait is closed for Ukrainian warships and other government ships. The two other zones cover the westernmost and southernmost areas of Crimea.
Innocent passage is defined in the United Nations Convention on the Law of the Sea (UNCLOS) articles 17-19. The gist is that all ships have the right to navigation through the territorial sea of another state. The passage must take place in a continuous and expeditious manner, and it is not allowed to engage in activities other than those related to the passage such as weapons practice or intelligence collection.
Around Crimea, it is only possible to conduct passage that confines to the definition in UNCLOS in the three places where Russia has now forbidden it. In other words, they have prohibited innocent passage for foreign warships and government vessels in all the areas around Crimea where it is relevant.
How has Russia explained it?
Russia hasn’t provided any meaningful explanation. RIA Novosti published an article titled “In Crimea they explained the closing of parts of the Black Sea”. However, the explanation given is essentially that everyone should just stop speculating about explanations, because Russia has the right to do whatever they want in their own territorial waters. That “explanation” leaves more questions than answers because states actually don’t have the right to suspend the right to innocent passage for foreign warships.
What is it not?
Sometimes Russia closes areas of the sea and airspace due to missile drills or similar military activity. These situations have also led to discussions as to whether the purpose of the drill is really military practice, or if the point is rather the harassment of one’s neighbors. This is not what’s going on here.
The closing of an area due to military exercises is justified with references to safety precautions, and the area is therefore closed for all traffic. In this case, commercial traffic will still be allowed in the three zones where foreign warships and government ships cannot pass for half a year. So clearly it has nothing to do with general safety.
Technically speaking, the areas are also not totally out of bounds for foreign warships. They cannot exercise innocent passage, but other kinds of passage should still be possible. Warships routinely request diplomatic approval from other states before conducting activities that fall beyond the scope of innocent passage such as port visits or combined exercises. Unfortunately, the diplomatic system is infamously slow, and it often takes some 8-12 weeks to get a diplomatic clearance.
Surely Russia could find ways to bury such a request in bureaucracy, so it would take even longer. But in theory, Ukraine could send a diplomatic request to move some predefined ships into or out of the Sea of Azov in a predefined timeframe in the late summer or autumn. This is perhaps the option that Russia refers to when they claim that the Kerch Strait is not closed.
What are the objections?
From a legal perspective, there are three fundamental problems with Russia’s actions. They are all substantial, and together they paint a picture of red lines being crossed. Below I will go through them one by one.
1. Crimea is not Russian
This objection is obvious. Very few countries recognize that Crimea is Russian, and therefore they also don’t recognize that the territorial sea around Crimea is Russian. Russia cannot make rules about things in Ukrainian territorial waters, and therefore the three zones don’t exist.
2. It violates the Russian-Ukrainian agreement on the Sea of Azov
The agreement between Russia and Ukraine on the Sea of Azov and the Kerch Strait went into force in 2004. It clearly states that warships and other government ships from both countries have the right to unhindered passage. For Russia to close the southern approaches to the Kerch Strait is a blatant violation of this agreement.
3. Russia challenges the authority of UNCLOS
As explained above, the whole idea of suspending the right to innocent passage for certain ships is against UNCLOS. Even if other states were to entertain the notion that Russia has authority in the sea around Crimea, this is an outrageous claim.
It is a foundational pillar of the international maritime order that states follow UNCLOS, and with these actions Russia challenges the inner workings of the global system. Fundamentally, it disputes the validity of international law in a similar fashion as China does in the South China Sea.
Sure, the establishment of these three zones around Crimea is a small step, but if this behavior is accepted now, what’s holding Russia back from taking it a step further next time? There are many other rules in UNCLOS that Russia could suspend, or they could do the same in other areas like the Baltic Sea or the Arctic. This is a ride the Western states do not want to be on.
What’s going to happen?
It will be extremely difficult for Ukraine not to violate the rules that Russia has established. Both conceptually and practically it is unacceptable that the Kerch Strait is closed. In 2018 a similar situation led to Ukraine challenging Russia’s determination in what has become known as the Kerch Strait incident. Then, Russia seized three Ukrainian naval ships and imprisoned the crews for almost a year. A rerun of those events seems possible now. The basic choice for Ukraine is to either accept humiliation or to challenge Russia again.
For the West, the question is whether to conduct freedom of navigation operations (FONOPS) in Russia’s self-proclaimed prohibited zones. The Royal Navy has announced that two British frigates will enter the Black Sea in May in a show of solidarity with Ukraine. Frankly, I think NATO uses the FONOPS moniker too often against Russia in situations where it is hard to see a realt threat against the freedom of navigation. But here is a case where it is genuinely warranted. It will be interesting to see if the Royal Navy is ready to let their frigates pass through one of Russia’s declared zones around Crimea.