Since HMS Defender’s recent freedom of navigation operation close to Crimea, there has been an interesting public debate about the legal aspects of innocent passage. My attention has been drawn to this article by professor Stefan Talmon where he makes the case that Russia’s suspension of this right in certain areas in the Black Sea is not illegal. Russia has suspended the right to innocent passage for foreign warships and government ships in three zones around Crimea between 24 April and 31 October 2021.
I have been extremely critical against Russia on this point on several occasions. I basically share the same viewpoint as expressed here by professor Raul Pedrozo that Russia’s actions are a violation of UNCLOS and therefore illegal.
Talmon does what Russia has not done: Tries to explain how Russia’s actions could be legal. This point of view is worth considering. When it comes to the area off Sevastopol where HMS Defender recently conducted FONOPS and triggered Russian warning shots, his argument is essentially twofold:
1) The laws of armed conflict trump UNCLOS
Talmon argues that it doesn’t matter if Russia’s occupation of Crimea is illegal. Russia is in control of Crimea, and as long as there is an armed conflict, the laws of armed conflict grant certain rights to the occupying power:
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.
His argument is that the West can acknowledge the legality of Russia’s security zones around Crimea on the basis that it is an occupying power without giving up the position that the area is rightfully Ukrainian.
A significant weakness in Talmon’s argument is that the prohibition zones hardly play any role for the military security of Crimea. He mentions that “[in] determining whether such suspension is necessary, the occupying power enjoys a wide margin of discretion”. But still, you would expect the occupying power to somehow justify the need for a security zone. You cannot just invent annoying rules for the sake of it.
The Ukrainian navy certainly has nothing that can challenge the Russian navy, and the presence of Western warships is limited to very few units by the Montreux convention. In short, there is no naval force in the Black Sea that can threaten the security of Crimea.
As can be seen in the chart, the area around Sevastopol is heavily regulated with traffic separation schemes. A Ukrainian or Western warship navigating in such a lane poses no threat at all. Even if the West were to attack Crimea from the sea (which they obviously are not), such an attack would take place from distances much greater than the width of the territorial waters – possibly hundreds of miles. It is totally redundant to discuss moving warships from 10 miles to 12 miles from the coast. In other words, however much discretion the occupying power has to determine whether a suspension is necessary, these prohibition zones are clearly just designed to be obnoxious.
2) Article 25(3) of UNCLOS gives the right to suspend innocent passage in certain areas for security reasons
Talmon’s second argument is that article 25(3) of UNCLOS allows states to suspend temporarily the right to innocent passage in certain areas if it is essential for the protection of its security. The argument becomes semantic, so here is the full wording of article 25(3):
3. The coastal State may, without discrimination in form or in fact among foreign ships, 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.
The essential part of Talmon’s interpretation is this (my markup with bold):
The suspension of innocent passage applied to “foreign warships and other government ships”; that is, it applied equally to all States. Article 25(3) UNCLOS prohibits discrimination between States, not between types of ships. In particular, it does not require equal treatment of foreign government and commercial vessels. The suspension applied to three specified areas of the territorial sea of the Crimea Peninsula which covered less than 20% of its coastline.
This is an interesting viewpoint. It’s puzzling to me that the words “without discrimination in form or in fact among foreign ships” can be understood in a way where certain types of discrimination are ok.
Talmon’s point that the areas only cover less than 20 percent of the Crimean coastline is silly. The remaining 80 percent is geographically located such that innocent passage is impossible. The suspension in practice covers 100 percent of the Crimean coastline.
It appears to me that Talmon bends over backwards in order to make Russia’s case. There is substantial cherry-picking of arguments. It is particularly far-fetched that the phrase “without discrimination in form or in fact” is supposed to mean that certain types of discrimination are permissible.
He uses historical examples of temporary suspensions of innocent passage to show precedent, but the examples do not seem to support the case that states can discriminate between different types of ships. Also, he doesn’t consider the fact that government ships can also be commercial. Many governments operate commercial vessels, and surely Talmon doesn’t argue that article 25(3) allows discrimination on the basis of ship ownership?
Several of Talmon’s arguments also require us to acknowledge that the laws of armed conflict apply to a case where Russia denies its involvement in an armed conflict.
It’s therefore understandable that Russia hasn’t shown any desire to explain the legal rationale behind their interpretation of innocent passage around Crimea. The arguments are not particularly good, and they would require a range of self-contradictions regarding Russia’s role in the conflict with Ukraine. It’s much easier if they can get a point across through tough talk and brinksmanship.
And that’s exactly why the West should be smarter about it’s messaging regarding international law. We should stop playing into Russia’s hands by nurturing the narrative that the whole thing depends on whether one sees Crimea as Ukrainian or Russian. That gives them an easy way out. Instead we should push different buttons, so that Lavrov himself would need to get on the big stage to explain Talmon’s arguments.