Freedom of Provocation?

“The high seas are open to all States, whether coastal or land-locked…These freedoms shall be exercised by all States with due regard for the interests of other States in their exercise of the freedom of the high seas, and also with due regard for the rights under this Convention with respect to activities in the Area”.
Article 87, United Nations Convention on the Law of the Sea

The Lion and the Bear

June 30th, 2021.  Something High Victorian took place last week in the Black Sea.  The Old British Lion gave the Old Russian Bear a poke in the eye. Shortly after leaving the Ukrainian port of Odessa, and with Kiev’s permission, the British Type 45 destroyer HMS Defender exercised its right to freedom of navigation in waters off Crimea that Moscow now claims as Russian.  The two nuclear powers growled at each other, which was really the point, although just how many teeth were really involved, and to what extent they were bared, is disputed.  Moscow claimed that one of its aircraft dropped four bombs, albeit well in advance of HMS Defender, and that warning shots were fired by two patrol vessels.  Moscow also claimed that the Royal Navy had breached international law by entering Russian territorial waters, whilst faint hearts back in London warned of the danger of provoking Russia.  Given that virtually no state recognises Moscow’s claim to Ukrainian waters Russia seized illegally in 2014 the only possible law that comes to mind is the medieval law of conquest.  In other words, the very ‘law’ the 1982 United Nations Convention on the Law of the Sea seeks to banish. 

History also resonated.  On October 5th 1853, war broke out between Russia, on one side, and Britain, France, Turkey and, err, Sardinia on the other.  There were many complex causes of the Crimean War but for the British side the main imperative was the Machtpolitik of empire and the need to prevent Russia expanding its influence into the Black Sea Region and wider the Middle East as the Ottoman Empire declined.  The result was a bloody five year war, much of it fought in Crimea, and a lot if it fought incompetently.  During the October 1854 Battle of Balaclava the British Light Cavalry Brigade infamously charged up the wrong valley directly into massed Russian artillery.  The ghost of British incompetence past re-appeared this week when an unnamed British senior civil servant apparently left top secret ‘UK Eyes Only’ documents relating to the Defender incident at a Kent bus-stop. If true it’s enough to make one weep. At least Britain and France eventually won the Crimean War. 

Power and principle

For all the strategic theatrics last week Defender’s actions concern a fundamental principle of international law: the right to freely navigate international waters and to contest the claims of those who seize such waters by illegal means.  In that context, Defender’s actions should be seen as perhaps the first instance of the post G7 ‘community of democracies’ resisting egregious breaches of established international law by the Great Autocrats, China and Russia.  If that was indeed the intent then it was not exactly strengthened by the news that Berlin and Paris had sought to hold a summit with President Putin. The idea was quashed after several EU Member-States acted angrily to the proposal.  The Franco-German motor isn’t what it used to be? That said, in dealing with the Kremlin a Harmel-style mix of defence and dialogue is no bad thing.

The Black Sea incident could also prove to have been simply the first round of a coming strategic contest in which Beijing and Moscow use the British to send a message to the Americans. To ensure neither miscalculate the USS The Sullivans is also part of the force.  HMS Defender, along with the Dutch frigate HNLMS Evertsen had been despatched to the Black Sea from the new British Carrier Strike Group and its flagship the heavy aircraft carrier HMS Queen Elizabeth, which is now in the eastern Mediterranean. The Group is on a twenty-eight week mission to the Indian Ocean and the Far East during which port visits will be made to India, Japan, South Korea and with history again reverberating, Singapore.  The force will also exert its international navigation rights by sailing through the South China Sea which Beijing very dubiously claims as its own.  China will have watched the Defender incident very carefully and is no doubt preparing its own ‘welcome’.  The Carrier Strike Group can expect repeated Chinese attempts to penetrate the force’s air, surface, sub-surface and cyber defences.  

Nor is Moscow finished. Russia announced a snap live fire exercise off Syria during which the Kh-47M2 Kinzhalhypersonic anti-ship missile will be deployed for the first time beyond Russia’s borders on two Mig-31K (Foxhound) attack aircraft. According to Moscow they will “monitor the actions of the aircraft carrier group”.  The Kinzhal is capable of speeds of up to 12,350kph/7670mph and has a range of some 2000km/1250 miles. The Foxhounds will be supported by three Tu-22M3 Backfire strategic bombers currently deployed to the Khmeimim air base, close to the British led force.  

Cohesion and coercion

The real lesson of the Defender incident is that if Britain or any other European ally is to contest such waters with powers like Russia and China it is vital the NATO Alliance is four square behind them as part of a coherent strategy to exert (by definition) ‘legitimate’ coercion.  Yesterday, NATO Maritime Group 2 began a major exercise in the Black Sea which involves Ukraine, the US and several allies, including HMS Defender, along with 31 other allied and partner ships, 40 aircraft and some 5000 troops.  Exercise SEA BREEZE 21 is clearly designed to send a message to Moscow as well as test the Alliance’s deterrence and defence posture.  

Despatching HMS Defender on such a sensitive but important mission was an important reminder to Russia that its seizure of Crimea and its repeated incursions into the air and sea space of NATO allies will be contested.  In a sense, Defender was giving the Russians a taste of their own vodka-laced medicine and that fact that it was the White Ensign in the Black Sea will at least have given Moscow pause for thought.  This is important because during August and September Russia will conduct the huge Zapad military exercise and, contrary to Moscow’s claims to have stood down, much of the 100,000 strong force that threatened Ukraine in March and April has not been withdrawn.  

Freedom of provocation?

On April 23rd, 1937 in the midst of the Spanish Civil War three British freighters, the MacGregor, the Hamsterley and the Stanbrook tried to enter Bilbao carrying food supplies. To prevent their passage warning shots were fired by one of Franco’s Nationalist cruisers, the Almirante Cervera, which was operating together with the armed trawler Galerna.  British destroyers intervened but the two Spanish ships bravely pressed on until round the headland steamed the enormous British battlecruiser, HMS Hood. She trained her main 15 inch armament on the Almirante Cervera which rather sensibly stood down. The three freighters entered port safely.  The lesson?  If one is going to play gunboat diplomacy, which is what HMS Defender was doing last week, then make sure you have enough of the right gunboats in the right place. 

HMS Defender is a powerful warship and her officers and ratings conducted themselves entirely in keeping with the high traditions of the Royal Navy. Equally, Defender is just one ship and the only way to properly ensure international law prevails over Machtpolitik is if the democracies collectively demonstrate the will and the capability to enforce it. In the absence of both such freedom of navigation operations will come to be seen by the autocracies as little more than a bit of publicity-grabbing freedom of provocation.  International law is not an alternative to power but rather a constraint upon it.  Therefore, the only way to uphold such law in the face of those who would subvert it is to repeatedly and collectively enforce. Are their risks? Of course.  However, history would suggest the greater risk is to take no action at all. 

Julian Lindley-French