TIC Analysis l
Under both customary international law and Article 2 of the United Nations Convention on the Law of Sea (UNCLOS), the territorial sea is a space characterized by the inherent sovereignty of the coastal state.
Now the question arises, whether military ships can enter into the territorial waters of another country? Under international law, “innocent passage involves the transit of foreign ships in a manner which is not prejudicial to the peace, good order, and security of the coastal state”.
The Third Conference on the Law of the Sea contributed significantly to the solution of the problem of innocent passage: it struck a compromise by which states exchanged broader navigational rights to foreign vessels in exchange for the recognition of wider territorial waters and the extension of the coastal state’s jurisdiction for resource exploitation.
As part of that compromise, the Convention text makes clear that warships enjoy the right of innocent passage, but that they may not engage in military activities during such passage. Thus in defining those activities which are prejudicial to the peace, good order, or security of the coastal state, article 19(2) specifies activities, such as military exercises, firing of weapons, launching or taking on board aircraft, and threat or use of force, that have an unmistakable military nature and can therefore be carried out only by warships.
By the virtue of the UNCLOS, it is clear to us that warships with restrictions mentioned above may venture into the territorial waters of another state. In the Strait of Kerch incident, Ukraine has acknowledged that its ships were in the Russian territorial waters but denied that these acted aggressively.
However, the Russian authorities stated that the Ukrainian vessels stayed in its territorial water longer than necessary and zigzagged in a manner which was deemed threatening by Russian naval forces present in the area. And hence, it took necessary action to neutralize the threats which Ukrainian vessels might have posed.
Russia not only seized the vessels but also imprisoned the Ukrainian sailors. The facts are ambiguous and Russia can easily legitimize its actions if it can prove its versions of events. Russia has in the past, used lawfare to legitimize its actions in Crimea. It seems that it also used the weaknesses in law to its advantage this time too.