Freedom of Navigation and the Black Sea Bumping Incident: How 'Innocent' Must Innocent Passage Be?

AuthorLieutenant Commander John W. Rolph

I Introduction

A common theme in discussions concerning freedom of navigation is the inevitable conflict generated by competing interests of coastal states and the international community regarding use of the world's oceans-in particular, territorial waters. Balancing the sensitive considerations of continually expanding coastal state sovereignty claims with the international community's global navigation needs has been a central focus of almost all Law of the Sea negotiations. At the heart of this conflict is the struggle that major naval powers-including the United States-are experiencing in keeping the oceans open so that they may pursue their various strategic and diplomatic interests.' Much of the discontent is caused by the increasing "territorialization" of previously unrestricted waters by coastal nations concerned with protecting state security, environmental, and economic interests.2 This may be the product of some states' tendencies to view their particular interests as somehow separate and distinct from those of other nations



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Whatever the impetus. as littoral states have enlarged their territorial sea jurisdictions and ocher Law of the Sea claims, maritime powers have witnessed a continuing erosion of, and challenge to. the freedom of navigation This is especially true in relation to warships

The regime of innocent passage, as it exists in customary international lau, and as negotiated and codified in the 1982 United Sations Convention on the Law of the Sea (LNCLOS 111),6 represents an attempt by the powers involved to compromise upon, and harmonize. these competing interests. "Simply stated, [the] regime is designed to provide a framework for achieving accommodations of the coastal State's exclusive in. terests and the [international] community's inclusive interests in the territorial sea ' ' I Innocent passage allows coastal states to pursue their various policies of national sovereignty, while at the same time maintaining global freedom of navigation by which other nations may pursue their economic and political objectives.' In practice, however. innocent passage-as both an academic and applied concept-has many interpreters, not all of whom agree on exactly how "innocent" the passage must actually be under this regime The importance of specifically defining the concept was never illustrated more graphically than it was during the Black Sea bumping incident of 1988. World superpowers stood head to head in opposition and confrontation over whether mnocent passage is an absolute right in international law, or simply a privilege afforded on coastal states' terms The incident unequivocally demonstrated the need to clarify the regime further, and to identify who decides when passage IS innocent or namnnocent.

11. The Black Sea Bumping Incident

On February 12, 1988, warships of the United States and the Soviet Union "shadow boxed" over the issue of innocent passage in the Black Sea. The United States, in a direct and open challenge to Soviet legislation that severely curtailed the right of innocent passage in Soviet territorial waters, commissioned a "Freedom of Yavigation" exercise in the Black Sea to challenge those Specifically, the 1982 Law of the Union of Soviet Socialist Republics on the State Frontier of the U.S.S.R.,g and subsequent implementing regulations, purported to limit innocent passage in Soviet territorial waters to the following predesignated "routes ordinarily used for international navigation"

In the Baltic Sea, according to the traffic separation sys-tems in the area of the Kypu Peninsula (Hiiumaa Island) and in the area of the Porkkala Lighthouse;

In the Sea of Okhotsk, according to the traffic separation schemes in the areas of Cape Aniva (Sakhalin Island) and the Fourth Kurile strait (Paramushir and Makanrushi islands), and

In the Sea of Japan, according to the traffic separation system In the region around Cape Kril'on (Sakhalin Is-land).ID

Ostensibly, these five traffic separation schemes were the only areas in which the Soviets would allow passage of foreign warships and stili consider the passage to be "innocent."" Ex-cluded from the legislation was any provision allowing for in-

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B Law of the Unlan of Sovler Soelallif Republlcr 0" rhe State Fronfler of the USSR 24 Nay 1062 antared intoforcr L Mar 1963 repnntcd ~n 24 I L M 1715 (19861 Iherem-after the 1882 Law on !he Srsre Border] Purnuanl to rhii law, the Savier Onion promulgated The Rules for Savlganan and Sojourn of Foreign Warshw 10 the Ternra-~lsl

Warerr (Territorial Sen) and Internal Waters and Pons of the C S S R 11083 Sa-

nocent passage through any of the Soviet Union's territorial waters in the Black Sea. The United States found this legislation unacceptable under international law and mounted an independent challenge via the Freedom of Savigation program."

On the morning of February 12, 1988, two United States Navy warships, conducting routine operations in international waters in the Black Sea, altered their courses in a manner chat

U S.S. Caron and the K3.S Yorktown were tasked by Pentagon officials to enter Soviet waters off the southwestern tip of the Crimean peninsula and traverse eastward. parallel to the Crimean coastline. until they reentered international waters a few hours later.'* The goal Of the passages-which were to be con. tinuous, expeditious and nonprejudicial to Soviet territorial sovereignty-was to manifest a nonprovocative exercise of the right of innocent passage le

The U.S.S. Caron IS a heavily armed Spruance class destroyer, with a 7800-ton displacement, configured for sophisticated intelligence gathering. A "modern-day Pueblo" as one author called it,1d the Caron's missions routinely have inrolved freedom of navigation exercises, as well as intelligence related activities The U S.S Yorktown, an Aegisdass guided missile cruiser. wch a 9600 ton displacement. is also heavily armed,

would guide them directly into Soviet territorial waters The

notes 43-77 and aceampan)mg textlack Sea W A E ~

roll. Black Dai on the UhCLOB 111 BUP'ri note b

POST Feb 13 1986 at A23


Carma. Tam, 14, at 16 (Me) 18881 ubjecr to this Conrennon ships af all stares right of innocent passage through rha ler~i

19921 FREED0.W OF NAVIGATION 141 having the primary mission of serving as a defensive escort for other ships In tandem, these two very capable American warships entered the twelve nautical mile territorial sea claimed

Jul) 17 CARON ianduers 'Operaoan Eagle Eye,' turxeillance af the Soviet alrerair carrier KIEV I" rhe western Mediterranean

August 18-19 CAROS conduct3 surveillanee operatlonr 10 the Gulf af Sidra, lneludlng the flrrl frarkmg of Llbyan FllfEl fighters

August 27- September 3 CAROU p8rfrci~afes m exemiie ' mag^ Sword ' jn the Korwagian Sei iarf of Ocean Yenrure 'SI,

' and conducts Over-the-honmn 8u1veillan~~and targeting

February 16-27 March 2.7 March 20- Aprrl 1 CAROI conducts Centr.1 American 1882

inrelllgDnce COlleellD" 0peTltlO"s1883hprll 15.22 CMOS Condwtb aaulhern Ciribbean special a~eranans and ~ntell~. geoce collectla"

October 21 CAROX IS detached from the USS IIDEPELDENCE (CY-62) bat. tlegravp irhlle rrsnsmng to rhe Mediterranean and 16 direcfcd to Grenada CARONIs ordered to proceed at "max speed to rake UP ~Iarim

LI soon ab Daaiible

Oeraber 23 CAROI 18 the first Cmled States havy rhiD Lo arriie on station for Operatian Crgenr Fur? " the iniasmn of Grenada

Januaci 3 CAROS rakes up p~rlllon for 62 days of Inrelllgence ~oll~eflm and

anlller) flre JuDPOrt off of Beirut Much of the time. rho dealroger Is anchored only 1000 yards from the Lebanese CO~M

March 30 . Awl 16 CAR0.Y conduerr aumelllanee operallonr 3" the eartarn lediferianeanhavember 6 -December 18 CAROI mnduets Central Ameilcan 8peelal opera-Uonr. lncludmg rIBn.ilt of the Panama Canal md Intelllgmee ~ ~ l l e ~ l l ~ n

In the esstem Pselflc 1085

November 20. December 8 CAR01 conducts i~iv~lllan~ea~eranoni 8n the east- om MedlterlaneBn. lnelvdlng B port visit 10 Hdfa, lrrsel

December 8.13 Ihe CSS SORXTOWI (CG-48) and the CAROh enter the Black Sea far the rleond Unlfed State8 Sa%y 'Black Sea Opa" of the year This 1s the flral AegWOulboard ream ever fa $0 into the Black Sea1088

Januaci I CAROh begms four months Of duty Ln YB~IDYS ' O ~ e r m o n ~ tn the

\1ClnXY 01 Llbya. ' Including Gulf af Sidra operarmns January 7 . February I and Februan 7-17

The Caron entered Soviet territorial waters first, foilowed closely thereafter by the Yorktown. Within fifteen minutes after their entry, the Caron and the Yorktou'n found themselves being "shadowed" by two Soviet naval vessels: che Bezzavetny, a Krivak I-class frigate with a 3900-ton displacement, and the SKR-6. a Mirka 11-class light frigate with a 1100-ton displacement.z0 Both Soviet vessels had been dispatched from Sevastopol, homeport for the Russian navy's southern fleet, wwth directions to "intercept" the Caron and the York- March 22-29 C.

l S S i April 13 . Mag 20 CAROh canduclr iurv~lllan~e

of Central .America mdudmg

October 16-16 CAROI canducrs operations in the Gulf of SidraDecember 1-6 CAR01 conducts rurieillance operatiam an the eaifem Uediier-rsnean and fmlihes wrh lsfe December port calls la .4lexandrla Egypt and Halfa Israel

operaflonl ~n the Carlbbean and the eastern Paclflc

Februar) 12 ChROZ and USS YORKTOU\ are bumped by fuo Sailer \ai) frigates nine miles from the Crimean coast ~n the Black SeaId. sf 6


The breadth 01 the Soriel terrltarial sea ~ a e nor at issue CJ I-XCLOS 111 mpra

note 5 art 3 ( Iel,erg state hsi rha right to establish rha breadth af It% rerrirarlal sea L; . - . . . . . . ... . - - .

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town for their violations of the 1982 Law on the State Boundary and the 1983 Soviet iiavigation Rules s'

Approximately eight miles off the southern tip of Crimea, between Sevastopoi and Yalta, the Soviet vessels assumed a position between the American ships and the Crimean coastline. They...

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