Analysis: while these Russian military exercises do not violate international law, they are linked to a risky game of brinkmanship
The decision by Russia to conduct naval and air force exercises, which include live firing of missiles and other armaments, off the west coast of Cork next month has become a serious source of concern for Ireland. Naval exercises and firing practices are part of the regular training requirements of all military forces, including the Irish navy. However, this is happening in the context of the build-up of Russian forces along the border with Ukraine and at a time of serious tensions between Russia and European states and the US.
The exercise will take place in what is part of Ireland's Exclusive Economic Zone. This area may be described as a maritime zone beyond and adjacent to the territorial sea over which the coastal state has sovereign rights over economic resources, while other states enjoy freedoms of navigation and overflight. It means that naval forces of other states enjoy high seas freedoms, including navigation and the right to conduct military exercises.
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From RTÉ Radio 1's Morning Ireland, are Russian missiles off the Irish coast a threat?
In this instance, Russia has notified Ireland due to the intended use of missiles that may impact on the safety of air navigation in particular. This is standard practice for all naval forces when conducting live firing exercises. The Irish Aviation Authority has confirmed that it has taken the necessary precautions and is re-routing commercial flights.
What does the Law of the Sea say about military exercises?
Exercises and manoeuvres by naval and other military forces are traditionally recognized as being a part of the freedom of the high seas and as such are governed by the United Nations Convention on the Law of the Sea. While there is no express provision to this effect in the Convention, the practice of states indicates that this is also recognized as customary international law.
In this way, it is clear that the general consensus among states is that a right exists as part of the freedom of the high seas, and this view is shared by NATO and most other Western nations. The view of the US at the time of negotiating the Convention on the Law of the Sea was that "military activities, such as . . . launching and landing of aircraft, . . . exercises, operations . . . [in the Exclusive Economic Zone] are recognized historic high seas uses that are preserved by Article 58."
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From RTÉ Radio 1's Drivetime, Shona Murray (Euronews), Viktoriya Fedorchak (expert in air power and contemporary warfare) and Fergal Keane (RTÉ reporter) on Russia, Ukraine and Ireland
A number of coastal states have attempted to challenge this prevailing view by submitting declarations against foreign military exercises, especially involving weapons or explosives, in their respective Exclusive Economic Zones without their consent. However, these efforts are generally considered to have failed.
The law on Exclusive Economic Zones
It is worth looking at what Article 58 of the UN Convention on the Law of the Sea actually says about the rights and duties of other States in the Exclusive Economic Zone
1. In the exclusive economic zone, all States, whether coastal or land-locked, enjoy, subject to the relevant provisions of this Convention, the freedoms referred to in article 87 of navigation and overflight …. and other internationally lawful uses of the sea related to these freedoms…..
3. In exercising their rights and performing their duties under this Convention in the exclusive economic zone, States shall have due regard to the rights and duties of the coastal State and shall comply with the laws and regulations adopted by the coastal State in accordance with the provisions of this Convention and other rules of international law [emphasis added] …
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From RTÉ Radio 1's Morning Ireland, Andrew Cottey from UCC on Russia engaging in military exercises off the Irish coast
It is open to interpretation what exactly 'due regard’ means in this context. It is particularly relevant in the context of efforts to protect the marine environment. States may adopt specific conservation measures or designate marine protected areas. These may be enforced in respect of vessels operating in or around those areas (Article 56(1)(b)(iii) of the Law of the Sea Convention).
It is also worth noting that military exercises of this nature may require the creation and designation of an exclusion zone. Any interference with fishing vessels that habitually operate in a particular area could constitute an unlawful infringement of Ireland’s rights within its Exclusive Economic Zone.
Is this a threat to Ireland?
It is noteworthy that the UN Charter and the Law of the Sea Convention make a clear distinction between the "threat or use of force" and other military activities. Determining whether or not a military exercise amounts to a threat or use of force must be conducted on a case by case basis on the basis of verifiable evidence. It will involve a range of factors including conduct, weapons used and the general security and political environment.
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From RTÉ One's Six One News, Minister for Foreign Affairs Simon Coveney hits back at Russia's plans for military exercises off the Irish coast
In the current political environment, one characterised by a degree of ‘sabre rattling’ and nationalist rhetoric, it is important to stress that Russia is exercising a legal right, however unwise in the present circumstances, to conduct naval exercises off the Irish coast. There is no evidence of a direct threat to Ireland.
So what is Russia really up to?
It is certainly no accident that it has chosen this area for its naval exercises. Though far removed geographically from Ukraine, it highlights a perceived weakness in the NATO defensive shield. It seems that Vladimir Putin is playing a risky game of brinkmanship linked to the efforts to intimidate Ukraine and NATO. While any rational leader will not want to go to war, actions such as this can have unanticipated and dire consequences if not managed by cool heads and a carefully calculated calm response.
The rights of Russia or any other state to conduct military exercises within the Exclusive Economic Zone of a coastal state would seem to be well established. However, as with almost all legal rights, these are not absolute.The context within which the exercises are conducted; the means, if any, by which force is used or threatened; the impact on any declared areas of conservation; and the imposition of an exclusion zone without due regard for the coastal state may impact on the legality of the exercise being conducted.
The situation also highlights the weakness in Ireland’s monitoring and surveillance capabilities. Furthermore, in all of this controversy, too little attention is unfortunately paid to the carbon footprint created by all large scale military exercises, especially those conducted by naval and air forces.
The views expressed here are those of the author and do not represent or reflect the views of RTÉ
