The Kremlin’s lawfare targets the Bering Strait

3 May 2020, 09:17

On 29 January 2020, the US awoke to the news that Russia is considering to leave unilaterally the US-USSR Maritime Boundary Agreement delimiting the maritime area of the Bering Strait, according to the statements made to Russian media by Konstantin Kosachev, the Head of the Russian Duma’s International Relations Committee. Such a move, if implemented, will allow Russia to laying claim on a portion of the US economic zone off Alaska, a step that has been promoted strongly by Boris Nevzorov, a Russian senator from Kamchanka, in order to restore what he claims is a loss of 500,000 tons of fish and crab per year, as well as gain access to oil and gas fields worth hundreds of billions of dollars.

The proposed legal move targeting the Bering Strait is based on a loophole in Russia’s domestic laws – article 15 of Russia’s law on international treaties – which stipulates that all agreements concerning Russia’s borders must be ratified in order to enter into legal force. Since, according to Russian Deputy Foreign Minister Sergey Ryabkov, the agreement was not properly ratified neither by the USSR, nor by Russia, its application is considered by Russia as merely “temporary”. the Russian senators blamed the late Edward Shevarnadze, for conceding to delineate the US-Soviet border according to the US rules (based on a straight line), and not international ones (equidistant from both shores). This exploitation of loopholes or retroactively claimed irregularities in negotiating international agreements, is fundamental tenet of Russia’s aggressive manipulation of international legal regimes, known as “lawfare”. Lawfare” is a pivotal domain of Russia’s hybrid warfare that has received relatively less attention in the West compared to its information and cyber warfare, but that is not less dangerous to America and the West, as a whole, due to its global outreach (as currently demonstrated) and the opportunities it provides to the Kremlin for manipulating the international legal system in favor of its expansionist goals in Eurasia and beyond.

The Kremlin unleashed its aggressive lawfare campaign upon its neighbors as early as 2008, when it launched the war against Georgia on the pretext of protecting Russian citizens there. This was followed in 2014 by the annexation of Crimea that the Kremlin claimed to have been justified through a sham “popular referendum” that purportedly aimed merely to satisfy the rights of self-determination of a fictitious “Crimean nation”. Now the Kremlin’s lawfare campaign is about to be deployed to the Far East and threatens to touch upon the American shores, and our vital interests in one of the most strategic areas of the world – the Arctic. There, Russia has long been pushing to extend its exclusive economic zone based on an excessive claim to the UN CLOS that the underwater shelf there is a natural extension of the Russian landmass. Based on that, last year Russia upped the ante and demanded that all naval vessels crossing the northern Route comply with its excessive demands for advance permission, information and accepting Russian pilots. In NATO’s European zone of responsibility, the Black and the Baltic Seas have been the scene of constant Russian violations of international law that are also being justified as based on legal claims – unresolved territorial waters disputes over maritime borders, especially the legal control over the Kerch Strait and Crimea. In December 2018, Russia justified its attacking and kidnapping of Ukrainian naval vessels and their crews in the Kerch Strait by claiming that they had violated Russia’s territorial waters due to the improper or lacking delineation of the two maritime areas. In that case, a technical legal claim of bilateral nature had serious human and security consequences, and now Russia’s success there has emboldened it to apply its lawfare techniques outside of the Black Sea area where it first tested them by laying the groundwork for limiting the Western nations’ freedom of navigation in the Arctic, and now potentially in the Bering Strait.

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If the Kremlin follows through on its intended withdrawal from the Bering Strait Treaty, in the future if could resort to harassing US ships that sail through maritime areas that Russia would consider as falling within its exclusive economic zone under its rules of delineation of the Bering Strait. These will likely not be military ships, as those are considered pieces of the sovereign territory of every nation, and an attack on one is tantamount to war. A softer, easier target could be a fishing vessel, or a sea exploration ship that could be mistaken for a naval intelligence vessel. In that case, Russia’s justification would be that those ships have entered its exclusive economic zone and have been performing commercial activities there without explicit permission. In a situation of contested maritime borders in a high-traffic area such as the Bering Strain, it is easy to imagine a situation whereby Russia tries to assert its exclusive rights over maritime areas that the US still considers as falling within its exclusive economic zone under the original treaty. Thus, the US would be forced to either renegotiate the treaty to accommodate the Russian demands, which it will most likely not agree to do, or advise its vessels to navigate with caution in the Russia-contested areas – which would still inevitably result in an incident sometime in the future. 

Such incidents are far from hypothetical potentialities, but rather – cases of “been there, done that” for both Russia and its Soviet-era allies. The most recent one of those was the case of the Lithuanian vising vessel “Juras Vilkas” (Sea Wolf), apprehended by the Russian Coast Guard in the Barents Sea in September 2014, then taken to the Russian port of Murmansk. The Russian claim was that the ship had been fishing in the Russian exclusive economic zone, so the Russian authorities confiscated its cargo and detained the crew for a period of time.  The captain asserted that the ship had been operating in international waters according to the navigation records on board. Russia has been known to intentionally jam navigation equipment and GPS systems in the Black Sea and the Baltic by testing advanced military equipment during military exercises in the Black and Baltic Seas in recent years. If such jamming is used against a fishing vessel, it might as well be sailing through Russian waters while its navigation systems show that it is still in international waters. 

The “Juras Vilkas” incident coincided with the high international tensions surrounding the Russian military aggression against Ukraine in the summer of 2014, and therefore it was used to exert military pressure on Lithuania as a staunch supporter of Ukraine and a vocal critic of Russia within NATO. History, however, remembers another case, the “Pueblo Incident” of 1968, in which the Communist regime of North Korea, encouraged in this case by China, attacked and apprehended a US vessel, the “Pueblo” – an environmental research ship used by the US navy as an intelligence ship. North Korean navy vessels and air forces apprehended the ship, and threw its crew of 83 persons in a prison camp, where they suffered abuse and torture until released almost a year later. North Korea’s claim was that the Pueblo had violated its territorial waters several times, while the US asserted that the evidence had been fabricated. The incident occurred in the midst of another major international crisis – the Vietnam war, as it was meant to put pressure on the US and humiliate it publicly.

The Bering Strait, is the easternmost gateway to the Arctic, in which Russia has been playing a long-term strategic game along the entire Northern Route. Its lawfare efforts have been directed lately also against an important NATO member in the region – Norway. The issue at stake is the island group of Svalbard (Spitzbergen on the Russian maps) that has been contested between Russia and Norway for the last 100 years. The Svalbard Treaty of 1920s confirmed the Norwegian sovereignty over the archipelago, but allowed Russian citizens and companies to reside and conduct commercial activities there. Since the launching of its aggression against Ukraine, Russia’s behavior regarding Svalbard has been particularly provocative, to include visits by Russian politicians on the EU visa ban, or reported exercises by Chechen special forces units on, or around the island. A week ago, the Russian Foreign Ministry accused Norway of restricting Russia’s activities on the island and demanded that the existing issues be resolved. Thus, Svalbard has been emerging as one of the potential flashpoints in the confrontation between Russia and NATO in the Arctic, as Russia has been eager to use lawfare tools to match its “legal” efforts with its “lethal” ones – the military build-up in the High North aimed at exerting effective control over the Northern Route and substantial additional Arctic maritime areas.

Such significant revision of important international regimes is designed to cause trouble to the US, as well as exert control over international navigation and commerce, right at America’s back door. In all of these cases, the Kremlin has resorted to manipulating Russia’s national legislation in order to circumvent its international treaty obligations. This is yet another proof that any agreements or deals made with Russia are only temporary in nature, and can be abrogated at the behest of the Russian leadership, or twisted beyond recognition until they are hollowed out and devoid of their original spirit.

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Following the constitutional changes announced by Putin earlier this month that aim to codify the supremacy of the Russian constitution over international law and Russia’s international treaty obligations, this potential lawfare offensive in the Bering Strait proves beyond any doubt that Russia’s international behavior has become a function of its selectively detaching itself from the rules and norms of the international legal system. The risk for the US and the West now (and not only for Ukraine and Russia’s other neighbors) is that this winning “lawfare formula” will embolden the Kremlin to apply it even more aggressively across the global Commons and challenge the existing security arrangements in strategic areas for the US such as the Arctic Ocean, while continuing to test NATO’s resolve in other vital areas, such as the Black, Baltic and the Barents Seas. 

Mark Voyger, scholar at the Penn Biden Center for Diplomacy and Public Engagement, Washington, D.C.

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Mark Voyger

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