Russia and Eastern Europe

Will Russia Dial Back the Incidents at Sea?

By Sean Fahey
Friday, June 30, 2017, 10:30 AM

Geopolitical tensions between the United States and Russia have gradually increased since Russia’s annexation of Crimea in March 2014, and have only intensified as investigations continue into the extent of Russian interference in the 2016 U.S. presidential election and Congress contemplates renewed economic sanctions against the country. Whether by design or mere coincidence, this escalation in political tension is often accompanied by demonstrations of provocative, unsafe, and unprofessional behavior by Russian aircraft operating near U.S. warships and military aircraft on and over the high seas, particularly in the Baltic and Black Seas.

In April 2014, a month after the annexation of Crimea, a Russian SU-24 fighter made twelve high-speed passes over the USS Donald Cook (DDG-75), while it was operating in the Black Sea in “an attempt to reassure U.S. allies in the region.” In April 2016, as NATO contemplated a military buildup in Eastern Europe, a pair of SU-24s conducted eleven low-altitude simulated attack runs against the Cook—one of the aircraft came within thirty feet of the ship as it was conducting joint flight operations in the Baltic Sea with Poland. In February 2017, shortly after President Donald Trump took office, two SU-24s made several low-altitude, high-speed passes over the USS Porter (DDG-78) while the ship was transiting international waters in the Black Sea after a joint military exercise with Romania.

Though the level of egregiousness varies between merely annoying to downright dangerous, since the beginning of June 2017 alone, there have been more than 30 interactions between U.S. and Russian aircraft and ships in the Baltic Sea, including the most recent incident involving a Russian SU-27 flying within just five feet of a U.S. RC-135 reconnaissance aircraft. To be fair, Russia has been on the receiving end as well, as suggested by Russia’s allegation last week that a NATO fighter buzzed a plane carrying Russian Defense Minister Sergei Shoigu over the Baltic Sea. This increase in activity is alarming. It is critical, however, to appreciate that such levels of aggressive behavior are an historic anomaly. These incidents have increased only as political relations between the United States and Russia become more strained.

Historically, the United States and Russia have enjoyed considerable success in looking past geopolitical differences to establish and observe rules of behavior for close operations involving their ships and aircraft. These rules, memorialized in a series of military-to-military agreements—chief among them the 1972 Agreement on the Prevention of Incidents On and Over the High Seas (INCSEA) and the 1989 Agreement on the Prevention of Dangerous Military Activities—reduced tensions between the two nuclear superpowers by establishing mutual expectations and acceptable conduct by their respective armed forces, and providing a mechanism for periodic review by the parties to seek redress, clarification and amendment. Unfortunately, given the Russian misconduct over the past several years, the long-term viability of these agreements is deteriorating. This cannot be allowed to happen. These agreements are vital operational safety and conflict prevention tools that must not only be preserved but also embraced with renewed vigor.

Negotiated at the height of the Cold War after a series of encounters between U.S. and Soviet naval ships and aircraft resulted in several near-collisions, INCSEA clarifies international law regarding the safe and professional conduct of military operations on and over the high seas during peacetime. Pursuant to the United Nations Convention on the Law of the Sea (UNCLOS), for example, all vessels and aircraft, including warships and military aircraft, may operate freely seaward of a coastal state’s territorial sea. Ships and aircraft of all states enjoy these freedoms of navigation and overflight and other internationally lawful uses of the sea related to those freedoms. Furthermore, UNCLOS reflects the customary rule that ships and aircraft operate with “due regard” to the rights of other users of the oceans and airspace. Though the United States has not ratified UNCLOS, since 1983 it has considered the treaty to memorialize long-standing customary international law. UNCLOS, however, is silent on the manner in which such military operations should be conducted. Similarly, though the 1944 Convention on International Civil Aviation establishes important safety standards and “rules of the road” for civilian aircraft, its terms only require “state aircraft,” such as military aircraft, to operate with “due regard for the safety of navigation of civil aircraft” (emphasis added). The United States and other states have considered the “due regard” principle to apply to military aircraft as well. INCSEA added much needed clarity on this point, however, with respect to the conduct of military-to-military engagements, particularly in the airspace over the high seas.

In order to ensure the safety of their ships and aircraft, INCSEA, as a general principle, requires U.S. and Russian armed forces operating on and over the high seas to exercise caution and forethought when in proximity to each other’s armed forces. To further this general principle, the United States and Russia agreed to make the 1972 Convention on the International Regulations for Preventing Collisions at Sea (COLREGS), which establishes “rules of the road” for safe navigation, applicable to all of their respective naval forces. In addition, INCSEA requires that aircraft commanders “use the greatest caution and prudence” in approaching the other party’s aircraft and ships, particularly ships engaged in launching or landing aircraft, and prohibits “in the interest of mutual safety” any “simulated attacks” or use of weapons against the other’s ships or aircraft, as well as any “aerobatics” over or in the vicinity of the other’s ships and aircraft.

In 1998, through an exchange of diplomatic notes between the United States and the Russian Federation, INCSEA was amended to apply the aforementioned protections and standards of conduct to non-military vessels and aircraft as well. In addition, a separate agreement—the Agreement on the Prevention of Dangerous Military Activities (DMA)—broadened the scope of military activities for which the two countries would develop standards of behavior, in order to “reduce the possibility of incidents arising between their armed forces” and “ensure the safety” of their personnel and equipment when operating in proximity to each other during peacetime. By regulating military conduct while protecting the rights and freedoms of navigation and overflight guaranteed by international law, INCSEA and DMA have proven to be invaluable conflict-prevention tools. Such success is also due, in part, to the fact that both of these military-to-military agreements contain provisions requiring the parties to meet on an annual basis, if not more frequently, to assess compliance and ways to ensure even higher levels of operational safety. The agreements are a testament to the mutual respect U.S. and Russian forces have historically had for each other as fellow servicemen and women, irrespective of ideology.

Geopolitical tensions have fluctuated greatly between the United States and Russia since 1972, but even at the height of the Cold War these agreements reduced the temperature. They must continue to do so, and the United States should use every diplomatic lever to ensure they continue to serve the mutual interests of both states. Russia cannot be effectively publicly shamed or intimidated, but it has a long history of exercising tactical prudence. The United States should prioritize INCSEA and DMA discussions with Russia by calling for bilateral investigation of any unprofessional or unsafe interactions. Much as Russian reconnaissance aircraft continue to fly throughout the U.S. Canada Air Defense Identification Zone (ADIZ) surrounding North America without unlawful interference, the United States should insist that Russia observe the same rules for U.S. and NATO aircraft in the Baltic Sea and Black Sea. Without mutually developed standards of conduct, uncertainty will creep into the operating space, which could have disastrous unintended consequences ranging from an accidental collision to a rapid escalation of conflict.

The views and opinions expressed here are presented in a personal and unofficial capacity. They are not to be construed as official policy or reflecting the views of the United States Coast Guard or any other U.S. government agency.