Breaches of international maritime laws in Russia’s war against Ukraine

Tuesday 14 June 2022

Evgeniy Suakchev

Black Sea Law Company, Odesa

e.sukachev@blacksealawcompany.com

 

In March 2014 Russia annexed Crimea and part of the Donetsk and Luhansk region in eastern Ukraine. Fighting has continued in this part of Ukraine since then.

On February 24 this year Russia invaded Ukraine and launched an unprecedented war against a sovereign and independent country, prompting martial law to be imposed. At midnight on February 24, the Ukrainian infrastructure ministry provided operational information about the closure of most river and seaports in the country. The next day, the Cabinet established level three security in river and seaports for the period of martial law.1

On March 21, the infrastructure ministry reported that: the seaports of Mariupol, Berdyansk, Skadovsk and Kherson temporarily were closed for inward and outward passage; Mykolayiv, Olvia, Pivdennyi, Odessa and Chornomorsk could carry out cargo operations on vessels moored in port; and that there were no vessels in the port of Bilhorod-Dnistrovsky, which was not operational and closed for inward and outward passages.2

From the first days of the invasion, Russia declared the northwestern area of the Black Sea and Sea of Azov a zone of hostilities.

Crimes in Ukrainian ports

On the day of the invasion, there were about 100 foreign-flagged merchant vessels in Ukrainian ports, not including tugs, rescue vessels and supply vessels. Thousands of crew members of vessels under foreign flags are stuck in Ukrainian ports because of Russian attacks.

According to official data from the Ukrainian government, 11 foreign-flagged vessels have been damaged in shelling by the Russian navy. Three merchant ships burnt down and sank, two seafarers died, 11 sailors were injured and five foreign merchant ships and four dredgers were captured by 15 April.

Though in-depth analysis of the wide-ranging information in the media about the war appears to lead to the unambiguous conclusion that Russia is guilty of war crimes, to legally prove this is the case, it is necessary to document all crimes and record evidence.

These war crimes are already being recorded and evidence is being gathered for legal processes for redress. The process is lengthy and should start now, assessing the extent of the losses and appealing to Ukrainian law enforcement agencies and international tribunals.

Key laws at stake

To understand how Russian actions may be illegal, including at sea, it is necessary to start with the general provisions of international humanitarian law.

The protection of merchant ships and crew members in the event of armed conflict is guaranteed by the Fourth Geneva Convention ‘relative to the Protection of Civilian Persons in Time of War, dated 12 August 1949, and Additional Protocol I to the Geneva Conventions, dated 8 June 1977, as well as the customary rules of international humanitarian law.

Under Article 50 of the Additional Protocol, which relates to the protection of victims in international armed conflicts, ‘members of crews, including masters, pilots and apprentices of the merchant marine’ fall into the category of ‘civilian population’.

The San Remo Manual, dated 12 June 1994, states the customary rules and laws that are applicable to armed conflicts at sea.3 Attacks on neutral merchant ships are prohibited, except as expressly provided for in para 67 of the San Remo Manual on the effective contribution of merchant vessels to hostilities.

Accordingly, the shelling and capture of vessels by the Russian air force can be qualified as serious violations of  international humanitarian law in the form of a deliberate attack on a civilian object within the meaning of Article 85(3)(a) of the Additional Protocol and Article 8(2)(b)(ii) of the Rome Statute of the International Criminal Court, or, if intent is not established beyond reasonable doubt, as an indiscriminate attack that could knowingly harm a civilian object and potentially endanger the environment within the meaning of Article 85(3)(b) of the Additional Protocol.

Merchant ships, which are civilian objects, cannot be attacked. They lose their protection only if they are used for military purposes. Thus, attacks by Russian forces on merchant ships would be classified as war crimes.

Note that Ukraine is already cooperating closely with the International Criminal Court. On 20 April, the Draft Law of Ukraine No 7304 ‘On Amendments to the Criminal Procedure Code of Ukraine on Cooperation with the International Criminal Court’ was registered. The purpose of the amendments is to regulate the procedure of cooperation between the competent Ukrainian authorities and the International Criminal Court, pursuant to Part 9 of the Rome Statute of the International Criminal Court.

Global recognition of Russian aggression

On 2 March, the United Nations General Assembly recognised the aggression of Russia against Ukraine in violation of Article 2(4) of the UN Charter at the Eleventh Emergency Special Session in Resolution ES-11/1.

The General Assembly demanded that Russia immediately cease its use of force against Ukraine and to refrain from any further unlawful threat and immediately, completely and unconditionally withdraw all of its military forces from the territory of Ukraine within its internationally recognised borders.

Many countries have imposed sanctions on ships owned, controlled, chartered or operated by a designated person, ships owned, controlled, chartered or operated by persons connected with Russia, ships flying the flag of Russia or ships registered in Russia. 

On 28 February, the United Kingdom banned access to ports for ships owned by anyone connected to Russia, flying the Russian flag or registered in Russia.

A ban on entering Canadian ports was imposed by the justice ministry’s Special Economic Measures (Russia) Regulations SOR/2014-58. The regulations were last amended on 14 March.

In accordance with Council Decision (CFSP) 2022/578 of 8 April amending Decision 2014/512/CFSP,4 access to EU ports to any vessel registered under the Russian flag is prohibited. This applies to vessels that have changed their Russian flag or registration to another flag or registration after 24 February.

Such measures demonstrate that international organisations recognise Russian aggression and condemn it in the international arena. Most countries have responded by banning Russian-related ships from calling at their ports, which also confirms their refusal to work with Russia and condemnation of the attack against Ukraine.

Reparations

Full reparations for damage caused by an internationally wrongful act is in the form of restitution, compensation or satisfaction, separately or in combination, by the International Court of Justice in accordance with the Resolution adopted by the UN General Assembly on the Report of the Sixth Committee (A/56/589 and Corr 1) No 56/83 [the ‘Resolution’).

Pursuant to Article 36 of the Resolution, the state responsible for an internationally wrongful act is under an obligation to compensate for the damage caused, insofar as such damage is not made good by restitution. The compensation shall cover any financially assessable damage, including loss of profits insofar as it is established. It is important to understand that reparations may apply to the state, as well as to each affected citizen.

The basis for the payment of reparations has historically been an international treaty concluded between the states – parties to an armed conflict.

If Russia fails to pay reparations voluntarily, UN institutions must ensure payment. In cooperation with allies, they will tie the unfreezing of Russia’s assets to the moment of reparation payments to Ukraine. If Russia continues to ignore international law, the allies will decide that Ukraine will have access to Russia’s frozen assets.

On the impossibility of recovery of damages in the International Tribunal for the Law of the Sea

With regard to specialised maritime international law, one should refer to the UN Convention on the Law of the Sea 1982 (UNCLOS).

Actions committed by Russia, such as the capture of merchant ships, may be classified as piracy, including if committed by a warship (Article 102 of the UNCLOS)

With regard to the International Tribunal for the Law of the Sea (the ‘Tribunal’), in accordance with Article 298 of the UNCLOS, it should be noted that upon ratification, Ukraine declared that it does not accept, unless otherwise provided by specific international treaties with relevant states, the compulsory procedures entailing binding decisions for the consideration of disputes relating to sea boundary delimitations, disputes involving historic bays or titles and disputes concerning military activities.

Since there are no specific international treaties between Ukraine and Russia, disputes concerning military activities cannot be considered by the Tribunal.

Conclusion

It is important to note that depending on the specific incident, it is necessary to apply the appropriate standard and apply for established jurisdiction and collect evidence confirming the amount of damages in the prescribed format.

In general, the military actions and invasion of Ukraine by Russia are violations that have inflicted huge damage on shipowners and cargo owners from different countries, so recovery proceedings will be filed not only from the Ukrainian authorities, but also other countries’ representatives of the flag of the vessel.

Ukraine’s state authorities have already begun active cooperation with international jurisdictions to bring Russia to justice for the alleged war crimes it has committed. They are also considering the possibility of establishing a special tribunal to investigate the crimes of Russian military aggressors, as well as all other crimes that are allegedly being committed.

Therefore, in summary, we want to highlight the main directions of activity in this period. It is necessary to immediately record all violations of international law and initiate legal proceedings. Russia must therefore make full reparation for all damages caused by the military attacks in all areas and against every individual and entity affected by the unlawful acts and ruthless warfare by the Russian army.

Notes

  1. Order No 183-r ‘On establishing the level of security in the sea and river ports of Ukraine, port facilities, vessels entitled to sail under the State Flag of Ukraine’, https://zakon.rada.gov.ua/laws/show/183-2022-%D1%80#Text (in Ukrainian) accessed 7 June  2022.
  2. Telegram message from the Ukrainian infrastructure ministry (21 March 2022) https://t.me/miUkraune/603 (in Ukrainian) accessed 7 June 2022.
  3. San Remo Manual on International Law Applicable to Armed Conflicts at Sea (12 June 1994).
  4. Council Decision (CFSP) 2022/578 of 8 April 2022 amending Decision 2014/512/CFSP concerning restrictive measures in view of Russia’s actions destabilising the situation in Ukraine.

Join the IBA

Expand your international network, gain new business and learn about the latest legal developments through IBA digital content and events, with IBA membership. Available for individuals, students, law firms, bar associations and corporations.

Find out more