Rule of Law vs. Russian Threats

The numerous threats, the termination of the “Grain Initiative” and the constant cynical attacks on Ukrainian port infrastructure and grain terminals are nothing more than Russia’s attempts to gain additional profit at the expense of the suffering of millions of people around the world. The statement of the Ministry of Defense of the Russian Federation regarding possible attacks on merchant vessels heading to and from the ports of Ukraine has no legitimate direct military objective. Instead, it is aimed at intimidating Ukraine and the world community, especially those countries that are in extreme need of food supplies.

The situation is not easy and concerns not only shipping in the Black Sea basin in light of full-scale Russian aggression against Ukraine. It is also about the interests and assets of shipowners, international insurance companies, and foreign owners of port and agricultural infrastructures in Ukraine. In this regard, it is worth giving a qualified legal assessment of the declared intentions of the Russian Federation from the point of view of international law. It worth mentioning, the next article will be present detailed information about the Register of Damage Caused by the Aggression of the Russian Federation against Ukraine. The insidiousness, barbarism, and unscrupulousness of the Russian Federation must and will be given a clear legal assessment by international bodies, including criminal courts. Rest assured, the damage will be compensated at the expense of the Russian side. The clock is ticking. So, let’s back to the Russian threats. Exercise of the right of peaceful navigation is not a belligerent act.  Russia is violating its obligation not just to Ukraine, but to all flag States operating in the Black Sea, by threatening to treat those states as belligerents. Foreign flag States are not party to the war between Russia and Ukraine, and thus continue to benefit from the guarantees applicable under UNCLOS. The right to free navigation is guaranteed under UNCLOS Arts. 56 and 90 and foreign flag States continue to benefit from this guarantee during armed conflict.  Even under the laws of naval warfare, neutral merchant vessels may not be attacked unless they are breaching a blockade or engaging in belligerent acts or supporting military efforts. Here there is no lawful blockade (see below), and no basis to believe the merchant vessels are supporting Ukraine’s military efforts simply by exporting grain to foreign countries that need it in order to avert widespread hunger.

Further, the law of naval warfare establishes strict limitations on the declaration of restricted zones by a belligerent. Such zones may not adversely affect the legitimate uses of the sea, may not exceed what is strictly required by military necessity and the principle of proportionality, and must give due regard to the rights and safety of neutral vessels. Russia has failed to comply with any of these limitations. Flag States have no duty to prevent their vessels from traveling to, or instruct their vessels to avoid, Ukraine’s Black Sea ports. There is no conceivable basis for such an obligation in UNCLOS or under the laws of naval warfare. Finally, Russia’s actions cannot be justified under the law of blockade. Russia’s declaration has no legitimate direct military objective; instead, it is intended to intimidate the Ukrainian population and neutral States. Russia’s declaration covers the entire Black Sea, not just an area immediately around Ukrainian ports. Russia’s declaration, fails to make exceptions for medical and other humanitarian considerations, as is required by the laws of naval warfare.

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