Ukrainian Maritime Industry under Fire: Consequences of Russian Invasion

This article analyzes the maritime-related legal aspects of the Russian invasion and its impact on Ukraine's maritime industry.

We assess the Russian fleet's actions in carrying out a naval blockade of Ukrainian ports from the point of view of customary international humanitarian law. The article also reviews certain acts of the Ukrainian authorities regulating the activities of seaports in the context of the ongoing armed conflict.

Freedom of Navigation in the Black Sea and the Sea of Azov: Degrading from `Hybrid' Obstacles to the Naval Blockade

Although the term `blockade' has been widely applied to Russia's moves in the Sea of Azov since the Crimean annexation in 2014, it was used to address hybrid tactics which created a variety of obstacles to freedom of navigation, blurring the distinction between war and peace, with the objective of shaping Ukrainian politics and foreign policy (Hurak & D'Anieri, 2020).

The situation in the Black Sea and the Sea of Azov after the Crimean annexation exemplified the notion of a `maritime gray zone', emerging from the combination of coastal rights and freedom of navigation, and further exploiting those rights to `impose quandaries on custodians of an existing order' (Holmes & Yoshihara, 2017, p. 2). At that point, Russian actions focused on contesting `limited elements of regional orders' (Green et al., 2017, p. 28) with the final goal being to establish a new internationally recognized order in the contested area.

The core of the Black Sea `gray zone' was created by the ongoing territorial dispute between Russia and Ukraine caused by the annexation of Crimea. This dispute has led to the construction of several overlapping and conflicting sets of rules in the coastal waters surrounding the Crimean Peninsula, partly reflected in Ukraine's dispute before the International Court of Arbitration in 2016 with an indicative title "Dispute Concerning Coastal State Rights" (Ukraine vs. Russian Federation). In practice, for the last eight years, all actors in the region have confronted three sets of rules: 1) the status quo contested by Russia, 2) a new order backed by Russia, and 3) a de facto regime comprising elements of the two previous regimes (Kormych & Malyarenko, 2021).

The contested status quo (the regime of Ukrainian coastal waters `before the annexation') was upheld at the international level by `a robust non-recognition regime' that has been `conspicuously absent anywhere else in the world' (Kontorovich, 2015, p. 629). Meanwhile, the Russian backed order was promoted by several `hybrid' tactics, including:

- Seizure of Ukraine's offshore oil and gas assets (Statement by the Ministry of Foreign Affairs, 2015);

- Shipping restrictions in the Kerch Strait and the Kerch- Yenikale canal (Kabanenko, 2017);

- Regular closure for shipping of a significant number of zones in the Black and Azov Seas, due to military exercises or security reasons (Klymenko, 2019);

- Detention of Ukrainian ships in the Sea of Azov and at its entrance (Klymenko, 2018).

Finally, a de facto regime emerged from a series of horizontal arrangements Ukrainian and Russian authorities and the usage of informal norms. For example, the passage to the Sea of Azov and ports in the Kerch Strait is conducted through the Kerch-Enical Channel, which demands piloting. The vessel traffic service (VTS) terms and conditions apply (VTS Services). Before the annexation of Crimea in 2014, Ukrainian Kerch Merchant Port was responsible for the VTS. Since then, VTS has been provided for Ukrainian ships by the Russian authorities based in Crimea, which the Ukrainian side has informally agreed to respect in order to keep the Mariupol and Berdyansk seaports operational.

Such a situation eventually created increasing pressure upon Ukraine's maritime industry, particularly the seaports. The volume of cargo processed in Ukrainian ports in 2021 decreased by 6% compared to 2020. The decrease in the volume of transit cargo was especially noticeable, amounting to - 16.7% (Seaports of Ukraine transshipped 137 million tons of cargo, 2021).

Russia's distinctive hybrid pressure on the Ukrainian maritime industry intensified just before the start of a full-scale war. In December 2021, the Ukrainian Navy said that about 70% of the Azov Sea was blocked due to Russian military exercises (Ukraine Says Russia Blocking Most of Sea of Azov, 2021). Moreover, at the beginning of February 2022, the Kremlin announced naval maneuvers covering an unprecedented area of the Black Sea and Sea of Azov, and the Kerch Strait, making navigation in both seas virtually impossible (Statement by the Ministry of Foreign Affairs, 2022). However, those events proved that the Ukrainian maritime industry had developed a substantial resilience to hybrid threats in the previous eight years. For example, on February 15, 2022, the State Hydrographic Service of Ukraine managed to conduct a 450-kilometer linear survey and confirm the safety of navigation in the maritime corridor between the western border of the Russian military exercise zone and the Dniester Bank, thus guaranteeing ships' safe passage through the Gulf of Odessa and preventing at that time a blockade of Ukrainian seaports in the area (Ministry of Infrastructure: Ukraine averts the blocking of the Black Sea ports, 2022). Taking a broad view, Russia's decision to launch the full-fledged military offensive in particular signaled its awareness of the potential that it could exhaust its non-military and paramilitary coercive tools in pursuing its agenda in both the Crimean and Donbas conflicts. At a minimum, the demand for Ukrainian and international recognition of Russia's 2014 annexation of the Crimean Peninsula was articulated in all of the Kremlin's ultimatums immediately before and during the 2022 invasion (Belton, 2022).

From the outbreak of the full-fledged conflict onwards, the Russian navy applied all three primary forms of the command of the sea: attacks on shipping and commerce, strikes at targets ashore using sea-based weapons, and amphibious operations to land ground forces in the adversary's territory (Armstrong, 2015).

Considering the issue of whether the Russian Federation's actions in the Black and Azov Seas can be termed a naval blockade, as well as the legality of such actions, it is worth noting that there are no obligatory international instruments establishing the rules of a naval blockade. It is customary international humanitarian law that provides the legal basis for the deployment of naval blockades, and justifies what would otherwise be regarded as an unlawful violation of the sovereignty of the flag state (Buchan, 2011, p. 214). In that regard, we can refer to the 1909 London Declaration concerning the Laws of Naval War, Chapter I of which aimed to introduce common rules for a naval blockade. The 1994 San Remo Manual on International Law Applicable to Armed Conflicts at Sea also reproduced most of those rules.

In the most general terms, a naval blockade is a method of warfare by which a belligerent party to an armed conflict seeks to prevent all vessels (enemy, neutral and friendly) from entering or exiting specified ports or coastal areas under the control of an opposing force (Drew, 2019).

Following the San Remo Manual, two essential criteria indicate whether a naval blockade is established.

First, Para 93 of the San Remo Declaration demands that `a blockade shall be declared and notified to all belligerents and neutral States'. Although the Declaration does not specify the exact form of such a notification, its Para 94 demands that `the declaration shall specify the commencement, duration, location, and extent of the blockade and the period within which vessels of neutral States may leave the blockaded coastline.'

Second, Para 95 of the San Remo Declaration establishes that `a blockade must be effective', stipulating that `the question whether a blockade is effective is a question of fact.'

On February 24, 2022, the Russian Federal Agency for Maritime and River Transport (Rossmorrechflot) issued navigational warnings that could be regarded as a formal announcement of the naval blockade of Ukrainian ports. This would include a complete suspension of navigation in the Sea of Azov until further notice, `due to a warning received from the Russian Defense Ministry's Black Sea Fleet amid the beginning of anti-terrorist operations at 4 a.m. on February 24' (Rosmorrechflot confirms suspended navigation in Sea of Azov, 2022). Another NAVTEX message issued by Rossmorrechflot on February 25, 2022, with the same reference to naval counterterrorism operations, declared that the area in the northwestern part of the Black Sea to the north of parallel 24°21' N would be prohibited for navigation, emphasizing that `ships and vessels in this area will be regarded as a terrorist threat' (Konrad, 2022). Both navigational warnings clearly expressed the prohibition of navigation near Ukrainian shores and the threat of intentional attacks on vessels attempting to enter the restricted area. As was suggested by experts from the Organization for Security and Co-operation in Europe (OSCE), `while Russia has not expressly declared the blockade, a relevant announcement by the Federal Agency for Maritime and River Transport could qualify as such a declaration' (Report on Violations of International Humanitarian and Human Rights Law, War Crimes and Crimes Against Humanity Committed in Ukraine Since 24 February 2022).

As for the Russian enforcement of the naval blockade of Ukrainian soil, there has been evidence of at least three Russian attacks on commercial vessels off Odessa, Ukraine, in the first days of the invasion. The incidents involved the Marshall Islands- flagged merchant vessel YASA JUPITER (IMO 9848132), which was struck by a Russian missile about 50nm South of Odessa on February 24, 2022, and the Panama-flagged bulk carrier NAMURA QUEEN (IMO 9841299) and Moldovan-flagged bunker vessel MILLENIAL SPIRIT (IMO 7392610), which were both hit by missiles on February 25, 2022, at the anchorages of the Port Pivdennyi and Port of Odessa respectively (Russian Invasion of Ukraine. Black Sea Report, 2022). Such actions showed that the Russian Navy intended to attack any shipping to or from Ukrainian ports and to make merchant shipping in the northern Black Sea and the Ukrainian part of the Sea of Azov completely impossible.

Nevertheless, there are some suggestions that different factors have effectively minimized maritime traffic into and from Ukraine's ports, and that Russia has not established a naval blockade but rather a maritime zone with the purpose of managing maritime battlespace in an area where belligerent naval operations take place (a concept used previously during the Falklands/ Malvinas and the Iraq-Iran conflicts) (Fink, 2022).

However, attention should be paid to the fact that on March 15, 2022, after the occupation of the Port of Berdyansk on the Ukrainian coast of the Sea of Azov, the Russian Federation released five foreign ships that had been moored there since the beginning of the armed conflict (Foreign vessels carrying Ukrainian grain left occupied Berdyansk port, 2022). Although all the details of the respective arrangements are not clear, it is safe to say that this fact suggests that the ban on navigation was designed primarily to block the operation of ports controlled by Ukraine, rather than to manage the war zone. Thus, this makes the regime in question closer to a naval blockade.

In addition, the lack of a clear articulation of the term `naval blockade' by Russian officials can be considered in the context of the entire course of the Ukrainian-Russian conflict, starting from 2014. During that time, Russia extensively employed a `hybrid warfare doctrine', denying their responsibility for hybrid operations and attempting to escape the legal consequences of their actions (Resolution on legal challenges related to hybrid war and human rights obligations, 2018). In particular, developing a `gray zone' in the Black Sea following the Crimean annexation permitted the aggressor not to apply the law of armed conflict to its military operations, including humanitarian protections for non-combatants (Malyarenko & Kormych, 2022). Furthermore, some have suggested that the Kremlin's rhetoric describing the 2022 invasion of Ukraine as a `special military operation', along with its claimed goals, were designed to evade obligations to follow the law of armed conflict in Ukrainian areas under Russian control, especially in light of Russia's poor record of compliance with the law of occupation in other areas (Longobardo, 2022). This is typical of Russia's tendency to use the language of international law to blur the boundaries between what is considered a legitimate use of force and what is considered random illegal violence (Wittke, 2020, p. 189).

Currently, we can highlight several cases where the Russian armed forces failed to follow the law of armed conflict in the Black Sea region after the start of a full-scale invasion.

First, for example, the Russian navigational warnings ordering the suspension of navigation in the north part of the Black Sea and the Sea of Azov were issued simultaneously with or even after the Russian invasion, which started at about 5 AM, February 24, 2022. In the light of the San Remo Manual Para 94, those warnings did not provide any grace period and left virtually no time for vessels of neutral States to leave the blockaded coastline.

Second, the aforementioned attacks on neutral merchant vessels on February 24 and 25, apparently conducted by Russia, proved to be indiscriminate and unjustified, and thus did not comport with the law of naval warfare, particularly the principle of distinction (Pedrozo, 2022).

Third, on February 27, 2022, the Russian navy captured the Ukrainian flag rescue tug SAPFIR (IMO 8728531), operated by Ukraine's Marine Search & Rescue Service (MSRS), off Snake Island while it was conducting a rescue mission. The vessel was then forced to Sebastopol, and its crew members were taken prisoner. These actions clearly violated international humanitarian law rules, which include `small craft used for coastal rescue operations and other medical transports' among the classes of enemy vessels that are exempt from attack (Para 47 of San Remo Manual). SAPFIR was returned to Ukraine only on April 8, 2022, due to the joint efforts of the top leadership of Ukraine, the Ministry of Infrastructure, the Maritime Search & Rescue Service, and the International Maritime Organization (Kholodnova, 2022).

Furthermore, Russian naval operations in the Black Sea proved to be no less than another attempt at a brutal land grab. On May 21, 2022, the Togo-flagged livestock carrier BRITTA K (IMO: 7368815), which was making a transit passage through Ukrainian territorial waters near Snake Island, received a signal from an unidentified Russian navy unit demanding that it `leave the territorial waters of Russia otherwise [the Russian unit] will use weapons' (Russians threatened to fire on a merchant ship, 2022).

Such Russian neglect of the law of armed conflict logically carries additional risks for the maritime industry in the Black Sea area. It leaves little to no chances for a prompt restoration of the freedom of navigation.

Ukrainian Maritime Industry and Russian Invasion: Challenges and Responses