Legal assessment of Russian ongoing aggression in the Black and Azov Seas

Borys Babin
Doctor of Law, Professor, Expert
Association of Reintegration of Crimea

Until 2022, domestic and foreign experts have repeatedly written about the excessive militarization of Crimea by the aggressor since 2014, primarily in expanding the capacity of the Russian Black Sea Fleet. The aggressor’s fleet was saturated with new weapons and ships throughout the years of occupation of Crimea, and before invading mainland Ukraine in February 2022, Russia concentrated an unprecedented group of ships in the Black Sea – more than 40 units, including more than 10 landing ships.

It is crucial for the aggressor state to take full control of the entire coast of the Sea of ​​Azov. Under such conditions, aggressor state prepared for new encroachments on the territorial integrity of Ukraine in a covert form. As for the Kherson Region, these criminal intentions are currently considered by the aggressor in a criminal “alternative”: either in forms of forming another fake “people’s republic”, or in an attempt to “join” these territories to the Russia-controlled so-called “Republic of Crimea” [2]. The occupied Crimean peninsula is used by Russian troops as a key bridgehead for military operations at sea.

The aggressor uses ‘Tu-22’ bombers to bomb mainland Ukraine, which maneuver over the sea [3]. The Russian Navy’s 636.3 ‘Varshavyanka’ submarines, which launch ‘Caliber’ missiles, were also used for rocket attacks to hit mainland Ukraine’s facilities, including civilian infrastructure, [4] and Russia actively uses Black Sea Fleet bombing and fighter aircraft where the Russian army suffers significant losses also [5]. For operations in the sea, the Russians are actively using surface ships, with occupied Sevastopol as the basis of their base [6]. In particular, on March 15, a group of the Russian fleet fired missiles at settlements in the Belgorod-Dniester region, which caused casualties, and the aggressor state continues to prepare for landing operations in Odessa and Mykolaiv regions of Ukraine [7].

Russia continues to store weapons on the maritime oil platforms of ‘Chornomornaftogaz’ and at the same time Russian troops prepare them for destruction in the event of a change in the strategic situation. The occupiers are also urgently calculating the logistics of a significant increase in the capacity of the Kerch Strait for military needs, and are working on blocking all approaches to the Strait for commercial shipping. The aggressor’s navy captured the Ukraine’s Zmiiny island in Black Sea and ensures the blockade of Ukrainian ports and the capture of individual merchant ships that came out of them [8], using anchored and floating mines.

The Russian aggressor threatened several merchant ships flying Ukrainian flags, such as the AFINA bulk carrier IMO number 8029272 and the PRINCESS NIKOL bulk carrier IMO number 8319392, and it promised to destroy the ships with missile weapons. The military authorities of the aggressor announced a so-called “anti-terrorist operation” in the Black Sea region adjacent to mainland Ukraine, where any merchant ship could be destroyed by the aggressor’s navy and aviation. Maritime looting is taking place, for example, on March 13, the occupiers took a floating dredger and two merchant ships from the part of Berdyansk to occupied Kerch, and then the tug “Korets” also [9].

Russia’s aggressive military actions are causing significant environmental damage, including an unprecedented number of dead dolphins killed off the coast of the Western Crimea, which were apparently damaged during active Russian naval operations in the Northwestern Black Sea. In addition, ornithologists noted that the traditional annual migration of birds did not take place through the Crimea as birds chose other routes from south to north [10].

The aggressor state also began broadcasting propaganda statements through maritime communication channels from Novorossiysk, intended for navigational messages. Examples include the coastal warning from the Russian Federation AA89, which does not contain specific information for merchant shipping, but states the alleged “genocide of the civilian population of Donbass, which was carried out by Ukraine for eight years”, and it also points on Russia’s military operation on alleged “denazification and demilitarization of Ukraine” since February 24.

In particular, the AA89 warning of the aggressor’s maritime administration provides information about the alleged losses of Ukraine during the conflict, and thus Russia uses maritime communications for its propaganda, designed exclusively to ensure maritime security. It is noteworthy that the aggressor claimed in the corresponding warning AA89 and other broadcasts on maritime security channels about the alleged “genocide”, disinformation about which has already been considered by the UN International Court of Justice at the suit of Ukraine. The aggressor also points out in the warning about the “military” and not about the “special” operation against Ukraine [11].

Thus, the escalation of Russian aggression since February 24 has radically worsened the state of maritime security in the Black Sea region. Under such conditions, the Maritime Administration of Ukraine, trade unions, expert and human rights structures appealed to the International Maritime Organization (IMO) and called on almost all foreign administrations and shipping registers to stop cooperating with the shipping companies of the aggressor state.

The Association of Reintegration of Crimea also appealed to the IMO and its member states to suspend Russia’s membership in the organization, to stop any cooperation between the IMO and the aggressor, including financial, and it recommend the maritime administrations to not recognize documents. issued by Russian classification societies. Similar appeals were addressed to the world’s leading maritime administrations [12]. On March 16, the Minister of Defense of Ukraine Oleksiy Reznikov addressed the residents of Crimea and Sevastopol whom the occupiers are involving in aggression at sea, including forcibly conscription [13].

On February 27, Turkey approved a decision to apply a wartime regime to the Black Sea straits, the Bosphorus and the Dardanelles. This means, according to the Montreux Convention, which Turkey declares to be a key normative act in this area, that it may prohibit military trade in Black Sea [14].

Also, the current Russian aggression has led to the collapse of the entire OSCE system, formed in the 1970s, and to the destruction of relevant security mechanisms in Europe, particularly at sea. In particular, the OSCE Special Monitoring Mission to Ukraine, which had a mandate and offices in Odesa, Kherson and Mariupol, was suspended on 7 March [15].

These crimes violate the requirements of international humanitarian law, including the Hague and Geneva Conventions, as well as the requirements of the UN Convention on the Law of the Sea and International Law on Saving Human Life at Sea and Preventing Marine Pollution. This led to the response of international structures, in particular, taking into account the appeals of the Ukrainian authorities, human rights and expert structures.

For example, due to Russian aggression, the UN Human Rights Council (HRC) on March 4, 2022 adopted Resolution 49/1 [16]. In this resolution, the UN HRC called for the rapid and controlled withdrawal of Russian troops and Russian-backed armed forces from all over Ukraine within its internationally recognized borders and territorial waters to prevent further human rights abuses and abuses and violations of international humanitarian law. UN HRC stressed the urgent need for an immediate cessation of hostilities against Ukraine [17]. Those demands were totally ignored by Russia.

The International Maritime Organization (IMO) held an extraordinary session of its Council on March 10 and 11 to consider the impact of the situation in the Black and Azov Seas on merchant shipping and seafarers [18]. At this session, the IMO Council adopted resolution C/ES.35, which strongly condemned Russia’s violation of Ukraine’s territorial integrity and sovereignty, which extends to its territorial waters, contrary to the principles of the UN Charter and IMO principles, and poses a serious threat to life and safety of navigation and marine environment. The IMO expressed regret over Russia’s attacks on commercial vessels, their seizures, including search and rescue vessels, which endangered the safety and well-being of seafarers and the marine environment [19].

The IMO Council called on Russia to cease its illegal activities to ensure the safety and well-being of seafarers, as well as the safety of international shipping and the marine environment in all affected areas, and to honor its obligations under relevant international treaties and conventions. The IMO also emphasized the crucial importance of maintaining the safety and well-being of seafarers and called on IMO Member States and observer organizations to provide maximum assistance to seafarers in conflict.

The IMO Council stressed the need to maintain the security of international shipping and the maritime community, as well as supply chains supported by other countries, including those that provide the population of Ukraine with essential food and medicine. The IMO expressed serious concern about the side effects of hostilities in Ukraine on global shipping, logistics and supply chains, including the impact on the supply of goods and food to developing countries and the impact on energy supply; the organization stressed that ships, seafarers and port workers engaged in legitimate trade should not be side victims of the political and military crisis.

The IMO reminded that Ukraine has the right to exercise without delay all its rights to implement the documents adopted under the IMO, as flag state, port state and coastal state. The IMO also requested its committees to consider ways to strengthen the efforts of own Member States and observer organizations to support affected seafarers and commercial vessels, and to consider the implications of this situation for the implementation of IMO instruments.

The IMO Council agreed to encourage the establishment, as a temporary and urgent measure, of a blue safe maritime corridor to allow the safe evacuation of seafarers and ships from high-risk areas and affected areas in the Black and Azov Seas to a safe place to protect seafarers’ lives and commercialize navigation of vessels intending to use this corridor, avoiding military attacks, as well as protecting and securing the maritime economy.

The IMO Council welcomed the proposal to take a number of steps to reduce the suffering of seafarers and their families, and noted that ships should be allowed to leave Ukrainian ports as soon as possible without the threat of attack. The IMO stated that humanitarian corridors should be established for those ships that could not leave immediately, or where this would be dangerous due to the presence of sea mines or other dangers, to ensure the safety of seafarers, allowing them to leave the conflict zone and return home if necessary; and seafarers affected by the conflict should be given free access to contact with their families.

The IMO stated in the resolution that if port State control officers are presented with overdue documentation, a pragmatic approach to the inspection should be taken, given the exceptional nature of the situation.

In response to the violations described above, on March 9, the European Union imposed sanctions on the Russian Maritime Register of Shipping (RMSC) by approving EU Council Regulation 2022/394. This not only means corresponding restrictions on Russian commercial shipping and shipbuilding, but also deprives Russia of at least tens of millions of dollars in direct revenue each year. It also destroys the network of Russian special services that operated under the umbrella of “offices” of the register in many European countries [20]. Also on March 11, the International Association of Classification Societies, after relevant appeals from the state authorities and the expert community of Ukraine, expelled RMRS from its membership [21].

After the beginning of the broad Russian aggression against Ukraine, the authorized state authorities, non-governmental organizations, including our Association, reasonably appealed to the Danube Commission to assess Russia’s participation in this organization, incompatible with the principles of international law, maritime and river safety and interstate transport.

On March 17, the twelfth extraordinary session of the Danube Commission took place in connection with Russia’s military aggression against Ukraine, at which a special decision was made. The Danube Commission rejected the powers of any Russian representative on the Commission, as well as any of their deputies, and it removed Russian representatives from all meetings of the Danube Commission and its working bodies until the restoration of peace, sovereignty and territorial integrity of Ukraine within its internationally recognized borders.

The Commission asked the Contracting States to begin preparations for the revision of the Belgrade Convention with a request to examine whether Russia, as a state without the Danube, could continue to be a Contracting State to the Convention. Danube Commission also instructed the Director-General of its Secretariat to draw up proposals for the implementation of Article 9 of the Belgrade Convention in order to prepare for the dismissal of all Russian Secretariat staff in compliance with the Rules of Procedure and existing employment agreements [22].

Thus, Russia’s aggression on the Black Sea and Sea of Azov is another gross violation of the 1982 UN Convention on the Law of the Sea, the International Convention on Training and Certification of Seafarers and Watchkeeping, 1978, the International Convention on Maritime Search and Rescue, 1979, and the Agreement on Cooperation regarding Maritime Search and Rescue Services among Black Sea Coastal States, 1998, the Memorandum of Understanding on Port State Control in the Black Sea Region, the V, VI, VII and IX Hague Conventions of 1907, the II Geneva Convention of 1949. Russia’s actions mean the aggressor’s disregard for the San Remo Manual on International Law Applicable to Armed Conflict at Sea, 1995 and Russia’s waiver of all bilateral agreements on the status of the Sea of ​​Azov, including the 2003 Agreement on Cooperation in the Use of the Sea of ​​Azov and the Kerch Strait and the 1993 Interdepartmental Agreement on Fisheries in the Sea of ​​Azov.

These violations have already received legal assessment from the International Maritime Organization, the Danube Commission, the EU, UN agencies and civilized maritime nations. Such recommendations to the authorities of Ukraine seem to be important. Denunciation of the 2003 Agreement on Cooperation in the Use of the Sea of ​​Azov and the Kerch Strait and the 1993 Interdepartmental Agreement on Fisheries in the Sea of ​​Azov must be done.

Ukraine must commence proceedings against Russia at the International Tribunal for the Law of the Sea on captured, damaged and destroyed merchant vessels flying flag of Ukraine and other relevant states. Initiation of similar proceedings by third countries under whose flag the vessels have been damaged, blocked or seized is also important.

Interaction with the maritime administrations of all civilized countries of the world on the strict implementation of IMO Resolution C/ES.35 and the decision of the Danube Commission to suspend membership of the Russian Federation must be hold. Ukraine and other states must enforce the cooperation with EU countries on the implementation of sanctions against Russia in the maritime sector against Russian shipping and insurance companies and RMRS, promoting the spread of these sanctions.

Discussion of Russia’s aggression at sea, with the adoption of relevant resolutions by specialized UN agencies such as FAO (on violations of the rights of Ukrainian fishermen), ILO (on violations of the rights of Ukrainian seafarers) and the World Telecommunication Union (on violations of maritime communications) communication and communication systems) and the Paris Memorandum of Understanding on Port State Control must be started; immediate Ukraine’s ratification of the UN Maritime Labor Convention is important for this.

Ukraine’s officials, trade unions and experts should inform the Office of the Prosecutor of the International Criminal Court about Russian war crimes at sea committed in violation of the requirements of V, VI, VII and IX Hague Conventions of 1907, II Geneva Convention of 1949. Lobbying for humanitarian “blue” corridors to the ports of Ukraine under the flags of the UN and the ICRC for the delivery of humanitarian goods, including basic necessities and food, medicines must be iniciated by the civilized nation and intergovernmental agencies, maritime labour and business associations.



Expert article 3211

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