Sea Control - Sea Control 331 - Russia's Naval Blockade with Dr. Alexander Lott

Episode Date: March 27, 2022

Links1. "Russia’s Blockade in the Sea of Asov: A Call for Relief Shipments for Mariupol," by Dr. Alexander Lott, EJIL: Talk! Blog of the European Journal of International Law, March 14, 2022.2. The Estonian Straits (International Straits of the World), by Alexander Lott, Brill - Nijhoff, April 5, 2018.3. "Implications of Hybrid Warfare for the Order of the Oceans," by Alexander Lott, CIMSEC, August 3, 2020.4. San Remo Manual on International Law Applicable to Armed Conflicts at Sea, June 12, 1994.5. IMO Council decisions on Black Sea and Sea of Azov situation, March 11, 2022.6. Montreux Convention, July 20, 1936.

Hey folks, Jared here. Today, my guest is Dr. Alexander Lott, and we'll be discussing his contribution to the European Journal of International Law's blog, Russia's Blockade in the Sea of Azov, a Call for Relief Shipments for Mariupol. This episode was edited and produced by Jonathan Selling. We are still looking for audio editors to add to our team. So if you're interested, please reach out to us via email at ccontrolatsimsec.org. Send us your resume. Finally, I want to take the opportunity to recommend our partners in the SimSec Podcast Network, The Bilge Pumps. You can find Alex, Jamie, Drack, and a pile of iron brew bottles wherever you download your podcasts. On that note, I'll turn it over to Kim Bursman.

You're listening to Sea Control, hosted by the Center for International Maritime Security. Aloha, shipmates, and welcome back aboard Sea Control. My guest today is Dr. Alexander Lott. will be discussing his post on EJL Talk, the blog of the European Journal of International Law, and the article is entitled Russia's Blockade in the Sea of Azov, a Call for Relief Shipments from Mariupol. So Dr. Lott, thank you for joining us. Would you mind introducing yourself to our listeners? Hi, many thanks for your invitation. It's my pleasure to be aboard Sea Control. I am a postdoctoral fellow at the Norwegian Center for the Law of the Sea, which is part of the University of Tromso, the Arctic University of Norway.

I am also affiliated to the University of Tartu Faculty of Law. A few years ago, I published a book on the legal regime of straits in the almost half a century old series, International Straits of the World. And now I am working on a new book on hybrid threats and the law of the sea. This forms part of my research project on the law of the sea and hybrid warfare, which received recently funds from the EU Commission's Marie Curie Individual Fellowships Program. Thanks. Well, thank you again for coming on. As a reminder, all opinions are our own and not reflective of any of the institutions with which we might be otherwise associated. So we'll jump right into the questions. Why did you describe the situation in Mariupol as the, quote unquote, worst humanitarian situation, end quote, in Ukraine right now? Mariupol has a strategic location on the coast of the Sea of Azov.

It separates the Russian-annexed Crimean Peninsula from the Russian-controlled breakaway regions of Donetsk and Luhansk. Mariupol's population of over 400,000 has been subjected to indiscriminate shelling. It is estimated that there are already thousands of civilian deaths. For weeks, the inhabitants have been cut off from heat while suffering from freezing temperatures and deprived from water, electricity, medical and food supplies. Now, I come from the northernmost university in the world. Yesterday, I flew from Tromso, which is relatively close to the North Cape, back to my home country, Estonia. I can confirm that in Tromso, the weather is much milder than it has been for the past couple of weeks in Mariupol. The International Committee of Red Cross spokesperson has characterized the situation in Mariupol as apocalyptic.

It was so already a couple of weeks ago, in the beginning of March. Since then, the humanitarian situation in Mariupol has got worse, day by day. the humanitarian corridors leading to other areas of russian-controlled parts of ukraine are ineffective they have been constantly targeted by the russian artillery even on the agreed day-long ceasefire on 9th of march some claim that the humanitarian corridors are also mind. The situation in Mariupol has been compared to the blockade of St. Petersburg from 1941 to 1944. I read the news today that Russian forces have entered the center of Mariupol. According to these recent reports, since yesterday, the Ukrainian forces are cut from the port

and access to the sea i want to note that we are recording this 19th march so if the situation changes any time between now and when we actually go to publish this that's the that's the reason that's why we're not talking about whatever the great change was um so next question then uh what constitutes a blockade and where does the definition come from blockade is mentioned in For example, Article 42 of the UN Charter and according to Article 3C of the UN General Assembly Resolution on the definition of aggression, blockade of the ports or coasts of a state by the armed forces of another state is an act of aggression. At the same time, blockade is left undefined in positive law. Still, the definition of blockade in the U.S. Commander's Handbook on the Law of Naval Operations is widely accepted. accepted according to this i killed blockade is a belligerent operation to prevent vessels and or

aircraft of all states enemy as well as neutral from entering or exiting specified ports airfields or coastal areas belonging to occupied by or under the control of an enemy state the In legal scholarship, some authors have hypothesized that blockade is an archaic concept and method of naval warfare. They also have argued that as a legal concept, it has become obsolete. it. But in my view, the current situation in the Black Sea shows that the laws of blockade are still relevant today. So is Russia actually executing a blockade in the Sea of Azov? In my view, it is. In the wake of its invasion of Ukraine at 4 a.m. on 24th of February, Russia suspended commercial navigation in the Sea of Azov until further notice.

Under Article 2, Section 3 of the 2003 Kerch Treaty, concluded between Ukraine and Russia, the access of neutral states warships and other government ships to the Sea of Azov is closed during the ongoing war. since it is dependent on Russia's and Ukraine's mutual prior permission. Russia also controls the airspace above the Sea of Azov. And, of course, Ukrainian government ships and warships serve as military objectives under the rules of naval warfare. The same holds true for merchant vessels flying ukraine's flag provided that they meet certain conditions in effect it appears that since russia's declaration of 24th of february russia implemented a blockade against ukrainian cities of bergansk which is now controlled by russia

and Mariupol. According to data received from SHIPS automatic information system that is visible on for example marine traffic website, the access of SHIPS to the Sea of Azov has been blocked in the Gadget Strait since the 24th of February. Since then a significant number of merchant ships remain anchored either in the ghost rate or at its approaches. Overall, Russia's practice in the Sea of Azov following its declaration of 24th of February appears to meet the main requirements of naval blockade declaration, notification, impartiality and effectiveness how is Russia able this is in commercial navigation in the sea of Azov well present to rule 95 of the Sanremo manual

a blockade must be affected and this is a question of fact Russia's blockade of the Sea of Azov is clearly effective. In large part, this is due to Russia's complete control over the Gadistrate that serves as the only gateway to the Sea of Azov. Russia demonstrated its ability to completely cut off the Sea of Azov from the Black Sea in 2018, when it placed a commercial ship under the Kerch Strait Bridge. Consequently, Ukrainian warships were not able to navigate from the Black Sea to the Sea of Azov. The Russian ships also fired at the Ukrainian ships, causing some casualties in the Ukrainian servicemen. Russia seized the Ukrainian warships and detained the crew. The incident is the subject

of UNCLOS, Annex 7 Arbitral Tribunal's ongoing proceedings. Russia constructed this Crimean bridge over the Kersh Strait after the annexation of Crimea, and it has been used since 2018. On Ukraine's request, the UNCLOS, Annex 7 Arbitral Tribunal, is expected to rule in another case initiated by Ukraine against Russia on, among other questions, legality of the Crimean breach over the cash trade. It's a legal requirement to, quote unquote, declare a blockade, let belligerents off the hook, because they can just not declare anything, but in effect have an effective blockade. Or does the declaration of 24 February actually count as the declaration in this case? This question actually is particularly relevant in the context of the question whether Russia has established a blockade of the entire Ukraine's Black Sea coast, outside the Sea of Azov, I haven't noticed any announcements

by which Russia had declared a blockade in the Black Sea. But according to the British Ministry of Defense, Russia has indeed established a distant blockade of Ukraine's whole Black Sea coast, effectively isolating Ukraine from international maritime trade. However, whether this amounts to a big, belligerent blockade in law is still questionable. I do believe that a clear declaration of blockade would be somewhat incompatible with Russia's official position that it is not in a war with Ukraine, and instead has launched simply a so-called special military operation. reportedly russian soldiers were also told that they need to head to ukraine for the purpose of military exercises so i'm afraid that in this context russia's declaration of 10th of february

of naval exercises in the black sea is the closest to a declaration of blockade of ukraine's coast in the Black Sea. But it is at least doubtful that it amounts to an actual declaration of belligerent blockade in law. According to Rule 93 of the San Remo Manual, a valid blockade must indeed be declared and notified to all belligerents. My colleague, Magna Frostad, has found that historically, diplomatic notes were used for declaring a dissident airman and mariner's, usually, suffices. If you look at the case at hand, then Silvazov was ordered by the Russian Ministry of Defense for the day of the Russian invasion of Ukraine on 24th February. It was announced by Russia's Federal Agency for Maritime and River Transport. It is unclear to what extent Russia's announcement of the suspension of commercial shipping in the Sea of Azov can be seen as a declaration of a blockade.

Russia did not clearly announce a blockade of the Sea of Azov. However, in my opinion, this formality is not decisive for the legal classification of Russia's announcement. And in fact, during the negotiations of the Sanremo manual, it was the majority opinion that rules of naval blockade are applicable to blockade, regardless of the name given to such actions. What is Russia's obligation to allow shipments of humanitarian supplies? So, according to Rules 103, 204 of the Sanremo Manual, Russia's blockading body has been obliged

to provide for free passage of foodstuffs and other essential supplies to the port of Mariupol. These include medical supplies for the civilian population or for the wounded and sick members of armed forces. This obligation had particular significance throughout the past couple of weeks when the fighting in Mariupol stopped humanitarian convoys to reach the city and the Ukrainian forces still controlled the port. Russia is required to respect the right of civilians and soldiers in Mariupol to receive humanitarian relief shipments, for example from the International Committee of the Red Cross or from neutral states. Such a mission could have been launched also from the Mediterranean as ships carrying humanitarian

aid to Mariupol are allowed to pass through the Turkish Straits. During this war the Bosporus and Dardanelles are closed under Article 19 of the 1936 Montreux Convention only to belligerent warships. Is there a legal recourse for Ukraine and how swiftly might that be adjudicated, if at all? And even if it is adjudicated, will it have any impact? Because I think we've already seen, I can't remember the court's name, issue a directive to stop the, quote-unquote, special military operation,

but that's obviously had no impact. No, that was the ICJ. Indeed, two days after the launch of the invasion, Ukraine instituted proceedings against Russia at the International Court of Justice and requested the court to establish that Russia's so-called special military operation is based on a false claim of genocide.

The International Court of Justice reacted swiftly, I would say, to Ukraine's request and issued its order of provisional measures in less than three weeks on the 16th of March. Unfortunately, contrary to the resolution of the ICJ's almost anonymous order of provisional measures, Russia indeed has still continued its invasion of Ukraine. The UN General Assembly also adopted the resolution aggression against Ukraine. Over 140 states voted in favor and only five against. They condemned the Russian aggression in violation of the ban on the use of force and demanded the full withdrawal of Russian forces from Ukraine. When it comes to the blockade of the Sea of Azov, I think that it is also possible that the blockade in the whole maritime area of the Sea of Azov is, in general, unlawful, in particular under the laws of naval warfare. Ukraine maintains in its dispute with Russia before UNCLOS annex 7 arbitral tribunal that the regime of transit passage applies to the gas trade if correct and this claim of course is

disputed by Russia then according to rule 27 of the Sanremo manual the regime of transit passage continues to apply in the ongoing war and russia would be required to ensure safe passage throughout the gas straight to neutral ships and aircraft not heading to the blockaded area this follows from the icj's judgment in the corfu channel case as well as from the sanremo manual in this case Russia's suspension of all commercial navigation in the Kyrgyz Strait and the Sea of Azov from 24th of February would be illegal. These proceedings, of course, take time until they reach their final settlement. The dispute between Ukraine and Russia before the International Court of Justice has just started, while the two disputes between Ukraine and Russia before the UNCLOS Annex VII Arbitral Tribunal were launched respectively in 2016 and 2019. Thanks. And then one final question is, how have the Russians treated civilian vessels operating in and around Ukrainian waters to date?

In February and in March, numerous attacks targeted neutral merchant ships in the Black Sea. These included a Panama flag cargo ship, Helt, that was owned by an Estonian company and reportedly seized by the Russian Navy. It was used as a sort of human shield, reportedly, to cover the movement of Russian ships of Fodessa until it sunk on the 3rd of March. There have been also other attacks against neutral commercial ships, including a Turkish-owned ship sailing under the flag of the Marshall Islands, a Moldova-flagged but Ukrainian-owned tanker, and a Bangladeshi-flagged ship. According to media reports, Ukraine claims that Russia is responsible for these attacks. The Council of the IMO has also issued a statement on the situation in the Black Sea, and CFO also condemning the Russian attacks against commercial vessels. Whatever the ownership of a commercial ship that is attacked, the right of self-defense rests on the flag state.

None of the flag states invoked their potential right of self-defense under Article 51 of the UN Charter in response to these unlawful uses of force. Now, the International Court of Justice has not clearly decided on whether the use of force against a single commercial ship can amount to an armed attack under Article 51 of the UN Charter. In fact, the United States claimed in the oil platforms case that Iran, when it attacked in 1987, the US commercial ship during the Iranian-Iraqi war launched an armed attack against the US, triggering its right of self-defense. But in its judgment of 2003, the ICJ disregarded the United States' claim. But it did so not because it would have ruled out the possibility that the use of force against a single commercial ship can amount to an armed attack. Instead, it found that there is a lack of evidence of Iran's responsibility. And that the missile was not specifically aimed at that particular U.S. commercial ship, but instead simply, let's say, programmed to hit some target in the Kuwaiti waters. The attacks against neutral ships in the Black Sea have not targeted systemically any particular state.

legally speaking, it is also unclear if there is sufficient evidence of Russia's direct involvement in these attacks. It is also possible that these attacks were indiscriminate. For example, the missiles were simply aimed to hit some target in the Ukrainian waters. The clear exception is the attack against the Panama Flag and Estonia-owned cargo ship held as it was in Odessa port, specifically selected for boarding reportedly by the Russian Navy.

And its crew was forced to follow the orders from the Russian Navy. I think that should Russia hypothetically launched attacks against merchant ships carrying humanitarian relief from Mariupol, there would likely be an increased public pressure for neutral states to intervene in the conflict. So it is important to receive assurances from Russia that it grants protection to ships carrying humanitarian relief shipments for Mariupol. Well, unfortunately, that's all the time that we have for today.

I'd like to thank my guest, Dr. Alexander Lott. Dr. Lott, where can we find you online and what are you working on next? You can find me on LinkedIn and academic social networking sites. Also, please feel free to contact me by email, alexander.glott.uit.no. Next, I'm continuing my work on a book about hybrid threats and the law of the sea that focuses on discriminatory navigational restrictions and the use of force in straits. It will be published open access by Brill, hopefully within the next few months. Also, we are soon holding a workshop on the Sanremo manual and its revision in Tromso.

So the current war provides a wide selection of legal problems to address in the workshop. And I think that the rules of blockade are among such issues. Well, thank you again for coming on to our listeners. Thank you for tuning in. We'll see you next time. There I met with Greasy Annie, put it on your shimbo now. So help me pour wine, put it in the alley. Way, hey, put it in the alley.

Help me pour wine, put it in the alley. Put it on your shimbo now. A pot of rum and a pot of gin, oh. Way, hey, put it in the alley. A pot of wine, both white and red, oh. We'll be right back.