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  • Shushrut Devadiga and Drishti Bhatia

Why Russia’s withdrawal from the Black Sea Grain Initiative represents a violation of International Law

This article has been co-authored by Shushrut Devadiga and Drishti Bhatia, both penultimate year students at NMIMS Kirit P.Mehta School of Law.


Introduction

 

Russia’s special military operation in Ukraine, dogged with allegations of gross human rights, has raised international concern. An early Russian blockade of Ukraine, a major grain exporter, triggered a surge in food prices, disproportionately affecting developing countries which was only resolved through the finalising of the Black Sea Grain Initiative in July 2022, allowing safe passage of Ukrainian grain exports. However, on 17th July 2023, the Kremlin suspended its participation, prompting major International criticism and concerns of a renewed food crisis. These actions are manifestly illegal under international law, as detailed in this article. Given the gravity and impact of Russia’s transgressions, concerted action by the international community to address the situation is imperative.

 

The official Russian explanation cites alleged obstacles to its agricultural exports with it, demanding the (1) reconnection of the Rosselkhozbank to the SWIFT; (2) resumptions of its ammonia exports via a Ukrainian pipeline and (3) renewal of agricultural spare parts imports. Yet, considering Russia’s worsening global and military situation due to its increased reliance on international partners (Turkey and China) along with military and political reversals, including the Ukrainian counteroffensive, and the attack on the Kerch Bridge, suggest something else entirely.

 

Applicability and Russian Violation of International Law

 

Russian Targeting of Ukrainian/Neutral Merchant Ships

 

One of the cardinal principles of International Humanitarian law is that of distinction which is outlined in Article 48 of Additional Protocol One to the Geneva Convention (Protocol 1). It mandates parties to a conflict to distinguish between civilians and military objectives, placing a duty to target only military objections. Article 50 of the aforementioned protocol defines civilian persons falling outside the categories included under Article 4 (A) (1), (2) & (3) of the Third Geneva Convention and Article 43 of Protocol 1. This definition of civilians implicitly includes all other categories of prisoners of war mentioned in Article 4 (A), including, “Members of crews, including masters, pilots and apprentices of the merchant marine”. Furthermore, Article 51 of Protocol 1, guarantees civilian population and individuals protection from dangers posed by military operations and prohibits indiscriminate attacks.

 

After the suspension, the Russian Defence Ministry, on 19th July, announced that all ships bound for Ukrainian Black Sea ports as “potential carriers of military-purpose cargoes”. This declaration also treats all such ships, regardless of their flag, as participants in the Ukrainian Conflict violating the rights procedures established in UNCLOS (discussed at a later stage). More importantly, this decision prima facie contradicts the rule of distinction through its broad categorisation of all ships, civilian or combatant, as military targets contract to the definition of military objection provided in Article 52(2) risking indiscriminate attacks on civilians It further breaches the  test of proportionality established under Article 51(5)(b) of the Protocol as this blanket targeting is in definite excess of the requirement of such attacks having a “concrete and direct military advantage anticipated”, thus resulting in disproportionate civilian casualties compared to expected military advantage.

 

Additionally, San Remo Manuel (the Manuel), through Rules 60 and 67 allows for the targeting of neutral merchant ships only if there is reason to believe that such vessels carry contraband, breach a blockade or act on behalf of the enemy nation. However, Russia’s actions must pass the doubt text laid down by Rules 93-95 of the Manuel, which requires (1) a declaration and notification of blockade to all parties and (2) for the blockade to be effective. Though Russia may have fulfilled the first test, it, nonetheless, failed the second test due to a lack of an effective blockade. The loss of Zmiinyi Island along with its naval withdrawal from Crimea following Ukraine’s attacks on the Black Sea Fleet means that Russia has effectively lost control of the Black Sea, subjecting its actions to International scrutiny.

 

Russia has engaged in the deliberate targeting of merchant vessels, as evident in a Declassified British Intelligence report accusing Russia of intentionally attempting to strike a Liberian-flagged civilian cargo ship through multiple missiles in August 2023, which Ukraine intercepted. In October 2023, another Liberian-flagged ship was hit by a mine. As previously discussed, Merchant Navy crew members are classified as civilians and protected from indiscriminately targeting. The targeting of these vessels, which has compromised the safety of their crew, constitutes a “grave breach” of the Geneva Conventions as per Article 85(3)(a) of Protocol 1 by making “civilian population or individual civilians the object of attack” as demonstrated in previous examples.

 

Blockade of Ukrainian Ports

 

Russian attempts to blockade Ukraine predate the 2022 invasion. In April 2021, the Kremlin announced the suspension of the rite of passage of foreign warships and other state vessels at 3 points in the Black Sea. From the onset 2022 conflict until the Black Sea Grain Initiative, Russia had placed Ukraine under a de facto blockade, which resumed after the Initiative’s collapse. On the day of the invasion, more than 100 foreign-flagged merchant ships were stranded in Ukrainian ports along with their sailors, many of whom have still not been rescued. In August 2022, a UN chartered cargo ship carrying food grain to Africa remained stuck in Ukraine while the Black Sea grain initiative was still in force. Russia’s new blockade, along with reports of Russian mining of Black Sea ports in October 2023, is a cause for concern.

 

These actions are unequivocally of the right of innocent passage,  granted to ships of all states under Article 17 of the United Nations Convention on the Laws of Sea (UNCLOS). Under Article 19 of the UNCLOS, a passage is considered to be innocent unless it's prejudicial to the coastal state’s peace and security through threat/employment of force; bearing/exercising the use of weapons; espionage detrimental to the security of the coastal state, etc. Most of the merchant ships who have been denied this right don’t demonstrably threaten Russia’s peace and security. Though Russia is permitted to regulate passage under Article 21 of UNCLOS, such regulations cannot hamper the right to innocent passage except in strict accordance with the convention, especially if such hindrance amounts to (1) impairment of the right of innocent passage; or (2) discrimination against the vessels of any nation.

 

Additionally, though constitutional states can suspend the right of innocent passage under Article 25 for its security, such suspension can only take place after requisite publication which the blockade violates by suspending passage without prior formal notification, spanning an indefinite period and a broad region. Priors Russian suspensions, such as 2021s, did not meet the threshold of international requirements as it halted passage 24/7 for 6 months, which was not temporary.

 

Assessing the Blockade from the standpoint of International Humanitarian Rights perspective reveals an arguable violation of Article 51 (discussed previously) and Article 54 of Protocol I, with the latter providing protection for “objects indispensable to the survival of the civilian population” and prohibiting the employment of civilian starvation, aligning with Article 8(2)(b)(xxv) of the Rome Statute. However, Additional Protocol I is ambiguous regarding the applicability of these provisions to blockades through Article 49(3), (which excludes naval/aerial conflicts from the meaning of attack).  As the Rapporteur of Committee III, noted, “The fact that the paragraph does not change the law of naval blockade is made clear by Article 44 (Article 49 in the final text)”.

 

However, some have dissented from this viewpoint with Professor Heintschel von Heinegg dismissing  this as “untenable” and contending that if a blockade results in insufficient supplies for civilian survival, then “the blockading party must provide for free passage of such essential supplies.” Rule 102  of the San Remo Manual prohibits blockades whose sole purpose is the starvation of the civilian population. The International Committee of Red Cross (ICRC) has consistently advocated for a broad interpretation of the term “attack” with ICRC stating that “an action aimed at causing starvation would constitute a violation of this Protocol.”  Certain scholars have also argued that a Naval Blockade could constitute a violation of Article 8(2)(xxv) of the Rome Statute which prohibits the intentional of starvation of civilians during an International Armed Conflict. 

 

 

Russian aggression, including its seizure of Ukrainian ports and the nation’s access to key fertilizers and seeds supplies, is resulting in food shortage in Ukraine. The UN Secretary-General has expressed grave concerns regarding food availability and affordability if Ukrainian farmers cannot import fertilizers and seeds for the impending sowing season.  Russian intentions of starving Ukraine are further evident by the constant and deliberate targeting of Port and agricultural infrastructure. In July 2023, Odesa’s crucial grain and terminals were attacked. In August, Russia's maritime and grain infrastructure in the Danubian port of Izmail demonstrated Russia’s intentions.

 

Conclusion

 

The Black Sea Grain Deal was created against the backdrop of the war-induced global food insecurity and mounting international pressure and Russia’s recent actions have exposed the most vulnerable, to bear the costs and consequences. The previous and present Russia’s naval blockade, which has limited access to Ukranian sea ports, poses fervent questions about its violations of International Law. Russia’s actions as stated above, have led to a clear-cut violation of the rules of innocent passage and it’s time for the country to reconsider its position and renew the Black Sea Grain Deal to prevent the further dismantling of international frameworks that are set to protect objects that are intrinsic to human survival. It is therefore essential for the international community to force Russia back to the negotiating table, or failing that, take more severe actions under the auspices of Chapter VII of the UN Charter.

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