On July 17, 2023, Russia and Ukraine expand hostilities after Black Sea Grain Initiative suspension. Ships headed to each other’s ports could be treated as military targets. Risk of diversion, capture, or destruction for these vessels. Need to reassess balance between belligerent and neutral rights in naval law.
Chaos in the Black Sea
- In the midst of the prolonged Russian aggression in Ukraine, the world is focused on the land-based Ukrainian counter-offensive.
- Within a day, Russia and Ukraine announced that any ship heading to their opponent’s Black Sea port could be seen as carrying military goods.
On 19 July, the Russian Defense Ministry released the following statement:
from 00.00 Moscow time on 20 July 2023, all vessels sailing in the waters of the Black Sea to Ukrainian ports will be regarded as potential carriers of military cargo. Accordingly, the countries of such vessels will be considered to be involved in the Ukrainian conflict on the side of the Kiev regime. In addition, a number of sea areas in the north-western and south-eastern parts of the international waters of the Black Sea have been declared temporarily dangerous for navigation … .
The following day, Ukrainian Ministry of Defense released its own statement:
from the 21st of July 2023 00:00 Kyiv Time, all vessels in the Black sea waters that head to the ports of the russian federation or to temporarily occupied ports of Ukraine, may be considered for risk assessment as vessels carrying a military cargo. Moreover, navigation in the North-East Black Sea region and the Kerch-Yenikal strait has been declared dangerous and prohibited … .
Targets of War
- Declaring a ship as a military cargo carrier permits it to be targeted, reflecting claims by the US, UK, and Ukraine regarding Russia’s motives.
- In response, Ukraine targeted a Russian fuel tanker and labeled six Russian Black Sea ports as “war risk areas.”
- Article 52(2) of Additional Protocol I (AP I) to the Geneva Conventions defines military objectives based on their nature, location, purpose, and effective contribution to military action. This principle is reflective of customary international law.
- However, maritime warfare has different rules. Ships can be considered military objectives at sea without directly contributing to military action, as the law of naval warfare provides a broader scope for defining military objectives.
Targeting Merchant Shipping
Unlike land warfare, maritime law has a history of targeting merchant shipping as part of economic warfare. Enemy merchant ships and cargos are generally lawful prizes subject to capture, while neutral shipping is protected unless involved in specific activities.
The San Remo Manual, a respected guide to maritime conflict law, echoes the AP I definition of military objectives.
It adds specific conditions for when enemy and neutral merchant vessels can be considered military objectives, tied to actions like resisting capture or engaging in activities such as carrying contraband or breaching blockades.
Economic Warfare and the Law of Naval Warfare
AP I and Naval Warfare’s Notions of Military Objectives. The distinction between AP I and naval warfare’s approach to defining military objectives stems from historical acceptance of economic warfare at sea.
Economic warfare involves methods like blockade, contraband, visit and search, and prize law.
Russian and Ukrainian statements reference “military cargo,” but their context expands beyond weakening military forces.
Economic warfare historically encompasses targeting civilian populations along with military forces.
War-Sustaining
- Debate revolves around whether targets contributing to war efforts alone can be military objectives, or if “war-sustaining” functions also apply.
- Majority of states, scholarly works, and expert groups reject viewing revenue-generating objectives as military objectives.
- Various manuals, including the San Remo Manual, the HPCR Manual on Air and Missile Warfare, the Tallinn Manual on cyber operations, and the 2023 Newport Manual on the Law of Naval Warfare, reject this notion.
- The United States is a notable advocate of “war-sustaining” functions as grounds for military objectives, despite a relatively short history and contested grounding in historical and legal context.
Naval Warfare Law
Naval warfare law highlights a clash of core assumptions. Balancing act between belligerents’ quest for victory and neutral states’ maritime trade rights. Historical view prioritizes belligerent hostilities over neutral economic interests.
Current validity of this understanding is debated, with opposing views. James Kraska emphasizes belligerents’ hostilities as more significant, while Andrew Clapham differs. Divergence arises from the question of whether post-Charter international law still recognizes traditional states of war.
Evolution of Naval Warfare Law
Traditional naval warfare law allowed belligerents to subject neutral ship navigation to visit and search rights.”Belligerent rights” emerged pre-UN Charter era, shaped from mid-19th to early 20th century.
Past emphasized unrestricted force during war; post-Charter period embodies limits on force use in international relations. Force lawful only under UN mandate or self-defense right.
Vienna Convention on the Law of Treaties (Article 31(3)(c)) promotes considering relevant international law in interpretation. Focus on systemic integration prioritizes significant objectives over lesser ones.
Heinegg’s Insight on UN Charter and Naval Warfare
Wolff Heintschel von Heinegg notes limited impact of UN Charter on economic warfare against enemy ships and goods.
Contrasts this with measures affecting neutral ships and goods. Heinegg observed emergence of a customary rule by the 1990s: neutral merchant ships unimpeded if flag State bars arms transfer to belligerents.
Qualified Neutrality and Arms Transfer
- Numerous Western states hold qualified neutrality, sending arms to Ukraine.
- Such stance might prevent claiming exemption from search, blockades.
- States prohibiting arms transfer can seek exemption; often from the Global South.
- These states had minimal influence in shaping pre-decolonization naval law.
- Food shortages due to shipping decline severely impact the global south.
The law of naval warfare predates the UN Charter, raising the question of whether its belligerent rights are an isolated legal body or part of a unified international system.
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Source: Articles Of War
