Maritime Humanitarian Corridors in Ukraine (Part 1)

Part I: Evacuating Seafarers Dr Reece Lewis for Human Rights at Sea

Civilian seafarers have been caught up in Russia’s invasion of Ukraine (footnote 1). Guy Platten, Secretary General of the International Chamber of Shipping, delivered the following message at an urgent meeting of the International Maritime Organization (IMO): “Multiple ships have been hit by munitions, seafarers have been killed and injured, and seafarers of all nationalities are trapped on ships berthed in ports. It is of the utmost urgency that their evacuation from these areas of threat should be ensured by those States with the power to do so” (footnote 2). 

The latest figures show that 70 vessels from 16 countries remain stranded in 6 Ukrainian ports (Kherson, Nikolaev, Chernomorsk, Ochakov, Odessa and Yuzhniy) (footnote 3). A dire humanitarian situation could arise as it is reported that seafarers continue to be attacked and are now low on supplies (footnote 4). 

While the UN Convention on the Law of the Sea (UNCLOS) is a peacetime treaty, it nevertheless informs the rights of neutral states in an armed conflict (footnote 5). Vessels of neutral states continue to enjoy the rights provided for them in UNCLOS—including the unencumbered right of the innocent passage through Ukraine’s territorial sea to escape the conflict zone (footnote 6). However, the ongoing conflict in the region often makes this impossible.

“Maritime humanitarian corridors” have been proposed to allow the safe passage of vessels and seafarers out of the conflict zone. The IMO and the International Labour Organization (ILO) have appealed to the UN for these to be established as a provisional and urgent measures (footnote 7), and senior representatives of the UN continue diplomatic efforts to achieve this (footnote 8).  

Russia has unilaterally declared that it has established two humanitarian corridors, one in the Black Sea and the other in the Sea of Azov (footnote 9). The unilateral nature of this declaration—considering Russia’s seeming disregard for international humanitarian law throughout the conflict so far—only furthers doubts about the effectiveness and safety of the so-called “safe lanes for navigation”. An internationally/UN secured maritime humanitarian corridor would provide greater reassurance to seafarers.

There exists no settled definition of a “humanitarian corridor” in international law, nor is there any positive law concerning their establishment (footnote 10). “Humanitarian corridors” are also not one of the protected zones recognised by the Geneva Conventions of 1949. Nevertheless, by way of analogy, international humanitarian law provides the applicable rules (footnote 11).

Typically, these apply on land, but there is nothing preventing their application at sea (footnote 12). The geographical scope of a sea-based corridor would provide a passage route from Ukrainian ports through Ukrainian territorial sea and then beyond it (footnote 13).  

Humanitarian corridors are generally understood to involve an agreement between the belligerent states (in this case, Russia and Ukraine) to provide safe routes for civilians to escape the conflict—or for humanitarian assistance to come in—for a limited time and through a geographically defined corridor (footnote 14). The creation of safe passage routes also does not affect the continuing application of international humanitarian law to the armed conflict (footnote 15).  

This means that within the proposed corridor and outside it, belligerent states are under the legal obligation to protect the civilian population including seafarers against the effects of hostilities (footnote 16). The “principle of distinction” is a central tenet of international humanitarian law and applies equally at sea as it does on land (footnote 17).  Only military targets and not civilians and merchant vessels and crew can lawfully be attacked (footnote 18). As regards merchant vessels flying the flag of neutral states, Article 67 of The San Remo Manual on International Law Applicable to Armed Conflicts at Sea considered an authoritative restatement of the laws of war explicitly provides that they ‘may not be attacked’. 

In order to lawfully be considered as a ‘safe zone’, and a humanitarian corridor must necessarily be understood as such; according to international human rights law “, a zone can only be “safe” if certain human rights are ensured to those within it, including: the right to life; the right to an adequate standard of living; the right to be free from torture and cruel, inhuman or degrading treatment; and the right to the highest attainable standards of health” (footnote 19).  

International humanitarian law also regulates the methods and means of warfare, including naval warfare (footnote 20). There are reports of the use of naval mines in the Black Sea and the Sea of Azov. During an armed conflict, minelaying states are bound by Articles 1 and 3 of the 1907 Hague Convention VIII to the principle of effective surveillance and control of their mines and are under a duty to warn vessels once control has been lost (footnote 21). Article 1(a) stipulates that floating or unanchored mines are forbidden ‘except when they are so constructed as to become harmless one hour at most after the person who laid them ceases to control them. 

Russia has declared Military Exclusion Zones (which have been referred to as a “blockade” (footnote 22)) in the Sea of Azov and the Black Sea. Russia is under the obligation, in customary international law, to ensure the safe passage of neutral merchant vessels through these zones (footnote 23). Humanitarian corridors enable Russia to comply with this obligation, though its current declaration does not seemingly clearly adjoin to Ukrainian ports (footnote 24). This must change if Russia is to comply with the obligation to ‘endeavour to remove the civilian population, individual civilians and civilian objects under their control from the vicinity of military objectives’ (footnote 25). 

Consequently, to comply with international humanitarian law, maritime humanitarian corridors must provide a safe passage for civilians (seafarers and vessels) out of Ukrainian ports. To comply with the ‘principle of distinction’, the ports and corridors must be demined (footnote 26), and the threat of unanchored mines must be removed. Above all, civilians must be free from attack. The construction of internationally secured humanitarian corridors is urgently needed to achieve this.

Part 2 of this piece will consider the application of humanitarian maritime corridors to resume Ukrainian exports in order to avert a global food crisis.

Written by Dr. Reece Lewis, Lecturer in Law, Cardiff University. My thanks to Dr David Turns, Centre for Defence Management and Leadership (Cranfield University), Defence Academy of the United Kingdom, and colleagues for their comments on earlier drafts.

Footnotes: 

[1] See Ship Security Advisor No.02-22 at https://www.register-iri.com/wp-content/uploads/SSA-2022-02.pdf and Raul (Pete) Pedrozo, ‘Maritime Exclusion Zones in Armed Conflicts’ (12 April 2022) at https://lieber.westpoint.edu/maritime-exclusion-zones-armed-conflicts/.

[2] International Chamber of Shipping, Press Release, 10 March 2022 at https://www.ics-shipping.org/press-release/supply-chain-issues-will-be-compounded-by-lack-of-ukrainian-and-russian-seafarers-says-global-body-representing-international-shipping/#:~:text=%E2%80%9CThe%20conflict%20in%20Ukraine%20is,issues%20not%20of%20their%20making.

[3] This is acknowledged by the Ministry of Defence of the Russian Federation, see Statement of the Joint Coordination Headquarters of the Russian Federation for Humanitarian Response (4 June 2022), available at https://eng.mil.ru/en/news_page/country/more.htm?id=12424267@egNews.

[4] Lori Ann LaRocco, ‘Under attack and low on supplies, 1,500 seafarers trapped in Ukrainian waters’ (8 April 2022) https://www.freightwaves.com/news/1500-seafarers-trapped-ukraine-low-supplies-under-attack-russia

[5] International humanitarian law has traditionally been understood as applying as lex specialis in armed conflicts—i.e., the law of war supersedes the application of other legal rules. Over time, this view has softened to permit the continuing application of other legal rules, subject to the context of war. It is for this reason that it is generally understood that neutral vessels continue to exercise their rights in UNCLOS, subject to obvious practical limitations during the conflict. See James Kraska, ‘Military Operations’ in D Rothwell, A Oude Elferink, KN Scott and T Stephens, The Oxford Handbook of the Law of the Sea (2015 OUP) Ch 38, and J Ashley Roach, ‘Neutrality in Naval Warfare’ in in Max Planck Encyclopedia of Public International Law (March 2017, Oxford University Press).

[6] Articles 17 and 19 UNCLOS.

[7] Extraordinary Session of the Council of the IMO (C/ES.35) (10 and 11 March 2022), at https://www.imo.org/en/MediaCentre/PressBriefings/pages/ECSStatement.aspx; See also IMO, Circular Letter No. 4524/Add.2, Resolution Statements: “5. The MSC emphasized that ships should be entitled to safely leave ports of Ukraine at the earliest opportunity without threats of attack” and “6. The MSC expressed its support for the IMO Secretary-General to collaborate with Member States to establish a blue safe maritime corridor in the Black Sea and the Sea of Azov to allow safe passage from the area”.

[8] See Michelle Nichols, ‘UN Aid Chief in Moscow to Discuss Ukraine Grain Exports’ (2 June 2022) at https://gcaptain.com/un-aid-chief-in-moscow-to-discuss-ukraine-grain-exports/.

[9] Communication from the Government of Russian Federation, Circular Letter No.4543

28 March 2022, at https://wwwcdn.imo.org/localresources/en/MediaCentre/HotTopics/Documents/Black%20Sea%20and%20Sea%20of%20Azov%20-%20Member%20States%20and%20Associate%20Members%20Communications/Circular%20Letter%20No.4543%20-%20Communication%20From%20The%20Government%20Of%20The%20Russian%20Federation%20(Secretariat).pdf; And see Statement of the Joint Coordination Headquarters of the Russian Federation for Humanitarian Response (4 June 2022), at https://eng.mil.ru/en/news_page/country/more.htm?id=12424267@egNews.

[10] See Geoff Gilbert and Anna Magdalena Rüsch, Creating safe zones and safe corridors in conflict situations: Providing protection at home or preventing the search for asylum? Policy Brief 5, UNSW Sydney/Australia Global University, June 2017.

[11] Rule 55 (Access for Humanitarian Relief to Civilians in Need), of the International Committee of the Red Cross’s [ICRC’s] Study on Customary International Humanitarian Law; And Article 160 of the San Remo Manual. See analogous state practice: for example, in 20 July 2006, Israel established a humanitarian corridor between Lebanon and Cyprus; See James Kraska, ‘Safe Conduct and Safe Passage’ in Max Planck Encyclopedia of Public International Law (December 2009, Oxford University Press).

[12] Article 160 of the San Remo Manual which provides that ‘The parties to the conflict may agree, for humanitarian purposes, to create a zone in a defined area of the sea in which only activities consistent with those humanitarian purposes are permitted’. There have been previous calls for such corridors at sea in other contexts, see e.g., UN News Centre, ‘Second catastrophe faces Myanmar without more access for aid-UN (13 May 2008) at http://www.un.org/apps/news/story.asp?NewslD=26647&Cr=myanmar&Crl=.

[13] Which would continue South into Ukraine’s Exclusive Economic Zone and eventually into Turkey’s Exclusive Economic Zone, or Southwest into Romania’s Exclusive Economic Zone or Territorial Sea, in accordance with Maritime Delimitation in the Black Sea (Romania v. Ukraine), Judgment, I.C.J. Reports 2009, p. 61 and the Agreement between the Government of the Republic of Turkey and the Government of the Union of Soviet Socialist Republics concerning the Delimitation of the Continental Shelf Between the Republic of Turkey and the Union of Soviet Socialist Republics in the Black Sea, of 23 June 1978.

[14] Article 70, Additional Protocol I to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, of 8 June 1977 (hereafter Additional Protocol 1).

[15] See Article 23, Geneva Convention IV; Article 70, Additional Protocol 1.

[16] Article 48, Additional Protocol I to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, of 8 June 1977 (hereafter AP1).

[17] See Article 38, San Remo Manual on International Law Applicable to Armed Conflicts at Sea 1994.

[18] See Article 41, San Remo Manual; and Rule 1 of the ICRC’s Study on Customary International Humanitarian Law; Articles 48, 51(2) and 52(2), Additional Protocol 1.

[19] See Geoff Gilbert and Anna Magdalena Rüsch, Creating safe zones and safe corridors in conflict situations: Providing protection at home or preventing the search for asylum? Policy Brief 5, UNSW Sydney/Australia Global University, June 2017, Section 2.4. However, the continuing influence of the lex specialis maxim often complicates the simultaneous application of human rights in a conflict situation—see ICRC, ‘IHL and human rights’ at https://casebook.icrc.org/law/ihl-and-human-rights.

[20] See Part IV of The San Remo Manual.

[21] See David Letts, ‘Beyond Hague VIII: Other Legal Limits on Naval Mine Warfare’ (2014) (90) International Law Studies, 446, who explains how these are customary rules applicable to modern naval mines.

[22] See Alessio Patalano, ‘Russia’s blockade of the Black Sea demands a global response’ (2 June 2022) at https://asia.nikkei.com/Opinion/Russia-s-blockade-of-the-Black-Sea-demands-a-global-response.

[23] See Raul (Pete) Pedrozo, ‘Maritime Exclusion Zones in Armed Conflicts’ (12 April 2022) at https://lieber.westpoint.edu/maritime-exclusion-zones-armed-conflicts/.

[24] See Annex 1 of Communication from the Government of Russian Federation, Circular Letter No.4543 28 March 2022, at https://wwwcdn.imo.org/localresources/en/MediaCentre/HotTopics/Documents/Black%20Sea%20and%20Sea%20of%20Azov%20-%20Member%20States%20and%20Associate%20Members%20Communications/Circular%20Letter%20No.4543%20-%20Communication%20From%20The%20Government%20Of%20The%20Russian%20Federation%20(Secretariat).pdf.

[25] Article 58, Additional Protocol 1.

[26] Russia has declared that it has undertaken demining activities in establishing the two safe navigation routes (Statement of the Joint Coordination Headquarters of the Russian Federation for Humanitarian Response, at https://eng.mil.ru/en/news_page/country/more.htm?id=12424267@egNews). However, reports of civilian casualties from Russian naval mines continue. Human Rights at Sea would like to thank EOS Risk Group for their support in the charity’s work.