Maritime Humanitarian Corridors in Ukraine (Part 2)

Part II: Re-Establishing Exports from Ukraine

Russia’s invasion of Ukraine is already causing disastrous effects on global food and agricultural supplies. Ukraine is one of the world’s foremost grain exporters. But, at the moment, millions of tons of grain remain trapped in Ukraine (footnote 1). The UN World Food Programme (WFP) has called for the urgent reopening of Ukrainian ports (footnote 2). Its Director, David Beasley, warned that without exports resuming, “famine, destabilisation of nations and mass migration” will ensue (footnote 3).

The establishment of maritime humanitarian corridors in the Black Sea and the Sea of Azov has been proposed to resume Ukrainian exports and break through Russia’s blockade (footnote 4). Diplomatic efforts are continuing to reach an agreement between Ukraine, Russia and the UN to establish these safe maritime passage routes (footnote 5).

A key challenge is the need to guarantee the safety of passage, not least for insurance purposes. However, agreement on this has yet to be achieved and there are competing visions of what this should look like (footnote 6). To allay Ukraine’s fears that these routes could be exploited to facilitate the Russian invasion, both sides need to agree who will enforce the safe passage routes and what powers they will have. Turkey have offered to escort vessels from Ukraine, and this is considered the more realistic proposal (footnote 7). Under the proposal, Ukrainian inspectors could raise red flags should any violations of the safe passage routes occur. Foreign Minister, Mevlüt Çavuşoğlu, said that “ships, with the guidance of Ukraine’s research and rescue vessels as envisaged in the plan, could thus come and go safely to ports without a need to clear the mines" (footnote 8).

Part 1 considered the issues relating to the establishment of humanitarian corridors in order to evacuate civilian vessels and seafarers trapped in Ukrainian ports. It is unclear how safe maritime corridors for the resumption of Ukrainian exports can benefit from the description of a “maritime humanitarian corridor”—even though the calls to establish these do not seem to make any distinction between the two.

Nevertheless, Part 1 also explained that the use of the term “maritime humanitarian corridor” does not generate any particular, or special, legal consequences as opposed to a (mere) “safe passage route” (footnote 9).There is no positive law relating to “maritime humanitarian corridors”. Instead, international humanitarian law continues to apply and regulates the way in which combatants and civilians are to be treated. In addition, to the conclusions made in Part I, the following points may be made.

Both humanitarian corridors and safe passage routes for merchant vessels benefit from the same legal treatment by way of analogy to the existing international humanitarian law (footnote 10). This means that these should be secured by agreement between the belligerent parties—in contrast with the current unilateral declaration made by Russia, which asserts the existence of two maritime routes (footnote 11). Civilians within and outside the corridors/safe passage routes benefit from the application of international humanitarian law. “The principle of distinction” demands that civilians should not be attacked, regardless of nationality (footnote 12). The conclusions made in Part 1 with respect to the obligation to control naval mines and to demine areas of civilian traffic, in order to uphold the “principle of distinction”, are clearly applicable in this context too.

Importantly, as concerns the resumption of Ukrainian exports, attacks against neutral merchant vessels—i.e., those not flagged by either belligerent state—are prohibited (footnote 13). Also, Russia is under the obligation, in customary international law, to ensure the safe passage of neutral merchant vessels through its Military Exclusion Zones in the Black Sea and the Sea of Azov (footnote 14). However, in wartime, neutral merchant vessels are subject to visit and search in the Exclusive Economic Zone and the High Seas by belligerent states (footnote 15). But should neutral warships be used to escort neutral merchant vessels, then they cannot be subject to visit and search (footnote 16). Any agreement, therefore, which provides that belligerent warships are to escort vessels, would not benefit from this protection (footnote 17).

To conclude, both Parts 1 and 2 of this piece show that there is no direct positive law pertaining to maritime humanitarian corridors—a matter which clearly requires attention. Nonetheless, international humanitarian law continues to address the situation, both in terms of regulating the conduct of war generally, but also by analogy with the “safe zones” it recognises (footnote 18). As concerns the law of the sea, it is assumed that the rights of innocent passage in the territorial sea and the freedom of navigation beyond it, continue to apply (footnote 19)—albeit with the proviso that these may be restricted for the safety of these vessels during naval warfare operations (footnote 20).

While the establishment of maritime humanitarian corridors to evacuate seafarers trapped in Ukrainian ports seems to be the priority, the same legal regime would also apply to any safe maritime passage routes which may be used to resume Ukrainian exports. Therefore, there is no reason why a single internationally negotiated agreement between Ukraine and Russia cannot be used to establish safe maritime passage routes to address both of these crises. This is urgently needed. Internationally secured guarantees are likely to give seafarers greater confidence to use the routes. But it is still a conflict zone. Once again, seafarers are asked to put themselves in harm’s way for the good of us all. Doesn’t this make the broader failure to adequately address their human rights seem even more incredible? (footnote 21).