Oleksii Plotnikov, PhD (International Judiciary)
The Crimean Peninsula has been occupied by the Russian Federation in spring 2014 as a part of Russia’s “hybrid war” against Ukraine. It became a factual Russian exclave receiving over 80% of its water, 85% of electricity, 34% of natural gas, and almost 60% of foodstuffs from Ukraine . Under such conditions, the idea to cut off the delivery of these supplies was thick in the Ukrainian air. Already in spring 2014, the Ukrainian authorities ceased the operation of the North-Crimean Channel – a waterway bringing water from Dnipro to Crimea. At that, the State Water Resources Agency of Ukraine explained that it has failed to reach an agreement with the Crimean consumers as to the price and volume of water. In autumn 2015 the public activists representing Ukrainian and Crimean Tatar non-government organizations initiated that what they called “blockade of Crimea” – a series of measures aimed at the restriction of delivery of cargoes and electricity to the Peninsula. The self-styled blockade of roadways has been removed in early 2016 however the delivery of electricity from Ukraine has not been restored.
The blockade resulted in water shortages for agricultural and industrial needs and caused the de facto Russian authorities in Crimea to search for alternative solutions. Russian officials regularly appealed to international bodies demanding them to take action to induce Ukraine to end the water blockade. Most recently, the Russian delegation to the UN Human Rights Council appealed to the UN asking to provide a meaningful response to the blockade .
This article will argue that the Russian line of argumentation is incorrect and misleading. The reason is, first and foremost, that the term “blockade” in international law is far from established, and in any way the actions of Ukraine blocking water delivery, or those of public activists, do not fall under any available definition of “blockade” in international law.
There is no clear definition of the term “blockade” in international law. It is associated primarily with the naval blockade of the coasts of a hostile state. The Paris Declaration of 1856 , London Declaration of 1909  and a number of bilateral and multilateral agreements [for detailed description and analysis see: 5] provide for the rights and duties of a blockading naval force, the rights of the neutrals, limitations of the blockade, etc. In Oppenheim’s International Law blockade is defined as “blocking by men-of-war of the approach to the enemy coast, or a part of it, for the purpose of preventing ingress and egress of vessels or aircraft of all nations” [6, p. 768]. Boyle in his widely circulated definition described blockade as “belligerent measures taken by a nation for the purposes of prevention of passage of vessels and aircraft to and from another country” [7, p. 117].
The Soviet, Ukrainian, and Russian doctrine share a similar understanding of blockade. Soviet scholars defined blockade as “restriction by the naval forces of the belligerent states of access from sea to the coasts controlled by the enemy or a neutral state assisting the enemy” [8, c. 93; 9, с. 93]. A contemporary Russian textbook on international humanitarian law describes blockade as coercive military actions directed against the coasts or ports of a hostile state [10, c. 43]. Similarly, in Ukrainian textbooks, the notion of blockade is connected to naval warfare [11, c. 292]. Remarkably, both the Ukrainian and the Russian doctrine lack profound research on the international law of blockade.
The current state of affairs around Crimea seemingly does not fall under the definition of blockade in international law, as long as Ukraine does not blockade the Crimean coasts or ports, and the only case of the naval blockade during the entire crisis was the blockade of Ukrainian vessels in the Crimean ports by Russia in spring 2014. However, in the absence of a conventional definition, nothing prevents a broader interpretation of the term so that it would include the overland blockade.
In 1868, when the law of blockade has not yet been developed, Johann Bluntschli wrote that “a blockade may be established both from land and from the sea – an overland and naval blockade” [12, S. 304]. Subsequent practice of blockades and legal regulation of blockades included almost exclusively blockades of coasts and ports. Land warfare in the XIX and XX century normally took the form of massive armed hostilities which themselves prevented any overland transportation between the belligerents, and therefore overland blockades simply did not come into question. In the absence of overland blockades, no legal rules for such blockades have been developed.
The modern doctrine of international law, most notably the San Remo [13, sec. 2] and Tallinn manuals [14, sec. 9], seems to broaden the interpretation of the term by expanding the rules of blockade to the aircraft. This may be somehow explained by the influence of the UNCLOS, which included aircraft into the subject of regulation of the law of the sea, but on the other hand, such doctrinal development demonstrates that the international law of blockade may concern not only vessels but other types of transport and other modes transportation. However, this development is rather of theoretical interest than of practical importance. Even assuming that there exists a customary law of blockade, which imposes obligations on both Ukraine and Russia, this custom obviously includes naval blockades only. Ukraine does not blockade the Crimean coasts or ports and has no opportunity to do so, therefore, the existing customary law of naval blockade does not apply to the situation.
1. Залежність Криму від материкової України. http://www.bbc.com/ukrainian/business/2015/09/150922_crimea_economy_blockade_az.
2. Ivan Abazher: Ukraine’s Crimea water blockade requires specific intervention and a principled international response. https://www.oprf.ru/en/press/news/2019/newsitem/50217.
3. Declaration Respecting Maritime Law. Paris, 16 April, 1856. https://www.icrc.org/applic/ihl/ihl.nsf/Article.xsp?action=openDocument&documentId=473FCB0F41DCC63BC12563CD0051492D.
4. Declaration concerning the Laws of Naval War. London, 26 February 1909. https://www.icrc.org/applic/ihl/ihl.nsf/Article.xsp?action=openDocument&documentId=473FCB0F41DCC63BC12563CD0051492D.
5. von Heinegg W.H. Naval Blockade. International Law Studies, Vol. 75. International Law Across the Spectrum of Conflict. Essays in Honour of Professor L.C. Green on the Occasion of His Eightieth Birthday; Ed. By M.N. Schmitt, 2000. – P. 203-230.
6. Oppenheim L. International Law: A Treatiese. 7th ed. London: Longmans Green & Co., 1952. Vol. II. Disputes, War and Neutrality. – 941 p.
7. Boyle F.A. Protesting power: war, resistance and law. Lanham: Rowman & Littlefield Publishers Inc., 2008. 234 p.
8. Международное право / Под. Ред. И.И. Лукашука. Москва : Госюриздат, 1957. 472 с.
9. Колодкин А.Л. Морская блокада и современное международное право, Советское государство и право, 1963, № 4. С. 92-103.
10. Батырь В.А. Международное гуманитарное право: Учебник для ВУЗов. Москва : ЮстицИнформ, 2015. 133 с.
11. Буроменський М.В. Міжнародне право: Навчальний посібник. К. : Юрінком Інтер, 2006. 336 с.
12. Bluntschli J.C. Das moderne Völkerrecht der Civilisirten Staaten als Rechtsbuch. Nördlingen : C.H. Beckschen Buchhandlung, 1868. 520 S.
13. San Remo Manual on International Law Applicable to Armed Conflicts at Sea, International Review of the Red Cross, 1995, No 309.
14. Tallinn Manual on the International Law Applicable to Cyber Warfare / Ed. by M.N. Schmitt. Cambridge: Cambridge University Press, 2013. 300 p.