“Inside” and “Outside”: Assessing the Russian Blockade Against Ukraine

Abstract

In early May 2022, as part of its push to force Ukraine into submis-sion, Russian ships established a blockade in the Black Sea. The main target of the blockade was Ukrainian exports, particularly those regarding foodstuffs. We examine the legality of the blockade under International Humanitarian Law. In particular, the question before us is whether the rules concerning naval blockades, which have been construed essentially to protect the populations “inside” an encirclement, should be considered to prohibit also actions which mainly harm individuals in third party states, “outside” of it. We suggest that whether the victims of the blockade are “inside” or “outside” the relevant encirclement is not decisive as to whether they are being wronged by the blockade. Nevertheless, we argue that it is not unlawful under IHL. The main reason for this is that it does not deprive individuals of access to indispens-able foodstuffs but only increases their price (i.e. it does not violate the prohibition of starvation), nor ultimately causes them harms which are disproportionate vis-à-vis the direct and concrete military advantage anticipated. Indeed, the blockade affects affordability rather than availability of food and, in fact, high food prices are driven to a much larger extent by other factors, unrelated to the blockade. This conclusion, of course, does not mean that the blockade should not be deemed unlawful, in fact criminal, for being a constitutive element of conduct in violation of other rules of international law, notably the prohibition of aggression.