Photo by François Genon on Unsplash
Lisa Rosenof, Associate Member, University of Cincinnati Law Review
Amid the international response to Russia’s invasion of Ukraine, French warships recently relied on sanctions measures to intercept and seize a Russian merchant vessel at sea. The vessel (the “Baltic Leader”) was suspected of belonging to a Russian company that is currently on the sanctions list by both the U.S. and the E.U. The cargo ship, transporting cars, left Rouen bound for St. Petersburg. However, on February 19, 2022, French sea police boarded, inspected, and redirected the vessel to the port of Boulogne-Sur-Mer in northern France. Reports indicate that the Baltic Leader has cooperated with the authorities while Russia has objected to the detention.
Generally, the law of neutrality defines the legal relationship between nations engaging in an armed conflict (belligerents) and nations not taking part in such hostilities (neutrals). Thus, the French detention raises an important question to consider as nations continue to impose costs on Russia: during armed conflict, can neutral countries seize belligerent merchant vessels on international waters and retain their neutral status? This article summarizes the sanctions regime as well as the law of neutrality and argues that France did not meet the impartiality and abstention obligations expected in an international armed conflict.
II. Background: Sanctions
Sanctions are a civil means to coerce, deter, punish, or shame entities that endanger other nations’ interests or violate international norms of behavior. As part of its enforcement efforts, the U.S. Department of Treasury’s Office of Foreign Assets Control (“OFAC”) publishes a list of individuals and companies owned or controlled by, or acting for or on behalf of, targeted countries. It also lists individuals, groups, and entities, such as terrorists and narcotic traffickers designated under programs that are not country specific. Collectively, such individuals and companies are termed Specially Designated Nationals (“SDN”). Their assets are blocked, and U.S. persons are generally prohibited from dealing with them.
On February 22, 2022, OFAC added the Baltic Leader, reportedly owned by a Promsvyazbank subsidiary, to the SDN sanctions list. The EU added Promsvyazbank to its sanctions list as well. The bank’s CEO, Pyotr Fradkov, is the son of Mikhail Fradkov, a former head of Russia’s foreign intelligence service, who also served as prime minister under Russian President Vladimir Putin. It was under this determination that France concluded that the ship was an asset subject to seizure under the EU program. However, in a comment sent to Reuters, Promsvyazbank stated that its subsidiary no longer owned the Baltic Leader, and that it was bought by a different entity before the sanctions were imposed.
III. Background: Law of Neutrality
The law of neutrality regulates the relationship between belligerents and neutrals in situations of international armed conflict. The law of neutrality serves to localize war, to limit the conduct of war on both land and sea, and to lessen the impact of war on international commerce. A principal purpose of the law of neutrality is the regulation of belligerent activities with respect to neutral commerce. Neutral commerce comprises all commerce between one neutral nation and another not involving materials of war or armaments destined for a belligerent nation. Furthermore, neutral commerce encompasses all commerce between a neutral nation and a belligerent that does not involve the carriage of contraband or otherwise contribute to the belligerent’s war-fighting/war-sustaining capability. Neutral merchant vessels engaged in legitimate neutral commerce are subject to visit and search but may not be captured or destroyed by belligerent forces.
The traditional law of neutrality is codified in Hague Conventions V and XIII, two of a series of international treaties established to govern the laws of war. Under the Hague Conventions, neutral nations have obligations to ensure inviolability of neutral territory which includes impartiality and abstention obligations, detailed below:
Impartiality: neutral nations must apply every measure of restriction or prohibition in exercising their neutral rights or in fulfilling their duties in an impartial and non-discriminatory manner toward all the belligerents. This obligation includes the conditions, restrictions, or prohibitions in regard to the admission into their ports, roadsteads, or territorial waters, of belligerent war-ships.
Abstention: neutral nations are obliged to abstain from providing belligerents with direct or indirect support with certain goods and services in the prosecution of hostilities.
Accordingly, the law of neutrality serves to both protect neutral commerce and to impose impartiality and abstention obligations on neutral nations.
The law of neutrality does not prohibit commerce between a belligerent and a neutral nation. Rather, because maritime commerce is essential, even in times of war, the law states that neutral and belligerent nations are free to engage in commerce if it does not involve the carriage of contraband or contribute to the belligerent’s war-sustaining capability. The law attempts to protect “neutral commerce” from unreasonable interference without promoting the flow of war materials. Here, the Baltic Leader was transporting cars, not war materials. Additionally, France had an obligation of impartiality and abstention in the Russian/Ukrainian conflict under the Hague Conventions which was violated when France boarded, inspected, and redirected the Russian vessel. In seizing the vessel, France specifically assisted Ukraine and thus impinged on the principle of neutrality.
While neutral nations and communities are never truly politically impartial or evenhanded in their response to military conflict, France’s seizure of the Baltic Leader highlights the importance of precluding neutral nations from assisting belligerent nations and retaining their neutral status. First, if we grant neutral status to nations assisting belligerent nations, so-called neutral nations could assist belligerents and reap the benefits of being a neutral nation, e.g., avoiding damage to their population and infrastructure. If we do not stand for belligerent nations directly attacking us, we should not stand for so-called neutral nations assisting those who do attack. Second, neutrality helps wars stay localized and limited, preventing them from turning into major conflicts involving more of the militarized world.
Looking at these facts through a neutrality lens, the seizure of Baltic Leader leaves room for claims that the detention was an “unneutral act” that aided one side in the conflict and was inconsistent with international neutrality obligations. In detaining the Baltic Leader, France did not meet the impartiality and abstention obligations expected in an international armed conflict.
 Matt Clinch, Russian cargo ship seized in the English Channel, CNBC (Feb. 26 2022), https://www.cnbc.com/2022/02/26/russian-vessel-reportedly-seized-in-the-english-channel.html [https://perma.cc/JLW8-YQPX].
 A.R. Thomas & James C. Duncan, The Law of Neutrality, 73 International Law Studies 365 (1999), https://digital-commons.usnwc.edu/cgi/viewcontent.cgi?article=1558&context=ils#:~:text=The%20law%20of%20neutrality%20defines,the%20impact%20of%20war%20on [https://perma.cc/RZG9-SVAN].
 Jonathan Masters, What Are Economic Sanctions, Council on Foreign Relations (Aug. 12, 2019), https://www.cfr.org/backgrounder/what-are-economic-sanctions [https://perma.cc/WU9G-VW5H].
 U.S. Department of the Treasury, Specially Designated Nationals and Blocked Persons List (SDN) Human Readable Lists (Mar. 25, 2022), https://home.treasury.gov/policy-issues/financial-sanctions/specially-designated-nationals-and-blocked-persons-list-sdn-human-readable-lists [https://perma.cc/3P24-UV5P].
 U.S. Department of the Treasury, Russia-related Designations; Issuance of Russia-related Directive 1A and General Licenses; Publication of New and Updated Frequently Asked Questions (Feb. 22, 2022), https://home.treasury.gov/policy-issues/financial-sanctions/recent-actions/20220222 [https://perma.cc/98RC-TQJT].
 EU Sanctions Map (Mar. 14, 2022), https://sanctionsmap.eu/#/main/details/26/lists?search=%7B%22value%22:%22%22,%22searchType%22:%7B%7D%7D [https://perma.cc/538N-BJK8].
 News Wires, France Seizes Cargo Vessel Targeting by US Sanctions on Russia, France 24 (Feb. 26, 2022), https://www.france24.com/en/europe/20220226-france-seizes-cargo-vessel-targeted-by-us-sanctions-on-russia [https://perma.cc/J64X-65Q9].
 Thomas, supra note 6 at 365.
 Id. at 380.
 Id. at 381.
 Convention No. V Respecting the Rights and Duties of Neutral Powers and Persons in Case of War on Land, Oct. 18, 1907, 36 Stat. 2310, T.S. No. 540 [hereinafter Hague Convention V]; Convention No. XIII Concerning the Rights and Duties of Neutral Powers in Naval War, Oct. 18, 1907, 36 Stat. 2415, T.S. No. 545 [hereinafter Hague Convention XIII].
 Thomas, supra note 6 at 367.
 Hague Convention V art. 9.
 Hague Convention XII art. 9.
 Hague Convention V arts. 2-4; Hague Convention XIII art. 6.
 Thomas, supra note 6 at 381.