EU Sanctions Affect Replacement of Russian Navy's Lost Drydock
[By Lieutenant Commander Peter Barker, RN]
The icy waters of Murmansk harbor now cover one of the world’s largest floating dry-docks. Last week, a catastrophic power failure seems to have caused the dock’s pumps to jam, rapidly flooding the ballast tanks. As a result, PD-50, the largest floating dry-dock of the Russian Navy, sank to the bottom of the shipyard and now lies 160 feet below the surface.
Much attention has focused on damage to Russia’s sole aircraft carrier, the Admiral Kutznetsov, which was in PD-50 at the time of the incident. However, the loss of the dry-dock may have a more significant long-term impact on Russia’s ability to sustain its Northern Fleet. As a consequence, the ability of Russia to recover, repair, or even replace the dock assumes considerable importance because it is a maintenance asset of strategic import.
Russia’s ability to overcome this setback is further complicated by European Union (EU) sanctions, where the legal and practical effects of the EU sanctions regime will strongly affect Russia’s ability to replace this key maritime asset.
Sanctions and Dry Docks
The EU sanctions regime against Russia is conducted under the auspices of the Common Foreign and Security Policy. It is directly applicable in EU law, meaning that it takes effect without the need for national legislation (in fact, most countries have no separate national sanctions regime against Russia). EU sanctions were established in March 2014 as a response to Russia’s activities in Ukraine. They have remained in force since and are reviewed at six-month intervals by the EU Council. The sanctions recently were extended until 31 January 2019. Further, the EU Council has stated that it will continue renewing these sanctions until the complete implementation of the Minsk agreement.
The EU sanctions are a range of measures including asset freezing, an import ban on items from the Crimea and Sevastopol, and a ban on tourism to the same areas. More pertinently for this discussion, sanctions have been enacted in specific economic sectors. This includes a ban on arms sales to Russia (article 4 Council Regulation (EU) 833/2014) and an export ban on dual-use goods (article 2 Council Regulation (EU) 833/2014), with minor amendments being made in Regulations 960/2014 and 1290/2014.
Proceeding on the assumption that these sanctions will remain in place for the foreseeable future, the question is whether the export ban on arms or dual-use goods includes replacement parts for PD-50—or indeed an entirely new dock—if supplied from within the EU.
Looking first at the arms question arising from article 4, the list of prohibited equipment is detailed in the EU Common Military List (2015/C 129/01). The most relevant items are ML9.1 (“vessels (including components) designed or modified for military use”) and ML17b (“construction equipment specifically designed for military use”). Although a floating dry dock, or the components to repair it, may fit the description of a “vessel” or “construction equipment,” it would be difficult to argue that a floating dry dock is designed for military use. It is even harder to conclude that a floating dry dock is specifically designed for military use. Components for a floating dry dock (or even a dock itself) are therefore unlikely to be considered arms under article 4 and would not be caught by the ban on arms sales.
The ban on dual-use goods, set forth in article 2, is more likely to be applicable. Dual-use items are defined in Council Regulation (EU) 428/2009 and include all items that can be used for civil and military purposes. Military end-use includes the “use of production equipment and components for the maintenance of military items,” as stated in article 4(2)(b). Although PD-50 is owned and operated by a private company, this definition focuses on the use of the equipment rather than the owner. The use of a dry-dock for the maintenance of an aircraft carrier (indisputably a military item) strongly suggests that it is caught by this provision. One could argue that this is an unduly broad interpretation of the phrase “production equipment,” but a contextual reading of the article clearly shows that these provisions are intended to cover a wide range of items that may be used to support military infrastructure.
This conclusion is bolstered by article 2(1) of Reg. 833/2014. Article 2(1) states that where the end-user is the Russian military, any dual-use item shall be deemed to be for military use. Again, an argument could be constructed that the private ownership of the dock places it outside the scope of the provision by asserting that the end-user is the company rather than the Russian military. However, given the almost exclusive use of the dock for warship repair and maintenance, a strong case can be made that, appearances aside, the end-user of the dock (or any replacement) would be the Russian military, even if the actual ownership rests elsewhere.
The only caveat to the above analysis is that the sanctions do not affect the completion of contracts entered into before 1 August 2014. It is possible that the purchase agreement for the dock included an ongoing contractual obligation to provide replacement parts. If so, this would be unaffected by the sanction regime. In reality, it is very unlikely that such a provision was included and thus, this caveat can probably be discounted.
Unsurprisingly, there are few concrete details about the state of PD-50 and the prospects for the recovery of this strategic asset. Even a Russian news agency has accepted that this is a complex operation and unlikely to be completed within six months. A rapid repair or replacement of the dock is required to avoid severe pressures on the maintenance and availability of crucial Northern Fleet units and to conduct complex modernization work. Any support for this work is likely to be hampered by the EU sanctions regime, which now assumes additional significance following the sinking of PD-50.
Lieutenant Commander Peter Barker is a serving Royal Navy officer and barrister. He is currently the Associate Director for the Law of Coalition Warfare at the Stockton Center for the Study of International Law, part of the U.S. Naval War College. These views are presented in a personal capacity and are the author’s own and do not necessarily represent the views of any ministry or government.
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