scheme now comprises, e.g., a military and dual-use goods embargo, prohibiting the
sale, supply or export to persons in Russia or for use in Russia of military items listed
on the EU military list
36 and dual-use items listed in Annex I to the EU Dual-Use
Regulation 428/2009.
37
Especially relevant for international shipping and maritime transportation services, the measures also include a prior authorisation requirement for the sale, supply
or export to persons in Russia or for use in Russia of technologies suited for the oil
industry for use in deep water oil exploration and production, Arctic oil exploration
and production, or shale oil projects in Russia, as well as for related technical and
financial assistance and brokering services. Finally, the EU has also introduced a
prohibition on directly or indirectly purchasing, selling, providing brokering or
assisting in the issuance of, or otherwise dealing with transferable securities and
money market instruments with a maturity exceeding 90 days, issued after 1 August
2014 by various Russian banks, and majority-owned subsidiaries and legal persons
acting on behalf or at the discretion of those subsidiaries.
However, at least one practical problem remains: This weakness relates to the
administration and enforcement of any EU sanctions regime which is currently
applied and, in fact, it has been explicitly identified by a 2016 investigation of
“Lloyd’s List Intelligence”.
38 Even though EU sanctions apply on board of any
vessel flying the flag of an EU Member State, the investigations revealed that a
number of EU-flagged vessels (for example from Greece, Germany and Italy) still
frequently called at Crimean (Russian-controlled) ports. Rather surprisingly, the
report had identified for the year 2015 that foreign vessel calls to the five commercially relevant Crimean ports—which are subject to the sanctions regime since 2014
had “ballooned by more than 50%” as compared to the 2014 data.
39 This does not
mean that the existing EU sanctions regime is being dishonoured systematically.
40
However, some rogue shipowners and operators (presumably also charterers) seem
to defy the existing sanctions law intentionally in order to take commercial advantage of a flawed enforcement of the rules.
41 Some “deceptive practices”, such as
ship-to-ship (STS) transfer, combined with intentional disabling of automatic identification systems (AIS) to mask ship movements, have been monitored in the region,
in some instance even resulting in a major blast.
42
36 Common Military List of the European Union, OJ 2014 C107/1.
37 Council Regulation (EC) No 428/2009 of 5 May 2009 setting up a Community regime for the
control of exports, transfer, brokering and transit of dual-use items, OJ 2014 L134/1.
38 Supra, note 9.
39 Ibid.
40 For example, international cruise operators have completely withdrawn their calls to the Crimean
ports of Yalta and Sevastopol since 2014.
41 See also http://www.ship-technology.com/features/featuredefying-the-law-shippers-call-atcrimeas-closed-ports-4892632/.
42 See “Kerch Strait blast investigation shifts to sanctioned vessel operations”, Lloyd’s List (online
edition) of 22 January 2019.
298
H. Jessen
sale, supply or export to persons in Russia or for use in Russia of military items listed
on the EU military list
36 and dual-use items listed in Annex I to the EU Dual-Use
Regulation 428/2009.
37
Especially relevant for international shipping and maritime transportation services, the measures also include a prior authorisation requirement for the sale, supply
or export to persons in Russia or for use in Russia of technologies suited for the oil
industry for use in deep water oil exploration and production, Arctic oil exploration
and production, or shale oil projects in Russia, as well as for related technical and
financial assistance and brokering services. Finally, the EU has also introduced a
prohibition on directly or indirectly purchasing, selling, providing brokering or
assisting in the issuance of, or otherwise dealing with transferable securities and
money market instruments with a maturity exceeding 90 days, issued after 1 August
2014 by various Russian banks, and majority-owned subsidiaries and legal persons
acting on behalf or at the discretion of those subsidiaries.
However, at least one practical problem remains: This weakness relates to the
administration and enforcement of any EU sanctions regime which is currently
applied and, in fact, it has been explicitly identified by a 2016 investigation of
“Lloyd’s List Intelligence”.
38 Even though EU sanctions apply on board of any
vessel flying the flag of an EU Member State, the investigations revealed that a
number of EU-flagged vessels (for example from Greece, Germany and Italy) still
frequently called at Crimean (Russian-controlled) ports. Rather surprisingly, the
report had identified for the year 2015 that foreign vessel calls to the five commercially relevant Crimean ports—which are subject to the sanctions regime since 2014
had “ballooned by more than 50%” as compared to the 2014 data.
39 This does not
mean that the existing EU sanctions regime is being dishonoured systematically.
40
However, some rogue shipowners and operators (presumably also charterers) seem
to defy the existing sanctions law intentionally in order to take commercial advantage of a flawed enforcement of the rules.
41 Some “deceptive practices”, such as
ship-to-ship (STS) transfer, combined with intentional disabling of automatic identification systems (AIS) to mask ship movements, have been monitored in the region,
in some instance even resulting in a major blast.
42
36 Common Military List of the European Union, OJ 2014 C107/1.
37 Council Regulation (EC) No 428/2009 of 5 May 2009 setting up a Community regime for the
control of exports, transfer, brokering and transit of dual-use items, OJ 2014 L134/1.
38 Supra, note 9.
39 Ibid.
40 For example, international cruise operators have completely withdrawn their calls to the Crimean
ports of Yalta and Sevastopol since 2014.
41 See also http://www.ship-technology.com/features/featuredefying-the-law-shippers-call-atcrimeas-closed-ports-4892632/.
42 See “Kerch Strait blast investigation shifts to sanctioned vessel operations”, Lloyd’s List (online
edition) of 22 January 2019.
298
H. Jessen