Ukraine Symposium – Sunk in Battle but the War is Not Over: Who Owns the Moskva Now?

The study of underwater cultural heritage, and that of sunken warships, has typically focussed on the legal protections surrounding a site in the years, or often centuries, after the sinking. The Russia-Ukraine conflict has given cause to study the topic in a more modern context. Ukraine has sunk several Russian naval vessels, the most famous being the Black Sea flagship the Moskva in April 2022. Following the sinking, Ukraine stated the Moskva was now a heritage site, with a Ukrainian Defence Minister joking that the wreck was simply “one more diving spot.”

In a recent article published in International Law Studies, I explore the legal status of the Moskva as she lies on the seabed, in both peacetime and conflict. This post summarizes that discussion as it pertains to the status of the Moskva while the conflict continues. Specifically, this post examines how the legal regime of international humanitarian law (IHL), and within that the law of naval warfare, pertains to the site of a sunken warship.

The Sinking of the Moskva

The Moskva was a guided missile cruiser measuring over 186 meters in length, capable of speeds up to 32 knots, and armed with anti-ship missiles and anti-submarine torpedoes. Her role in the war between Russia and Ukraine became somewhat infamous after the Russian assault on Snake Island in April 2022. Moskva hailed the island garrison and demanded their surrender, at which point the Ukrainians used some well publicised, choice language in response.

She was not only the third largest vessel in the Russian fleet, but also a very potent asset for Russia’s war against Ukraine at sea. She was the fleet flagship for the Russian Black Sea Fleet and therefore clearly a valuable military target for Ukraine both to combat the Russian invasion and to strike at the morale and pride of the Russian fleet.

On April 13, 2022, Ukraine reported that the Moskva had been hit with two Neptune anti-ship missiles. Shortly after the damage occurred, the ship was reportedly 80 nautical miles south of Odessa in the early evening. By 3:00 a.m. on April 14, 2022, the vessel was reported as sunk. Reporting is contradictory regarding the number of lives lost. Lithuania reported there were 485 crew members aboard, including 66 officers, and that a Turkish ship responded to a distress call and saved 54 crew members at 2:00 a.m. local time. Russia initially stated one sailor from the Moskva was killed and 27 were missing, while 396 crew members were rescued.

More than two years after the attack, it is not possible to get a clear picture from the Russian Federation as to how many people died, with some publications trying to work it out for themselves after speaking with the families of crew members. Despite the discrepancy in numbers, it appears highly likely that the site of the wreck of the Moskva is the final resting place for several sailors from the Russian Federation.

The day before the sinking, postage stamps had been issued in Ukraine depicting the infamous interaction between the Moskva and the guards of Snake Island. Roughly 700,000 stamps were sold in a week. On May 23, 2022, after the sinking, and keen to capitalize on military success, the Ukrainian government also issued another set of the same stamps, but this time with the word “DONE” imprinted on them. Within ten days of the sinking, Ukraine had declared the site as number 2064 on Ukraine’s underwater cultural register, with media reporting interpreting this to mean the location was a National Heritage Site.

The Moskva’s Legal Status

The Moskva was a warship as defined in the UN Convention on the Law of the Sea (UNCLOS) Article 29, registered as part of the Russian Federation Navy. This definition is important for two reasons. First, as a matter of customary international law, only a warship is entitled to exercise belligerent rights (arts. 3, 12). There is no defined list of these rights, but broadly they cover kinetic strikes, visit, board, search and seizure, laying mines, amphibious operations against an enemy-held coast, and blockade enforcement. Accordingly, the Moskva had to be a warship to lawfully participate in the conflict in a manner that could inflict damage on the Ukrainian forces.

Second, and more pertinent to this post, the fact that the Moskva was a warship engages the principle of sovereign immunity. By virtue of UNCLOS Articles 32 and 95, warships and government vessels on non-commercial service enjoy sovereign immunity, which excludes the exercise of jurisdiction by another State upon those ships. The prevailing view is that sovereign immunity remains in place even when the ship has sunk, prompting States such as the United Kingdom to publish policy reminding any prospective divers that they should “look but don’t touch.”

How then may a State relinquish the title, and with it the concomitant sovereign immunity, in a warship? There are three specific ways. The first method is the relinquishment of title by way of international agreement, such as the Treaty of Peace with Japan signed in San Francisco at the end of the Second World War (art. 14(2)). The second option is a gift or sale of the vessel. The final method is capture in battle. Under the law of naval warfare, the capture of an enemy warship leads to a transfer of title. With the title comes the sovereign immune status attached to the original owner State (art. 31).

Even though sunk by Ukraine and now lying in the Ukrainian exclusive economic zone, the title and sovereign immunity of the Moskva have not been transferred based on the above. The suggestion that the site is now “one more diving spot in the Black Sea” appears to conflict with the fact that the Moskva remains a sovereign immune warship belonging to Russia. Absent express permission from Russia, the site should not be touched. There is one crucial exception: Ukraine may access the site in her capacity as a belligerent in the conflict.

Sunken Warships Under IHL

Ukraine and Russia are currently engaged in an international armed conflict so IHL, including the law of naval warfare, applies to the actions of the two States. The sinking of the Moskva does not mean that Ukraine’s belligerent rights towards the ship have also sunk. Although warships retain their sovereign immunity after sinking, there is no obligation on the opposing side to respect this immunity. Rather, it has been argued that the “enemy belligerent may inspect, salvage, and capture the wreck throughout the duration of the conflict.”

It seems highly unlikely that the entire Moskva would be lifted from the seabed. Further, “salvage” does not refer to the Ukrainians salvaging items on behalf of Russia in the hope of getting a fee. More likely is the option of Ukraine using the site of the Moskva and the wreck itself for purposes that would advance Ukraine’s cause in the war. There is, after all, no prohibition on the collection of intelligence as part of a State’s war-fighting efforts. Indeed, in the context of an international armed conflict, Additional Protocol I openly acknowledges that a member of the armed forces will still be entitled to full prisoner of war rights if he or she is found to be collecting intelligence while in uniform, whereas a spy would not (art. 36(2)).

How is this of practical use to Ukraine? As Ukraine declared in the announcement about the site’s new cultural status, the ship is lying in waters that are only forty-five to fifty meters deep and can be viewed “without much diving.” The Moskva, albeit damaged, will contain some valuable information onboard which the Ukrainians may be able to use to their advantage in the conflict.

Importantly, there is also the crew of the Moskva to consider. IHL has a number of rules in place regarding the treatment of the dead. In the case of those at sea, this is specifically addressed in the Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea. State parties are obliged after an engagement at sea to “without delay, take all possible measures to search for and collect the shipwrecked, wounded and sick … and to search for the dead and prevent their being despoiled” (art. 18). Ukraine must ensure that during any actions to exploit the site of the Moskva the remains of the crew are not “despoiled.”

There will therefore be a delicate balancing act to maintain: the Moskva can be exploited for military advantage as part of the ongoing war effort; but in a manner that is respectful to the remaining crew, maybe even arranging a subsequent burial. There is some precedent for this. In the instance of the infamous Project Jennifer (also known as Project Azorian), when the United States attempted to raise a sunken Russian submarine from the seabed, the ten Russian crew members found onboard were subsequently given a formal military burial at sea. Similarly, the body of an unidentified Royal Marine found on the wreck site of HMS Swift (sunk in 1770) by marine archaeologists in 2005, was given a formal burial in the British Cemetery in Buenos Aires.

Concluding Thoughts

The enthusiasm with which the Ukrainian Ministry of Defense announced the Moskva as a “diving site” is understandable in the overarching narrative battle against Russia, but it was not strictly necessary. As long as IHL applies, the Moskva could be exploited for Ukrainian benefit. Clearly, any such exploitation should be respectful of the dead crew members on board.

One cannot blame Ukraine for seeking to announce policies that indicate that peacetime law, including that of underwater cultural heritage, will soon be back in play. The slight irony is that at a time when the law allows Ukraine to continue to treat the enemy’s flagship as a valid military objective, the publicized intent (as a site of cultural importance as well as a location for recreational diving) is the opposite. It remains to be seen whether the Moskva will indeed receive any protection once the conflict is finally over.

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CDR Caroline Tuckett is the lead legal adviser in International and Operational Law within the Royal Navy.

Photo credit: George Chernilevsky