Can the Black Sea Grain Initiative Continue Without Russian Participation?
On July 17, 2023, the Black Sea Grain Initiative expired after Russia refused to extend the term of the UN-brokered accord that has “facilitated the export of more than 30 million tonnes of Ukrainian grain to global markets via three Black Sea ports.” Russia additionally withdrew its security guarantees for ships navigating in the northwestern part of the Black Sea.”
That same day, Ukrainian President Volodymyr Zelensky stated that the “Black Sea grain corridor can continue to operate even without Russia’s participation,” insisting that even without Russian support, “everything must be done so that we can use this Black Sea corridor.” According to Zelensky, ship owners have offered to continue transporting Ukrainian grain if Ukraine will allow the shipments and Türkiye will let the ships transit the Turkish Straits.
A similar situation arose in November 2022, when Russia suspended its participation in the grain deal indicating (inter alia) that it was “unacceptable” for shipping to use the humanitarian corridor established by the initiative because Ukraine was using it to “conduct operations” against Russia. Following Russia’s 2022 announcement, there were reports that Ukraine, Türkiye, and the United Nations had agreed to move forward with grain shipments without Russian participation. These reports, however, were misleading at best. A UN spokesperson indicated that “operations that were already underway before Russia’s suspension, had continued, with 36 inspections carried out on board outbound ships….” Nonetheless, the UN Secretariat immediately confirmed that ship movements and inspections carried out after Russia suspended its participation in the Joint Coordination Centre were “a temporary and extraordinary measure.” Moreover, Russia’s Permanent Representative to the United Nations informed the Security Council “that the deal simply could not continue without Russian participation.” The following day, Russia agreed to resume participation in the initiative following discussions with the UN.
The United States’ reaction to Russia’s July 2023 withdrawal similarly suggests that the grain deal cannot continue without Russian participation: “We urge the Government of Russia to reverse its decision, to resume negotiations, and to extend, expand, and fully implement the Initiative immediately for the benefit of the millions of people who depend on Ukrainian grain.”
Proposed Naval Escort Operation
Media reports suggested that “a naval escort operation may be required if Putin imposes a blockade” on further Ukrainian grain shipments. Given Türkiye’s prior restriction on the passage of foreign warships through the Turkish Straits on March 1, 2022, it is extremely unlikely that Türkiye would allow foreign-flagged merchant vessels to transit the Straits outside the terms of the UN-brokered initiative. However, even if Türkiye consented to the transits, the proposal raises several important questions under the law of neutrality and the law of naval operations.
The right to conduct convoy operations is considered a belligerent right under the law of naval warfare (Newport Manual, § 3.1). The Ukrainian Navy could therefore escort both Ukrainian and neutral merchant ships in and out of Ukrainian ports. However, doing so would increase the risk that these vessels would be targeted by Russian forces. Although enemy merchant vessels are always subject to capture, an enemy merchant ship becomes a military objective, and thus targetable without warning, if it sails “under convoy with enemy warships or military aircraft” (Newport Manual, § 8.6.3). By sailing under the control of a convoy commander, a merchant ship manifests its “willingness to actively resist—with the help of the accompanying warship—visit, search, and capture” (Newport Manual, § 8.6.3; NWP 1-4M, ¶ 8.6.2.2). Ukrainian merchant ships traveling under convoy become military objectives, and thus liable to attack by Russian forces without warning.
Similarly, neutral merchant vessels “acquire enemy character and may be treated by a belligerent as enemy merchant vessels…” if they operate “directly under enemy control, orders, charter, employment, or direction” or resist “visit and search” (NWP 1-14M, ¶ 7.5.2). Thus, neutral merchant vessels are liable to attack without warning if they actively resist visit, search, or capture; refuse an order to stop; or sail under convoy with enemy warships or military aircraft. Engaging in these activities brings neutral merchant ships within the definition of a military objective, and thus targetable on sight by Russian forces (Newport Manual, § 8.6.5).
Convoy Operation by Neutral States
Whether neutral warships could escort neutral merchant ships to and from Ukrainian ports is questionable. Generally, neutral merchant vessels are exempt from visit and search if “(1) the vessel is bound for a neutral port under the convoy of an accompanying neutral warship of the same nationality; (2) the accompanying warship warrants that the vessel is carrying no contraband; and (3) the convoy commander provides such information about the vessel as would otherwise have been obtained through visit and search” (Newport Manual, § 9.7.1; NWP 1-14M, ¶ 7.6). Thus, convoy protection would only apply if the merchant vessels were bound for a neutral port in the Black Sea. Neutral merchant ships bound for Ukrainian ports, however, would not be exempt from visit and search (and attack if they resist) by Russian warships.
During the Tanker War (Iran-Iraq War of 1980-1988), the United States consistently proclaimed its neutrality. Nonetheless, the United States reflagged eleven Kuwaiti tankers arguing that the escorting of these ships by U.S. warships did not violate the United States’ neutrality because Kuwait was not a belligerent in the war. Moreover, the United States maintained that it was “simply pursuing the neutral goal of preserving freedom of navigation” and that the United States retained the right of self-defense to enforce maintenance of its neutrality. Others argued that escorting the reflagged tankers compromised the United States’ neutrality, “because the ships being protected serve the trade of a country [i.e., Kuwait] that supports the Iraqi war effort, while ships bound for Iran are left open to Iraqi attack.”
Regardless of whether you agree or disagree with the United States’ position regarding the legality of the reflagging, the situation in the Persian Gulf differed significantly from the ongoing conflict in Ukraine. In the case of the Persian Gulf, the reflagged tankers were escorted in and out of Kuwait, a purported neutral in the war despite its assistance to Iraq. Neither the United States nor Iran considered Kuwait a belligerent. Ukraine, however, is clearly a belligerent in the international armed conflict. Although a State that violates its neutrality is not automatically brought into the conflict as a co-belligerent (DoD Law of War Manual, ¶ 15.4.1), escorting and protecting neutral merchant ships (that could be carrying contraband) to and from Ukrainian ports would constitute a belligerent act, making the neutral State a party to the armed conflict.
Finally, although Russia has not formally established a blockade (Newport Manual, § 7.4), if it did, escorting merchant vessels in and out of the blockaded area would constitute a breach of blockade (Newport Manual, § 7.4.7; NWP 1-14M, ¶ 7.7.4). Vessels that breach a blockade are liable to capture and condemnation or diversion, and if they resist, they are liable to attack (Newport Manual, § 7.4.7; NWP 1-14M, ¶ 7.10).
War Risk Insurance
Then there is the issue of war risk insurance. In April 2022, Lloyd’s of London Joint War Committee declared the Black Sea and Sea of Azov waters a high-risk zone. That means all ships entering the listed areas require an additional war policy. During the first week of 2023, the cost to hire a ship to transport cargo from the Black Sea rose by more than 20 percent, which reflects higher war risk insurance rates. When policies were renewed on January 1, 2023, “reinsurers that provide financial protection for insurance companies … added exclusions for ships and planes for Belarus, Russia and Ukraine.” “Unease over the risk of ship seizures by Russia and liabilities related to the war in Ukraine, including floating mines or vessels getting stuck in ports for long periods” has also resulted in an “exodus of reinsurers from the market.” This exodus reduces underwriting “capacity in the market for war risk and will mean people will pay more this year.”
Russian Threats
Given Russia’s actions following its withdrawal from the grain initiative, the Black Sea and Sea of Azov remain a high-risk zone for the foreseeable future, resulting in higher insurance rates for the shipping industry. On 19 July, Russia announced that it had sowed sea mines in the Black Sea and declared that it would consider “all cargo ships travelling to Ukrainian ports” to be potentially carrying contraband (e.g., military cargo) in support of Ukraine’s war effort. The statement, issued by the Ministry of Defense, further indicated that the flag States of such vessels would be considered as belligerents in the armed conflict. Additionally, on 18 and 19 July, Russian forces attacked one of the Ukrainian export ports—Odesa—with missiles and drones, “resulting in the destruction of agricultural infrastructure and 60,000 tons of grain.”
It’s unclear what actions Russia intends to take against neutral merchant vessels, but their mere presence in the Black Sea would not provide a legal basis for Russia to capture or attack such vessels without first verifying the vessels’ status and cargo (Newport Manual, §§ 9.6, 9.9). Similarly, if a neutral merchant ship engages in unneutral service in support of Ukraine’s war effort, that participation alone does not make the flag State a party to the conflict.
Conclusion
Given the dangers associated with escorting Ukrainian and neutral merchant ships through the Black Sea, the possibility of neutrals becoming belligerents in the conflict, the high cost of war risk insurance, and the unpredictability of Türkiye’s management of traffic through the Straits, it is highly unlikely that a naval escort operation will be established to keep the Black Sea grain corridor open without Russian consent.
Clearly, the best alternative for keeping the grain corridor open would be to establish a multinational force under the auspices of the UN. Article 42 of the UN Charter authorizes the Security Council to “take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security,” to include “operations by air, sea, or land forces of Members of the United Nations.” Nonetheless, establishment of a multinational force is not a viable option given Russia’s ability to veto any resolution establishing such a force (UN Charter, art. 27).
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Raul (Pete) Pedrozo is the Howard S. Levie Professor on the Law of Armed Conflict at the Stockton Center for International Law, U.S. Naval War College, Newport, Rhode Island.
Photo credit: Unsplash
