Ukraine Symposium – Mine Clearance Operations in the Black Sea

In an Articles of War post earlier this year, Ben Rothchild and Mark Jessup addressed the under-appreciated challenges—operational, navigational, and legal—posed by the relatively extensive mine-laying operations carried out in the Black Sea as a component of the Ukraine-Russia armed conflict. Maritime geographic, or NAVAREA, warnings remain in place, and Russian aircraft have been reported as deploying mines along the (now unilaterally observed) Black Sea grain export route. Naval mine inflicted casualties along the coast and damage to vessels at sea—including a Romanian minesweeper—have begun to mount. Mine sightings are common, and some Black Sea coastal States have commenced local mine clearance operations. Turkey, Romania, and Bulgaria, NATO members, are looking to a combined mine clearance operation. A post earlier by Dobrin Dobrev on Opinio Juris provides a very useful summary of the current state of play.

In this post, I continue this series of short analyses in relation to the legal aspects of naval mine warfare as part of the Ukraine-Russia armed conflict. To this end, I focus on the “when the war is over” context. In doing so, I briefly raise three possible options for a naval mine clearance operation: a UN Security Council (UNSC) Chapter VII mandated operation; a UN General Assembly (UNGA) authorised operation; and a coastal State (collectively) consented operation. But first, some history.

Types of Multinational Naval Mine Clearance Operations

The most useful form of multinational mine clearance operation is one based in a UNSC Chapter VII mandate. Such operations are not new; the longest to date has been the operation in Kuwaiti and Iraqi Territorial Seas and Internal Waters, and the nearby Exclusive Economic Zones (EEZ)/High Seas, in the aftermath of both the 1991 and 2003 wars. Indeed, as an aside, whilst the focus of this post is the Black Sea, there is much to be learned from the Arabian Gulf experience. That area has been a long-term venue for naval mining operations, with significant effects for both naval and merchant shipping. The 1980-1988 Iran–Iraq War and its associated “Tanker War” (the context for the International Court of Justice Oil Platforms decision), and more recent mining incidents in the vicinity of the Straits of Hormuz, attest to the longevity, asymmetry, and persistence of the naval mine threat.

The second type of operation is a UNGA mandated operation. The archetypal UNGA mandated naval mine clearance operation occurred in the aftermath of the Suez crisis in 1956. Given that there had been “a lack of unanimity” in the UNSC (due to United Kingdom and French vetoes given their engagement in that conflict) the issue of, amongst other things, reopening the Suez Canal to shipping was referred to the UNGA in November 1956 for consideration. That event triggered the UNGA’s first Emergency Special Session (ESS), in line with the 1950 Uniting for Peace Resolution.

The key multi-national force (MNF) outcome from this ESS was the creation of the United Nations Emergency Force (UNEF I). However, the mandate included a requirement that “steps be taken to reopen the Suez Canal and restore secure freedom of navigation.” To this end, the UNGA authorised a mine clearance and salvage operation with vessels under the UN flag. The assembled force comprised at its peak 32 vessels and other floating equipment platforms, mainly provided by Belgium, Denmark, Germany, Italy, The Netherlands, Sweden, and Yugoslavia. Mine clearance divers from a number of nations also formed part of the force.

An example of the third option, again in relation to the Suez and approaches, is the mine clearance operation that took place in 1975. However, this operation (TF 65)—whilst operating in the same area of operations as the UNSC-established UNEF II—was a separately authorised mission as agreed between Egypt as the host State, and the United States, United Kingdom, and France as the mine clearance force contributing States.

So, what might be gleaned from this experience in relation to any proposed mine clearance operation in the Black Sea, after the Ukraine-Russia war has ended?

Option 1: UNSC Chapter VII?

The ideal mandate for such a multinational Black Sea naval mine clearance force (the MNF) would be a UNSC Chapter VII mandate. This is the preferred option for two clear reasons. First, the level of authority endowed by a UNSC Chapter VII mandate would assist any MNF in implementing controls or other measures that would otherwise potentially constitute unlawful, or at least contestable, limitations on passage and activities.

For example, temporary restrictions on navigation in the Black Sea in order to implement a mine clearance plan would be logical, but contested, if these limitations did not comply with the 1982 Law of the Sea Convention (LOSC) EEZ and High Seas regimes. A Chapter VII mandate could cure this. Similarly, a Chapter VII mandate could both authorise and facilitate a temporary alteration of the nature of the MNF’s “due regard” requirements in Black Sea EEZs. Whilst none of the six Black Sea coastal States assert the type of prohibition of military activities in their EEZ that India and Brazil subscribe to, the fact that disposal by activation will often be the consequence of detection nevertheless still raises debates about the nature of the “due regard” obligation.

A second benefit conferred by this level of authority would be the ability to collect evidence in EEZs without first needing to consider the issue of coastal State consent. This evidence could be useful for a number of purposes (e.g., determining attribution for mine strikes, determining failure to provide adequate notification, or breaches of the law of naval warfare in respect of mine types and deployment locations). It is this very fact that makes a Chapter VII mandate useful. It could prove difficult to argue that the use of mine countermeasure (MCM) equipment and divers—for example, to undertake seabed surveys to locate mines or debris—is a military maritime data collection activity. The reason it may be difficult to claim this characterisation is precisely the intention to publicise (as opposed to securitise) the data, for example, as evidence in a name and shame diplomatic campaign, or even for subsequent legal proceedings.

This does not mean that these operations would therefore be Marine Scientific Research activities, governed by Part XIII of the LOSC and subject to detailed coastal State consent, observation, and data sharing requirements. But it does mean that there would be some uncertainty, which a UNSC Chapter VII mandate could clearly mitigate through direct authorisation of such activities. Of course, it is likely that most of the concerned coastal States would agree to the MNF’s operations without raising such obstacles, but this could not be guaranteed.

This is not to say, however, that these two clear benefits flowing from a UNSC Chapter VII mandate would solve every legal question. One challenging issue, for example, would be the existence (or not) of an independent, UNSC endorsed right for the MNF units to transit through the Turkish Straits, in a manner potentially contrary to the requirements of the Montreux Convention (which governs warship passage through the Straits) if the Turkish government objected to the operations or composition of the MNF. Another challenge could be the freedom of the MNF to operate in Black Sea coastal State Territorial Seas in the event that one or more of those coastal States objected to the operation. However, with the possible exception of Russia, this is unlikely to pose an actual obstacle insofar as the remaining States are likely to welcome assistance in the mitigation of this lingering menace to shipping.

Option 2: The UNGA?

With respect to the UNSC, however, and as was the case during the first Suez crisis, there is the potential that a P5 member—perhaps Russia—may for some reason veto any such mandate. The probable fallback option would then be to build upon the existing UNGA Emergency Special Session (ESS 11) in respect of the Ukraine-Russia armed conflict, in order to create a UNGA authorised naval mine clearance force. However, this option would not carry the force of a UNSC Chapter VII mandate, and would still need to be bound—certainly in the Territorial Sea, and to a much lesser but still contestable degree, in the EEZ—by the parameters of consent provided by the Black Sea coastal States.

For example, in the absence of a Chapter VII authorisation, it is incontestable that MNF operations in any Black Sea coastal State Territorial Sea would still require that coastal State’s consent. Such operations, despite a UNGA resolution, would still amount to a breach of innocent passage unless consented to. Further, there would be no basis for non-compliance (if this arose as an issue) with the Montreux Convention. And there would need to be negotiations with Black Sea coastal States as to the delicate balance to be struck—both practically, and in terms of interpretive coherence—between the MNF’s operational reach and coastal State jurisdiction. This would be particularly the case in respect of military activities involving ordnance disposal, seabed survey, etc. as they might touch upon the requirement for due regard in those coastal States’ EEZs.

Nor would a UNGA resolution provide an automatic exemption from the LOSC Part XIII Marine Scientific Research (MSR) regime. Therefore, to the extent that this regime might potentially be claimed to apply (even though this is not at all a strong argument)—if the operations required of the MNF to achieve its UNGA authorised mission were not otherwise characterised as MSR “exempt” military activities—then operational effectiveness could be held hostage by the need to conform to some coastal State MSR expectations.

Option 3: Coastal State Consent to the MNF?

If a UNSC Chapter VII mandate were not possible, the better option for such a mine clearance MNF would arguably be to secure direct Black Sea coastal State consent to the operation. This would sidestep the uncertainties that are inherent in a UNGA mandate by going directly to the geographically concerned States for authority to operate in their Territorial Seas and—to the extent necessary or acceptable—their EEZs (noting that there is no pocket of pure High Seas as the entirety of the Black Sea beyond the six coastal State Territorial Seas is comprised of their adjoining EEZs).

Further, even if a UNGA mandate was achieved, it would still require detailed consultations about implementation with the Black Sea coastal States. This was effectively the approach taken in the 1975 Suez mine clearance operation to enable Task Force 65 to undertake its mission. That is, even though a UNGA mandate might provide an additional degree of perceived legitimacy, it would still not circumvent the requirement to negotiate and agree the parameters of the operation with the Black Sea coastal States. And such State-by-State negotiation would in any case still be a necessary preliminary because of issues such as the scope of operational freedom in each Territorial Sea, and more contentiously, whether and why mine clearance operations in each EEZ might be subject to any (contestable) limitations. A direct negotiation with Turkey in particular would also be required so as to ensure preliminary MNF access to the Black Sea area of operations through the Turkish Straits.

It is the Black Sea geopolitical context that is therefore the source of perhaps the most significant challenge to this option. This is because the 1975 Suez operation required the MNF to negotiate with only one coastal State, Egypt. By contrast, a Black Sea mine clearance MNF operation would ideally require all six coastal States to consent. These negotiations, and the multifarious State-specific parameters and limitations that could result from such a set of negotiations, could quickly become wickedly complex. Individual and differential State-by-State arrangements rather than a single multilateral arrangement would make operational planning, and mission coordination and execution, quite challenging. But regardless of this complexity, and even if only some but not all of the Black Sea coastal States agreed to a mine clearance MNF, there is no doubt that benefits to shipping (including navigational safety and reduced insurance costs) would still quickly accrue from an escalating set of publicly notified cleared/swept routes.

Conclusion

As an incident of the Ukraine–Russia armed conflict, the full consequences of Black Sea naval mine warfare are still to fully manifest. Indeed, it may not be until the war is over that the full costs of this campaign will begin to show. And despite the fact that casualties to people and ships have already accrued, the longer naval mine laying continues, the more challenging and costly the post-conflict mine clearance problem will become. This is especially the case in the Black Sea, where it appears that many of the free-floating (or moored but now loose) mine types used to date do not disarm as required, and most of the mine fields have not been notified.

So, while there is little doubt that the reconstruction of Ukraine will be an expensive and long-term task, it is important to recognise that “reconstruction” is also required in the Black Sea. But the first step in maritime reconstruction is mine clearance. And when the escalating naval mine threat is combined with the fact that the Black Sea is an essential sea line of communication—especially for grain—it becomes very apparent that the international community equally needs to start thinking about how the Black Sea commons will again be rendered safe for maritime activity.

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Rob McLaughlin is a Professor of Military and Security Law at UNSW Canberra and a Professor of International Law at Australian National Centre for Ocean Research and Security.

Photo credit: Andrew J. Eder, U.S. Navy