The Black Sea Grain Initiative (BSGI) was in the spotlight recently following a nail-biting attempt by Russia to suspend its participation in one of UN Secretary-General Guterres’ signature humanitarian efforts. Understandably, commentators have paid little attention to international law’s role in the Initiative’s conclusion and implementation. Ahead of its possible extension next week, and with its future still hanging in the balance, a closer look at the relationship between the BSGI and the law of treaties is merited. In this article, we examine the humanitarian, political, and legal context of the BSGI and some of the implications of its legally binding nature, including for treaty withdrawal and suspension. We show how the law of treaties has played a constructive background role in stabilizing global crises in the face of the most difficult of circumstances: an armed conflict raging between two of the treaty’s parties.
Ukraine and the Global Food Security Crisis
Ukraine plays a major role in agricultural markets by contributing significant shares (between 10-45%) to global exports of wheat, barley, maize, rape seed, and sunflower seed oil, among others. Russia’s aggression against Ukraine since February 24, 2022 had devastating consequences for the country’s agricultural production and threatened the safety of important shipping routes across the Black Sea, leading to spikes in insurance rates for merchant vessels operating in the region.
Russia’s invasion of one of the world’s ‘breadbaskets’ aggravated an already dire global food security situation, with over 800 million people facing hunger in 2021. In this context, UN Secretary-General (UNSG) Guterres enlisted Russia, Ukraine, and Turkey in a plan to ensure the safe transportation of grain and related foodstuffs and fertilizers from three Black Sea ports. By increasing the supply of foodstuffs and fertilizers in global markets, the BSGI was expected to help stabilize food prices and appears to have delivered on its promise.
In exchange for its participation in the BSGI, Russia was given certain political commitments in a 3-year Memorandum of Understanding (MoU), an instrument separate from but linked to the BSGI. The MoU commits the UN Secretariat to continue “efforts to facilitate the transparent unimpeded access of food and fertilizers” from Russia (para. 2) and envisages regular information exchange between Russia and the UN (para. 3). The MoU also commits Russia “to facilitate the unimpeded export of food, sunflower oil and fertilizers from” unoccupied Ukrainian ports in the Black Sea (para. 1).
The First 120 Days: A Short Chronology of the BSGI
On July 22, 2022, two separate written instruments constituting the BSGI were signed in Istanbul, one by the UNSG and representatives of Russia and Turkey, and the other by the UNSG and representatives of Ukraine and Turkey. A Joint Coordination Centre (JCC) was set up to “conduct general oversight and coordination” of the BSGI under the auspices of the UN and with the participation by representatives of each of the parties and the UN.
The BSGI runs for 120 days, but is to be extended “automatically” unless a party requests to terminate or modify it. Until late October 2022, a total of nearly 10 million metric tons of foodstuffs had been transported via the BSGI, which is still under the expected capacity of up to 5 million metric tons per month. As the date of the BSGI’s possible extension (November 19, 2022) was approaching, Russia increasingly voiced displeasure with the deal, either focusing on the alleged failure of the BSGI to help those in greatest need or asserting that the second part of the UNSG’s package deal – its bilateral MoU with Russia – was stalling.
Events came to a head on October 29, 2022, when Russia declared that it would “suspend its implementation [of the BSGI] … for an indefinite period” on the grounds that it was unable to “guarantee the safety of civilian dry cargo ships participating in” the BSGI in the face of alleged “massive air and sea strikes using drones” directed at Russia’s Black Sea fleet and infrastructure. Ukraine (and the UK) rejected these allegations.
The subsequent days saw a flurry of diplomatic activity, with the UNSG and Turkey in the lead and Russia increasingly on the defensive. During a UN Security Council (UNSC) meeting on the matter, the UN’s Martin Griffiths stated that in respect of the “alleged misuse of cargo vessels in the Initiative for military purposes, none were in the corridor on the night of 29 October when the reported attacks took place.” Following a UNSC meeting and bilateral exchanges between Presidents Erdogan and Putin, Russia unexpectedly reversed course. In televised remarks on November 2, 2022, President Putin stated that Russia would “resume [its] full participation” in the BSGI but would reserve “the right to withdraw” from the agreement if Ukraine did not abide by certain “guarantees” that “humanitarian corridors would not be used for military purposes.”
Amid widespread relief and commendation of the UNSG’s and Turkey’s diplomatic efforts, the BSGI was thus up and running again after an unexpectedly short hiatus. However, Russia’s assertion of a unilateral “right of withdrawal” and the looming possibility of the BSGI’s non-extension mean that the Initiative still appears to hang by a thread. While it is too early to tell whether the BSGI will pave the way for a further expansion of Ukrainian exports or crumble in the face of Russian resistance, a stocktaking of some of the legal dimensions of the BSGI is warranted ahead of its possible extension next week.
The Law of Treaties and the BSGI
The BSGI raises several issues touching upon the law of treaties. Before addressing them individually, it is worth highlighting some of the basic legal features and context of the BSGI. First, while the BSGI was signed by the UN and assigns a special role to the UNSG, the UN is not a ‘Party’ to the agreement pursuant to (preambular) para. 1 of the BSGI (the Parties are specified as the three states involved: Turkey, Russia, and Ukraine). Second, while the BSGI does not directly refer to the bilateral Russia-UN Secretariat MoU, the latter commits Russia to supporting the main objective of the BSGI for 3 years. Third, the BSGI (para. 2) states that it is “based on agreements of parties” of the SOLAS Convention (the 1974 International Convention for the Safety of Life at Sea) and the International Ship and Port Facility Security (ISPS) Code, thus linking the BSGI with an established treaty regime governing the safety of merchant shipping.
Fourth, the BSGI is time-limited by periods of 120 days, with the possibility of automatic extensions. Fifth, the BSGI does not foresee a mechanism for early termination or suspension. Sixth, while Russia and Ukraine are parties to the 1969 Vienna Convention on the Law of Treaties (VCTL), Turkey is not. Seventh, the BSGI does not contain a dispute settlement provision, though it accords the UNSG a special role “in securing the discussions for this initiative” and requests “his further assistance in its implementation.”
Finally, while there are doubts that many of the provisions of the VCLT can be deemed to mirror customary international law, some key provisions are widely seen as reflective of custom. Overall, the VCLT can serve as a practical starting point for examining several of the questions of interest in this article (see, for example, Kolb or the contributions in Corten & Klein (eds), Dörr & Schmalenbach (eds), or Cannizzaro (ed)).
The Legal Nature of the BSGI
From the perspective of the law of treaties, the crucial question is whether the BSGI constitutes a binding agreement under international law. The BSGI does not itself take a position on this question. The relevant starting point for assessing its legal nature is Article 2(1)(a) of the VCLT. That provision states that a treaty can be understood to be “an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation.”
Although this definition is only given for purposes of the VCLT, legal scholars widely consider that it reflects customary international law and is the most authoritative definition of what constitutes a legally binding agreement under international law. While some of its conditions, such as the legal quality of the parties as states are easy to assess, the crucial question is whether the BSGI is “governed by international law.” This part of the VCLT’s definition is anything but straightforward, but has rather been aptly described as “deceptively simple.” In the work of the UN International Law Commission (ILC) preceding the Vienna Conference, various suggestions shifted back and forth between more “objective” and “subjective” attempts at solving this definitional question. Eventually, both the ILC and the Vienna Conference held that the formulation “governed by international law” refers to the intent of the parties to create an binding agreement under international law. Accordingly, legal scholars and courts have generally considered that the intent of the parties determines the legal bindingness of an agreement on the basis of the principle of state consent.
The International Court of Justice (ICJ) has on two occasions assessed the legal nature of instruments which might, at first sight, not appear to qualify as treaties under international law. In the Aegean Sea Continental Shelf Case between Greece and Turkey, the Court held in its 1978 Judgment that a “communiqué” can very well form an international agreement. The Court pointed out that it knew of “no rule of international law which might preclude a joint communiqué from constituting an international agreement” (para. 96), even though it found in the case at hand that the communiqué did not clearly express the intention of the parties to submit the dispute in question to a judicial settlement. In its 1994 Judgment in the Maritime Delimitation and Territorial Questions between Qatar and Bahrain case, the Court was ready to qualify “minutes” of a meeting between representatives of Qatar and Bahrain as a binding legal agreement (paras. 21 et seq.). In the same case, the Court also emphasized that non-registration of an agreement with the UN under Article 102 of the UN Charter did not have any legal consequences for the validity of such an agreement (para. 29). In both cases, the Court held that it needed to have regard above all to the actual terms and the particular circumstances in which the respective agreement was concluded.
With respect to the BSGI, the following observations generally point towards its qualification as a legally binding treaty governed by international law: First, the title of the instrument as an “initiative” may raise doubts whether the BSGI was envisaged to be a legally binding set of instruments. However, already Article 2(1)(a) VCLT points out that the designation is of no importance for the question. Second, according to para. 2 of the preambular part, the BSGI is set in the framework of other legally binding instruments and resolutions stemming from the SOLAS context, though the latter does not elaborate on the legal nature of agreements concluded in its ambit.
A third point to take into account concerns the formal appearance of the instrument. Five initial paragraphs are numbered, which is unusual for preambular paragraphs to a legally binding agreement. The main parts of the BSGI are then set out from point A. to point I. under the rather inconclusive heading “Primary Aspects of the Initiative.” This point does not necessarily speak against the BSGI’s legally binding nature. Rather, along the lines of the ICJ’s case law, the “actual terms” of the instrument are more relevant. Let us, then, examine the actual terms used.
It is noticeable, fourth, that the BSGI speaks of “Parties.” States, in their internal guidelines to negotiators or other diplomatic representatives, commonly caution against referring to “parties” in cases where binding legal agreements are not desired (see, by way of illustration, para. 41 of the Guidelines of the German Federal Government on the treatment of international agreements). States are likely to use alternate terms, such as “participants,” in non-binding arrangements.
Fifth, para. 5 of the preambular part ends with the words “(t)he Parties agrees as follows,” which evokes the language used by legally binding instruments. Terms such as “agree,” “shall,” and “must” are generally viewed by states as indicative of binding obligations, whereas terms such as “may,” “are to,” “endeavor to,” and “undertake to,” among others, are often used in non-binding commitments.
Sixth, in the main part of the BSGI – relating to its “Primary Aspects” – ample language points in the direction of its legal bindingness. Thus, the JCC “shall be set up” and it “shall conduct general oversight and coordination of this Initiative” (A.) (emphases added). Parties “will not undertake any attacks against merchant vessels and other civilian vessels and part facilities engaged in this Initiative” (C.). It is prohibited for military ships, aircraft and unmanned aerial vehicles to approach the maritime humanitarian corridor without the authorization of the JCC (E.). “All merchant vessels taking part in this Initiative shall be subject to inspection conducted by an Inspection Team” (G.) (emphasis added). The BSGI also safeguards the privileges and immunities of the UN (I.).
It may be surprising that a treaty was made amidst a war raging between two of its parties and in an era when formal lawmaking has been on the decline for some time. But the above arguments point to the legal bindingness of the BSGI. This is further underlined by comparing the BSGI with the parallel MoU between the UN Secretariat and Russia. This document, which seeks to facilitate Russian exports of food and fertilizers (including ammonia) to world markets, expressly stipulates that “(t)he present Memorandum is not an international treaty and does not establish any rights or obligations under the [sic] international law.” While the BSGI does not formally refer to the MoU, the political context makes it abundantly clear that the two instruments are linked. The fact that the issue of legal bindingness is so clearly addressed in the MoU in a negative sense supports the finding that the BSGI is indeed a legally binding treaty in the sense of the law of treaties.
Treaty Suspension, Withdrawal, and Interpretation
With the legal nature of the BSGI established, we can turn to some of the practical implications of this finding, notably for treaty suspension and withdrawal. These phenomena are common enough to have been regulated in the VCLT, even if its provisions may not fully reflect customary international law (on the broader role of treaty withdrawal, see especially Helfer’s influential work on “exit” versus “breach” and Morelli’s insightful study of multilateral treaty withdrawal).
As a basic matter, the VCLT distinguishes between the rules applicable to bilateral and multilateral treaties. It clarifies that the possibility of a treaty’s termination or the suspension of its operation is primarily governed by the treaty itself but may also occur at any time by the consent of all parties (Articles 54 and 57). If a treaty does not contain a provision regarding its termination and does not provide for its denunciation or withdrawal, Article 56 allows for denunciation or withdrawal to be inferred from the “intention of the parties” or “implied by the nature of the treaty.” No such possibility exists with regard to the suspension of the operation of a treaty under the VCLT.
In the absence of a lex contractus, the VCLT provides for several possible grounds for the termination or suspension of the operation of a treaty, including the existence of a “material breach” of a multilateral treaty by one of the parties (Article 60) or a “supervening impossibility of performance” (Article 61), which are supplemented by fairly detailed procedural rules. International judicial practice suggests that there is more support in customary international law for the substantive than for the procedural rules reflected in the VCLT on matters of treaty withdrawal or suspension, as highlighted among others by the ICJ in its Judgment in the Gabčíkovo-Nagymaros Project case (paras. 99 and 109).
The BSGI is a multilateral treaty and contains a provision regarding its termination in para. H, which foresees a default rule of automatic extension after 120 days unless “one of the Parties notifies the other of the intent to terminate the [BSGI], or to modify it.” The BSGI does not, however, contain a provision on the suspension of its operation. As noted above, however, both the VCLT and arguably the law of state responsibility may offer additional grounds for a party to seek to terminate or suspend the operation of the BSGI.
In the context of Russia’s purported suspension of its implementation of the BSGI, it implicitly tried to invoke something most closely resembling the rules reflected in Article 60 or 61 of the VCLT: First, Russia appeared to invoke an alleged breach of the BSGI by Ukraine in order to seek suspension of the treaty’s operation in relation between itself and all other parties (Turkey and Ukraine), rather than just Ukraine, a possibility not foreseen in Article 60. One could argue that due to the aims of the BSGI, which concerns the safe navigation for the exports from Ukrainian ports and its implementation through the JCC, the suspension of the operation of this particular treaty in relation to both parties does not practically differ from its suspension only in relation to Ukraine. Nonetheless, the distinction may be legally relevant as long as it is reflected also in customary international law given Turkey’s non-party status in the VCLT.
Second, Russia also seemed to point to an impossibility of performing the BSGI by reference to its alleged inability to “guarantee the safety of civilian dry cargo ships participating in” the BSGI. However, both legal grounds for treaty suspension are subject to substantive legal limits under the law of treaties, including the absence of wrongful conduct by the state invoking a material breach or an impossibility of performance, the requirement of proportionality, and the exemption of certain humanitarian treaty provisions in Article 60.
The most important practical point, however, is that in the absence of a dispute settlement provision, Russia’s allegation that Ukraine had been in breach of the BSGI or otherwise frustrated the BSGI’s implementation by Russia could only be verified – and resolved – in a diplomatic context. This meant that actors such as the UNSG and Turkey, who offered the greatest degree of independence in the context of an ongoing armed conflict, played the role of mediators and appeared to have done so successfully.
Whether constraints reflected in the law of treaties played a role in their efforts is not known, but the publicly available information points to the role of formal and legal arguments. For instance, a Turkish official was quoted as stating that Turkey had not been notified by Russia of its purported suspension of the operation of the treaty, which can be taken to be a nod to the procedural provisions of the VCLT for the termination or suspension of international agreements. In its Judgment in the Gabčíkovo-Nagymaros Project case, the ICJ had found these to “at least generally reflect customary international law” and linked them to the obligation of states to act in good faith. Given that Turkey is not a party to the VCLT, it is all the more interesting to see how these procedural rules of the VCLT might have had an impact here, albeit in a multilateral context.
In short, the background norms of the law of treaties, combined with the design of the BSGI, meant that the UNSG and Turkey had to play a key role in resolving the recent impasse caused by Russia’s purported suspension of its implementation of the BSGI. Their mediating role appears to have been the main factor explaining the quick resolution of the standoff. Interestingly, Russia did not invoke the alleged stalling on the second part of the package deal (its MoU with the UN Secretariat) as a ground for suspending the operation of the BSGI nor as a potential ground for its claimed “right to withdraw.” This suggests that despite the invocations of a package deal (BSGI and MoU), the distinctive legal nature of the two instruments has ensured that discussions about these two parts of the package deal remain separate, which seems to accord with the humanitarian aims of the BSGI.
The Law of Treaties in Action
The BSGI raises many questions that we expect will continue to attract the attention of multiple disciplines for years to come. In this short article, we cannot do justice to all questions raised by the BSGI even from the perspective of the law of treaties.
Nevertheless, we can conclude that despite a certain treaty fatigue in recent years, the high-stakes BSGI was adopted in the form of a legally binding agreement. While this choice may have been prompted by “technical” considerations deriving from the SOLAS context, it nonetheless had more far-reaching legal implications. Following Russia’s purported suspension of its implementation of the BSGI, the formal legal constraints of the law of treaties, coupled with the distinctive design of the “package deal,” may have played a role in helping resolve this temporary crisis. At the same time, the absence of a formal dispute settlement clause placed the burden of mediation on the UNSG and Turkey. Given the relatively bountiful practice in the application of the BSGI in a context of geopolitical permacrisis, the BSGI thus offers important insights into the law of treaties in action.
In sum, having established that the BSGI was indeed a treaty, we believe that the law of treaties has likely played a significant background role in stabilizing the BSGI. The law of treaties provided a conceptual and argumentative framework for treaty-making and the management of treaty relations in the most difficult of circumstances: an armed conflict raging between two of its parties.
Editor’s Note: All views expressed in this article are the co-authors’ alone and in no way reflect the views of any EU institution.