Foreign Relations & International Law

The Black Sea Grain Deal: Fragile Cooperation Between Ukraine and Russia

Mykhailo Soldatenko
Friday, April 21, 2023, 2:00 PM
The parties’ interests and flexibility of their commitments made the Grain Deal a reality but are also the main cause of its permanent fragility.

Published by The Lawfare Institute
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On March 18, after tedious negotiations accompanied by threats from Russia to abandon the deal, the Black Sea Grain Initiative between Ukraine, Russia, and Turkey—otherwise known as the Grain Deal—was extended for the second time. When the parties negotiated the first extension in November 2022, they eventually agreed on a 120-day automatic rollover of the deal provided in the agreement by default. This time, however, the parties are disagreeing over the exact length of an extension period, with Ukraine claiming that it had again settled on a 120-day extension versus Russia’s claim of 60 days

The Grain Deal mediated by Turkey and the United Nations Secretariat is a rare instance of pending, albeit fragile, cooperation between Ukraine and Russia amid the ongoing war, which as a result has eased the global food crisis while satisfying the parties’ varying interests. It is those interests and flexible framing of the parties’ commitments—including each party’s veto on the agreement’s extension—that made the Grain Deal a reality. But they are also the main cause of its permanent fragility, exemplified by Russian threats to exit the deal in anticipation of every extension. 

The law of treaties, contrary to what some legal scholars have suggested, does not have much influence on the parties’ loyalty to the deal, considering the parties’ unconditional veto over the agreement’s extension and reasonable grounds to claim its political nature.

Russia’s Aggression and the Global Food Crisis 

At the inception of full-scale war, the Russian Navy blockaded Ukrainian seaports. Thus, Ukrainian exports via the Black Sea, including grain and other goods, came to a halt. Before the 2022 invasion, Ukraine was the fourth largest exporter of corn (around 15 percent of global exports) and the fifth largest wheat exporter (around 10 percent of global exports). Ukraine’s agricultural products accounted for over 40 percent of the country’s overall exports. The sudden disruption of Ukrainian exports led to an immediate spike in global food prices, worsening the global food crisis and damaging the Ukrainian economy. 

In response to Russia’s aggression in Ukraine, much of the international community imposed sanctions on Russia to put heavy pressure on its economy and dissuade the aggressor from its recalcitrant actions. Although Russian food and fertilizers exports (essential for global food security) were generally carved out of the scope of the unprecedented international sanctions against the country, the sanctions still had various indirect effects on those key exports. Namely, banks, insurers, shipping, and other critical companies have been steering away from even permitted transactions with Russian parties for fear of running afoul of sanctions, unwilling to bear due diligence costs or for reputational reasons (known as the market’s overcompliance and self-sanctioning phenomena). As one German banker noted, “[O]ur risk appetite … has been reduced to zero.” Also, shipments and other transactions connected to sanctioned individuals and companies experienced difficulties. Russia was actively using these destabilizing factors to shift the blame for the worsening food security on the West and also as leverage for its condition of easing the global sanction regime in negotiations about deblocking Ukrainian ports. 

With the strengthening of Ukraine’s anti-ship missile capabilities and ensuing naval successes—including the sinking of the Russian flagship Moskva and the liberation of Snake Island (which is located astride the main shipping route)—Russia’s Black Sea Fleet significantly restrained its operations in the area. Accordingly, the risk of amphibious attacks on Ukrainian ports decreased. It was this change, in combination with mounting international pressure, that created momentum for the U.N. and Turkey to broker the Grain Deal.

The Grain Deal’s Design 

Discreet Framing 

Deals between bitter rivals are obviously hard to reach. As American economist Thomas Shelling once noted, “[Warring parties] may fear that even a show of willingness to negotiate will be interpreted as excessive eagerness.” In such cases, a classical bilateral agreement is often a nonstarter, and—as in the case of the Grain Deal—active involvement of intermediaries is often a must. 

Turkey and the U.N. secretary-general mediated the negotiations. Ukraine and Russia notably did not sign a single document together but, rather, two separate but identical documents with Turkey, which the U.N. secretary-general witnessed by signature. Ukrainian and Russian representatives even had difficulty agreeing on whether to use the Ukrainian or Russian spelling of Ukrainian port names. The compromise on this issue was achieved by spelling “Odesa” in a Ukrainian manner, “Chernomorsk” in Russian, and using an old name, “Yuzhny,” for the third port in question, which is spelled identically in Ukrainian and Russian. 

Among other things, the Ukrainian officials used this framing to mitigate a potential internal backlash against the deal, as many Ukrainians are suspicious of any agreements with Russia given the pending human suffering and destruction brought by Russia in violation of its many international commitments. 

While this framing is relevant for public perception, it does not matter much from a legal perspective. Both political agreements and treaties can be embodied in “two or more related instruments” (for instance, see Article 1(2)(a) of the Vienna Convention on the Law of Treaties) as long as they express the parties’ agreement. The first paragraph of the deal provides that its parties are Turkey, Russia, and Ukraine, and paragraph five unequivocally states that “the Parties agree as follows,” conveying an agreement between them. 

Security Assurances and Procedures for the Shipping of Ukrainian Grain 

The deal’s purpose is “to facilitate safe navigation for the export of grain and related foodstuffs and fertilizers” from Ukrainian ports and, importantly, to convince market stakeholders that any security risks associated with shipping grain via the war zone are tolerable for their commercial operations. 

Accordingly, the parties pledged “maximum assurances” of the safety and security of vessels involved in the initiative, among other things, by committing to “not undertake any attacks against merchant vessels and other civilian vessels and port facilities engaged in this Initiative.” 

The initiative covers only three Ukrainian ports—“Odesa, Chernomorsk and Yuzhny”—and only the exports of “grain and related foodstuffs and fertilizers, including ammonia.”

To oversee and coordinate the agreement’s implementation, the parties created the Joint Coordination Center (JCC) in Istanbul. Inspection teams with representatives from each party and the U.N. also check ships “at the entry/exit to/from the Turkish strait” to ensure that there are no “unauthorized cargo and personnel,” including but not limited to arms supplies. According to the JCC procedures outlined for merchant ships, vessels are supposed to register with the JCC before traveling, get inspected in Turkey, and then proceed via the maritime humanitarian corridor to avoid any military threats, such as mines. The JCC also promptly notifies the parties about the registered vessel’s movements. The parties then forward this information to their military authorities to ensure they have “no objection” to a ship passage, after which the JCC representatives of each party acknowledge that a vessel can move safely.

The initiative is based on “alternative security agreements” aimed at implementing the requirements on maritime safety in Chapter XI-2 of the International Convention for the Safety of Life at Sea (SOLAS). Because the agreement is connected and compatible with the legal framework familiar to the shipping industry, the parties provided additional comfort to the market, increasing the credibility of the underlying commitments.

Military Actions and the Humanitarian Corridor

To “prevent any provocations or incidents,” the initiative prohibits any “military ships, aircraft and unmanned aerial vehicles” coming within 10 nautical miles of the established humanitarian corridor without appropriate prior authorization. On its face, the prohibition may be interpreted as barring any military movements in the area pending the initiative’s effectiveness. However, as U.N. Under-Secretary-General Martin Griffiths clarified to the Security Council (potentially conveying the parties’ mutual understanding), the humanitarian corridor has protected status only when “a ship passes through those lines on the sea.” Otherwise, “it’s not a shield, it’s not a hideout, it’s not a no-go zone.” This understanding is compatible with the notion of humanitarian corridors in international practice as “agreements between parties to the armed conflict to allow for safe passage for a limited time in a specific geographic area” (emphasis added). Unlike demilitarized zones, the humanitarian corridors ensure a safe passage for a limited time period and do not necessarily make the adjunctive area immune from military operations when no passage is taking place.

Griffiths did warn, however, that somehow using the initiative for a military advantage would be a “grave abuse” of it. The agreement’s text does not cover safeguards against such abuses. And—most likely due to Ukraine’s demands to clarify the matter—the Russian defense minister separately and publicly confirmed that “Russia took obligations that are clearly set forth in the document” and thus did “not take advantage of the fact that Ukrainian ports will be de-mined and open.”

The issue became relevant again in October 2022 when seven Ukrainian naval kamikaze drones reportedly attacked Russia’s fleet in the Ukrainian port city of Sevastopol. Russia then accused Ukraine of navigating those drones via the humanitarian corridor and subsequently declared the “suspension” of its participation in the Grain Deal for “an indefinite time.” Later, Russia reinstated its participation after allegedly receiving assurances from Ukraine (via Turkey) that it would not use the humanitarian corridor for military operations. Russia, however, also threatened to exit the deal if those alleged assurances are violated.

It remains unclear whether Ukrainian drones crossed the humanitarian corridor. U.N. representatives did, however, state that no merchant ships were present in the corridor on the night of the reported attack. Per the understanding of the corridor’s status mentioned above, the absence of merchant ships in the corridor technically made it nonimmune from military operations that night. Thus, Russia may have tried to use the “suspension” of its participation, among other purposes, to force Ukraine to offer security assurances that ultimately restrain its operations in the vicinity of the humanitarian corridor when merchant ships are not navigating there.

Ukraine denied Russia’s initial accusations and that it provided any security assurances, including via Turkey. From November 2022 to March 2023, no naval drone attacks were reported on Russia’s Black Sea Fleet in Crimea. Only one maritime drone reportedly hit an oil terminal in Novorossiysk on Nov. 18, 2022, but neither Russia nor Ukraine acknowledged this attack. Various military considerations might explain the absence of similar attacks for an extended period of time, but it could also be at least partially connected to Russia’s public threats to exit the deal. However, after the Russian refusal to extend the deal for 120 days from March 18 and accompanied threats to exit the initiative in May, naval drone strikes resumed on March 22 and again on April 24. 

Separate Memorandum Between Russia and the U.N. Secretariat

Russian demands to remove any barriers to its food and fertilizer exports became the subject of a separate political memorandum of understanding (MoU) between Russia and the U.N. Secretariat. Under the MoU, the U.N. Secretariat agreed to “continue efforts to facilitate the transparent unimpeded access of food and fertilizers … (including ammonia) … from the Russian Federation to the world markets.” Notice that the ammonia (which is used to produce fertilizers) was emphasized separately—as it is in the Grain Deal. This is because Russia has been trying to resume the chemical’s transit via the Togliatti-Odesa pipeline crossing Ukraine and the Odesa port after Russian ammonia supplier Togliattiazot suspended its transit at the beginning of the full-scale invasion. In essence, the U.N. Secretariat pledged to engage with different countries and private companies in efforts to shield Russia’s food and fertilizers from effects of sanctions, including the private sector’s overcompliance mentioned earlier.

In turn, Russia promised “to continue supplies of food and fertilizers to the countries in need of such products” and facilitate “the unimpeded export of food, sunflower oil, and fertilizers” from Ukrainian ports for three years.

Though the MoU and the Grain Deal are two separate agreements that involve different parties, Russia agreed to the Grain Deal on the condition of having those political commitments outlined in the MoU. Accordingly, it claimed that the two documents were a “package” deal. While the Grain Deal’s text does not contain any connections to the MoU, Russia’s unconditional veto over the deal’s extension, explained below, enables it to attempt to enforce the MoU via threats to exit the deal.

Extension Veto and Constant Russian Demands to Ease the Sanctions 

Upon its agreement, the Grain Deal was effective for 120 days and “can be extended automatically for the same period unless one of the Parties notifies the other of the intent to terminate the initiative, or modify it.” This means that Turkey, Ukraine, and Russia each have an unconditional veto over the deal’s automatic extension. 

Russia—perhaps unsurprisingly—leverages this veto with every discussion of extension, primarily trying to ease the sanctions regime by claiming violations of the MoU. Slow walking of vessel inspections by Russian inspectors may be yet another way for Russia to demand concessions as a potential condition for expediting the inspections and thus increasing the volume of Ukrainian grain exports via the Black Sea. 

The United States, European Union, and United Kingdom on many occasions clarified for the market and other countries that Russian food and fertilizer exports are generally carved out from the sanctions regime, including U.S. representatives expressing readiness to issue comfort letters to private companies to address their concerns. As part of those efforts, the U.S. and the U.K. also issued general licenses to “make clear that banks, insurers, shippers, and other actors can continue to bring Russian food and fertilizer to the world.” The EU also enacted derogations allowing exemptions for food and fertilizers in transactions with sanctioned Russian persons. 

Although its food and fertilizer exports reportedly remain stable (except for ammonia), Russia still demands various measures intended to weaken the sanctions regime, such as resuming the supply of agricultural machinery to Russia and reconnecting the Russian Agricultural Bank to the Society for Worldwide Interbank Financial Telecommunications, more commonly known as SWIFT. 

With the last extension on March 18, Russia is increasing pressure by trying to shorten the period for exercising its extension veto within 60 days instead of 120, explicitly threatening to exit the deal if its demands are not met within the new, shortened time frame. Ukrainian officials, however, insisted that the agreement was extended for 120 days, while neither the U.N. Secretariat nor Turkey clarified the extension period this time. Russia, in turn, claims that it informed Turkey and Ukraine that it agreed only to the 60-day extension, to which they did not formally object. 

Under paragraph 5(H) of the initiative, the mere Russian notification “to modify” the agreement is enough to prevent its automatic extension. Accordingly, if other parties formally objected to the proposed 60-day extension, the initiative would expire. Instead, Ukrainian representatives publicly stated that Ukraine considers the agreement to be extended for 120 days provided in the deal, which in practice means that both parties are in agreement with respect to 60 days only. Accordingly, Russia uses the new May deadline as a reference point for its efforts to extract concessions.

Is the Agreement Legally Binding? 

The international practice developed two approaches for defining whether a particular agreement is a treaty “governed by international law” under Article 2(1)(a) of the Vienna Convention on the Law of Treaties (VCLT). Namely, the intent test prioritizes the parties’ actual intent, and the objective test focuses on the objective manifestation of this intent in the agreement’s text. Both tests still consider the agreement’s text and subject matter in light of the circumstances of its conclusion. 

The Grain Deal is a hard case in this respect, as the parties did not specify its nature in the text. It is also designed to be ambiguous and contains contradictory wording. 

The fact that the agreement formally called an “initiative” does not have much relevance in this respect, as the VCLT provides that an agreement can be a treaty “regardless of its particular designation.” Also, the agreement’s connection to the SOLAS legal framework on shipping safety is not helpful, as the SOLAS does not require its alternative agreements to be binding. 

The text uses the term “Parties” employed by the VCLT, which is usually considered an indicator of a binding instrument, unlike “participants.” The agreement also contains the wording “agree as follows” and “done in [place] on [date],” which can indicate a legal nature according to general practice. Regarding procedural commitments—like the establishment of the JCC and inspections of ships—the mandatory modal verb “shall” is used. Based primarily on this specific wording, legal scholars Gregor Novak and Helmut Aust concluded that the initiative should be considered a treaty. However, such mandatory vernacular does not guarantee that the agreement is binding under intent or objective tests, especially when the agreement’s other provisions are far from clear. 

More specifically, the parties’ security assurances to market participants are accompanied by the verb “will,” which can be interpreted to signify political and legal commitments. Thus, the use of the softer verb “will” for security provisions as compared to “shall” for procedural provisions might have been intended to express the political nature of the security commitments. Moreover, the general provision on the parties’ “maximum assurances” of safe navigation provides that the initiative only “assumes” that the parties provided those commitments.

Also, the entry into force clause in paragraph 5(H) uses traditionally nonbinding wording, “will remain in effect,” instead of a VCLT-like term such as “enters into force,” which is often an indicator of an agreemnt’s bindingness per International Court of Justice practice. In short, the agreement’s text is, at best, ambiguous on the matter.

The parties and the U.N. have also never specified the agreement’s nature in public comments. They have, however, referred to the agreement using a nonbinding vernacular. For example, while commenting on Russia’s attack on the Odesa port, Ukrainian President Volodymyr Zelenskyy described it as an “attack on Russia’s own political positions” (emphasis added), not a treaty breach. Also, Russian President Vladimir Putin called the agreement “sdelka” (in English “deal” or “transaction”), which in Russian is used to describe commercial dealings and is not generally used when referring to treaties between states.

The agreement has not been registered with the U.N. Secretariat according to Article 102 of the U.N. Charter. Though the mere nonregistration does not preclude an agreement’s binding force, the fact that the U.N. Secretariat is directly involved in its implementation is a potential factor against the agreement’s bindingness. Namely, according to Article 102(2) of the U.N. Charter, a nonregistered agreement cannot be invoked for consideration before any U.N. organ, including the U.N. Secretariat, while the parties expressly “request[ed] [the secretary-general’s] further assistance in [the agreement’s] implementation.” 

In a piece on Just Security, Novak and Aust argued that since the U.N.-Russia MoU directly mentions its political nature, the parties would likely use the same wording in the initiative if they wanted it to matter only politically. This argument is unconvincing. First, they are making far-fetched conclusions simply based on the MoU’s political connection to the Grain Deal, which has parties and subject matter different from the MoU. This difference makes the mentioned conclusion implausible since different configurations of parties can have different reasons for employing different wording, especially in respect of a different subject matter. Moreover, there are specific reasons for employing different wording in the instruments in this case. Namely, the MoU could not have been a treaty, as one of its participants is the U.N. Secretariat—a principal organ of the U.N.—which does not have international legal personality and, accordingly, treaty-making capacity of its own independent from the U.N. as an international organization. Further, the Grain Deal is ambiguous, since the parties were largely uncomfortable specifying its legal or political nature for the reasons outlined below. 

The explicit legal agreement did not suffice for the reasons of public perception mentioned earlier, and also because the parties likely wanted more flexibility than is usually available under rigid treaty law rules, considering the rapidly changing and unpredictable situation of the war and related military incentives. Under the circumstances, a plausible position for the agreement’s political nature, given the absence of mandatory dispute resolution, provides a relatively convenient off-ramp when one of the parties becomes convinced that the initiative significantly prejudices its interests or leads to unacceptable security risks.

At the same time, the emphasis on the agreement’s nonbinding nature could have reduced the credibility of the security assurances for the market participants who rely on them in planning their commercial operations with shipments that cross the warzone. 

In light of this ambiguity and the parties’ unconditional veto power over the deal’s extension, the main driver for the continuing operation of the initiative is the favorable cost-benefit calculus of the parties, relying on economic benefits, military factors, and their relations with other countries interested in the initiative (such as Turkey, China, and multiple African countries), as an unjustified exit from the agreement may backfire in prejudicing cooperation with them, thus potentially jeopardizing various kinds of external support each party receives in the current war. The last factor puts the Grain Deal at the forefront of the broader competition between Ukraine together with its partners and Russia for the hearts and minds of developing countries, which essentially boils down to “who is seen to be feeding—and who starving—the poorest countries in the world.”

Mykhailo Soldatenko is a visiting researcher on international agreements at Harvard Law School and a transitional justice researcher at Harvard Kennedy School’s Carr Center for Human Rights Policy. Mykhailo is also an attorney at law in Ukraine and New York and a Ph.D. candidate in public international law at Kyiv-Mohyla Academy. He was previously a senior associate at the Asters law firm in Kyiv, where he practiced international dispute resolution.

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