“Bismarck’s words” that an agreement with Russia is not worth the paper it is written on have long become a truism. By the way, Bismarck never said or wrote such a thing, and the reliability of this quote is even lower than that of the “the bigger the lie, the sooner it will be believed”, usually attributed to Goebbels.

Nevertheless, certain phrases are so popular that the public begins to believe in them regardless of their veracity, and therefore they correspond to popular notions. I seems that Russia does its best to convince the world in its own on-negotiability.

Recent “grain accords” provide the best example. It took less than a day for one of the parties, in the figurative expression of the press secretary of the Ukrainian Foreign Ministry Oleg Nikolenko, to spit in the face of the guarantors of the agreement – the UN Secretary General and the head of Turkey [1].

The scandal was caused by an article in “New York Times”, which quoted a certain unnamed senior UN official as saying that “Russia may not have technically violated the grain deal” [2].From the available publications, the meaning and context of this statement are not very clear. In addition, the representative of the Ukrainian Foreign Ministry on his Facebook page emphasized that this position is in dissonance with the official statements of the UN Secretary General, and that the official explanations received by the agency pointed to Russia’s violation of its obligations in the framework of ensuring the functioning of the port infrastructure for the export of grain [3].

On this score, there have already been numerous political and journalistic comments. However, the question of what was signed and what obligations the parties assumed is somewhat lost in this discussion.

This issue was researched by the expert of our Association docent Olexii Plotnikov.
The text of the agreement was published by Deputy Head of the Office of the President Andrii Sibiga [4]. From an international legal point of view, the question arises: is it possible to conclude from the existing text that the parties have undertaken any obligations at all? Remarkably, the first paragraph of the text states that “The parties to this initiative are the Republic of Türkiye, the Russian Federation and Ukraine proposed by the Secretary-General of the United Nations”. At the same time, the text was signed by Ukraine and Turkey and certified by the UN. It is alleged that the Russian Federation has signed a similar agreement, but its text, as of the time of writing this essay, that agreement has not been published.
According to the 1969 Vienna Convention on the Law of Treaties, “a treaty means 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” [5]. That is, the mere fact of signing the two texts is not critical, as well as the fact that the agreement is called an “initiative”.

The pitfall lies in the fact that the signing of two texts leaves open the question of does these texts constitute one treaty. According to Article 11 of the same Convention, “the consent of a State to be bound by a treaty may be expressed by signature, exchange of instruments constituting a treaty, ratification, acceptance, approval or accession, or by any other means if so agreed”. At the same time, “treaty state” means a state that has agreed to be bound by a treaty.

So the question arises whether there is an agreement between Ukraine and Russia at all. This question cannot be answered unequivocally in the affirmative. After all, there is no text that Ukraine and Russia would agree to be bound together. Simultaneously, it is impossible to categorically deny the existence of the treaty because, if you so choose, you can refer to the first paragraph of the text, which is identical in both signed documents and lists the signatory states.

Already in this aspect, the text of the agreement looks much weaker than even the memorable “Minsk agreements”. In that case, at least they had representatives of Ukraine and the Russian Federation as signatories. Grain deals lack this, hence they are more susceptible to manipulation. In reality, only Turkey, who signed both agreements, has the ability to compel their compliance on both sides.

Therefore, the aggressor state may forever deny that it has any duties to Ukraine, while Turkey maintains a degree of flexibility based on the circumstances. If you combine this with the lack of any enforcement mechanisms or responsibility for the agreement’s implementation (other than “deep concern”), it becomes clear that this is political agreement that reflects the intentions of the parties at a particular time.

However, if the agreement actually exists its worth to examine its terms. Piotr Burkovsky, executive director of the Democratic Initiatives Foundation, highlighted several issues with this material [6]. The agreement is based on the International Convention for the Safety of Life at Sea, also known as SOLAS. This is an specific decision, considering SOLAS is primarily concerned with the technical elements of shipping, such as the maximum number of passengers on board of a ship, but has little bearing on the transit of products, and much less so during armed conflict.

Yes, the agreement references the ports of Odessa, Chornomorsk, and Yuzhny, but it appears in the context of “safe conditions for all ships participating in this Initiative” (paragraph A of the agreement). One can locate a reference to “other civilian structures participating in this initiative in the agreement”, although it can be debated endlessly what are they.

Another problem is in the “maritime humanitarian corridors” established by the agreement. Such a corridor can be established, it is possible, as specified in the agreement, to prohibit ships, aircraft and unmanned aerial vehicles from approaching it. However, the agreement does not contain certain protection against missile attack at all. Given that it is missile weapons that are of decisive importance in the current conflict, there are doubts about the practical significance of the provision regarding humanitarian corridors.

Perhaps the last defining moment of the agreement is the establishment of a Joint Coordination Center (JCC) in Istanbul under the auspices of the UN. It should include representatives from all parties and oversee and coordinate the implementation of the initiative. This center should ensure the creation of inspection teams from representatives of the parties that will pass to the ports of Ukraine and will enter them to check the absence of unauthorized cargo and personnel on board ships entering or leaving Ukrainian ports.

There are no specifics on the SKC and inspection groups’ activities, authority, or decision-making procedures. Clearly, the establishment of pertinent clauses will need more work from the parties. The agreement stipulates in paragraph D that the RCC must design and publish a comprehensive operational and communications plan, including a list of safe shelters and alternatives for delivering medical aid. In other words, no such strategy exists, and “maritime humanitarian corridors” cannot function without it. The development of the proposal, if it occurs, will occur during the talks between the parties’ representatives in the SKC. Obviously, if one of the parties does not wish to approve such plans, then there will be no plans, and the agreement will therefore not be effective.

However, suppose that the plans are approved, the corridors are defined, the ships are loaded. If we further adhere to the terms of the agreement, we see that inspections of Ukrainian ports and vessels will be conducted mostly by Russian representatives in the coordination groups. According to the proposal, it will rely on them which vessels may utilize the “maritime humanitarian corridor” and which cannot. On ships and at ports where the inspection will take place, it is feasible to indefinitely postpone or even obliterate all export-related procedures.

Finally, there are many minor or self-evident provisions in the deal. For example, regarding the fact that all activities in Ukrainian territorial waters are under the jurisdiction and responsibility of Ukraine, what is already obvious in accordance with the current international maritime law, or that parties must aid ships in case of emergencies, which already follows from the existing maritime life-saving treaties. These rules do not add or take anything away from the transaction.

Therefore, the half of the agreement known to us (let us recollect that the Russian text has not been published) can be summed up as follows. We are talking about an agreement with un certain legal force, in which even its participants are not clearly specified, and where there are no enforcement procedures. This deal does not cover grain exports per such, but merely the utilization of ships and, maybe, port facilities. It covers only part of the process, which leads to the presence of Ukrainian grain on the market, but does not guarantee the process as such.

The procedure for the transaction has not been worked out and is subject to further clarification, the procedure and terms of which have not been defined. The mechanisms previously established in the agreement permit any of the parties at any moment to cease any process stated in the transaction, using the port infrastructure, transferring grain, going through Turkish waters, in respect to one, several or all ships of their own discretion. The deal does not ensure the safety of ships and port facilities from the major weapons employed in the fight – missiles.

We believe that everyone can form their own opinions regarding the effectiveness of such an agreement. Even with the absolute goodwill of all parties, a single agreement on technical matters can take substantially longer than the length of the agreement, which is 120 days. In the absence of cooperation and cooperation between the parties, such an agreement cannot function in principle.

Under article 18 of the Vienna Convention on the Law of Treaties, “a State is obliged to refrain from acts which would defeat the object and purpose of a treaty”. The object and purpose are usually contained in the preamble or first articles of the treaty, or derived from its title. The title of the agreement is the Initiative for Safe Transportation of Grain and Foodstuffs from Ukrainian Ports. The goal is defined in paragraph 3 as “facilitate safe navigation for the export of grain”. Therefore, the object is the safe transport of grain and food, and the goal is to promote the safe transport of grain and food.

The missile attack on the port of Odessa is a clear demonstration that the aggressor state does not care about exports from Ukrainian ports as an object of the agreement and does not promote the safe transportation of grain and food as purpose of the agreement. Thus Russia simply undermined and destroyed the deal’s object and purpose.

  1. https://delo.ua/politics/raketnii-udar-po-portu-odesi-plyuvok-putina-v-obliccya-genseku-oon-ta-erdoganu-mzs-ukrayini-401800/
  2. https://zn.ua/rus/UKRAINE/v-oon-vvazhajut-shcho-raketnim-udarom-po-odesi-rosija-tekhnichno-ne-porushila-uhodu-pro-zernovi-koridori-nyt.html
  3. https://www.facebook.com/oleg.nikolenko.50/posts/pfbid0EZ5fcudRWLpamW2Xigz5DAwSxHGyrnntNzxWCNmrruU5QXvTBvGyDNvipitpHStbl
  4. https://news.liga.net/ru/politics/news/soglashenie-o-deblokade-ukrainskih-portov-polnyy-perevod-teksta-dokumenta
  5. https://zakon.rada.gov.ua/laws/show/995_118#Text
  6. https://www.epravda.com.ua/columns/2022/07/23/689535/