12 Dec Challenges to Security in the Black Sea: Analyzing the Tripartite Initiative Operation in the Black Sea
[Dobrin Dobrev is a recent graduate from Utrecht University’s master’s program in International Law from the Conflict and Security track]
Commercial shipping in the Black Sea has encountered restrictions ever since the full-scale invasion by Russia towards Ukraine began. One of the issues revolves around the rising number of sea-mines in the Black Sea, which are negatively impacting not only the belligerents Ukraine and Russia but also the neighboring countries, like Romania, Bulgaria, and Türkiye.
There have been numerous cases in which sea-mines have threatened the security of Romania such as the case in which a mine exploded in 2023 near the coastline of the town Costinesti or on the 8th of September 2022 when the Romanian navy’s minesweeper was damaged near the port of Constantza. According to the Ukrainian Crisis media center, the Romanian navy has reportedly neutralized five mines in the Black Sea.
The situation in Bulgaria is similar to Romania, with different types of sea-mines appearing near its coast. One was defused 200 meters from the village of Tyulenovo in January 2023 and on the 2nd of July, another was defused 27 nautical miles from the Kamchia river. First Rank Captain Vanyo Musinski, the chief staff of NATO’s 27th edition ‘Breeze’ exercise, has reported that “so far, only sea mines with a small charge have been discovered in the Black Sea.”
In Türkiye, since 2022 the fear of sea-mines has increased as fishermen are afraid that they will hit the mines and “disappear underwater in the blink of an eye”. The fear is based on the fact that since the invasion of Ukraine, many sea-mines have appeared near Rumelifeneri, a village located in the northern part of Istanbul. Ankara responded that year to the situation by banning fishing at night time and most of the fishermen eventually ended their season earlier than expected with an economic loss. The most recent incident with sea-mines was reported on the 5th of October 2023 by a Turkish-flagged cargo ship that hit a mine and sustained minor damage during its journey.
In October of 2023 news spread that Russia would try to sabotage the Ukrainian grain vessels by planting sea-mines against civilian shipping in the Black Sea. The situation raised concerns over the possibility of disrupting commercial trade coming from the Black Sea and dangers to maritime traffic.
In response to the Russian provocative actions in the Black Sea, Bulgaria’s Defense Minister, Todor Tagarev publicly announced that there will be a joint naval operation with NATO allies Romania and Türkiye in the Black Sea. The mine-cleaning operation, although not a NATO operation, will combine forces from the three countries into a joint sea-mine clearance unit without the assistance of the other NATO allies. The mine countermeasures squadrons of Bulgaria, Romania, and Türkiye will play an important role in safeguarding commercial sea traffic.
There is a serious question that arises with the sea-mining situation in the Black Sea, such as whether there is a responsibility of the neutral states to remove and neutralize the sea-mines? Possible danger to the safety and security of the surrounding NATO countries of Romania, Bulgaria, and Türkiye prompts an examination of the international legal system addressing maritime security and the removal of sea-mines.
Strategic Significance of Sea-mines and History Overview
Sea-mines are capable of damaging or destroying ships and submarines, but their primary strategic purpose is to keep the adversary from reaching strategically important maritime locations. It has been observed throughout history that sea-mines are a cost-effective weapon with substantial tactical, operational, and strategic value. Remarkably, China asserts that it is the first country that has used this type of weapon, having been developed and manufactured throughout the Ming dynasty period in the 16th century. Since the Russo-Japanese war in 1904-5, naval mines have become a strategic weapon in naval warfare. State armed forces have used this weapon in several international armed conflicts (IACs), such as the Vietnam War (1955-1972), the Iran and Iraq war (1980-1988), and nearly every significant maritime conflict that has taken place in the twentieth and twenty-first centuries. Naval mines have been also used in non-international armed conflicts such as the American Civil War, the Spanish Civil War, and the Libyan Armed Conflict. These sea mines also pose a severe risk to commercial transportation.
Unlike landmines, which are considered prohibited weapons by most states around the world due to treaty law (see also here), sea-mines are considered lawful weapons, with their usage governed by Hague Convention VIII and customary international law in relation to IHL. The meaning of a sea-mine is not defined under international law. However, a good definition can be found in the US Navy manual which defines them as “an explosive device laid in the water with the intention of damaging or sinking ships or of deterring shipping from entering an area.” Sea-mines can be further categorized into two different categories, persistent and non-persistent mines. Persistent sea-mines “remain active indefinitely waiting for activation by the presence, proximity, or contact of a person or vehicle.” Non-persistent sea-mines are those that “remain active for a predetermined period of times until one of the following functions renders the mines inactive.”
Terrain-specific Challenges for Sea-mine Placement
Sea-mines cannot be placed by belligerent parties engaged in an IAC in the internal waters, international straits, or archipelagic waters that overlap with the seas of non-conflicting states. Nonetheless, there may sometimes be a debate over the proper balance that must be struck between the interests of belligerents and the passage right of neutral nations since international law does not forbid mine-laying in the national seas of the belligerent or even international waters.
It is inevitable that neutral freedom of navigation in the Black Sea will be inevitably impacted by the presence of an IAC. The belligerents to the armed-conflict being Ukraine and Russia do not, however, have an unrestricted right to lay sea-mines. This is because sea-mines may only be laid with a legitimate military objective. Sea-mines cannot be laid by belligerents with the expressed intent of preventing commercial sea trade. A belligerent has to accord the legitimate interests of neutral nations “due regard” if it chooses to deploy mines or attach pre-laid mines in international seas.
If it is essential for gaining military advantage, belligerents may lay mines in the continental shelf areas of neutral states and the exclusive economic zone (EEZ). Therefore, provided the mines do not endanger international shipping, states may place them. However, according to Part V (Art. 55-59) of UNCLOS, it is essential to respect the rights of the coastal state in relation to the exploration and utilization of natural resources while undertaking such actions. Additionally, the state responsible for laying mines has an additional duty to inform the coastal state of its mine-laying activities. The International Court of Justice further elaborated on this matter stating that “the laying of mines in the waters of another state without any warning or notification is not only an unlawful act but also a breach of the principles of humanitarian law underlying the Hague Convention No. VIII of 1907.” Furthermore, the Court in the Nicaragua case emphasized that the information of notification “must be communicated to Governments through diplomatic channels”. This precautionary measure of notification has been explicitly outlined by the Court in the Corfu Channel case: “certain general and well recognized principles, namely: elementary consideration of humanity, even more exacting in peace than in war”.
In the present scenario unless the mines are controlled types of mines that are used specifically to target military targets, the mine-laying state (in the present case Russia) is obliged to notify the neutral states of risks to innocent shipping. As long as military circumstances allow, the requirement to provide notification must be fulfilled promptly. Delayed notification does not automatically result in a breach of international law.
The Tripartite Mine Clearing Operation
As seen above, the three states being Bulgaria, Romania and Türkiye (“the Tripartite”) have adequately reported the locations and the dangerous presence of sea-mines in the Black Sea near their coastal lines. The fact that all of them informed the international community about the presence of sea-mines is very important as it was confirmed in the Corfu Channel case, where the Court found that Albania was under a positive obligation, under the Hague Convention VIII of 1907 (the Hague VIII is viewed as reflecting customary international law) and in accordance with general principles of international law, to warn the international community of dangerous shipping. In accordance with the Corfu Channel judgment it can be observed that the Tripartite has successfully uphold their obligations towards the international community in that regard.
Secondly it is significant to note that the Court in the Corfu Channel case elaborated that a state does not possess an independent entitlement that would authorize its military force to enter the territorial sea of another state and carry out mine-clearing operations without the consent of the coastal State. The reasoning that supports this principle is now evident expressly under Article 2 of UNCLOS. This provision asserts that coastal state’s sovereignty encompasses the territorial sea. Consequently, any actions conducted by other states in the territorial sea must align with the legal rights held by the coastal state over that specific area of the sea. Unlike Operation Retail, under which the United Kingdom forces acted without the consent from Albania and were found in violation of international law in their sea-mine clearing in the present scenario the Tripartite will meet in Ankara where each state will explicitly give consent in an agreement so that no state will violate the jurisdiction of its territorial waters.
International law would allow the Tripartite to conduct research and to eliminate the armed sea-mines from the archipelagic sea lanes and international straits. The legal justification of such mine-clearing operation can be on the basis that the presence of such mines would obstruct the commercial transit passage of innocent shipping within the Black Sea and violate treaty law but also customary international law. On this basis it would seem that the Tripartite would via the mine cleaning operation enforce the freedom of navigation in the Black Sea.
If a state such as in the present situation the Russian Federation has potentially engaged in unlawful mining without legitimate humanitarian law purposes such as military advantage which results in harm towards innocent passage of ships, it may be held responsible for its wrongful act under international law. Additionally, the affected state has the right to receive complete reparations for the damages inflicted.
In conclusion, there is a serious threat to marine safety and security as a result of Russia’s brutal aggression towards Ukraine and increased geopolitical tension in the Black Sea. Despite the absence of a prohibition of mining the sea, except of the territorial sovereignty of Romania, Bulgaria and Türkiye, the belligerent in the present situation Russia may not intentionally interfere with the freedom of navigation that is enjoyed on the basis of treaty law and customary law by the neutral states in the Black Sea. The Tripartite, by effectively informing the international community of the dangerous waters in the Black Sea, has adhered to the principles laid down under in international law and illustrated in the Corfu Channel Case. Furthermore, the coalition’s mine-cleaning action could be viewed as enforcing an obligatory measure of self-help aimed at restoring the freedom of navigation and countering denial of innocent passage of ships.
The current Black Sea challenges demand immediate actions as it has been recently noted by the US Congress in this regard that a diverse and effective strategy towards maintaining the stability in the region is of high priority between the US and the Black Sea NATO allies. This would mean that the Black Sea has now been viewed as one of the top priority regions of security risks.