Considering the likelihood of additional changes to the geopolitical situation of Georgia, it is useful to review the legal status of the Turkish Straits.
The current legal regime that administers passage through the Turkish Straits (the Bosporus and the Dardanelles) is the Montreux Convention. The free passage of commercial and war vessels through the Turkish Straits is regulated by the terms of the Montreux Convention, which includes 29 articles, four annexes and one protocol. The convention, signed in the Swiss city of Montreux on July 20, 1936, is binding on third parties because it objectively addresses (all) vessels. It is a specific regulation (sui generis) which incorporates binding provisions in the form of special legal rules (leges specialis) which should be a priori considered in disputes with regards to the Turkish Straits.
Meaning of 'full passage' for commercial vessels
The Montreux Convention introduces three important restrictions on the free passage of commercial vessels: the obligatory prior notification to the entrance to the straits (Article 2), a clean bill of health from a sanitary station (Article 3) and passage duties and levies (Article 2 and Annex 1). The fact that these restrictions are applied only for the Turkish Straits shows that the regime is unique. The importance of these restrictions became more visible in the 1990s because international law and the 1982 United Nations Convention on the Law of the Sea (UNCLOS) have no conditions on reporting, payment of taxes or duties for commercial vessels. Under the Montreux Convention, Turkey has greater rights and entitlements than other similar countries. Relying on this convention, Ankara was able to get the 1994 and 1998 Maritime Traffic Regulations for the Turkish Straits and the Marmara Region accepted by the international community. Even though Turkey is not party to the 1982 UNCLOS, Turkey has been able to keep the Turkish Straits regime out of the transit passage regime governed by the said convention (Article 35, Section C).
A group of states, including the Russian Federation, Greece and Bulgaria, opposed new traffic regulations proposed by Turkey by referring to the Montreux Convention. According to the Russian Federation, which was strongly opposed to the proposed regulations, Turkey's major fault is imposing new regulations that unilaterally violate the Montreux Convention on the straits, considered international waterways. However, the Turkish Straits are not international waterways but Turkey's national waterways that are subject to international conventions. The Russian Federation voiced this opposition to the UN and to the London-based International Maritime Organization, of which Turkey is also a member. Moreover, Greece, which is aligned with Russia on this matter, filed a similar complaint with the EU.
Passage regime for war vessels
For Turkey, the primary goal of the Montreux Convention was to end the demilitarization of the Turkish Straits as agreed upon in the Convention Relating to the Regime of the Straits and Turkey, signed as a supplement to the Treaty of Lausanne. The Montreux Convention's main goal was to regulate the legal status of foreign vessels passing through the Turkish Straits. Considering the preamble of the convention, we may say that the primary goal of the convention was to protect the security of both Turkey and the other Black Sea littoral countries. The stance of the Soviet Union, which was eager to impose the greatest restrictions possible on foreign warships of countries not bordering the Black Sea, has never changed since the Traty of Lausanne. One of the most controversial parts was on the travel status of warships of countries not bordering the Black Sea. Upon the insistence of the Soviet Union, Great Britain, which had argued that war vessels had the right to pass, abandoned this thesis at the conference. Currently, the US, which supports the British argument, sends warships every year to the Black Sea within the freedom of navigation program in an attempt to stress that it is preserving the right to the open seas.
The part of the Montreux Convention that administers the status of war vessels includes Section 2 and Articles 8-22. The Montreux Convention recognizes three types of passage for war vessels: in times of peace, in times of war and in times of an immediate threat of war. Quite different from the safe passage recognized by customary international law, the 1936 Montreux Convention imposes important restrictions in terms of administrative and diplomatic methods, volume-tonnage and stay time on foreign vessels passing through the Turkish Straits and their presence in the Black Sea. The restrictions introduced by the Montreux Convention on foreign warships may be listed as follows:
a) Obligation to notify Turkish authorities prior to passage -- under Article 13, countries adjacent to the Black Sea have to send prior notification eight days before passage. Countries not adjacent to the Black Sea have to make this notification 15 days before passage. Passage has to be made within five days after notification.
b) Total tonnage restriction -- under Article 14, with the exceptions of conditions contained in Article 3 and Annex 3, the maximum tonnage of foreign naval forces passing through the straits shall not exceed 15,000 tons. However, under Article 11, countries adjacent to the Black Sea may dispatch their vessels exceeding the limit set in Article 14 provided they are accompanied by no more than two destroyers.
c) Type of war vessels -- for instance, aircraft carriers are not allowed to pass through the Turkish Straits.
d) Obligation for submarines to pass in daylight and on the surface -- Article 12 recognizes some rights on the passage of submarines only for countries adjacent to the Black Sea.
e) Detailed restrictions imposed upon total tonnage and stay time in the Black Sea of war vessels belonging to countries not adjacent to the Black Sea -- Article 18 states countries not adjacent to the Black Sea may have a total tonnage of up to 30,000 tons in times of peace with the exception of conditions set forth in the agreement, in which case the aggregate tonnage should not exceed 45,000 tons.
Naturally, in times of war, if Turkey is a belligerent, it may act as it wants and is allowed to close the straits to all foreign war vessels (Article 20). This article applies if Turkey considers itself faced with an immediate threat of war. However, it is required to notify the UN secretary-general on this matter (Article 21).
The Montreux Convention is the only convention in the world that administers the passage of foreign war vessels through the Turkish Straits and the legal status of these vessels on their entrance into the Black Sea as well as their stay.
Termination of Montreux Convention
The Montreux Convention was designed to remain in effect for 20 years instead of 70, as per Article 28. Under an existing provision, if two years prior to the expiry of the agreement no contracting party has sent prior notification to the French government to terminate the convention, it will remain in effect for two years until after such notice is given. In any case, every five years after the agreement entered into force, any of the contracting parties may attempt to propose amendments to provisions of this convention (Article 29).
In the event of the convention's termination following prior notification submitted by any contracting party, the principle of safe navigation and passage as outlined in Article 1 of the convention will remain in effect without any time limitation. The meaning and scope of this principle is a matter of discussion at this point. Does it refer to a transit regime as outlined in the 1982 UNCLOS, or does it refer to another regime? Moreover, will Article 1 be applicable to both commercial vessels and war vessels? Turkey needs to be prepared for such questions.
Future of the Turkish Straits
When the Montreux Convention entered into force, the largest tonnage of a war vessel was 30,000 tons.
The US is not party to the 1923 Treaty of Lausanne or the 1936 Montreux Convention. However, the convention also binds the US because of the objective status it created. Additionally, the US's desire to have war vessels in the Black Sea is known. The passage of an aircraft carrier would mean the passage of a 100,000-ton vessel. According to the US, this suggests that the Montreux Convention needs to be revised in accordance with current standards. Romania and Bulgaria, two Black Sea littoral countries that ratified the convention, have signed military agreements with the US. To this end, they serve as elements that support the American strategy to maintain a presence in the Black Sea. With these developments, Turkey needs to develop new strategies to effectively respond to these American wishes.
