More than 83 years have passed since the signing of the Montreux Convention regarding the Turkish straits: the Dardanelles, Sea of Marmara and the Bosporus. Signed in 1936, the convention continues to keep its importance and relevance even though it has been almost a century since its conclusion.
We are going through a very painful period in the Middle East where conflicts and humanitarian crises are ongoing. Likewise, the turmoil in the Eastern Mediterranean region is increasing day after day. Meanwhile, it has come to the attention of the Turkish public through press reports that certain Black Sea countries are busy increasing their naval assets in the Eastern Mediterranean region by sending warships armed with cruise missiles that pass through Turkish straits.
In such a context, it would be appropriate to briefly remember the provisions of the Montreux Straits Convention regarding wartime conditions. It should be noted in that respect that one of the most important novelties of the Montreux Convention is its reference to the situations in which Turkey considers herself to be threatened with an "imminent danger of war."
Regarding vessels
Article 4 of the convention stipulates that "in time of war, Turkey not being belligerent, merchant vessels, under any flag or with any kind of cargo, shall enjoy freedom of transit and navigation in the straits." According to Article 5, "in time of war, Turkey being belligerent, merchant vessels not belonging to a country at war with Turkey shall enjoy freedom of transit and navigation in the straits on condition that they do not in any way assist the enemy." However, "such vessels shall enter the straits by day and their transit shall be effected by the route which shall in each case be indicated by the Turkish authorities." As for the cases in which Turkey considers herself to be threatened with "imminent danger of war," according to Article 6, merchant vessels shall enjoy complete freedom of transit and navigation in the straits, except for the fact that vessels must enter the straits by day and their transit must pass through the route indicated by the Turkish authorities. For these vessels, pilotage may be made obligatory, but no charge shall be levied.
The Montreux Convention contains detailed provisions regarding the passage of Vessels of War through the Turkish straits in Section II (Articles 8-22). These provisions, among others, explain the rights of Black Sea and non-Black Sea countries, tonnages of the vessels of war, their total tonnages in the Black Sea and the period of stay in the Black Sea for non-Black Sea countries. We can extend this limited list of requirements mentioned above with several other detailed provisions. Within the limited wartime conditions framework of this article, we will refer partially to Article 19 and mainly to Articles 20 and 21 of the convention.
Article 19 states that "In time of war, Turkey not being belligerent, warships shall enjoy complete freedom of transit and navigation through the straits under the same conditions as those laid down in Article 10 to 18." However, vessels of war belonging to belligerent powers shall not pass through the straits. There are two major exceptions to this provision. First is "the rights and obligations of Turkey, or of any of the other high contracting parties members of the League of Nations, arising out of the Covenant the League of Nations," and second "in cases of assistance rendered to a state victim of aggression in virtue of a treaty of mutual assistance binding Turkey, concluded within the framework of the Covenant of the League of Nations, and registered and published in accordance with the provisions of Article 18 of the covenant." The other exception is that "vessels of war belonging to belligerent powers, whether they are Black Sea powers or not, which have become separated from their bases, may return thereto."
Wartime conditions
For a more in-depth examination of the wartime conditions, Articles 20 and 21 of the convention are quoted here below:
Article 20 says "in time of war, Turkey being belligerent, the provisions of Articles 10 to 18 shall not be applicable; the passage of warships shall be left entirely to the discretion of the Turkish government." And according to Article 21, should Turkey consider herself to be threatened with imminent danger of war she shall have the right to apply the provisions of Article 20 of the present convention.
Vessels which have passed through the straits before Turkey has made use of the powers conferred upon her by the preceding paragraph, and which thus find themselves separated from their bases, may return thereto. It is, however, understood that Turkey may deny this right to vessels of war belonging to the state whose attitude has given rise to the application of the present article.
Should the Turkish government make use of the powers conferred by the first paragraph of the present article, a notification to that effect shall be addressed to the high contracting parties and to the secretary-general of the League of Nations.
If the Council of the League of Nations decides by a majority of two-thirds that the measures taken by Turkey are not justified, and if such should also be the opinion of the majority of the high contracting parties signatories to the present convention, the Turkish Government undertakes to discontinue the measures in question as also any measures which may have been taken under Article 6 of the present convention.
Per Article 20, Turkey has the legal right to close down the Turkish straits in time of war when she is belligerent and the passage of warships through the Turkish straits is entirely at the discretion of the Turkish government.
As it was stated above, the formulation of "should Turkey consider herself to be threatened with imminent danger of war" mentioned in Article 21 and Article 6 is a novel provision. In this context, Article 21, in its essence, enables Turkey to close the Turkish straits if she considers herself under the threat of war. It is in the sole discretion of the Turkish government to decide on the nature of the threat and whether there exists a situation that signals "imminent danger of war." In this formulation, we should understand the word "imminent" as something already occurring or likely to occur soon. The imminence of the danger may require taking a quick action of closing the Turkish straits.
The second paragraph of Article 21 directs Turkey to notify her decision to the parties of the convention and to "the secretary-general of the League of Nations." In addition to the notification, the third paragraph of Article 21 states that the Council of the League of Nations should decide by a majority of two-thirds that the measures taken by Turkey are justified. Moreover, the opinion of the majority of the contracting parties of the convention should be positive for the continuation of the decision of Turkey. If these requirements are not met, Turkey is under the obligation to withdraw the measure she has taken.
We understand from Article 21 that there are two requirements for the continuation of the decision by Turkey to close the Turkish straits under the threat of "imminent war danger." The first one is that the opinion of the majority of the contracting parties of the Convention should concur with Turkey’s decision. The second one is that "the Council of the League of Nations should decide by a majority of two-thirds that the measures taken by Turkey are justified."
In a hypothetical situation in which Turkey decides to close down the Turkish straits under the provisions of Article 21, it is highly likely that Turkey’s NATO Allies (namely the U.K., Italy, Romania, Bulgaria, France, and perhaps Greece) may concur with Turkey’s decision. This concurrence may bring about a majority of the opinions of the contracting parties.
As to the provision of "the Council of the League of Nations should decide by a majority of two-thirds," from my perspective, there is a need to briefly examine the issue of transference of the functions of League of Nations to the U.N.
The U.N. General Assembly (UNGA) resolution regarding the transfer of certain functions, activities and assets of the League of Nations to the U.N. are here. The Assembly of the League of Nations was convoked for its 21st and last session by the secretary-general on April 8, 1946. The main agenda item was the "dissolution of the league."
The Assembly, "considering that the charter of the United Nations has created, for purposes of the same nature as those for which the League of Nations was established, an international organization known as the United Nations to which all states may be admitted as members on the conditions prescribed by the charter and to which the great majority of the members of the league already belong" adopted a resolution and dissolved the League of Nations with effect from April 19, 1946. The liquidation process of the league continued for some time. This issue was considered also in the U.N. The U.N. General Assembly adopted a resolution in 1946 under the title of Transfer of Certain Functions, Activities and Assets of the League of Nations.
There is no automatic succession between the League of Nations and the U.N. In order to understand the true nature of the transference of functions of the League of Nations, we should examine the above mentioned General Assembly resolution. The relevant paragraphs of the introduction part of the said resolution are quoted here below for the easy perusal:
Functions and Powers Belonging to the League of Nations under International Agreements ... Under various treaties and international conventions, agreements and other instruments, the League of Nations and its organs exercise, or may be requested to exercise, numerous functions or powers for the continuance of which, after the dissolution of the League, it is, or may be, desirable that the United Nations should provide.
Certain members of the United Nations, which are parties to some of these instruments and are members of the League of Nations, have informed the General Assembly that, at the forthcoming session of the Assembly of the League, they intend to move a resolution whereby the Members of the League would, so far as this is necessary, assent and give effect to the steps contemplated below.
Therefore, the General Assembly reserves the right to decide, after due examination, not to assume any particular function or power, and to determine which organ of the U.N. or which specialized agency brought into relationship with the U.N. should exercise each particular function or power assumed.
The General Assembly records that those members of the U.N. which are parties to the instruments referred to above assent by this resolution to the steps contemplated below and express their resolve to use their good offices to secure the co-operation of the other parties to the instruments so far as this may be necessary.
The General Assembly declares that the "U.N. is willing in principle, and subject to the provisions of this resolution and of the charter of the U.N., to assume the exercise of certain functions and powers previously entrusted to the League of Nations, and adopts the following decisions, set forth in A, B, and C below."
As the above paragraphs clearly indicate, the General Assembly does not automatically take over the responsibilities of the League of Nations that have a political character. Instead, the General Assembly resolution states that they need to respect the following:
Part C states: "Functions and Powers under Treaties, International Conventions, Agreements and Other Instruments Having a Political Character... The General Assembly will itself examine, or will submit to the appropriate organ of the United Nations, any request from the parties that the United Nations should assume the exercise of functions or powers entrusted to the League of Nations by treaties, international conventions, agreements and other instruments having a political character."
If Turkey invokes the "imminent danger of war" mechanism in Article 21 of the Montreux Convention, which U.N. organ will decide by two-thirds majority whether this decision is justified?
In a simple nominal comparison, the U.N. Security Council is the equivalent of the League of Nations Council. However, in the case of the Montreux Convention provisions, in my opinion, such a nominal comparison cannot be valid. A valid legal source, in my mind, is the General Assembly resolution of Feb. 12, 1946, which states clearly that the General Assembly will examine the case and submit it to the appropriate organ of the UN. This organ might be the International Court of Justice from which the General Assembly may ask the advisory opinion. There are examples in that respect. For instance, the question concerning the international status of southwest Africa (today’s Namibia) had been referred for an advisory opinion to the Court by the UNGA through its resolution of December 6, 1949.
It should be underlined at this juncture that for initiating such a procedure, there should be first a request to the U.N. and second the General Assembly should accept this request. In fact, this point was explicitly mentioned in a study made by the U.N. secretariat in 1950 at the request of the U.N. Economic and Social Council in relation to the declarations made before the Council of the League of Nation on minorities by Albania, Lithuania, Latvia, Estonia, Iraq, Bulgaria and Greece after World War I. In that respect, we understand from the information included in the academic sources that the question arose concerning the subject matter as to whether these obligations should be considered as having been undertaken towards the League of Nations and as having therefore been terminated by the dissolution of that body. The U.N. document on the subject states the following:
"(ii) In virtue of the General Assembly resolutions of February 12, 1946, the United Nations decided, under certain conditions, to take over certain functions and activities previously exercised by the League of Nations under treaties, conventions and other international agreements. Hence, it would seem that the United Nations... can decide to assume any of these functions it wishes... but this can only be done by an express decision of the General Assembly, taken at the request of the parties."
What's the result?
Turkey has the right to invoke the provisions of Article 21 of the Montreux Convention if she deems it necessary. There is no doubt that long political and legal discussions, negotiations and procedures period will follow this decision. However, in the meantime, Turkey can close the Turkish straits to the passage of the vessels of war of the countries that she perceives as threatening until the conclusion of the procedures envisaged in the said article. Turkey did not use this right during World War II since she was technically neutral during the war. Much has changed since then. Turkey has been a NATO member country since 1952.
The Turkish public clearly remembers the aggressive policies pursued by the Soviet Union after World War II for unhindered access to the waters of the Mediterranean in the south and the Atlantic Ocean in the north. There is no doubt that these aggressive policies of the Soviet Union were essentially the same policies pursued by czarist Russia in the past. These policies bear clear traces of the century-old Russian national interests. It should not be forgotten that the Soviet Union, in order to change the Montreux Convention, even dared to advance territorial claims against Turkey. There is no doubt that these aggressive requests pushed Turkey into the Western bloc and to NATO membership. It is my prediction that Turkey, in today’s circumstances, if need be, will not hesitate to invoke the provisions of Article 21 of the Montreux Convention.
*Analyst, Center for Eurasian Studies (AVİM)