The Montreux Convention and the Crimean Crisis

With reports of Russian military buildup on the Ukrainian border days before the Crimean referendum tensions are mounting in the Black Sea region. On 7 March the USS Truxton, a US Navy guided missile destroyer, quietly passed through the Turkish Straits into the Black Sea on what the US reported as a routine and pre-planned operation. Two days earlier Turkey granted the USS Taylor permission to enter into the Black Sea. A few days earlier two Russian warships had passed through the Straits after being called back to the Black Sea by Russia because of the situation in Crimea. Tensions in the Black Sea have also spread to the skies as Turkey sent F-16 fighter jets after a Russian surveillance jet flew close to the Turkish airspace in the Black Sea.  The Crimean crisis has once again raised security issues in the Black Sea and brought international attention to the Turkish Straits and the 1936 Montreux Convention Regarding the Straits.

The Montreux Convention in 1936 was adopted against the background of wartime Europe. Under the 1923 Lausanne Peace Convention the Turkish Straits and certain islands had been demilitarized leaving the security of the Straits to an international Guarantee, which by 1935 was rendered politically nugatory.   Turkey successfully convinced the High Contracting Parties to the Lausanne Peace Convention asserting the rarely used rebus sic stantibus rationale to renegotiate the 1923 Lausanne Convention provisions on passage of vessels,  through the Turkish Straits, which concluded with the signing of the Montreux Convention on 20 July 1936.   As reflected in its Preamble in addition to Turkish Security the Convention seeks to provide for the security of the Black Sea region:

Desiring to transit and navigation in the Straits of the Dardanelles, the Sea of Marmora and the Bosphorus comprised under the general term ” Straits ” in such manner as to safeguard, within the framework of Turkish security and of the security, in the Black Sea of the riparian States….

The 1936 Montreux Convention applies to both merchant vessels and warships. However, much of the Convention concerns the passage of warships. More importantly, the Convention is not simply applicable to the Turkish Straits but has direct relevance and application to the Black Sea.  The Montreux Convention is unique for many reasons but in particular its provisions on the passage of warships distinguish it from other international treaties and principles of customary international law.

The 1949 Corfu Channel case, the first case decided by the International Court of Justice, concerned the right of passage of warships through straits used in international navigation. At that time the  now familiar rule of “transit passage,” which was created by the 1982 the Straits of the Dardanelles, the Sea of Marmora and the Bosphorus, did not exist. One of the key legal questions presented in the case brought by Britain against Albania was whether British warships had the right of “innocent passage” through the Corfu Channel. If so, Albania would not be entitled to prevent the passage of foreign warships except if there was a threat to its sovereignty and territorial integrity. In this landmark decision the ICJ affirmed the customary international law rule of the right of non-suspendable innocent passage for warships in straits used in international navigation.  Decades later the 1982 UNCLOS introduced a new rule of “transit passage”  in  straits used for international navigation. In both regimes the coastal State cannot interfere with the passage of vessels unless certain conditions are met.  Basically, the difference between non-suspendable innocent passage and transit passage is that the coastal State has fewer rights of regulating passage in the latter  regime.  What does this mean for the Montreux Convention?