The Turkish straits

7

The Turkish Straits

Yuksel inan

T

he Turkish Straits has importance not only from the point of international navigation to and from the Black Sea, but also from the points of European and Caucasus geopolitics and strategy. During World War I and II and also during the Cold War era, its geopolitical and strategic importance played a prominent role for the security of t�e Eastern and the Western Blocks. At the end of the 20111 century, in addition to the stated feature, the increasing amount of exploitation of the Caspian and Central Asian oil resources and its transportation by tankers through the Turkish Straits once more raised its importance, this time from the point of international navi_gation. 1bis not only highly concerns Turkey and the security of the Straits and its environment, but also concerns the economic interests of some of the Black Sea coastal states and also the world, due to the oil supply to the world markets. For those reasons, the Turkish Straits is and became one of the most important and also one of the congested straits of the world used for international navi_gation. In addition, we have to state that the Turkish Straits, in the world, are one of the most difficult and dangerous waterways to navigate.

The total distance between the entrance and the exit points of the Straits is approximately 160 n.m. (300 km) and it normally takes about 1 6 -18 hours to navigate this distance with an average speed. The Strait of Istanbul is 18 n.m. (31 km) long and the narrowest point within this area is 700 meters, and ships carrying highly combustible substances such as oil, LNG, LPG and other dangerous and hazardous cargo,

in

average 15 tankers a day, pass just meters away from the shore. The Strait of Canakkale is 40 n.m. (70 km) long and the narrowest point within this area is approximately 1400 meters. 1bis chapter aims to explain the passage regime of merchant vessels through the Turkish Straits in �e of peace, and to Turkey's right to regulate the freedom of passage and navi_gation through those waters; and to its jurisdiction power

in

this area, according to the established principles of international law.

160 • legal Perspectives

Why the Turkish Straits?

f�.

-To identify the Straits as the Turkish Straits has historical, political and legal justification. Such as: respect to the past and present general practice; due regard to Turkey's sovereign rights over this particular area and to its

jurisdiction according to established principles of international law; and to indicate and emphasise the geographical location of the Straits, just like the other straits of the world.

The Turkish Straits comprises "the Strait of the Dardanelles, the Sea of Mannara and the Bosphorus"1 and named by the general term ' Straits '.2 The literature of internatioO:a! law generally uses the expression the 'Turkish Strai.ts', as in Ferenc A Vali,3 1\nthony R.. Dcluca,4 H.N. f-Ioward,5 H.G. Knight,6 Christos L. Rozakis and Petros N. Stagos,7 Tullio Scovazzi,8 G.

I'l ant, . . ta etc. 9 B B 1· to

Turkey, due to its treaty obligations under the Montreux Convention (art. 24), during the League era gave its annual reports to the League of Nations Secretary General and, since 1945, has given these to the United Nations Secretary General. These reports, whkh also go to the High Contracting Parties, are titled as 'Rapport Annuel sur le Mouvement des Navires a Travers Jes Detroits Tures' (Annual Report Concerning the Movement of Ships through the Turkish Straits). Tb.is document's title is an evidence of the international credence of the expression 'Turkish Straits'.

Another important point in favour of using the expression the 'Turkish Straits' comes from a UN document. This is the "Ibird United Nations Conference on the Standardisation of Geographical Names', held at Athens, in 1977, and attended by participants representing 59 countries, with observers from 11 non-governmental and international scientific organisations. The basic aim of the Conference was to use national names to standardise the names of geographical locations. The Conference resolutions empower Turkey in the use of the name 'Turkish Straits'.11 The international Maritime Organisation (IMO), as a consequence of this UN document, started to refer to the Straits as 'the Strait of Istanbul, the Strait of Canakkale

and the Mannara Sea'.12 Turkey, due· to these facts and as the sovereign state

of the Straits, started to officially use the term 'Turkish Straits' in its domestic legislation, e.g. 'Maritime Traffic Regulation for the Turkish Straits', 8 October 1998. 13

In official documents concerning state practice, such as the verbal notes given to the Turkish Ministry of Foreign Affairs, state uses different terms,

The Turkish Straits• 16/

but none of them refer to the Turkish Straits as the Black Sea Straits. Germany, the Netherlands, Spain, the United Kingdom and, recently, France, addresses the Straits the �urkish Straits'. Belgium, Romania, Ukraine and the United States prefer to name the Turkish Straits the 'Straits'. Chile and the Russian Federation prefer to name the Turkish Straits the 'Strait of Dardanelles and Bosphorus'. Greece and Italy sometimes name the Turkish Straits the 'Straits' and sometimes the 'Strait of Dardanelles and Bosphorus'. Turkey's response notes to all states concerning the passage of their naval vessels through the Straits, and also the annual informative notes given to the High Contracting Parties according to the Convention (art. 24/3) only refers to the term 'Turkish Straits'. Consequently, it is a legal fact that neither historical nor official documents -including diplomatic notes -in the twentieth century calls the Straits as the 'Black Sea Straits'. To this end, to name the Turkish Straits as the 'Black Sea Straits' is misleading, has no legal grounds and, further, is highly biased.

The Significance of the Turkish Straits and its Regime

The Turkish Straits not only have geopolitical and strategic significance, but also rapidly increasing importance for international transportation, both for the Black Sea states and for the whole world. This waterway with its sharp turns (12 within the Strait of Istanbul, some up to 80°_{, and six within the}

Strait of Canakkale, also in certain places reaching 80°) and narrowness (in some places to less than a nautical mile) creates real dangers for safety of passage and navigation. Those physical restrictions also create. dangers for

the environment, including the human and marine environment. The Turkish Straits are not only important for international navigation but they

also connect via an internal water two high seas, namely the Black Sea and P1e �epiterrapean Sea are linked by the Strait of Istw,bttJ, Sp pf M3.rf11�fa (an iptefO� water due to its historic title) 14, the Straif of Canak.ple anp tp.e Aegtaq,

The Montreux Convention regulates the legal regime pf µie Turkish �i:raits and this is recognised by the United Nations Convention on Law of the Sea (UNCLOS) (art. 35/c, 311/5). This article also recognises the established regimes for the Gibraltar, Danish and Magellan Straits. In legal terms, this

means the exclusion, in principle, of the provisions of Part III (art 34-45) of UNCLOS to those straits.15

The Sea of Marmara, which lies between the Istanbul and Canakkale Straits, is an internal water, not only for geographical reasons but also by historic title as this geographic area has been treated as a whole throughout history.

162 • J,ega/ Perspectives

'This is important from the point of view of Turkey's jurisdiction, which is limited only by the recognised rights of passage and navigation. 1bis jurisdiction covers, among other things, pollution, civil law, public law and criminal law matters. If the Strait of Canakkale, the Sea of Marmara and the Strait of Istanbul had not been treated as a whole over the centuries, the Ottomans and Turks would not have had sole discretion to prohibit or perm.it foreign ships to pass through the Sea of Mannara.

In reference to the Straits regime, there are two different concepts: the legal and the political regime. Reference to the legal regime concerns whether the Straits are open to international navigation or not, and if so under what

circumstances, and if closed why and under which circumstances. Reference to the political regime means, above all, the security of Turkey and of the Black Sea riparian states. In reality, the two regimes were regulated interdependently and parallel to each other throughout history. To this end, when interpreting the norms for the regulation of passage through the Straits, Turkey's vital interests and its security ought to be taken into

16 account.

The Regime of the Turkish Straits in the Twentieth

Century

The present regime of the Turkish Straits is the outcome of a historical evaluation. From 1453 until 1809, the Ottomans were the sole power to determine the regime of the Straits. The accepted regime was to close the Straits to foreign civil and military traffic even in time of peace and it was called the

'Amient Rule

of

the Empire'.

Because of the Capitulatio.ns, the Ottomans recognised concessions to allow merchant vessels of certain other states to pass through the Straits in time of peace. But, by 1809, passage through the Straits had become an international issue and subject to

_.

. I

11

1nte.rnat1ona agreements.

Under the 1809 Canakkale (Ka/a-i Su/tan!Je), 1829 Edirne, 1833 Hiinkar Iskelesi, 1841 London, 1856 Paris-and the Paris Straits conventions and the 1871 London and 1878 Berlin agreements, the Ottomans were committed to the signatory states to open the Straits to commercial vessels of all states and to close them, in principle, to all naval vessels of third states, in time of

peace. In all those documents, reference to the Turkish Straits was as the Mediterranean (Bahr-i Sefid) or the Canakkale (Ka/a-i Sultanjye) Strait and the Black Sea (Bahr-i S!Jah) Strait, as an indication of direction of access either from the Mediterranean or from the Black Sea.18 The Turkish Straits regime founded under the nineteenth century agreements lasted until the outbreak

The Turkish Straits • 163 of the First World War, and Wilson's principles played ari. important role in determining the ensuing legal regime for the Turkish Straits.

The Lausanne Peace Treaty and the Straits Convention The Lausanne Peace Treaty formulates the basic principles concerning the Straits regime. According to this agreement, the term 'Straits' comprises the 'Strait of the Dardanelles', the 'Sea of Marmara' and the 'Bosphorus'. This agreement, within the same article, also declared that the parties to this agreement, " ... agreed to recognise and declare the principle of freedom of transit and navigation, by sea and by air, in time of peace and in time of war ... " through the said area (art. 23). The authentic text of this agreement is in French, and reads "la liberte de passage et de navigation", simply meaning "freedom of passage and navigation", but not freedom of transit. As a general rule of law, in case of a difference in the language of the texts, the authentic text will be the valid and applicable one.

The Lausanne Convention Relating to the Regime of the Straits forms an integral part of the Lausanne Peace Treaty (art. 23) and, as indicated in the preamble of the Convention, the parties ensure freedom of transit and navigation between the Mediterranean Sea and the Black Sea, in accordance with the principles in the Treaty. The authentic French text of the Convention, like the Treaty, states "liberte de passage" ('freedom of passage''), and defines the 'Straits' in the same way as the Treaty-

(art.I).

The Lausanne Straits Convention's regime was based upon the principle of freedom of passage of merchant vessels and of warships, taking into account various alternatives such as whether Turkey is in a time of peace or of war and also whether it is a neutral or a belligerent power.

The Montreux Straits Convention

The Lausanne Straits Convention did not satisfy Turkey because of its establishment of the Straits Commission and the demilitarisation of both shores of the Straits and all the islands in the Sea of Marmara except Imrah (Emir Ali). The collective guarantee system accepted for the security of the demilitarised zones and the security of Turkey in this region was weak and proved its insufficiency during the 1930s. Events during those years. -the revisionist policies of certain states, the militarisation of certain areas in the south Aegean close to Turkish shores and the failure of global demilitarisation efforts -led Turkey to refer to the principle of law known as the rebus sic stantibus clause and ask the parties for a new convention to safeguard its security. To this end, the Turkish verbal note of 11 April 1936,

164 • Legal Perspectives

given to

all

the contracting states, was received with sympathy by

all

except Italy.

A conference to frame a replacement for the Lausanne Straits Convention convened in Montreux on 22 June 1936 and the parties si_gned the new Convention on 20 July 1936. The Convention, which came into force on 9 November 1936, aimed to regulate the passage and navi_gation of commercial and naval vessels through the Straits in times of peace and war, and during times when Turkey considers itself under threat of imminent war. The Protocol annexed to the Convention empowered Turkey to remilitarize the shores of the Straits and the islands in the Sea of Mannara to ensure its security.

The Montreux Convention Regarding the Regime of the Straits is also based on the principle laid down in the Lausanne Peace Treaty (art. 23); the principle of freedom of transit and navigation (the authentic text is in French and uses the terms "principe de la liberte de passage et de navigation'') in the Straits of the Dardanelles, the Sea of Mannara and the Bosphorus. Those geographical places, according to the Convention, are included under the general term 'Straits'. According to the wording of the Convention, it desires to regulate freedom of passage and navi_gation ('la passage et la navigation''), but the translation of His Britannic Majesty's Foreign Office uses the expression "transit and navi_gation". The Convention, as stated in the preamble, also aims to safeguard the security of Turkey and the security of the Black Sea riparian states. So, in the interpretation and implementation of the provisions of the Convention (and, in particular, the principle of freedom of passage and navigation) the security criteria must be taken into serious account since it is one of the fundamental and undeniable aims of the Convention.

Provision Related to the Passage of Merchant Vessels

The key article concerning the passage· of merchant vessels through the Straits in time of peace is article 2 (paragraph 1) of the Convention, which

reads:

"In time of peace, merchant vessels shall enjoy complete freedom of transit ['.Passage', according to the authentic French text] and navi_gation in the Straits, by day and night, under any flag and with any kind of cargo, without any formalities, except as provided in Article 3 below [an article related to sanitary control]. No taxes or charges other than those authorised by Annex I to the present Convention shall be levied by the Turkish authorities on these vessels when passing in transit without calling at a port in the Straits."

The Turkish Straits • I 65

Certain expressions, such as "complete freedom of transit [passage] and navigation", "with any kind of cargo", "without any formalities" requires appropriate interpretation. However, while interpreting those terms in good faith, should they be interpreted only conceptually or with consideration of the object and purposes of the relevant provisions of the treaty? Should the preparatory work be referred to so as to better realise the spirit of the provisions and the text as a whole? The general principles of law and also the Vienna Convention on the Law of Treaties (Art. 31, 32) empower jurists to take into account all these and other relevant factors, including those related to the use of such freedoms. Not taking into account those points for the purposes of an interpretation may create an injustice and would probably lead to an abuse of rights that no principle of law protects.

Before trying to interpret article 2 of the Convention, it is important to note that the Convention was concluded for the security of Turkey, and article 2 merely limits Turkey's soverei_gn rights in the Straits with re_gards to "freedom of passage and navi_gation of merchant vessels" and only for the stipulated rights (i.e. at any time, with any kind of cargo, under any flag, without any formalities). According to the general principles of international law, an issue that the Convention does not cover or does not deal with clearly fall on Turkey. The Convention does not limit Turk_ey's sovereign rights beyond the issues indicated in the text and within the general principles of international law. In addition, customary rules of the Law of the Sea, whether general or particular, are applicable in the Straits since neither the Convention nor the principles of international law prohibit Turkey from such applications and implementations. Accordingly, the general principles of law give recognition to Turkey's jurisdiction, including its power to prohibit pollution and fine polluting vessels, and the power to regulate freedom of passage and navi_gation while preserving the spirit of this right. To deny those rights or the jurisdiction of a coastal state simply means to recognise absolute rights and freedoms to third persons contrary to the vital interests of the concerned riparian state, which no norm of law permits.

Turkey submitted a draft convention text, consisting of 13 articles, to the

19

Montreux Conference on 22 Jut)e 1936. The preamble of the draft indicated the aim of the Convention and underlined that its purpose was to ensure Turkey's security, taking into account article 23 of the Lausanne Peace Treaty. Article 2 of this draft recognised freedom of passage and navi_gation and was very similar to the final text of article 2 of the Montreux Convention. Article 12 of the draft, which also concerned freedom of passage and navi_gation reflected Turkey's concern that none of the

I 66 • legal Perspectives

provisions of the Convention, in the Straits area, should by interpretation be broadened so as to breach Turkey's sovereign rights.

The United Kingdom, taking the Turkish draft as a starting point, amended some of its provisions in the light of the debates and submitted its own draft to the Conference on 4 July 1936. This draft also referred, in the preamble, to the security of Turkey, and draft article 3 was similar to the Turkish draft article 2. The main difference of understa.nding was on article 12 of the Turkish draft. The United Kingdom claimed that this provision could be too narrowly interpreted and may affect freedom of passage and navigation. To this end, as proposed in' draft article 22, the Turkish draft should be amended to read, " ... subject to the provisions of this Convention, Turkey's soverei_gn rights on its territory and on its territorial sea are fully preserved". Some of the provisions of the United Kingdom 's draft were amended on 6 July 1936. According to this amended text, article 22 this time read, " ... subject to the provisions of this Convention, Turkey's sovereign rights in the regulated area and on its territorial waters are fully preserved." From these draft provisions we can clearly understand that the parties were in full agreement with respect to Turkey's soverei_gn rights over the Straits.

Passage is Innocent

What does complete freedom of passage and navigation mean? This freedom is accepted as a right but it can not mean an absolute one in principle, and it ought to be regulated. The use of an unregulated right could lead to chaos or even to abuses. Therefore, regulation of rights and freedoms, in this case by the concerned riparian state, is an accepted principle of law.

The passage regime through the Turkish Straits is not a transit passage regime within the terms of present-day legal terminology because, in the 1930s, there was no transit regime known as 'transit passage regime' (within the meaning described in UNCLOS) through straits used for international navigation. Taking this into account along with the minutes of the Montreux Convention, the regime related to ·the passage and navi_gation of ships through the Turkish Straits is a sui generis innocent passage since the Convention explicitly takes into account the security of Turkey and the security of the Black Sea riparian states, as stated in the preamble. The security factor gives this type of innocent passage a sui generis character and must be taken into account when interpreting and implementing the Convention. Indeed, the security factor and Turkish draft article 12, by explicitly indicating that the provisions of the Convention cannot limit Turkey's sovereign rights in the region, aimed to give the passage the chuacter of innocent passage.

The Turkish Straits • I 67

In addition, the Turkish delegation at the Conference raised the view that the passage through the Straits should have the character of innocent passage, and none of the states that attended the Conference objected or contested this view. But, the United Kingdom representative, Lord Stanhope, criticised Turkish draft article 12 at the fifth session of the Conference, held on 25 June 1936. According to him, the Turks wanted to stress that the Straits were within Turkish waters and that they were ready to bind themselves with the provisions of this Convention. On the other hand, despite the binding nature of the Convention, the Turks also wanted to underline that their sovereignty would not be limited or breached under any circumstances. But, according to Lord Stanhope, this article might be interpreted in a manner contrary to its aim and purpose. After the entry into force of the convention, Turkey might claim that the issue in question is related to its sovereignty and in order to protect it, might claim the right to amend a provision unilaterally. Lord Stanhope said that he was sure Turkey did not mean this and hoped that the Turkish representative was sharing the former but not the latter view. Indeed, the Turkish representative, Tevfik Rii�tii Aras, pointed out that Turkey shared the former view of Lord Stanhope and said that Turkey would accept the convention by its own consent to ease and facilitate international navigation. In addition, he also emphasised that neither the Convention nor its provisions, at any time, could be implemented and interpreted so as to limit Turkey's sovereign rights and no attempt to this end should be made. As a consequence, the United Kingdom, in order to clarify all the expressed views during the sessions, submitted an amended draft text, taking into account the Turkish text. Article 22 of the United Kingdom's draft text corresponds to Turkey's draft article 12, which implicitly accepted the principle of innocent passage by using the phrase, "... subject to the provisions of this Convention, Turkey's sovereign rights in the regulated area and on its territorial waters are fully preserved." If the participating states had objected to 'innocent passage', ideas relating to Turkey's sovereignty would not appear in the United Kingdom's text.

The parties' lack of objections to the Turkish view on the status of passage explains why the innocent passage character was not explicitly stated in the Convention. In addition, in those days, there existed a single type of regime, called innocent passage, for the passage of ships through the internal waters, the territorial sea of a state, straits located in internal waters or within the territorial waters of a state. The lack of objection to Turkey's claims during negotiations of the Convention's article 2, the Turkish draft article 12 and the United Kingdom's draft article 22 (for the preservation of Turkey's administrative and juridical powers over the area) is further evidence for the

/ 68 • legal Perspectives

innocent passage status of the regime. Because of the lack of objection to the regime concerning the status of passage, at the fifteenth session of the Conference, held on 16 July 1936, Turkey's representative, T. R. Aras, requested the withdrawal of the United Kingdom 's draft article 22 from the agenda since the Straits were an integral part of Turkish territory and none of the participating states raised hesitations about Turkey's soverei_gnty over the area. The United Kingdom's representative, B. G .W. Renda!, welcomed Turkey's request.

The Turkish delegate, Numan Menemencioglu, at the plenary of the eleventh session of the Conference, held on 9 June 1936, explicitly pronounced the innocent character of passage. He said that Turkey wanted to have administrative and juridical powers over the Straits and that those powers did not affect the provisions of the Convention and were beyond its scope. He also declared that those powers were essential and that no state could claim a right of passage through the Straits similar to navigating on the high seas. Menemencioglu emphasised in the same session that Turkey had explained the issue in the Technical Committee and that the Drafting Committee had to find a formula to express those views in the text. No state objected to these points either at the eleventh session or in later sessions.

The United Kingdom's draft article 22 and some other draft articles were later referred to the Drafting Committee, which was composed of the representatives of France, Greece, the United Kingdom, Turkey and the USSR, and chaired by the Greek representative, E.B.N. Politis. In addition, during the negotiations of article 2 of the main draft, concerning the passage of merchant vessels, held in the twelfth and thirteenth meetings of the Conference, 13 and 15 July 1936, no state countered Turkey's position on the status of passage. Since no objection was raised during negotiations or after, the nature of passage is 'innocent passage' and, according to the well­ established principles of the law of the sea, Turkey has legal rights to regulate passage and navi_gation, taking into account the security factor and the aims and spirit of the Convention.

Innocent Passage and the Rights of the Coastal State

Since the passage regime through the Turkish Straits is sui generis innocent passage, it is subject to the well-established principles of innocent passage. The provisions of the UN CLOS (articles 17-32) concerning innocent passage reflect the customary principles of the law of the sea, which recognises mutual rights and obli_gations both to the flag state and to the coastal state. If the ship does not violate the established principles of innocent passage

The Turkish Straits• 169 (UNCLOS art. 19), the coastal state, in principle, has no right to stop or _.

. th f th hi 20

intervene m e passage o e s p.

Customary principles of the law of the sea empower the coastal state to adopt laws and regulations in respect to regulating innocent passage and navi_gation, for example, for the purposes of:

• The safety of navi_gation and marine traffic, including sea lanes and traffic separation schemes for all ships and, in particular, tankers, nuclear powered ships, ships carrying nuclear or other inherently dangerous or noxious substances or materials;

• The protection of cables and pipelines;

• The conservation of the living resources of the sea and the

prevention of infringement of its fisheries rights; • The protection and preservation of the environment; • The prevention, reduction and control of pollution;

• The prevention of infringement of the customs, fiscal, immi_gration

or sanitary laws and regulations, etc.

Measures Taken to Improve the Security of Passage and

Navigation

Turkey, in 1994 and, by taking into account the experience from this practice into account, later in 1998, totally replaced its fonner regulation of civil vessel traffic and started to use its rights effectively in regulating the passage and navi_gation of civil vessels through the Turkish Straits, in confonnity with the general principles of international law, including the rules and nonns of the International Regulations for Preventing Collisions at Sea, 1972 (COL.REG 1972). Indeed, various IMO documents approved Turkey's measures taken in 1994 and 1998. Among those documents are IMO Res. A/857, and the IMO Doc. MSC 71/WP.14/Add.2, dated 27 May 1999, recommending the continuation of the IMO adopted routing system, including the associated IMO Rules and Recommendations adopted in 1994 (Res.A/857), since those meas�res were effective and successful. The IMO Resolution also stated that the organisation's measures were established for the safety of navi_gation and protection of the environment, and all national measures should be in confonnity with those aims.

Russian Federation, Ukraine, Romania, Bulgaria, Greece, Greek Cypriot Administration and Oman opposed to Turkey's 1994 domestic regulation

I 70 • legal Perspectives

and to the adoption of the stated IMO documents on grounds that Turkey's unilateral measures do fall contrary to the aims, purposes and also to the provisions of the Motreux Convention. In addition, they also claimed that Turkey's regulations contradict with UNCLOS and with the customary rules of the law of the sea. According to their point of view, measures to regulate passage through the Straits should first of all be jointly decided by the parties to the Montreux Convention.21 But the majority, including the EU countries, did not support those argun:i.ents and for this reason the issues was removed from IMOs agenda in 1999.22

The concept of security has changed a great deal since the 1930s. So, coastal states, while trying to regulate freedom of passage and navigation, should hot only take into account the security of passage and navigation, but also the security of the lives and property of the people living in the area and of the environment, including the marine environment. All developments in the law of the se� concerning the security of the vessel, of passage and navigation and the protection of the environment should be fully observed while regulating passage and navigation by legal norms. Turkey was not only being empowered due to the security principle enshrined in the preamble of the Convention, but by other international agreements such as SOLAS, MARPOL etc. and also by the general principles of the law of the sea including UNCLOS. Indeed, Turkey took those points into account while enacting the 1994 and the 1998 regulations, which have international . Ii . 23

unp cat10ns.

The measures taken to regulate the safety of passage and navigation are traffic separation schemes (fSSs), temporary suspension of the TSSs or its sections and advising a vessel in the area to comply with rule 10 and under exceptional circumstances with rule 9 of COLREG (1972/4, in case of inability to comply with the TSSs either for technical or for geographical reasons, or due to weather conditions -such as fog or sub-surface and heavy surface currents reaching up to 7-8 knots, and cross-currents at the bends-, temporary suspension of one or t\yo-way traffic, maintaining a safe distance between vessels, participation in the reporting system (fUBRAP), giving prior information for the purpose of efficient and expeditious traffic management and for the safety of navigation and environment, to offer pilotage or towing services for safer navigation, to ask the vessel to navigate in daylight through the Straits for ships over 200 metres in overall length and for vessels having a maximum draught of 15 metres or more, etc.25 In addition to these measures, Turkey has also established a Vessel Traffic Management Information System (VTMIS) and constructed Vessel Traffic

The Turkish Straits • 171

Services (VTS) along the Turkish Straits.26 The VTSs will provide anticipation to the regulation of traffic flow and greatly enhance the pilot's ability. These measures, we hope, will assist greatly to the safety of passage and navigation, but will not completely change the existing difficulties and

hazards of navigation in the Turkish Straits.27

· In addition to those

administrative and technical measures for the safety of passage and navigation, the users of the Straits have to improve the vessels quality and its

mechanical reliability for a safer passage.

Indeed, after the entry into force of Turkey's regulatory measures in 1994, the casualties since that year at the Turkish Straits had highly decreased, particularly in the Strait of Istanbul. Prior to those regulations, between 1 May 1982 to 1 July 1994 (the date of the entry into force of the 1994 regulation) 269 vessels were involved in 208 incidents at the Strait of Istanbul. In all those casualties, such as collisions, shore-collisions, grounding, fire etc., only 15% of the vessels had a pilot on board and the rest 85% was without a pilot.28 _{The statistics also indicate the importance of the} IMO Res. A/857, which recommends to the vessels to take a pilot for the safety of passage and navigation through the Straits. The number of collisions in the Strait of Istanbul from 1990 to 1994 was between 25 to 43 for each year. By the entry into force of the 1994 regulatory measures and the stated IMO resolution, the number of collisions at the same region

highly decreased to 2-4 for each year.29 On the other hand; ships passing through the Turkish Straits, taking into account all the domestic and international regulatory measures started to take pilots, but still not yet at the desired level, despite the IMOs strong recommendation. In the year 2000, 40% (19209) of the vessels passing through the Strait of Istanbul, and 27% (11130) of the vessels passing through the Strait of Canak.kale took pilot.30 Increasing vessel traffic through the Straits affects Istanbul. The city is of great importance because of its 12 million inhabitants and due to its historical character, UNESCO having declared it a 'World Heritage City" for its 3000-year history and for having hosted many cultures. These features of the city and its environment also capture the attention of the environmentalists. Scientists maintain that a LPG tanker explo�ion in or near the Istanbul Strait would have the same affect as a quake of 11.0 on the Richter scale. This undeniable reality once more increases the importance of the Turkish government's measures to safeguard passage and navigation and protect the environment, and it makes third parties' respect for these measures imperative.

I 72 • legal Perspectives

Concluding Remarks

The Turkish Straits, because of its geography and the increasing volume of traffic, harbours real dangers for the safety of passage and navigation, life, property and the environment. Big ships and especially tankers face serious difficulties navigating the sharp turns because of the Strait's geographical structure and its strong surface and undercurrents.

Statistics reveal the speed at which maritime traffic through the Straits has

increased in recent years. Such as: in 1988, 22,23231 _{vessels; in 1989, 21,235}32

vessels; in 1990 20,51533 _{vessels; in 1991, 19,703}34 _{vessels; in 1992, 22,530}35

vessels; in 1993, 23,41416; in 1994, 19,63037 _{vessels; in 1995, 19,529}38 _vessels

and in 1996, 37,78139 _{vessels had passed through the Straits.}

The traffic originating from the Main-Danube, Volga-Baltic and Volga-Don canals, bound for the Mediterranean Sea and Turkish ports has increased significantly the volume of traffic.

In 1997, 50,942 merchant vessels passed through the Strait of Istanbul, of which 26,672 called at a Marmara Sea port. The number of ships passing through the Strait of Canakkale in the same year is 36,453 of which 11,863 called at a port on the Mannara Sea.40 _{The number of tankers that passed}

through the Straits the same year was 4303 and 5658 respectively.41

In 1998, 49,304 merchant vessels passed through the Istanbul Strait -an average of 134 ships per day or one ship every eleven minutes. Out of the 49,304 ships, 24,738 of them called at ports on the Mannara Sea. In that year 38,776 ships passed through the Canakkale Straits, of which 13,641 called at Marmara Sea ports.42 The number of tankers, including the ones carrying dangerous cargoes was 5142 and 6546 respectively.

The number of ships that passed through the Turkish Straits in 1999 was almost the same as in 1998, numbering 47,897 through the Strait of Istanbul and 40,555 through the Strait of Canakkale 43 and the number of tankers was 4452 and 5445 respectively.

These above stated figures didn't change much in the year 2000. 48,077 merchant vessels passed through the Strait of Istanbul and 41,561 passed through the Strait of Canakkale of which 21,214 and 14,528 respectively called at a port on the Marmara Sea, and roughly 27,000 vessels passed through the Straits without calling at a port.44 The number of tankers for the year 2000 was 4937 and 5543 for the Straits of Istanbul and Canakkale.45 This means that 13-15 tankers each day is making a crossing just meters away

The Turkish Straits • 173 from the shores of Istanbul and Canakkale, loaded with thousands of tons of highly combustible and environmentally hazardous -substances, such as LNG, LPG, chemicals, oil etc.46 _{The number of vessels that passed through} the Straits did not change much for the years 200147 and 20oi8 _when

compared with the previous years. But, it is claimed that 80 million tons of crude oil was shipped to the western markets through the Straits in the year 200049 and this amount continues to increase. Accordingly, the nwnber of tankers carrying hazardous cargo, including oil, increased to 7427 in the year 2002 and to 8097 in the year 2003, amounting to an increase from 122.953.338 to 134.603.741 million tons passing through the Strait of Istanbul. The fi_gures in the Strait of Canakkale are even somewhat higher than of the Strait of Istanbul. For the Strait of Canakkale, in the year 2002, the number of tankers was 7627 and this figure increased to 8114 in the year 2003. Due to the increase of the number of tankers carrying hazardous cargo, the amount of this sort of cargo also increased from 130.866.598 to 145.154.920 million tons for the stated years passing trough the Strait of Canakkale50_.

In addition to this highly congested maritime traffic, we also have to take into account the domestic vessel crossin_gs a day, particularly at the Strait of Istanbul, approximately more than 2,500 vessels (shuttle boats, inter city ferries, leisure crafts and fishing boats) a day and carrying about approximately 2.5 million people from one side of the city to the other. The stated fi_gures dearly displays that the nwnber of vessels· using the Turkish Straits is three times the traffic of the Suez Canal, which is also one of the important waterways used for international navi_gation.51

This increase in the volume of maritime traffic through the Turkish Straits since 1996 demonstrates the necessity of Turkey taking all appropriate measures for safety of passage and navigation and the protection of the environment (including the marine environment) in accordance with the well-established principles of international law. Indeed, the measures taken by Turkey for the stated ends were supported at IMOs May 1999 sessions by a high majority, including the US, Japan, Panama, UK, Germany, France, Netherlands and by all the other EU countries, excluding Greece. On the other hand, the volume. and growth of traffic also demo�strates the need for states and vessels flying their fl_ag to fully respect and comply with IMOs and Turkey's measures, because th_ey have proven to be effective and successful, despite the rapid increase in maritime traffic.

174 • legal Perspectives

1 Lausanne Peace Treaty, art. 23. For the text of the Treaty, refer to LNTS 28: 11, reprinted in AJIL 18: (Supp. 1924): 4; Lausanne Convention Relating to the Regime of the Straits, art. 1. For the text of the Convention refer to LNTS 28: 115; Montreux Convention Regarding the Regime of the Straits, preamble. For the authentic text (French) and the translation (English) of the Convention made by His Britannic Majesty's Office, refer to LNTS 173: 213.

2 _{Lausanne Convention Relating to the Regime of the Straits (preamble and art. 1),} and Montreux Convention Regarding the Regime of the Straits (preamble).

3 Ferenc A. Vali, The Turkish Straits and NATO (Washington D.C.: Hoover Institution Press, 1972).

·1 Anthony R. Deluca, Great Power Rivalry al the Turkish Straits: the Montreux Conference

and the Convention of1936 (New York NY: Columbia University Press, 1981).

s H.N. Howard, "Some Recent Developments in the Problem of the Turkish Straits", Department of State Bulletin 16: 395, 143-152.

6 H.G. Knight, "The Kiev and the Turkish Straif",AJD..., 71: (1977).

7 Christos L. Rozakis and Petros N. Stagos, The Turkish Straits (The Hague: Martinus Nijhoff, 1987).

s Tullio Scovazzi, "Mediterranean and Black Sea Maritime Boundaries", in International Maritime Boundaries. Jcinathan I. Charney and Lewis M. Alexander, eds. (The Hague: Martinus Nijhof, 1993) 321.

'> G. Plant, "Navigation Regime in the Turkish Straits for Merchant Ships in

Peacetime", Marine Poliry 20: (1996) 15.

10 Bing Bing Jia, The Regime of Straits in International Law (Oxford: Oxford University Press, 1 998): 110-115.

11 'Third United Nations Conference on the Standardisation of Geographical Names', Athens, 17 August- 7 September 1977, vol. 1 (New York: United Nations, 1979): 35.

12 IMO Doc.SN/Circ. 166, 1 June 1994; IMO Doc. Res. A/857; IMO Doc. MSC 71/WP. 5, 25 May 1999; IMO Doc. MSC 71/WP. 14/Add.2, 27 May 1999; IMO Doc. MSC 71/C/82/3/Add.1.

13 T.C Resmi Gazete (Official Gazette

of

the Republic of Turkry), No. 23515, Supp. 6

November 1998. This regulation came into force on the same day. Later, article 50 of this Regulation has been repealed and this amendment was promul_gated in Official Gazette, No. 23686, 5 May 1999.

\.I For conditions to claim historic title refer to: Fisheries Case (United Kingdom v. Norway), Judgement of 1 8 December 1951, p. 139; Continental Shelf Case (funisia v. Libyan Arab Jamahiriya), Judgement of 24 February 1982, p.100; see also E.D. Brown, The International Law

of

the Sea, vol. I (Dartmouth: Andershot, 1994): 31. For a detailed analysis of the concept please refer to 'Judicial Regime of Historic Waters, Including Historic Bays', Yearbook

of

the International Law Commission: 2 (1962) 1-38. 15 Yiiksel inan, Tiirk Bogaz/anmn Sryasal ve Hukuksal Rejimi (I'he Political and Legal Regime of the Turkish Straits), 211_{<.1 ed. (Ankara: Turhan Press, 1995): 2-3; Yii.ksel loan,} ''The Current Regime of the Turkish Straits', Perceptions 4: 1 (2001) 102.

The Turkish Straits• 175

L6 Yi.iksel inan, Tiirk Bogaz.lanmn ... , op. cit., pp. 4-5; Yuksel inan, 'The Current Regime .. .', op. cit., p. 103.

17.Yiilcsel inan, Tiirk Bogaz.lanmn ... , op. cit., pp. 7-9; Yuksel inan, 'The Current Regime .. .', op. cit., p. 103.

is Yi.iksel inan, Tiirk Bogaz.lanmn ... , op. cit., pp. 9-19; Yuksel inan, '1be Current Regime .. .', op. cit., p. 103.

19 'Actes de la Conference de Montreux Concemant la Regime des Detroits (22 juin-20 juillet 1936)', Compte &ndu des Seances Pliniem et Proces-Verbal des Debats du Comite Technique (Liege: Imprime par H. Vaillant-Caemanne, 1936).

20 1be Law Courts' Quorum of the High Court of Appeal, in its judgement of 2001 /1073 dated 21 November 2001, related to the seizure of the ship "Cape MaluJ/', sentenced that the passage is innocent through the Turkish Straits and Turkey has the power to use its jurisdiction over ships llnd persons in case of breach of the rules of innocent passage. The court, in reaching this conclusion, based its judgement to the principles of international law of the sea and also to the preparatory work of the Montreux Convention.

21 _{For the views of those states, see in particular, IMO Doc. MSC 63, WP II/ Add. 2,} Report of Maritime Safety Committee on Turkish Straits, 24 May 1994.

22 _{IMO Doc. MSC 71, C 82/3/Add. 1.}

23 _{Indeed the IMO Res. A/827 and IMO Doc. MSC 71, C 82/3/Add.1 are the} outcome of Turkey's efforts and the consequences of its regulations, and these documents also approved the measures taken by Turkey, including the TSSs. In addition, IMO Doc. MSC 71, C 82/3/Add.1 (Preparation of a new report covering all aspects of safety and environmental protection, including the review of the IMO Rules and Recommendations on Navigation through the Strait of Istanbul, Strait of Canakkale and the Marmara Sea) expressed the opinion that the discussion of all aspects of this subject should be discontinued and the efforts of all interested parties should be concentrated on promoting the full and effective use of the reporting system (TIJBRAP). But, Greece, Greek Cyprus Administration and the Russian

Federation did not concur with the majority. The stated IMO Doc. MSC 71 also accepted the continuation of the application of the Associated IMO Rules and Recommendations (Res. A/827) since they have proven to be effective and successful.

2·1 COLREG (1972) rule 10 authorizes the coastal state to establish TSSs and demand from the vessels to navigate within the lane, but according to rule 9 the

captain of the vessel will have the .authority to chose the route of navigation. Russian

Federation and Bulgaria were in favor of rule 9 and insisted for the application of this principle during passage through the· Straits. See for the views of those states, IMO, MSC 64/22/ A.I, Statement by the Delegation of the Russian Federation, Annex 25, December 1994; IMO, MSC 64/22/ A.I, Statement by the Delegation of

Bulgaria, Annex 26, December 1994.

2s IMO Res. A/857 concerning Rules and Recommendations on Navigation through the Strait of Istanbul, the Strait of Canakkale and the Marmara Sea, which came into effect on 24 November 1994, not only approved Turkey's measures, but also

176 _• legal Perspectives

recommended that ships' masters use the pilot services for safe navigation. In addition, vessels having a maximum draught of 15 meters or more and vessels over 200 meters in overall length were advised to navigate the Straits in daylight.

26 _{Eight VTS observation towers in the Strait of Istanbul, and five observation}

towers in the Strait of Canakkale. The VTSs in the Straits has been fully operational since 30 December 2003. This system consists of advanced navigational and hydrological sensors and full radar and CCTV coverage in the Straits of Istanbul and Canakkale. For the TSVTS User's Guide see www.turkishpilots.org/index 1.html.

27 _{For Turkey's 1994 and 1998 regulations refer to 'The Maritime Traffic Regulations}

in the Strait of Istanbul, the Strait of Canakkale and the Sea of Marmara', T.C Rm11i Gaz.ete (Official Gazette

of

the R.ep11blic

of

T11rkey), No. 21816, 11 January 1994. lbis regulation was repealed and the new regulation came into force on 6 November 1998. For the text of this regulation refer to 'Maritime Traffic Regulations for the Turkish Straits', T.C. Resmi ,Gazete (Official Gazette

of

the Rep11blic ofT11rkry), No. 23515 Supp. 6 November 1998. Article 50 of this Regulation was later repealed. See, Official Gazette, No. 23686, 5 May 1999. For an unofficial translation of the Maritime Traffic Regulations for the Turkish Straits, please refer to, www.turkishpilots. org/DOCUMENTS/yenituzuk_eng.html.

28 For the details of the casualty analysis in the Strait of Istanbul, please refer to, www .turkishpilots.org. Y / casualty _analysis_Istanb u l _strait.htm.

29 For details refer to, T11rkish Strait.s (Istanbul: Bilgi University Maritime and Oceans Law Research Center, 2001): 23.

JO For a detailed statistics of passages through the Turkish Straits please refer to,

www.turkishpilots.org/DOCUMENTS /Statistics/bosporousstat2k.html; www.

turkishpilots.org/ DOCUMENTS/Statistics/ canakstat2k.html.

31 Rapport Ann11el 111r le Mo11vement des Navires a Travers Jes Detroit.s T11rrs, 1988, 52 eme annee, Ministere des Affairs Etrangeres de la Republique de Turquie (Ankara:

Ministry for Foreign Affairs, 1989): 4 3 -44.

32 Rapport Ann11el...,op. cit., 1989, 53 eme annee, pp. 45-46. 33 Rapport Ann11el..., op. cit., 1990, 54 eme annee, pp, 45-46. 34 Rapport Ann11el..., op. cit., 1991, 55 eme annee, pp, 45-46. 35 Rapport Ann11el..., op. cit., 1992, 56 eme annee, pp. 45-4 7. 36 Rapport Ann11el..., op. cit., 1993, 57 eme annee, pp. 45-47. 37 Rapport Ann11el..., op. cit., 1994, 58 eme annee, pp. 46-48. 38 RapportAnn11el..., op. cit., 1995, 59 eme annee, pp. 46-49. 39 Rapport An1111el..., op. cit., 1996, 60 eme annee, pp. 47-50. 40 RapportAnn11el..., op. cit., 1997, 61 eme annee, pp. 47-50.

41 For a detailed analysis for the years 1995-2000 concerning the number of tankers, ships ove.r 200 m. and for those over SOO GT, please refer to www.turkishpilots.org/ statistics/ bosporusstats_ general_ figures.html; www.turk.ishpilots.org/ statistics/

canakstats_general_figures.html

42 Rapport Ann11el..., op. cit., 1998, 62 eme annee, pp. 49-52. 43 Rapport Ann11el..., op. cit., 1999, 63 eme annee, pp. 49-52.

The Turkish Straits • 177

"5 For a statistics of tankers passing through the Turkish Straits for the years

1995-2000 please refer to, www.turkishpilots.org/ statistics/bosporusstats_general_ figures.html; www.turkishpilots.org/ statistics/ canakstats_general_figures.html

46 The passage of big ships and tankers through the Strait of Istanbul reminds the

inhabitants of this city two major tanker accidents which happened at the entrances of the Strait. Namely, the Romanian flagged oil tanker lndependenta which collided with the Greek flagged freighter Evriali causing the spilling of 95,000 tons of crude oil into the Strait of Istanbul that burned for weeks in 1978, and the tanker Nassia which collided with the Shipbroker in 1994, close to the shore of St. Sophia and the Blue Mosque, both were Greek Cypriot flagged vessels, spilling 30,000 tons of oil

into the Strait of Istanbul. The fire on Nassia lasted a week that lead to the closing of the Strait to maritime traffic.

47 Rapport Annuel..., op. cit., 2001, 65 eme annee, pp. 49-52. 4s RapportAnnuel..., op. cit., 2002, 66 eme annee, pp. 48-51.

49 Turkish Straits ... , op. cit., p. 22.

so Information obtained from the Prime Ministry, Undersecretariat of Maritime Affairs. so Turkish Straits ... , op. cit., pp. 11-12.