782.022/5–350
Memorandum by the Legal Adviser in the Department of State ( Fisher ) to the Director of the Office of Greek, Turkish, and, Iranian Affairs ( Jernegan )1
Your memorandum of May 3, 19502 calls attention to Ankara’s; No. 213 of April 29 stating that the Foreign Office has requested the Department’s opinion whether from a legal standpoint there is any objection to the laying of certain moored and ground mines near the Black Sea entrance to the Straits.
It is indicated that the mines would be controlled from a harbor entrance post planned as a part of a harbor defense system, that when not energized the mines would constitute no menace to navigation and that the mine field could be crossed at any point so that no pilotage would be required. It is added that moored mines which broke [Page 1261] loose would be sterile and consequently would not endanger passing vessels.
Article 2 of the Montreux Convention of July 20, 1936 concerning the Regime of the Straits provides in part as follows:
“In time of peace, merchant vessels shall enjoy complete freedom of transit and navigation in the Straits, by day and by night, under any flag and with any kind of cargo, without any formalities, except as provided in article 3 below.3
. . . . . . . . . . . . . .
“Pilotage and towage remain optional.”
Article 3 contains certain provisions relating to sanitary control which are not pertinent here.
Since merchant vessels are clearly entitled under the provisions referred to to complete freedom of passage in the Straits by day or night in time of peace, it is evident that any militarization of the Straits which would interfere with such freedom of passage is prohibited. Whether the contemplated placing of mine fields in the Black Sea entrance to the Straits would interfere with such passage is a question of fact and the assurances in the Foreign Office inquiry indicate that it would not. The assurance that no pilotage would be required is also in accord with the Convention.
In the absence of agreement to the contrary the right of Turkey to mine the Straits flows from sovereignty. While the Lausanne Convention of 19234 relating to the regime of the Straits required the demilitarization of specified zones and islands in the area, and contained prohibitions against the use of “submarine engines of war” all such provisions were omitted from the Montreux Convention. It was the intention of the parties to the later Convention, indicated in the preamble, “to replace by the present Convention the Convention signed at Lausanne on the 24th, July, 1923” and any doubt that such was the legal effect would seem to be completely resolved by the fact that all of the parties to the Lausanne Convention are also parties to the Montreux Convention. In any event, the right of Turkey to again militarize the Straits is clear from the protocol of signature of the Montreux Convention in which the respective governments accept the following provisions:
“1. Turkey may immediately remilitarize the zone of the Straits as defined in the preamble to the said Convention.”3
. . . . . . . . . . . . . .
[Page 1262]For the reasons indicated, it is the view of this office that if the placing of the proposed mines at the Black Sea entrance to the Straits does not as a matter of fact interfere with the complete freedom of passage of the Straits and navigation therein, without pilotagei, there is no objection thereto from a legal standpoint by reason of the provisions of Article 2 of the Montreux Convention.
It might be added that although the Soviet Government in 1946 proposed to the Turkish Government “a new regime” for the Straits providing in part for a joint Turko-Soviet system for defense of the Straits,5 this proposal for joint defense has been strenuously combated by the Turkish Government as incompatible with its sovereignty and security and this position appears to have been supported, at least in part, by the United States in a note to the Soviet Government on August 19, 19466 which expressed the view that the establishment of a regime for the Straits was not the exclusive concern of the Black Sea powers and declared that Turkey should remain primarily responsible for the defense of the Straits.
- Copy transmitted with Secretary of State’s instruction 39, June 1, to Ankara, not printed (782.022/6–150).↩
- Not printed.↩
- The following omission indicated in the source text.↩
- Signed July 24, 1923; League of Nations Treaty Series, vol. xxviii, p. 115; also British Cmd. 1929, Treaty Series No. 16 (1923): Convention Relating to the Regime of the Straits, p. 109.↩
- The following omission indicated in the source text.↩
- Reference is to the Soviet note of August 7, 1946 to the Turkish Government, also transmitted to the Governments of the United Kingdom and the United States; text in Foreign Relations, 1945, vol. vii, p. 827.↩
- Ibid, p. 847.↩