Sea Control - Sea Control 339 - The Montreux Convention with Mark Nevitt

Episode Date: April 24, 2022

Links:1. The 1936 Montreux Convention.2. A Constitution for the Oceans. Remarks by Tommy Koh, President of the Third United Nations Conference on the Law of the Sea. 3. The Russia-Ukraine Conflict, the Black Sea, and the Montreux Convention, by Mark Nevitt, Just Security, February 28, 2022.4. The Operational and Legal Risks of a No-Fly Zone over Ukrainian Skies, by Mark Nevitt, Just Security, March 10, 2022.

Hey, folks, it's Jared. We are closing out the formal Ukraine-Russia Topic Week with host Marie Williams and her guest Mark Nevitt discussing the nuances and history of the Montreux Convention. Marie also edited and produced this episode. We are still looking for additional audio editors, and we're happy to provide you some very basic training materials and instruction in a low-stress environment. So if you're interested in finding a way to contribute to SimSec and add to your resume and personal skill set, please send us an email with your resume to ccontrol at simsec.org.

Finally, I want to take the opportunity to recommend our partners in the SimSec Podcast Network, The Bilge Bums. You can find Alex, Jamie, Drack, and a pot of iron brew bottles wherever you download your podcasts. And on that note, I'll turn it over to Kimbersman. You're listening to Sea Control, hosted by the Center for International Maritime Security. Welcome back to Sea Control. I'm Mary Hollins. The sinking of the Russian warship Moskva and the Black Sea last week has refocused international attention on the 1936 Monterey Convention and its wartime importance. I'm here to discuss the convention as Mark Nevitt, retired Navy JAG and aviator, and currently faculty at the Syracuse University College of Law. Professor, thank you for being here.

Thank you, Marie. It's great to be with you. For those of us who may not be familiar with international law, can you give us some background on the Monterey Convention? what is it and what is its scope? Sure. So the full legal name of the Montreux Convention is actually the 1936 Convention regarding the regime of the Straits. And that's referred to as the Montreux Convention. And the Straits are, of course, the Turkish Straits between the Dardanelles and Bosphorus, which is the linkage between the Mediterranean Sea and the Black Sea. Montreux has very little to do with Turkey other than it's the city in Switzerland where the convention was actually negotiated and signed. So it's a little bit of a historical anomaly in that you're talking

about a Switzerland's location for a Turkish convention. But it's an agreement that's binding that governs the transit of the Turkish Straits for merchant vessels, vessels of war, and even even aircraft. And again, the Turkish Straits are really important in that they link the Mediterranean Sea and the Black Sea. Geographically, for your listeners, they may want to look at the map of the Turkish Straits. It's a very long strait, about 164 miles long. And there's two sort of choke points, one being the Dardanelles and one of being the Bosphorus and the Sea of Marmara is in between. So the convention itself was really negotiated in the shadow of an expansionist Nazi Germany. And there's a lot of confrontation, frankly, between the Turkish people and Russia

prior to the convention. And that was a lot of militarization in the Black Sea. So the convention is 29 articles, three technical annexes that, again, address warships, civilian vessels, aircraft. The scope, Marie, of the convention is that it's specific just to the Turkish Straits. That's somewhat unique in international law that it has a geographic focus. It doesn't apply to anything outside the Turkish Straits, although there's a little bit of discussion about Black Sea powers and non-Black Sea powers. It is under international law lex specialis in that it is the controlling law governing the Turkish Straits and applies during peace, which thank God we've normally had, but also during armed conflict or wartime,

which we're seeing with Ukraine and Russia. And how is that different to UNCLAS, the Convention on the Law of the Sea? UN Convention on the Law of the Sea, I'm sure your listeners are all experts on this Constitution of the Oceans, which has a lot of provisions governing transit passage through international straits around the world. Keep in mind that Montreux Convention was negotiated and put into place in 1936, and UNCLOS was negotiated throughout the 1970s, signed in 1982, and entered into force into 1994. So the question is, how does UNCLOS, which has pretty permissive transit right regimes throughout the convention, apply to Montreux? On the Article 35, it clarifies that UNCLOS does not apply to, and I quote, longstanding international conventions

in force. So it's an acknowledgement by UNCLOS that Montreux and other similar conventions that are pre-existing would be the applicable law. So the upshot is that Montreux conventions restricted provisions and not the UN Convention on the Law of the Sea govern the Turkish Straits. So they have sort of a unique legal status for transit governance. I should just say that it's really played a really important role in demilitarizing the Black Sea for the past 85 years. It limits the size of vessels that may enter the Black Sea, imposing notification requirements on warships, restricting how long, quote unquote, non-Black Sea powers can deploy the warships. and it's really played an important role in sort of enforcing the rule-based international order

in the Black Sea and the Turkish Straits and it should be noted that it survived some pretty tense times before this to include the whole entire Second World War and the Cold War as well as a lot of small conflicts in between. So Montreux has really been a really critical part of enforcing the rule-based international order. In wartime, Montraig is Turkey's enforcement powers of certain provisions. Can you speak to Turkey's role in this regard, legally and militarily? Turkey's role is really critical here. In times of war, there's certain provisions that can limit passage through the Turkish Straits. And there's really two provisions I'd highlight to your listeners. They can read the Montreux Convention. It's not a particularly long

convention. It's available online. Article 19 of the Montreux Convention states in a time of war where Turkey is not a belligerent, warships enjoy complete freedom of transit through the straits, but vessels of war belonging to belligerent powers may not pass through the straits unless they fall under certain exceptions. So that's really important because Turkey has made several statements to date sort of invoking Article 19, although it's often not clear exactly what provision they're relying upon and how far they're going to go in enforcing it. But Ukraine and Russia are clearly involved in a traditional IAC, international armed conflict. Turkey is not involved, though Turkey is a NATO member. So Russian warships cannot transit the Straits

unless they fall under a Montreux exception. And I would highlight to your listeners, the most important exception is Article 19, Paragraph 4, which says that vessels of war, belligerent powers may return to their bases, may transit the Straits and return to their bases. So if you have Black Sea-based ships based in Sevastopol, which is a Crimean-Russian port in the Black Sea, they can theoretically use this exception to transit from the Mediterranean through the Straits back to the Black Sea. And so that seems to be where we are right now vis-a-vis the Montreux Convention. There's also a second provision. I'll just highlight, Marie. Article 21 is a wartime provision that states that if Turkey is threatened with imminent danger of war, Turkey has really plenary authority and discretion to control the passage of warships full stop. That does not appear to be the case here.

I think it'd be difficult for Turkey to make that determination that it feels reasonably threatened with the imminent danger of war. But the point being is that Turkey has broad discretion in making that determination. That's not really reviewable by other nations. So Article 19 seems to be where we're at right now in the Ukraine-Russia conflict. Although Turkey has, it would be helpful if they provide a little more specificity with what they view as the controlling article in the Ukraine-Russia conflict. Legally, the Montreux Convention, it's pre-UN charter, right? It's pre-United Nations charter. So there's really no prescription baked into Montreux to have a legal right to sue via some kind of international tribunal,

like an international tribunal of law of the sea, international court of justice, or some other ad hoc tribunal. So that's really not in the Montreux Convention. I guess conceivably someone could assert some sort of legal right in the International Court of Justice, but that will take time and it's unclear how that would work out. So militarily, I think it's where you're getting at, Marie. I'll just say that this is a long straight. Any warship that would be transiting the straight, I get 160 miles. That's basically if you were to draw a straight line from New York City to Boston is how you would transit. There's two choke points at the Dardanelles and Bosphorus. And so any warship that was willingly, knowingly, blatantly violating Turkey's

interpretation of the Montreux Convention would be stopped. And that could occur in any number of ways. It would be in a significant escalation. I can't think of a time where this has occurred. Turkey has complete sea control and sea primacy in the Turkish Straits. But Coast Guard, you know, you can imagine some kind of blockade of the ship. And it'd be a really significant escalation, which I think would be really foolish from a military perspective to try to do this in disregard of the legal enforcement that Turkey would be imposing. To that point, you recently wrote in Just Security that Russia is almost certain to abide by Turkish authority in the Straits. Almost certain. Well, sure. I think there might be a tension between potentially short-term interests of Russia and long-term strategic interests. And I think it's important just to take a step back. Russia is a Black Sea power. So under the Montreux Convention, they enjoy significantly more rights within the Black Sea, operating in the Black Sea, and spending enormous amount of time in the Black Sea.

If you're a non-Black Sea power, such as the United States, you can only spend 21 days in the Black Sea and you have to leave. So Russia is a Black Sea power, and they've really benefited from the Montreal Convention's delineation between non-Black Sea powers and Black Sea powers. The other Black Sea powers are Georgia, Romania, Ukraine, Bulgaria, Turkey, of course, and Russia itself. Half of those powers are NATO powers. Three of those six nations I just mentioned are NATO. And 10% of the NATO nations are Black Sea powers. The other 27 are non-Black Sea powers. So just based upon just the maritime comparison and capabilities alone, those 27 outside NATO nations, United States, UK, France, all the different maritime powers in NATO are very limited in what they can do vis-a-vis the Black Sea. So Russia is very much benefit, I think, from the Montreux regime. They are not looking, I don't think, to upset the apple cart long term, because you can imagine if there was a real attack on the Montreux regime, then those 27 outside NATO nations would have carte blanche to enter the Black Sea. And really, you would you would see a toppling of the Montreux regime's order, which I just don't see that happening.

And Turkey, of course, is a NATO member. Right. I mean, 1936, when Montreux was negotiated, NATO wasn't even an issue. It wasn't even discussed. This is pre-Cold War, pre-Cold War, pre-World War II. Turkey is. And so Russia has to be very delicate in how they approach Turkey's interpretation of the treaty. So that's a long way of saying is Russia will continue to abide by the Montreux Convention. I think it's in their long-term interest to do so. And I think the Montreux Convention will play a role, I think, in de-escalating slightly the maritime tensions in the Ukraine-Russia conflict. The U.S. is not a signatory to Montreux, but abides by it under customary international law. What has this meant in practice? For your listeners, customary international law should not be something to roll your eyes at. Customary international law is binding law, and customary international law refers to international obligations arising from established international practices, as opposed to obligations arising from formal written conventions and treaties. So the United States is not a treaty member of either UN Convention on the Law of the Sea or the Montreux Convention, but it treats the core principles of both as binding customary international law. And it does so from a general and consistent practice that they are following this from a sense of legal obligation, sometimes referred to as opinio juris, which is just a fancy way of saying we're following this from a sense of legal obligation.

So since the last 85 years, the U.S. has just followed the Montreal Convention's notification procedures, has not exceeded the 21 days in the Black Sea because the U.S. is not a Black Sea power. So it's really sort of hardened as part of the U.S.'s approach to the Turkish straits. The Montreal Convention is fully binding customary international law. Sometimes there are interpretive issues. When I was at Sixth Fleet in NATO in 2008, there was some discussion about, can we get the USS Mount Whitney through the Turkish Straits? This is when Russia invaded Georgia in 2008. And there was a little bit of discussion and back and forth between Turkey and the United States about, does this meet the spirit, intent, and letter of the Turkish Straits? But those are interpretive questions between nations that were ultimately resolved, but the core principles of Montreux are abided by by the United States as customary international law. Professor, Montreux was negotiated over 85 years ago, and it hasn't been amended. Given the changes in naval technology and military technology, do you expect Montreux can presently hold? I will say that you read the 1936 Convention regarding the regime of the Straits, and there's certain annexes which get into really great detail, specifically Annex II about what vessels can transit the Straits from Black Sea powers and non-Black Sea powers.

And it's written in this point in time in 1936 before there were these modern aircraft, nuclear-powered aircraft carriers and modern naval warfare. But it still has withstood the test of time, right? We apply these annexes from Annex II to modern war vessels, and that has worked for the most part. So there's no interest, I think, from Turkey or other nations from reopening the convention to apply 1936 to 2022. I do think that Montreux survived World War II. It survived the Cold War. It survived a host of NATO operations and a host of operations in the Middle East. And so it'll continue to survive. It's played a role in demilitarizing the Black Sea for 85 years, and it'll continue to do so. Right now, I would characterize Montreux as playing a small but not insignificant de-escalatory role for naval operations in the Black Sea. Russian fleet cannot enter the conflict from the Med unless it is returning to base. And so there might be some Mediterranean warships or supply vessels outside the Med that may want to support the maritime conflict in the Black Sea. they're prohibiting from doing so unless they are going under Article 19-4, which is returning to base. And I'll just note in conclusion that Crimea, Crimea, Crimea is really important for

this. Russia annexed Crimea in 2014. It's a key Russian naval base. And Putin, I think, may have been thinking long-term about the strategic implications of having a naval base in Crimea. Crimea was once part of Ukraine. It's still part of Ukraine under Ukrainian interpretation, and it's very much a contentious issue. So I'll just leave it there. Montreux will live on and survive, and we'll get through this, and it'll play a de-escalatory role, a small one, in this current conflict. And on that note, I want to thank you, professor for talking to us. Before I let you go, can you tell our listeners where they can find you online? What are you working on these days? And also, how are you going from Naval Aviator

to JAG? I believe that's not common. Sure. So I'm currently a professor at Syracuse University College of Law in upstate New York. I will actually be joining the faculty at Emory Law School in Atlanta, Georgia this summer. Most of my writing these days is on climate change and its national security implications. Although I keep going back to my naval aviation roots at times when I wrote a piece for just security on the no-fly zone and what that means for the Russia-Ukraine conflict. So much of my research these days is focused on climate change and how climate change is poised to destabilize the physical environment. And so that's really important for the work here at CIMSEC and Law of the Sea. I can talk for hours

about the transition from naval aviation to being a JAG, but let's just say I got lucky in applying at the right time. My aircraft that was flying was being phased out, the S3 Viking, and I was able to go to law school through the Navy's very, very wonderful law education program, which allowed me to continue my service to the Navy. So you can find me on Twitter. I'm on LinkedIn. Send me a note. I'm at Syracuse through the next few months, and I look forward to continuing this conversation. Thank you again, Professor. And to our listeners, thank you for joining Seed Control. Put it on the shimbo now.

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