The Legal Status of the Canal Istanbul in International Law

Canals are fascinating, whether domestic or international. Gouged into the firmament at great expense of capital and human labour, international canals transform the transit route of the oceans, linking that which nature did not. The Suez, Panama, and Kiel canals are likewise exercises in human imagination that confounded the sceptics of the day about what might be accomplished and what was deemed to be impossible. Although each international canal is unique in so many ways, common principles at a certain level of generality have emerged in fashioning their respective legal regimes. The challenge is whether the major three international canals will be joined by a fourth. The Black Sea and the Mediterranean Sea are actually joined by nature in the personage of the Turkish Straits, recognized for centuries to be a key "chokepoint" in the arteries of maritime commerce. So heavy has maritime traffic become in the Straits than an alternative, or parallel, artificial route has been considered desirable since at least the sixteenth century. Half a millennium later plans are advanced to undertake and complete the construction of what is today known as the "Istanbul Canal". Dr. Ecemis-Yilmaz has produced what is believed to be the first analysis in any language of the potential implications of the Istanbul Canal for the convention regime of the Turkish Straits. She considers the history of the Straits regime, relevant aspects of the Suez and Panama canal regimes, and the sundry scenarios that may arise out of a reconsideration of the Montreux Convention provisions. Her book is intended to encourage discussion of the alternatives, and for the non-Turkish specialist will be all the more attractive and informative for its extensive use of Turkish doctrinal writings and Turkish State practice.

List of Maps List of Tables Abbreviations Acknowledgements Foreword William E Butler PART I: GENERAL QUESTIONS OF INTERNATIONAL LEGAL REGIME OF CANALS AND STRAITS CHAPTER 1: INTRODUCTION Geophysical Features CHAPTER 2: INTERNATIONAL CANALS Significance of the International Regime of Canals Full Assent is Given Assent in Treaty of Peace No Assent is Given The Legal Nature of Canals Legal Consequences CHAPTER 3: INTERNATIONAL STRAITS Significance of Straits Under an International Regime Innocent Passage Transit Passage The Legal Nature of Straits Legal Consequences CHAPTER 4: CANALS AND STRAITS IN THE WORLD AND THEIR SAFETY MEASURES Canals Suez Canal Panama Canal Kiel Canal Straits Canakkale (Dardanelles) Strait Strait of Malacca Strait of Hormuz Strait of Magellan Danish Straits Strait of Gibraltar PART II: HISTORICAL BACKGROUND OF THE MARMARA-BLACK SEA CANAL PROJECT AND TURKISH STRAITS CHAPTER 5: HISTORY OF THE MARMARA-BLACK SEA CANAL PROJECT Ottoman Empire Period Period of the Republic of Turkey Concept of the Canal Istanbul Project CHAPTER 6: HISTORY OF THE LEGAL REGIME OF TURKISH STRAITS Legal Regime of Turkish Straits Before the Ottoman Empire Ancient Greece and the Trojan Era Macedonia Era Rome and Byzantine Era Historical Background of Legal Regime of Turkish Straits After the Ottoman Empire Absolute Turkish Sovereignty in the Straits Regulation under Bilateral Conventions Regulation under Multilateral Conventions The Straits in the Lausanne Treaty Period of National Struggle Lausanne Convention Relating to the Regime of Straits CHAPTER 7: THE STRAITS IN THE MONTREUX CONVENTION Collapse of the Security System Diplomatic Note From Turkey to Contracting Countries Reasons for Positive Reaction to Turkish Diplomatic Note Intentions of the Parties in the Montreux Convention Intentions of Turkey Intentions of the Soviet Union Intentions of France Intentions of England Intentions of Other States Montreux Convention and Passage Regime Merchant Vessels Warships Aircraft Application of the Montreux Convention Dissolution of the Union of Soviet Socialist Republics (USSR) and Yugoslavia Passage Requirements Terminology of Subrogation Replacement of States that Separated from Yugoslavia Replacement of States that Withdrew from Union of Soviet Socialist Republics Ukraine and Georgia Replacement of States that Separated from Great Britain Japan Leaving the League Present High Contracting Parties Subrogation and the Montreux Convention Rights of NATO Standing Naval Force Atlantic and Standing Naval Force Mediterranean to Passage through the Straits for Any Reason Pros and Cons of the Montreux Convention for Turkey Armament of Straits District and Legal Status of North Aegean Islands Termination of the International Straits Commission CHAPTER 8: INTERNATIONAL MARITIME ORGANIZATION AND THE TURKISH STRAITS Legal Developments within IMO Compliance Process 1994 Traffic Separation Schemes Enforcement of Regulation and IMO Procedures Discussions at National and International Levels 1998 Regulations of Turkish Straits and Correlation with International Law Turkish Straits Maritime Traffic Order Regulations Interim Stoppage of Traffic at Turkish Straits Ship Routing (Traffic Discrimination Order) Turkish Straits Reporting System Other Safety Rules Passage of Nuclear-Powered Ships and Ships Carrying Hazardous Waste Weaknesses of 1998 Regulation Impact of Discussions at the IMO on 1998 Regulation PART III: INTERNATIONAL LEGAL ISSUES OF THE PROTECTION AND PRESERVATION OF TURKISH STRAITS AND THE IMPACT OF THE CANAL ON SUCH PROBLEMS CHAPTER 9: PREVENTION OF POLLUTION OF TURKISH STRAITS Contamination of the Sea by the Sea Pollution Caused by Ships Effects of Oil Pollution on the Sea Measures Taken Against Marine Pollution Caused by Ship Pollution in Turkish Straits CHAPTER 10: INTERNATIONAL LEGAL REGULATION OF PROTECTION, PRESERVATION, AND PREVENTION OF POLLUTION OF TURKISH STRAITS Important International Conventions Relevant to Pollution in Turkish Straits International Convention for the Prevention of Pollution from Ships (MARPOL) Convention on the International Regulations for Preventing Collisions at Sea, 1972 (COLREG) 1954 International Convention for the Prevention of Pollution of the Sea by Oil (OILPOL) Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal (Basel Convention) Bern Convention on the Conservation of European Wildlife and Natural Habitats (Bern Convention) Ramsar Convention on Wetlands of International Importance (Ramsar Convention) 1957 Brussels International Convention Bucharest Convention on Protection of the Black Sea against Pollution Barcelona Convention for Protection of the Mediterranean Sea against Pollution (1976) CHAPTER 11: IMPACT OF THE CANAL ON LEGAL PROBLEM OF PROTECTING AND PRESERVING THE TURKISH STRAITS Authority of Coastal States with regard to Environmental Protection Measures Taken to Prevent Marine Pollution Arising from Ships in Turkish Straits Impact of the Canal Istanbul on the Legal Problem of Protecting and Preserving the Turkish Straits PART IV: INTERNATIONAL LEGAL REGULATIONS ENSURING SAFE NAVIGATION IN TURKISH STRAITS AND THE EFFECTS OF THE CANAL ON SUCH REGULATIONS CHAPTER 12: INTERNATIONAL LEGAL REGULATIONS ENSURING SAFE NAVIGATION IN TURKISH STRAITS AND THE CANAL Impact of the Bosporus on Vessel Accidents Navigational Systems to Provide Passage through the Straits Information Services Navigational Aids Ship Traffic Circulation Services Pilotage Charges Payable by Ships Passing through the Turkish Straits and International Cooperation Cooperation in International Straits PART V: INTERNATIONAL CONVENTIONS AND PRINCIPLES, AND MANAGEMENT OF THE CANAL ISTANBUL CHAPTER 13: PROBABLE INTERNATIONAL LEGAL PROBLEMS WITH THE CANAL ISTANBUL Geopolitical Importance of Turkish Straits Importance of Turkish Straits for Greece Importance of Turkish Straits for Bulgaria Importance of Turkish Straits for Romania Importance of Turkish Straits for Ukraine Importance of Turkish Straits for Russia Importance of Turkish Straits for Georgia Importance of Turkish Straits for Caucasia and Central Asian Turkic Countries Importance of Turkish Straits for the European Union (EU) Importance of Turkish Straits for United States Importance of Turkish Straits for Other Countries Reactions Against the Canal Istanbul by States that Border the Black Sea CHAPTER 14: THE PRINCIPLES OF PACTA SUNT SERVANDA, REBUS SIC STANTIBUS, AND MARE LIBERUM AND MANAGEMENT OF THE CANAL Pacta Sunt Servanda Clausula Rebus Sic Stantibus Mare Liberum Pacta Sunt Servanda, Rebus Sic Stantibus, Mare Liberum, and the Canal Istanbul CHAPTER 15: AN ALTERNATIVE TO THE "TRANSIT RULES" OF THE NEW CANAL Importance of Emerging Technology in Law of the Sea and a Comparison of Classes of Ship as Determined by the Montreux Convention with Ships of Today Possible Passage Regime in Event of Termination of the Montreux Convention New International Agreement and Legal Aspects of the Canal Istanbul Passage Regime Encouraging Tankers to Pass through the Canal Fees, Taxes, and Charges Navigational Safety in Canal Istanbul Pilotage Service in the Canal Istanbul Rules for Preventing Environmental Pollution CONCLUSION BIBLIOGRAPHY Books and Articles Conventions, Agreements, and Treaties Law and Regulations Cases Websites INDEX OF NAMES