In May last year, we lost Professor Rona Aybay who was one of the most valuable legal lecturers of our country.

When his wife Mrs. Sevinç (my dear sister Sevinç), whom I visited sometime after his passing away, told me that she had given our teacher Rona's books and writings to his students and friends to be kept as a souvenir and that she had devoted all his books and writings on Turkish Maritime to me, I felt both pride and sadness at the same time.

My teacher Rona has compiled all of the maritime issues into a single plastic file.

Handwritten information and documents related to Turkish Maritime had qualifications like a treasury.

I came across a very familiar handwritten article while I was reviewing the documents.

The article belonged to my teacher from Faculty of Maritime, Captain Gündüz Aybay, who passed away on September 27, 2001, and who was my brother, legal lecturer, and guide for as long as he lived.

I had never seen or read this article before.  The most current topic of our time was such an important article on the "Turkish Straits" that after the "104 Retired Admirals Declaration", valuable speakers in the visual press unconsciously uttered the word "International" for the Turkish Straits.

This extremely valuable scientific article, which contains very important details about the legal description of the Turkish Straits, was written shortly before his death but was never completed due to his illness.

With my deepest regards to his beloved wife Mrs.Meral Aybay, who allowed the article to be published...

Levent Akson  

Editor in Chief of ‘‘Deniz Mecmuası’’

 

"ARE THE TURKISH STRAITS INTERNATIONAL WATERWAYS?

Gündüz Aybay

I – TERM FOR A WATERWAY

In recent decades, the term "waterway" has been adopted as the equivalent of "fairway" in English in Turkish Maritime.

As close to each other, one of the few meanings of the English word fairway describes a clear, clean and neat section in a port, strait, passage, or river where ships can sail relatively safely.

To achieve this concept in Turkish Shipping:

-Navigable canal

-Navigable Strait terms, such as righteous (suitable) passage, were used; today, it is known as the waterway.

The word waterway is also used in English in a sense like the meaning of fairway mentioned above. We can say that waterway, unlike the fairway, describes more of a strait or passage that is suitable for ship navigation.

II – ARE THE STRAITS INTERNATIONAL WATERWAYS?

1) Statement of the Minister

Following the concerned statements made about the possibility of the Russian Federation agreeing to nuclear waste storage, it was reported in the press that our government discussed the issue on June 11, 2001. The following statement was published the next day by R.Mirzaoğlu, Minister of State in charge of maritime affairs (Cumhuriyet, June 13, 2001, p.3):

"According to the Montreux Convention, the Straits are international waterways. However, if Turkey detects a risk, the transition can be prevented."

The related minister makes three determinations in his brief statement regarding to the Turkish Straits.

(1) The straits are waterways.

(2) The Straits are international waterways.

(3) Turkey has the authority to prevent the passage of vessels through this international waterway that they are deemed dangerous.

This statement by a prominent politician is thought-provoking; it contains elements that must be addressed and corrected.

2) International Characterization

The adjective "international" is a common prefix:

● International Labour Organization (ILO)

● International Maritime Organization (IMO)

● International Airport

● International Criminal Organization

● We see the word used in a variety of phrases, such as internationally (at the level) well-known model.

It can be said, the term is also frequently used in the field of the Law of the Sea

● The Law of the Sea has an international character.

● International convention...

● It is the international voyage of the ship...

● International ship registry...

● International rules...

● International waters...

● Waterway open to international traffic...

Some of these uses are correct, while others are incorrect. Not every misuse is equally important, and not every mistake is equally important to every state. But sometimes a misuse can be extraordinarily important for a country. In terms of the topic we are discussing, there is a similar situation.

3) International Water

During the centuries, the division of the sea surface into different areas was not considered, and even though the seas were an important transportation route, no one thought to divide its surface. However, due to certain social/political/technical informational developments, sea surfaces were first classified as "territorial water - high sea"; today, this dual separation has turned into multiple separations, with terms like "contiguous zone" and "exclusive economic zone" are being used. Large sea surfaces that do not enter any subjective zone are also called "high sea". There is also the term "international water," which is said to be synonymous with "open sea," though it is not commonly used by maritime law experts. This is a common phrase among mariners.

In this usage, "international water" refers to the sea area, i.e. the "high sea", in which no state's sovereignty authority (right) can be in question.

In this regard, if a person says, "The waters of the straits are international water," he is implying that the sea area he specifies is subject to the high sea (international water). Many foreigners believe and say this, but it is concerning that those in a position to assert and demonstrate Turkey's sovereign authority over the Turkish Straits fall into such mistakes. People whose every word has the potential to have significant consequences in terms of international law and policy should treat carefully on such issues and listen to their advisors' suggestions and remindings.

III – PRINCIPLES TO BE CONSIDERED IN SPEECHES ON THE TURKISH STRAITS

1) Fundamental qualifying words or terms

The Turkish Straits are waterways; fairways; that is, they contain navigable sections on the sea.

In this sense, the Turkish Straits are waterways, but not "international waters".

According to the Montreux Convention articles, Turkey must put up with the passage of merchant and excursion vessels passing through the Turkish Straits. But putting up with this case (acquiescence, conniving) does not require us to call it an "international water" or an "international passage." In this respect, the straits can be described as "the strait open to international maritime traffic (navigation)".

2) Blocking the passage

The basic understanding reflected in the Montreux Convention is that any merchant and excursion vessels, regardless of flag or cargo, should be able to freely transit the Turkish Straits. (Complete freedom of passage and navigation; la liberté de passage et navigation) The concept of "free passage" here almost coincides with the concept of "innocent (harmless) passage," which has become clear in maritime law today. In this respect, it is not appropriate to understand Turkey's prohibition or obstruction of the passage of vessels passing through or wish to pass the Turkish Straits as a phenomenon that can be summarized as "she is creating a risk, so I will not permit to pass ". In accordance with the requirements of international politics, diplomacy, and law, we believe the following mode of expression should be used:

If Turkey determines that a foreign-flagged vessel wishing to pass through the Turkish Straits or is passing through them will cause or is causing harm to Turkey's peace, security, order, sea and air environment, it blocks the passage; if there are necessary provisions, it imposes sanctions.

Not to make pass the transit vessels coming from the Mediterranean to the Black Sea was the basic policy of the Byzantine Empire until the 13th century.

Die Häfen von Byzantion, Konstantinupulis, Istanbul – Wolfgang MÜLLER–WIENER translation, p.18’’