782.022/5–350
Memorandum by the Acting Assistant Legal Adviser for European Affairs (Tingling) to the Director of the Office of Greek, Turkish, and Iranian Affairs (Rountree)
Your memorandum of December 8, 19501 refers further to the Turkish plan for the laying of certain moored mines near the Black Sea entrance to the Straits.
This office’s memorandum of May 15, 19502 advised you that such a project was consistent with the provisions of the Montreux Convention of 1936 provided the mines did not interfere with complete freedom of passage of the Straits and navigation therein by merchant vessels. You ask for further consideration of the question in the light of statements in the British aide-mémoire of June 19, 19503 to the effect that the laying of such mines might involve the Turkish Government in legal controversy because mere knowledge of the existence of the mines might be considered a restriction on the complete freedom of transit guaranteed by the Convention in view of the sensitivity of public opinion to shipping dangers.
It seems apparent that for some reason other than those disclosed in the aide-mémoire the British Government does not desire the mining of the Straits at this time. The suggestion that the Turkish Government might become involved in legal controversy is undoubtedly influenced by that fact, particularly since the British Government agrees with the Department’s position that the laying of such mine fields would not constitute an infraction of the Montreux Convention nor general principles of international law concerning the right of innocent passage through territorial waters, and in view of its admission that it is technically possible entirely to obviate the risk of accidental discharge of the mines.
Your memorandum states that informal conversations with Navy Department officials indicate that they regard the mining of the Straits as extremely desirable. It is the view of this office that there is no substantial legal reason why such a project should not be carried out. In view of the specifically agreed right of Turkey to re-militarize the Straits so long as freedom of transit and navigation for merchant vessels is not interfered with and the admitted practicability of laying mines without, in fact, interfering with such transit and navigation, [Page 1340] the suggestion of the British that the mere knowledge of the existence of such mines interferes with freedom of transit and navigation borders on the fanciful and is inconsistent with the right to remilitarize. Carried to its logical conclusions such a view could result in the entire nullification of the right to re-militarize.
While no assurance against the possibility of legal controversies can, of course, be given since anyone is free to start a controversy of any kind, legal or otherwise, this office is of the view that there are no substantial legal considerations which would warrant this Government in discouraging the Turkish Government from going ahead with the project of controlled mining of the Straits.