The Mediterranean is an ancient sea with historical importance. The first warships and permanent fleets were invented on these waters. Historically, it has served as a naval connection between Northern and Southern civilizations. The Roman Empire’s economic stability was dependent on the uninterrupted supply of grain from Egypt through Mediterranean maritime routes, while peace in the Eastern Mediterranean always contributed to Europe’s political stability. Today, the recent discovery of hydrocarbon resources and the sea’s envisaged supply routes to Europe could be yet another example of history repeating itself. Similarly, the peaceful resolution of the ongoing conflict between Turkey and Greece would also help secure the stability and prosperity of today’s Europe.
However, the recent discovery of natural recourses did not only bring hope for the economic prosperity of the region, but also an escalation of tension and the risk of military confrontation between Turkey and Greece. The issuance of NAVTEX messages by Turkey, Cyprus and Greece in overlapping maritime zones along with the arrival of seismic vessels further exacerbated the dispute. With the recent maritime agreements between Turkey and Libya as well as Greece and Egypt, the conflict seems to have expanded. The ongoing maritime dispute underlines a continuation of the strategic importance of maritime security, navigation and the potential of natural resources in the region. While there is sufficient discussion on the military and political aspects of the problem, the legal definition of the dispute is of utmost importance.
Turkey-Libya maritime deal
Turkey and the Libyan Government of National Accord (GNA) signed a maritime delimitation agreement on November 27th, 2019. The agreement demarcates an Exclusive Economic Zone (EEZ) in the Eastern Mediterranean with a median line between the Turkish and Libyan mainlands. While the agreement has received strong support, even from the opposition parties in Turkey, it does not have a sound legal ground.
Coastal states have exclusive jurisdiction over economic activities on their respective EEZ, including the exploitation of natural resources and installation of artificial islands and platforms. Since the initial agreement was signed, this agreement was presented as if Turkey had expanded its economic jurisdiction and influence with a novel approach, had acted swiftly and had concluded the agreement with Libya before the Greek side acted. Turkish media argued that whenever the agreement is registered with the United Nations, it will be finalized, and the Greek side will lose a major maritime area. The rationale here is not only misleading for a number of reasons, but also contradicts the principles of international law.
First of all, in maritime boundary law, there is no room for gaining maritime areas thanks to a novel approach, seasonal good relations, through a fait accompli or just because a country acted first. According to the established case law, it is “coastal geography” that dominates the sea, not politically motivated agreements. A boundary with a neighboring state shall remain the same whether the bilateral relations are bitter or at their peak level.
Second, the agreement suggests the boundary shall consist of a median line between the Turkish and Libyan mainlands without taking into account the Greek islands in the Mediterranean Sea, including Crete, Karpathos and Rhodes. Any argument completely ignoring the entitlement of major Greek islands’ to an EEZ would not be recognized by any international court. Island with similar features with Crete, such as Sardinia, Corsica and Shetland, had full effect in maritime boundary delimitation. It is even safe to argue that Turkey does not have a maritime boundary with Libya.
Third, if the content of a treaty is at odds with the rules of international law, the registration of the agreement with the United Nations will not make it in compliance with legal norms. Registering with the U.N. does not approve or endorse the content of an international treaty, or render it binding for other states. The U.N. General Secretariat does not have any authority to legitimize an agreement. If there is a U.N. authority to decide upon a maritime boundary, it is the International Court of Justice, not the General Secretariat. A decision by the International Court of Justice would be a final and binding decision for all states involved in the dispute.
Fourth, a bilateral agreement can only be binding between signatory parties and cannot be claimed to be binding on third parties, including Greece and Cyprus. As per Article 34 of the Vienna Convention on Treaties, “A treaty does not create either obligations or rights for a third State without its consent.” Particularly in maritime delimitation law, it has been repeatedly held by international courts that parties cannot delimit overlapping boundaries unilaterally at the exclusion of other states that are likely to be affected. The validity of the delimitation with regards to other States cannot be dependent merely upon the will of the coastal state, but upon international law.
Fifth, entering a boundary agreement with a government whose legitimacy and future are questionable also does not correspond to the basic tenets of international law. Maritime boundaries have a permanent character. Once made, they shall not be changed, as in land borders. Currently, Libya is involved in a civil war and the international community has been divided in recognizing the ruling government. It is evident that the success of this maritime agreement depends on a government in Libya whose future is as bleak as that of the agreement itself. There is a strong possibility this agreement will be repealed if Libya’s GNA does not outlast the war, as was the case when controversial international agreements ratified by the Morsi Government in Egypt were voided when his short-lived rule ended. International law cannot afford changing maritime boundaries once every new government comes into power, and won’t tolerate borders becoming part of a political deal.
Another problematic aspect is the enforceability of the boundary agreement. The GNA government, which signed the agreement with Turkey, does not have control over the majority of Libyan territory. Even the Libyan coastline that “generates” the projection towards the Turkish mainland, which was the “alleged legal” basis for the agreement, is under control of Libyan opposition forces.
Recognition, more specifically whether the GNA is the sole legitimate power in Libya is another unsolved, but very significant issue. The Tripoli government is often referred to as the UN-recognized government in Libya. This does not reflect the full reality. Even though recognition by the UNSC is a strong statement, the UNSC is not entitled to recognize a state or government on behalf of the international community. Authority to recognize is given to other states and governments. States are the main actors in international relations, and there is no higher authority above them, including the UN. UNSC’s initiative shall be seen as an effort to bring about a peaceful resolution by way of giving power to GNA for the purpose of national stability, rather than dictating a “recognition” to international community. Moreover, as a result of the divided government, the Tobruk Parliament is refusing to ratify the treaty. Without approval from the legislature, the international agreement cannot enter into force nor become legitimate even in the initial stages.
Role of islands in EEZ delimitation
In the Eastern Mediterranean, Turkey and Greece both have excessive and maximalist maritime claims over their EEZs. The massive differences between these claims mainly emanate from different interpretations of the role played by islands in maritime delimitation. Greece claims to accord full effect to these islands and Cyprus, while Turkey attempts to restrict them with a territorial sea zone, but nothing more. On the one hand, if these islands are given the same effect as given to coastal mainland, which Greece claims for, the result of the delimitation would be devastating for Turkey and it would lose almost two thirds of its claimed maritime area. A contrary interpretation, on the other hand, would cut Greece’s claimed maritime zone almost into half.
The role of islands has been a complicated and controversial topics not only in the Eastern Mediterranean Sea, but also throughout the historical development of maritime boundary delimitation law. According to Article 121 of the U.N. Convention on the Law of the Sea, islands generate an EEZ like any other land territory. For example, Clipperton Island, a small, uninhabited French-owned island the size of a baseball field in the Eastern Pacific Ocean, generates a maritime zone bigger than the landmass of Belize, Honduras and El Salvador combined.
However, the fact that islands have the right to generate maritime jurisdiction, just like other land features, does not mean islands will be given the same effect as given to continental coasts when they overlap with mainlands. There is no clear guidance in the UNCLOS (United Nations Convention on the Law of the Sea) regarding the effect and role to be given to an island in maritime delimitation. Based on court decisions, in considering the weight to be accorded, the characteristics of the island (size, status, location, population, etc.) and its distorting effects on the delimitation line will be taken into account. Generally, when the islands are situated against a continental coast, they are often given a limited or partial effect. Only in rare circumstances, are islands given full weight or zero effect in delimitation of EEZ.
Turkey’s traditional stance regarding the Aegean and Eastern Mediterranean disputes claims that “islands on the wrong side - closer to other countries - cannot generate maritime jurisdiction beyond territorial sea.” In other words, in Turkey’s view, islands located on the opposite side of the provisional median line should be enclaved to a territorial sea zone, but nothing more. This claim is, prima facie, based on the previous decisions of the courts, however, with a weak analogy. The characteristics of the islands in the compared cases are significantly different from the situation in the Eastern Mediterranean Sea. For instance, Serpents’ island in the Black Sea Case is a very tiny rock formation, or Quitasueño and Serrana islands, in the Nicaragua v. Colombia Case, are isolated small insular features. Comparing these islands with Crete, a massive inhabitable island with over 600,000 permanent habitants, would go against basic legal interpretation methods. There would be no legal justification for mapping out these Greek Islands in a delimitation agreement in the area. Islands with similar characteristics, including Sardinia, Shetland, Mallorca, Canarias, Corsica and so on, are given considerable weight, both in state practice and jurisprudence. In light of the modern case law and court decisions, it is likely that Rhodes and Karpathos islands would be given around 2/3 effect in an adjudication. The island of Crete, however, should be expected to receive somewhere near full effect based on its location, size and massive population (Figure 1)
Similarly, Greece’s claim in giving full effect to Kastellorizo, and cutting-off Turkey’s southern projection will receive little credit from international law. The treatment of Kastellorizo island, situated a mile off the coast of Turkey, shall be different from other major Greek islands in the Eastern Mediterranean Sea. This island is more comparable to those “ignored” small islands in case law that are situated on the “wrong side” of the boundary with a significant distorting effect on the delimitation line (St Pierre & Miquelon Islands; and English Channel Islands). Based on state practice and ample evidence in jurisprudence, it should be expected that Kastellorizo will be entitled to an enclaved territorial sea and given no entitlement to an EEZ if a court is tasked to resolve the dispute. (Figure 1)
In maritime boundary delimitation in the Eastern Mediterranean, Cyprus shall be considered a sovereign State (whether as Turkish or Greek), and not to be treated as a dependent island situated on the “wrong side” of the border, as other Greek islands. Therefore, any attempt to enclave Cyprus to a territorial sea zone will receive no respect from an international court, as per the Libya v. Malta judgment. In the light of the “principle of proportionality” and the “principle of non-cut-off”, Turkey’s best chance is to argue a 2/3 effect be accorded to Cyprus in an EEZ delimitation in order to allow Turkey’s southern opening and coastal projection. (Figure 1)
Natural resources and the future of East Med Pipeline
Another major source of the current dispute in the Eastern Mediterranean Sea is related to hydrocarbon exploration by neighboring countries. Oil and gas exploration, particularly around the island of Cyprus, has often increased tension in the region.
Though energy security has a significant importance in international diplomacy, natural resources play a small role in the adjudication of maritime boundaries. International courts and tribunals have generally refrained from constructing delimitation lines on the basis of economic factors. It has been emphasized that geographical circumstances are paramount elements in delimitation processes, not economic factors.
The irrelevance of economic factors in delimitation processes is mostly related to the idea that the value of products in high demand today may tomorrow decline because of economic, technological and market changes. To draw a boundary on the basis of natural resources would imply that if these circumstances changed, the boundary would need to be reconsidered, which would contradict the principle of definite and stable maritime boundaries. However, economic activities may play an important, sometimes even decisive role, in negotiated delimitation agreements.
It is pertinent to mention the East Med Pipeline project, which is envisaged to connect Eastern Mediterranean energy resources to mainland Greece via Cyprus and Crete, shall not be affected from the potential outcome of EEZ delimitations in the Eastern Mediterranean Sea. As noted in Article 58 of UNCLOS, all other states, whether coastal or land-locked, enjoy the freedom of laying submarine pipelines and cables in a coastal state’s EEZ.
What is next?
In light of the current direction of developments, the resolution of the Turkey-Greece maritime dispute in the Eastern Mediterranean in the near future is unlikely. Both parties have extreme and excessive claims against each other and are not making meaningful efforts to resolve the issue amicably nor through bilateral diplomacy. Particularly the neo-nationalist and adventurous Turkish maritime concept of “Mavi Vatan - Blue Homeland”, which involves quite ambitious claims, does not bring further optimism to a settlement of the conflict (Figure 2). Also, the recent escalation of the dispute and the possibility of an undesired military confrontation remains yet another predicament for a peaceful resolution.
There is no prospect for a non-judicial resolution of the dispute through a Western mediator either. Turkey has already lost its confidence in a potential conciliation carried out by the EU or the US, and believes the EU is acting shoulder to shoulder with Greece and Cyprus in conspiracy against it. NATO’s recent involvement in the dispute is also only to prevent a potential military confrontation rather than to bring about a long-lasting resolution to the conflict. Due to its bitter relations with other neighboring countries, such as Egypt, Syria and Israel, Turkey will naturally be isolated from regional projects and endeavors in the near future, such as East Med Forum.
Carrying the dispute to an international court is also unlikely given the fact all parties have to give consent to the jurisdiction of a competent court. Accepting the jurisdiction of the International Court of Justice against Cyprus could mean Turkey recognizing RoC as an independent state. Similarly, Greece cannot face the risk of losing its massive maritime claims around Kastellorizo, which would be under serious risk if the case were brought to an international adjudication.
Against all odds, there is a window of opportunity for a peaceful resolution guided with the spirit of cooperation and legal experts who are proponents of friendship and prosperity in the region. The first condition should be excluding the military’s involvement in the decision-making process and filtering out extreme nationalist and maximalist elements from the negotiation process. A moderate Greek legal expert will agree that Kastellorizo cannot have full effect in EEZ delimitation, and a reasonable Turkish expert will concede that Cyprus and Crete cannot be enclaved into a territorial sea zone. Once a mutual agreement has been reached on these two extreme points, reaching a balanced and equitable delimitation line should not be impossible.
Figure 2 – Mavi Vatan - Blue Homeland (source: https://mavivatan.net/mavi-vatan-kavrami-ve-onemi/)