On November 27th, 2019, Turkey and Libya’s internationally recognized Government of National Accord (GNA) signed a maritime border agreement for the delimitation of the Exclusive Economic Zones (EEZs) of both countries. The agreement, which is officially titled “Memorandum of Understanding between Turkey and Libya on Delimitation of the Maritime Jurisdiction Areas in the Mediterranean,” came into effect on December 8th, 2019. It seeks to create a maritime corridor between the two countries, extending across the Eastern Mediterranean from the northeastern Libyan coast to the southwestern Turkish coast. In doing so, it creates an avenue for Turkey and Libya to conduct joint natural gas exploration and drilling operations in the Eastern Mediterranean. According to the agreement, both countries have agreed on a precise and equitable delimitation of their respective maritime areas in the Mediterranean in which the parties exercise sovereignty and sovereign rights and/or jurisdiction in accordance with the applicable rules of international law, taking into account all relevant circumstances. It also confirms the willingness of both parties to arrive at equitable and mutually acceptable solutions through constructive negotiations and in the spirit of good and friendly negotiations. The MOU further states the expectation of both countries that the agreement will strengthen relations and encourage further cooperation between both parties. Libya has been faced with turmoil following the NATO-backed effort which ousted President Moammar Gadhafi in 2011. Political divisions have resulted in two main factions contesting power, one in Torbuk and the other in Tripoli, as well as several other heavily armed militia groups. Khalifa Haftar’s faction which is based in Torbuk is not recognized by the international community.
The deal has been met with opposition from Greece and Cyprus, which together with Israel are planning the establishment of a gas pipeline that connects gas from the eastern Mediterranean to European markets. Greek Prime Minister Kyriakos Mitsotakis has stated that Greece will block any European peace deal on Libya unless the maritime agreement is set aside. In an interview on the Greek television station ‘Alpha TV’, he described the agreement as “unacceptable and illegal” while indicating that he informed senior European officials of his intention to block a Libyan peace deal. Accordingly, he stated that at the European Summit Meeting level, Greece “will never accept any political solution on Libya that does not include as a precondition the annulment of this (the maritime) agreement….To put it simply, we will use our veto even before the matter reaches the summit, at the level of (EU) foreign ministers.” Egypt and the European Union (EU) has also opposed the deal, with the EU contending that it does not comply with the Law of the Sea, infringes on the sovereign rights of third states and cannot provide any legal consequences for third states. Turkey has contended however that the agreement protects Turkish rights arising out of international law.
In recent months, there has been considerable erosion in relations between Greece and Turkey due to disagreements on drilling rights and undersea exploration in areas of the Mediterranean Sea off the coast of Cyprus and off the southern coast of the Greek island of Crete. These areas are included in the Turkey/Libya maritime agreement and Ankara has sanctioned the exploration of waters which Greece and Cyprus consider to be under their control, including using warships to escort drill ships into waters which Cyprus claims it has exclusive economic rights over. On 2nd January, 2020, Greece, Israel and Cyprus concluded an agreement to build a 1,300 mile undersea pipeline, referred to as the ‘EastMed’ pipeline, which would transport gas obtained from new offshore deposits in the southeastern Mediterranean to continental Europe. This project has faced strong Turkish opposition, as a section of the EastMed pipeline passes through waters which Turkey has claimed through its deal with the GNA. With the Eastern Mediterranean yet to be delineated, this agreement ignores claims to maritime rights by other countries in the area, mainly Greece and Cyprus. It also brings to the forefront the issue of which parties can claim lawful access to the large deposits of natural gas situated within the area, estimated to be worth $70 billion USD. Although much of the gas is not located near to the coast of Turkey, but closer to Cyprus and Israel, Turkey has claimed the right to drill near Cyprus in territorial waters which are disputed. Unilateral actions by Cyprus geared towards facilitating the process of oil exploration has resulted conflict with the Turkish Republic of Northern Cyprus (TRNC) who have claimed their own EEZ. This has resulted in Turkey intervening on behalf of TRNC in order to dissuade efforts at oil exploration by Cyprus.
Legal Considerations
Since the eighteenth century, the exercise of sovereignty over waters beyond a State’s coast line was limited to 3 nautical miles (nm). With the passage of time, the advancement of technology and the undertaking of activities to exploit maritime and subsoil resources as well as to ensure territorial security meant that States felt compelled to extend their territorial waters, as well as areas under their jurisdiction – namely the continental shelf and Exclusive Economic Zone. The 1958 Convention on the Territorial Sea and the Contiguous Zone remained silent on the measurement for the maximum breadth of the territorial waters. However, the 1958 Convention on the Continental Shelf recognized the right to exploitation of hydrocarbons situated in the continental shelf. At present, the United Nations Convention on the Law of the Sea (UNCLOS) governs international law pertaining to the maritime activities and interests of different States. In 1982, the UNCLOS acknowledged the idea of the EEZ, whereby a coastal State assumes jurisdiction over the exploration and exploitation of marine resources in its adjacent section of the continental shelf, extending 200 nm from the shore. According to Article 3 of the 1982 UNCLOS, a State has the right to establish the breadth of its territorial sea up to a limit not exceeding 12 nautical miles (nm) from the coast. However, the country’s EEZ, in which that country can claim mining, drilling and fishing rights, can extend an additional 200 miles from the coast. In a situation where the maritime distance between two countries is less than 424 miles, a bilateral agreement is required so that a mutually determined dividing line for the respective EEZs could be determined. In the instance where the continental margin extends beyond 200 miles, a State may claim jurisdiction up to 350 miles from the baseline or 100 miles from the 2,500 meter depth line, or isobath.
In 1936, the territorial sea of Greece was set at 6 nm from the natural coastline by virtue of Law 230/1936 as amended by Presidential Decree 187/1973. In November 1973, the Turkish government designated fuel research zones to its State petroleum company in an area located between the islands of Lesbos, Limnos, Skiros and west of Samothrace, which are all Greek sovereign islands. The following year, Turkey extended this area to claim a new portion of the continental shelf located between the Cyclades and Dodecanese, another two group of islands. This was met with strong protests by Greece, but despite of this, Turkey proceeded to send vessels to the disputed area, with the possibility of armed conflict between the two countries escalating. From the Greek perspective, international law, particularly in terms of Article 6.2 of the Convention on the Continental Shelf provided the islands with jurisdiction over their continental self, while also stating that the continental shelf between two countries had to be defined in on a median line basis. This would therefore mean that each of the Greek islands situated in the Aegean Sea would have its continental shelf, while the borders with Turkey would be defined by virtue of the median line. Turkey however argued that the Greek islands are located on the Turkish continental shelf, and therefore possess no right to claim jurisdiction over the continental shelf. In this regard, the ‘special circumstances’ provided for by Article 6.2 of the Convention on the Continental Shelf justify the non-application of the median line method in this particular instance. With no progress in resolving the dispute, Greece submitted the issue for resolution at the International Court of Justice (ICJ) in August 1976. However, the ICJ declared itself incompetent to rule on the matter, with Turkey refusing to recognize jurisdiction of the court.
Disagreements have since progressed, with the conflict being aggravated by arguments pertaining to territorial claims. Turkey for instance has claimed that Greece can only exercise sovereignty on the islands that have been nominally ceded through treaty arrangements, while questioning the sovereignty of the island of Gavdos and the Imia/Kardak islets. At the time of ratifying the UNCLOS, Greece adopted the position that the time and place in exercising its right to extend the Greek coastline is a matter which arises from its national strategy. In addition to this proclamation, the legislation which Greece established to ratify the UNLOS, namely Article 2 of national Law 2321/1995, states that “Greece has inalienable rights under Article 3 of the Convention to extend at any time the range of its territorial sea to a distance of 12 nm.” In response to this, Turkey by unanimous resolution of its National Assembly (8/6/1995), granted the Turkish government the legitimacy to declare war against Greece, (Casus Belli) should Greece decide to extend its territorial waters beyond 6 nm.
Greece has expressed the view that Turkey’s declaration is a violation of the fundamental principles of the United Nations (UN) Charter, including Article 2(3) which provides that “All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice are not endangered”, Article 2(4) which states that Members shall “refrain from the threat or use of force against the territorial integrity or political independence of any State” as well as the Preamble which encourages good neighbourly relations and peaceful coexistence. Greece has further contended that Turkey’s resolution threatening war undermines the allied relations which ought to exist among North Atlantic Treaty Organization (NATO) Member States and goes against the basic principles by which NATO was founded. Turkey remains one of the few States which have not ratified the UNCLOS, although it has extended its coastal zone to 12 nm in the Mediterranean and the Black Sea, but not in the Aegean. Greece also contends that the delimitation issues concerning the Aegean are legal matters which ought to be arbitrated by an international court whereas Turkey insists that resolution is dependent on a political solution through bilateral negotiations, and therefore there is no need for settlement by means of the ICJ.
Turkey believes that its stance against Greece is justified since the majority of Aegean islands are under Greek sovereignty and occupy a total area of approximately 23,000 square kilometers, covering 10% of marine space. The Greek islands are scattered throughout the Aegean Sea and within close proximity to the coast of Turkey, such as the case with the islands of Chios, Kos, Lesbos, Rhodes and Samos. If the status of the territorial waters are determined by using the measurement of 6 nm, 8.8% of the Aegean would be under Turkish sovereignty, 35% under Greek sovereignty and 56.2% of the Aegean would be regarded as open sea, or international waters. In the event that the territorial waters are formulated to 12 nm, Turkey claims that access to the Aegean Sea would not be possible without permission from Greece and that the Aegean would become a closed sea. The Greek claim of each island having their own EEZ reduces Turkey’s EEZ and arguably distorts the rules of international law governing maritime delimitation. Turkey has one of the longest coastlines compared to other countries in the Eastern Mediterranean, thereby encouraging that country to explore for gas reserves in the region. Turkey also plays a role in defending the presence of the Turkish Cypriot government of Northern Cyprus, insisting that their permission is necessary prior to any drilling activities taking place.
Turkey has alleged that Greece has played a role in destabilising the Eastern Mediterranean by attempting to claim ownership of approximately 39.000 square metres of maritime waters which belong to Turkey. According to Turkey, this move which aims to facilitate Israel’s gas pipeline project backed by Greece and Cyprus, violates international norms. Cyprus has also allowed international energy companies to undertake exploration activities in seas which it claims as its own EEZ, with this action being met with disapproval by Turkey. From the Libyan perspective, the Greek claim of each island being entitled to their own EEZ also violates the rights of Libya. For instance, the Greek the island of Crete having its own EEZ means that it places one third of an area which Libya can claim under Greek control. In addition, the EastMed pipeline is expected to pass through the Libyan maritime zone, although Libya was not engaged for any consultation.
Conflict arising from the MOU
The MOU is significant to Turkey in that it defines the western EEZ/CS boundaries of Turkey in the Eastern Mediterranean. It also seeks to protect the continental shelf rights of both Turkey and Libya. It is also seen as a political response to the measures taken at isolating Turkey in the Eastern Mediterranean such as its exclusion from the East-Med Gas Forum. A main point for contention by Turkey regarding the UNCLOS is that the treaty grants significant rights to island territories, whereas Turkey claims maritime rights based on its continental shelf. Turkey’s position is that according to international law as evidenced by ICJ jurisprudence, there is no automatic claim for islands to generate a full EEZ/CS if their location distorts equitable delimitation or if there exists other special or relevant circumstances. Turkey has made this position clear since 2004 and registered it with the UN. In this regard, Turkey holds the legal opinion that Cyprus and the Greek islands cannot generate a full EEZ/CS under international law because they distort equitable delimitation. Turkey also holds the view that maritime claims by Greece and Greek Cypriots are maximalist in that they are based on the entitlement of islands to an EEZ/CS whereas entitlement and delimitation are different matters. As such, if the presence of an island distorts equitable delimitation, it may be given a reduced EEZ/CS. As stated by Turkish President Recep Tayyip Erdogan, “Other international actors cannot conduct exploration activities in the areas marked in the (Turkish/Libyan) memorandum. Greek Cypriots, Egypt, Greece and Israel cannot establish a natural gas transmission line without Turkey’s consent.”
The Greeks and Cypriots view the Turkey/Libya agreement as a challenge to their EEZs, with Greece contending that the agreement ignores the presence of Crete and its EEZ which stands between Turkey and Libya. Turkey has also deployed two drilling ships to the western and eastern sides of Cyprus. The Fatih is operating inside an area which Cyprus claims to be its EEZ while the Yavuz is operating in the vicinity of the Karpas Peninsula, in an area claimed by the Turkish Republic of Northern Cyprus, which is only recognized by Turkey. The Turkish seismic ship Barbaros Hayreddin Pasa is also undertaking operations to the south of Cyprus in an area where Cyprus has already issued a license to Italian multinational energy company Eni. Turkey claims that its activities are legitimate because the exploration licenses were granted by the Turkish Republic of Northern Cyprus, and that its actions are defending the rights of Cypriot Turks.
The evolution of international law has to date not assisted with the resolution of the dispute. The UNCLOS confirms the Greek stance that coastal states could extend the area of their territorial waters to 12 nm, but also strengthened the Turkish position in its removal of references to the ‘median line’ in the delimitation of the continental shelf. As provided by Articles 74 and 83 of UNCLOS, the delimitation of the territorial waters and the EEZ should be effected by agreement on the basis of international law in order to achieve an equitable solution. While it may be argued that this notion can be considered as customary under international law, as mentioned, Turkey has opted not to sign the UNCLOS. Although Turkey has the longest coastline in the region, and despite Ankara expressing willingness to open dialouge with various countries in the region, it claims that there have been no efforts at consultations with that country on drilling activities.
Equitable Considerations
The UNCLOS, although providing a basic principle in that of the achievement of an equitable outcome, appears to be silent on making a link between the methods of delimitating contentious areas and achieving such equitable outcomes. Therefore, much is left to judicial decision on what ought to be the best methods for conducting the delimitation. In this regard, the jurisprudence of the ICJ and more recently, the International Tribunal for the Law of the Sea (ITLOS) have attempted to define the ideas of equidistance/special circumstances for the delimitation of the territorial sea, and the equitable principles/relevant circumstances for the continental shelf and EEZ, which generally involves tracing a provision median line to determine if the result is equitable. Judicial practice has however indicated that non-geographical factors, such as State customs, historical rights and economic rights play a modest role in maritime delimitation cases, as was discussed in the 2007 Nicaragua/Honduras case. Security concerns also play a limited role in maritime delimitation as was discussed in the Barbados/Trinidad and Tobago case (2008). Furthermore, in the 2016 South China Sea Arbitration case (Phillipines/China) the arbitration tribunal concluded that traditional fishing rights apply only to the territorial sea and archipelagic waters, but are not applicable to the EEZ.
In the 1969 North Sea Continental Shelf case, the ICJ held that delimitation must be the object of an agreement between the States concerned, with this agreement expected to be arrived at in accordance with equitable principles. In this particular case, the court departed from the strict application of the equidistance method for delimitation, which could give rise to an unjust situation. In the Tunisia/Libya case (1982) the court stated that delimitation is to be effected by agreement in accordance with equitable principles and taking into account all relevant circumstances. In this case, the court observed that equity as a legal concept arises from the idea of justice, and the court, whose task is to administer justice, is bound by it. The court went on to state that contrasting equity with the rigid rules of positive law has no parallel in the development in international law, where the legal concept of equity is a general principle directly applicable as law. Turkey has invoked this reasoning from the Tunisia/Libya case to support its view that the Aegean is a semi-enclosed sea containing many Greek islands which are located within a small area, and within close proximity to the Turkish mainland, with some being just three miles away. In this regard, an inequitable result would therefore be created where the islands are given their own continental shelf as this would mean that the Turkish mainland would largely be deprived of a continental shelf for itself.
The issue exists however of vagueness in the process of arriving at an equitable outcome, and insufficiently elaborated analysis addressing this in the jurisprudence has suggested a lack of objectivity in terms of how decisions are made. As discussed by the court in the Jan Mayen case, to accept any such lack of objectivity would be acting against the elementary principle of legal security. Recent jurisprudence suggests that the role of equity has been limited in its use in terms of being confined to equitable considerations within the law. In Barbados/Trinidad and Tobago (2008) for instance, the Tribunal felt that it was required to exercise its judgment to decide on a line which was equitable and practically satisfactory as possible while keeping with the requirements of achieving a stable legal outcome.
Conclusion
Resolving the issue of disputed maritime borders in the Eastern Mediterranean is vital for regional peace and security. The Turkey/Libya agreement has presented another challenge to the already strained relationship between Greece and Turkey. The agreement brings to the forefront the need for a more comprehensive approach towards determining a concrete framework for equitable delimitation. The most appropriate avenue for conflict resolution between Turkey, Greece and other stakeholders in the region should be peaceful consultations so that legal certainty can be achieved by concluding a bilateral agreement.
From the birth of the continental shelf doctrine, the argument has existed that because of inconsistencies in geographical features, it would be difficult to apply fixed universal rules to regulate the formulation of maritime boundaries between States. Considering the geographic proximity of Turkey, the Greek islands and Cyprus, Turkey’s EEZ and continental shelf would be limited when the UNCLOS principles are applied. It is notable that within the UNCLOS there is the absence of a systematic approach in determining the equitable criteria that ought to be taken into account in the maritime delimitation process. In fact it can be contended that because of the uniqueness of each factual situation, the possibility of formulating a universal system is almost impossible. Instead, in considering the role of equitable criteria, such criteria should only be ascertained in relation to the circumstances of each case as it might be possible to arrive at conflicting outcomes if this is not done. The counter-argument exists that a rule which is applied on a case by case basis depends on matters such as distributive justice and the discretionary power of the judge. In itself, this is a problem not confined to the delimitation of maritime boundaries as the clash between ‘particular justice’ and ‘universal justice’ is a legal problem in general.
With the EU Parliament Committee voting to suspend accession talks with Turkey in February 2019, the fallout arising from the conclusion of the MOU would have placed any possibility of Turkey being granted EU membership into further jeopardy. For Turkey to be admitted into the EU, it would need to adhere to the ‘Copenhagen Criteria,’ one of which is the “determination to solve eventual border controversy in conformity with the principle of peaceful settlement of disputes as stipulated in the United Nations Charter, including, if applicable, the recognition of the authority of the International Court of Justice.” Turkey’s admission to the EU is also dependent on it aligning its ideologies to those of the EU, which implies that Turkey would need to observe the principles contained in the UNCLOS. For now this appears unlikely, with the Libya/Turkey agreement having appeared to give rise to claims that the rights of States in the region are being infringed due to the MOU. Although Turkey is not bound by the principles for delineation of maritime boundaries as outlined in the UNCLOS, both Turkey and Greece are still required under customary international law to negotiate in good faith with all relevant parties.