Nikolaos A. Ioannidis is a PhD candidate in Public International Law at University of Bristol.
Last month, Turkey submitted a note verbaleto the Secretary-General of the United Nations setting out the geographical coordinates of its continental shelf in the Eastern Mediterranean, as established by a delimitation agreement with the “Turkish Republic of Northern Cyprus” (“TRNC”). The agreement was signed on 21 September 2011 and ratified by the Turkish government on 29 June 2012. A map published by the Turkish Ministry of Foreign Affairs depicting the agreement is pictured below. (The reasons why the “TRNC” is in quotation marks will be elaborated below.) By transmitting this document to the UN Secretary-General, Turkey sought to achieve the publication of the agreed coordinates in the Law of the Sea Bulletin (LSB), where official submissions by states regarding the law of the sea are published. Although Turkey has not acceded the UN Law of the Sea Convention (‘LOSC’), it acted in accordance with article 84(2) LOSC (due publicity of charts or lists of geographical coordinates regarding continental shelf delimitation). Nonetheless, the submission of Turkey was not listed as an official deposit on the website of the Department of Oceans and the Law of the Sea (DOALOS).
The Turkish approach on the regime of islands
The delimitation agreement outlines some of Turkey’s longstanding positions on the law of the sea. It deals only with the continental shelf and does not provide for the delineation of an exclusive economic zone (EEZ). While there is nothing precluding coastal states from choosing which maritime zones to claim and/or to delimitate, Turkey’s choice not to delimit an EEZ with the “TRNC” alludes to the Turkish position that islands in certain regions (implying the Aegean Sea) should not be entitled to claim maritime zones of their own other than territorial sea or should have reduced capacity to generate such zones. This stance was formulated in the context of the dispute between Turkey and Greece concerning sovereignty over the maritime space of the Aegean Sea; since the 1970s, Turkey has sustained that the Aegean islands are situated on the continental shelf of Anatolia (Turkey) and, consequently, do not have a continental shelf of their own. This matter was an apple of discord between the Turkish and the Greek delegations over the course of the Third United Nations Conference on the Law of the Sea (‘UNCLOS III’). In the end, by virtue of article 121(2) LOSC, the Conference recognised the rights of islands to generate maritime zones. Article 121 LOSC reflects customary law (ICJ, Nicaragua v Colombia (2012), para 139) and, accordingly, applies to non-states parties as well.
Turkey’s resentment at the provisions on the regime of islands was one of the reasons it voted against and has not yet acceded to the LOSC (see Plenary Meetings 160 and 189). For the sake of clarity, it should be pointed out that when it comes to maritime delimitation, the maritime space an island can claim may be diminished depending on the circumstances (see, e.g., Anglo-French Arbitration 1977, Tunisia v Libya 1982, Black Sea Case 2009, Bangladesh/Myanmar 2012). Therefore, although in principle islands are not deprived of the rights bestowed on them by article 121 LOSC, they may not always be granted full effect in maritime boundary delimitations. However, islands cannot be denied their capacity to generate maritime zones and/or to be given decreased effect a priori;each case should be scrutinised according to its own unique terms. In any event, the Turkish argument that the Greek islands in the Aegean are located on the continental shelf of Turkey has been severely emaciated by the introduction of the EEZ concept and the prevalence of the “distance criterion” of maritime delimitation over the “geological” one. The distance criterion provides that the breadth of the maritime space afforded to a state should be calculated according to a fixed distance measured from the coast. The geological criterion, by contrast, would permit a state to claim the sea waters lying over the “natural prolongation” of its territory irrespective of the distance from its coastline. In the Nicaragua v Colombia case (2012), the ICJ put an end to the argument that one state’s islands cannot have their own continental shelf because they are located on another state’s continental shelf:
“The Court does not believe that any weight should be given to Nicaragua’s contention that the Colombian islands are located on “Nicaragua’s continental shelf”. It has repeatedly made clear that geological and geomorphological considerations are not relevant to the delimitation of overlapping entitlements within 200 nautical miles of the coasts of States.” (para 214).
The delimitation agreement
According to its well-established position that islands should not have the capacity to claim extended maritime zones when facing a bigger coastline, Turkey holds the view that Cyprus, being an island, has lesser effect in terms of maritime delimitation than the longer Turkish coastline, which is opposite the northern coast of Cyprus. Hence, as the agreement provides, the continental shelf delineation was carried out in accordance with equitable principles, resulting in a delimitation line closer to Cyprus at some points, which gives Turkey a more extensive maritime space than that allocated to the “TRNC”. Turkey was a fervent advocate of the equitable principles/relevant circumstances method during UNCLOS III, vehemently rejecting the median line/special circumstances method (UNCLOS III, Negotiating Group 7). The “equitable principles” method, which was elaborated in the 1969 Continental Shelf cases, stipulates that all relevant factors should be considered in order to reach an equitable result; however, the Court gave no further guidance as to how such an equitable result would be reached, rendering this method equivocal. Read the rest of this entry…