Troubled Waters in the Eastern Mediterranean

Turkey’s dispatch on August 10 of the seismic research vessel Oruҫ Reis under escort of five naval vessels into disputed waters of the Eastern Mediterranean is the latest salvo in the legal and rhetorical battle being waged in the region’s waters, with hydrocarbon extraction rights as the ultimate prize.  After a brief discussion of the actual deployment of the Oruҫ Reis and its consequences to date, this article examines the various maritime claims of the nations most involved in this dispute – Greece, Turkey, and Cyprus – and analyses both the challenges and the opportunities that exist in achieving an equitable apportionment between these nations of the continental shelf and the hydrocarbon resources contained therein.

The voyage of the Oruҫ Reis

Turkey initially announced that the Oruҫ Reis would embark on a seismic research voyage in disputed waters to the west of Cyprus on July 21; however, this voyage was suspended on July 28 as a de-escalatory gesture to allow for a more conducive atmosphere for negotiations with Greece regarding maritime entitlements and other issues.  However, likely in response to the Greek-Egyptian negotiation of a maritime boundary delimitation agreement between the two nations on August 6, Turkey went ahead with the Oruҫ Reis’s deployment on August 10.  This prompted an emergency summit of European Union ministers, after which EU High Representative Josep Borrell warned that the “serious deterioration” in the relationship with Turkey affected the whole bloc “well beyond the Eastern Mediterranean.”  France went a step further, deploying a frigate and two advanced fighter jets to the region in direct response to Turkey’s actions.  On August 12, a Turkish and a Greek warship – the former escorting the Oruҫ Reis, the latter closely observing her activities – collided, undoubtedly the product of close quarter manoeuvring and posturing by both navies.  On August 19, Greece’s National Security Advisor resigned after making comments that were not in line with the official Greek position, which is indicative of the gravity with which Greece views the situation.

The respective claims

The Republic of Cyprus (ROC), recognised by the United Nations and all other nations of the world except Turkey as the government of the entire island of Cyprus, has negotiated maritime boundary delimitation agreements with both Lebanon and Israel to the east.  In the disputed waters to the north, west, and south of Cyprus, the ROC negotiated a maritime boundary (EEZ) delimitation agreement with Egypt in 2003, and has also unilaterally declared the outer limits of its EEZ/continental shelf vis-à-vis Turkey, as shown in Illustration 1.

Illustration 1 (May 4, 2019 submission to U.N. by Republic of Cyprus)

As mentioned above, Greece signed a maritime boundary delimitation agreement with Egypt on August 6.

The Turkish Republic of Northern Cyprus (TNRC), which claims to be an independent State in the northern portion of Cyprus but is recognised as such only by Turkey, has negotiated a maritime boundary delimitation agreement between the island of Cyprus and Turkey.  This boundary appears to be closer to Cyprus than to Turkey, likely due to the disproportionate length of the respective coasts.

Turkey has unilaterally declared a continental shelf boundary with Egypt, and has negotiated a maritime boundary delimitation agreement with Libya.  The Turkish Foreign Ministry has issued a depiction of the planned operations of Oruҫ Reis that appears to show the full extent of its maritime claims, plus all of the claims and agreements discussed above except for the 2003 Cyprus-Egypt agreement (see Illustration 2)

Illustration 2 (Turkey Foreign Ministry, August 10, 2020)

Analysis of delimitation rules and their application in this matter

The TRNC is not a State, but rather a “legally invalid” secessionist entity of the Republic of Cyprus.  (UNSCR 550 (1984); UNSCR 541 (1983).    As a non-State, the TRNC is not competent to declare maritime zones, nor to negotiate international agreements.   However, until superseded, the maritime boundary it negotiated with Turkey constitutes the current de facto maritime boundary between the island of Cyprus and Turkey. 

All other factors aside, the southernmost extent of a continental shelf Turkey can legitimately claim is along a line equidistant between it and Libya and Egypt, which are presumably reflected in the agreement negotiated with Libya and in Turkey’s unilaterally declared continental shelf boundary with Egypt, respectively.  The real question is whether and to what extent Turkey’s actual continental shelf entitlement can ever reach that far south, due to the conflicting maritime entitlements of both Cyprus and Greece.

Turkey has attempted to dismiss these entitlements by asserting that “islands which lie on the wrong side of the median line between two mainlands cannot create maritime jurisdiction areas beyond their territorial waters.”  This contention is completely unsupported by UNCLOS Article 121(2), which reflects the customary international law rule that “islands, regardless of their size . . . enjoy the same status, and thus generate the same maritime rights, as other land territory.” (Paragraph 185, Qatar v. Bahrain, ICJ 2001).  The International Court of Justice (ICJ) has reaffirmed that the legal definition of an island embodied in Article 121, paragraph 1, and the maritime entitlements of an island embodied in Article 121, paragraph 2, are part of customary international law, and that “the legal régime of islands set out in UNCLOS Article 121 forms an indivisible régime, all of which . . . has the status of customary international law.”  (Paragraph 139, Nicaragua v. Colombia, ICJ 2012).  Thus, even though Turkey is not an UNCLOS State Party, these customary law principles embodied in UNCLOS Article 121 apply both to it and to this dispute.  Those principles establish that Cyprus and all Greek islands are entitled to a continental shelf to the same degree as any other land territory.  The net consequence of this is that despite Turkey’s wishes to the contrary, the equities of both Cyprus and Greece will have to be accounted for in any legitimate maritime boundary delimitation to the west of Cyprus.

Not only the legal regime of islands, but also the principles for delimiting the territorial sea and continental shelf boundaries of States with opposite or adjacent coasts, reflect and include customary international law. (Paragraph 183, Bangladesh v. Myanmar, ITLOS 2012; Paragraph 139, Nicaragua v. Colombia, ibid).  These principles require application of the equidistance/special circumstance rule for the delimitation of both the territorial sea and the continental shelf.  The equidistance line is the line every point of which is equidistant from the nearest points on the baselines from which the breadth of the territorial seas of each of the two States is measured.  The rule is applied by first drawing a provisional equidistance line, and then adjusting that line as warranted by special circumstances to achieve an equitable result.  In the absence of special circumstances, the drawing of equidistance lines from Turkey, Cyprus, and Greece would result in a tripoint from which equidistant maritime boundaries from all three nations would radiate.

Special circumstances that might create an inequity in this case include differential lengths of the relevant coastlines, but more problematically, a concavity that would have a cutoff effect on Turkey.  In paragraph 296 of the North Sea Continental Shelf case, the ICJ observed that “in the case of a concave or recessing coast . . ., the effect of the use of the equidistance method is to pull the line of the boundary inwards, in the direction of the concavity”, causing the area enclosed by the equidistance lines “to take the form approximately of a triangle with its apex to seaward and . . . ‘cutting off ’ the coastal State from the further areas of the continental shelf outside of and beyond this triangle.” Though Cyprus, Turkey, and Greece do not form a continuous coastline, nevertheless, their maritime entitlements collectively form a concavity that constitutes a special circumstance that could result in an inequitable cutoff to Turkish maritime entitlements.  Illustration 3 depicts the concavity in the North Sea and its cutoff effect on Germany as an example of the similar effect that would occur in this case.  Note that lines AC and BC are equidistance lines between Germany and, respectively, Denmark and the Netherlands; triangle ACB reflects Germany’s cut-off entitlement if strict equidistance is used; line CD reflects the agreed-upon border of Denmark and the Netherlands before the concave cutoff effect was rectified; triangle ABD reflects Germany’s belief as to how the cutoff effect should be dealt with; and the bold lines indicate where the final maritime boundaries were negotiated individually by Germany and, respectively, Denmark and the Netherlands.

Illustration 3 (from U.N. Handbook on the Delimitation of Maritime Boundaries)

Discussion of fora and prospects for resolution

By what means or forum could resolution of the continental shelf boundary issue in the area west and south of Cyprus occur?  Certainly not through any form of judicial or arbitral tribunal.  In the Aegean Sea Continental Shelf (Greece v. Turkey, ICJ 1978), Greece requested that the ICJ delimit the respective continental shelves of Greece and Turkey, and issue provisional measures to prevent either State from engaging in exploration or research with respect to the shelf in question during the pendency of the tribunal’s decision – the precise issues at play today.  Turkey disputed jurisdiction, and the tribunal agreed, resulting in the case being dismissed.  There is no reason to believe that Turkey would take a softer stance toward bringing the matter before a tribunal now than it took regarding the exact same issues in 1978.  And there is no way Turkey would agree to any tribunal deciding any matter between it and the ROC.

That leaves a negotiated settlement as the only feasible means of resolution.  Ideally, the three parties could negotiate a comprehensive “trijunction” agreement such as that between Poland, Sweden, and the USSR (1989) or between India, Sri Lanka, and the Maldives (1976).  However, while all three parties have expressed a willingness to negotiate, Turkey’s offer to pursue an “equitable delimitation of maritime jurisdiction areas” only extends to relevant coastal States “that it recognizes and with which it has diplomatic relations.”  That precludes negotiations with Cyprus, and thus, as long as Turkey maintains that posture, the possibility of a comprehensive, holistic resolution.

How might the interests of an absent Cyprus be accounted for in any bilateral negotiations between Turkey and Greece?  Historically, States that engaged in maritime boundary delimitation negotiations with respect to a boundary that implicated one or more other States, in the spirit of international comity, either ended the negotiated bilateral boundary at the tripoint reflecting the equidistance line of all interested States (U.S.-Cuba in 1977 (Bahamas absent); Colombia-Dominican Republic in 1978 (Haiti absent)), or just short of it (Spain-Italy in 1974 (France and Algeria absent)).  In fact, in their 2003 agreement, the ROC and Egypt expressly avoided extending their negotiated EEZ line into areas where the rights of absent third party States may be impacted (see p. 124 of the linked LOS Bulletin).  Greece may well insist on such an outcome with respect to an absent Cyprus in any bilateral negotiations with Turkey.  However, Turkey is unlikely to recognise any maritime entitlements of Cyprus at all.  And even if it were, with Turkey undoubtedly interested in a substantial deviation from equidistance to ease the cutoff effect, ending its negotiated maritime boundary with Greece at or just before an equidistant tripoint including Cyprus would go squarely against Turkey’s interests.

So, ironically, for Turkey to legitimately get what it wants – a maritime boundary on both sides that is adjusted to diminish the cutoff effect – it needs to negotiate with Cyprus, and specifically, the ROC.  Without that, though Turkey may get partial cutoff relief through an agreement with Greece, its maritime entitlement on the Cyprus side will be left unresolved.  Turkey would then have to either respect the equidistance line with Cyprus until there is a final resolution, or, more likely, continue pretending that Cyprus does not exist in terms of maritime entitlements, and do what it wants in disputed waters.  This latter course of action is and will continue taking Turkey further down the international pariah pathway, as evidenced by the strong condemnation from all quarters of its current exploratory activities.  And for what end?  The international community is unlikely to allow Turkey to actually extract hydrocarbons – its ultimate aim – from the seabed if it is done in a manner that appears to constitute stealing from either Greece or a hapless, bullied Cyprus.  Hopefully, this reality, coupled with the extraordinary goodwill Turkey could garner by ending the TRNC charade and treating the ROC as a sovereign equal, as called for by UNSCR 550 (ibid), will cause Turkey to re-think its position and draw back from its dangerous and unproductive behaviours.

Conclusion

Turkey’s “dangerous and unproductive behaviours” are most immediately manifested in the voyage of the Oruҫ Reis.  UNCLOS Articles 74 and 83, which reflect customary international law, admonish States that “[p]ending [a delimitation] agreement . . . the States concerned, in a spirit of understanding and cooperation, shall make every effort to enter into provisional arrangements of a practical nature and, during this transitional period, not to jeopardise or hamper the reaching of the final agreement.”  As the involved States work through the complex issues involved in achieving a negotiated resolution, they would be well served by adhering to this admonishment instead of engaging in dangerous and provocative behaviour, such as the voyage of the Oruҫ Reis, that inflame tensions, hamper the reaching of a final delimitation agreement, and could quite realistically result in armed conflict.