On Nov. 27, 2019, Turkey signed a maritime border agreement with Libya’s internationally-recognized Government of National Accord (GNA) for the delimitation of their Exclusive Economic Zones (EEZs), seeking to create a maritime corridor between the two countries, and creating 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 decided on a precise and equitable delimitation of their respective maritime areas in the Mediterranean in which the parties exercise sovereign rights and jurisdiction in accordance with the applicable rules of international law. The MOU also acknowledges the expectation of both countries to strengthen relations and encourage further cooperation.
Since the 18th century, the exercise of sovereignty over waters beyond a state’s coastline was limited to 3 nautical miles. Time, innovation, exploitations of maritime and subsoil resources, and ensuring territorial security have led states to feel compelled to extend their territorial waters and areas under their jurisdiction — namely the continental shelf and Exclusive Economic Zone (EEZ).
In 1982, the UN Convention on the Law of the Sea (UNCLOS), governing international law pertaining to the maritime activities and interests of different States, 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 nautical miles 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 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.
Where the maritime distance between two countries is less than 424 miles, a bilateral agreement is required to determine a mutually agreed-upon dividing line for the respect EEZs. 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 nautical miles from the natural coastline by virtue of Law 230/1936 as amended by Presidential Decree 187/1973. 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. The legislation which Greece established to ratify the UNLOS 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 nautical miles.” 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 nautical miles.
Turkey alleges that Greece has played a role in destabilising the Eastern Mediterranean by claiming ownership of approximately 39,000 square meters of maritime waters belonging to Turkey. According to Turkey, this move which aims to facilitate the EastMed gas pipeline project backed by Israel, Greece and Cyprus, violates international norms. This pipeline is expected to pass through the Libyan maritime zone, although Libya was not consulted.
Cyprus has also allowed international energy companies to undertake exploration activities in seas which it claims as its own EEZ, which met with disapproval by Turkey. From the Libyan perspective, the Greek claim of each island being entitled to an EEZ violates the rights of Libya, as it would place certain islands in areas under Greek control which Libya can also claim.
The UNCLOS is silent on linking the methods of delimiting contentious areas and achieving equitable outcomes. Much is left to judicial decision on what should be the best methods for this.
In Tunisia/Libya (1982) the court stated that delimitation is to be effected by agreement in accordance with equitable principles and taking into account all relevant circumstances. The court observed that equity (as a legal concept) arises from the idea of justice. Contrasting equity with the rigid rules of positive law would have 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 in close proximity to the Turkish mainland. To give the islands their own continental shelf would therefore be inequitable as Turkey would largely be deprived of a continental shelf.
Insufficiently elaborated analysis addressing the process of arriving at an equitable outcome suggests a lack of objectivity in terms of how decisions are made. As stated in the 1993 Jan Mayen case, accepting such lack of objectivity goes against the elementary principle of legal security. Recent jurisprudence suggests that the role of equity is limited in use, being confined to equitable considerations within the law as observed in Barbados/Trinidad and Tobago (2008). Judicial practice also indicates that non-geographical factors, such as state customs, historical rights and economic rights play a modest role in maritime delimitation cases, as discussed in Nicaragua/Honduras (2007). In the 2016 South China Sea Arbitration case (Philippines/China) the arbitration tribunal concluded that traditional fishing rights apply only to the territorial sea and archipelagic waters, but not to the EEZ.
Resolving the issue of disputed maritime borders in the Eastern Mediterranean is vital for regional peace and security. The Turkey/Libya agreement presents another challenge to the already strained relationship between Greece and Turkey. The agreement highlights the need for a more comprehensive approach towards determining a concrete framework for equitable delimitation.
The best avenue for conflict resolution between Turkey, Greece and other stakeholders should be peaceful consultations so that legal certainty can be achieved by concluding a bilateral agreement.
Ali Abusedra is Doctor of Law and Visiting Scholar in International Law at University of Hull, United Kingdom