A LEGAL ANALYSIS OF THE LATEST CONUNDRUM IN THE EASTERN MEDITERRANEAN SEA

IN DEPTH – Volume 17 Issue 5 – September 2020

Nicholas A. Ioannides
Adjunct Lecturer in International Law, University of Nicosia

Introduction

On 21 July 2020, the Antalya Navtex Station issued a navigational warning announcing the performance of seismic activities by the survey vessel ‘Oruç Reis’ until 02 August 2020. Eventually, the vessel did not leave the port of Antalya. However, on 10 August 2020, the Antalya Station issued another navigational warning for seismic surveys subsequently extended twice until the 12^th of September. This time ‘Oruç Reis’ was deployed and operated in a maritime area to the south of Kastellorizo, which Greece claims as part of its continental shelf according to the median line. This brief note aims at examining the aforementioned developments on the basis of international law.

The pertinent legal framework

First off, it should be made clear that, in principle, when a state issues a navigational warning for a maritime area that belongs to or is claimed by another state, that warning does not, per se, violate the sovereign rights of the latter; such an act is of a declaratory nature.[1] The circulation of a navigational warning does not entail either the acquisition of or the loss of sovereign rights/jurisdiction over a given maritime area. Besides, the competence of issuing navigational warnings falls within the ambit of duties the coastal state bears in its Search and Rescue Region (‘SAR’), which usually coincides with the Flight Information Region (‘FIR’). Notably, the foregoing regions are zones of responsibility not zones where the coastal state enjoys sovereignty/sovereign rights/jurisdiction.[2] However, the fact that Turkey transmits navigational warnings for areas that are not within its SAR entails that the Antalya Station is not authorised to do so and that creates risks in terms of the safety of navigation.

With respect to the capacity of islands to generate maritime zones, Article 121 of the 1982 United Nations Convention on the Law of the Sea (‘LOSC’), which is part of customary international law,[3] envisages that islands are entitled to all maritime zones, namely territorial sea, contiguous zone, continental shelf, exclusive economic zone (‘EEZ’). Nonetheless, when it comes to the delimitation of maritime boundaries, islands may receive reduced effect, namely the area accorded to them may be diminished. In any case, according to international jurisprudence, each delimitation case involving islands is unique and must be examined bearing in mind its own peculiar characteristics.[4]

Turkey invokes international jurisprudence in order to enhance its claim that Kastellorizo should be confined to a 6 nm sea enclave because it is situated in front of the way longer Turkish coast. Although international case law usually gives reduced or no effect to small, isolated islands in close proximity to longer continental lands,[5] we need to take into account that Kastellorizo is not an isolated island; it forms part of the geographical and administrative complex of the Dodecanese, which has always been treated as an integral whole.[6] Hence, in a future delimitation it is necessary to compare the length of the relevant Turkish coast with the sum of the lengths of the coasts of the Greek islands projecting in the relevant area (i.e. Kastellorizo, Rhodes, Karpathos, Kasos) taking into consideration that those islands belong to an indivisible group. Of course, that would increase the total length of the relevant Greek coast. Moreover, possible enclavement of Kastellorizo would probably generate security risks for the island. It should be stressed that international jurisprudence has also deemed security as a relevant factor in delimitation and for this reason in several cases has refrained from creating enclaves.

Additionally, the view that the entire maritime area between the Greek islands of the southeastern Aegean and Cyprus is ‘disputed’ is abusive. International law provides safeguards in order to avoid the characterisation of vast maritime areas as ‘disputed’. It is not legally sound to call an extended maritime area ‘disputed’ just because a state has put forward excessive claims.[7] A disputed area occurs when two or more states have overlapping legal entitlements.[8] For instance, a claim up to the median line (without ignoring islands) is legitimate and demonstrates good faith.[9] If a state makes maximalist assertions (i.e. exceeding the median line, ignoring islands), it would be more appropriate to use the term ‘undelimited area’.[10]

Furthermore, given that there is no delimitation agreement in place regarding the maritime area under consideration, the interested parties shall abstain from unilaterally carrying out activities (i.e. seismic surveys/drilling) that may exacerbate tension and jeopardise the reaching of a final delimitation agreement (Articles 74(3) and 83(3) LOSC). The only way to settle the matter definitively is to strike delimitation agreements and/or have recourse to an international judicial organ with a view to drawing a final maritime boundary.

Concluding remarks

In sum, it should be borne in mind that the mere issuance of a navigational warning on the part of Turkey does not entail a breach of the sovereign rights/jurisdiction of Greece and/or Cyprus. Such navigational warnings, though, are unauthorised and might cause confusion in case there is a need to conduct a search and rescue operation because Turkey publishes navigational warnings for an area in which it does not have any competence to perform search and rescue operations.

Notwithstanding the fact that islands are entitled to all maritime zones, it is likely that in the delimitation process, if the median line method is not applied, the width of those zones might diminish. Nevertheless, each delimitation case involving islands should be dealt with according to its own unique features. In the case of the Greek islands of the southeastern Aegean there are peculiarities, which must be closely examined prior to deciding the breadth of the maritime space to be accorded to them. On any account, the argument that Kastellorizo and the nearby Greek islands are only allowed to have a 6 nm territorial sea neither finds support in international law nor is justified by the relevant circumstances in the region.

Lastly, albeit the maritime area between the Greek islands of the southeastern Aegean and Cyprus cannot be considered as ‘disputed’ in its entirety, it should not escape notice that there are overlapping legal entitlements therein. Absent definitive delimitation agreements in the region, the interested states shall refrain from seismic surveys and drilling operations in undelimited areas lest they aggravate the dispute and put into jeopardy the prospect of a future delimitation.

[1] Accordance with International Law of the Unilateral Declaration of Independence in respect of Kosovo (Advisory Opinion) [2010] ICJ Rep 403; The Philippines v China Award [2016] paras 705-706.

[2] S. Trevisanut, ‘Search and Rescue Operations in the Mediterranean: Factor of Cooperation or Conflict?’ (2010) 25(4) IJMCL 523, 538.

[3] Territorial and Maritime Dispute (Nicaragua v Colombia) (Judgment) [2012] ICJ Rep 624, para 139.

[4] Delimitation of the Maritime Boundary in the Bay of Bengal (Bangladesh/Myanmar) Judgment, ITLOS Reports 2012, p. 4, para 317; Maritime Delimitation in the Caribbean Sea and the Pacific Ocean (Costa Rica v Nicaragua) and Land Boundary in the Northern Part of Isla Portillos (Costa Rica v Nicaragua) (Judgment) [2018] ICJ Rep 139, para 153.

[5] Maritime Delimitation in the Black Sea (Romania v Ukraine) (Judgment) [2009] ICJ Rep 61(Serpent’s Island); Bangladesh/Myanmar (n 4) (St Martin’s Island).

[6] Lausanne Peace Treaty (signed 24 July 1923, entered into force 06 August 1924) 28 League of Nations Treaty Series 11, art 15; Convention between Italy and Turkey for the Delimitation of the Territorial Waters between the Coast of Anatolia and the Island of Castellorizo and Protocol (signed 04 January 1932, entered into force 10 May 1933) 138 League of Nations Treaty Series 243.

[7] Letter dated 18 March 2020 from the Permanent Representative of Turkey to the United Nations addressed to the Secretary-General, A/74/757.

[8] Maritime Dispute (Peru v Chile) (Judgment) [2014] ICJ Rep 3, para 189; BIICL, Report on the Obligations of States under Articles 74(3) and 83(3) of UNCLOS in respect of Undelimited Maritime Areas (2016) 30–31.

[9] R C Beckman and C H Schofield, ‘Defining EEZ Claims from Islands: A Potential South China Sea Change’ (2014) 29(2) IJMCL 193, 211–212.

[10] BIICL Report (υποσημ. 8) 30-31.