A LEGAL APPRAISAL OF THE TURKISH DRILLING ACTIVITIES IN THE CONTINENTAL SHELF/EEZ OF CYPRUS
Nicholas A. Ioannides
PhD Public International Law (University of Bristol)
Introduction
In the aftermath of the 2003 Egypt-Cyprus EEZ delimitation agreement and the ensuing maritime activities of the Republic of Cyprus within the context of its energy programme, Turkey has repeatedly expressed its objections to any developments purportedly disregarding its own maritime rights, as well as the rights of the Turkish Cypriots over the natural resources of the continental shelf/EEZ of the Republic of Cyprus. Therefore, in the light of the hydrocarbon discoveries offshore Cyprus, Turkey has endeavoured ‘to kill two birds with a stone’, namely to stave off Cyprus’ energy programme on the one hand and pursue its own energy goals on the other. The intermittent deployment of survey vessel ‘BARBAROS’ since 2013 and the ongoing activities of drillships ‘FATIH’ and ‘YAVUZ’ in Cyprus’ continental shelf/EEZ and territorial sea are part of this strategy. Nevertheless, the aforementioned activities are in breach of international law, as well as Cyprus’ sovereignty, sovereign rights and jurisdiction over its maritime zones.
The Turkish drilling activities
On 04 May 2019, in an unprecedented move, the drillship ‘FATIH’ was established at a distance of 36.6 nm off the western coast of Cyprus and started drilling a few days later. On top of that, Turkey dispatched a second drillship called ‘YAVUZ’ to the south of the Karpasia peninsula on 08 July 2019, at a distance of about 10 nm from the coast. At the same time, the ‘BARBAROS’ returned in the sea waters to the south of Cyprus in order to carry out additional seismic surveys (Figure 1). Notably, both drillships and the ‘BARBAROS’ were accompanied by Turkish warships.
As expected, this ignited a vehement reaction by Cyprus, which protested against those activities to the UN[1] and sought support from its EU partners. Furthermore, as a response to the deployment of ‘FATIH’, Cyprus deposited with the UN a list of geographical coordinates concerning the northern and northwestern outer limits of its continental shelf/EEZ (Figure 4).[2] Of course, unilateral delineation of the outer limits of maritime zones is not opposable to any state. Nonetheless, it appears that Cyprus’ aim was to illustrate visually its claims based on the median line in order to strengthen its argument that ‘FATIH’ was operating in the Cypriot continental shelf/EEZ.
On its part, the EU dealt with the matter at the European Council meeting held in June 2019[3] and apart from condemning Turkey’s activities it also, for the first time, contemplated the possibility of taking measures against Turkey.[4] Furthermore, in a meeting on 15 July 2019, the EU Council of Foreign Affairs decided to impose measures on Turkey owing to the latter’s failure to conform to the European Council call to cease its illegal activities.[5] By way of response, Turkey the Turkish Government stated that the EU is biased towards Turkey but this will not prevent the latter from pursuing its energy programme in the Eastern Mediterranean. It is also worth mentioning that Turkey expressly rejected Cyprus’ invitation for the commencement of negotiations aiming at the delimitation of their maritime zones restating that it does not recognise the government of the Republic of Cyprus.[6]
The pertinent legal framework
With respect to the ‘FATIH’, given that it is located within Cyprus’ continental shelf/EEZ, Turkey violates Articles 56(1)(b)(i), 60 and 80 of the 1982 United Nations Convention on the Law of the Sea (‘LOSC’ or ‘the Convention’) envisaging that only the coastal state has sovereign rights and jurisdiction concerning the establishment and operation of installations and structures on its continental shelf and in the EEZ. Furthermore, the performance of drilling operations by the ‘FATIH’ are in breach of Articles 56(1)(a), 77 and 81 LOSC. It is worth mentioning that all the foregoing provisions of the LOSC are binding upon Turkey by way of customary international law, since the latter is not a party to the Convention.
Turning to the ‘YAVUZ’, it should be borne in mind that its drilling activities constitute a more serious violation. As the ‘YAVUZ’ operates within the Cyprus’ territorial sea the performed drilling contravene the latter’s sovereignty. Moreover, it should be pointed out that Turkey, as an Occupying Power, is not entitled to exploit the natural resources of the occupied areas of Cyprus, by virtue of the rules on belligerent occupation. Lastly, the illegal conduct of Turkey has triggered its international responsibility, hence the latter is under an obligation to cease its unlawful activities and make reparations to Cyprus.[7]
Conclusion
In light of the above, it goes without saying that Turkey has been attempting to ratchet up tension in the Eastern Mediterranean Sea with a view to gaining political and energy advantages. However, Turkey’s drilling activities offshore Cyprus run afoul of a gamut of conventional and customary rules of the law of the sea. Moreover, by virtue of the rules on state responsibility, Turkey is under an obligation to abandon its wrongful conduct and pay damages to the Republic of Cyprus. Even though the possibility of a judicial settlement of the above disputes is virtually non-existent, it is important to stress that international law supports the interests and safeguards the sovereignty, sovereign rights and jurisdiction of the Republic of Cyprus over its maritime zones.
[1] Letter dated 11 July 2019 from the Chargé d’affaires a.i. of the Permanent Mission of Cyprus to the United Nations addressed to the Secretary-General, UN Doc A/73/944-S/2019/564.
[2] Deposit by the Republic of Cyprus of a list of geographical coordinates of points, pursuant to article 75, paragraph 2, and article 84, paragraph 2, of the Convention (07 May 2019)
https://www.un.org/Depts/los/LEGISLATIONANDTREATIES/PDFFILES/mzn_s/MZN.144.2019.LOS-Cyprus.pdf.
[3] The EU had already expressed its concerns over the planned drilling by Turkey in Cyprus’ EEZ few months before they took place. Press statement following the 54th meeting of the Association Council between the European Union and Turkey, Brussels, 15 March 2019 (15 March 2019).
[4] European Council conclusions (20 June 2019) para 17 (emphasis added).
[5] EU Council of Foreign Affairs conclusions (15 July 2019) paras 1-2, 4 (emphasis added).
[6] Ministry of Foreign Affairs of Turkey, Press Release (16 July 2019)
http://www.mfa.gov.tr/no_206_-ab-disiliskiler-konseyi-nin-aldigi-kararlar-hk.en.mfa.
[7] International Law Commission, ‘Articles on Responsibility of States for Internationally Wrongful Acts’ with commentaries (53rd Session, 2001) UN Doc A/56/10. Reproduced in YBILC, Vol II (2001) art 30.