MARITIME BOUNDARIES: YOU MAY NOT WANT TO PLAY BUT YOU HAVE TO SHARE

VOLUME 17 ISSUE 6 December 2020

Marianna has a BSc in Accounting, an MBA in Information Technology, a Juris Doctorate in International Law and an LLM in Oil and Gas. She has worked in several States in the US and countries in Europe as both Regulatory Affairs and Legal Director for multinationals at local, regional and Europe level. This contribution is based on her publication in the European Energy Journal: The Settling of the Boundaries in the Mediterranean: You may not want to play but you have to share, 2013/2 EEJ 64 and on her LLM dissertation.

Recent discoveries of gas in the Eastern Mediterranean brought the region into focus both because of the magnitude of the potential discoveries and the presence of geopolitical conflict. Turkey’s assertions in the Eastern Mediterranean prevent other States from mutually agreeing and conclusively settling the delimitation of their boundaries. Turkey’s stance ‘is a general power move that places Turkey at odds with the international system of maritime claims … Turkey is registering non-acceptance of maritime claims in EASTMED in general’.[1] It refuses to adjudicate the matter and threatens military action in the event of any agreement. Does Turkey’s stance mean that the Eastern Mediterranean maritime boundaries will remain unsettled?

A Way Forward

This note proposes two possible solutions to overcome the stalemate. First it suggests that an advisory opinion by the International Court of Justice (ICJ) on the maritime boundaries delimitation in the Mediterranean is sought. Second and concurrently with the first suggestion, Greece and Cyprus should bring a case to the ICJ for a ruling on the maritime boundaries of the two countries.

The Statute of the ICJ prescribes the Court’s function as dual: an advisory instrument to the General Assembly, the Security Council and the different UN organs, and the world court to disputes between states.[2] In contentious cases, Article 36(1) states that the ‘jurisdiction of the Court comprises all cases which the parties refer to it and all matters specially provided for in the Charter of the United Nations or in treaties and conventions in force.’ However, jurisdiction cannot attach without the consent of the State.

The Court’s advisory opinions whilst not binding do nonetheless carry great legal weight and moral authority. Turkey’s gunboat diplomacy in the region creates tensions which could risk war, an eventuality not beneficial to anyone. In the name of peace, the affected states should lobby the Security Council to request an ICJ advisory opinion on how the delimitation of the boundaries should be drawn. Consent by the affected party in this case is not considered necessary.

Despite Israel’s jurisdictional objectives, in its 2003 Wall Opinion[3] the Court issued an opinion following a request by the General Assembly regarding ‘the legal consequences arising from the construction of the wall being built by Israel, … in the Occupied Palestinian Territory … considering the rules and principles of international law … and relevant Security Council and General Assembly resolutions?’[4] In rejecting Israel’s arguments and asserting an expansive jurisdictional attitude the Court held:

The Court’s reply is only of an advisory character: as such, it has no binding force. It follows that no State, whether a Member of the United Nations or not, can prevent the giving of an Advisory Opinion which the United Nations considers to be desirable in order to obtain enlightenment as to the course of action it should take.[5]

Note that for the first time in more than fifty years the Court was able through its advisory function to address a number of legal issues regarding the applicability of the law and whilst the Opinion is only of an advisory character it went a long way acting as preventive diplomacy.

The second suggestion is consistent with the 1985 case of Libya v Malta.[6] It is suggested that Greece and Cyprus come to a special agreement and request the Court to articulate the law applicable in the determination of their boundaries. As jurisdiction will be clearly manifested by all the States parties to the dispute the case will be entered in the Court’s General List of cases.[7] Next the Court’s Registrar will under Article 42 ‘transmit copies … to: (a) the Secretary-General of the United Nations; (b) the Members of the United Nations; (c) other States entitled to appear before the Court.’[8] At this point Turkey will be informed of the case at hand and will have the right to intervene.[9] ‘Should a state consider that it has an interest of a legal nature which may be affected by the decision in the case, it may submit a request to the Court to be permitted to intervene’.[10]

It is unlikely that Turkey will intervene on the merits and will object to the Court’s jurisdiction to hear the case. However, the Court does have jurisdiction over Cyprus and Greece and nothing stops it from ruling on the boundaries of these countries as long as it does not rule on the outer limits of the boundaries the location of which affects the legitimate [emphasis added] interests of third parties.[11]^,[12] In the case of Libya v Malta, the Court held that it will not ‘define the legal principles and rules applicable to any delimitation between one or other of the Parties and any third State’.[13] Nonetheless it is hereby argued that by determining the boundaries in the areas where the Court’s jurisdiction is clear it will still go a long way in settling uncertainty in the area.

It is argued that a business entity will refrain from exploring in any of the areas that the Court declared as belonging to a particular State without the express permission of that State. It is possible that Turkey will instruct its national oil company to explore in areas delimited within the boundaries of other States. However, under the doctrine of acta jure gestionis the immunity enjoyed by the State is not extended to acts of commercial nature performed by public companies on their behalf.[14] An aggrieved state would be able to sue both Turkey and its national oil company in its own courts and may secure an international judgement and attach company assets outside Turkey.[15]

[1] Dyer J., ‘Seas without a Sheriff’ 31 October 2011,

http://theoptimisticconservative.wordpress.com/2011/10/31/seas-without-a-sheriff/ likening Turkey to China, accessed 4 August 2012

[2] Charter of the United Nations, Chapter XIV Article 96 and Article 92

[3] Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I. C. J. Reports 2004, p136 (the Wall Opinion)

[4] Regarding the history of the UN deliberations leading to the question being submitted to the Court see generally, Aljaghoub, M. The Absence of State Consent to Advisory Opinions of the International Court of Justice and Political Restraints, Reflections on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion of 9 July 2004, Arab Law Quarterly 24 (2010) 197-207 (Aljaghoub No Consent)

[5] The Wall Opinion [47]

[6] Continental Shelf (Libyan Arab Jarnahiriya/Malta), Judgment, I. C.J. Reports 1985, p.13

[7] Court Rules Article 38[5]

[8] Court Rules Article 42

[9] Court Rules Article 81

[10] ICJ Statute Article 62

[11] Qatar v Bahrain [221] where the Court noted that it will refrain from fixing a delimitation line in the outer points where the interests of Saudi Arabia are involved.

[12] Libya v Malta [20]

[13] ibid

[14] Jurisdictional Immunities of the State (Germany v Italy: Greece Intervening) Judgement ICJ General List No 143 2012 [59]

[15] The law regarding state immunity in this context is beyond the scope of this paper