Legal Aspects of the Demarcation of Maritime Zones in the Eastern Mediterranean

At least since the outbreak of troubles on Cyprus in the 1950s, the Eastern Mediterranean question—an interrelated set of disputes concerning Cyprus, the status of certain islets or rocks, and maritime and airspace borders—has been, in one aspect or another, a continuous facet of diplomatic life. The Eastern Mediterranean dispute has also had a considerable bearing on other, broader questions, be it European enlargement, Turkey’s role as a status quo or revisionist power, the placement of bases, or, for citizens, the humdrum questions of getting a visa or getting paperwork done for property. Istanbul, for instance, has had many properties owned by ethnic Greeks who now live elsewhere.

So, it is worth addressing the Eastern Mediterranean question—and to do so from a legal perspective. For one thing, anyone who cares about international law must surely be interested in the legal merit of arguments. A look at the legal merits of the arguments is also useful for the governments: it is in the interest of governments making a case to know how far their arguments hold water and so how far they will be entertained and how far to press them; it is useful for the governments being addressed by the arguments to pay attention to the legalities of the arguments to get an idea of the reasonableness and motives of the parties concerned. Attention to legalities is particularly important, as the discourse occurs within a legal frame—as it must in legalistic dispute-resolution ecosystems such as those of the European Union and the United Nations.

Current discourse is characterised by accusations by Greeks and Greek Cypriots against Turks and Turkish Cypriots, accusing them of illegalities. Turks and Turkish Cypriots, for their part, do make their own accusations, but they get less of a hearing; they invariably find themselves cast in a less sympathetic light these days—a situation, it must be admitted, for which Turks and Turkish Cypriots themselves bear their share of responsibility.

The current line of accusation—illustrated very well in an article by the former Cypriot High Commissioner to the British Government, The Eastern Mediterranean: Cyprus and the Geopolitics of Turkish Irredentism by Euripides Evriviades—is that Turkey is encroaching on the rights of Greece and Cyprus; that it is thereby transgressing international law, particularly as regards the United Nations Convention on the Law of the Sea (UNCLOS)—there is an additional allegation that this forms part of a Turkish irredentist policy.

A full appraisal of these claims would, of course, require concluding who is right and who is wrong about the Cyprus problem, in all its aspects. It would also require reaching a conclusion about whether certain islets remain unceded by Turkey to Greece. Those questions have, however, been addressed elsewhere, and they end up becoming discussions about the minutiae of treaty interpretation and unilateral state secession. They are thus beyond this paper’s scope.

This paper will seek to address only the most salient aspect of the Eastern Mediterranean problem, that which occasioned recent tensions in 2020: the question of maritime boundaries and exclusive economic areas. This paper examines Greek claims and Turkish counterclaims. It concludes that neither is clearly prescribed nor clearly proscribed by international law. The difficulty is not so much that one side is acting unlawfully, but that the applicable legal framework does not firmly establish things one way or the other. Neither Turkish nor Greek claims are prescribed nor proscribed by international law. The attempt at making these claims betrays not irredentism but rather an opportunistic assertiveness. Still, it would be better, however, for both the interests of the countries concerned and those of their NATO allies—and more in line with the spirit of international law—if such swagger were replaced by neighbourly collaboration.

The Seville Map

The document behind recent tensions is the Seville Map. It was drafted by Professor Juan Luis Suárez de Vivero of the University of Seville to illustrate maximal Greek and Cypriot claims. It treats Greek and Cypriot islands as having equal weight as the Turkish mainland when it comes to the allotment of exclusive economic zones.

As the map demonstrates, Turkish zones on the one hand and Greek and Cypriot zones on the other are divided midway between the coasts of the two sides. Since Greek islands are generally very close to the Turkish mainland, the result is that more or less anything beyond Turkish coastal waters falls into a Greek or Cypriot zone. The exclusive economic zones to be had in the open sea in the Aegean and the Eastern Mediterranean are then Greek and Cypriot.

 The most extreme illustration of this argument is the case of Kastellorizo, a very small Greek island very close to the Anatolian mainland and far from other Greek islands. Together with two peninsulas, it forms an inlet around the Turkish town of Kaş. According to the Seville Map, this island—basically in the harbour—negates all Turkish claims to the south and establishes a corridor between Cyprus and Greece. This is a great irritant to Turkey, whose Mediterranean and Aegean coastline and population are several orders of magnitude larger than those of Cyprus, and considerably larger than those of Greece—a fact which some Turks think entitles Turkey to a larger share. It also practically cuts off Turkey from regional energy networks.

The legal basis for the Seville Map is UNCLOS. Article 121 stipulates that:

An island is a naturally formed area of land, surrounded by water, which is above water at high tide.

Except as provided for in paragraph 3, the territorial sea, the contiguous zone, the exclusive economic zone and the continental shelf of an island are determined in accordance with the provisions of this Convention applicable to other land territory.

Rocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf.

If islands have the same status as other pieces of land and some islands are Greek and Cypriot between Turkey and the open sea, one might think that the Greeks are right to hold that they get the sea and Turkey is limited to little more than its coastal waters.

The Blue Homeland

The Turks would dispute this. Their argument runs that UNCLOS is a relatively recent agreement, signed in 1982. Though out of 195 sovereign states in the world, 170 are parties to the convention, this leaves a number which are not. This includes the United States and, of course, Turkey, which has always objected to the treaty due to its provision that islands and mainlands be treated alike in respect to the generation of exclusive economic zones and continental shelves. Therefore, the convention’s approach to the treatment of islands is not binding upon it.

Turkey retorts that what Turkey and everyone else accept as part of international law is the concept of the maritime continental margin. According to this concept, states have rights over their continental shelves, that region of the seabed which constitutes the geological extension of their land territory, rather than part of the deep ocean floor. This doctrine is rooted in the North Sea Continental Shelf cases treated by the International Court of Justice. The Court held that not only may states exploit their continental shelves; it held that continental shelf rights exist automatically, that they arise by virtue of sovereignty over land, and that they do not depend on treaty ratification—applying even to states that had not joined the 1958 Geneva Convention, the precursor to UNCLOS. According to the court, continental shelf rights exist ipso facto and ab initio.

The Turkish Blue Homeland doctrine is an application of these arguments. Much of the Eastern Mediterranean is, from a geological perspective, an extension of the Anatolian mainland. Blue Homeland takes this fact into account. It then applies the Turkish position that islands should not generate decisive exclusive economic zone or continental shelf effects in maritime delimitation. The result is that Greek islands and Cyprus would be basically limited to their territorial waters, leaving large swathes of the Eastern Mediterranean in the Turkish exclusive economic zone and maritime continental margin.

One must, however, remember that Turkey has not officially claimed these waters. The Blue Homeland doctrine is not fully official Turkish policy. It remains essentially an academic and strategic concept, largely sponsored and expounded by a retired Turkish rear admiral, Cihat Yaycı. The doctrine has another vocal advocate in Admiral Cem Gürdeniz, who is responsible for the name.

International Precedent

Unfortunately for the Greeks, while UNCLOS provides that islands be treated as other land territory, this is not followed up anywhere by the provision that, because islands are land and because they are further out in the water than mainland, they should get all the surrounding waters, leaving larger landmasses with larger coastlines and larger landmasses with only their coastal waters.

There is precedent, no doubt, that favours the Greek case. Consider Norway. Norway’s exclusive economic zone boundaries generally follow the principle of equidistance. Norway’s boundary with Denmark, between the Norwegian and Danish mainlands, in the Skagerrak, is equidistant. Norway’s boundary with Britain, too, is midway between the Norwegian coast and the closest British territory, the Shetland Islands, although this means that the maritime boundary is far closer to mainland Norway than it is to mainland Scotland. The principle of equidistance continues to apply even farther northward: there is a second boundary between Norwegian and Danish realms, between the Norwegian mainland and the Danish Faroe Islands and there the boundary line is midway between the Norwegian coast and the Faroe Islands, despite the Faroes’ small size and population.

Yet a little further north, the precedent is no longer in the Greeks’ favour. Norway has yet another maritime boundary, in this instance with Iceland, between the Icelandic mainland and the tiny Norwegian island of Jan Mayen. This boundary favours Iceland: Iceland’s maritime continental margin goes right up to the 200 nautical mile maximum continental margins can have, to the detriment of Norwegian Jan Mayen. Iceland’s larger size seems to have factored in. However, both sides get 25% of the revenue from oil extraction on the other’s side. Both Iceland and Norway are UNCLOS signatories.

The situation in the Eastern Mediterranean maybe most resembles that in the English Channel. Anatolia has been split, since 1912. Turkey got the mainland but gave up the islands, except some rocks and islets. Today, those islands are Greek or Cypriot—they may be administered from Athens, South or North Nicosia, or even London, but Turkish sovereignty over them ended after the First World War. Normandy too has been split—for a long time—between the mainland subject to Paris and the Channel Islands still subject to the successors of Rollo, the first Duke of Normandy.

The essential framework there is a fishing regime. Nevertheless, there does exist a definite maritime boundary between France and Jersey. This boundary often seems equidistant but is often nearer to Jersey than to France, despite passing right by islets and rocks belonging to Jersey which might have otherwise generated an EEZ. For example, the Plateau des Minquiers, Les Échérous, and Les Dirouilles all belong to Jersey. These include islands or islets, the larger of which have fishing huts and cottages. Under the United Nations Convention on the Law of the Sea (UNCLOS) these could have generated an exclusive economic zone—islands and islets can generate an exclusive economic zone while rocks that are uninhabitable or incapable of sustaining economic activity cannot. In sum, the French coast’s greater length and population seem to have factored in as regards the allotment of exclusive economic areas. Jersey’s exclusive economic area seems to never extend farther than her territorial waters. The net effect is that His Majesty’s Government—technically Guernsey and Jersey’s exclusive economic zones are distinct from the United Kingdom’s— does not just get a huge chunk of the Channel right up to the Norman coast. Both France and the United Kingdom are UNCLOS signatories.

Another example where a small insular territory was not treated based on parity with a larger mainland involving two UNCLOS signatories is the case of St Pierre and Miquelon, a French possession off Newfoundland. In 1992, an arbitration tribunal—Canada and France had been disputing about the demarcation of exclusive economic zones in the area—gave France a curiously mushroom-shaped EEZ. It started midway between the islands and Newfoundland, then circled the islands: this was the head of the mushroom; the stem was a narrow corridor out to the open ocean. Both Canadian and French dissented from this arrangement, and ultimately, the dispute was settled in a non-territorial manner. Saint-Pierre-et-Miquelon’s main industry has always been fishing. So instead of establishing a French zone and a Canadian zone, there were established fishing arrangements and quotas over a common zone, on a more or less equitable framework with existing restrictions seemingly based on environmental considerations.

This arrangement appears to be judicious and aligned with international law. Indeed, the establishment of an exclusive economic zone around St. Pierre and Miquelon, however permissible in modern law, would have violated at least the spirit of the Treaty of Paris of 1763, which is why the islands are French in the first place. Saint-Pierre-et-Miquelon was left to France after the Seven Years’ War for the very reason of making sure French mariners still had access to the fishing waters of the Grand Banks despite the loss of New France. Maybe an arrangement of bilateral control, like with fishing around St-Pierre-et-Miquelon, would suit the claustrophobic Eastern Mediterranean too.

Legal Background

The reason why the actual limits of exclusive economic areas do not necessarily happen on the basis of a midway split between islands and continents is that the law does not prescribe it.

Article 74 of UNCLOS rules about the delimitation of exclusive economic zones. Article 83 does so for continental shelves—what is meant is the political concept of continental shelf, which is otherwise called the maritime continental margin, as opposed to the continental shelf as a purely geological phenomenon. Both articles use the same language, except where one has an exclusive economic zone, the other has a continental shelf:

1. The delimitation of the [exclusive economic zone/continental shelf] between States with opposite or adjacent coasts shall be effected by agreement based on international law … to achieve an equitable solution.

2. If no agreement can be reached within a reasonable period of time, the States concerned shall resort to the procedures provided for in Part XV.

3. Pending agreement as provided for in paragraph 1, 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. Such arrangements shall be without prejudice to the final delimitation.

4. Where there is an agreement in force between the States concerned, questions relating to the delimitation of the [exclusive economic zone/continental shelf] shall be determined in accordance with the provisions of that agreement.

As the article demonstrates, though UNCLOS deems that islands be counted as land territory, it leaves this up to states to settle these matters—although it does have mechanisms for resolving disputes in absentia if a state refuses to cooperate in Part XV. Nonetheless, the only absolute obligations Part XV stipulates is that states exchange views and observe the principle of the peaceful resolution of disputes as mentioned in Article 2 paragraph 3 of the UN Charter:

All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered.

UNCLOS does however, mandate that both in determining zones and continental shelves and afterwards in the case of semi-enclosed or enclosed seas, states must collaborate. Article 123 of UNCLOS stipulates:

States bordering an enclosed or semi-enclosed sea should cooperate in the exercise of their rights and in the performance of their duties under this Convention. To this end, they shall endeavour, directly or through an appropriate regional organisation:

(a) to coordinate the management, conservation, exploration and exploitation of the living resources of the sea;

(b) to coordinate the implementation of their rights and duties with respect to the protection and preservation of the marine environment;

(c) to coordinate their scientific research policies and undertake, where appropriate, joint programmes of scientific research in the area;

(d) to invite, as appropriate, other interested States or international organisations to cooperate with them in furtherance of the provisions of this article.

Conclusion

Greek claims, though not necessarily in violation of international law, are not prescribed by it. Turkish claims are not prescribed by international law either; however, Turkey indisputably has a continental shelf, which, without UNCLOS, a treaty that Turkey has not signed, can extend to the limits Blue Homeland envisions them extending to. But there is no positive guarantee of this in international law. What is certain in international law, however, is an obligation to peaceful settlement. It originates in the United Nations Charter and is found again within UNCLOS, where it carries the same weight as UNCLOS’ provisions on land. What international law would point toward, whether UNCLOS is to be observed or not, is that the parties, rather than accusations and claims and counterclaims, tone down the rhetoric and get to the serious business of managing a sea so small that no matter what one’s zone is and wherever it is, serious maritime concerns will necessitate international solutions. The law and reality do not reward maximalism; they reward restraint in small, shared seas.