Sapienta Cyprus Backgrounder: maritime delimitation issues
UNCLOS and the legal framework
Welcome to The Cyprus backgrounder, part of the Sapienta Cyprus Snippets series. The Cyprus backgrounder provides you with a quick snapshot on various specific issues. This one is on the Republic of Cyprus Exclusive Economic Zone (EEZ) and the relevant parts of the international treaty framework. It is a lightly edited version of an explainer box that appeared in our June 2019 issue, when Turkey had just sent drill ships into the EEZ, prompting condemnation from the EU that eventually culminated in sanctions that, while fairly light, do seem to have kept Turkey out of the EEZ for the time being. The text on the legal framework was checked by experts and practitioners in international treaty law before it was published.
Disclaimer
As with any long-running conflict there are strongly held beliefs on all sides. This means that it is impossible to give an account that satisfies all sides. The following is an attempt to be as accurate and balanced as possible.
Differences over maritime delineation
Turkey’s activities in the exclusive economic zones (EEZ) in recent years relate to two separate issues: defending what it sees as its own continental shelf claims west of the island and defending the rights of Turkish Cypriots.
As regards the continental shelf, when the EEZ agreement between the Republic of Cyprus (RoC) and Egypt was signed in 2003, Turkey lodged a complaint with the UN saying that delimitation west of longitude 32.16.18 also affects its “ab initio legal and sovereign rights”. As regards the EEZ, the Turkish Cypriots, acting as the unilaterally declared and internationally unrecognized Turkish Republic of Northern Cyprus (TRNC), have issued their own licences to the Turkish Petroleum Corporation (TPAO), covering perhaps 40% of the blocks licensed by the RoC. Their argument is that, since the Greek Cypriots are unilaterally exploiting a resource that belongs to both communities, they will do the same.
Turkey’s statements about the area it says is its own continental shelf (typically saying it “will use all means necessary”) are more forthright than statements about the areas in which the Turkish Cypriots have issued licences (typically “defend their rights and interests”), and suggest that Turkey would use military force in those areas. Turkey’s president, Recep Tayyip Erdoğan, hinted at military action in the Eastern Mediterranean and/or the Aegean on 9 May 2019, when he told cadets to “give a response of steel to any threat to an inch of our borders but also beyond our borders”.
The differences between over maritime delineation therefore relate both to the continental shelf and exclusive economic zones (EEZs). The legal framework involves the 1982 United Nations Convention on the Law of the Sea (UNCLOS) and what is known as customary international law.
Cyprus, the European Union, Egypt and Lebanon are signatories to UNCLOS, a treaty which formally defined EEZs. Turkey, Israel, Syria and the US are not signatories. However, Israel (in delineating its EEZ), Turkey (in the Black Sea) and Egypt (in signing the EEZ with Cyprus in 2003) have made use of some UNCLOS provisions—in Turkey’s case, using the UNCLOS provisions that it considers to be part of customary international law. When it comes to legal redress against Turkey’s actions, the RoC has at least five challenges.
1. States that are not signatories to UNCLOS are not bound by its provisions, except where those provisions are customary international law. There are differing views among international lawyers about which of the EEZ provisions of UNCLOS should be considered as customary international law. Turkey’s persistent objections to the RoC’s EEZ activities seem to be intended to prevent the EEZ provisions, as a package, from being considered as customary international law. It has also been arged that Turkey is trying to argue that it is exempt from these provisions since it has been a “persistent objector” to those laws since before they became part of an international treaty/convention.
2. When states deposit bilateral treaties or coordinates on maritime delimitation with the UN, their publication by the UN does not afford them any legal status beyond that which they already enjoy. The UN is simply the depository. The UN Secretariat does not take a position when states have differences on maritime delimitation, but rather encourages states to resolve their differences in accordance with international law. Paths to resolution include arbitration or judicial settlement. With respect to the Aegean, Turkey has always rejected the court route, although in a letter sent in May to the EU and permanent members of the UN Security Council about their responses to the drill ship off Cyprus, Turkey foreign minister, Mevlüt Çavuşoğlu, referred to the option of arbitration or international courts. There is a little-publicized potential opening for future negotiations, however, as the text of the Cyprus-Egypt EEZ agreement says that certain coordinates could be “reviewed and/or extended” in future.
3. If the continental shelf issue ever did go to court, both UNCLOS and customary international law are a little vague when it comes to how states with “opposite or adjacent coasts” should delimit either their continental shelf (Article 83(1)) or their EEZ (Article 74(1)). Both articles simply state that the delimitation “shall be effected by agreement on the basis of international law, as referred to in Article 38 of the Statute of the International Court of Justice, in order to achieve an equitable solution.” The RoC uses the median line as a basis line, while Turkey argues that, because of its long coastline among other issues, it ought to be entitled under equitable principles to a larger area.
4. The area of a state’s continental shelf or EEZ that lies beyond the internal waters and the territorial sea is not part of a state’s sovereign territory, although states do enjoy sovereign rights in these areas. Drilling in the continental shelf or EEZ without the authorization of the coastal state would therefore be a violation of the sovereign rights of the state but might not be considered as a violation of sovereignty as such.
5. As noted above, Turkey is not a signatory to UNCLOS, therefore only the parts of UNCLOS that are customary international law are binding on it. As regards delimitation of both the continental shelf (Article 83(3)) and the EEZ (Article 74(3)), UNCLOS states, identically in both paragraphs, “[p]ending 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 jeopardize or hamper the reaching of the final agreement. Such arrangements shall be without prejudice to the final delimitation”. These articles imply that neither country should drill in the continental shelf area over which there is no agreement, and indeed no companies licensed by the RoC have ever drilled in this area. Turkey has drilled in this area, however. If the issue ever goes to court, the question will be whether the provision of UNCLOS calling on states not to hamper a final agreement will be considered as part of customary international law, and therefore binding on Turkey.
For further reading, check out The Cyprus hydrocarbons issue: context, positions and future scenarios, by Ayla Gürel, Fiona Mullen and Harry Tzimitras, PRIO, February 2013. Download here.