Emete Gozuguzelli: Maritime Delimitation Dispute between Turkey and Greek Cypriot Administration


The Greek side unilaterally carries out geological exploration in the waters of ​​Cyprus, there is even information about the discovery of some gas fields. With a request to comment on the current situation from a legal point of view, we turned to Dr. Emete Gozuguzelli from Girne American University.

In your opinion, is it contrary to international law and the constitution of Cyprus?

166 nations have so far ratified UNCLOS, including Lebanon and “Cyprus” (Greek Cypriot administration or “ROC”) . However, Israel, Turkey and Syria have not ratified the convention. The delimitation of maritime boundaries in Eastern Mediterranean is a particularly critical and crucial process. Eastern Mediterranean is a distinctly maritime region known as a semi-enclosed sea according to the definition given in Article 122 of the Law of Sea Convention. Above 400 states have problems on maritime delimitation, but, nearly 190 states made a bilateral agreement over disputes. As it is known that in the last few years, potential offshore natural gas fields have been discovered in the Eastern Mediterranean. Energy Companies argue that there are huge oil and gas reserves in the little-explored Mediterranean Sea between Greece, Turkey,“Cyprus”, Israel, Syria and Lebanon.

However, the semi-enclosed structure of Eastern Mediterranean has meant that all regional countries are semi-enclosed either as territorial seas, exclusive economic zones, or continental shelf. This has resulted in a multitude of overlapping claims, some of which have caused tensions in bilateral relations and undermined peace and stability in the region such in the case of Cyprus vs Turkey dispute.

As a matter of fact, in 2007 Cyprus held the first round of auctions for exploration licenses. The Aphrodite gas field was discovered in December 2011 west of Leviathan in “Block 12”. In October 2008, Texas-based Noble Energy is granted an exploration licence for Block 12 for an initial period of three years. After one month later, in November 2008, Turkish naval vessels did not give any permission to any Greek Cypriot or foreign vessels conducting seismic exploration for hydrocarbon deposits in waters of the South of the island, because of the Turkey’s continental shelf region is violated. 12 block is an main dispute era which Turkey is not recognizing the proclaimed blocs. The main delimitation dispute with Turkey is directly related to the proclaimed 1,4,5,6,7 blocks which violates Turkish continental shelf era and the rest of the blocs are  related to the protection of the Turkish Cypriots rights. About 12 block, Turkey mentioned that this is a provacotive action. On the other hand, Turkey stressed that there are two different but equal nation in the island. In fact, The Greek Cypriot administration tries to carrying out licensing activities and win a chance to infringe the Turkish maritime zones (32 18 16 E). In fact, Turkey determines to protect its maritime zones and Turkish Cypriots rights.  Turkey has been sent its geographical coordinates to UNGS with Turkuno/2004.

Additionally, the Greek Cypriot administration ignores the realities of Cyprus dispute. As should be accepted that there are two different sovereign entity in the island and no one can not represent each other. For that reason, Greek Cypriots can not violate Turkish Cypriots inherent rights. On the other hand, the Greek Cypriot administration stresses that natural resources will be a federal competence in the event of a settlement of the Cyprus problem and, by implication, a shared resource. But to date, they have not been willing to discuss current hydrocarbons exploration within the context of settlement negotiations.

Indeed, in mid-September (19), 2011, Noble Energy commences exploratory drilling in Block 12 started. After this developments, In fact, Turkey made a strategy for protection Turkish Cypriots rights. Firstly, Turkey and TRNC signed a Continental Shelf Delimitation Agreement on 21 September 2011.

According to the this agreement, the coordinates determined and partial delimitation drawn. The meaning of this, there are other boundaries which to be drawn. Taking this provision, it should be stressed that this agreement is an important in terms of ensuring the rights of both nations over island.

Additionally, the permits to the Turkish National Oil and Gas Company (TPAO) is given a right for seismic research by TRNC’s Economy and Energy Ministry over declared A, B, C, D, E, F, G. This was based on Oilfield Services and Production Sharing Agreement signed between the TRNC Ministry of Economy and Energy and Turkish Petroleum Corporation (TPAO) on 2 November 2011. Contract to provide TPAO with exploration, well exploration and authorization for operation based on profit share.  On September 28, 2011, the Turkish seismographic vessel named Piri Reis and two Turkish warships come to the region. Piri Reis vessel searched in G area.

The Continental Shelf Delimitation Agreement is important fom two perspectives: firstly, this is the reaction against the Greek Cypriots claimed western blocks, numbered 1, 4, 5, 6, 7 which are directly overlapping and violating Turkey’ continental shelf. Secondly, TRNC’s rights are violated by Greek Cypriot administration. Later, Piri Reis started to search in the G area. This was protested by the Greek Cypriot administration. After two months, Nobel Energy announces the discovery of the Aphrodite gas field in Block 12.

Then, Greek Cypriots opened an international bid and called energy companies for a survey of the 12 blocks of disputed offshore areas on 14 February 2012. This led to the energy war paradox in Eastern Mediterranean.  This development triggered the tension in the Eastern Mediterranean. Because, Greek Cypriot administration announced the second offshore licensing round for blocks 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11 and 13 in 2012, February.

On 24 January 2014, the Greek Cypriot administration continued to sign contracts granting licences for exploration of blocks 2, 3, and 9 to the ENI-Kogas consortium.

On February 2016, the Greek Cypriot administration announced the third offshore licencing round putting up for auction blocks 6, 8 and 10. The bids subsequently submitted are Block 6: ENI/Total Block 8: Capricorn Oil/Delek Drilling, ENIBlock 10: ENI/Total, Exxon Mobil/Qatar Petroleum, and Statoil.On August 2, 2016, Turkey’s Foreign Affairs Ministry warns that any exploratory activity is unauthorised by the energy companies and Greek Cypriot administration in Block 6 of the third licensing round.

In October 2016, Total announce they are poised to drill their first exploratory well in Block 11 in April 2017. This was happened in July and Turkey send its seissmic vessel to the region with NAVTEX III. It seen that, the last step by the Greek Cypriot administration happened over new licence agreements with international agencies on April 5 and 6 2017, signed a third permit for investigations in blocks 6, 8 and 10 of the claimed “Exclusive Economic Zone”.

From 2007 to 2017, the Greek Cypriot administration continues its energy activities that violate Turkey’s maritime jurisdiction, while infiringing the rights of the Turkish Cypriots which blocks are declared unilaterally. After this provacative step by Greek Cypriot administration, Turkey has issued a naval report called Navtex III

The investigations is carried out by the support of Bravo Suppoter vessel who will be accompanied by Barbaros Hayreddin Seismic Search Ship.

In this case it should be asked that What GCs argue?

The Greek Cypriots claim that maritime delimitation between mainland Turkey and “Cyprus” must be draw exclusively by adoption of the “equidistance principle” irrespective of any “related circumstances”. According to this view, “Cyprus” claimed that it has sovereign right to exercise jurisdiction over its 200-mile wide EEZ around the entire island as per Article 121:2 of UN Convention on Law of the Sea (UNCLOS). The Greek Cypriot government has passed a law in 2004 defining and regulating its so called “EEZ and Continental Shelf”

Greek Cypriot argues that islands have the same entitlemenet to the EEZ as continental territories, under the 1982 Convention and customary international law .The Greek Cypriots’ other claims are; UNCLOS gives an inherent right to a continental shelf, which extends up to a distance of 200 nautical miles (“nm”) measured from the coast.

The Greek Cypriot administration also alleged that “TRNC is “invalid” under the International law” and “Turkey is unwilling to accept third party settlement”.

The Greek Cyprot administration argues that Turkey has no right to claim over so-called the “ROC” maritime zones. They claimed over EEZ agreements, the parties express their desire to conclude framework unitization agreements in the event straddling hydrocarbon reserves are found (stretching from the EEZ of one party to the EEZ of the other). This clause accommodates the exhortation set forth by international judicial organs advocating joint exploitation of underwater natural resources among neighbouring states [North Sea Continental Shelf Cases (Judgment) [1969] ICJ Rep. 3, para 97; Eritrea/Yemen (Maritime Delimitation) (1999) paras 84, 86; Guyana/Suriname Award (2007) para 463].

What Turkey argues?

Whereas, Turkey argues that when it comes to maritime delimitation, the maritime space an island may be diminished depending on the related circumstances (see, e.g., Anglo-French Arbitration 1977, Tunisia v Libya 1982, Black Sea Case 2009, Bangladesh/Myanmar 2012) .Therefore, although in principle islands are not deprived of the rights bestowed on them by article 121 LOSC, they may not always be granted full effect in maritime boundary delimitations .

The legal dispute between Cyprus and Turkey, apparently seen on the reliance on the continental shelf (on which the hydrocarbons are located, directly numbered 1, 4, 5, 6, 7) and its unproclaimed exclusive economic zone in the Eastern Mediterranean. The problem was started with the Egypt and Greek Cypriot administration’s EEZ Agreement in 2003. Turkey objected to Egypt’s agreement with Cyprus and presented its complaints to the UNGS, claiming the agreement concerns Turkey’s sovereign rights and stating that there is no single authority which is competent to jointly represent the Turkish Cypriots and the Greek Cypriots. Turkey formally does not accept the “Republic of Cyprus” to represent, in law or in fact, the whole island. Turkey doesn’t recognise the Greek Cypriot administration declared continental shelf and its claimed capacity to claim an EEZ around the island. Also, stress TRNC has eligible to lay claims with respect to the islands underwater natural resources. The Greek Cypriots’ unilateral actions also challenge Turkey’s maritime jurisdiction areas in the Mediterranean area west of the island and in the south the plots to overlap with TRNC. Turkey stress in the jurisprudence, islands, including Cyprus for that matter, have never been granted full effects or in very few circumstances. Turkey has been promoting its interests for protecting its maritime zones.

First of all, the Greek Cypriot Administration does not represent in law or in fact the Turkish Cypriots and Cyprus as a whole. As such, the Greek Cypriot Administration is not entitled to negotiate and conclude international agreements as well as adopt laws regarding the exploitation of natural resources on behalf of the entire island. This provocative policy compromises and prejudges the Turkish Cypriots’ existing and inherent equal rights over the natural resources of the island, sovereignty rights and the sea areas of the island of Cyprus. Turkey’s position is very clear: this issue should be a part of the comprehensive settlement in Cyprus. Turkish and Greek Cypriots should benefit jointly from the Island’s natural resources.Apart from the issue of Cyprus, Turkey has legitimate and legal rights existing in the Eastern Mediterranean particularly to the west of longitude 32° 16’ 18”E which have been registered.  It is only natural that Turkey will protect its rights in its maritime jurisdiction areas” (Ministry of Foreign Affairs of Turkey, Maritime Delimitation).

Who is the right in legal sense?

In fact, Greek Cypriots policies aim is to an extent its maritime sovereignty into Greek sovereignty in Eastern Mediterranean. The strategy between Greece and Greek Cypriot administration over expanding maritime zones .However, Turkey adopts a cooperation and negotiation in any disputes and obeying the international law, either its part or not. Turkey puts forward four important justifications for its policy in the Eastern Mediterranean Sea; the need for an agreement over delimitation, the need a valuable and comprehensive solution to the Cyprus problem, the principle of equity and legal and political balance to be preserved in the Eastern Mediterranean.

For Turkey, the delimitation agreement between ROC and others are null and void.

All three agreements signed by “Cyprus” are based on the principle of equidistance

(the median line principle), since no special circumstances exist to modify the delimitation.

In this respect, Equidistance principle can not be used as alone without consideration relevant circumstances for Eastern Mediterranean maritime boundary delimitation. For example, The St. Pierre and Miquelon Islands Continental Shelf case with Canada and France stress that there should not be any prevention to reach high seas.

The Continental Shelf (Libyan Arab Jamahiriya/Malta) (1985) ICJ Rep. 13 (Libya/Malta), at 51; Eritrea v Yemen (1999) Award of the Arbitral Tribunal in the Second Stage of the Proceedings (Maritime Delimitation) at 116; Maritime Delimitation in the Black Sea (Romania v Ukraine) (2009) ICJ Rep 61 (Black Sea Case), at 120 stress the equitable solution is necessary. That’s why the boundaries are to be delimited by agreement on the basis of international law.

As mentioned before that, Eastern Mediterranean is a semi-enclosed region. It should be considered in any delimitation efforts. Non-encroachment principle and cut off effect must be applied in the delimitation of the continental shelf in Eastern Mediterranean. The regional characteristics of the coastal states should be thought in order to reach an equitable result. Although, “Cyprus” as an island, has its two different entity, and Greek Cypriots can not have a right to draw equidistance line as alone without consideration of the relevant circumstances which mentioned in many Court decisions before. For example in North Sea Continental Shelf case 1969 demonstrate that the equidistance method is not inherent in the regime of the continental shelf. The court held;

……the use of equidistance method would frequently cause areas which are the natural prolongation or extension of the territory of one State to be attributed to another, where the configuration of the latter’s coast makes the equidistance line swing out laterally across the former’s coastal front, cutting if off from areas situated before front” (ICJ Report, 1969, p.44)

The non encroachment principle is also underlined in the Guinea –Guinea Bissau Case where the Arbitral Tribunal noted that “in order for any delimitation to be made on an equitable and objective basis, it is necessary to ensure that as far as possible, each state controls the maritime territories opposite its coasts and their vicinity (ICJ Report, 1985, Maritime Delimitation between Guinea-Guinea Bissau, parag.92). The Tribunal point out that the application of this principle would satisfy the concerns for security (ICJ Reports, 1985, para.124) .

The Channel Islands were provided with an enclave solution, where the Court of Arbitration made it clear that a small island in front of a long mainland coast does not block the seaward extension of the mainland coast (ICJ Reports, 1977, pp.191-192).

Another example is seen in the case of St. Pierre and Miquelon and Jan Mayen cases. The court and other tribunals have regularly identified the area relevant to the boundary of delimitation so as to form the geographic context for the boundary analysis. “These tribunals examined the delimitation from the perspective of proportionality. Thus, they have estimated roughly or calculated exactly the relative lenghts of the relevat coastlines and compared that ratio to the ratio of the provisionally delimited relevant water areas” (Charney, 1994, p.241). Indeed in the St Pierre and Miquelon Award “the court give a partial effect to Western Part, give no effect to the Eastern Part. Additionally, in St. Pierre and Miquelon, equdistance was rejected because it would produce a division of the area considerably different from the coastline ratio and the seaward projection of the Canadian Coastline” (Charney, 1994, p.245).

About island regime;

For Turkey, Islands may not always granted full effect in maritime boundary delimitations. Turkey advocate of the Equitable principles/relevant circumstances, rejecting median line /special circumstances method.

The regime of islands, as provided in Article 121 of the UN Convention on the Law of the Sea (UNCLOS), remains unclear, and no authoritative ruling or consensus on its interpretation has yet emerged. Recent developments, related to the Greek Cypriots EEZ agreements between other parties in Eastern Mediterranean creates the problem with Turkey. Both sides haven’t negotiated the crux, because of the political and legal reasons. The Greek Cypriot’s extended claims to maritime jurisdiction have been done, by the way of its laws.

Indeed, in the North Sea Continental Shelf, Tunisia/Libya, Libya/Malta and Qatar v. Bahrain cases that the equitableness of an equidistance line depends on account of the disproportionate effect of certain islets, rocks and minor coastal projections. The effect that a small island has on the equidistance line will vary depending on whether the island is located far from, or close to, the coast and on whether the coastlines of the parties are adjacent or opposite. The Court has adopted a variety of ways for addressing any disproportionate effect. But the main important thing the area can not be delimited without taken the other location. For example in theTunisia/Libya case, the Court held that:

For the purpose of shelf delimitation between the Parties, it is not the whole of the coast of each Party which can be taken into account; the submarine extension of any part of the coast of one Party which, because of its geographic situation, cannot overlap with the extension of the coast of the other, is to be excluded from further consideration by the Court (Continental Shelf (Tunisia/Libyan Arab Jamahiriya), Judgment, I.C.J. Reports 1982, p. 61, para. 75.).

“Additionally, in the Tunisia / Libya Continental Shelf case 1982, the Kerkenneh Island was given the half effect on the relevant part of the delimitation line defined by the Court. The method of half effect in this case is different than that used in the Anglo-French Continental shelf case”(Tanaka, 2006, p.194).

“In Gulf of Maine case, the Court determined that the Canadian territory of Seal 121(3), Island, be given the half effect. In Qatar/Bahrain case, the Court gave no effect to the island Qit’at Jaradah, a very thod of small, uninhibited island without vegetation, when drawing the equidistant line” (Wan Dahala and others, p.237, Kiruthika, 2014).

In most cases, however, the Court will give the maritime feature a partial effect on the delimitation line (for example by adjusting the equidistance line as if the island were located closer to the coast of the State which has sovereignty over it, as occurred in the Gulf of Maine case in respect of Canada’s Seal Island) – generally the further out to sea an island is located, the more partial will be the effect given because of the greater potential for distortion of the boundary (Kiruthika, 2014).

As it seen that Relevant circumstances interlinked with islands which courts have given islands the half effect, full effect or treated them as enclaved features to determine their effects. The size of the island and the length of the relevant coasts are almost always the main consideration for the court or tribunal in adjusting the median line. This makes Turkey as rightful.

“As to ‘relevant’ circumstances that might call for a deviation from the equidistance line in order to achieve an ‘equitable result’, in the case of Cameroon v Nigeria, the ICJ identified certain geographical features (the concave nature of a coastline, a lack of proportion between a State’s coastline and the area of its jurisdictional zone and the effect of islands) and oil concession practice as ‘relevant’, although it did not find that any of them required it to deviate from the equidistance line on the facts. A concave coastline and disproportionality have led to deviations from the equidistance line in other cases”(Senedza, p.299).

As it is seen that the legal claims of both sides so differ. However, the dispute between Turkey and Greek Cypriot administration could only be solved by taking the equitable principle/Relevant circumstances.

It should be stressed that the issue of maritime jurisdictions between Turkey and Southern Cyprus can be defined that; first, it is a matter of irrespective and illegal Greek Cypriot policy against the Turkish Maritime Zones (Contintental Shelf and unproclaimed EEZ). As a matter of fact, since 2003, the problem has been actively existed by the move to draw a line over the so-called Exclusive Economic Zone Treaties of the “ROC”. In fact, so called EEZ agreements violates the Turkish maritime zones in western region. Secondly, an act over the Natural Gas / Petroleum Exploration, Licensing Efforts since 2007 directly violates Turkish Cypriot rights. Hence, Greek Cypriots continue to acting as a sole proprietor and the sole owner of the island. That is unacceptable. Another dimension of the dispute between both sides are Actual Violation / Drilling Initiatives by the Greek Cypriot administration (as mentioned before, GCs vessesls tried to enter Turkish maritime jurisdiction zones and prevented by Turkey. For example, GC’s Ramform Sovereign vessel effort to the violation in June 2013, RV Odin Finder vessel effort in July 2013,  MV Flying Enterprise vessels effort in December 2015, Flash Royal vessel efforts in September 2016). Fourthly, the militarization of maritime areas have adopted a way to establishing “safety zone” against Turkey with using expanded “Search and Rescue Coordination” by South Cyprus. In result, many national, regional and international exercises are going to perform under the Search and Rescue Operations in order to protection so-called Exclusive Economic Zones (mainly against Turkey). As finally, evaluation of the problem of maritime boundary delimitation in different methodology. The Greek Cypriot’s Search and Rescue coordinates also violate the Turkey’s area.

Maritime delimitation is an international operation in the sense that it cannot be effected unilaterally, but must result from a process between two or more states. Turkey advocates the dispute can be solved without going to the court or tribunal. The negotiation should be firstly, such it is mentioned in UNCLOS. Whereas, Greek Cypriot adminsitration prefered to go international court without negotiation.

Additionally,  Turkey advocates the prevalence of the “distance criterion” of maritime delimitation over the “geological” one. The distance criterion provides that the breadth of the maritime space afforded to a state should be calculated according to a fixed distance measured from the coast. Whereas, the GCs administration follow geological criterion, by contrast, would permit a state to claim the sea waters lying over the “natural prolongation” of its territory irrespective of the distance from its coastline. Moreover, in the Nicaragua v Colombiacase (2012), the ICJ put an end to the argument that one state’s islands cannot have their own continental shelf because they are located on another state’s continental shelf (Ioannides, 2014). That is the meaning that mainland geography has always been in superiority over the islands. It is emphasized that the island who is located on the opposite side and far from their mainland should have a much more limited sea area (Nicaragua/Colombia 2012 Case, parag 215 and 238).

In Nicaragua/Colombia case, for example, in Para 215 states that “the Court agrees, however, that the achievement of an equitable solution requires that, so far as possible, the line of delimitation should allow the coasts of the Parties to produce their effects in terms of maritime entitlements in a reasonable and mutually balanced way (Maritime Delimitation in the Black Sea (Romania v. Ukraine), Judgment, I.C.J. Reports 2009, p. 127, para. 201). The Court gives more importance to the proportionality and avoid of cut off effect. It should be stressed that Nicaragua/Colombia decision is only one example for  equitable setttlement.

What are some of the advantages that the Greek Cypriot administration has been trying to achieve using the Maritime Disputes?

-Tries to create cut off effect or close the Mediterranean Sea against Turkey and TRNC

-Tries to violate Turkish Cypriots rights over seas including energy welfare and other rights

-Tries to have and control FIR air zone in regards of the whole “Cyprus”

-Tries to develop and increase the activities of arming and militarization within the framework of Search and Rescue Exeercises against Turkey

– In short, spreading its claimed “sovereignty” over the sea, wants to draw a new trilateral EEZ with Greece, Egypt and “ROC” and by this way, to have sea and air areas in the Mediterranean and the Aegean. Although, the desire to hold in the hands of many field authorities such as capturing all energy fields, extending fishing era, install the artificial islands in the whole island as unique entitiy.

Indeed, in accordance with the article 74 or 83 of UNCLOS,  the delimitation of the maritime boundary has to be effected by agreement on the basis of international law. Good faith, listening to the other side and being ready to move to negotiate the problem in goodwill should be settled at least to understand their dispute. But recent events show that Greek Cypriots methodology which drawing the equidistance/median line triggered the increasing tension with Turkey and caused Lebanon-Israel maritime delimitation dispute.

Even, the Greek Cypriot administration should give up its Hellenism policy and concentrate how peaceful order is settled in Eastern Mediterranean. As finally, I argue that the dispute creates a blind node in the region which could bring increasing tensions (hot maritime zones conflict) in further progress. The time has been come to think again an idiom that “good fences makes good neighbours”. That is the best solution for peace and security over the region. That is the best way to respect both sides as the sovereign entity.

 

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