Enikő KRAJNYÁK: Territorial Sovereignty and Red Lines on the Sea
The Case of the Aegean Maritime Zones
The issue of territorial sovereignty is crucial in international law, as territory is a fundamental component of the State: without territory, population, government and sovereignty, the entity could not be considered a State. It is, however, less emphasized, that the State is entitled to territorial sovereignty on the sea as well: the extent of the powers of a State depends on the distance from the shore in question. Therefore, customary law and international agreements developed a system of maritime zones in order to determine the sovereignty of the Coastal State on the sea.
Even though the United Nations Convention on the Law of the Sea (Montego Bay, 1982, hereinafter referred to as: UNCLOS or the Convention) provides rules on the delimitation of maritime zones, due to the geographical features of each shore, it leaves a broad margin of appreciation for the States. Political reasons, such as building alliance systems, the States’ individual approaches to constitutionalism and sovereignty, among others, play an important role in the decision-making process. Moreover, parties might fail to establish an agreement in conformity with UNCLOS for various reasons: either because of the complexity of the delimitation itself that would leave one party in an extremely unfavorable situation under UNCLOS, or because one of the Parties is not a signatory of UNCLOS.
Such cases have recently emerged in connection with Greece and its neighboring countries: two agreements have been concluded so far on the delimitation of maritime zones (with Italy and Egypt), while another one is pending with Albania, as the Parties turned to the International Court of Justice (further referred to as: ICJ). All these bilateral disputes are being resolved according to the provisions of UNCLOS. Turkey, on the other hand, has not ratified the Convention and has a completely different approach towards the question, that is based on the sovereignty of the country rather than adherence to the international practice. This article presents the different strategies to tackle the delimitation of maritime zones in the Aegean and addresses challenges to be solved in the future.
The Delimitation of Maritime Zones
In order to understand the above-mentioned strategies, first of all, the division of maritime zones shall be discussed, providing insight into the nature of (Coastal) State sovereignty on the different sections of the sea. According to UNCLOS, the closer the zone is to the coast, the stronger the powers of the Coastal State are. Therefore, the sovereignty of the State extends to 12 nautical miles, however, in this zone, ships of all States enjoy the right of innocent passage (Articles 3; 17). Beyond the territorial sea, a section of further 12 nautical miles constitutes the contiguous zone, in which the State may exercise control that is necessary to enforce its customs, fiscal, immigration or sanitary laws or regulations (Article 33). The Exclusive Economic Zone (hereinafter referred to as: EEZ) may extend to 200 nautical miles from the baseline. This is the most important zone from the economic point of view, as the State has sole exploitation rights over natural resources and water superjacent to the seabed and of the seabed and its subsoil. Additionally, the State has jurisdiction over its artificial islands, installations, marine research and the protection of the marine environment (Articles 55-57). The next zone, the continental shelf is the natural prolongation of the land territory to the outer edge of the continental margin, to a distance of 200 nautical miles from the baseline that consists of the seabed and subsoil of the shelf, the slope and the rise, excluding the deep ocean floor. The State exercises sovereign rights for exploitation of natural resources in this zone as well (Articles 76-77). The area beyond the continental shelf is referred to as ”high seas” where the freedom of navigation, overflight, scientific navigation, inter alia, are guaranteed for all States, whether coastal or landlocked (Article 87).
The Greek-Italian and Greek-Egyptian Bilateral Agreements on the Delimitation of the Exclusive Economic Zone
The delimitation of the EEZ shall primarily be set by a bilateral agreement, taking into consideration the principles of equidistance, equity and proportionality. Greece aims at delimiting its maritime zones according to UNCLOS, however, it is only possible to do so with other signatories of the Convention. The Greek-Italian bilateral agreement is of particular importance, as it serves as an example for the subsequently established or currently debated bilateral agreements (that is, for instance, the bilateral dispute between Greece and Albania, that will be discussed below). The agreement was signed on 9 June 2020 in Athens, and it designates the boundary of the EEZ the same as the continental shelf that was lined out in a bilateral agreement on the delimitation of the continental shelf in 1977, before the ratification of UNCLOS.
At this point, it is worth mentioning that the concept of the EEZ was first regulated by UNCLOS, therefore, the agreements prior to it could only deal with the delimitation of the continental shelf. Nevertheless, the establishment of the EEZ on the previously outlined continental shelf is a generally accepted practice in international law. The agreement is embedded in the process of the creation of the Eastern Mediterranean Gas Forum (EastMed) that would serve to deliver gas through the Mediterranean Sea from Cyprus to Spain. In order to come to an agreement, Greece adopted a number of provisions more favorable to Italy, such as implementing the principle of equitable geographical distribution in such areas (between Salento and the Greek islands of the Ionian) that were previously entirely under Greek influence, or granting wide fishing rights to Italy in zones under Greek sovereignty. It is important to highlight that the Greek-Italian bilateral agreement complies entirely with UNCLOS, as it recognized the continental shelf of the Greek islands of the Ionian, which is of crucial importance in the delimitation process, as it could determine economic power relations on the sea.
Similarly to the agreement with Italy, Greece managed to establish an agreement with Egypt a few months later, on 6 August 2020 in Cairo. Egypt – as Greece and Italy – is a signatory of UNCLOS. Moreover, Egypt was the first State in the Mediterranean region to sign a bilateral agreement on the EEZ with Cyprus in 2003. However, this agreement is rather disputed, as the EEZs between Greece and Egypt are claimed to overlap with the EEZs of Turkey and Libya set out by a Turkish-Libyan bilateral agreement of 27 November 2019. The key issue is that Turkey has not signed UNCLOS, therefore, those provisions were not taken into consideration in the delimitation of its own maritime zones.
The main problem with the Turkish agreement is that it refuses the recognition of the continental shelf of certain Greek islands (e.g. Castellorizo, Crete, Rhodes), that is why Greece and its ”allies” – Italy and Egypt – do not recognize the validity of this agreement. Consequently, Turkey considers the Greek-Egyptian agreement null and void. Moreover, the Turkish-Libyan agreement raises other concerns from the point of view of general and customary rules of international law: the Libyan Government of Tripoli that signed the agreement is not recognized by the Parliament of Tobruk, therefore, ratification and entry into force practically seems impossible at this moment. Nevertheless, Greece obviously tried to win Egypt for this bilateral agreement. In the beginning, Egypt was open to negotiate with both Greece and Turkey but after the latter concluded the above-mentioned agreement with Libya, Egypt sought to agree with Greece, which, due to the urgent need to find partners in its maritime disputes, offered an advantageous deal to Egypt. This could be perceived from the fact that the bilateral agreement outlines the maritime border of the two countries in a 9:11 ratio in favor of Egypt.
Disputes with Turkey and Albania – different solutions for dispute settlement
The Greek-Turkish maritime dispute on the EEZ dates back to the 2000s, when the exploration of natural gas urged the States to find a solution for the division of the Aegean in a way that is acceptable for both Parties. However, due to the fact that the Aegean islands belong to Greece and therefore, nearly 71.5% of the sea is under Greek control, Turkey consistently refuses to recognize the provisions of UNCLOS and of those agreements that approve the continental shelf of the Greek islands. Turkey, in fact, calculates the maritime zones from the coasts of the Greek mainland, ignoring any legal consequences of the continental shelf of the islands, as – according to Turkey – they are located on the Turkish continental shelf.
Furthermore, Turkey concluded a bilateral agreement with the TRNC (Turkish Republic of Northern Cyprus) on 21 September 2011 that does recognize the continental shelf of Cyprus, referring to the fact that Cyprus is not located on the Turkish continental shelf. In my opinion, the Turkish argumentation noting that each island shall be examined individually, taking into account all the geographical features of these islands, is correct. However, what is true for Cyprus, might not stand for the Aegean islands. Although, the fact that Turkey tries to regulate the Aegean region unilaterally, without any negotiations with Greece, is contrary to the rules and principles of international law. Furthermore, Turkey consistently refers to the antecedent of UNCLOS, the Convention on the Continental Shelf (1958, Article 6.2) which states that special circumstances might justify a boundary that is not determined by the application of the principle of equidistance. According to Turkey, such a special circumstance is the fact that the Aegean islands are located on the Turkish continental shelf. However, Turkey is not a signatory of this Convention either, therefore, it may refer to the conventional provisions in its legal argumentation with less success, especially if we take into account that the existing delimitation agreement that Turkey refers to was concluded with a country (the TRNC) that is not recognized as sovereign by the international community. The jurisdiction of the international courts on the legal status of the islands points out certain examples that could be considered such a ”special circumstance” (as it was formulated in the 1958 Convention mentioned above), such as the artificiality, the underpopulation or the lack of independent economic activity. In the case of the Aegean islands, neither the natural creation nor the strong relation to the Greek state that dates back to thousands of years could be questioned, therefore, the Turkish standpoint seems unjustified.
In my opinion, a possible solution for the above-mentioned challenge could be a dispute settlement at the ICJ. However, the chances that Turkey would submit to the jurisdiction of any international court, are quite low: in 1976, Greece instituted proceedings against Turkey at the ICJ in order to settle the dispute of the recognition of the continental shelf of the islands but the latter denied the competency of the Court, therefore, the case was not processed.
However, there is an example of peaceful dispute settlement as well: Greece launched negotiations on the delimitation of maritime zones with Albania in 2018. In 2009, the two States drafted an agreement on the delimitation of the EEZ, however, Albania refused to ratify it, as the Albanian Constitutional Court ruled that it infringed the territorial integrity and thus the Constitution of Albania. Nevertheless, Greece aims at finding a compromise with this neighbor as well, even though it is obviously unfavorable for Albania: the continental shelf of certain Greek islands exceeds so far that Albania would end up having a relatively small EEZ. Moreover, Turkey also tries to put pressure on Albania – according to certain sources, Turkey played an important role in the failure of the negotiations in 2009. Due to the complex political situation, on 20 October 2020, Nikos Dendias, Greek Minister of Foreign Affairs and Edi Rama, Albanian Prime Minister agreed on jointly submitting the issue of the delimitation of the EEZ to the ICJ. It is important for both States to settle the dispute peacefully, in a way that complies with UNCLOS. With this step, Greece intended to indicate the importance of a dialogue and the recognition of the provisions of international law and of UNCLOS, instead of unilateral decisions that might infringe the territorial integrity or sovereignty of another State.
The infringement of territorial sovereignty on the sea is a rather sensitive topic for both States: as it had been pointed out above, the territorial sea may extend to 12 nautical miles, but the Greek territorial sea on the Aegean is currently set in 6 nautical miles. If Greece vindicates the maximum extent, it will overlap with the Turkish territorial sea that is fixed in 6 nautical miles. This could result in the situation that Turkey would need to ask for the permission of Greece for the innocent passage of its ships on its own territorial sea. That is why Turkey declared that such a unilateral decision of Greece would constitute a casus belli. On the other hand, it shall be taken into account that it is Turkey that intends to determine maritime issues unilaterally, without any negotiation with the neighboring country.
Based on the above, it can be concluded that theoretically there are several ways of resolving maritime disputes: the easiest and the most favorable way is the conclusion of a bilateral agreement, however, in case of a consistent disagreement, the Parties could turn to an international court (such as the ICJ, the ITLOS or and international court of arbitration). The probability of this scenario in the case of Turkey and Greece is very low, as it had been pointed out above. In my opinion, a possible solution could be the establishment of a bilateral customary law that prevails only between the two countries: this could be, for instance, the red line outlined by Giorgos Gerapetritis, Greek Minister of State on 14 October 2020. The red line equals to the maximum extent of the Greek territorial waters – 12 nautical miles – in the middle of the Aegean sea. As presented above, currently the Greek territorial waters extend to 6 nautical miles on the Aegean sea – and 12 nautical miles on the Ionian sea – therefore, the Minister emphasized that the Government intends to extend the territorial waters on the Aegean as well and will not tolerate the presence of Turkish drilling ships beyond that line. This could be a starting point of a future customary law.
However, it is apparent that Greece tries to secure allies that recognize the principles set out in UNCLOS, such as Italy, Egypt, Albania, and, most recently, the United States. Foreign Minister Dendias expressed his hope that the US might help in persuading Turkey to sign UNCLOS, or at least to accept the standard term of references for resolving issues related to the delimitation of the EEZ. Moreover, given the fact that all Member States of the European Union are signatories of UNCLOS as well, being a Candidate State of the EU, it is highly probably that Turkey shall sign and ratify the Convention in order to join the EU. The reality of the accession of the country to the EU now seems distant – considering the fact that Turkey gained the EU candidate status nearly 20 years ago, in 1999 – therefore, the ratification of the Convention does not seem to be urgent. In any case, the dispute shall be settled in a peaceful manner, probably with the help of the international community with which Greece has been trying to establish good political and diplomatic relations regarding maritime disputes.
 SHAW, Malcom N.: International Law, Cambridge University Press, Cambridge, 2017, pp. 156-158.  LATINO, Agostina: L'accordo Italia e Grecia: zone economiche esclusive e interessi nel Mediterraneo, Instituto per gli Studi di Politica Internazionale, 22 June 2020. Available: https://www.ispionline.it/it/pubblicazione/italia-e-grecia-zone-economiche-esclusive-e-interessi-nel-mediterraneo-26617  CAFFIO, Fabio: Con l’intesa italo-greca Roma entra nella partita delle Zee, Affari Internazionali, 11 June 2020. Available: https://www.affarinternazionali.it/2020/06/lintesa-italo-greca-roma-entra-nella-partita-delle-zee/  PAPANICOLOPULU, Irini: Prime osservazioni sull’accordo di delimitazione tra Grecia e Italia del 9 giugno 2020, Società Italiana di Diritto Internazionale e di diritto dell’Unione Europea, 18 June 2020. Available: http://www.sidiblog.org/2020/06/18/prime-osservazioni-sullaccordo-di-delimitazione-tra-grecia-e-italia-del-9-giugno-2020/  ΚΙΚΊΛΙΑΣ, Βασίλης: ΑΟΖ: Αποκλειστική Οικονομική Ζώνη. Από Τη Στρατηγική Κίνηση Στην Οικονομική Λύση. Εκδόσεις Καστανιώτη, Athens, 2012, pp. 68-72.  YIALLOURIDES, Constantinos: Part I: Some Observations on the Agreement between Greece and Egypt on the Delimitation of the Exclusive Economic Zone, Blog of the European Journal of International Law, 25 August 2020. Available: https://www.ejiltalk.org/18969-2/  YIALLOURIDES: ibid. ORTOLLAND, Didier: The Greco-Turkish dispute over the Aegean Sea : a possible solution?, Défense nationale et sécurité collective, February 2009, pp. 74-87.  IOANNIDIS, Nikolaos: The Continental Shelf Delimitation Agreement Between Turkey and “TRNC”, Blog of the European Journal of International Law, 26 May 2014. Available: https://www.ejiltalk.org/the-continental-shelf-delimitation-agreement-between-turkey-and-trnc/  See also: Denmark v. Norway, Judgement, Permanent Court of International Justice, 5 September 1933; The South China Sea Arbitration (The Republic of Philippines v. The People’s Republic of China), Permanent Court of Arbitration, 12 July 2016.
Enikő KRAJNYÁK is a doctoral student of the Central European Comparative Law PhD programme at the University of Miskolc and an intern at the Ferenc Mádl Institute of Comparative Law in Budapest. Her PhD topic is about the interrelation of Human Rights and Environmental Law with special regard to the Central European region. During university years she won the National Higher Education Scholarship and the New National Excellence Programme in 2020. She also completed Erasmus+ studies at the Jagiellonian University in Cracow and at the Aristotle University in Thessaloniki.