TURKEY and Cyprus have issues that have festered for so long they are now in danger of spilling over into the sea with turbulent consequences for the future of the region.
As the common people do not always reap the full benefit of the resources of the sea such as oil and gas, it is important not to get too patriotic about oceanic sovereignty and not to be too judgemental about the competing claims of Turkey and Cyprus.
It is trite law that no state has sovereignty over the high seas because the sea belongs to the world at large. The well known song ‘Britannia Rules the Waves’ is fine as a patriotic song on the Last Night of the Proms, but in this century it is the Law of the Sea that rules the waves. Extravagant claims of sovereignty over the high seas ceased in the eighteenth century.
States are of course sovereign over the land of their territory, which means that they can legislate and enforce the law of the land within state territory.
In Cyprus, the northern part of island is not under the effective control of the internationally recognised state of Cyprus. So far as the EU, and the UN are concerned, however, that area is as much part of Cyprus as areas under the Republic’s effective control. This was the reason why, for example, the sovereign power of Cyprus to join the whole of the territory of Cyprus into the EU was such that the EU had to attach Protocol 10 of the Treaty of Accession suspending the operation of the EU legal regime in the north.
International law has long recognised that sovereign coastal states have sovereign rights over areas of the sea adjacent to the land of their territory. It is not however as easy to obtain compliance with international law as it is in the case of national law. This is because it is one of the basic principles of international law that the consent of states is essential at every level of enforcement. It follows that Turkey cannot be compelled to accept either the sovereignty of Cyprus or her Exclusive Economic Zone (EEZ).
At the apex of the system of consensual compliance is the International Court of Justice (ICJ). The jurisdiction of the ICJ is based on the will of state parties and when its jurisdiction is invoked it applies, amongst other sources of law, international conventions and international custom, as evidenced by general practice accepted as law.
States are supposed to settle disputes by peaceful means and resolve any conflicts by negotiation, enquiry, mediation, conciliation arbitration; and in doing so they can enter into cooperative arrangements irrespective of any boundary dispute between them. States are not obliged to insist on their strict legal rights, particularly if those rights are grounded in international law with no means of enforcement.
The sovereignty of a state extends beyond its land territory and its internal waters to a belt of sea adjacent to its coast. Such sovereignty is exercised in accordance with international law which guarantees flag states the right of innocent passage. More controversial has been the breadth of territorial waters. However, in 1983 the US indicated that it would respect claims of up to 12 miles and this limit is now well established in international law.
Flag states have rights of innocent passage inside the 12 mile limit provided such passage is not hovering and provided it is innocent.
The rights to the rich natural resources, including oil and gas reserves, frequently found offshore within the continental margin, are governed by the principle first propounded by US President Truman in 1945 and confirmed by the ICJ in the North Sea Continental Shelf Cases 1968, namely that the rights of the coastal state in respect of the area of continental shelf that constitutes a natural prolongation of its land territory into and under the sea exist ipso facto and ab initio by virtue of its sovereignty over the land and as an extension of it in the exercise of sovereign rights for the purpose of exploring the sea bed and exploring its natural resources. In short there is here an inherent right. The seaward maximum limit is set at 200 nautical miles or its natural prolongation whichever is the greater.
The EEZ is of recent vintage. It was championed by African and South American states to ensure they kept control of their resources, which were under threat from the big maritime nations of the world. Unlike the continental shelf, the right to an EEZ has to be claimed. In the Mediterranean, many states have not claimed such zones owing to the fact that it is geographically impossible to claim the full 200 mile without the consent of other states. The zone gives extensive rights to natural resources to the coastal state.
No state has sovereignty over the high seas and the international sea bed areas, but as regards the latter, some states, mostly in the Third World, regard the international sea bed as part of the common heritage of mankind whereas countries like the USA assert that the freedom of the high seas regime applies to the sea bed that can be exploited freely. As regards the Mediterranean, if all countries claim a 200 mile EEZ there would not be much freedom of the high seas left because the sea is not wide enough and the number of countries so many that the high seas regime would be squeezed out. Cooperation is therefore essential if the resources of the sea are to be exploited equitably.
The problem between Turkey and Cyprus arises because in 2004 Cyprus claimed her EEZ in accordance with the 1982 Convention on the Law of the Sea which she had ratified. Turkey has not ratified the 1982 Convention and has not claimed her own EEZ but, seemingly, claims the freedom of the high seas.
Turkey’s particularised objections are that she does not recognise the state that exercised sovereign power to grant explorative and drilling rights in the EEZ of Cyprus. The sovereignty of Cyprus is in principle shared between Greek and Turkish Cypriots such that unless there is a solution to the Cyprus problem the present Greek Cypriot controlled government of Cyprus should not engage in exploiting her EEZ, unless and until the Cyprus problem is resolved. In retaliation to the explorative drilling carried out on behalf of Cyprus, Turkey and northern Cyprus have signed an agreement delineating a boundary between them based on a number of agreed coordinates dividing the continental shelf appurtenant to each. This document is not easily accessible and it has not been possible to evaluate its legal nature or assess its geomorphic scope.
This is an unconvincing stance which is unsound in fact and in law. First, because in light of the fact that the Cyprus problem has been around for 51 years, it may take many more years to resolve; and second, because it would be impossible to persuade anyone that Cyprus should not exploit the resources of her EEZ at a time of economic crisis, when she is fully recognised both by the United Nations and the European Union as possessing sovereignty over all the territory of Cyprus.
The position of Cyprus as it appears from its website is as didactic as it is pompous. In effect, it argues that Cyprus as a coastal state has the right to exploit the natural resources of its zone, and agree boundaries with other states which Cyprus did with Egypt, Lebanon and Israel in accordance with the internationally accepted procedures. The statement then goes on to make its best point, namely: that although Turkey has not ratified the 1982 Convention, towards the end of 1986, it declared her own EEZ in the Black Sea and concluded an agreement with the then Soviet Union and, subsequently, with Bulgaria and Romania. It is the strongest argument because it seems Turkey has consented to an emerging rule of international customary law concerning EEZs and is therefore bound by it notwithstanding she is not party to the 1982 Sea Convention.
If there is strength in Turkey’s claim, it lies in her geography and in her maritime power. She would a
rgue that it is inequitable if a big and powerful country with the longest coastline in the Eastern Mediterranean, and the strongest navy in the region, is shut out from the sea bed resources around her coast because of treaty obligations with which she has not consented. It has to be said however that the 1982 Convention has received such worldwide acceptability that it has become part of international customary law which is binding on all states. Nevertheless, in light of the essential role of consent in the formation of customary international law, it is permissible for a state to persistently object to an emerging rule of customary law and if it does so, in strict law, it would not be bound by it.
Unfortunately, persistent objection usually takes the form of sending in warships and aircraft, although it looks as though Turkey has also decided to object via a novel route namely her agreement with northern Cyprus. Whatever route she has chosen, it is not easy because, as has been said, the persistence of her objection is compromised by her claim to her own EEZs in the Black Sea.
And yet even if Turkey’s legal claim is weak, her equitable claim has merit, both in connection with her claims on behalf of the Turkish Cypriots as well as in her own right. But equitable principles cut both ways. Turkey’s effective control of 37 per cent of the island means that Cyprus too has a much stronger claim in equity on land than Turkey’s putative claim to the equitable sharing of the sea bed.
There is a Chinese proverb the effect of which says that every crisis is also an opportunity, and maybe this crisis will concentrate the mind on the benefits of sharing equitably both on land and under the sea bed.
The world has finite resources and the competitive imperative between nations in the recent past resulted in so much conflict that the hope is that it has now given way to the cooperative imperative.
Alper Riza is Queen’s Counsel at Goldsmith Chambers Temple, London. The above article is based on his talk at an Association for Cypriot, Greek and Turkish Affairs (ACGTA) seminar at the London School of Economics on November 18
