This was an argument presented before the arbitral tribunal in the Chagos Marine Protected Area case, in which Mauritius attempted to raise the sovereignty issue, although the arbitral tribunal under Annex VII LOSC had jurisdiction only to adjudicate disputes arising from the Convention. The Arbitral Tribunal refused to adjudicate the question, but it did suggest that: "the Tribunal does not categorically exclude that in some instances a minor issue of territorial sovereignty could indeed be concerning the interpretation or application of the Convention". If the two parties were ever to reach a courtroom, both would need to consent to a particular procedure before a particular court or tribunal. It is highly unlikely that a possible compromis, the agreement whereby such a process may start, would not make provision for such an eventuality.
One of the most popular tools available to international law at the beginning of the 20th century was the obligation to demilitarize certain territories, especially those newly transferred to other States in the aftermath of the major resettlement of the European borders after World War I. The Aegean Sea was a privileged area for the application of the concept, with no less than three different regimes mandating the partial or full demilitarization of several clusters of islands:
- The 1923 Lausanne Treaty provided in Article 13 for the partial demilitarization of the Greek islands of Lesvos (Mytilene in the original text), Chios, Samos and Ikaria (Nikaria in the original text);
- The 1923 Lausanne Convention, relating to the regime of the Straits, created a fully demilitarized security regime for the whole area, imposing obligations on Greece for the islands Lemnos and Samothrace. It also imposes obligations on Turkey for both sides of the Dardanelles and into the Sea of Marmara, as well as the islands of Imvros (Gokceada), Tenedos (Bozcaada) and the Rabbit islands (Tavcan).
- The 1947 Treaty of Peace with Italy provided in Article 14 paragraph 2 thereof for the total and permanent demilitarization of the Dodecanese islands, which were ceded to Greece in full sovereignty.
The Turkish side suggests that all three regimes remain in place for Greece although the 1936 Montreux Convention superseded the 1923 Lausanne Straits Convention and created a new security regime for Turkey. Greece affirms that the 1936 Montreux Convention has indeed replaced the 1923 Lausanne Straits Convention in its entirety and thus both demilitarization obligations have ceased to exist. It further accepts that the other two obligations remain in place but have since become obsolete, at a time when a missile or a drone makes the presence of military forces in situ irrelevant. It does point out, however, that the 1947 Paris Peace Treaty is for Turkey res inter alios acta, as the latter was not a contracting party. Ultimately, however, all objections boil down to an argument of self-defense under Article 51 of the UN Charter and customary law: Greece argues that, in view of the situation in Cyprus since 1974 and the on-going tribulations in the bilateral relations, including the "casus belli" resolution, it simply cannot afford not to avail itself of all means necessary for its national defense.
The parameters set for an eventual renewal of the preliminary talks between the two countries are certainly more political than legal. Nevertheless, it is affirmed by both parties that they should lead to a permanent settlement of the outstanding disputes, preferably by an international judicial instance. Greece has set out its preconditions in its 2015 Declaration recognizing the compulsory jurisdiction of the International Court of Justice with the express exception, inter alia, of any dispute relating to military activities and measures for the protection of its sovereignty and territorial integrity, as well as of any dispute concerning State boundaries or sovereignty over the territory of the Hellenic Republic. It is certainly true that a possible agreement between the parties could also include issues expressly excluded from such automated procedures, but in real life, the possibilities are really scarce.
The complexity of the issues that need to be addressed in a negotiation between Greece and Turkey is simply staggering. The peace dividend would be equally great – and still missing.
Copyright: Louisa GOULIAMAKI / AFP