Whose Sea? A Turkish International Law Perspective on the Greek-Turkish Disputes

ARTICLES - 19 October 2020

By Riza Türmen

Former Judge of the European Court of Human Rights

The discovery of fossil fuels in the waters of the Mediterranean has brought the sensitive issue of drawing maritime borders back to the table, as Turkey has sent research ships within disputed waters. To complete our Whose Sea series on the issues of the Eastern Mediterranean, we invited Dr. Riza Türmen, a Turkish opposition deputy and former judge of the European Court of Human Rights, to present a Turkish view on the arguments about the border conflicts and share his proposals for the settlement of the disputes.

The Law of the Sea Convention

The Law of the Sea Convention was the result of the third United Nations Conference on the Law of the Sea (UNCLOS) which took place between 1973 and 1982. Two major developments in the wake of the second, failed Conference in 1960 led to the convening of a third UNCLOS.

Firstly, some coastal states bordering oceans, such as Chile, Peru and Ecuador, claimed 200 nautical miles of territorial sea to cover fishing grounds. Moreover, 66 countries extended their territorial waters to 12 nautical miles. 12 nautical miles as maximum breadth of territorial waters and 200 nautical miles of economic zone as adopted in the Conference was a compromise that prevented unilateral extension of territorial waters to 200 nautical miles.
The second critical development was the discovery of the economic importance of the resources of the seabed and subsoil beyond the limits of national jurisdiction.

The Convention represents not only the codification of customary norms, but also the progressive development of international law. The most significant feature of the Convention was its "package" quality, which established a link between traditional law of the sea issues, like freedom of high seas or innocent passage through territorial waters, and newly emerging issues like seabed authority. The result of the package approach was that the states parties to the Convention had to accept the whole package in its entirety.

The Turkish delegation participating in the Law of the Sea Conference submitted proposals which, while accepting the 12 mile rule, would treat the Aegean Sea as an exception to this rule.

The main trends at the Conference and the package deal approach were not favorable to the position Turkey held regarding the dispute in the Aegean Sea. Turkey's most pressing and obvious concern was to prevent the application of the 12 miles territorial sea rule in the Aegean Sea. 12 miles of territorial waters would convert the Aegean into a Greek lake because of the existence of a great number of Greek Islands. This would lock Turkey out of the Aegean and confine it to its territorial waters. Such a condition would reduce the high seas by half.The maritime jurisdiction areas, i.e. Turkey's economic zone or continental shelf to be delimited would also considerably diminish.

In view of all this, the Turkish delegation participating in the Law of the Sea Conference submitted proposals which, while accepting the 12 mile rule, would treat the Aegean Sea as an exception to this rule. Turkey also made several attempts to limit the marine spaces of islands. Its proposals were met with strong objections from states with islands. In the informal negotiations, states with islands argued that Turkey was trying to settle its delimitation problem by distorting the regime of islands and that islands, just like the mainland, were part of the territory and were equally entitled to have maritime spaces.

As a result, today, Turkey is one of the 16 countries which have not signed or ratified the Convention. The question then arises: if some of the provisions of the Convention have attained the quality of customary law norms, will Turkey be bound by these norms? Under generally accepted rules of international law, a persistent objector state, that is, a state which has consistently and clearly objected to a norm of customary international law since the norm's emergence, is not bound by this norm. This point of view was adopted by the ICJ in the Fisheries case between the UK and Norway (1951) or in the Asylum case between Columbia and Peru (1950). Accordingly, the 12 mile rule, even if it is considered to be a norm of customary international law, will not be binding on Turkey. The fact that Turkey has proclaimed 12 nautical miles of territorial sea in the Black Sea and the Mediterranean does not change this conclusion. As the Turkish proposals submitted to the Conference indicate, Turkey's objection is not against 12 miles as a general rule, but rather against the implementation of this rule in the Aegean which has particular circumstances.

The Aegean Issues Between Turkey and Greece

The Aegean issues between Turkey and Greece are multifaceted. They include the delimitation of the continental shelf, the breadth of territorial waters, the demilitarization of the Eastern Aegean islands and airspace problems. All these questions are interlinked: one cannot be settled without solving the others.

The essence of the problem is such that the two sides have fundamentally different perspectives concerning the Aegean. For Turkey, the Aegean Sea is a common maritime area between the two riparian states. For Greece, the Aegean Sea is part of the Greek homeland. Any concession to be made would be a concession from the homeland and no government in power would be willing or strong enough to do that. The crisis of this past summer in Eastern Mediterranean was the fourth time Turkey and Greece came to the brink of war.

The essence of the problem is such that the two sides have fundamentally different perspectives concerning the Aegean.

Each time, nationalistic emotions on both sides of the Aegean led to a rapid escalation and compelled the leaders of both countries to resort to nationalistic rhetoric that suited their own political agenda.

The present crisis in Eastern Mediterranean is basically a delimitation problem. However, the unsolved Cyprus question adds a complex political dimension to it.

The conclusion to be drawn from past experiences is that the delimitation of maritime jurisdiction areas is a poison in the relations between the two states in the Aegean, that brings them to the brink of war each time a crisis erupts, and they do erupt periodically. Turkey and Greece are facing a choice: either they live under the permanent risk of crisis in their relations, or have the political will and courage to settle the dispute, through negotiations - or through a third-party settlement (the ICJ or the Court of Arbitration) if necessary.

The rules of international law that need to be applied to the dispute are more or less clear. Articles 74 and 83 of the Law of the Sea Convention on the delimitation of the Exclusive Economic Zone and the Continental Shelf encourage the parties "to achieve an equitable solution", but are silent as to the method with which to reach that goal. However, the existing jurisprudence on the matter sheds light on this question. The ICJ expressed the view in its Gulf of Maine judgment (1984) that delimitation is not a unilateral act. It requires the agreement of all interested parties. Without an agreement, unilateral acts or claims have no legal value. Similarly, bilateral agreements between Turkey and Libya or Greece and Egypt have a binding effect only on the states that signed them, but have no legal effect on other coastal states.

In the North Sea Continental Shelf judgment (1969) regarding the delimitation of continental shelf between Germany as one party and Denmark-Netherlands as the other, the ICJ indicated the principles and rules applicable to the delimitation disputes, as follows:

There is no single method of delimitation the use of which is in all circumstances obligatory.
Delimitation is to be effected by agreement. The parties are under an obligation to enter into negotiations with a view to reach an agreement. The negotiations should be meaningful, which will not be the case when either one of them insists upon its own position without contemplating any modification to it.
An agreement should be in accordance with equitable principles. Equity in this context is not simply a matter of abstract justice but implementing a rule of law which requires the application of equitable principles.
To reach an equitable solution by applying equitable principles, all relevant circumstances such as the length of coastlines or presence of islands should be taken into account. A reasonable degree of proportionality should exist between the extent of the continental shelf appertaining to the concerned states and the lengths of their respective coastlines.

The presence of islands is an important element in reaching an equitable solution. The ICJ and Arbitral Tribunals granted maritime areas to islands according to their circumstances and with the goal of reaching an equitable solution. In some cases, neither the ICJ nor Arbitral Tribunals granted any economic zone or continental shelf to the islands.

The sovereignty of the islands belongs to Greece, but on the condition that they would be demilitarized so that they would not pose a threat to Turkey's security.

For example, in the France-UK delimitation case, the Arbitral Tribunal granted only 12 miles of maritime space to the British islands near France. In the Romania vs Ukraine case, the ICJ did not grant any maritime space to the Snake island. In some cases, islands are given half effect on the demarcation line: in the Tunisia-Libya case, the ICJ granted half effect to Kerkennah islands of Tunisia. In some other cases islands are given full effect: the Arbitral Tribunal in the Eritrea-Yemen case decided that the islands are part of the mainland and should have full effect on delimitation.

Demilitarization of the Greek Islands

The islands of Lemnos, Samothrace, Lesvos, Chios, Samos and Ikaria were ceded to Greece by the Decision of Six Powers (United Kingdom, France, Russia, Germany, Italy and Austria-Hungary) in 1914 on the condition that they should be demilitarized. Article 12 of the Lausanne Peace Treaty of 1923 confirms the 1914 Decision of Six Powers and article 13 provides modalities of the demilitarization of the said islands. According to this article, the Greek government agrees not to establish naval bases or fortifications in the said islands. The article also stipulates that the Greek military forces in the said islands will be limited to the normal contingent for military service, as well as to a force of gendarmerie and police in proportion to ones in the Greek territory. Therefore, the issue, as far as the said islands are concerned, is whether Greece complies with the commitments it has undertaken under the Lausanne Treaty. That is to say, whether Greece has established naval bases or fortifications on these islands which are prohibited or whether the Greek military presence on the islands is in line with what is stated in article 13.

A second group of islands includes Lemnos and Samothrace. These two islands were demilitarized under the Convention of Straits annexed to the Lausanne Peace Treaty, together with the demilitarization of the straits zone. It stipulated a stricter regime, an absolute demilitarization without exceptions for these two islands, as they are vitally important for the security of Turkey due to their proximity. The 1936 Montreux Convention on Turkish straits terminated the demilitarized status of the Straits but did not lift the demilitarized status of Lemnos and Samothrace.

The third group of islands is the Dodecanese islands. In 1947, through the Paris Peace Treaty, Italy ceded sovereignty over these islands to Greece on the condition that "these islands shall be and shall remain demilitarized".

In all these international arrangements, the main idea was to satisfy Turkey's security concerns. This is achieved through the demilitarization of the Greek islands that lie at a very close distance to the Turkish coast and encircle the Anatolian peninsula from the north to the south of the Aegean Sea. All the above-mentioned treaties contain an inherent balance. The sovereignty of the islands belongs to Greece, but on the condition that they would be demilitarized so that they would not pose a threat to Turkey's security. This balance is not preserved when Greece militarizes the islands. It is clear from the international treaties that Greece's sovereignty on the islands is limited by its undertaking to demilitarize the islands. This was also the condition for establishing Greek sovereignty over the islands.

Greece does not deny the fact that the islands are militarized but asserts that it is exercising its right of self-defense contained in article 51 of the UN Charter. However, conditions of the right of self-defense as envisaged in the customary international law or Article 51 of the UN Charter do not exist. The right of self- defense arises only when there is an armed attack or a serious imminent threat of attack. Turkey has never challenged Greek sovereignty over the Eastern Aegean islands. There has never been a threat of an imminent armed attack.

It is rather unconvincing to claim now that it is Greek security that matters and use this argument to justify the exercise of the right of self-defense.

It is Turkey's security considerations that brought the islands under demilitarized status. Therefore, it is rather unconvincing to claim now that it is Greek security that matters and use this argument to justify the exercise of the right of self-defense.

Airspace Questions

Another source of dispute is over the exercise of the powers of the Air Traffic Service (ATS) authority over the high seas.

Greece's 10 Mile Territorial Sea for the Purposes of Aviation

The regime of airspace has always been a corollary to the regime of subjacent territories. This is the unequivocal rule of international law as enshrined in Articles 1,2 and 12 of the Chicago Convention as well as in Annex 2 on the Rules of the Air. Under this rule, sovereignty of the state over the airspace is limited by its land territory and territorial waters.

Greece is the only country which does not comply with this rule. In 1931, Greece extended its territorial waters with a Decree "for the purposes of aviation" to 10 nautical miles. At that time, the breadth of Greek territorial sea was 3 nautical miles. Now, it is 6 nautical miles. The Decree of 1931 purports to establish two different territorial waters for different purposes and with different limits. Such a claim is a clear violation of international law as well as articles 1 and 2 of the Chicago Convention to which Greece is a party. This is not only a bilateral question between Turkey and Greece, but it is also a concern for the international community. In the Aegean, beyond 6 miles of territorial sea, it is high seas and international airspace is regulated by ICAO under Rules of the Air. Greece, by its claim of 10 miles of airspace has carved arbitrarily 4 additional miles from international airspace and consequently, with about 2,000 Greek islands in the Aegean, international airspace has been considerably reduced.

FIR Responsibility

Airspace over the Aegean high seas is part of Athens' Flight Information Region (FIR). FIRs are depicted in the regional plans and are established with the sole aim of providing facilities and services to the civilian aircraft flying in the international airspace.
In a resolution adopted by the 22nd ICAO Assembly in 1977, it is stated that assignment of FIR responsibility over the high seas "shall be limited to technical operations" and "provision by a state of air traffic services within airspace over the high seas does not imply recognition of sovereignty of that state over the airspace concerned."

The problem in the Aegean arises from Greece's interpretation of its FIR responsibility as a national boundary line. Accordingly, Greece requests flight plans from the Turkish military aircraft and asserts that refusal of submitting flight plans by the Turkish military aircraft constitutes "a violation of the Greek FIR". However, under ICAO rules, military aircraft flying in the airspace over the high seas are under no obligation to submit flight plans. Furthermore, there cannot be a "violation" of Greek FIR, since FIR responsibility does not attribute sovereignty to Greece over international airspace.

Proposals for the Settlement of the Disputes

Delimitation of maritime areas in the Aegean Sea and the Mediterranean are two distinct processes. Whereas the Aegean Sea delimitation is a bilateral process, the delimitation in the Mediterranean is a multilateral one.

A multilateral agreement on delimitation of marine spaces may defuse the tension in the region and pave the path to peace and stability.

As far as the delimitation of the Aegean continental shelf is concerned, it is incumbent upon the parties to enter into negotiations. A conducive atmosphere dissociated from nationalistic rhetoric is necessary. Confidence-building measures such as a joint declaration that would reflect the political will of both parties to find an agreed solution and to refrain from all unilateral acts during the negotiations will be an important step to this effect.

The parties can also agree to bring the dispute to a third party for settlement, such as to the ICJ or Arbitration, if they cannot reach an agreement on the whole or part of the disputed issues. In view of the existing jurisprudence, no plausible explanation exists for Turkey to refrain from taking the dispute to a third-party settlement.

To give the negotiations a chance, both parties should rescind their maximalist demands. Greece should give up its claim that the tiny island of Meis/Kastellorizo just off the coast of Turkey has a maritime space of its own, which would result in depriving Turkey from a maritime space in the Mediterranean proportional to its coastline. By the same token, Turkey should drop its claim that Crete, an island with 260 kilometers of coastline, does not have any economic zone or continental shelf.

The delimitation in the Mediterranean is more complex because of political problems that engage many parties. Delimitation in the area involves Turkey, Syria, Israel, Egypt and Cyprus. As far as Cyprus is concerned, Turkey does not recognize the Greek-run Republic of Cyprus as an independent state, and the Turkish Republic of Northern Cyprus is recognized only by Turkey. Such a complex political landscape does not allow all the interested parties to sit around a table, unless they are willing to leave their political conflicts aside and initiate a multilateral negotiation process.

The region is full of political problems. A multilateral agreement on delimitation of marine spaces may defuse the tension in the region and pave the path to peace and stability. Under such circumstances, the energy resources of Eastern Mediterranean could serve as a cause for cooperation rather than conflict in a region that surely does not need any more of these.

As far as airspace and demilitarization of the islands are concerned, their solutions depend on the implementation of the international treaties to which both states are parties, or ICAO rules. However, if both parties agree, they may also be submitted to third-party settlement.