The Legal Aspects of Turkey's Claims over Offshore Blocks in the Exclusive Economic Zone of Cyprus - ANTONIOU McCOLLUM & CO.

July 25, 2017
Anastasios A. Antoniou

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Total and ENI hold the exploration licences for block 6 in the Exclusive Economic Zone ("EEZ") of the Republic of Cyprus. Turkey claims that part of block 6 falls within its own continental shelf and has extended warnings to Cyprus as well as Total and ENI as regards their exploration operations. This note assesses Turkey's claims vis-à-vis the Cypriot EEZ from an international law perspective.

The Republic of Cyprus is the only existing Subject of International Law on the island of Cyprus and its government is the sole legitimate government on the island. The act of declaring the ‘TRNC’ is ‘legally invalid’ at International Law and the only legitimate State on the island of Cyprus is the Republic of Cyprus.

One Cyprus? - FOREIGN AFFAIRS

October 27, 2016Jonathan Gorvett

A Deal Is Close, But Not Certain

At the end of this month, the island of Cyprus is scheduled to undergo another division, adding to its long history of intercommunal splits. At 4 AM on October 31, the southern, Greek side of the island will set its clocks back by one hour in accordance with European winter time. Yet for the first time ever, on the other side of the UN-patrolled buffer zone dividing the south from the [illegally occupied by Turkey] Turkish-majority north, time will stay the same. There, in the [so-called] Turkish Republic of Northern Cyprus (TRNC), the breakaway state recognized only by Turkey, clocks will align with those in Ankara instead, following the Turkish government’s recent decision to abolish daylight saving time.

Cyprus moves to block Israel-Turkey gas pipeline - INTERFAX

By Verity Ratcliffe, 7 July 2016 12:37 GMT

Israel and Turkey signed an agreement to normalise relations last week after a six-year diplomatic spat, raising hopes that Israeli gas could be exported to Turkey by pipeline. However, Cyprus has indicated it will block the construction of a Turkish pipeline that passes through its territory.

When asked about the project, Cypriot government spokesperson Nicos Christodoulides told reporters on Tuesday that Cyprus would oppose it because the country is under occupation by Turkish forces and the pipeline would serve Turkey.

The two parts of Cyprus would need to be unified for a pipeline to be approved, he added.

The island of Cyprus has been split into two parts – one consisting of Greek Cypriots and the [ethnically cleansed, formerly 90% majority Christian, 90% of properties owned by them] controlled by Turkish-Cypriots – since 1974, with the latter not recognised by the international community. The result is that the Republic of Cyprus does not have diplomatic relations with Turkey.

Turkey's natural gas war - CHINA.ORG

By Wang Jin, 23 April 2016

Turkey is trying to handle the potential natural gas crisis caused by the volatile situation in the Middle East and its tense ties with Russia.

Turkey has taken diversified measures to handle the potential natural gas crisis caused by the volatile situation in the Middle East and its tense ties with Russia.

So far, Russia has been the largest gas supplier of Turkey, delivering gas to the latter via Ukraine or the Black Sea. However, because of the tensions between Russia and Ukraine, the Ukraine route may be closed by 2019. Turkey thus has to develop a Plan B.

Additionally, the relations between Turkey and Russia have also been less than friendly. In the recent years, the two sides have differed widely on a series of major regional issues, such as the Ukraine crisis and the Syria crisis. At the end of last year, the bilateral ties worsened further as Turkey shot down a Russian fighter jet. Given this background, Turkey is eager to reduce its reliance on Russian gas to avoid being "abducted" by the latter in international affairs.

Cyprus in the Middle | Foreign Affairs

SAM PEPPLE & MATT BAKER / SAMPLE CARTOGRAPHY

January 12, 2016, By Jonathan Gorvett

Nicosia Holds the Keys to Syria, the Migrant Crisis, and Gas in the Eastern Mediterranean

On a recent December day, people strolling the seaside boardwalk in the Cypriot city of Limassol had their peaceful afternoon suddenly interrupted. Overhead, a brace of British warplanes roared from their base at nearby RAF Akrotiri, flew low over the eastern Mediterranean, and headed for Syria, just 100 miles away.

This was the second time the boardwalk was shaken by warplanes that day. Earlier, onlookers had also witnessed Israeli warplanes flying overhead during exercises. In the harbor beneath them, Russian warships lay at anchor, refueling on their way east. Later, too, a Limassol-based seismic research vessel, chartered by a U.S. company, sent frantic radio messages to say it had been intercepted and then shadowed by a Turkish frigate.

All the (now apparently routine) military activity is a visible reminder that Cyprus, the European Union’s far-flung Levantine outpost, is once again at the heart of a Gordian knot of regional conflicts and conundrums. These range from the Syrian refugee crisis to Israeli oil and gas development; from Turkey’s accession to the European Union to Russia’s growing role in the Middle East. Lebanon and Egypt feature in the mix, too, as do maritime boundary disputes between Greece and Turkey.

All these issues run through Nicosia, Cyprus’ divided capital, where UN-sponsored talks aimed at reuniting Greek and Turkish Cypriots are now entering year 52. It is, perhaps surprisingly, the success or failure of these seemingly endless talks that is increasingly vital for the resolution of the host of other overlapping and interlinked regional dilemmas.

GAS TROUBLE

The interconnection between the dispute over Cyprus and the region’s other dilemmas was most recently highlighted in late December by reports of a new rapprochement between Turkey and Israel. Under the reported terms of renewed relations (on hold since 2010), the two countries may start looking again at running a natural gas pipeline between them, which would link newly discovered Israeli offshore gas fields to Turkey, a country with a growing demand for energy but without much in the way of hydrocarbons itself.

A quick look at the map, however, demonstrates the problem with such an idea—and why Cyprus may be key to its solution. South of the island, at the extremity of its 200-mile maritime exclusive economic zone (EEZ), lies Cyprus’ undeveloped Aphrodite natural gas field. Just adjacent to this lies the undeveloped Israeli Leviathan field, and farther to the southwest, Egyptian gas fields stretch along that country’s North African coast.

Any undersea link between Israel and Turkey would have to either pass through Lebanese and Syrian waters or cross the Cypriot EEZ. The first alternative is obviously fraught with difficulties. Aside from the ongoing conflict in Syria, Israel and Lebanon have still not agreed to final maritime boundaries. A delimitation treaty between Cyprus, Israel, and Lebanon remains unratified by the Lebanese parliament.

Yet the alternative has major problems, too. Specifically, the Republic of Cyprus and Turkey remain hostile, and the development of a pipeline through the region would also touch on Cyprus’ own plans for exploiting the Aphrodite field.

Ankara does not recognize the government of the Republic of Cyprus, which has been composed almost entirely of Greek Cypriots since intercommunal violence between Greek and Turkish Cypriots broke out on the island in 1964. Instead, Turkey, which invaded Cyprus in 1974, is the only country in the world that recognizes a breakaway state in the northern third of the island—the so-called Turkish Republic of Northern Cyprus (TRNC)—which is composed almost entirely of Turkish Cypriots and covers the territory conquered by the invading Turkish troops. Turkey still maintains some 30,000 soldiers in the north, which is separated from the territory controlled by the Republic of Cyprus by a UN-patrolled buffer zone. Likewise, the Republic of Cyprus refuses to recognize either the TRNC or open relations with Turkey.

One outcome of the dispute has been the lack of any agreement between Cyprus and Turkey on maritime boundaries, with the TRNC also recently claiming offshore rights and a share of Aphrodite and of any other future discoveries. The bickering has hampered oil and gas exploration in much of the eastern Mediterranean, instantly heightening tensions whenever a survey ship leaves port.

In other words, it is highly unlikely that Cyprus, which enjoys international recognition and EU membership, will allow a pipeline to Turkey across its EEZ. At the same time, the country faces a problem in developing its gas resources without Turkey’s apparent partner, Israel.

Cyprus is just too small a market, and too far away from the modest-sized Aphrodite field, to warrant an expensive pipeline. Experts have suggested that a more economically viable alternative would be to combine Aphrodite with the nearby Leviathan field and then send gas from both down a shorter pipeline to Egypt, where it could be converted into liquefied natural gas at two currently unused terminals and then exported.

Cyprus has thus been keen on closer ties with Israel—especially after Israel’s relations with Turkey took a nosedive back in 2010—hence the Israeli jets flying over Limassol.

Despite the apparent alignment of interests, however, the two countries have made little progress sealing a gas deal. Long-running negotiations on an all-important deal that would pool the two gas fields’ resources have dragged on without result. The endless talks had long puzzled Cypriots, yet perhaps the recent announcement of an Israeli-Turkish rapprochement offers a clue to Israeli reluctance to sign on to anything: Tel Aviv has been all too conscious of the effect that dealing with the Greek Cypriots might have on its future relations with Turkey, which has historically been a far more important strategic partner.

EUROPEAN DISUNION

The lack of diplomatic relations between Cyprus and Turkey is also a major spanner in the works when it comes to Turkish-EU relations, which were recently revitalized by the EU’s panicky reaction to the Syrian refugee crisis.

Since Turkey began EU accession negotiations back in 2005, it has gotten almost nowhere. Croatia, which began the process at the same time, joined in 2013. Although there are many factors, one of the principal holdups is that Cyprus has blocked the process.

And so, when EU officials declared that under a new arrangement with Turkey, Ankara would undertake to halt Syrian refugees entering the EU in return for financial aid, a liberalized visa regime, and a reinvigoration of the accession process, it raised Greek Cypriot eyebrows. There have been no indications so far, either, that the Republic of Cyprus, which can still effectively block various parts of the accession process, will allow a new opening to happen. Meanwhile, Ankara has declared that whatever new arrangements are made with Brussels, none of them will apply to its relations with Cyprus, despite its EU membership.

It could be argued that the Turkish accession process is, in any case, something of a pantomime, given fundamental French and German objections to Turkish membership. At any rate, it remains to be seen how the continued Cypriot block will impact the implementation of the Syrian refugee deal.

Hostile nonrecognition between Turkey and Cyprus also figures into a further dispute—that between Greece and Turkey over maritime boundaries in the Aegean and eastern Mediterranean. The borders have never been formalized, which causes considerable tensions as well as mock dogfights between the two countries’ fighter jets and, more recently, complications for Greek and Turkish coast guards seeking to control the flow of refugees and migrants.

Settlement of the boundary between Greece and Turkey involves determining the western limits of Cyprus’ maritime area, as this intersects with those of the other two countries. Currently, whereas Greece recognizes Cyprus’ boundaries, Turkey does not—a reason behind the recent shadowing of the Limassol-based research ship.

NO PROBLEM

Many of the region’s problems, however, could go away if the current UN-sponsored talks on reunifying Cyprus succeed. A settlement, which would have to be agreed upon via an islandwide referendum, would see Turkey recognizing the new, bicommunal Cypriot government, and vice versa—a key to unlocking the closed doors. And so, U.S. Secretary of State John Kerry, French President François Hollande, British Foreign Secretary Philip Hammond, and Chinese Foreign Minister Wang Yi all visited the island in December to give their official support to a deal.

Prospects for an agreement are widely seen as being better now than at any time in the last ten years. This is largely because this time, both the Greek and Turkish Cypriot leaders—Nicos Anastasiades and Mustafa Akinci—are known to be committed to finding a solution, a rarity in Cypriot negotiations. There is even some talk of a referendum in the spring of 2016, although this is likely overly optimistic.

Key to such a referendum succeeding, though, may be Russia, whose foreign minister, Sergey Lavrov, also visited the area in December, back-to-back with Kerry. Russia enjoys both a Christian Orthodox connection to the Greek Cypriots and a historic link to the large, pro-Moscow Greek Cypriot former communist party, AKEL, whose approval of any settlement would be vital.

Further, although Greek Cypriots are in myriad ways anchored to the West and are themselves EU citizens, many also have a highly favorable view of Moscow. Scores of Russians have invested in or settled in the republic, remaining there despite losing out in the 2013 financial crisis. Indeed, a recent poll showed that a majority of Greek Cypriots favor granting Russia some military facilities on the island, with around a third supporting granting Moscow similar bases to those the British warplanes have been using to bomb Syria.

At the same time, of course, Russia’s relations with Turkey have seldom been worse. And the back-to-back visits from Kerry and Lavrov raised another aspect of the current knot of problems: the continuing rivalry between Moscow and the West for regional influence, heightened by recent Russian intervention in Syria.

For its part, the United States has given greater priority to the current talks than on many previous occasions (Vice President Joe Biden has also been a recent visitor to the island). Yet for all the heavy diplomatic guns being lined up behind an agreement, ultimately, it will come down to a referendum of the Turkish and Greek Cypriots.

And there, considerable obstacles remain, with key issues over security and property still to be resolved. Meanwhile, the issue of reunification remains extremely emotional in both communities. The last time the UN held a similar referendum, in 2004, Turkish Cypriots voted for the deal and Greek Cypriots against—by a large margin. This time around, the stakes are even higher, with the future of gas wells to refugees hanging on which box the Cypriots end up ticking

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The Continental Shelf Delimitation Agreement Between Turkey and “TRNC” | EJIL

May 26, 2014, Nikolaos Ioannidis*
Last month, Turkey submitted a note verbale to the Secretary-General of the United Nations setting out the geographical coordinates of its continental shelf in the Eastern Mediterranean, as established by a delimitation agreement with the “Turkish Republic of Northern Cyprus” (“TRNC”). The agreement was signed on 21 September 2011 and ratified by the Turkish government on 29 June 2012. A map published by the Turkish Ministry of Foreign Affairs depicting the agreement is pictured below. (The reasons why the “TRNC” is in quotation marks will be elaborated below.) By transmitting this document to the UN Secretary-General, Turkey sought to achieve the publication of the agreed coordinates in the Law of the Sea Bulletin (LSB), where official submissions by states regarding the law of the sea are published. Although Turkey has not acceded the UN Law of the Sea Convention (‘LOSC’), it acted in accordance with article 84(2) LOSC (due publicity of charts or lists of geographical coordinates regarding continental shelf delimitation). Nonetheless, the submission of Turkey was not listed as an official deposit on the website of the Department of Oceans and the Law of the Sea (DOALOS).

The Turkish approach on the regime of islands
The delimitation agreement outlines some of Turkey’s longstanding positions on the law of the sea. It deals only with the continental shelf and does not provide for the delineation of an exclusive economic zone (EEZ). While there is nothing precluding coastal states from choosing which maritime zones to claim and/or to delimitate, Turkey’s choice not to delimit an EEZ with the “TRNC” alludes to the Turkish position that islands in certain regions (implying the Aegean Sea) should not be entitled to claim maritime zones of their own other than territorial sea or should have reduced capacity to generate such zones. This stance was formulated in the context of the dispute between Turkey and Greece concerning sovereignty over the maritime space of the Aegean Sea;  since the 1970s, Turkey has sustained that the Aegean islands are situated on the continental shelf of Anatolia (Turkey) and, consequently, do not have a continental shelf of their own. This matter was an apple of discord between the Turkish and the Greek delegations over the course of the Third United Nations Conference on the Law of the Sea (‘UNCLOS III’). In the end, by virtue of article 121(2) LOSC, the Conference recognised the rights of islands to generate maritime zones. Article 121 LOSC reflects customary law (ICJ, Nicaragua v Colombia (2012), para 139) and, accordingly, applies to non-states parties as well.

Turkey’s resentment at the provisions on the regime of islands was one of the reasons it voted against and has not yet acceded to the LOSC (see Plenary Meetings 160 and 189). For the sake of clarity, it should be pointed out that when it comes to maritime delimitation, the maritime space an island can claim may be diminished depending on the 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. However, islands cannot be denied their capacity to generate maritime zones and/or to be given decreased effect a priori; each case should be scrutinised according to its own unique terms. In any event, the Turkish argument that the Greek islands in the Aegean are located on the continental shelf of Turkey has been severely emaciated by the introduction of the EEZ concept and 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. The 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. In the Nicaragua v Colombia case (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:

“The Court does not believe that any weight should be given to Nicaragua’s contention that the Colombian islands are located on “Nicaragua’s continental shelf”. It has repeatedly made clear that geological and geomorphological considerations are not relevant to the delimitation of overlapping entitlements within 200 nautical miles of the coasts of States.” (para 214).

The delimitation agreement
According to its well-established position that islands should not have the capacity to claim extended maritime zones when facing a bigger coastline, Turkey holds the view that Cyprus, being an island, has lesser effect in terms of maritime delimitation than the longer Turkish coastline, which is opposite the northern coast of Cyprus. Hence, as the agreement provides, the continental shelf delineation was carried out in accordance with equitable principles, resulting in a delimitation line closer to Cyprus at some points, which gives Turkey a more extensive maritime space than that allocated to the “TRNC”. Turkey was a fervent advocate of the equitable principles/relevant circumstances method during UNCLOS III, vehemently rejecting the median line/special circumstances method (UNCLOS III, Negotiating Group 7). The “equitable principles” method, which was elaborated in the 1969 Continental Shelf cases, stipulates that all relevant factors should be considered in order to reach an equitable result; however, the Court gave no further guidance as to how such an equitable result would be reached, rendering this method equivocal.

Although the debate over these two delimitation methods was intense, the LOSC did not manage to elucidate the vagueness surrounding the law of maritime delimitation; articles 74 and 83 LOSC merely strike a balance between the two opposing sides’ assertions. Nevertheless, there has been a growing trend towards assimilation of the two methods, early signs of which are discernable in several cases before international tribunals [Anglo-French Continental Shelf Arbitration (para 148), Jan Mayen case (para 56), Qatar v Bahrain case (para 231)]. At the moment, the view supporting the integration of the two methods seems to prevail [International Tribunal on the Law of the Sea (ITLOS) Bangladesh/Myanmar case (para 238)].

Of course, the looming reconciliation of these delimitation methods does not preclude states from agreeing to designate their maritime boundaries using only one of them. In the case under consideration, though, things are not that simple. Turkey concluded an agreement with a regime established in the aftermath of the Turkish military invasion of Cyprus in 1974, which entailed use of force in violation of article 2(4) UN Charter. The “TRNC” was established in 1983 in northern Cyprus, which has been occupied by the Turkish Armed Forces since 1974. Security Council resolutions 541/1983 and 550/1984 condemned this secessionist action and reaffirmed that the sole legitimate government on the island was the Republic of Cyprus. Furthermore, the European Court of Human Rights resolved that the “TRNC” is a “puppet state” under the “effective control” of Turkey [Loizidou v Turkey, App. No. 15318/89 (18 December 1996) paras 56 and 57; Cyprus v Turkey, App. No. 25781/94 (10 May 2001) paras 77, 78 and 80; Xenides-Arestis v. Turkey, App. No. 46347/99 (22 December 2005) para 27]. Also, the ICJ confirmed the illegality of the regime established in northern Cyprus in the Kosovo Advisory Opinion(para 81). Thus, the regime in northern Cyprus is illegal and cannot claim statehood, as it is ‘a putative state emerged … with the assistance of foreign military intervention’ (James Crawford, The Creation of States in International Law, 2nd edn OUP 2006, p. 144).

Conclusion
Consequently, the continental shelf delimitation agreement between Turkey and the breakaway “TRNC” is not valid under international law, as the latter party is not a legitimate state entity. It thus cannot be accepted by the DOALOS as a lawful submission and be published in the LSB. As expected, the foregoing development triggered a reaction from the Republic of Cyprus and Greece, whose governments deplored the submission and deemed the agreement unacceptable. Another controversial matter to be contemplated is whether this agreement would be binding upon the Republic of Cyprus should a solution to the Cyprus Problem –which concerns the enduring occupation of northern Cyprus by the Turkish Armed Forces since 1974- be reached, given the unequal terms of the delimitation. Further, it will be interesting to see whether Turkey will be keen to conclude any maritime delimitation agreements with Greece in the Aegean Sea/Eastern Mediterranean in light of the discovery of hydrocarbon deposits therein and, if so, according to which method such delineations will be effected.

This incident illustrates the pivotal role international law can play in international relations. Turkey, a non-state party to the LOSC, realised that unless it acted in conformity with international law, the delimitation agreement would not have any legal standing. Therefore, it followed the rules set forth by the LOSC regarding the deposit of geographic coordinates of the continental shelf purporting to legitimise the agreement, even though the instrument in question cannot have any legal consequences due to the unlawfulness of the “TRNC”. Although a non-state party to the LOSC, Turkey was willing or compelled to conform to rules with which it disagrees in order to promote its interests. Moreover, this incident supports the argument that observing international law norms is the best way for states to pursue their legitimate rights. The law of the sea must be the tool for resolving disagreements on maritime affairs in the region, especially in view of the discovery of new oil and gas resources and the prospective benefits they hold for states of the region.

* Nikolaos A. Ioannidis is a PhD candidate in Public International Law at University of Bristol. His doctoral thesis focuses on the application of the Law of the Sea in the Eastern Mediterranean in light of the discovery of hydrocarbon deposits in the seabed and subsoil of the region. Other fields of interest: Law of Armed Conflict, Constitutional Law, Jurisprudence.

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