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.
Article 121 UNCLOS, recognizes the rights of islands to generate maritime zones. Article 121 UNCLOS reflects customary law and, accordingly, applies to non-states parties as well, such as Turkey.
Cyprus has declared its Exclusive Economic Zone by national legislation and has delimited same by virtue of concluding bilateral delimitation agreements with neighbouring States, all steps taken in accordance to UNCLOS provisions.
Ownership of hydrocarbons and any natural resources in Cyprus’ EEZ rests with Cyprus and the rights over resources situated offshore Cyprus are to be exercised in conjunction with the continental shelf rights under UNCLOS.
The rights of Cyprus over its’ EEZ and continental shelf, including the sovereign rights and jurisdiction attached thereto, emanate from UNCLOS, the provisions of which are deemed to reflect customary international law and as such exist and are fully legitimate under Public International Law.
Turkey’s claims over the areas within the EEZ and the continental shelf of Cyprus do not enjoy legitimacy under Public International Law. The claims of ‘TRNC’ over areas within the EEZ and the continental shelf of Cyprus cannot enjoy legitimacy under Public International Law, as can no other jurisdictional or sovereignty claim originating from TRNC enjoy any legitimacy whatsoever.
Analysis
According to customary international law and UNCLOS (which enjoys almost universal participation), a coastal state maintains an inherent right to a continental shelf, which extends up to a distance of 200 nautical miles (“nm”) measured from the coast. In addition, a littoral state is also entitled to claim an EEZ of a breadth of 200nm. In these zones, the coastal state enjoys exclusive sovereign rights for the purpose of exploring and exploiting the natural resources, either living or non-living, in its seabed and subsoil (Articles 58(1)(a), 77(1)(2) and 81 UNCLOS).
Consequently, no other state can set forth assertions over the natural resources in another state’s maritime zones. Nevertheless, in both the continental shelf and the EEZ the freedom of navigation shall not be hindered (Articles 58(1) and 78 UNCLOS) as those waters, in essence, form part of the high seas.
The delimitation of the Exclusive Economic Zone of Cyprus has been agreed and signed with Egypt, based on the median-line principle and in accordance with the provisions of UNCLOS. Likewise, respective delimitation agreements have been signed with Lebanon and Israel. These bilateral treaties between Cyprus and Egypt (2003), Cyprus and Lebanon (2007) and Cyprus and Israel (2010) have delimited the EEZ of Cyprus, which has been divided into 13 Exploration Blocks covering approximately 51,000 sq. km.
Turkey holds a long-standing position that islands facing longer coastal fronts should have diminished rights in terms of generating maritime zones. As a result, Turkey does not recognise the rights of Cyprus to a continental shelf nor its capacity to claim an EEZ around the island and consequently dismisses the EEZ delimitation agreements concluded between Cyprus and third States, as these have been described supra.
Turkey submitted a note verbale on 10 April 2014 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 concluded between Turkey and the “Turkish Republic of Northern Cyprus” (“TRNC”) on 21 September 2011 (“the ‘TRNC’ Agreement”).
Furthermore, Turkey alleges that the breakaway regime of the ‘TRNC’ is eligible to have claims over the island’s underwater natural resources, hence the conclusion of the ‘TRNC’ Agreement. Turkey and the ‘TRNC’ have granted oil concessions to TPAO as regards the entire maritime space around Cyprus, in contravention to Cyprus’ position, which is grounded on the UNCLOS and customary international law and despite the fact that the Turkish coasts do not project in some of the claimed sea areas.
The ‘TRNC’ 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. While there is nothing precluding coastal states from choosing which maritime zones to claim or and delimitate, Turkey opting not to delimit an EEZ with the ‘TRNC’ alludes to the Turkish position that islands in certain regions 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 and, consequently, do not have a continental shelf of their own.
Turkey’s opposition to UNCLOS provisions governing the regime of islands had been one of the reasons it voted against and has not yet acceded to UNCLOS. 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 (cf., inter alia, 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 UNCLOS, such rights 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 scrutinized according to its own unique circumstances.
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 criterion’. 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.
According to its well-established unilateral 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 diminished capacity in terms of maritime delimitation compared to the longer Turkish coastline, which is opposite the northern coast of Cyprus. Hence, as the ‘TRNC’ 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 which is allocated to the ‘TRNC’.
Turkey had been 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 in the Continental Shelf cases 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 had been intense, UNCLOS did not manage to elucidate the vagueness surrounding the law of maritime delimitation. Articles 74 and 83 UNCLOS 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 discernible in several cases before international tribunals. At the moment, the view supporting the integration of the two methods seems to prevail.
Article 121 UNCLOS reflects customary law (as per the ICJ in Nicaragua v Colombia (2012), para 139) and, accordingly, applies to non-states parties as well, such as Turkey.
In the aforementioned Nicaragua v Colombia judgment of 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 (para 214):
“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.”
Under any circumstances, 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 and enjoys no legitimate legal personality as a Subject of International Law. Moreover, it also becomes clear, on the basis of the aforesaid analysis, that the ‘TRNC’ can have no valid claim over any part of Cyprus’ EEZ, the former being an illegally declared entity, the declaration of which is, at International Law, invalid.
The Republic of Cyprus being the sole Subject of International Law on the island of Cyprus and its government being the only legitimate government thereof, raises the question of the degree of jurisdiction a State exercises over its EEZ. This has been addressed by the CJEU, in its Judgment of 17 January 2012 in Case C-347/10 Salemink v Raad van bestuur van het Uitvoeringsinstituut werknemersverzekeringen.
The prospecting, exploration and exploitation of hydrocarbons and the enforcement of the Hydrocarbons Law regulating these operations emanate from and rest upon the exercise of Cyprus’ sovereign rights within its EEZ, as such is delimited by virtue of the above mentioned instruments.
The information in this article is provided for general information and does not constitute legal advice, nor can it be relied on for any purposes.
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