By Andrew Jacovides
IN HIS interview with “Kathimerini” on February 4, 2018, Turkish Foreign Minister Mevlut Çavuşoğlu asserted certain positions on the Law of the Sea in relation to Cyprus, which cannot remain unanswered.
The legal position of Cyprus on the Law of the Sea is solidly based on the provisions of UNCLOS III of December 10 1982, in which the Republic actively participated.
Article 121, Regime of Islands, expressly provides in Paragraph 2 that “the territorial sea, contiguous zone, the exclusive economic zone and the continental shelf of an island are determined in accordance with the provisions of the Convention applicable to other land territory”.
This negates the Turkish position that these zones of maritime jurisdiction should be determined by criteria such as size, population, geomorphology, etc. (Legislative History, Article 121, published by the UN Secretariat).
Similarly, Articles 122 and 123, “Enclosed or Semi-enclosed Seas”, negate the Turkish proposal that special rules should apply in such areas in terms of maritime delimitation and jurisdiction. On the basis of these and the other provisions of the Convention, Cyprus and the vast majority of states, as well as the European Union, signed and ratified UNCLOS III, thereby lending to its provisions the force of customary law.
Turkey is one of the small minority of states which did not sign or ratify UNCLOS. It is in a minority of one in voting every year in the General Assembly of the United Nations against the Omnibus Resolution of the Law of the Sea item, as it did most recently on December 5, 2017.
The Republic of Cyprus, which proclaimed a 12-mile territorial sea-zone in 1964, proceeded in 2004 to proclaim its Exclusive Economic Zone (EEZ) on the basis of the median line of delimitation between opposite geographical states.
More concretely, Cyprus proceeded to conclude maritime delimitation treaties with three of its neighbouring states, Egypt (2003), Lebanon (2007-as yet unratified) and Israel (2009), on the basis of the median line and with a provision for arbitration in case of a dispute.
These are model agreements which should be preserved and also emulated elsewhere.
By contrast, Turkey, which concluded EEZ delimitation agreements on the basis of the median line with its neighbours in the Black Sea, has refused to claim an EEZ in the Mediterranean under international law.
It has purported to conclude a continental shelf delimitation agreement with the ‘TRNC’ in September 2011. This ‘agreement’, between the occupying power and its subsidiary creation in the occupied area of Cyprus (declared “legally invalid” by the UN Security Council, Resolutions 541 and 550 and recognised by no other state in the world, except for Turkey), has no validity or standing in international law.
Turkey has also, arbitrarily and unjustifiably, declared an area in the sea west of parallel 38 16’ 18” to be its continental shelf, part of which overlaps with part of the Cyprus EEZ/continental shelf including Plot 6 of Cyprus’ EEZ.
The international community recognises the sovereign rights of Cyprus in its EEZ, as evidenced by various official statements and the fact that major oil companies – TOTAL of France, ENI of Italy, Exxon Mobil of the United States, among others such as Noble Energy, KoGas, Qatar Petroleum – have obtained licences for hydrocarbon exploration in these plots.
The Republic of Cyprus has no doubts about its legal rights but, if Turkey has claims to the same, the way to advance these claims is not through threats and acts of gunboat diplomacy, but through negotiations, failing which, through third party settlement, procedures are available through the International Court of Justice (ICJ) or arbitration (ITLOS, the Law of the Sea Tribunal in Hamburg, which is not available since Turkey is a non-party to UNCLOS).
Mr. Çavuşoğlu refers to the Turkish Cypriots as “co-owners of Cyprus” with “inalienable rights to the natural resources around the island”. There is no dispute that the Turkish Cypriots, as all Cypriots, are entitled to benefit from the natural resources of the waters and seabed around the island and the Cyprus government has repeatedly declared that they will do so in the context of the solution of the Cyprus problem which is to be negotiated.
But it would be unprecedented and indeed unheard of to assert that a national community or ethnic minority within a state is entitled to give exploration licences to companies for exploitation of natural resources as has been done with Turkish Petroleum, according to Mr. Çavuşoğlu.
If this were so, why should it for example not be possible for the Copts in Egypt, or the Maronites in Lebanon, or the Muslims in India, or indeed the Kurds in Turkey, to be entitled to do the same?
In all countries, including Turkey, the right to make such decisions belongs to the government of any internationally recognised state, and in this case to the government of Cyprus, which is ‘defunct’ only in the opinion of Turkey.
The UN Security Council, as late as January 30, 2018, in its Resolution 2398, renewing Unficyp’s mandate, made express reference to the consent given “by the Government of Cyprus” and, ever since SC resolution 186 (1964), it is firmly established that the international community recognises the Republic of Cyprus and its government, despite the illegal Turkish invasion of 1974 and its consequences ever since.
Mr. Çavuşoğlu calls for a “change of mentality” by Greek Cypriots so as to achieve a settlement. What is really required is a change of mentality in Ankara, so as not to insist on its neo-Ottoman pursuit to make Cyprus a Turkish protectorate, with the permanent stationing of Turkish troops and rights of intervention. This would enable Greek and Turkish Cypriots to live and prosper together in a unified “normal State” as the UN Secretary-General indicated, free from outside interference and sharing the natural resources of the island and its EEZ. The reunification of Germany in 1990 provides some useful parallels.
Andrew Jacovides, Head of the Cyprus Delegation to UNCLOS III (1973-1982); Former Ambassador to the United Nations, the United States, Germany; Former Permanent Secretary, Ministry of Foreign Affairs