By Alper Ali Riza QC
APART from naked self-interest, there is nothing to get too patriotic about oceanic sovereignty as no state has sovereignty over the high seas because the sea belongs to the world at large. Extravagant claims of sovereignty over the high seas ceased in the eighteenth century. On the other hand the right to claim an Exclusive Economic Zone has received wide acceptance and it is absurd for the government of Turkey to maintain that it should not be claimed by Cyprus until the Cyprus problem is resolved. Yet its application was bound to be controversial in confined areas of the sea in regions with extant political problems.
International law governs the law of the sea beyond the coastal regime of states but its effectiveness is based on consensual compliance. Without consent it is not easy to enforce any claim to an Exclusive Economic Zone, let alone by a small state like Cyprus against a regional power like Turkey. The Turkish claims therefore need to be confronted politically and diplomatically rather than legally.
Nevertheless, the legal aspects are important because most states seek to act in accordance with international law even when their vital interests are at stake. In the international community day to day relations are not carried on by here-today-gone-tomorrow politicians who are prepared to say and do anything they believe would make them popular, but by high ranking civil servants who know one another well and are generally keen to follow the rules of international law because it provides them with a reliable framework.
At a personal level international lawyers form an elite in the international community who value their relationships within that community more than the parochial demands of their political masters back home and frequently find ways to compromise by reference to international norms.
The Ottoman Empire and Turkey, its successor state, have had long experience on issues concerning the law of the sea and the mandarins at the Turkish foreign ministry know the exact parameters within which Turkey is able to operate under international law.
At the apex of the system of consensual compliance is the International Court of Justice. The jurisdiction of the ICJ is based on consent and when its jurisdiction is invoked it applies international conventions and international custom, as evidenced by general practice accepted as law.
States are supposed to settle disputes by peaceful means and resolve conflicts by negotiation and mediation. States are not obliged to insist on their strict legal rights. Even if rights are firmly grounded in international law, many states do not insist on their strict legal rights come what may. They are encouraged to take a pragmatic view, particularly if they do not have effective means of enforcement, and frequently agree to apply equitable principles.
The Law of the Sea
The areas of the sea over which states are able to exercise sovereign power of various degrees of intensity are amongst others: internal waters; continental shelf; territorial sea and EEZs.
Internal waters are parts of the sea that lie landward toward a state from baselines drawn across indented coastlines such as bays and estuaries. States have sovereignty under international law over such areas as if they were on dry land.
The sovereignty of a state also extends beyond its land territory and its internal waters to a belt of sea adjacent to its coast. In1983 the US indicated that it would respect claims of up to twelve miles and this limit is now well established in international law.
The rights to the rich natural resources, including oil and gas reserves found offshore within the continental margin, are governed by a principle confirmed by the ICJ in the North Sea Continental Shelf Cases 1968 as follows: “The rights of the coastal state in respect of the area of continental shelf that constitutes a natural prolongation of its land territory into and under the sea exist by virtue of its sovereignty over the land as an extension of it, in the exercise of sovereign rights for the purpose of exploring the sea bed and exploring its natural resources.” The seaward maximum limit is set at 200 nautical miles or its natural prolongation whichever is the greater.
Exclusive Economic Zones
The EEZ is of recent vintage. It was championed by African and South American states to ensure they kept control of their resources, which were under threat from the big maritime nations of the world. If one looks at the geography of the coast of Africa and South America it is easy to see that a clash of EEZs was not likely, which is the reason why the EEZ gained such wide acceptance, although where vital interests clash such as in the East China Sea between China and Japan confrontation erupts now and again.
Unlike the continental shelf, the right to an EEZ has to be claimed. In the Mediterranean, many states have not claimed such zones owing to the fact that it is not possible to claim the full 200 miles without the consent of other states.
The EEZ gives extensive and exclusive rights to natural resources to the coastal state, but not sovereignty over the sea.
No state can have a claim over the high seas which lie beyond the EEZ and the international sea bed areas, but some states regard the international sea bed as part of the common heritage of mankind whereas countries like the USA and seemingly Turkey assert that the freedom of the high seas regime applies to the sea bed that can be exploited freely for private profit.
As regards the Mediterranean, if all countries claim a 200-mile EEZ there would not be any freedom of the high seas left because the sea is not wide enough and the number of countries so many that the high seas regime would be squeezed out completely. Cooperation is therefore essential if the resources of the sea are to be exploited equitably.
The problem between Turkey and Cyprus arises because in 2004 Cyprus claimed an EEZ in accordance with the 1982 Convention, which she ratified. Turkey has not ratified it and asserts instead a continental shelf under customary international law to the west of Cyprus. Furthermore she objects to the EEZ agreed by the other states and Cyprus on the grounds that that the high seas regime has been squeezed out without her consent.
Turkey’s essential objection however is that she does not recognise Cyprus which is the state that exercised sovereign power to grant explorative and drilling rights in the EEZ that was agreed with Egypt, Israel and Lebanon. According to the Turkish position the sovereignty of Cyprus is in principle shared between Greek and Turkish Cypriots and that unless there is a solution to the Cyprus problem, Cyprus should not engage in exploiting her EEZ until the Cyprus Problem is resolved.
In light of the fact that the Cyprus problem has not been solved for more than fifty years, it is impossible to persuade the international community that Cyprus should not seek to exploit the resources of her EEZ at a time of economic crisis, when she is fully recognised both by the United Nations and the European Union as possessing sovereignty over all the territory of Cyprus. The argument is without legal foundation what ever its political merits maybe.
The position of Cyprus is that as a coastal state she has the right to exploit her natural resources and agree boundaries with other coastal states in accordance with internationally accepted procedures. The fact that Turkey was not consulted is not relevant as the areas in respect of which Cyprus claimed an EEZ are to the south of Cyprus and in any event as Turkey refuses to engage with Cyprus she cannot complain that she has not been consulted.
The 1982 Convention has received such worldwide acceptability that it has become part of international customary law and Cyprus’ claim is well founded in law. But in light of the essential role of consent in the formation of international customary law, it is still permissible for a state persistently to object to a claim to an EEZ and if a state does this she is not bound by such an emerging rule of customary law.
So there’s the rub because unfortunately persistent objection has traditionally taken the form of sending in ships to explore accompanied by warships and aircraft, as Turkey is doing at present in the EEZ claimed by Cyprus. Cyprus therefore needs to persuade the international community that such incursions into EEZs ought not to be recognised in international law as legitimate ways of registering objection. If it is any consolation, Turkey’s actions are consistent with proof of persistent objection rather than anything more sinister. The real problem is that all this activity affects insurance considerations and is a serious impediment to the development of Cyprus’ EEZ.
The Turkish case in Equity
The Turkish case based on equitable principles is not without merit. Anyone can see, although perhaps not the Greek Cypriots, that it is inequitable for a big and populous country with the longest coastline in the Eastern Mediterranean to be shut out from the seabed resources around her coast completely as a result of treaty rights claimed by other states under a treaty Turkey has not ratified.
However, as every law student knows it is one of the fundamental maxims of equity that “he who comes to equity must come with clean hands.” Cyprus has serious issues with Turkey because the latter is engaged in the de facto partition of Cyprus in breach of international law contained in the 1960 Treaty of Guarantee. It is psychologically and emotionally impossible for any Greek Cypriot to bring himself to see the merits of the Turkish case in equity without Turkey first disengaging from Cyprus.
The Turkish Cypriots have a role and a responsibility to ensure this occurs as a matter of urgency. There is a toxic mixture in the air in the Eastern Mediterranean involving religion and history with irrational forces in play all around and Turkey in the thick of it owing to the misguided policies of her present government. A clash of unimaginable and unmanageable proportions is on the cards in the region and all the people in Cyprus need urgently to bury their differences to avoid being engulfed in such a catastrophic clash.
Alper Ali Riza QC of Goldsmith Chambers London is a barrister and one of HM part time judges. The above article is based on a lecture he gave to the Association of Cypriot Greek and Turkish Affairs at the LSE in 2012