The Law of the Sea: Turkey vs. Cyprus
by Alper Ali Rıza*

It is trite law that no state has sovereignty over the high seas because the sea belongs to the world at large. The well-known “Britannia Rules the Waves” is fine as a patriotic song on the last night of the proms, but in this century the Law of the Sea rules. Extravagant claims of sovereignty over the high seas ceased in the 18th century.

States are of course sovereign over the land of their territory, which means that they can legislate and enforce the law of the land within state territory.

In Cyprus the northern part of the island is not under the effective control of the internationally recognized state of Cyprus. As far as the EU and the UN are concerned, these areas are as much a part of Cyprus as the areas under her effective control. This was the reason why, for example, the sovereign power of Cyprus had to join Cyprus’ whole territory to the EU and the EU had to attach Protocol 10 to the Treaty of Accession, suspending the operation of the EU legal regime in North Cyprus.

International law has long recognized that sovereign coastal states have sovereign rights over areas of the sea adjacent to their territory. It is not, however, as easy to obtain compliance with international law as it is in the case of national law. This is because one of the basic principles of international law is that the consent of states is essential at every level of enforcement. It follows that Turkey cannot be compelled to accept either the sovereignty of Cyprus or its Exclusive Economic Zone (EEZ).

At the apex of the system of consensual compliance is the International Court of Justice (ICJ). The ICJ’s jurisdiction is based on the will of the states that are party to it and, when invoked, it applies, among other sources of law, international conventions and international custom, as evidenced by general practices accepted as law. States are supposed to settle disputes by peaceful means and resolve any conflicts through negotiation, enquiry, mediation and conciliation arbitration; in doing so they can enter into cooperative arrangements irrespective of any boundary disputes between them. States are not obliged to insist on their strict legal rights, particularly if those rights are grounded in international law with no means of enforcement.

Exercising sovereign power

The areas of the sea over which states are able to exercise sovereign power of varying degrees of intensity are internal waters, continental shelves, territorial seas and EEZs, among others. 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 these areas 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. Such sovereignty is exercised in accordance with international law which guarantees flag states the right of innocent passage. More controversial has been the breadth of territorial waters. However, the US indicated in 1983 that it would respect claims of up to 12 miles and this limit is now well established in international law.

Flag states have right of innocent passage inside the 12-mile limit provided such passage is innocent and vessels do not hover. Submarines can avail themselves of this right provided they sail on the surface of the sea.

In international law, straits which are used for international navigation between one part of the high seas or exclusive zone and another part of the high seas or exclusive zone permit the right of navigation provided there is a continuous and expeditious transit. Two such well-known straits are those of Gibraltar and the Bosporus and Dardanelles. The legal regime of the straits at the Bosporus and Dardanelles is governed by the 1936 Montreux Convention; originally it was governed by the Russo-Turkish Treaty of 1774. The Ottoman Empire and Turkey have had much experience with issues concerning the law of the sea, which warrants the utmost respect when emanating from old hands at the Turkish Foreign Ministry, but not when it comes from ephemeral utterances of politicians.

The rights to rich natural resources, including oil and gas reserves, frequently found offshore within the continental margin, are governed by the principle first propounded by US President Harry S. Truman in 1945 and confirmed by the ICJ in the 1968 North Sea Continental Shelf cases. Namely, the rights of the coastal state in respect to the area of continental shelf that constitutes a natural prolongation of its land territory into and under the sea exist ipso facto and ab initio by virtue of its sovereignty over the land and as an extension of it in the exercise of sovereign rights for the purpose of exploring the sea bed and exploring its natural resources. In short there is here an “inherent right.” The seaward maximum limit is set at 200 nautical miles or the coastal state’s land territory’s natural prolongation, whichever is greater.

The EEZ is a more recent concept. 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. 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 geographically impossible to claim the full 200 miles without the consent of other states. The EEZ gives extensive rights to natural resources to the coastal state.

No state has sovereignty over the high seas and the international sea bed areas, but as regards the latter, some states, mostly in the Third World, regard the international sea bed as part of the common heritage of mankind. Countries like the US assert that the freedom of the high seas regime applies to the sea bed, which can be exploited freely. In terms of the Mediterranean, if all countries claimed a 200-mile EEZ, there would not be much freedom of the high seas left because the sea is not wide enough and there are too many countries. Cooperation is therefore essential if the resources of the sea are to be exploited equitably.

The problem between Turkey and Cyprus

The problem between Turkey and Cyprus arises because in 2004 Cyprus claimed its EEZ in accordance with the 1982 Convention which it had ratified. Turkey has not ratified the 1982 Convention and has not claimed its own EEZ but, seemingly, claims the freedom of the high seas.

Turkey’s particular objections are that it does not recognize the state that exercised sovereign power to grant explorative and drilling rights in Cyprus’ EEZ. The sovereignty of Cyprus is in principle shared between Greek and Turkish Cypriots. Unless there is a solution to the Cyprus problem, the present Greek Cypriot-controlled government should not engage in exploiting its EEZ unless and until the Cyprus problem is resolved.

In retaliation to the explorative drilling carried out on behalf of Cyprus, Turkey and the Turkish Republic of Northern Cyprus (KKTC) signed an agreement delineating a boundary between them based on a number of agreed coordinates dividing the continental shelf appurtenant to each. This document is not easily accessible and it has not been possible to evaluate its legal nature or assess its geomorphic scope.

In light of the fact that the Cyprus problem has been around for 51 years, it may take many more years to resolve; it would also be impossible to persuade anyone that Cyprus should not exploit the resources of its EEZ at a time of economic crisis when it is fully recognized both by the UN and the EU as possessing sovereignty over all the territory of Cyprus.

Nevertheless, in a press release dated Aug. 5, 2011, the Turkish Ministry of Foreign Affairs reiterated that the activities and agreements signed by Greek Cyprus for the exploration of its natural resources run contrary to international law and cause problems for the direct negotiations process.

Cyprus’ position as it appears from its website is as didactic as it is pompous. In effect, it argues that Cyprus as a coastal state has the right to exploit the natural resources of its EEZ and to agree to boundaries with other states which Cyprus did with Egypt, Lebanon and Israel in accordance with internationally accepted procedures. The statement then goes on to make its best point, namely that although Turkey has not ratified the 1982 Convention, towards the end of 1986 it declared its own EEZ in the Black Sea and concluded an agreement with the then-Soviet Union and, subsequently, with Bulgaria and Romania. It is the strongest argument because it seems Turkey has consented to an emerging rule of international customary law concerning EEZs and is therefore bound by it, even though it is not party to the 1982 Sea Convention.

If there is strength in Turkey’s claim, it lies in its geography and in its maritime power. It would argue that it is inequitable if a big and powerful country with the longest coastline in the eastern Mediterranean and the strongest navy in the region is shut out from the sea bed resources around its coast because of treaty obligations to which it has not consented. It has to be said, however, that the 1982 convention has received such worldwide acceptance that it has become part of international customary law which is binding on all states.

Nevertheless, in light of the essential role of consent in the formation of customary international law, it is permissible for a state to persistently object to an emerging rule of customary law and if it does so, in strict law, it would not be bound by it. Unfortunately, persistent objection usually takes the form of sending in warships and aircraft, as the US did when it opposed the extension of the three-mile limit in the1970s, but it may be that Turkey has decided to object using a novel route, namely its agreement with the KKTC. Whatever route it has chosen, it is not easy because, as has been said, the persistence of its objection is compromised by its claim to its own EEZs in the Black Sea.

And yet even if Turkey’s legal claim is weak, its equitable claim has merit, both in connection with her claims on behalf of the Turkish Cypriots as well as in its own right. But equitable principles cut both ways. Turkey’s effective control of 37 percent of the island means that Cyprus, too, has a much stronger claim in equity on land than Turkey’s putative claim to the equitable sharing of the sea bed.

There is a Chinese proverb that says every crisis is also an opportunity, and maybe this crisis will bring the focus to the benefits of sharing equitably both on land and under the sea bed. The world has finite resources and the competitive imperative between nations in the recent past resulted in so much conflict that the hope is that it has now given way to the cooperative imperative.

*The above article is based on a talk given by Alper Ali Rıza, QC at Goldsmith Chambers Temple in London, at an Association for Cypriot, Greek and Turkish Affairs (ACGTA) seminar at the London School of Economics on Nov. 18, 2011.