The sea is beautiful, powerful and commands respect, but it is also a source of wealth and power.
The influence of powerful maritime powers on the law of the sea has been commensurate to their power, although recently, smaller, less powerful states in Africa and Latin America have collectively managed to rein in the more avaricious maritime powers like the US, France, Russia and Britain by persuading most states in the world to sign up to the Law of the Sea convention of 1982, which created and has given impetus to claims to Exclusive Economic Zones (EEZs), now being claimed in earnest in the east Mediterranean.
It seems the big maritime powers do not have a monopoly on greed and avarice, which is the reason why there is a need to guard against these cardinal sins by recourse to law and equity.
Law and equity in this field are to be found in the principles of public international law, which is the law that governs international relations between states. It is based on custom, which evolves from the general assent of states to be legally bound by practices that have been prevalent over time; and on treaties, which are agreements in writing between states to be legally bound to behave in a certain way.
Customary law and treaties
Treaties are clear and detailed about the rights and obligations they create but, as one would expect, they bind only state parties that have agreed to be bound. Where there is overlap between custom and treaty rights and obligations, the two co-exist and the law strives to accommodate both in cases where they cover the same area of law. Very often, treaties codify existing customary law as well as break new ground. A good example is the rule relating to the continental shelf, which is based on custom but which is also preserved by the 1982 convention. Contrast that with the EEZ, which is also contained in the Law of the Sea Convention of 1982, but which had not emerged fully in customary law before its inclusion in the 1982 convention. The law here is pragmatic since for states that do not sign up to a particular convention, the law that continues to govern is customary law.
For example, Turkey has not signed up to the Law of the Sea Convention of 1982, so the law that binds Turkey regarding the exploitation of the seabed is customary law on the continental shelf.
It also happens that where a rule based on a treaty receives such wide acceptance in law and practice, it begins to fulfill the criteria of custom in the sense that it becomes the practice of many states that feel legally bound to act in a particular way. What then can happen is that even states that refused to be bound and have not become a party to the treaty may be bound by some particular rule, provided the rule is fundamental and capable of forming a basis for a general rule of law, that it is accepted and recognized by the major powers in the field, and that the non-consenting state has not persistently objected. This is important in the context of Turkey’s position as regards EEZs since it has not consented to the 1982 Law of the Sea Convention on which EEZs are based.
Historically, it has always been the case that when it comes to vital interests and matters of honor, the principle of persistent objection is respected in order to preserve the fundamental principle of consensual compliance.
The principle of consensual compliance arises not only at the stage at which the law is being created and developed, but also at the level of enforcement. The International Court of Justice (ICJ) does not have jurisdiction to rule on any case unless the parties consent to have recourse to it, although if they do, then its rulings are binding owing to the obligatory nature of treaties. This works surprisingly well owing to the fact that most practitioners in the field of international law from most countries need the structure of international law to function and most of the time, compliance with international law enables states to satisfy competing pressures.
So far as the law of the sea is concerned, under the 1982 convention, states are obliged to have recourse to adjudication of some kind to resolve any conflicts or disputes between them, whereas no such obligation arises under customary international law or under the Statute of the ICJ. If recourse to the ICJ is agreed by two or more states, under customary international law, as well as under the 1982 convention, conflicts between states with opposite or adjacent coasts on how to delimit the continental shelf or the delimitation of the EEZ are to be resolved in accordance with international law on the basis of equitable principles. The disagreement must be on issues that can be easily identified, provided they are not political disputes that do not lend themselves to legal resolution.
The delimitation of EEZs by Cyprus, Lebanon, Egypt and Israel, without the participation of Turkey, in the absence of a solution to the Cyprus problem, raises a number of issues because there is a tension between the rights and obligations of states that have ratified the 1982 Law of the Sea Convention and those, like Turkey, that have not, as well as between the legal regime of the high seas and the international sea bed area, the continental shelf and the EEZ, all of which are in play at present in the east Mediterranean.
The high seas and the international seabed area are open to all and cannot be arrogated by any state. They are beyond the limits of national jurisdiction.
The geological concept of the continental shelf is the easiest principle to understand since the idea behind it is that the territories of coastal states that naturally prolong into the sea are as much part of its territory as dry land, over which sovereignty is regarded as part of statehood. This is important because, under customary international law, a state does not have to claim rights in respect of its continental shelf, except that where there is a dispute about its geological limits, there is need to obtain agreement by consent or adjudication.
An EEZ is an area 200 miles from the baseline within which the 1982 convention gives sovereign rights to coastal states for the purposes of exploring and exploiting the natural resources of the sea and the seabed and subsoil for economic reasons, including the exploitation of any oil or gas deposits present.
EEZs and the Mediterranean
The position in the Mediterranean Sea generally is that until recently no states claimed EEZs, primarily because it is not possible to claim an EEZ of 200 miles unilaterally since this overlaps with the boundary claims of other states. However, Cyprus, Lebanon, Israel and Egypt have now agreed the maritime boundaries between them, leaving out possible Turkish claims.
The position of Turkey and Cyprus poses problems in any recourse to the ICJ because Turkey does not recognize the Republic of Cyprus and it has therefore not been possible for these two entities to seek to engage in negotiation so as to identify the issues between them following the claim to its EEZ by Cyprus with a view to a consensual reference to the ICJ.
The principles the ICJ would apply include the rule that no maritime delimitation between states with opposite or adjacent coasts may be effected unilaterally by one of those states. Another is that there has to be proportionality between the length of the coastline and the extent of the continental shelf. Each of these principles must be music to Turkish ears. It is a pity therefore that fair and equitable resolution of a potentially dangerous situation is being blocked by the inability of the two sides to solve the Cyprus problem, which prevents Turkey and Cyprus from normalizing their relations to mutual advantage.
Sorting out the Cyprus problem requires the decisiveness of a Mustafa Kemal Atatürk to tell the Turkish Cypriots to identify their vital interests, draw red lines under them and waive the rest. The Turkish Cypriots do not need as much land as was taken in 1974; they dislike the changes in demography in the Turkish Republic of Northern Cyprus (KKTC) that have taken place recently and would wish these reversed; and they do not wish to share power with the Greek Cypriots except to the extent necessary to safeguard their vital interests. They want Turkey to continue to guarantee their security, but this could easily be achieved, within international law, by giving them dual Turkish and Cypriot citizenship in any future solution.
There is a view that many, if not most, Turkish Cypriots would be happy as long as they govern themselves as a free-standing constituent state of Cyprus within the EU, free from any Greek Cypriot control, but under the same umbrella citizenship as the Greek Cypriots.
*Alper Ali Rıza, QC of Goldsmith Chambers, London, is a barrister and freelance writer.