By
Nilufer Oral*
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I. Introduction
The historic United Nations Convention on the Law of the Sea (“LOS Convention”) was adopted at Montego Bay on December 10, 1982, after nine years of intense negotiations. Of the one hundred and fifty-one states that participated at the conference, one hundred and thirty voted for it, seventeen abstained, and four voted against it.[1] The four states that voted against adoption in 1982 – The United States, Turkey, Venezuela and Israel – have still not ratified the Convention. However, their respective positions towards the LOS Convention differ. For example, notwithstanding an influential minority in the United States Senate against ratification, there is strong support for ratification of the Convention in the United States, including from the present and previous U.S. Presidents.[2] Turkey, on the other hand, maintains its official opposition to ratification of the LOS Convention and unlike the United States has not provided any indication of an intention to ratify the Convention in the near future. The primary reason behind Turkey’s opposition to the final text and its continued reluctance to ratify the Convention is the maritime delimitation quandary between itself and Greece in the Aegean Sea.
This article will examine Turkey’s non-ratification of the 1982 LOS Convention because of its border disputes in the Aegean Sea and analyze whether the provisions in the 1982 LOS Convention on delimitation of maritime boundaries are adequate to resolve the existing boundary dispute between Greece and Turkey. The article will also address the broader question of whether the 1982 LOS Convention fulfilled its mandate to provide a legal framework to peacefully resolve contentious maritime boundary disputes generally. Lastly, this article will consider the consequences of non-ratification and the continued conflict over maritime boundaries in the Aegean Sea, specifically in relation to the protection and preservation of the marine environment and to the broader context of unresolved maritime boundary delimitation issues globally.
II. Historical background to the Aegean Sea dispute
The conflict between Greece and Turkey over maritime boundaries is decades old, [3] involving a litany of issues in dispute, including disagreement as to which issues are “in dispute.”[4] Greece has only recognized the dispute over the maritime boundaries of the continental shelf between mainland Turkey and the cluster of Greek islands hugging the Aegean coast of Turkey.[5] Turkey disputes a multitude of issues, including questions of unresolved sovereignty and the demilitarization of certain islands in the Aegean Sea, the breadth of the territorial sea, delimitation of the continental shelf, the Exclusive Economic Zone, and rights of navigation and over-flight in the Aegean Sea.[6]
The question of maritime boundaries casts long shadows over the calm blue waters of the Aegean Sea. Non-ratification raises two critical questions. First, would ratification by Turkey of the 1982 LOS Convention resolve outstanding disputes? Second, what, if any, consequences may flow from Turkey’s continued reluctance to ratify? The Aegean Sea is a sub-regional sea of the Mediterranean Sea and possesses the characteristics of an enclosed and semi-enclosed sea, as defined under article 122 of the 1982 LOS Convention.[7] Turkey and Greece, the only two coastal states in the Aegean, share a narrow body of water that measures four hundred nautical miles in length and less than four hundred nautical miles at its widest point. Further compounding the inherent difficulties of establishing maritime boundaries between two states with opposing coasts of a small semi-enclosed sea are the cluster of Greek islands and uninhabited rocks lying in close proximity to the coast of the Turkish mainland, which create a maze of delimitation challenges.
By a twist of history, when negotiating the terms of the Lausanne Treaty of Peace,[8] which settled the borders of the newly declared Republic of Turkey following its war of independence, the stage was unintentionally set for one of the most intractable maritime boundary delimitation problems for the law of the sea. Article 12 of the Lausanne Peace Treaty affirmed Turkish sovereignty over the eastern Aegean Islands of Bozcaada (Tenedos), Gökçeada (Imbros) and the Rabbit Islands and recognized Greek sovereignty over the islands of Lemnos, Samothrace, Mytilene, Chios, Samos and Nikaria in the southern part of the Aegean Sea.[9] Under Article 15 of the Treaty, Turkey renounced in favor of Italy all rights and title to fourteen islands.[10] Following World War II, in 1947, Italy ceded the Dodocanese and Castellorizzo (Meis) islands to Greece.[11]
Map of the Aegean Sea
The 1923 Lausanne Treaty was negotiated more than twenty years before President Truman made his historic proclamation on September 28, 1945, which set in motion one of the major territorial seaward expansions in modern history.[12] In 1923 the continental shelf carried no legal significance, nor did the concept of a two hundred nautical mile exclusive economic zone (EEZ) – a creation of the 1982 LOS Convention nearly sixty years after the conclusion of the Lausanne Peace Treaty. In 1923 the breadth of the territorial sea, according to customary international law at the time, was three nautical miles.[13] Article 6 of the Lausanne Treaty endorsed this understanding with a general provision that in the absence of provisions to the contrary, “islands and islets lying within three miles of the coast are included within the frontier of the coastal State.” Article 12 repeated this rule specifically for Turkey; absent a provision to the contrary in the Treaty all islands “situated less than three miles” from the Turkish coast remained under Turkish sovereignty. One can only speculate as to how the course of history might have taken a different route had the momentous changes in the law of the sea contained in the 1982 Convention been foreseen in 1923. The change in the course of international law destabilized the delicate balance of peace carefully established by the Lausanne Peace Treaty. Paradoxically, an agreement which appeared to be a step towards regional peace would unwittingly bring Greece and Turkey once again to the precipice of war fifty years later.
The Truman Proclamation set in motion an international rush to discover the wealth of the sea bed, primarily oil that lay beneath the continental shelf. And it was the quest for oil beneath the Aegean Sea continental shelf, which began in 1973,[14] that ignited the conflict between Greece and Turkey.[15] Since 1973 the Greeks and the Turks have locked horns over territorial claims in the Aegean Sea, coming very close on a number of occasions to military conflict. The last incident took place in 1996 over the ownership of a “rock.”[16] The Aegean Sea maritime boundary dispute can be fairly described as a “frozen conflict” between Turkey and Greece and, like many of the delimitation conflicts, is about ownership of valuable natural resources, — in particular oil and gas.
Map of the southern Aegean Sea
III. UNCLOS III
Both Turkey and Greece participated in the Third United Nations Conference on the Law of the Sea (“UNCLOS III”) negotiations, where Turkey’s representative served as Vice-Chairman of the Second Committee. However, at the end of the nine-year long negotiation process, Turkey voted against the adoption of the final text of the 1982 LOS Convention.[17] Greece, on the other hand, voted in favor and eventually ratified the Convention in 1995.[18] Turkey’s decision against signing the final draft is understandable. An extension of the maritime boundaries of the Greek islands hugging the Turkish mainland coast beyond the status quo could effectively block Turkey’s access to the sea as well as to valuable living and non-living resources. The Greek mainland, however, did not face similar potential consequences.
From the outset of UNCLOS III, it was evident that the question of maritime boundaries in the Aegean Sea was a priority for Turkey. Turkey actively proposed a number of texts during the negotiations seeking to shape the final regime of enclosed and semi-enclosed seas,[19] the breadth of the territorial sea,[20] delimitation of the continental shelf,[21] and the exclusive economic zone between opposite or adjacent coastal States. [22] The function of the texts on enclosed and semi-enclosed seas which Turkey originally contemplated and proposed included the principle of equity for states bordering enclosed or semi-enclosed seas, implicitly including delimitations matters.[23] In addition, Turkey sought to include language that would require states bordering enclosed and semi-enclosed seas “to act in a manner consistent with the special circumstances prevailing in each such sea and the rights and interests of coastal states.”[24] The inclusion of “special circumstances” was of paramount importance for Turkey because of the cluster of Greek islands lying close to the Turkish coast. Turkey introduced several other similar texts both individually and jointly with other states.[25] Furthermore, Turkey, having in mind the multitude of islands near its coast in the Aegean Sea, was firmly opposed to application of Article 121(2) of the LOS Convention, which recognized that maritime zones for islands would be established according to the same rules as for mainland territory under the Convention.[26]
One of the principal objectives of UNCLOS III was to create a comprehensive convention that reflected the consensus of the participating states. However, when the United States objected to the final text, the hope for reaching consensus was dashed and upon the motion of the United States the final text was put to a vote.[27] Likewise, for Turkey, it was the term ”consensus” which led the Turkish representative to explain in his closing statement that Turkey would have signed the Final Act if Article 41 had not included the statement that “[t]hroughout the preceding eight years of its work the Conference had taken all decisions by consensus.”[28] He explained that throughout the Conference Turkey had “always stressed that the diversity of geographical circumstances was one of the most important factors to be taken into consideration” and that from the Turkish point of view the final draft had failed to achieve a balance among the different groups of interests arising from different geographic circumstances.[29]
IV. Maritime boundary delimitation under the 1982 LOS Convention
Tommy Koh, the President of UNCLOS III, delivered his closing speech at Montego Bay on December 10, 1982. He expressed a strong note of optimism that the Convention, as a comprehensive constitution for the oceans, would “promote the maintenance of international peace and security because it would replace a plethora of conflicting claims by coastal states with universally agreed limits on the territorial sea . . . contiguous zone . . . exclusive economic zone and . . . continental shelf,” and that the compulsory dispute settlement mechanism would advance peaceful resolution of disputes by states.[30]
More than twenty-six years have elapsed since he voiced that hope. The situation in the Aegean Sea is one of the most visible and contentious of these conflicting claims. Yet without Turkish ratification of the 1982 LOS Convention, the Convention remains inapplicable and thus unable to fulfill its author’s aspirations. A more provocative question, though, is whether in fact ratification of the Convention by Turkey would have brought resolution to the Aegean Sea, either through direct negotiated settlement with Greece, or by operation of the compulsory dispute provisions in Part XV that were such a key aspect of the Convention. The answer may be in the negative for two reasons. First, an examination of the operative provisions for determining maritime boundaries of the territorial sea, the continental shelf and the EEZ between adjacent or opposite coastal states reveal a set of principles that fail to provide a predictable methodology for the parties or third-party dispute resolution bodies to employ. Second, the LOS Convention allows parties to “opt out” of the compulsory dispute settlement mechanism established under Part XV.
In regard to the principles adopted for the determination of maritime boundaries, the operative provisions for delimitation of the territorial sea between states with opposite or adjacent coasts are in Article 15. As a first step, states must attempt to resolve delimitation matters based on mutual agreement. However, upon failure to reach an agreement, extension of the breadth of the territorial sea is to be based on a median line measured by application of the equidistance method. If reasons of historic title or special circumstances are involved, the median line rule would not apply. Frustratingly, Article 15 provides no definition or guidelines for identifying special circumstances. Similarly left vague was what methodology would apply in such circumstances. Uncomfortable with the vagueness of Article 15, the Turkish delegate, Mr. Kirca, expressed in his final statement the Turkish view that the principle of equity would be the guiding principle in the delimitation of territorial waters.[31]
In relation to the delimitation of the EEZ and continental shelf between States of opposite or adjacent coasts, respectively, Articles 74 and 83 require states to attempt to negotiate an equitable solution based on international law as provided in Article 38 of the Statute of the International Court of Justice.[32] The substantive meaning of the term “equitable” was left to the mutual understanding of the states involved. In addition, pending a negotiated agreement the parties are obligated to make every effort to enter into provisional arrangements during this transitional period, without prejudice to any final delimitation agreement. However, if states cannot agree, neither article provides for an alternative method of delimitation other than the compulsory dispute resolution provisions of Part XV of the Convention. It should be noted that any provisional measures agreed to by the Parties are to be temporary and without prejudice to the final delimitation agreement. They are not intended to be ends in and of themselves as alternative dispute solutions. [33]
Furthermore, in relation to the Aegean Sea, the core issue of the status of maritime zones of islands was an important concern for Turkey.[34] Article 121 provided little guidance as to what principles of delimitation would apply in cases such as the Greek islands lying close to the Turkish coast. In exercising their rights and obligations under these vague provisions parties are bound by the general obligation under Article 300 to exercise the rights, jurisdiction and freedoms in the Convention in a manner which would not constitute an abuse of right. The unilateral exercise of the rights to extend the territorial sea to twelve nautical miles, the EEZ to the full 200 nautical miles, and delimitation of the continental shelf would presumably constitute such an abuse.
Did these principles achieve what Tommy Koh described as “universally agreed limits” for maritime zones?[35] Two noted scholars described the delimitation provisions for the EEZ and the continental shelf in the 1982 LOS Convention as “not very meaningful.”[36] The Tribunal in the Eritrea/Yemen case noted that the controversial delimitation articles under the 1982 LOS Convention “were consciously designed to decide as little as possible.”[37]In light of the uncertainty over the extent of the EEZ and continental shelf, it is not surprising that delimitation of sovereign boundaries continues to be one of the most challenging issues for the law of the sea.[38]
The inconclusive compromise on the issue of delimitation was further reflected in Part XV, the compulsory dispute resolution mechanism, considered to be one of the innovative features of the Convention.[39] If parties to a dispute fail to reach a resolution by mutual agreement, after participating in an exchange of views they must submit the dispute to binding arbitration by the third-party adjudicatory bodies enumerated in the Convention.[40] However, Part XV includes an important exception: according to Article 298(1) (a) a State when signing, ratifying or acceding to the Convention may make in writing a declaration to opt-out of compulsory dispute resolution for certain listed activities, including maritime boundary delimitation matters between neighboring states relating to Articles 15 (on the territorial sea), 74 (on the EEZ), and 83 (on the continental shelf). . The sole qualification of the opt-out provision was its application to disputes arising after the entry into force of the Convention, which would be subject to Annex V non-binding mandatory conciliation.[41] Not surprisingly, many states exercised, or reserved the right to exercise, the opt-out provision when ratifying the Convention.[42] Greece, however, did not opt-out when it ratified the Convention in 1995 and selected the International Tribunal for the Law of the Sea as its choice of adjudicator under Part XV.[43] Should Turkey ratify the Convention before resolving its Aegean dispute with Greece, it will likely exercise its option under Article 298(1)(a) to out of the Part XV compulsory dispute resolution provisions. As a result, the settlement of maritime boundaries in the Aegean Sea would not likely be submitted to binding adjudication, even if Turkey ratified the Convention. The compulsory dispute resolution mechanism was devised with a large loophole that would allow many of the most difficult delimitation issues to escape mandatory resolution.
Consequently, resolution of the Aegean maritime boundary disputes will be settled either directly by Greece and Turkey or through a mutual agreement to submit the matter to third party resolution. And while over the past decades a significant body of maritime boundary delimitation jurisprudence has evolved,[44] the Aegean Sea, as noted by Jon Van Dyke, presents a geographic configuration unlike any other in the world.[45] Those cases involving islands that have been adjudicated by international courts or arbitral panels have not involved the degree of complexity of the Turkish coastline and nearby Greek Islands.[46] Had the 1982 LOS Convention provided clearer guidance on the meaning of “equitable” and “special circumstances,” leaving less of an interpretive vacuum and providing more predictability, a greater number of disputes, including the one in the Aegean Sea, may have been submitted for resolution through the innovative Part XV compulsory dispute settlement mechanism.
V. Consequences: The Marine Environment
The current maritime boundaries of the Aegean Sea leave almost fifty percent as high seas.[47] Enclosed and semi-enclosed seas are by nature vulnerable marine ecosystems, and the Aegean Sea is no exception.[48] Situated at the mouth of the Turkish Straits, the Aegean Sea is one of the most heavily transited straits used in international navigation, with over 50,000 vessels annually traveling between the Aegean Sea to the Black Sea through the Turkish Straits, of which over ten thousand are vessels transporting dangerous and hazardous cargo.[49] In addition to the threats brought with heavy maritime traffic, including vessel-source pollution and introduction of invasive species through ballast water, non-sustainable fishing practices, eutrophication, and the loss of biodiversity threaten the Aegean’s marine living resources.
Part XII of the Convention was one of the important achievements of the Conference because it established the first comprehensive international legal framework for the protection of the marine environment.[50] Article 192 established a clear and unqualified obligation of states to protect and preserve the marine environment. Article 197 codified the overarching duty of states to cooperate at both the global and regional levels in adopting international rules, standards and recommended practices and procedures. A similar obligation was also included for enclosed and semi-enclosed seas under articles 122 and 123. Cooperation between neighboring coastal states is particularly critical to the effective protection and preservation of the marine environment in narrow marine spaces such as the Aegean Sea. Unfortunately, the political stalemate over delimitation, which at heart is about the exploitation of valuable natural resources like oil and gas, overshadows the critical need for states to cooperate in the protection and preservation of the marine environment.
The legal reality is simple: if Greece and Turkey were able to arrive at a mutually agreed-upon resolution of the territorial sea, EEZ and continental shelf boundaries in the Aegean Sea, the opportunities for establishing a regime to effectively protect the fragile marine ecosystem of the Aegean Sea would significantly improve. The desire to maximize marine territory comes at the expense of preserving the natural wealth of the sea. Cooperation and collaboration are fundamental and vital components for establishing boundaries that will promote the required or desired cooperation woven throughout the text of the 1982 LOS Convention and which lies at the heart of Articles 122 and 123. Failure of states to cooperatively establish coherent boundaries is not only a problem in the Aegean Sea, but is endemic to the larger Mediterranean Sea, where a total of twenty-two coastal states cannot stretch out their zones to the Convention’s default breadth without colliding with a neighbor. The Mediterranean Sea is itself representative of other seas struggling to resolve outstanding issues of maritime boundary delimitation.
Based upon the current boundaries of the Aegean Sea, as stated above, almost fifty percent remains as high seas. While the 1982 LOS Convention provides for obligations to preserve and protect the marine environment and marine living resources in the high seas, the obligation falls primarily upon flag states who use it for navigation, tourism, yachting, fishing or to exploit its resources for other purposes.[51] Coastal states generally have very limited powers to prescribe rules, regulations, and standards, and enforce them on foreign vessels or nationals on the high seas. However, the 1995 United Nations Straddling and Highly Migratory Fish Stocks Agreement permits regional fisheries management organizations (RFMOs) to take action against illegal fishing activities.[52] By contrast, the 1982 LOS Convention provides important prescriptive and enforcement competencies to the coastal state and port state over a number of activities such as shipping, fisheries, marine living resources and non-living resources, but only in relation to maritime zones that fall under national jurisdiction.[53]
The provisions for establishing an effective environmental governance regime include, among others, Articles 210 and 216, which impose an affirmative duty upon coastal states to adopt and enforce laws against illegal dumping in the territorial sea, continental shelf and EEZ. Articles 208 and 214 impose affirmative duties on coastal states to adopt and enforce laws to prevent, reduce, and control pollution of the marine environment arising from or in connection with seabed activities, artificial islands, installations, or other structures under their jurisdiction. Article 211 provides the coastal state with jurisdiction to adopt laws and regulations for the prevention, reduction, and control of marine pollution from foreign vessels, including vessels exercising the right of innocent passage, on the condition that innocent passage is not hampered. More importantly, paragraph 6 of the same article empowers the coastal state, after meeting technical requirements and submitting the matter to the International Maritime Organization (IMO), to establish “special mandatory measures” in its EEZ if international rules and standards referred to in paragraph 1 of Article 211 are inadequate to control marine pollution. In practice, the IMO has established a procedure for permitting special mandatory measures by designating certain marine environments as “particularly sensitive sea areas (PSSAs).”[54] In association with Article 211 are the enforcement provisions of Articles 218 and 220, which respectively provide for port state and coastal state enforcement of vessel-sourced pollution, extending into the EEZ under certain circumstances.[55]
By contrast, the coastal state possesses no legal competence to adopt laws regulating foreign shipping in the high seas and, with the exception of protecting its coast against pollution from a shipping accident, no legal jurisdiction to take enforcement action against foreign ships in the high seas. The creation of the EEZ in Part V of the 1982 LOS Convention was one of the most significant innovations in the law of marine environment protection. Coastal states may exercise sovereign rights in the EEZ – which was part of the high seas prior to the convention – with respect to exploration, exploitation, conservation, and management of living marine resources.[56] However, in order for a coastal state to be able to fully maximize the legal tools made available it must first establish the maritime boundaries. Unlike the continental shelf, the EEZ does not ipso facto and ab initio appertain to the coastal state.[57]
The problems of delimitation highlighted in the small but critical geography of the Aegean Sea, exist for the maritime boundary disputes in the Mediterranean generally, where political impasses have resulted in a hodgepodge of localized measures. Some examples of local solutions to intractable problems are Croatia’s EEZ-turned-fisheries-ecological protection zone,[58] France’s ecological protection zone,[59] and the fisheries protection zones declared by Algeria, Libya, Malta, Spain, and Tunisia, none of which is based directly on the 1982 LOS Convention, but which all reflect state attempts to address the needs of protection and preservation of the marine environment in the Mediterranean Sea. The resulting legal patchwork of zones in the Mediterranean, lacking coherent authority under the 1982 Convention or international law, has left one of the important marine ecosystems of the world oceans poorly protected. It is important to emphasize that the mechanical act of declaration of zones is rendered nugatory absent substantive laws and regulations strengthened with meaningful cooperation as foreseen under article 123 of the 1982 LOS Convention, and which animates many other provisions of the Convention.
VI. Conclusion
Two factors lead to Turkey’s final decision to vote against the LOS Convention and its continued refusal to sign and ratify it: the first is a subjective factor and the second a more objective factor. The subjective factor, one that was shared with the United States, was the disagreement with the declaration that the final text was a product of consensus. The United States also challenged this position by putting the final text to a vote. However, some twenty-six years later, this issue may be more a matter of historical interest than of modern concern. The second factor underlying Turkey’s non-ratification, which is the imprecision and vagueness of the provisions in the Convention on maritime delimitation for states of opposite or adjacent coasts, however, is still salient today. Although the final text included criteria that Turkey proposed during UNCLOS III, such as the requirement for agreement of the parties prior to any delimitation and the inclusion of equity as a guiding principle, Turkey was ultimately not convinced that ratification of the Convention could successfully resolve its disputes with Greece in the Aegean. In fact, a close examination of the applicable provisions reveals a dearth of guidance. The result is significant: the disputes between Turkey and Greece have been frozen since 1973, and of even greater consequence, some fifty percent of the Aegean Sea remains high seas, lacking the prescriptive and proscriptive competence afforded under the 1982 LOS Convention for protection and preservation of the marine environment.
The title of this paper may be a somewhat ambitious attempt to extend the question of Turkish non-ratification of the 1982 LOS Convention into the global context. The reality is that the consensus claimed to have been reached by the final text of UNCLOS III, in relation to the provisions on delimitation, was based on compromises that left behind a vague and unhelpful set of delimitation principles. Turkey was unconvinced that ratification could facilitate the final settlement of Aegean boundaries, and UNCLOS has thus far failed to resolve a plethora of conflicting coastal state claims, as predicted by Tommy Koh. Since the 1982 LOS Convention went into effect on November 16, 1994, many of the tough delimitation disputes around the world remain unresolved. Consequently, a significant portion of the world’s marine environment remains as unprotected high seas.[60] The efforts during UNCLOS III to create special delimitation principles for semi-enclosed seas were rebuffed. The resulting regime for semi-enclosed seas under Part IX of the 1982 LOS Convention contains only hortatory calls for cooperation by coastal states over living marine resources and in the exercise of their rights and obligations. But absent agreement on maritime boundaries such efforts of cooperation are inevitably undermined by disputes over ownership of resources.
Thus, ratification by Turkey of the 1982 LOS Convention would not in and of itself promote resolution of the maritime boundary disputes between Turkey and Greece. Moreover, the same conclusion can be extended to other unresolved maritime boundary disputes around the world. The vague principles adopted for delimitation of the territorial sea, the continental shelf, and the EEZ may have promoted wide acceptance of the final text of the Convention, but ultimately its impact has been far short of the expectations voiced by the President of the Conference. This failure also partially resulted from the opt-out provisions of Part XV and article 298(1)(a) that exempt certain disputes from compulsory, binding adjudication. The political realities underlying the ineluctable compromise required to reach the desired consensus are understandable, but the consequences of political stalemate have been decidedly concrete and damaging in contested marine environments. As demonstrated in the case of the Aegean Sea, the consequences of the failure of the 1982 LOS Convention to fulfill its promise of resolving disputed maritime boundaries eviscerates the important provisions of the Convention for protection and preservation of the marine environment.
The inability of Greece and Turkey to find a mutually agreeable solution for the Aegean Sea leaves approximately fifty percent of the Aegean as high seas. The prescriptive and enforcement jurisdiction necessary to establish an effective governance framework for protection of the marine environment of the Aegean Sea rests upon establishment of national jurisdictions based on international law and the cooperation and good faith of coastal states. The unilateral extension of jurisdiction not only violates the 1982 LOS Convention and international law but would risk inflaming conflict, which history has shown to result in environmental disasters. How the Aegean Sea disputes will be resolved is beyond the scope of this paper. However, what is evident is that the peaceful delimitation and the establishment of uncontested maritime zones is a prerequisite to ensuring the future sustainability of the marine environment. Once such maritime zones have been established, a variety of measures are available. For example, if supported with the required scientific and technical data, a PSSA could be designated to protect the vulnerable marine ecosystem of the Aegean Sea, individual or jointly managed marine protected areas could be established, surveillance and enforcement of illegal polluting activities could be instituted, and perhaps more importantly, the political and economic energies and finances expended on conflict could be devoted to protecting the natural wealth of the Aegean Sea.
Since the 1982 LOS Convention went into effect on November 16, 1994, there remain many disputed maritime boundaries in the world, including areas in the western and eastern Atlantic Ocean, the Caribbean Sea, the Gulf of Mexico, the Pacific Ocean, the South China Seas, the Persian Gulf, the Indian Ocean, the Red Sea, and the Antarctic.[61] The problem of maritime boundaries is integrally intertwined with the pressing need for states to individually and cooperatively enact laws dealing with shared or appurtenant maritime resources and to enforce them with the valuable means provided by the 1982 LOS Convention. The 1982 LOS Convention marked an historic codification of the law of the sea, but its promises remain unfulfilled, and the Aegean Sea, a seemingly sub-regional dispute, is in fact emblematic of a global problem.
* Nilufer Oral is a Lecturer in International Law at the Istanbul Bilgi University Law School in Istanbul, Turkey. She was a visiting scholar at the University of California, Berkeley, School of Law in the Fall of 2008.
[1] United Nations Convention on the Law of the Sea, Dec. 10, 1982, 1833 U.N.T.S. 397 [hereinafter LOS Convention]. The countries that abstained from voting were: Belgium, Bulgaria, the Byelorussian SSR, Czechoslovakia, the German Democratic Republic, the Federal Republic of Germany, Hungary, Italy, Luxembourg, Mongolia, the Netherlands, Poland, Spain, Thailand, the Ukrainian SSR, the USSR and the United Kingdom. Kenneth R. Simmons, U.N. Convention on the Law of the Sea vii (1983).
[2] John Noyes, 1 Berk. J. Int’l L. Publicist 4
[3] See Sevin Toluner, Some Reflections on the Interrelation of the Aegean Sea Disputes, in The Aegean Sea 2000, Proceedings of the International Symposium on the Aegean Sea, 121 (Bayram Özturk ed., 2000); Aslan Gündüz, A Tentative Proposal for Dealing with the Aegean Sea Disputes, id. at 139. See Jon M. Van Dyke, An Analysis of the Aegean Disputes Under International Law, 36 Ocean Dev. & Int’l L. 63, (2005), for the Turkish perspective; See Aegean Inst. of the Law of the Sea and Maritime Law, Greece and the Law of the Sea (Theodore C. Kariotis ed., 1997), for the Greek perspective.
[4] Van Dyke, supra note 4, at 63.
[5] Id.
[6] Greece claims a unique ten-nautical-mile air defense zone around the Aegean Islands that is not recognized by Turkey. Id. at 85.
[7] “‘[E]nclosed or semi-enclosed sea’ means a gulf, basin or sea surrounded by two or more States and connected to another sea or the ocean by a narrow outlet or consisting primarily of the territorial seas and exclusive economic zones of two or more coastal States.” LOS Convention, supra note 1, art. 122.
[8] Treaty of Peace with Turkey Signed at Lausanne, July 24, 1923, 28 L.N.T.S. 11, reprinted in 18 Am. J. Int’l L. Supp. 4 (1924) [hereinafter Lausanne Peace Treaty]
[9] Van Dyke, supra note 4, at 64.
[10] Stamalia (Astrapalia), Rhodes (Rhodos), Calki (Kharki), Scarpanto, Casos (Casso), Piscopis (Tilos), Misiros (Nisyros), Calimnos (Kalymnos), Leros, Patmos, Lipsos (Lipso), Simi (Symi), Cos (Kos), Castellorizzo (Meis) and the dependent islets collectively referred to as the Dodecanese Islands. During the period when the Dodecanese Islands were in the possession of Italy, the delimitation of the maritime boundary between of the islet Castellorizzo (Meis) and the Turkish coast was submitted to the Permanent Court of International Justice in 1929. The case was subsequently withdrawn by the Parties, who thenconcluded the 1932 Ankara Agreement. Van Dyke, supra note 4, at 67-8.
[11] Treaty of Peace with Italy, Feb. 10, 1947, 49 U.N.T.S. 126.
[12] Proclamation No. 2667, 10 Fed. Reg. 12,303 (Sept. 28, 1945). Prior to the Truman Proclamation, the United Kingdom and Venezuela in 1942 concluded the Treaty of the Gulf of Paria for the exploration and exploitation of oil resources in the continental shelf. However, the Truman Proclamation established the beginning of a general international rule for the continental shelf. See generally Zdenek J. Slouka, International Custom and the Continental Shelf, A Study in the Dynamics of Customary Rules of International Law (1968).
[13] 1 Rene-Jean Dupuy and Daniel Vignes, A Handbook on the New Law of the Sea 5 (1991). See also 1 L. Oppenheim, International Law: A Treatise 255 (1st ed. 1905) on the three-mile rule, also referred to as the “cannon shot” or one-league rule.
[14] In 1973 the Turkish Government granted licenses for scientific exploration of the continental shelf in the Aegean Sea, sparking protests from Greece.
[15] Aegean Sea Continental Shelf (Greece v. Turk.), 1978 I.C.J. 3 (Dec. 19). Greece initiated proceedings against Turkey before the International Court of Justice for the delimitation of the continental shelf with Turkey primarily because of Greek interest in oil exploration and exploitation. However, Turkey did not agree to the jurisdiction of the ICJ and the case was dismissed.
[16] The Kardak rocks lie 3.8 nautical miles from the Turkish coast and 5.5 nautical miles from the Greek Island Kalimnos. Greece claims that the Kardak rocks are dependent islets of Kalimnos and part of Greek territory. Turkey claims they are rock formations that are within the Turkish territorial sea. The issue came to a political crisis following the salvage by Turkish authorities of a Turkish fishing vessel stranded on Kardak on December 25, 1995. One month later in a political gesture the Mayor of Kalimnos raised the Greek flag on Kardak, which provoked Turkish journalists to replace the Greek flag with a Turkish flag. The incident sparked sharp government reactions bringing Greece and Turkey to the brink of war in what is now known as the “Kardak” or “Imnia” crisis. Van Dyke, supra note 4, at 69. See also Ali Kurumahmut, A New Greek-Turkish Dispute – Who Owns the Rocks, in The Aegean Sea 2000, Proceedings of the International Symposium on the Aegean Sea, 109 (Bayram Özturk ed., 2000).
[17] Coskun Kirca, Turkish Ambassador, Statement of Dec. 9, 1982, in 17 Third U.N. Conf. on L. Sea 1982, at 76.
[18] Nomos (1995:2321), Ephemeris Kyvernesos tes Hellenikes Demokratias [EKED] 1995. Greece also ratified the Agreement Relating to the Implementation of Part XI. Ratification of the U.N. Convention on the Law of the Sea and the Agreement Relating to the Implementation of part XI of the UNCLOS of 10 December 1982, [Ephemeris Kyvernesos tes Hellenikes Demokratias] [EKED], A:136, June 22-23, 1995, citing Anastasi Strati Greek Shipping Interests and the Law of the Sea, in Kariotis, supra note 5, at 255, n.1.
[19] See generally 2 United Nations Convention on the Law of the Sea 1982, A Commentary (Myron Nordquist, ed., 1995), for a history of the negotiations for Part IX on Enclosed or Semi-Enclosed Seas.
[20] Id. at 132-42.
[21] Id. at 948-56.
[22] The different positions adopted by Turkey and Greece were reflected in the proposed texts submitted by each. The Turkish proposal emphasized equitable principles whereas the Greek proposal stressed application of the median line. Id. at 803.
[23] 4 Renate Platzöder, Third United Nations Conference on the Law of the Sea: Documents, 351, 353 (1984).
[24] Id. at 488.
[25] Turkey submitted four individual texts and joint proposals with Yugoslavia and two joint proposals with Algeria, Iraq, Libya, and Romania. Id. at 491.
[26] Paragraph 3 of Article 121 expressly denies such rights to rocks that cannot sustain human habitation or economic life on their own.
[27] James B. Morell, The Law of the Sea: The Treaty and Its Rejection by the United States, 83 (1992).
[28] Kirca, supra note 18.
[29] Id.
[30] Tommy T.B. Koh, Closing Remarks of the Convention President: A Constitution for the Oceans (Dec. 11, 1982), in Index Third U.N. Conf. on L. Sea at xxxiii (1983).
[31] Kirca, supra, note 18.
[32] The principle of equity in delimitation was introduced in the North Sea Continental Shelf Cases, where the International Court of Justice rejected the obligatory application of the equidistance rule of the 1958 Geneva Convention. North Sea Continental Shelf Cases (F.R.G. v. Den.; F.R.G. v. Neth.), 1969 I.C.J. 3, 53 (Feb. 20). See generally Robert Kolb, Jurisprudence Sur Les Delimitation Maritimes Selon L’Équité [Case Law on Equitable Maritime Delimitation], (2003).
[33] Articles 74(3)-(4) and 83(3)-(4) are viewed as providing the legal basis for establishing joint development zones as an alternative resolution of overlapping zones. See Clive Schofield, Blurring the Lines? Maritime Joint Development and the Cooperative Management of Ocean Resources and the Cooperative Management of Ocean Resources, Issues in Legal Scholarship, http://www.bepress.com/ils/iss11/art3.; Thomas A. Mensah, Joint Development Zones as an Alternative Dispute Settlement Approach in Maritime Boundary Delimitation, in MARITIME DELIMITATION 143 ( Rainer Lagoni & Daniel Vignes eds., 2006); .
[34] See Kirca, supra note 18, at 77. The Turkish government, in expressing its support in principle of the concept of an exclusive economic zone, also expressed its concern that islands, islets, and rocks within an area to be delimited should be given special attention. Special circumstances could have a distorting effect, depriving coastal states of a meaningful exclusive economic zone. 2 Third U.N. Conf. on L. Sea 215 (1983). In its draft article on delimitation between states, Turkey included islands as a special circumstance that states must take into account when negotiating delimitation boundaries between states of adjacent or opposite coasts. 3 Third U.N. Conf. on L. Sea 201 (1983).
[35] Koh, supra note 31.
[36] R. R. Churchill and A.V. Lowe, The Law of the Sea 191 (3d ed. 1999). See also Malcolm Evans, Maritime Boundary Delimitation: Where Do We Go From Here?, in The Law of the Sea 137, 138 (David Freestone et.al. eds., 2006). Evans notes that the “near cliff hanger” debate during the UNCLOS III negotiations over equidistance versus equitable principles proved satisfactory to everybody because of its dearth of substance.
[37] The Eritrea-Yemen Arbitration, July, 2001, 40 I.L.M 983, ¶ 116.
[38] See Evans, supra note 36, at 138.
[39] Tullio Treves, New Trends in the Settlement of Disputes and the Law of the Sea Convention, in Law of the Sea: The Common Heritage and Emerging Challenges 61-86 (Harry N. Scheiber ed., 2000).
[40] LOS Convention, supra note 1, art. 283. Upon ratification of the Convention the party may declare its choice of one of the bodies listed in Article 287, which are (a) the International Tribunal for the Law of the Sea established in accordance with Annex VI; (b) the International Court of Justice;(c) an arbitral tribunal constituted in accordance with Annex VII; or (d) a special arbitral tribunal constituted in accordance with Annex VIII for one or more of the categories of disputes specified therein. In the absence of a declaration, Annex VII arbitration serves as the default tribunal.
[41] Charney, however, viewed the compulsory conciliation under Part XV as an effective promoter of dispute settlement. Jonathan I. Charney, The Implications of Expanding International Dispute Settlement Systems: The 1982 Convention on the Law of the Sea, 90 Am. J. Int’l L. 69, 73 (1996).
[42] See UN Division for Ocean Affairs and the Law of the Sea, Settlement of disputes mechanism Recapitulative tables, http://www.un.org/Depts/los/settlement_of_disputes/choice_procedure.htm (last visited Mar. 8, 2009)
[43] http://www.un.org/Depts/los/convention_agreements/convention_declarations.htm (follow “upon ratification/accession: Greece” hyperlink). See also L. Doliver M. Nelson, Declarations, Statements and ‘Disguised Reservations with respect to the Convention on the Law of the Sea, 50 Int’l & Comp. L. Q. 767 (2001).
[44] See generally Kolb, supra note 33;david a. colson & robert w. smith, 4 International Maritime Boundaries (2006); yoshifumi tanaka, predictability and flexibility in the law of maritime delimitation (2006).
[45] Van Dyke, supra note 4, at 87.
[46] See victor prescott & gillian triggs, Islands and Rocks and their Role in Maritime Delimitationin colson & smith, supra note 45, at 3245, for an overview of state practice and international adjudications involving the presence of islands in maritime boundary delimitations disputes. The most recent adjudication involving the presence of an island in maritime boundary delimitation was the ICJ decision in the Case Concerning Maritime Delimitation in the Black Sea (Decision of Feb. 3, 2209), available at http://www.icj-cij.org/docket/files/132/14987.pdf#view=FitH&pagemode=none&search=%22black sea%22 (last visited Mar. 27, 2009).
[47] The current six nautical mile territorial sea in the Aegean Sea provides Greece with control over 43.68 percent of the waters and Turkey with control over 7.47 percent. See David S. Saltzman, A Legal Survey of the Aegean Issues of Dispute and Prospects for a Non-Judicial Multidisciplinary Solution in Özturk, supra note 5, at 187.
[48] Turkish Marine Research Foundation, Marine life of Turkey in the Aegean and Mediterranean Seas, (Bayram Özturk ed., 2004).
[49] Nilufer Oral, Oil Transportation and Security in the Black Sea and the Turkish Straits, 5 J. Int’l Logistics & Trade 27, 29 (2007).
[50] Natalie Klein, Dispute Settlement in the Convention on the Law of the Sea 145-64 (2005). According to the Virginia Commentaries the “provisions on the protection and preservation of the marine environment constitute a substantial component of the new law of the sea.” 4 The United Nations Law of the Sea Convention 1982: A Commentary 3 (Myron Nordquist, ed., 1991). But see David Freestone, A Decade of the Law of the Sea Convention: Is it a Success?, 39 Geo. Wash. Int’l L. Rev. 499 (2007), for a critique of the gaps in the provisions for the protection and preservation of the marine environment, particularly in areas beyond national jurisdiction.
[51] Rosemary Rayfuse and Robin Warner, Securing a Sustainable Future for the Oceans Beyond National Jurisdiction: the Legal Basis for an Integrated Cross-Sectoral Regime for High Seas Governance for the 21st Century, 23 Int’l J. Marine & Coastal L. 399, 400 (2008).
[52] Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, arts. 21, 22, Dec. 4, 1995, 34 I.L.M. 1542 (1995)
[53] Coastal state jurisdiction refers to the sovereign power of the State to adopt laws and regulations for protection of the marine environment and safety of navigation. Port state jurisdiction is part of coastal state jurisdiction. For purposes of international law of the sea port state jurisdiction refers to the legal competence of national ports over foreign vessels seeking entry or which have entered the port, including the power to inspect for and enforce international regulations and standards for shipping established by applicable international agreements and the 1982 LOS Convention. See Catherine Redgwell, From Permission to Prohibition: The 1982 Convention on the Law of the Sea and Protection of the Marine Environment, in Freestone et. al., supra note 36, at 180-91.
[54] Int’l Maritime Org. [IMO] Revised guidelines for the identification and designation of particularly sensitive sea areas. IMO Assemb. Res. A. 982(24) (Dec. 1, 2005). See generally Julian Roberts, The application of international measures for the protection of the marine environment from impacts of shipping, in Legal mechanisms to address maritime impacts on Mediterranean biodiversity 49 (Nilufer Oral & François Simard eds., 2008).
[55] Article 220(5) allows the coastal state to undertake physical inspection of a foreign vessel in the EEZ if a violation of the laws of the coastal state has caused or threatens to cause “substantial pollution,” if the vessel has refused to give information or if the information supplied by the vessel is manifestly at variance with the evident factual situation, and if the circumstances of the case justify such inspection. Article 220(6) allows the coastal state to detain and institute proceedings against a foreign vessel that has violated its laws and regulations in the EEZ and has caused or threatens to cause “major” damage to the coastline or related interests of the coastal state, or to any resources of its territorial sea or exclusive economic zone.
[56] The proposal for an EEZ was first put forward by Kenya in 1971 to the Asian-African Legal Consultative Committee and then to the U.N. Sea Bed Committee in 1972. The EEZ was viewed as a compromise between those states seeking to extend their territorial sea to 200 nautical miles and those against such seaward expansion. R.R. Churchill & A.V. Lowe, The Law of the Sea 133, 146-47 (2nd ed., 1988).
[57] North Sea Continental Shelf Cases, 1969 I.C.J. at 23. (“[T]he 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 ipso facto and ab initio, by virtue of its sovereignty over the land, and as an extension of it in an exercise of sovereign rights for the purpose of exploring the seabed and exploiting its natural resources.”)
[58] Decision on the Extension of the Jurisdiction of the Republic of Croatia in the Adriatic Sea, in Law of the Sea Bulletin, no. 53, p. 68 (2004), modified by Decision of 3 June 2004, in Law of the Sea Bulletin, no. 55, p. 31 (2004). See Davor Vidas, The UN Convention on the Law of the Sea, the European Union and the Rule of Law: What is going on in the Adriatic Sea? 24 Int’l J. Coastal & Marine L. 1 (2009).
[59] Law No. 2003–346 of Apr. 15, 2003, Journal Officiel de la République Française [J.O.] [Official Gazette of France], April 16, 2003, implemented by Decree No. 2004-33 of Jan. 8, 2004, Journal Officiel de la République Française, Jan. 10, 2004. See Irini Papanicolopulu, A Note on Maritime Delimitation in a Multizonal Context: The Case of the Mediterranean, 38 Ocean Dev. & Int’l L. 381(2007) for an excellent examination of marine delimitation in the Mediterranean Sea.
[60] The 1982 U.N. LOS Convention entered into force with the ratification by Guyana, the sixtieth state to do so.
[61] See Victor Prescott & Clive Schofield, The Maritime Boundaries of the World (2d ed. 2005), for a detailed overview of the enduring delimitation disputes in maritime areas around the world.
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