The Exclusive Economic Zone is in reality a sovereign right of a State? The dispute over the Southeastern Mediterranean natural gas fields

Abstract

The notion of Exclusive Economic Zone (EEZ) is a relatively new one. Its gestation during the second half of the 20th century was slow and arduous. But, after its birth, it gained a very important and crucial place within the sector of International Law and especially the branch of the Law of the Sea. Furthermore, it implicates strong and unprecedented geopolitical issues, emerged between a lot of neighbouring states. Pursuant to the rule establishing its notion, the EEZ confers upon a State a sovereign right, subject to a number of restrictions, which do not, nevertheless, affect the core of its integrity. But, in real international life this integrity is seriously jeopardized. International Law, because of its particularity, cannot be equipped by and enjoy the means of forced execution, which are inherent to the national legal system of every sovereign State. The EEZ, as it is provided by the International Law and especially the United Nations Convention on the Law Of the Sea, is not in reality a sovereign right of a State. It depends on the consensus of the State with adjacent coast and overlapping EEZ, which is a ‘prerequisite’ legally not existing.

1. INTRODUCTION

The notion of Exclusive Economic Zone (EEZ) is a relatively new one. Its gestation during the second half of the 20th century was slow and arduous. But, after its birth, it gained a very important and crucial place within the sector of International Law and especially its branch, the Law of the Sea.¹ Furthermore, it implicates strong and unprecedented geopolitical issues, emerging between many neighbouring states.

Pursuant to the rule establishing its notion, the EEZ confers upon a State a sovereign right, subject to a number of restrictions, which do not, nevertheless, affect the core of its integrity. However, in real international life this integrity is seriously jeopardized.

The 1982 United Nations Convention on the Law of the Sea (UNCLOS), after a long period of preparatory works and propositions, prescribed the current notion of the EEZ.² Pursuant to Articles 55 and 56 of the UNCLOS, an EEZ is an area/sea zone beyond and adjacent to the territorial sea of a State. It confers sovereignty rights and jurisdiction to the coastal State and rights and freedoms to other States, which restrict the rights of the coastal State.

The sovereignty rights conferred concern exploration, exploitation, conservation and management of natural resources, whether living or non-living, of the waters superjacent to the seabed and of the seabed and subsoil of the named sea zone. To these specific rights were added the more generic rights of the exercise of activities related to the economic exploitation and exploration of the zone, such as the production of energy from the water, currents and winds.

It is worth noting that the EEZ does not confer full sovereignty over the sea zone, its seabed and its subsoil. This happens regarding the territorial sea. But, even these sovereignty rights recognized by the Convention to a State are in practice not an object of respect. They are often contested by other States and constitute astimulus to therise of international disputes. This is dueto the enormous economic significance of these rights and the great advantage they offer to theirbeneficiaries.

The international disputes arising from the existence and respect of the sovereignty rights conferred to a State by an EEZ have sometimes been transferred before the competent international tribunals, seeking their peaceful resolution. A lot of them remain however without any attempt to reach a friendly arrangement. Every interested party stands in an unyielding way on its positions on the mattera nd tends to interpret the relevant legal provisions exclusively, according to its own geopolitical interests.

This situation reflects the problem of the low ‘reliability’ of the sovereignty rights recognized in the field of International Law. The ‘right’ of the more powerful (militarily and/or geopolitically) party undermines the sovereignty right of the less powerful one. This is caused by the inexistence of an ‘international police’, in other words of an international mechanism of forced execution of International Law’s rules as well as of the resolutions of the international institutions. International Law is imposed ‘a la carte’³: When Serbia invaded Kosovo in 1999 (which was only an autonomous region), there was animmediate and effective military response from the international community. When Turkey invaded Cyprus in 1974 (an independent State), there was no effective international reaction, but only a lot of United Nations resolutions not executed by Turkey and not imposed by force upon it.

2. STATE SOVEREIGNTY AND STATE SOVEREIGN RIGHTS

State sovereignty is the concept that States are in complete and exclusive control of all the people and property within their territory.⁴ These people and the property are constitutive ‘elements’ of the State. In terms of the Law of the Sea, pursuant to the relevant UNCLOS, the territorial sea as well as the continental shell are constitutive elements of the State to which they belong and are considered as State property. Sovereignty confers to the State the supreme, absolute and uncontrollable power to regulate its internal affairs without foreign interference.⁵

On the other hand, a sovereign right refers to a legal right possessed by a State or its agencies and enables a State to carry out its official functions for the benefit of the public. Pursuant to US jurisprudence, a sovereign right is the consideration of public service or that character of service conducive to the public good.⁶

In terms of International Law, the main difference between sovereignty and sovereign rights consists in the fact that having sovereign rights over an area does not confer sovereignty over this area and does not render this area a constitutive element of the sovereign State.

Sovereign rights are not rights deriving from sovereignty but rights with a specific functional purpose. The phrase ‘sovereign rights’ in Article 56 of the UNCLOS suggests states that rights are exclusive, not preferential over other states. The same term is used in relation to the continental shelf regime and makes clear that a State may not have sovereignty per se over its EEZ, but it does have all other exclusive rights prescribed in the UNCLOS.⁷

Exclusive sovereign rights recognized by the UNCLOS are considered as a type of ‘functional’ sovereignty, in the sense that they have to be connected to particular grounds permitted by International Law.⁸ In other words, sovereign rights are subjacent to sovereignty and constitute sovereignty essential specific branches. Sovereignty is exercised through sovereign rights.

3. MEANS OF INTERNATIONAL DISPUTE SETTLEMENT

Article 33 of the UN Charter directs the parties of the dispute towards peaceful settlement by means of their own choice. These means comprise both non-compulsory and compulsory procedures. The UNCLOS provides in its part XV a number of non-compulsory procedures, more specifically negotiation, mediation and conciliation, and a number of compulsory ones before the Tribunals (Arbitral or not) indicated below.

It is worth noting that each of the above-mentioned procedures, in order to be proven as effective dispute settlement, presupposes the agreement of all the interested parties to participate in them and, mainly, to comply with their outcome, even if thismay be contrary to their interests. There is no International State, there is no International Sovereignty, there is no International Legislature, there is no International Administration, there is no International Judicature, there is no International Police to execute the decisions of the previous institutions. International Law is more or less inapplicable.⁹ The only thing that exists and prevails in the field of international relations is the right of the more powerful.

4. THE CONTROVERSIAL UNCLOS MECHANISM OF EEZ DELIMITATION

The exclusive sovereign rights conferred to a coastal State over the area of its EEZ, as prescribed by Articles 55 and 56 of the UNCLOS, risk becoming powerless and inapplicable: in case of the oral and/or material reaction of a neighbouring/adjacent State, which claims the whole or a part of the same EEZ, then the coastal State is hindered from the free exercise of its ‘exclusive’ sovereign rights. As a result, the relevant provisions of the UNCLOS are losing their vitality and become legally disabled.

Certainly, the UNCLOS has enacted a mechanism for the delimitation of the EEZ and the resolution of disputes between adjacent States regarding such a delimitation.¹⁰ Delimitation of an EEZ is a process involving the division of maritime areas in a situation where two (or more) States have competing claims. This act may imply restriction of their perceived sovereign rights. The delimitation of the maritime boundaries’ process itself involves three types of issues, the source of authority, the principal methods by which delimitation is carried out and the technical questions regarding the determination of the actual lines in space.¹¹

Every coastal state is becoming very concerned about marine resources because the world economy is turning to the ocean-based resources, termed the Blue Economy. So, all States claim their different maritime zones according to their own interest. Maritime boundary disputes occur mostly due to the overlapping claims between adjacent or opposite states for 12 nautical miles in territorial seas, 200 nautical miles in EEZs and continental shelves which may extend beyond 200 nautical miles, and due to the contesting claim of sovereignty over the same island or the same area of mainland. The rapid settlement of maritime boundary and especially of EEZ delimitation disputes is of key importance for the peaceful coexistence of coastal states as well as the security of International Law. Nevertheless, most of the disputes are delayed to be settled. UNCLOS is the prime international instrument which deals with the procedures of EEZ boundary delimitation.¹²

Article 287 of the UNCLOS states that when signing, ratifying, acceding or at any time thereafter, a State shall be free to choose, by means of a written declaration, one or more of the following means for the settlement of disputes concerning the interpretation or application of this Convention, including the maritime boundaries and especially the EEZ delimitation:

• the International Tribunal of the Law of the Sea (ITLOS) established in accordance with Annex VI of the Convention and situated in Hamburg,

• the preexisting International Court of Justice (ICJ) established in 1945 under the auspices of the United Nation, situated in The Hague,

• an arbitral tribunal constituted in accordance with Annex VII of the Convention,

• a special (ad hoc) arbitral tribunal constituted in accordance with Annex VIII of the Convention for one or more of the categories of disputes specified therein.

The above UNCLOS dispute resolution mechanism lacks effectiveness, despite the ambitions of its founders.¹³ Its deficiencies consist in the fact that the mechanism’s operation presupposes that all disputing parties agree by mutual written declaration to the submission of their dispute to the UNCLOS resolution mechanism. But even if such an agreement is achieved, nobody can guarantee that all disputing parties will voluntarily respect and apply the outcome of the resolution mechanism procedure. As explained above, there are no ‘international police’ or international mechanisms to enforce the execution of the judgments of the International Courts and Arbitral Tribunals.

In that respect, the exclusivity of the exclusive sovereign rights conferred by UNCLOS regarding the area of an EEZ is under question. This means not only that the EEZ is moderately exclusive in comparison with the exclusivity in the territory, because having sovereign rights over specific issues is not the same as having sovereignty,¹⁴ but it also means that even this non-austere exclusivity is being jeopardized by the lack of its effective protection.

5. THE PROBLEM OF EEZ DELIMITATION IN THE SOUTHEASTERN MEDITERRANEAN REGION

The national, regional and international interests in East-Mediterranean natural gas have significantly picked up since the discovery of the Tamar in 2009 and the Leviathan in 2010. Both fields are located in offshore Israel. Aphrodite was discovered in 2011 in offshore Cyprus, followed a few years later by the giant field Zohr in 2015 in offshore Egypt, and, most recently, another potentially significant discovery, ‘Calypso’ was made in 2018 in Cyprus.

The last decade (2010–19) has been witness to a serial discovery of huge natural gas fields in the Southeastern Mediterranean region. The coastal States of the region, like Egypt, Israel and Cyprus, which were previously typical oil importer countries, and fully outsourcing energy-dependent entities, now incubate ambitions of becoming energy source exporting countries with autonomy regarding their energy needs

The discovery, in chronological order, of the natural gas fields named Tamar (2009—offshore Israel), Leviathan (2010—offshore Israel), Aphrodite (2011—offshore Cyprus), Zohr (2015—offshore Egypt) and Calypso (2018—offshore Cyprus) is rendering the Southeastern Mediterranean region a new ‘Eldorado’ and the hunt for the newly appeared ‘white gold’ (natural gas) increases the fever of all geopolitically powerful international players. An alternative way for European countries is emerging, allowing them to tackle the Russian energy monopoly and the relevant dependence.¹⁵ It is also common sense that these discoveries guarantee the necessary European energy security against every possible threat.¹⁶

Every body (State) happy? Unfortunately for the geopolitical stability of the region as well as for the integrity of the sovereign rights recognized by UNCLOS regarding an existing EEZ, no! Turkey, a neighbouring country to the above-mentioned countries, is strongly reacting on the grounds of its non recognition of both the Cypriot Republic and the right of an island to be beneficiary of an EEZ. And this reaction causes a lot of geopolitical and legal implications and impedes the normal exploitation of the natural gas that has been discovered, not only of the fields belonging to Cyprus’ EEZ but also to the EEZ of the other countries. This happens because of the interconnection of the issues related to the exploitation of the whole of the natural gas contained in these fields.

Turkey has not signed or ratified the UNCLOS, because it has understood that the Convention’s provisions could undermine its maritime interests in the Aegean Sea and the Southeastern Mediterranean Sea. Nevertheless, it claims rights over its own EEZ, a notion which has been instituted by UNCLOS in a definitive manner. Recently, Turkey started to talk about its ‘Blue Homeland’,¹⁷ a phrase implicitly referring to its maritime ‘territory’. In this ‘Homeland’, Turkey intends to include maritime territories belonging to Greece’s Aegean islands EEZ as well as the Cyprus EEZ, pursuant to the UNCLOS.

Turkey was not content only to express intentions and ambitions orally regarding the EEZ it claimed to belong to it. For the last three years, Turkey has materially, by military force, impeded Cyprus from the exercise of its sovereign rights to explore one of its EEZ fields and started proceeding to its own exploration activities within the Cyprus EEZ. Cyprus is not in a position to react militarily in order to protect its relevant sovereign rights effectively.¹⁸

Turkey is the only Member State of the UN that does not recognize Cyprus, and is one of the few which is not a signatory to the UNCLOS, which Cyprus has signed and ratified. This peculiar situation and especially the absence of diplomatic relations is at the heart of the reason for the absolute non-possibility for the two parties to reach an agreement through non-compulsory procedures.

Pursuant to Turkey, the solution of the Cyprus problem is a prerequisite for the settlement of the Cyprus maritime zones dispute. The international community does not acknowledge these claims on Cyprus’ sea, which are viewed as illegal under the UNCLOS provisions and urge Turkey to refrain from illegal drilling for gas in the island’s EEZ.¹⁹ Furthermore, the European Union has imposed on Turkey economic and political sanctions for violating the Cypriot EEZ. But this was not enough to persuade Turkey to abstain from such violations of Cyprus' sovereign rights.

6. THE PROVISIONS OF INTERNATIONAL LAW AND JURISPRUDENCE RELATED TO THE SPECIFIC DISPUTE

The core of the dispute over the EEZ of the Southeastern Mediterranean region consists in the fact that Cyprus is an island and that Greece has a lot of islands dispersed all over the Aegean Sea and covering most of its maritime territory, and especially the big island of Crete. On the other hand, Turkey has the most extensive coastal line in the Mediterranean Sea and, normally, is willing to exploit this obvious advantage. But the existence of the above-mentioned islands raises an unpleasant barrage to this ambition.²⁰

The UNCLOS seems to make no distinction between mainland and island regarding the recognition of EEZ-related sovereign rights. Pursuant to Article 121(2) of the UNCLOS, the EEZ of an island is determined in accordance with the provisions of the Convention applicable to other land territory and only rocks which cannot sustain human habitation or economic life on their own are exempted from a right to an EEZ. The jurisprudence of the ITLOS, established by the UNCLOS, follows this legal approach with variations.²¹ On the contrary, the ICJ is being proven to be more strict regarding respect due to this rule.²²

It results that there is a general rule in International Law that every inhabited island could legitimately claim its own EEZ under the appropriate circumstances. The international community shares this legal approach.²³ But the specific circumstances of each particular case could influence the extent of the relevant sovereign rights.

There are three important judgments of the competent two international Courts dealing with the question of attribution of an EEZ to an island as stated below.²⁴

In the case Romania v Ukraine,²⁵ the ICJ considered the effect of the Serpent island, which is inhabited but with very short coast, in the delimitation procedure of the EEZ of the disputing parties. The Court intentionally refrained from characterizing the Serpent island as an island or as a rock pursuant to the provisions of Article 121 of the UNCLOS. It referred to it by calling it ‘a natural feature’. Finally, the Court awarded to Serpent island a territorial sea zone, but refused to recognize a particular EEZ belonging to this island, because it decided that the island cannot serve as a base point for the construction of an EEZ, for the reason that it does not constitute part of the general configuration of the coast. Still, the Court judged that the island could not affect the delimitation of the maritime boundaries between the two parties of the dispute, because, for the reason of its small significance related to its extent, it does not constitute a special circumstance which could be taken into consideration on the matter.

In the case Bangladesh v Myanmar,²⁶ the ITLOS adopted in general terms the ICJ’s jurisprudence regarding the award of an EEZ to an island. It recognized full territorial sea rights to St Martin’s island, but it refused the same regarding EEZ rights. The Court invoked the fact that the island is in front of the coast of the adversary party in the dispute and produces a cut-off effect.

In the case Nicaragua v Colombia,²⁷ the ICJ referred to ‘the small size, the remoteness and other characteristics’ of the islands, in order to exclude the recognition of sovereign rights related to an EEZ. Also, the Court in that case abstained from legally characterizing them as islands or rocks, calling them ‘features’, even if it expressly invoked Article 121(3) of the UNCLOS, which deprives rocks of an EEZ right. However, the ICJ decided (as ITLOS did) to attribute territorial sea rights to these ‘features’.

7. EVALUATION/INTERPRETATION OF THE LAW AND JURISPRUDENCE PROVISIONS

It is undeniable that UNCLOS stipulates that the EEZ of an island is determined in accordance with the provisions of the Convention applicable to the other land territory. This stipulation means that islands (except rocks) are not excluded from a right to an EEZ, and that the mechanism of recognition of such a right is common with the mechanism regarding a mainland with coast, as it provided by the UNCLOS. But this stipulation does not mean that every island could definitely be awarded a right to an EEZ, even if the specific circumstances of the case do not allow it. The same, of course, could happen regarding a mainland.

As far as the jurisprudence of the two Courts (ICJ and ITLOS) is concerned, it follows the above interpretation of Article 121(2) of UNCLOS. In the three above-cited judgments, the Courts refused to attribute EEZ rights to the islands because of the specific circumstances prevailing in each case. If they decided to the contrary, such a decision should affect the core of the EEZ rights belonging to the adversary party/State, in an unfair and not justified manner, mainly because of the small significance of the islands.

The Courts in the above-mentioned cases did not deal directly with the question of recognizing or not an EEZ right to the islands. They focused on the delimitation of the maritime boundaries between the disputing States and, during this exercise, they considered incidentally the impact of the islands on the delimitation in progress.

In order to proceed to the maritime boundaries’ delimitation process, the Courts followed a mechanism adopted by their jurisprudence²⁸: This mechanism consists initially of one qualifying stage of procedure, which is followed by three main stages of procedure, conducted by the Court in order to achieve the final delimitation.

The qualifying stage includes the tracing of the coasts that are relevant to the delimitation. Relevant coasts in that respect are the opposite or the adjacent coasts of the disputing parties/States. In the first of the three main stages, the Court establishes a provisional median line using methods that are geometrically objective and appropriate to the geography of the area. After this follows the second stage in which the Court thoroughly examines the possible existence of special circumstances. Finally, it is the turn of the third stage, during which the Court proceeds to the verification of the examination and the research for the most appropriate outcome. In doing so, the Court is taking into consideration the proportionality criterion and the production of an equitable solution.²⁹

It results that the need to consider the possible existence of special circumstances, to pay respect to the proportionality criterion and to produce an equitable solution shall determine whether an island will be awarded a right to an EEZ. From the previous admission, the following could be interpretively produced: an insignificant island’s EEZ should legally retreat before a mainland’s EEZ, if the first overlaps and consequently essentially destroys the latter. On the contrary, if the island constitutes a whole State, or if it claims great significance, nobody could deny the attribution of EEZ rights to it, even if such an attribution could harm the EEZ rights of the adversary State.

8. THE SPECIFIC GEOPHYSICAL CIRCUMSTANCES IN THE TRIANGLE FORMED BY TURKEY, GREECE AND CYPRUS

Turkey has the longest coastline and the biggest mainland in the Southeastern Mediterranean. But this does not offer it predominance against its neighbours Greece and Cyprus with regard to its maritime territory. This fact is due to the existence and the position of the Greek islands all over the Aegean Sea (adjacent and very close to the coast of Asia Minor) and the position of Cyprus (adjacent to the Anatolian coast). Further, pursuant to the relevant UNCLOS provisions, these islands’ positions impede the enjoyment by Turkey of full EEZ rights to the extent recognized by International Law.

It is interesting to consider in that respect the impact effect of the Aegean Sea Greek islands. The UNCLOS recognizes a territorial sea zone of 12 nautical miles around each inhabited island. But Greece has officially declared a length of 6 nautical miles regarding its territorial sea zone, that means half of the maximum permitted by UNCLOS. Even in that case, Greek territorial waters cover 43.5% of the Aegean Sea. If the territorial waters of the two countries were brought to 12 nautical miles, 71.5% of the Aegean Sea would be under Greek sovereignty and only 8.7% under Turkish sovereignty, the remaining 19.8% for the open high sea. Furthermore, if the two countries established EEZs, after the UNCLOS eventual ratification by Turkey, this remaining space of 19.8% would fall entirely under the sovereignty rights of Greece.³⁰

Analogue impact effects are being produced regarding Turkey’s EEZ rights related to the Anatolian coast which is adjacent to the island of Cyprus. It is also interesting in that respect to consider the extent of the EEZs of both Turkey and Cyprus, calculated pursuant to the UNCLOS provisions: Turkey’s coastline (8.333 km) is 12 times longer than Cyprus' coastline (648 km), while Turkey’s EEZ (261.654 square km) is only 2.5 times wider than that of Cyprus (98.707 square km).³¹ This ‘restriction’ of the Turkish EEZ is caused by the impact effects of the recognition of EEZ rights to Cyprus, pursuant to the UNCLOS.

The outcome of the above-presented geophysical and statistic elements is that Turkey has a feeling of injustice and for that reason not only is it refusing to ratify the UNCLOS but is also strongly reacting against any attempt coming from Greece and/or Cyprus and claiming their enjoyment of EEZ rights, based on the UNCLOS provisions. Turkey is asking for a settlement with Greece regarding the delimitation of their mutual EEZs via an interstate agreement outside the framework of UNCLOS and relying on the respect of its (not yet specifically determined) rights on the matter. As far as the Cyprus EEZ is concerned, Turkey is insisting that this question could not be settled before the broader settlement of the Cyprus division issue.³²

9. THE SEARCHED OUT SETTLEMENT SHOULD BE AN ‘OUTLAW’ ONE?

Turkey seems to be unwilling to retreat from its positions on the matter and the international community seems to be unwilling to oblige it to do so. In order to resolve the deadlock, the International Law rules both generally and specifically in the field of the law of the sea should perhaps concede their role as dispute resolution mechanism to an ‘outlaw’ one. Such a mechanism could rely upon the principle of ‘equity’.³³

Equity is the ultimate refuge of a judge in a common law country when he finds that the outcome of the application of the rule of law appears to be contrary to natural justice and thesolution of the case calls for ‘outlaw’ regularization. To do so, he deviates from the strict respect to the rule of law and adopts outlaw remedies that can tackle effectively the issue under settlement. Equity is a mechanism invented during the medieval period and could be compared to a recently developed one: mediation.

As far as the EEZ dispute within the geophysical triangle formed by Turkey, Greece and Cyprus is concerned, the strict application of the UNCLOS provisions should be excluded. Not only because Turkey will not recognize and accept any solution relied upon by these provisions, which is a pure violation of International Law committed without any punishment, but also because the application of these provisions will lead to an objectively unfair result regarding Turkey, for the above-mentioned reasons.

But, which should be the way to be followed in order to achieve regularization responding to the need of both respecting as much as possible international legality and not being unfair regarding Turkey? The searched out equilibrium could be obtained if, through a mutual compromise on the one hand, Turkey agrees to ratify the UNCLOS and to recognize the EEZ rights conferred by it to Greece and Cyprus and, on the other hand, and at the same time Greece and Cyprus by bilateral agreements concede to Turkey the right of co-exploitation of any natural gas or oil field already discovered and to be discovered in the future within Greece’s and Cyprus’ EEZs.

10. CONCLUSION

International Law because of its particularity cannot be equipped by and enjoy the means of forced execution, which are inherent to the national legal system of every sovereign State. The ‘subjects’ of the UN institutional formation (the Member States) are totally different from the ‘subjects’ of a State (its citizens), in the sense that the degree of loyalty of the former is significantly lower than the degree of loyalty of the latter. The sovereign State enjoys a feeling of absolute supremacy and has no conscience of belonging to a superior institution which it is obliged to obey unconditionally.

The above acceptances are particularly active and valid when we consider the real respect paid to the UNCLOS provisions, especially to the EEZ sovereign rights. The tools that are offered by the UNCLOS and more generally International Law, in order to settle a relevant dispute, have been proven ineffective in the Southeastern Mediterranean region. Instead of a procedure of peaceful and lawful solution, a power game is being played in the area by players violating the relevant rules.

The general outcome/conclusion is that, unfortunately, the EEZ, as provided by International Law and especially the UNCLOS, is not in reality a sovereign right of a State. It depends on the consensus of the State with adjacent coast and overlapping EEZ, which is a ‘prerequisite’ not existing legally.

Footnotes