Deniz BaranThe Legal Aspects of the Eastern Mediterranean Crisis
Abstract: Currently, the Eastern Mediterranean region is undergoing one of the most intense crises the region has ever witnessed. The main reason behind the current crisis is the increasing discoveries of significant oil and hydrocarbon fields in the East Mediterranean Basin since the 2000’s. Thus, the current maritime boundary disputes between the coastal states such as Turkey and Greece actually correspond to a crisis of distribution of the potential resources. In the current situation, the best way for a precise assessment of the Eastern Mediterranean crisis from an international law perspective is to examine two recently signed international agreements which embody the claims of the contesting parties: TurkeyLibya and Greece-Egypt maritime delimitation agreements. Therefore, in this expert brief, the most important features of both agreements and the contesting claims of the relevant parties are examined in detail in light of their reactions to those agreements. Finally, some previous maritime delimitation cases are analyzed in order to explore the possible approaches to be referred for an equitable solution of the Eastern Mediterranean crisis.
Today, the Eastern Mediterranean region is undergoing one of the most intense crises the region has ever witnessed. What is happening in the Eastern Mediterranean is a multi-faceted crisis encompassing vital and complicated disputes among the coastal states [Turkey, Greece, Egypt, Libya, Israel, Lebanon, the Turkish Republic of Northern Cyprus (TRNC) and the Greek Cypriot Administration of Southern Cyprus (GCA)]. These disputes regard the boundaries of the maritime zones and include the direct involvement of many regional and global powers such as the United Arab Emirates (UAE), United States (US), European Union (EU) and Russia, each of which is seeking to preserve their own interests.
The main reason behind the current crisis is the increasing discoveries of significant oil and hydrocarbon fields in the East Mediterranean Basin since the 2010’s.1 The current disputes on the boundaries of the maritime zones correspond to a crisis of distribution of the potential resources. The coastal states’ ambitions for control of these resources inevitably sets them at odds with each other. So much so that the North Atlantic Treaty Organization (NATO) allies Turkey, Greece, and France astonishingly came to the verge of a military confrontation over the course of events following Turkey’s plans for hydrocarbon exploration activities which were publicly announced with a Navigational Telex (NAVTEX) on July 21, 2020.2
From Turkey’s point of view, its planned hydrocarbon exploration activities would be carried out entirely within the Turkish maritime jurisdiction as the exploration area corresponds to Turkey’s continental shelf as declared to the UN.3 Nevertheless, Greece raised objections to Turkey’s exploration activities on the ground that the projected seismic research area was actually within its own continental shelf.4 Greece’s position found some strong support from its European allies,5 whose threats of sanctions were strongly opposed by Turkey.6 Such an exchange of verbal blows in late July had led to a sudden rise in tension between NATO allies in the Eastern Mediterranean. That was until, through German mediation, Turkey decided to suspend its planned exploration as a goodwill gesture for future negotiations.7 However, this relatively peaceful period drew to a close with the signing of the Maritime Delimitation Agreement between Greece and Egypt in the first week of August,8 which Turkey deemed null and void on the ground that the supposedly-delimited area within the agreement lies within the Turkish continental shelf and violates the rights of Libya and the TRNC arising out of their continental shelves.9 Turkey, in response, issued a series of new NAVTEX declarations throughout August.10 At the same time, EU High Representative Joseph Borrell warned that the “serious deterioration in the relationship with Turkey” was affecting the wider region11 highlighted by Greek and Turkish warships colliding during a standoff in the Eastern Mediterranean on August 12th.12
Since France has decided to bolster its military presence13 in the Eastern Mediterranean due to their concern over Turkey’s “unilateral” exploration activities,14 Turkish decision-makers have repeatedly stressed that any intervention against Turkish vessels would not be left unanswered and that Turkey is determined to protect its rights and interests in the Eastern Mediterranean.15 Turkish Foreign Minister Mevlüt Çavuşoğlu emphasized in his letters to the foreign ministers of EU members and the Foreign Policy Chief of the EU that Greece and the GCA had actually taken unilateral steps with respect to the Eastern Mediterranean issue in spite of calls by Turkey for collaboration and dialogue.16 However, the EU, which has repeatedly called on Ankara to halt its exploration activities off Cyprus, voiced their solidarity with Greece and called for de-escalation of the crisis.17
Towards the end of August, Germany’s mediation efforts seemed to bear fruit when Heiko Maas, the German Minister of Foreign Affairs, met his Turkish counterpart in order to discuss de-escalation of the ongoing crisis.18 Furthermore, Donald Trump, the US President, got involved in de-escalation efforts through phone calls with Greek and Turkish leaders.19 NATO’s Secretary-General Jens Stoltenberg said that Turkey and Greece had agreed on starting initial talks to defuse the ongoing tension even though that statement was denied by Athens immediately.20 To start initial talks, Greece has stipulated that Turkey shall withdraw its warships from so-called Greek waters which happened on September 13.21
The summary of the current escalation in the Eastern Mediterranean to date is as noted above.22 What the future will bring is yet to be seen. In the current situation, maybe the best way for a precise assessment of the Eastern Mediterranean crisis from international law perspective is to examine two recently signed international agreements which embody the claims of the contesting parties: Turkey-Libya and Greece-Egypt maritime delimitation agreements.
Turkey-Libya Maritime Delimitation Agreement:
On November 27, 2019, The Turkish government and the Libyan Government of National Accord (GNA) signed a memorandum of Understanding (MoU) with the purpose of determining the maritime boundaries between two states. The MoU came into effect on December 8, 2019.23 Regardless of its title, this is an international agreement/treaty as per the definition of the Vienna Convention on the Law of Treaties, which is to say that its provisions are binding for the parties. It is also important to note that since the United Nations (UN) backed GNA is the internationally recognized and legitimate government of Libya, it was legally capable of undertaking such international obligations by signing such international agreements.24 With this MoU, Turkey and Libya agreed on a 30-km long maritime boundary near the Greek island of Crete.25 Hence, the parties clearly demonstrated that they do not recognize the broad maritime jurisdiction claims of Greece in the Eastern Mediterranean on the grounds of the existence of its islands such as Crete as well as the claims of GCA that overlap with Turkey’s claims on the maritime area between Cyprus and Greece. This MoU was crucial as it showed Turkey’s proactive manner for securing its own sovereign rights in the Eastern Mediterranean.
Here we need to shortly explain the difference between an EEZ and a continental shelf, each of which entails different sets of rights for coastal states. Briefly, an EEZ gives a coastal state the right to exploit the marine, seabed and subsoil resources within an area which extends no more than 200 nautical miles from its coastlines, while a continental shelf grants similar rights only on the seabed and in subsoil. Furthermore, a continental shelf can extend to 350 nautical miles under some specific circumstances. Also, an EEZ does not exist by default and must be proclaimed by coastal states, while all coastal states are entitled to have their continental shelves without the need of proclaiming it (ipso facto).
The MoU is a very brief international agreement with some outstanding provisions. Article 4 (3) of the Agreement obliges Turkey and Libya with negotiating with one another when they want to make a maritime delimitation agreement with third parties. Article 5 stipulates that the Parties may request the revision of the provisions, however, such a request cannot be made for Article 1 and 2 which are the main foundations of the MoU as these provisions are directly related to the determination of the maritime boundary. Such a restriction demonstrates that the parties strongly want to close all the doors for any future change of the determined maritime boundary as per the MoU.
Greece-Egypt Maritime Delimitation Agreement
Greece and Egypt signed an agreement on August 7, 2020 for the delimitation of the two countries’ maritime boundaries in the Eastern Mediterranean.26 The Greek Foreign Minister described the agreement as an exemplary one that “reconfirms and enshrines the effect and the right of islands to a continental shelf and EEZ in conformity with international law and UNCLOS,”27 while the Egyptian Foreign Minister stated: “This agreement allows both countries to move forward in maximizing the utilization of the resources available in the exclusive economic zone, especially promising oil and gas reserves.”28.
7 Source: Greece-Egypt Maritime Delimitation Agreement- Annex 1
The very first attempts for a Greece-Egypt maritime delimitation agreement date back to early 2000s.29 It must also be noted that Egypt had already concluded a maritime delimitation agreement with the GCA in 2003.30 However, at that time Egypt had prioritized fixing its maritime boundary with Turkey first without interfering in the dispute between Turkey and Greece before then concluding an agreement with Greece.31 Therefore, the talks between the parties throughout the 2000’s did not result in any agreement. However, in result of the radical changes in the geopolitical relations and shifting alliances in 2010s, Turkey-Libya MoU pushed Greece and Egypt to swiftly conclude their own long-awaited maritime delimitation agreement.
Different from the Turkey-Libya MoU, the Preamble to the Greece-Egypt Agreement recognizes the relevance and applicability of UN Conventions on the Law of the Sea (UNCLOS) as well as emphasizing that each party shall exercise its sovereign rights in accordance with UNCLOS. The reason for this difference is the fact that both Greece and Egypt are party to UNCLOS while neither Turkey nor Libya (signed but not ratified) are.
The very first attempts for a Greece-Egypt maritime delimitation agreement date back to early 2000s. It must also be noted that Egypt had already concluded a maritime delimitation agreement with the GCA in 2003 8 The agreed boundary between Greece and Egypt is a straight layout that comprises five points between the 26th and 28th meridian. The boundary is based on the median line between the opposite coasts of two countries. Notably, the Greek coasts which were based on the determination of the median line are the coasts of some Greek islands such as Crete and Rhodes instead of the Greek mainland. It is an important point because this choice reflects Greece’s longstanding position claiming that the Greek islands in the Eastern Mediterranean are entitled to generate maritime zones of their own, thus they should be taken as base points for the determination of median lines.
Having said that, it is also worth mentioning that the current boundary is not a strict median line but an adjusted line resulting in the allocation of the maritime zones at a ratio of about 9:11 favouring Egypt. That seems to be a remarkable concession from Greece.
Last but not least, the geographical scope of the Greece-Egypt Maritime Delimitation is limited because the current delimitation addresses only a part of the full length of the potential maritime boundary between Greece and Egypt. For instance, the island of Kastellorizo (Meis in Turkish) which is one of the most controversial points in the current dispute between Greece and Turkey is not included in the Agreement. Most probably, it is a deliberate decision in order to avoid a fierce confrontation with Turkey and to shield the Agreement from possible criticism on the grounds that it inequitably narrows down Turkey’s maritime zone.
Contesting Legal Claims
As per the international law of the sea, every coastal state has a right to claim its sovereign rights on maritime zones off its own coasts. In general, the main problem with the allocation of the maritime zones is the high relativity of the principles and methods to be used for delimitation.
The Greek coasts which were based on the determination of the median line are the coasts of some Greek islands such as Crete and Rhodes instead of the Greek mainland. It is an important point because this choice reflects Greece’s longstanding position claiming that the Greek islands in the Eastern Mediterranean are entitled to generate maritime zones of their own
Indeed, in the Eastern Mediterranean crisis, the contesting parties seem to be trying to maximize their maritime zones by taking advantage of the open-endedness of the delimitation methods in international law. In fact, currently the main legal contest in the Eastern Mediterranean seems to be between Turkey and Greece. Other coastal states such as Libya and Egypt are just tagging behind either Turkey or Greece on the basis of their various geopolitical considerations rather than genuine legal claims. Therefore, we should mainly focus on the legal dispute between Greece and Turkey in our assessment.
Today, the main sources of the maritime delimitation 
rules are UNCLOS, some other international treaties and international customary law (ICL). Here we need to especially touch upon a couple of relevant provisions of UNCLOS for a better understanding. As per Article 74(1) and 83(1) of UNCLOS, an agreement between the concerned coastal states is the primary way for the delimitation of an EEZ and a continental shelf. However, no specific method is mentioned in UNCLOS for delimitation. The only essential standard set forth is that the delimitation shall be on the basis of an “equitable solution.” Hence, it is understood that law of the sea is highly open to different interpretations in many aspects. Therefore, a case-by-case assessment is imperative for identifying the relevant methods for each delimitation.
In respect to the Eastern Mediterranean crisis, it must be kept in mind that Turkey is not a party to UNCLOS as well as the 1958 Convention on the Continental Shelf, another relevant treaty. So, for Turkey, the main source for determining laws of the sea is the rules of ICL. However, by its very nature, the ICL is not codified and in order to identify the relevant rules of ICL, the precedents of the case law are of great importance. That is to say, the previous judgements on the numerous disputes brought by the contesting states to the international tribunals or arbitration mechanisms provide important guidance for shedding light on the relevant rules and principles of ICL of the sea.
The only essential standard set forth is that the delimitation shall be on the basis of an “equitable solution.” Hence, it is understood that law of the sea is highly open to different interpretations in many aspects. Therefore, a case-by-case assessment is imperative for identifying the relevant methods for each delimitation.
Most Essential International Conventions Turkey Greece Libya Egypt 1982 UN Conventions on the Law of the Sea Not Signed Party Signed but Not Ratified Party 1958 Convention on the Continental Shelf Not Signed Party Not Signed Not Signed The most prominent principle underlined in almost all of the cases has been, not surprisingly, to reach an “equitable solution” for all parties concerned. What constitutes an equitable solution has been decided according to some exclusive geographical (i.e. configuration of coasts, proportionality, location of islands) and/or non-geographical (i.e. historical rights, security) circumstances in each case.32 In the North Continental Shelf Case of 1969, one of the first maritime delimitation cases of the International Court of Justice (ICJ), the Court decided that the contesting parties (Germany, Denmark, and Netherlands) were not bound by any principle but only the application of an equitable solution by taking into account the exclusive geographical circumstances since reshaping the geography would not be possible.
That said, over time, the ICJ and other international tribunals or arbitration mechanisms have felt the necessity of articulating some specific steps for maritime delimitation contrary to high open-endedness and relative to ICJ’s approach adopted in North Continental Shelf Case. Here we will not go back to square one in every single case and delve into the evolution of the case law in this regard. However, it would not be inaccurate to argue that the case law- namely, the judgements of the ICJ, the International Tribunal for the Law of the Sea (ITLOS) and several arbitral tribunals- has contemporarily adopted the “three-stage delimitation approach.
Accordingly, delimitation starts with a provisional equidistance/ median line drawn from the nearest base points of two adjacent or opposite coastal states. Then, it is adjusted for equity in light of the relevant circumstances and finally according to the proportionality requirements.