Maritime Claims and Boundary Delimitation: Tensions and Trends in the Eastern Mediterranean Sea 9780367280680, 9780429329630

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Routledge Research on the Law of the Sea

MARITIME CLAIMS AND

BOUNDARY DELIMITATION

TENSIONS AND TRENDS IN THE EASTERN

MEDITERRANEAN SEA

Nicholas A. Ioannides Foreword by Professor Sir Malcolm D Evans

Maritime Claims and Boundary Delimitation

This book delves into the major developments triggered by the hydrocarbon discoveries in the Eastern Mediterranean over the last twenty years, focusing on maritime boundary delimitation. Examining the impact that the hydrocarbon discoveries have had on the application of the law of the sea rules by the East Med states, the book looks at the new trends concerning the implementation of the law of the sea in the region. The book analyses regional state practice in terms of maritime delimitation, namely the conclusion of bilateral agreements based on the law of the sea rules, both conventional and customary, reflecting the East Med states’ willingness to cooperate in order to reap the benefits of the energy windfall. Alongside this analysis, an outline of the hydrocarbon discoveries and the pertinent maritime activities is given, as well as further coverage of the overlapping maritime claims and disputes between Greece, Cyprus and Turkey on one side, and Lebanon and Israel on the other. Moreover, the book examines the validity of maritime claims made by or through non-state entities in the region, namely the State of Palestine, the UK Sovereign Base Areas and the socalled ‘Turkish Republic of Northern Cyprus’ and their potential impact on the delimitation agreements already in place. The book argues that the East Med paradigm concerning the successful application of the pertinent norms in maritime delimitation proves that international law is resilient and capable of providing solutions in other turbulent regions around the globe. This book will be of interest and importance to academics and students of international law, professionals in the oil and shipping industries, legal professionals and government agencies. Nicholas A. Ioannides is Adjunct Lecturer of Public International Law at the University of Nicosia, Cyprus.

Routledge Research on the Law of the Sea

Available titles in this series include: The International Court of Justice in Maritime Disputes The Case of Chile and Peru Julio Faundez Freedoms of Navigation in the Asia-Pacific Region Strategic, Political and Legal Factors Sam Bateman Maritime Claims and Boundary Delimitation Tensions and Trends in the Eastern Mediterranean Sea Nicholas A. Ioannides

Maritime Claims and Boundary Delimitation Tensions and Trends in the Eastern Mediterranean Sea Nicholas A. Ioannides

First published 2021 by Routledge 2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN and by Routledge 52 Vanderbilt Avenue, New York, NY 10017 Routledge is an imprint of the Taylor & Francis Group, an informa business © 2021 Nicholas A. Ioannides The right of Nicholas A. Ioannides to be identified as author of this work has been asserted by him in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988. All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. Trademark notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. British Library Cataloguing-in-Publication Data A catalogue record for this book is available from the British Library Library of Congress Cataloging-in-Publication Data A catalog record has been requested for this book ISBN: 978-0-367-28068-0 (hbk) ISBN: 978-0-429-32963-0 (ebk) Typeset in Galliard by MPS Limited, Dehradun

In memory of my father, Commodore Andreas N. Ioannides, who lost his life while on duty, on 11 July 2011, in an attempt to save his country’s dignity (Mari Naval Base, Cyprus) ‹‹ἐπίστασθε δὲ ὅτι ἡ μὲν ἀρχὴ τῶν κρατούντων τῆς θαλάττης›› (you are aware that empire is for those who command the sea) Lysias Olympic Oration, 33.5

Contents

Table of treaties Table of cases Table of legislation Foreword Acknowledgments Abbreviations and acronyms

1

x xvi xxiv xxviii xxx xxxi

Introduction

1

The participation of the Eastern Mediterranean states in the law of the sea conferences

5

1 Introduction 5 2 International conferences on the law of the sea 6 2.1 From the 1930 Hague Conference to the UNCLOS III 6 2.2 The East Med states’ approach to the LOSC 9 2.3 Core law of the sea issues and the East Med states’ positions 12 2.3.1 Territorial sea 14 2.3.2 Continental shelf 21 2.3.3 Exclusive economic zone 24 2.3.4 Regime of islands 31 2.3.5 Enclosed and semi-enclosed seas 34 2.3.6 Maritime boundary delimitation 36 3 Conclusion 40

viii Contents 2

Contemporary developments with respect to the oil and gas discoveries and maritime delimitation in the Eastern Mediterranean sea

69

1 Introduction 69 2 The hydrocarbon bonanza and the role of the European Union 72 2.1 Overview of the offshore oil and gas activities in the East Med 72 2.2 The role of the European Union 76 3 Maritime boundary delimitation and other relevant agreements in the East Med 79 3.1 Introduction 79 3.2 Maritime delimitation law 79 3.3 The background of the maritime delimitation agreements in the East Med 84 3.4 The provisions of the EEZ delimitation agreements 93 3.5 Egypt‒Cyprus agreement on the development of cross-median line hydrocarbon resources (2013) 101 4 Turkey’s reaction to the maritime delimitations in the East Med 102 4.1 Introduction 102 4.2 Exchange of letters, the stance of the international community and trilateral meetings 103 5 Conclusion 111 3

Maritime claims and unilateral activities in undelimited maritime areas 1 Introduction 141 2 The East Med states’ claims and practice under international law 143 3 The legal framework governing oil and gas activities in undelimited maritime areas 148 3.1 Introduction 148 3.2 Theoretical background 149 3.3 Relevant case law 153 4 Hydrocarbon and other activities in undelimited maritime areas in the East Med 158 4.1 The maritime area between the Greek islands of the south-eastern Aegean Sea and Cyprus 158

141

Contents ix 4.2 The maritime dispute between Israel and Lebanon 160 5 Turkey’s claims through the ‘Turkish Republic of Northern Cyprus’ 164 5.1 Introduction: The ‘TRNC’ regime under international law 164 5.2 The continental shelf delimitation between Turkey and the ‘TRNC’ 166 5.3 The ‘Barbaros’ expeditions 169 5.4 Drilling activities performed by Turkey around Cyprus and the Turkey-Libya MoU 177 6 Conclusion 184 4

Non-state entities’ maritime claims

207

1 Introduction 207 2 The State of Palestine 208 2.1 Introduction 208 2.2 Maritime and energy rights of the Palestinian people 209 3 The United Kingdom’s Sovereign Base Areas in Cyprus 214 3.1 Introduction 214 3.2 The legal status of the SBAs under UK, Cyprus, EU and international law 215 3.2.1 UK legal order 215 3.2.2 Cyprus’s legal order 216 3.2.3 EU law 217 3.2.4 The international law framework 218 3.3 The maritime domain off the SBAs 221 3.4 The Annan Plan provisions on the SBAs 225 3.5 The Mauritius–UK dispute over the Chagos Archipelago 228 3.5.1 Introduction 228 3.5.2 The Annex VII LOSC arbitration 228 3.5.3 The ICJ Advisory Opinion 229 4 Conclusion 232 Conclusion Bibliography Index

250 257 322

Table of treaties

Agreement between the Government of the Republic of Cyprus and the Government of the State of Israel on the Delimitation of the Exclusive Economic Zone (signed 17 December 2010, entered into force 25 February 2011) 2740 UNTS 55 2–3, 28, 34, 39, 71, 89, 92, 93, 94–97, 105, 112, 142, 160–162, 172, 185, 233, 252 Preamble 94, 97 art 1 94–96 art 1(b) 95, 96 art 1(d) 95, 96 art 1(e) 96, 97 art 2 98–99, 101 art 3 99 art 4 99–100 art 4(b) 100 art 5 100 Agreement between the Government of the Republic of Cyprus and the Government of the Republic of Lebanon on the Delimitation of the Exclusive Economic Zone (17 January 2007) (not in force) 2–3, 34, 39, 71, 89–92, 93–94, 96–97, 105, 112, 142, 160–162, 172, 185, 252 art 1(e) 161 art 2 98 art 3 99, 161 art 4 99–100 art 5 100 Agreement between the Government of the Republic of Estonia, the Government of the Republic of Latvia and the Government of the Kingdom of Sweden on the Common Maritime Boundary Point in the Baltic Sea (30 April 1997) 2474 UNTS 43 96 Agreement between the Republic of Cyprus and the Arab Republic of Egypt on the Delimitation of the Exclusive Economic (signed 17 February 2003, entered into force 7 March 2004) 2488 UNTS 3 2–3, 28, 34, 39, 70–71, 84, 85, 86–87, 89, 93–96, 97, 98, 99–100, 101, 103–105, 107, 109, 112, 147, 172, 187, 233, 252 Preamble 94

Table of treaties

xi

art 1 94–96 art 1(e) 96 art 2 98, 101 art 3 99 art 4 99–100, 102 art 5 100 Agreement between the Government of the Republic of Cyprus and the Government of the State of Israel, on Exchange and Non-Disclosure of Confidential Information (signed 28 April 2014, entered into force 14 July 2014) Republic of Cyprus, Government Gazette No 4195 (4 July 2014) p. 10617 89n215 Agreement between the Government of the Republic of Tunisia and the Government of the Italian Republic concerning the Delimitation of the Continental Shelf between the two Countries (signed 20 August 1971 entered into force 6 December 1978) 1129 UNTS 254 art 4 98n266 Agreement between the Government of the Republic of Turkey and the Government of the Union of Soviet Socialist Republics concerning the Delimitation of the Continental Shelf between the Republic of Turkey and the Union of Soviet Socialist Republics in the Black Sea (signed 23 June 1978, entered into force 15 May 1981) 38 Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the Republic of Ireland concerning the Delimitation of Areas of the Continental Shelf between the Two Countries (signed 7 November 1988, entered into force 11 January 1990) 1564 UNTS 217 Preamble 79n122 Agreement between the Kingdom of Denmark and Government of Canada relating to the Delimitation of the Continental Shelf between Greenland and Canada (signed 17 December 1973, entered into force 13 March 1974) 950 UNTS 151 art 1 79n122 Agreement between the Republic of Turkey and the Republic of Bulgaria on determination of the boundary in the mouth area of the Mutludere/Rezovska river and delimitation of the maritime areas between the two states in the Black Sea (signed 4 December 1997, entered into force 4 November 1998) 2087 UNTS 5 38 Agreement for Implementation of the Provisions of the UN Convention on the Law of the Sea relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks (signed 4 December 1995, entered into force 11 December 2001) 2167 UNTS 88 8, 9 Agreement of maritime delimitation between the Kingdom of Saudi Arabia and the Arab Republic of Egypt (signed 8 April 2016, entered into force 2 July 2017) UNTS (I-54577) 85 Agreement on Mutual Defence and Assistance between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of Malta (signed 21 September 1964, entered into force upon signature) 8518 UNTS 55 219n101

xii

Table of treaties

Agreement on provisional arrangements regarding delimitation of the maritime boundaries between the Republic of Tunisia and the People’s Democratic Republic of Algeria (signed 11 February 2011, entered into force 22 November 2003) 2238 UNTS 197 art 5 98n266 Agreement relating to the implementation of Part XI of the United Nations Convention on the Law of the Sea (entry into force 16 November 1994) 1836 UNTS 3 8n33 Agreements between Chile, Ecuador and Peru, signed at the First Conference on the Exploitation and Conservation of the Maritime Resources of the South Pacific (18 August 1952) 24 Arrangement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the Republic of Cyprus relating to the regulation of development in the Sovereign Base Areas (15 January 2014) 218n90 Consolidated Treaty Establishing the European Community [2002] OJ C 325/ 150 217 Convention between Italy and Spain on the Delimitation of the Continental Shelf between the two States (signed 19 February 1974, entered into force 16 November 1978) 1120 UNTS 361 art 2 98n266 Convention on Biological Diversity (signed 5 June 1992, entered into force 29 December 1993) 1760 UNTS 79 Preamble para 4 209n10 art 8 228n170 Convention on the Continental Shelf (signed 29 April 1958, entered into force 10 June 1964) 499 UNTS 311 6, 7, 11, 18, 23, 28, 38, 39, 80, 98, 225 art 1 7n25 art 1(b) 31 art 2(3) 22 art 6 37 art 6(2) 32 Convention on Fishing and Conservation of the Living Resources of the High Seas (signed 29 April 1958, entered into force 20 March 1966) 559 UNTS 285 6–7, 11, 18 Convention on International Civil Aviation (signed 7 December 1944, entered into force 4 April 1947) 15 UNTS 295 arts 1–2 17n117 Convention on the International Regulations for Preventing of Collisions at Sea (signed 20 October 1972, entered into force 15 July 1977) 1050 UNTS 16 159n125 Convention on Maritime Delimitation between the Government of His Most Serene Highness the Prince of Monaco and the Government of the French Republic (signed 16 February 1984, entered into force 22 August 1985) 1411 UNTS 290 84

Table of treaties xiii Convention relating to Civil Liability in the Field of Maritime Carriage of Nuclear Material (NUCLEAR) (adopted 17 December 1971, entered into force 15 July 1975) 20n152 Convention on the Territorial Sea and the Contiguous Zone (signed 29 April 1958, entered into force 10 September 1964) 516 UNTS 205 6, 11, 18, 38 art 10(2) 31 art 12(1) 32 art 16(4) 10 Energy Charter Treaty (signed 17 December 1994, entered into force 16 April 1998) 2080 UNTS 95 art 18(3) 209n10 Exchange of Notes constituting an Agreement between the British and French Governments respecting the Boundary Line between Syria and Palestine from the Mediterranean to El Hammé (7 March 1923) 22 LNTS 363 160n136 Framework Agreement Between the Government of the Republic of Cyprus and the Government of the Arab Republic of Egypt Concerning the Development of Cross-Median Line Hydrocarbons Resources, Republic of Cyprus Government Gazette No 4196 (signed 12 December 2013, entered into force 25 July 2014) p. 10703 Preamble 101 art 2 101 art 3 101 art 4 101 art 5 102 art 6 102 art 7 102 art 8 102 Geneva Convention relative to the Protection of Civilian Persons in Time of War (Fourth Geneva Convention) (signed 12 August 1949, entered into force 21 October 1950) 75 UNTS 287 art 33 211n30 Greece–Turkey: Agreement on Procedures for Negotiation of Aegean Continental Shelf Issue (11 November 1976). Reproduced in 16 ILM 13 (1977) 75n70 Hague Convention (IV) Respecting the Laws and Customs of War on Land and Its Annex: Regulations Concerning the Law and Customs of War on Land (signed 18 October 1907, entered into force 26 January 1910) art 47 211n30 art 55 211n30 International Convention for the Unification of Certain Rules relating to the Immunity of State-owned Vessels (signed 10 April 1926, entered into force 8 January 1936) 176 LNTS 199 art 3 159n119 International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171

xiv

Table of treaties

art 1(2) and (3) 209 art 47 209n8 International Covenant on Economic, Social and Cultural Rights (adopted 16 December 1966, entered into force 3 January 1976) 993 UNTS 3 art 1(2) and (3) 209 art 25 209n8 Israel–Palestine Liberation Organization Agreement on the Gaza Strip and the Jericho Area (4 May 1994) 33 ILM 622 213, 232 art V(1) 208 Annex I, art XI 208 Israeli–Palestinian Interim Agreement on the West Bank and the Gaza Strip (28 September 1995) 36 ILM 551 art XVII(2) 208n4 Lausanne Peace Treaty (signed 24 July 1923, entered into force 6 August 1924) 28 LNTS 11 18 Optional Protocol concerning the Compulsory Settlement of Disputes (signed 29 April 1958, entered into force 30 September 1962) 450 UNTS 169 6, 7 Protocol 3 on the Sovereign Base Areas of the United Kingdom of Great Britain and Northern Ireland in Cyprus [2003] OJ L 236/940 217 art 1 217n69 art 2 217n69 art 3 217n69 art 4 217n69 art 7(1) 217n70 Protocol for the Protection of the Mediterranean Sea against Pollution Resulting from Exploration and Exploitation of the Continental Shelf and the Seabed and its Subsoil (signed 14 October 1994, entered into force 24 March 2011) UNEP (OCA/MED IG.4/4) 76n86 Rio Declaration on Environment and Development (1992) UN Doc A/ CONF.151/26, 31 ILM 874 principle 2 76n86, 209n10 Stockholm Declaration on the Human Environment, UN Doc A/CONF.48/ 14/Rev. 1 (1972) 11 ILM 1417 principle 21 76n86, 209n10 Timor Sea Treaty between the Government of East Timor and the Government of Australia (signed 20 May 2002, entered into force 2 April 2003) 2258 UNTS 3 211 Treaty of Alliance between the Kingdom of Greece, the Republic of Turkey, and the Republic of Cyprus (16 August 1960) 397 UNTS 289 164 Treaty between Australia and the Democratic Republic of Timor-Leste on Certain Maritime Arrangements in the Timor Sea (signed 12 January 2006, entered into force 23 February 2007) 2438 UNTS 359 211 Treaty between the Democratic Republic of Timor-Leste and Australia establishing their Maritime Boundaries in the Timor Sea (signed 6 March 2018), https://pcacases.com/web/sendAttach/2356 211

Table of treaties

xv

Treaty between Great Britain and Northern Ireland and Venezuela relating to the Submarine Areas of the Gulf of Paria (signed 26 February 1942, entered into force 22 September 1942) 205 LNTS 121 21n170 Treaty between the United States and Other Powers Providing for the Renunciation of War as an Instrument of National Policy (signed 27 August 1928, entered into force 24 July 1929) 94 LNTS 57 166n184 Treaty Concerning the Establishment of the Republic of Cyprus (16 August 1960) 382 UNTS 10 164, 217, 218, 219, 220, 221, 222, 225, 233 arts 1–2 214 art 10(b) 227n161 Annex A, s 2 223n134 Annex A, s 2(4) 228n162 Annex A, s 3 221, 223 Treaty on the Functioning of the European Union [2008] OJ C 115/47 art 3(d) 30n254 art 194 76 art 216(2) 76n75, 76n76 art 355(5)(b) 217 Treaty of Guarantee (16 August 1960) 382 UNTS 3 164 art 3 218n84 art 4 165 art 4(2) 164 Treaty of Peace between the State of Israel and the Arab Republic of Egypt (signed 26 March 1979, entered into force 25 April 1979) 1138 UNTS 72 10, 11 Treaty of Peace between the State of Israel and the Hashemite Kingdom of Jordan (signed 26 October 1994, entered into force 10 November 1994) 2042 UNTS 351 art 14 10n59 Vienna Convention on the Law of Treaties (signed 23 May 1969, entered into force 27 January 1980) 1155 UNTS 331 165 art 3(b) 165n177 art 4 165n177 art 18 89n216 art 25 162n144 art 29 220n110 art 31(2)(b) 214n45 art 34 87n195, 184 art 38 94n238, 165n177 art 43 165n177 art 46 183 art 53 158n114 art 62(2)(a) 87n193, 184n238 art 70(1) 87n193

Table of cases

1. Permanent Court of International Justice Case of the Free Zones of the Upper Savoy and the District of Gex [1929] PCIJ Rep Series A No 22 16n113 Case of the S.S. “Wimbledon” (United Kingdom et al v Germany) [1923] PCIJ Rep Series A No 1 218n83 Certain German Interests in Upper Silesia (Germany v Poland) (Merits) [1926] PCIJ Rep Series A No 7 41n362 Customs Regime between Germany and Austria (Protocol of March 19th, 1931) (Advisory Opinion) [1931] PCIJ Rep Series A/B No 41 214n45 Exchange of Greek and Turkish Populations (Advisory Opinion) [1924] PCIJ Rep Series B No 10 42n365 Legal Status of the Eastern Greenland (Judgment) [1933] PCIJ Rep Series A/BNo 53 214n45 Legal Status of Eastern Greenland (Judgment) [1933] PCIJ Rep Series A/B No 53 (Dissenting Opinion of Judge Anzilotti) 165n179 Railway Traffic between Lithuania and Poland (Advisory Opinion) [1931] PCIJ Rep Series A/B No 42 150n58 The Electricity Company of Sofia and Bulgaria (Interim Measures of Protection) [1939] PCIJ Rep Series A/B No 79 159n124 The Palestine Mavrommatis Concessions [1924] PCIJ Rep Series A No 2 150n61

2. International Court of Justice Accordance with International Law of the Unilateral Declaration of Independence in respect of Kosovo (Advisory Opinion) [2010] ICJ Rep 403 163n157 Aegean Sea Continental Shelf (Greece v Turkey) (Interim Protection) Order of 11 September 1976, ICJ Rep 3 153–154, 155, 157 Aegean Sea Continental Shelf Case (Greece v Turkey) (Jurisdiction) [1978] ICJ Rep 3 9n46, 16n112, 79–80, 87n193, 152n73 Aerial Incident of July 27th, 1955 (Israel v Bulgaria) (Preliminary Objections) [1959] ICJ Rep 127 100n270 Anglo-Iranian Oil Co Case (Jurisdiction) [1952] ICJ Rep 93 41n362

Table of cases

xvii

Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v Russian Federation) (Preliminary Objections) [2011] ICJ Rep 70 150n58 Arbitral Award of 31 July 1989 (Guinea-Bissau v Senegal) (Judgment) [1991] ICJ Rep 53 87n193 Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda) (Judgment) [2005] ICJ Rep 168 88n208, 153n81 Asylum Case (Colombia v Peru) (Judgment) [1950] ICJ Rep 266 15n98 Barcelona Traction, Light and Power Company, Limited (Belgium v Spain) (Judgment) [1970] ICJ Rep 3 12n83, 165n171 Certain Activities carried out by Nicaragua in the Border Area (Costa Rica v Nicaragua) and Construction of a Road in Costa Rica Along the San Juan River (Nicaragua v Costa Rica) [2015] ICJ Rep 665 76n86 Certain Phosphate Lands in Nauru (Nauru v Australia) (Preliminary Objections) [1992] ICJ Rep 240 88n208, 211 Continental Shelf (Libyan Arab Jamahiriya/Malta) (Judgment) [1985] ICJ Rep 13 23n194, 25n213, 25n215, 25n220, 31n267, 33n294, 39n353, 79n121, 79n123, 80, 80n136, 82n156, 82n157, 82n162, 83n175, 87n204, 87n205, 97n253, 180 Continental Shelf (Tunisia/Libyan Arab Jamahiriyia) (Judgment) [1982] ICJ Rep 18 21n170, 23n194, 25n220, 34n296, 35n308, 37n328, 79n123, 80, 82, 83, 87n204, 93n228, 149n48, 153n85, 223n139 Corfu Channel Case (United Kingdom of Great Britain and Northern Ireland v Albania) (Judgment) [1949] ICJ Rep 4 14n84, 20n154, 76n86, 88, 165n179 Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada/ United States of America) (Judgment) [1984] ICJ Rep 246 23n194, 25n217, 25n220, 80n133, 80n136, 81n143, 83, 83n169, 93n228 East Timor (Portugal v Australia) (Judgment) [1995] ICJ Rep 90 88n208, 211 Fisheries Case (United Kingdom v Norway) [1951] ICJ Rep 116 14n84, 15n98, 35n308, 79n123, 153n85, 163 Fisheries Jurisdiction Case (Federal Republic of Germany v Iceland) (Judgment) [1974] ICJ Rep 175 17n122, 150n61 Fisheries Jurisdiction Case (United Kingdom of Great Britain and Northern Ireland v Iceland) (Judgment) [1974] ICJ Rep 3 17n122, 87n193, 150n61 Frontier Dispute (Burkina Faso/Republic of Mali) (Judgment) [1986] ICJ Rep 554 87n195, 184n239, 214n45, 223n139 Gabčíkovo-Nagymaros Project (Hungary/Slovakia) (Judgment) [1997] ICJ Rep 7 76n86, 87n193, 165n179 International Status of South-West Africa (Advisory Opinion) [1950] ICJ Rep 128 166n183 Jurisdictional Immunities of the State (Germany v Italy: Greece intervening) (Judgment) [2012] ICJ Rep 99 166n183 Kasikili/Sedudu Island (Botswana/Namibia) (Judgment) [1999] ICJ Rep 1045 223n139

xviii

Table of cases

Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v Nigeria: Equatorial Guinea intervening) (Judgment) [2002] ICJ Rep 303 35n307, 39n352, 81n138, 81n149, 82n152, 83, 87n200, 87n204, 88n211, 97n251, 97n253, 150n58, 221n116, 229n172 Land, Island and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua intervening) (Judgment) [1992] ICJ Rep 351 229n172 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion) [2004] ICJ Rep 136 10n57 Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965 (Advisory Opinion) [2019] 166n185, 208, 219, 229–232 Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970) (Advisory Opinion) [1971] ICJ Rep 16 165n178, 166n183, 166n186 Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) [1996] ICJ Rep 226 15n99, 76n86 Maritime Delimitation in the Area between Greenland and Jan Mayen (Denmark v Norway) [1993] ICJ Rep 38 25n220, 33n294, 39n352, 39n353, 79n123, 80, 83n171, 83n175, 93n228, 97n252, 97n253, 149n54, 252 Maritime Delimitation in the Black Sea (Romania v Ukraine) (Judgment) [2009] ICJ Rep 61 25n217, 34n296, 38, 42n365, 79n123, 81, 87n204, 97n253, 149n48, 149n51, 160n134, 252 Maritime Delimitation in the Caribbean Sea and the Pacific Ocean (Costa Rica v Nicaragua) and Land Boundary in the Northern Part of Isla Portillos (Costa Rica v Nicaragua) (Judgment) [2018] ICJ Rep 5 81n142, 87n204, 149n51 Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v Bahrain) (Judgment) [2001] ICJ Rep 97 14n88, 25n213, 32n269, 33n294, 37n327, 39n352, 79n123, 79n124, 81n149, 93n228, 97n252, 97n253, 229n172 Maritime Dispute (Peru v Chile) (Judgment) [2014] ICJ Rep 3 24n203, 24n204, 81n142, 83, 97n250, 97n252, 214n45, 223n137, 224n140 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America) (Judgment) [1986] ICJ Rep 14 14n84, 14n88, 158n114, 174n214 North Sea Continental Shelf Cases (Judgment) [1969] ICJ Rep 3 15n93, 21n170, 22, 23n192, 23n193, 31n267, 37, 38, 39, 79n121, 79n123, 80, 81n148, 82, 82n158, 82n162, 87n195, 93n230, 94n238, 95n242, 97n251, 97n253, 101n273, 102n282, 103n286, 143n3, 149n53, 150n61, 152n73, 212n37, 212n38 Nuclear Tests (Australia v France) (Judgment) [1974] ICJ Rep 253 214n45 Nuclear Tests (New Zealand v France) (Judgment) [1974] ICJ Rep 457 214n45 Oil Platforms (Iran v United States of America) (Judgment) [2003] ICJ Rep 161 159n127 Pulp Mills on the River Uruguay (Argentina v Uruguay) (Judgment) [2010] ICJ Rep 14 76n86, 150n58

Table of cases xix Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriyia v United Kingdom) (Provisional Measures) [1992] ICJ Rep 3 165n178 Questions Relating to the Obligation to Prosecute or Extradite (Belgium v Senegal) (Judgment) [2012] ICJ Rep 422 165n171 Relocation of the United States Embassy to Jerusalem (Palestine v United States of America), www.icj-cij.org/en/case/176 213n39 Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia) (Judgment) [2002] ICJ Rep 664 83 Territorial Dispute (Libyan Arab Jamahiriya/Chad) (Judgment) [1994] ICJ Rep 37 87n193, 184n238 Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v Honduras) (Judgment) [2007] ICJ Rep 659 32n269, 37n326, 37n327, 79n123, 80n127, 81n142, 83, 87n204, 223n133, 223n139 Territorial and Maritime Dispute (Nicaragua v Colombia) Application by Costa Rica for Permission to Intervene (Judgment) [2011] ICJ Rep 348 87n195 Territorial and Maritime Dispute (Nicaragua v Colombia) (Judgment) [2012] ICJ Rep 624 14n84, 14n90, 15n93, 22n174, 22n185, 32n269, 33n292, 33n294, 33n295, 79n123, 80n127, 80n136, 81n142, 82–83, 87n199, 87n204, 97n252, 149n51, 152n73, 160n133, 161n139, 229n172 Territorial and Maritime Dispute (Nicaragua v Colombia) (Preliminary Objections) [2007] ICJ Rep 832 87n193 The Temple of Preah Vihear (Cambodia v Thailand) (Judgment) [1962] ICJ Rep 6 79n125, 223n139 Western Sahara (Advisory Opinion) [1975] ICJ Rep 12 210, 229n182 Whaling in the Antarctic (Australia v Japan: New Zealand intervening) (Judgment) [2014] ICJ Rep 226 153n81

3. International Tribunal for the Law of the Sea “ARA Libertad” (Argentina v Ghana), Provisional Measures, Order of 15 December 2012, ITLOS Reports 2012, p. 332 159n119 “Arctic Sunrise” (Kingdom of the Netherlands v Russian Federation), Provisional Measures, Order of 22 November 2013, ITLOS Reports 2013, p. 230 155n96 Delimitation of the Maritime Boundary in the Atlantic Ocean (Ghana/Côte d’Ivoire), Judgment, ITLOS Reports 2017, p. 4 81n142, 82n152, 83, 87n204, 149n53, 150n58, 150n60, 152, 155, 156n100, 157 Delimitation of the Maritime Boundary in the Atlantic Ocean (Ghana/Côte d’Ivoire), Provisional Measures, Order of 25 April 2015, ITLOS Reports 2015, p. 146 155 Delimitation of the Maritime Boundary in the Bay of Bengal (Bangladesh/ Myanmar), Judgment, ITLOS Reports 2012, p. 4 22n174, 23n194, 32n269, 34n296, 34n300, 39n352, 79n123, 80n127, 81n142, 87n195, 97n252, 97n253, 97n256, 152n73, 163n160, 212n37, 212n38, 223n133

xx

Table of cases

Detention of three Ukrainian naval vessels (Ukraine v Russian Federation), Provisional Measures, Order of 25 May 2019, ITLOS Reports 2018–2019, to be published 20n156, 160n134 “Juno Trader” (Saint Vincent and the Grenadines v Guinea-Bissau), Prompt Release, Judgment, ITLOS Reports 2004, p. 17 30n256 Location of Boundary Markers in Taba between Egypt and Israel (Egypt/Israel) [1988] 20 RIAA 1 100 M/V “Louisa” (Saint Vincent and the Grenadines v Kingdom of Spain), Judgment, ITLOS Reports 2013, p. 4 35n313 M/V “Louisa” (Saint Vincent and the Grenadines v Kingdom of Spain), Provisional Measures, Order of 23 December 2010, ITLOS Reports 2008–2010, p. 58 155n96 M/V “Norstar” (Panama v Italy), Judgment, ITLOS Reports 2018–2019, to be published 35n313 M/V “SAIGA” (No 2) (Saint Vincent and the Grenadines v Guinea), Judgment, ITLOS Reports 1999, p. 10 159n126 M/V “SAIGA” (No 2) (Saint Vincent and the Grenadines v Guinea), Provisional Measures, Order of 11 March 1998, ITLOS Reports 1998, p. 24 155n96 M/V “Virginia” (Panama/Guinea-Bissau), Judgment, ITLOS Reports 2014, p. 4 30n256, 35n313 MOX Plant (Ireland v United Kingdom), Provisional Measures, Order of 3 December 2001, ITLOS Reports 2001, p. 95 76n86 Request for Advisory Opinion submitted by the Sub-Regional Fisheries Commission, Advisory Opinion, 2 April 2015, ITLOS Reports 2015, p. 4 158n115 Responsibilities and obligations of States with respect to activities in the Area, Advisory Opinion, 1 February 2011, ITLOS Reports 2011, p. 10 76n86

4. Court of Justice of the European Union Case 167/73 Commission v France [1974] ECR 359 77n89 Case 181/73 Haegeman v Belgium [1974] ECR 449 76n75 Case 36/74 Walrave v Union Cycliste Internationale [1974] ECR 1405 77n89 Case 237/83 Prodest/Caisse primaire d’assurance maladie de Paris [1984] ECR 3153 77n89 Case 9/88 Mario Lopes da Veiga v Staatssecretaris v Justitie [1989] ECR 2989 77n89 Case C-182/89 Commission v France [1990] ECR I-4337 76n76 Case C-70/90 Spain v Council [1992] ECR I-05159 30n254 Case C-71/90 Spain v Council [1992] ECR I-05175 30n254 Case C-73/90 Spain v Council [1992] ECR I-05191 30n254 Case C-286/90 Anklagemyndigheden v Poulsen and Diva Navigation [1992] ECR I-6019 76n75 Case C-214/94 Boukhalfa v Germany [1996] ECR I-2253 77n89 Case C-459/03 Commission of the European Communities v Ireland [2006] ECR I-4640, Opinion of Advocate General Poiares Maduro 76n76

Table of cases xxi Case C-459/03 Commission of the European Communities v Ireland [2006] ECR I-4657 76n75 Case C-6/04 Commission v UK [2005] ECR I-9017 76n82 Case C-308/06 Intertanko and Others v The Secretary of State for the Department for Transport [2008] ECR I-4057 76n75 Case C-386/08 Firma Brita GmbH v Hauptzollamt Hamburg-Hafen, Judgment of the Court (Fourth Chamber) of 25 February 2010, ECLI:EU:C:2010:91 209n11 Case T-512/12 Front Polisario v Council (GC, 10 December 2015) 210n18 Case C-104/16 P, Council of the European Union v Front populaire pour la libération de la saguia-el-hamra et du rio de oro (“Front Polisario”) EU:C:2016:973 (Appeal) 210n14, 210n19 Case C-15/17 Bosphorus Queen Shipping Ltd Corp. v Rajavartiolaitos [2018] 76n75 Joined Cases C-3/76, 4/76 and 6/76 Cornelius Kramer and others [1976] ECR 1279 30n254 Joined Cases C-63/90 and 67/90, Spain and Portugal v Council [1992] ECR I-05073 30n254

5. European Court of Human Rights Chagos Islanders v United Kingdom, App no 35622/04 (ECtHR, 11 December 2012) 228n166 Cyprus v Turkey ECHR 2001-IV 165n180 Kyriacou Tsiakkourmas and Others App No 13320/02 (ECtHR, 2 June 2015) 165n180 Loizidou v Turkey, Preliminary Objections, App No 15318/89 [1995] ECHR 10 165n180 Loizidou v Turkey ECHR 1996-VI 165n180 Xenides-Arestis v Turkey App No 46347/99 (ECtHR, 22 December 2005) 165n180

6. Permanent Court of Arbitration Aaland Islands Case [1920] LNOJ Sp. Supplement No 3 221n114 Anglo-French Continental Shelf Case (United Kingdom of Great Britain and Northern Ireland/France) [1977] 18 RIAA 3 32n269, 34n296, 38n338, 39n352, 80, 81n148, 97n253 Arctic Sunrise Award (The Netherlands v Russia) [2015] www.pcacases.com/ web/sendAttach/1438 27n236, 159n118 Award of the Arbitral Tribunal in the first stage of the proceedings between Eritrea and Yemen (Territorial Sovereignty and Scope of the Dispute) [1998] 22 RIAA 209 223n139 Award of the Arbitral Tribunal in the second stage of the proceedings between Eritrea and Yemen (Maritime Delimitation) [1999] 22 RIAA 335 9n45

xxii Table of cases Bangladesh v India Award [2014] 15n93, 79, 79n123, 80n130, 81n142, 83n169, 87n193, 87n199, 212n37, 212n38, 223n133, 223n134, 223n139 Barbados v Trinidad and Tobago Award [2006] 27 RIAA 147 16n113, 23n194, 25n215, 80n134, 80n136, 83, 83n169, 83n170, 93n228, 97n253, 150n58 Case concerning the Delimitation of Maritime Areas between Canada and the French Republic [1992] 31 ILM 1149 7n25, 15n93, 23n194, 33n292, 83, 83n169, 93n228, 158n115 Case concerning the Delimitation of the Maritime Boundary between Guinea and Guinea-Bissau [1985] 25 ILM 251 14n90, 25n217, 87n204, 93n228, 97n252, 212n37 The Chagos Marine Protected Area Award (Mauritius v United Kingdom) [2015] 35, 228–229 Delimitation of Maritime Boundary between Guinea-Bissau and Senegal [1989] 83 ILR 1 209n10, 225n144 Dispute between Argentina and Chile concerning the Beagle Channel [1977] 21 RIAA 53 80 Dispute concerning Access to Information under Article 9 of the OSPAR Convention (Ireland v United Kingdom of Great Britain and Northern Ireland) [2003] 23 RIAA 59 214n45 Dubai/Sharjah Border Arbitration [1981] 91 ILR 543 32n269, 79n121, 80n136 Grisbadarna Case (Norway v Sweden) [1909] 11 RIAA 147 14n87, 79n123, 222n124 Guyana v Suriname Award [2007] 30 RIAA 1 82n152, 83, 97n253, 101n273, 146n27, 150n57, 150n58, 150n62, 151, 154–155, 154n89, 157, 158 Island of Palmas Case (Netherlands/USA) [1928] 2 RIAA 829 87n195, 87n199, 221, 223n139 Kuwait v AMINOIL Award [1982] 21 ILM 976 209n10 Lac Lanoux Arbitration (Spain v France) [1957] 12 RIAA 281 150n61 LIAMCO v Libya Award [1981] 20 ILM 1 209n10 The North Atlantic Coast Fisheries Arbitration (Great Britain/United States) [1910] 11 RIAA 167 218n83 The Philippines v China Award (Award on Jurisdiction and Admissibility) [2015] 163n160 The Philippines v China Award [2016] 12n77, 16n113, 24n198, 25n210, 27n237, 33n281, 33n291, 88n208, 143n3, 143n4, 146n29, 146n31, 148n46, 158n115, 158n117, 159n125, 163n157, 169n197, 170n202, 218n86 ‘The Red Crusader’ (Denmark/United Kingdom) [1962] 29 RIAA 521 159n126 SS ‘I’m Alone’ (Canada/United States) [1935] 3 RIAA 1609 159n126 Texaco Overseas Petroleum Co v Libya Award [1977] 17 ILM 3 209n10 Trail Smelter Case (United States/Canada) [1941] 3 RIAA 1905 76n86, 98n265

Table of cases

xxiii

7. Domestic Courts Australia Muslimin v The Queen (2010) 240 CLR 470 159n118 Canada Newfoundland and Labrador/Nova Scotia (Phase I) [2001] 214n45, 223 Newfoundland and Labrador/Nova Scotia (Phase II) [2002] 79n123, 80n136, 82n162, 83, 98n262, 151n67, 162n154, 223 Cyprus Graham Thomas Preece v ‘ESTIA’ Insurance and Reinsurance Company Ltd [1991] 1 CLR 568 [in Greek] 216 Mizrahi v Republic of Cyprus [1968] 3 CLR 406 216 Psaras and Licha v Republic of Cyprus [1987] 2 CLR 132 216 Quo Warranto Chimonas [2016] Civil Appeal 190/2015 [in Greek] 216 Socratous v Episkopi Improvement Board [1992] 4 CLR 1694 [in Greek] 216 Ghana Republic v High Court (Commercial Division) Accra, Ex parte Attorney General, NML Capital and the Republic of Argentina, Civil Motion No J5/10/2013 (Supreme Court Ghana) [2013] 159n119 United Kingdom The Alexander [1906] 1 HKLR 122 159n119 Antoniades and Others v The Administrator of the Sovereign Base Areas of Akrotiri and Dhekelia (16 June 2015) Senior Judges’ Court of the SBAs 219n93, 220n104 Area Officer of Akrotiri v Philios Demetriades (8 March 2012) Senior Judges’ Court of the SBAs 218n87 Constantinou v Administrator of Sovereign Base Areas of Akrotiri and Dhekelia (26 February 2014) Senior Judges’ Court of the SBAs 218n92 R (on the application of Tag Eldin Ramadan Bashir and others) (Respondents) v Secretary of State for the Home Department (Appellant) [2018] UKSC 45 231–232 United States Knox v Palestine Liberation Organization 306 F Supp 2d 424 (SDNY 2004) 213n41 The Schooner Exchange v McFaddon [1812] 11 US (7 Cranch) 116 159n119

Table of legislation

Argentina Decree No 1, 385 concerning Mineral Reserves (24 January 1944) Boletin Oficial de la Republica Argentina, Vol 52(14) (17 March 1944) in United Nations, Laws and Regulations on the Regime of the High Seas, UN Doc St/ LEG/SER.B/1 (1951) 21n170

Cyprus Antiquities Law, Cap 31 arts 18A–18D 31 Regulations 578/2014 and 579/2014 on the conditions for the granting of a permission to lay submarine cables and pipelines respectively issued by the government of the Republic of Cyprus 30 The Exclusive Economic Zone and the Continental Shelf Laws 2004 and 2014, 64(I)/2004 29 art 3(2) 29n252 arts 7–8 29n253 art 7(2) 30 art 8(2) 30 art 8A 30n257 art 8B(2) 30–31 art 8B(3) 31 art 11 31n261 The Regulation of the Innocent Passage of Ships in the Territorial Waters Law 28(I)/2011 arts 6 and 7(2) 21n165 The Territorial Sea Laws 1964 and 2014 (45/1964) art 3 21n164

Table of legislation

xxv

Egypt Decree concerning the Territorial Waters of the Arab Republic of Egypt of 15 January 1951, as amended by Presidential Decree No 180 of 17 February 1958 art 3 20 Presidential Decision No 1051/1958 concerning the Continental Shelf 28

Greece Compulsory Law No 230/1936 art 1 17n115 Decree of 6/18 September 1931 to define the extent of the territorial waters for the purposes of aviation and the control thereof 17n116 Law No 2289/1995 on prospecting, exploration and exploitation of hydrocarbons and other provisions, as amended by Law No 4001/2011 art 2 27n234 art 12(12) 27 art 12(13) 27 Law No 4001/2011 for the operation of Electricity and Gas Energy Markets, for Exploration, Production and Transmission Networks of Hydrocarbons and other provisions 27

Israel Submarine Areas Law (10 February 1953) 28n242 Territorial Waters Law 5717/1956 as amended by the Territorial Waters (Amendment) Law 5750/1990 21n162

Lebanon Decree No 6433/2011 on the delineation of the boundaries of the exclusive economic zone of Lebanon (01 October 2011) 29 Law 163/2011 on the Delineation and Declaration of the Maritime Zones of the Lebanese Republic (17 August 2011) art 4 21n160 Legislative Decree No 138 concerning territorial waters and sea areas (07 September 1983) 20n159

New Zealand New Zealand Nuclear Free Zone, Disarmament and Arms Control Act (1987) 20n152

xxvi

Table of legislation

Syria Law 37/1981 art 1 19n139 Law No 28/2003, Definition Act of Internal Waters and Territorial Sea Limits of the Syrian Arab Republic 19n140 art 4 19n141 arts 6–18 19 art 7(1) 19n149 art 8 19 art 9 19n144 art 18 19 art 44 19n140 Legislative Decree 304/1963 concerning the Territorial Sea of the Syrian Arab Republic art 4 19n138 art 12 19n144

Turkey Act No 2674/1982 on the Territorial Sea art 1 18n133 art 2 19n137 art 6 18n132 Decree by the Council of Ministers No 8/4742 18 Decree by the Council of Ministers No 86/11264 art 1 27n232 arts 1–3 26–27 Territorial Waters Law 476/1964 18 arts 1–2 18n127 arts 3–5 18n129

United Kingdom British Nationality Act 1948 s 1 215 British Nationality Act 1981 sch 6 215 British Overseas Territories Act 2002 s 1 215 Courts Ordinance 1960 as amended by Courts (Constitution and Jurisdiction) Ordinance 2007 (Laws of the SBAs, Ordinance 5/2007) 218n78 Interpretation Act 1978 sch 1 215

Table of legislation

xxvii

Police Ordinance 1967 as amended by Police Ordinance 2007 (Laws of the SBAs, Ordinance 6/2007) 218n79 Sovereign Base Areas, Euro Ordinance 2007 217n73 Sovereign Base Areas, Human Rights Ordinance 2004 217n72 The Cyprus Act 1960 s 2(1)(a)(b) 214n46 The Sovereign Base Areas of Akrotiri and Dhekelia Order in Council 1960, SI 1960/1369 as amended by SI 1966/1415 ss 1 and 4 216n59

Foreword

The long maritime history of the Eastern Mediterranean has been the cradle of the law of the sea, yet in recent times practice within that region has been largely ignored. This is surprising, since it offers in microcosm a fascinating study of how law, politics, economics and geography combine to affect the ordering of maritime space. Perhaps one of the reasons why this area has received surprisingly little scholarly attention in recent times is its very complexity. One of the earliest controversies concerning the continental shelf to be considered by the International Court of Justice concerned the Aegean Sea, and this remains the most well-known question waiting to be resolved. But as Dr Ioannides makes clear, this is but a single element of the factual matrix which needs to be understood in order to get to grips with the prospects for future governance and the orderly exploration and exploitation of its maritime space. Some of the states within the region have long-held maritime interests which are reflected in the positions they have adopted on key questions concerning the law of the sea. The interests of others are more newly established and reflect their contemporary interests. The tense political relationships between many of states in the region adds additional dimensions, as does the situation of the ‘Turkish Republic of Northern Cyprus’, of the Palestinian Authority in Gaza, ongoing sovereignty disputes of some maritime features and the complications flowing from the UK Sovereign Areas in Cyprus. Indeed, the Eastern Mediterranean seas wash against some of the most fraught geopolitical issues of our times. Yet they also wash over an economic bonanza which all states in the region are anxious to exploit. This book explores how these questions combine in contemporary practice and considers the prospects for the future. This is achieved through a meticulous presentation of the maritime history of the region, the positions of the states to the law of the sea and how these are reflected in their current law and practice. The various disputes and sources of tensions between all within the region are carefully described and analysed against the background of the current understandings of the relevant provisions of international law generally and in particular the law applicable to the delimitation of the continental shelf and EEZ. The offshore claims of each party are presented, agreements between various states examined and the practice

Foreword

xxix

considered in the light of the emerging law concerning resource exploration and exploitation in undelimitated maritime zones. This results in a study which satisfies at many levels – as an exploration of past approaches by key states to the law of the sea, as a detailed study of domestic and regional practice related to maritime governance and resource exploration, as an examination of the interplay between politics and law and, above all, how the quest for economic exploitation of valuable offshore resources can lead to unexpectedly positive outcomes when there is sufficient at stake to encourage those involved to question traditional positions. This is an important book which not only enriches our understanding of the application of international law within the Eastern Mediterranean, but also casts light on how interests in the maritime domain can shape and structure inter-state relationships more generally. It not only deserves to be widely read – it needs to be. Professor Sir Malcolm D Evans KCMG

Acknowledgments

I would like to express my deep gratitude to my PhD supervisor and mentor, Professor Sir Malcolm Evans, for the unwavering support and guidance since I was a postgraduate student. He believed in me throughout this fascinating journey, while our insightful conversations made me wiser and gave considerable impetus to my efforts. Furthermore, I would like to thank my family for being always by my side. My mother, Maria, who stands tall, like a Spartan woman, despite the tragic loss of her husband. Thank you, also, to my siblings, Kyriaki and Christoforos, who have not ceased to pursue their dreams making me proud, as well as to my grandparents, Christoforos and Kyriaki, and Nikos and Loukia, for always being interested in and supporting my work. My warmest thanks go to Angelos Syrigos, Maria Gavouneli, Theodoros Tsakiris and Lisa Mardikian who were kind enough to read parts of my work and share with me their invaluable and helpful comments. I am indebted to Ms Maria Pilikou for her precious assistance in gathering significant primary sources and her insightful comments on earlier versions of this book. Special thanks to Mrs Fanoula Argyrou who guided me through the wealth of documents held at the British National Archives and provided me with important material which helped me to analyse the legal regime of the UK Sovereign Base Areas in Cyprus. I would also like to thank Ambassador Andrew Jacovides, Ambassador Tasos Tzionis, Andreas Eliades, Achilles Emilianides, Sarah Weiss Maudi, Klearchos Kyriakides, Nicolas Macris, Sozos-Christos Theodoulou, Patricia Jimenez-Kwast, Michalis Zenonos, Maria Orchard, Vasco Becker-Weinberg, Efthimios Papastavridis, Anastasia Strati, Andreas Olymbios, Georgios Kokosis, Lieutenant General (Rt) Phoebus Klokkaris and Colonel Konstantinos Stylianou for providing me with important documents and sharing their views with me on various topics relevant to the subject matter of the book. Finally, thank you to Nicola Sharpe, Jashnie Jabson, Katherine Laidler and the entire Routledge team for their great work and their contribution to the publication of this book.

Abbreviations and acronyms

BIOT BOT CFP CJEU CLCS COLREGS DOALOS East Med EC ECT EEC EEZ EMGF EU FCO ICJ ILC ISA ITLOS LNG LoN LOSC LSB MoD MPA NAVTEX nm ΝΟΤΑΜ OPEC PCA PCI

British Indian Ocean Territory British Overseas Territories Common Fisheries Policy Court of Justice of the European Union Commission on the Limits of the Continental Shelf Convention on the International Regulations for Preventing of Collisions at Sea (1972) Division for Ocean Affairs and the Law of the Sea Eastern Mediterranean (Sea) European Community Energy Charter Treaty European Economic Community exclusive economic zone Eastern Mediterranean Gas Forum European Union Foreign and Commonwealth Office International Court of Justice International Law Commission International Seabed Authority International Tribunal for the Law of the Sea liquefied natural gas League of Nations Law of the Sea Convention Law of the Sea Bulletin Ministry of Defence Marine Protected Area navigational telex nautical mile Notice to Airmen Organization of the Petroleum Exporting Countries Permanent Court of Arbitration Projects of Common Interest

xxxii Abbreviations and acronyms PCIJ PLO RIAA SAR SBAs SOLAS SRR TPAO ‘TRNC’ UCH UCR UNCLOS UNGA UNIFIL VCLT

Permanent Court of International Justice Palestine Liberation Organization Reports of International Arbitral Awards Search and Rescue Sovereign Base Areas Safety of Life at Sea (Convention) Search and Rescue Region Turkish Anonymous Petroleum Company ‘Turkish Republic of Northern Cyprus’ underwater cultural heritage United Cyprus Republic United Nations Conference on the Law of the Sea United Nations General Assembly United Nations Interim Force in Lebanon Vienna Convention on the Law of Treaties

Introduction

Had this study been undertaken two decades ago, it would not have had much to say about the application of the law of the sea in the Eastern Mediterranean Sea (‘East Med’).1 The region has a long-standing naval tradition and maritime affairs there revolved mainly around fishing and seaborne trade until the late 20th century. Notwithstanding the above, the East Med has been the theatre of maritime disputes particularly between the Arab states and Israel, as well as between Turkey and Greece. The Arab‒Israeli maritime strife was originally about passage through the Strait of Tiran and freedom of navigation in the Gulf of Aqaba. Greece and Turkey have long been sparring over the Aegean Sea with respect to a range of issues such as the territorial sea breadth, the continental shelf delimitation and the regime of islands. On the verge of the 21st century, the Greco-Turkish maritime dispute was transformed and spread into the East Med and thus broadened out to also include Cyprus, in light of the offshore hydrocarbon discoveries. The striving for natural resources also transposed the Arab‒Israeli dispute into the marine domain and created new sources of tension. As will be seen, the East Med states contributed significantly to shaping the modern law of the sea over the course of the 20th century. Notably, the discovery of oil and gas deposits in the seabed and subsoil of the East Med sea waters has been a turning point in the history of the region. Major developments followed, creating a new political and economic environment in which the law of the sea has (or should have) a central role. One might wonder why such a book on the maritime claims and maritime delimitation in the East Med is necessary or what it adds to the international legal literature. Each maritime region in the world has its own peculiar characteristics, which make it unique and, hence, an interesting case study. What has placed the East Med in the spotlight in recent years, as mentioned above, is the offshore hydrocarbon discoveries. Certainly, hydrocarbons have been found in many regions around the world. What makes the East Med case special is the combination of the current energy discoveries ‒ a landmark event which has changed the course of the region’s history and spurred intense maritime activity ‒ with a long-running maritime history, paired with serious inter-state friction. With a view to making the subject-matter of this book as clear as possible, it is divided into four chapters. Chapter 1 discusses the East Med states’ positions on

2 Introduction certain core maritime issues held during the law of the sea conferences. Chapter 2 addresses the discovery of offshore hydrocarbon deposits and the boundary delimitation agreements signed between the states under concern prompted by those discoveries. Chapter 3 delves into the regional states’ overlapping maritime claims, activities in undelimited maritime areas and the ensuing disputes. Chapter 4 analyses the legal regime and maritime claims of non-state actors in the East Med. A unique feature of this book is a thorough study of the travaux préparatoires of the international law of the sea conferences made in Chapter 1, which highlights the East Med states’ contribution to the formulation of contemporary law of the sea. The East Med states found themselves in different camps on several topics. The most heated debates took place between Greece and Turkey on the territorial sea breadth, the regime of islands, enclosed and semi-enclosed seas and maritime delimitation in view of the Aegean Sea dispute. Serious disagreements also erupted between the Arab states and Israel with respect to freedom of navigation and maritime security against the background of their long-standing enmity. It should be pointed out that even though Greece, Lebanon, Egypt and Cyprus are parties to the 1982 United Nations Law of the Sea Convention (‘LOSC’ or ‘the Convention’), Turkey, Israel and Syria have, for a variety of reasons, yet to accede to the Convention. As mentioned earlier, the discovery of offshore oil and gas deposits in the East Med is a milestone in the history of the region. Chapter 2 presents how discoveries in the waters of the East Med at the end of the 20th century ignited the regional states’ interest in offshore hydrocarbons and, thus, oil and gas exploration and exploitation operations have been on the rise. Further, the European Union (‘EU’ or ‘the Union’) assumes a significant role at this point, given that Greece and Cyprus are EU members and, thus, are bound by the Union’s legislation concerning oil and gas, as well as the protection of the marine environment when carrying out hydrocarbon-related activities. Additionally, East Med gas may play a part in the Union’s endeavour to diversify its energy sources and routes. Given the intense maritime activities taking place in the East Med over the last few years, it is necessary to analyse the pertinent legal framework governing those. Maritime boundary delimitation is a decisive aspect of the law of the sea as it leads to the establishment of a stable and secure legal and political environment facilitating the orderly conduct of oil and gas exploration and exploitation, fishing and other maritime activities. Bearing this in mind, Egypt and Cyprus (2003), Lebanon and Cyprus (2007), Israel and Cyprus (2010) entered into exclusive economic zone (‘EEZ’) delimitation agreements. All three agreements were effected according to the median line, hence entrenching a regional practice ‒ albeit not binding ‒ supportive of the particular delimitation method. These delimitation agreements have also laid the foundations for deepening the collaboration on maritime affairs between the parties. In particular, the delimitation agreements provide for further negotiations among the parties in the event of the discovery of straddling hydrocarbon deposits aiming at the conclusion of

Introduction

3

framework and unitisation agreements. It is noteworthy that the aforementioned practice is in full conformity with international law and the law of the sea, both conventional and customary. Therefore, the East Med paradigm reaffirms the significance and necessity of the LOSC for the forging of productive cooperation schemes and for attaining peace, stability, security and progress. Therefore, the East Med states’ achievements through the application of the law of the sea framework may be used as an example in other regions of the world as well. As examined in Chapter 3, even though certain maritime areas remain undelimited to date, international law envisages rules regulating the conduct of states there. In particular, although not all activities are prohibited in an undelimited maritime area, states shall not operate in bad faith exacerbating tensions. Rather, they should seek cooperation and, if such efforts are not fruitful, should act cautiously lest they impair another state’s sovereign rights and/or jeopardise or hamper the reaching of a final delimitation agreement. Despite the clearly expressed desire of the majority of the East Med states to cooperate in order to reap the benefits of the energy boon, tensions have aroused in the aftermath of the signing of the aforementioned delimitation agreements and the performance of certain maritime activities. A dispute has emerged between Lebanon and Israel regarding a maritime space over which both have overlapping claims in the wake of the Israeli‒Cypriot EEZ delimitation agreement, which Lebanon considered detrimental to its interests. Regardless of previous efforts towards reconciliation, a disputed/undelimited maritime area between these two states still remains. This is a source of friction as Lebanon has already granted concessions within the said area, spurring Israel’s reaction. Moreover, Turkey has vigorously reacted to the delimitation agreements signed by Cyprus, whilst at the same time it claims a large part of the marine domain in the region as part of its continental shelf. Turkey also asserts maritime rights through the so-called ‘Turkish Republic of Northern Cyprus’ (‘TRNC’), which is a breakaway regime established after the military invasion of Cyprus by Turkey in 1974. The conclusion of a maritime delimitation agreement in late 2019 between Turkey and Libya with total disregard to the Greek islands’ maritime projection fuelled additional strife. Another complexity in the East Med region, scrutinised in Chapter 4, is the presence of non-state entities (apart from the ‘TRNC’) which have coastal fronts, namely the State of Palestine and the Sovereign Base Areas (‘SBAs’) of the United Kingdom (‘UK’) in Cyprus. These two cases need to be distinguished, since the former is a state in the making and its people are entitled to self-determination, whereas the latter is a military base without any permanent population. Nonetheless, it is necessary to examine the validity of their maritime claims in order to ascertain whether and, if so, to what extent these can upset the balance struck by the delimitation and other maritime agreements already in place. Moreover, in analysing the legal regime of the SBAs one inevitably cannot overlook the similarities with the Chagos Archipelago case. A parallel scrutinisation of these cases is important in terms of the applicable law concerning decolonisation and potential maritime rights generated from former (or maybe current?) colonial territories.

4 Introduction Overall, the East Med region offers a fascinating case study reflecting the manner in which history, politics and energy have become intertwined and how international law/law of the sea, particularly the law on maritime delimitation, can be used as a tool to curtail and/or de-escalate tensions and facilitate cooperation. As alluded to above, the developments in the region under concern may have global implications. This is evident from the fact that several actors such as the EU and renowned international oil companies are being involved in the East Med. In addition, stability in the region is indispensable for the carrying out of hydrocarbon activities and uninterrupted maritime traffic. What is more, new developments constantly occur in the East Med, therefore requiring an extensive application of the law of the sea apparatus in order to regulate pertinent activities. Indubitably, one of the most captivating and appealing features of international law is its capacity to reflect and engage with emerging developments in the international sphere. International law provides the yardstick for assessing the legality and legitimacy of state conduct. It should also be stressed that even though law and politics are being interwoven ‒ as is usually the case ‒ in the East Med, this book endeavours to make a legal analysis of the states’ legal position and conduct without arguing politics. Accordingly, this book examines and evaluates maritime claims and sea-related activities through the lens of the conventional and customary international law of the sea, as well as general international law. Even though certain regional states’ positions and behaviours could be deemed at odds with international law, the general conclusion is that the East Med states, motivated by the hydrocarbon discoveries, are more willing than ever to act in conformity with international law. They have chosen to do so through the conclusion of maritime delimitation and other relevant agreements, in order to enhance their collaboration and, consequently, fulfil their interests. Importantly, this book argues that the East Med paradigm demonstrates clearly that when states operate in accordance with international law, they are able to progress and prosper, whereas those who defy the international legal order remain on the sidelines and cannot avail themselves of the benefits accruing from multilateral synergies.

Note 1 The Mediterranean Sea is split into an eastern and a western basin, as well as into several subseas. International Hydrographic Organization, Limits of Oceans and Seas (3rd edn, Bremerhaven 1953) 15–18; the East Med states are (in alphabetical order): Cyprus, Egypt, Greece, Israel, Lebanon, Syria, Turkey.

1

The participation of the Eastern Mediterranean states in the law of the sea conferences

1 Introduction Driven by their important maritime tradition1 and the fact that the prosperity and well-being of their populations was to a great extent contingent upon the sea, the East Med states’ input into the formation of contemporary law of the sea was both critical and substantial. The positions expressed by the East Med states at the international conferences on the law of the sea echo and by and large explain their current stance towards the law of the sea, notwithstanding certain alterations in light of the offshore hydrocarbon discoveries or other reasons. An analysis of the travaux préparatoires of the conferences will be made as they provide a sufficient amount of information in respect of the views maintained by the states under concern during deliberations with respect to certain topics. For the sake of brevity, the analysis of the travaux focuses mainly on the positions expressed by the East Med states at the UNCLOS III held from 1973 until 1982 with references to the previous conferences. A brief presentation of the regional states’ pertinent legislation on core law of the sea issues gives a comprehensive picture of their contemporary views regarding maritime issues. As will be seen below, throughout the 20th century the East Med states formulated and maintained long-standing postures on specific issues, while they shifted their opinions on others. It should not escape notice that politics is closely interrelated with the law in such a manner that the former is often the underlying reason that the latter is drawn up in a particular way. Inescapably, political interests influenced the regional states’ positions during the law of the sea conferences and are still dictating their overall maritime policy. At any rate, the East Med states’ constructive and valuable participation in the international community’s efforts to regulate maritime affairs reaffirmed their strong connection with the marine domain and wrote another chapter in the maritime history of the region.

6 The law of the sea conferences

2 International conferences on the law of the sea 2.1 From the 1930 Hague Conference to the UNCLOS III In the first half of the 20th century, the international community had realised that, owing to a gamut of developments, it should regulate maritime affairs. Even though the 1930 Hague Conference had not led to the conclusion of an international convention, the Draft Articles on the legal status of the territorial sea2 and the rest of the work of the Conference on maritime issues were a significant contribution to the future development of the law of the sea.3 Indeed, the International Law Commission (‘ILC’) Draft Articles on the Law of the Sea (1956), on which the discussions at the 1958 Geneva Conference were predicated, relied on The Hague Conference’s outcome, as Professor François went on to become the ILC Rapporteur and his experience gained from the 1930 Conference was instrumental in the evolution of the law of the sea.4 The 1958 Conference culminated in the conclusion of four Conventions on the matters of the Territorial Sea and the Contiguous Zone,5 the High Seas,6 Fishing and Conservation of the Living Resources of the High Seas,7 the Continental Shelf,8 together with an Optional Protocol concerning the Compulsory Settlement of Disputes.9 Although there was no agreement on the breadth of the territorial sea, the Conference managed to clarify a range of difficult matters10 and to confirm many rules of customary international law.11 At any rate, it should be borne in mind that concluding those Conventions was a daunting task owing to the variation of opinions among delegations and the two-thirds majority prerequisite.12 As regards the then existent East Med states, they were reluctant to become parties to the Geneva Conventions for a range of reasons.13 Egypt, Syria and Turkey neither signed nor ratified any of the Geneva Conventions.14 Only Israel signed and ratified the Convention on the Territorial Sea and the Contiguous Zone.15 The Convention on the High Seas was signed by Israel and Lebanon, ratified by Israel and acceded to by Cyprus.16 Israel and Lebanon signed the Table 1.1 East Med states’ claims before the UNCLOS III (1973) States

Territorial Sea

Contiguous Zone

Continental Shelf

Exclusive Economic Zone

Cyprus Egypt Greece Israel Lebanon Syria Turkey

12 nm 12 nm 6 +6 (fishing) nm 6 +6 (fishing) nm 12 nm 12 nm 6 nm (Aegean) 12 nm (Black and Mediterranean Seas)

‒ in favour against against against ‒ in favour

yes yes yes yes yes yes yes

‒ ‒ ‒ ‒ ‒ ‒ ‒

The law of the sea conferences

7

Convention on Fishing and Conservation of the Living Resources of the High Seas but did not ratify it.17 Israel and Lebanon signed the Convention on the Continental Shelf; Israel ratified it, while Greece and Cyprus acceded to it.18 Lastly, the Optional Protocol of Signature concerning the Compulsory Settlement of Disputes was signed solely by Israel.19 Nevertheless, many provisions of those conventions already reflected or were later found to be part of customary international law, and hence were opposable to non-parties as well.20 On the cusp of the 1960s, important developments would take place on the international scene as decolonisation was at its peak and newly independent states emerged. In terms of the law of the sea, the newcomers were not satisfied with the existent regime, in the formation of which they had not participated, and were vigorously advocating its review.21 The new states’ main concern was that the industrialised countries possessed advanced technology, which would enable them to exploit the seabed to the detriment of the less developed states.22 In addition to progress in seabed mining technology and the appearance of new states, the territorial sea breadth, the protection of the marine environment and the management of offshore natural resources rendered the reconsideration of the Geneva Conventions indispensable.23 The United Nations (‘UN’) acknowledged these apprehensions and by virtue of UNGA Resolution 2750C (XXV) decided to convene the UNCLOS III.24 Apart from the East Med states present at the previous conferences (Greece, Turkey, Syria, Lebanon, Israel and Egypt), Cyprus also took part in a law of the sea conference for the first time after gaining independence in 1960. In 1967, within a diplomatically volatile atmosphere Ambassador Arvid Pardo promulgated the ‘common heritage’ principle, namely the use of the seabed minerals for the benefit of humankind as a whole, aspiring to preclude the subjection of the entire seabed under national jurisdiction following the application of the ‘exploitability’ criterion introduced by the 1958 Continental Shelf Convention.25 Accordingly, the ‘common heritage’ notion was enshrined in UNGA Resolution 2340 (XXII) (19 December 1967), which also established an Ad-Hoc Committee on the Peaceful Uses of the Sea-Bed and the Ocean Floor beyond the Limits of National Jurisdiction (‘Seabed Committee’).26 As will be analysed, the controversy between Turkey and Greece concerning the Aegean Sea had already begun during the Seabed Committee’s work before being transposed to the proceedings of the UNCLOS III. When the UNGA decided to convoke the UNCLOS III in 1973, it also assigned the task to prepare the Conference to the Seabed Committee. The UNCLOS III was given a broad mandate, namely to ‘adopt a convention dealing with all matters relating to the law of the sea’.27 Hence, it was obvious that the mission the Conference had to accomplish was enormous. In order to devolve responsibilities as to the work of the Conference ‒ which was more representative than the previous ones28 ‒ three main Committees were established: the First Committee was allocated issues pertinent to the seabed; the Second Committee had to deal with traditional law of the sea matters (territorial sea, continental shelf, contiguous zone, high seas, etc); and the Third Committee was to address

8 The law of the sea conferences questions on the marine environment.29 Moreover, the Conference established negotiating groups so as to cope with outstanding issues30 and endorsed the work of informal meetings.31 Arguably, the main challenge the Conference confronted was to strike a balance between the interests of the littoral states over the living and non-living resources of the oceans on the one hand and the rights of the international community as a whole, especially concerning the freedom of the high seas, on the other.32 The introduction of the EEZ notion and the fact that the LOSC had not achieved worldwide acceptance until the modification of the Convention’s provisions on the Area (the seabed beyond national jurisdiction) verify the difficulties in balancing a range of divergent positions.33 Another feature of the Conference was the formation of groups either on the grounds of common interests (i.e. Group of 77, land-locked/geographically disadvantaged states, median line or equidistance, equitable principles, coastal states, straits states groups) or based on region and nationality ties (i.e. Arab, African, Latin American, Soviet and East European, Western European, and Asian groups). Egypt, Lebanon, Syria and Cyprus participated in the Group of 77; Egypt was a member of the Coastal States Group and Greece of the Maritime States Group; Syria, Turkey and Greece were in the Land-locked/Geographically Disadvantaged States Group (as geographically disadvantaged); Cyprus and Greece took part in the Straits States Group and the Delimitation Group supporting the Median Line or Equidistance Principle; Syria and Turkey belonged to the Delimitation Group supporting Equitable Principles; all East Med states were members of their respective regional groups (African, Asian, Arab, West European and Others groups).34 The Conference eventually achieved the conclusion of the LOSC, a ‘package deal’, in late 1982.35 The Convention is deemed an ‘extraordinary achievement’ because of its comprehensive character and wide acceptance.36 The UNGA welcomed the adoption of the LOSC and called upon all states to sign it.37 Nevertheless, the Convention did not come into force until 1994, the same year the Agreement relating to the Implementation of Part XI of the Law of the Sea Convention ‒ introducing amendments to the said Part in order to allay maritime powers’ unease38 ‒ was signed. Even though the USA did not sign the Convention due to its disagreement over the deep seabed mining provisions, it considers the Convention’s provisions on the traditional uses of the seas part of customary international law,39 a fact strengthening the view that the Convention has acquired universal character. The LOSC framework was supplemented by the Agreement for Implementation of the Provisions of the UN Convention on the Law of the Sea relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks.40 Some of the innovations introduced by the LOSC were the determination of territorial sea breadth (Article 3); the concept of archipelagos (Article 46); the EEZ notion and rules on delimitation of both EEZ and continental shelf (Parts V and VI); the regime of islands (Article 121); the establishment of the International Seabed Authority (‘ISA’ ‒ Article 156); the designation of a compulsory dispute settlement apparatus and a

The law of the sea conferences

9

permanent law of the sea Tribunal (Part XV ‒ International Tribunal for the Law of the Sea (‘ITLOS’)); the protection of underwater cultural heritage (‘UCH’ – Article 303); and the creation of the Commission on the Limits of the Continental Shelf (‘CLCS’ ‒ Annex II). Since 1993, after the sixtieth state party (Guyana) ratified the LOSC resulting in its entry into force a year later, the UNGA has adopted an annual resolution on the law of the sea calling for universal participation in the Convention, as well as for the harmonisation of state legislation with its provisions.41 Regrettably, the only state voting against these resolutions every year is Turkey, an East Med state, owing to its objections to a host of issues addressed in the LOSC.42 In his annual reports on the law of the sea the UN Secretary-General has repeatedly stressed the significance of the Convention and the need for universal participation43 and has urged non-states parties to accede to the LOSC.44 At this juncture, it is significant to mention that the majority of the Convention’s substantive provisions have become part of the corpus of customary international law, this being recognised even by non-parties.45

2.2 The East Med states’ approach to the LOSC As regards the presence of the East Med states at the UNCLOS III, it was obvious from the outset that the Greco-Turkish dispute over the Aegean Sea46 and the Arab‒Israeli quarrel over the Gulf of Aqaba47 would be prominent issues and the involved parties would have struggled to safeguard and promote their interests. During the UNCLOS III, the East Med states showed special interest in, among others, the breadth of the territorial sea, maritime boundary delimitation, the regime of islands, enclosed and semi-enclosed seas, while they supported the development of the continental shelf and EEZ concepts. Concerning the East Med states’ stance towards the LOSC, Turkey and Israel voted against it; Cyprus, Egypt, Greece and Lebanon voted in favour,48 whereas Syria, although it voted in favour, has not to date become a party to it.49 Cyprus signed the Convention in 1982 and ratified it in 1988; Egypt signed in 1982 and ratified in 1983; Greece signed in 1982 and ratified in 1995; and Lebanon signed in 1984 and ratified in 1995.50 In respect of the 1994 Agreement relating to the Implementation of Part XI of the Law of the Sea Convention, Cyprus, Greece and Lebanon became parties to it in 1995, while it is deemed to be de facto applicable to Egypt.51 With regard to the 1995 Agreement for Implementation of the Provisions of the UN Convention on the Law of the Sea relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, Cyprus acceded to it in 2002, and Greece in 2003; Israel and Egypt have signed but not ratified; Lebanon neither signed nor has acceded to it.52 What follows is a brief presentation of the reasons why Israel and Turkey did not sign the Convention. Their stance is juxtaposed with the approach of Egypt which, even though not all of its positions were satisfied, eventually signed and ratified the LOSC. Certain Greek positions are also discussed as they signalled a

10

The law of the sea conferences

shift in Greece’s previous policy and spurred a reaction from Turkey. Lebanon and Cyprus signed and ratified the Convention without any complexities, whereas no official explanation has been given for Syria’s non-participation in the LOSC. It should be borne in mind that the East Med states were not involved in discussions on every subject, while, owing to lack of interest, certain regional states were not that active during deliberations on issues of importance to the other East Med states.

Israel Israel repeatedly expressed its indignation over the course of the Conference on the acceptance of the Palestine Liberation Organization (‘PLO’) as a participant in the proceedings and strongly objected to the possibility of the PLO being allowed to sign the Final Act.53 At the same time, the Arab states exerted pressure for the PLO and other liberation movements to be entitled to sign.54 In the end, PLO signed the Final Act,55 providing Israel with a reason not to become a signatory to the LOSC,56 although it signed the Final Act without recognising PLO.57 What is more, the Israeli delegation demonstrated its disappointment that the Convention did not adequately deal with Israeli concerns over maintenance of the freedom of the seas and the regime of straits. Additionally, Israel manifested the view that the full spectrum of the Convention’s provisions should not apply to ‘semi-enclosed and narrow seas’, with particular reference to the Mediterranean and Red Seas,58 siding itself with Turkey on the matter. That was possibly an effort to restrict the exercise of maritime rights on the part of Arab states bordering the Gulf of Aqaba, which could hamper Israel’s rights therein. Another important aspect regarding the Israeli stance towards the LOSC is that in 1979, while the Conference was underway, Israel and Egypt concluded a Peace Treaty in order to regulate passage through the Strait of Tiran and the regime of the Gulf of Aqaba.59 The signing of this Treaty caused strong reactions on the part of the other Arab states, resulting in the suspension of Egyptian membership of the Arab League,60 since the other Arab states did not recognise Israel. Arguably, another reason Israel did not sign the Convention was the likelihood of the more liberal provisions of the 1979 agreement to be in contradiction to the LOSC, thus generating a negative effect on these arrangements.61 At the UNCLOS III, Israel supported the freedom of navigation and overflight for all straits without exception, as well as the continuation of the regime established by Article 16(4) 1958 Geneva Convention on the Territorial Sea and the Contiguous Zone.62 Nonetheless, Israeli and other scholars support that the 1979 Treaty is compatible with or even prevails over the LOSC,63 a position reiterated by Israel after the conclusion of the UNCLOS III through a note verbale, whereby it stated that its main concern was to ensure freedom of navigation and overflight over straits and that these freedoms should apply in the Straits of Tiran and the Gulf of Aqaba as stipulated in the 1979 Treaty.64 Another Israeli commentator gave a few more possible reasons why Israel has not become a party to the Convention, namely the failure of the LOSC

The law of the sea conferences 11 to grant additional rights as regards seabed exploitation; the Egyptian claim that the LOSC grants Egypt control over the Gulf of Aqaba;65 the dispute settlement mechanism could be detrimental to Israeli interests; the ISA could exert pressure on Israel so as to share technology and production.66 These seem to be some of the underlying reasons for the drastic change in Israel’s previous position, which, it should be recalled, had been as a signatory to all 1958 Geneva Conventions. However, following the Peace Process with the Palestinians since 1993, Israel has been reconsidering its position contemplating accession to the LOSC.67

Turkey As far as Turkey was concerned, the official explanation for voting against the Convention was its dissatisfaction with the prohibition of reservations and, consequently, so the Turkish argument runs, it could not sufficiently safeguard its rights.68 According to a letter sent to the UN Secretary-General, Turkey referred to the failure of the LOSC to address adequately exceptional geographical situations and the prohibition of reservations as the reasons for its nonparticipation in the LOSC.69 Οral argues that the primary reason Turkey did not sign was the disagreement with Greece over delimitation issues in the Aegean Sea, with the relevant LOSC provisions being of little assistance owing to their ambiguity.70 Other authors opined that Turkey’s refusal to sign was based on the fact that it could not submit a reservation to Article 3 LOSC on territorial sea breadth and that the Convention adopted a position favouring the Greek interests on the regime of islands.71 As will be explained below, Turkey vigorously sought the application of special rules in the Aegean purporting to depart from the general international law norms, a position resembling that of Israel concerning the Gulf of Aqaba. Failing to secure such exceptions, and given that reservations were prohibited, Turkey chose neither to sign the Final Act nor to adhere to a Convention certain of the core provisions of which did not meet its expectations, even though it seems to accept many of the LOSC provisions as part of customary international law.72

Egypt In spite of the fact that its proposal for the inclusion of a ‘security clause’ applicable to the passage of warships through the territorial sea had not been adopted, Egypt signed and ratified the LOSC.73 Still, in a declaration submitted upon ratification, Egypt stated that nuclear-powered vessels traversing the Egyptian territorial sea should obtain prior authorisation, whereas warships should be subjected to prior notification. It also noted that the regime of straits stipulated in the LOSC should not impair the regime established by virtue of the 1979 Egypt‒Israel Peace Treaty,74 aligning itself with Israel on this matter. It should be pointed out that Egypt was the first Mediterranean state to proclaim an EEZ by submitting a declaration upon ratification of the Convention,

12

The law of the sea conferences

although it did not enact any relevant legislation.75 It is worth mentioning that in its declaration upon ratification, Egypt downgraded its well-established position on prior authorisation of warships sailing in its territorial sea to requiring merely prior notification.76

Greece During the Conference, Greece advocated the right of continental states possessing islands to use the rules pertaining to archipelagic states as regards their islands. The Greek government’s purpose was to implement the archipelagic regime in the Aegean Sea, but the effort eventually failed as Part IV LOSC does not apply to islands belonging to continental states.77 At the end of the Conference, Greece expressed the conviction that the provisions on the breadth of the territorial sea, freedom of navigation and the regime of islands were already rules of customary international law.78 Further, upon signature Greece issued an interpretative declaration79 asserting the right to designate routes in the alternative straits formed by the numerous Greek islands. According to the Greek delegation, the reason for that was to accommodate the requirements of international navigation and overflight on the one hand and security requirements of vessels and of the coastal state on the other. Turkey, considering the Greek declaration to be an effort on the part of Greece to rectify its failure to achieve application of the archipelagic regime over the Aegean islands, was the only state to have protested against the Greek declaration, stressing that it would not tolerate any actions attempting to deprive it of its long-standing rights.80 Greece replied that since Turkey is not a party to the Convention, its objection bears no legal effect, adding that the Greek government did not intend to violate the LOSC provisions.81 Furthermore, Greece changed its previously held position on a narrow territorial sea and showed preference for a 12 nm width. As a result, it reserved the right to avail itself of the powers envisaged in the Convention, making it clear that it did not renounce them,82 alluding to the possibility of extending its territorial sea breadth from 6 to 12 nm. This reservation seems superfluous as, even if a state does not exercise its rights, it cannot be accepted that those fall into desuetude.83

2.3 Core law of the sea issues and the East Med states’ positions This section aims to present the viewpoints set forth by the East Med states during the UNCLOS III on a range of issues of grave importance to both themselves and the international community. To this end, a thorough study of the travaux préparatoires is undertaken through which very interesting information is obtained. The examination of the preparatory works sheds light on the reasons that shaped the East Med states’ stance on the contemporary law of the sea. Therefore, the following paragraphs are fundamental in understanding the regional states’ current approach to the law of the sea. As mentioned above,

1958 Continental Shelf Convention

Acceded (1974) ‒ Acceded (1972) Signed and ratified

Signed but not ratified ‒ ‒

1958 Territorial Sea and Contiguous Zone Convention

‒ ‒ ‒ Signed and ratified

‒

‒ ‒

States

Cyprus Egypt Greece Israel

Lebanon

Syria Turkey

Acceded (1988) ‒ ‒ Signed and ratified Signed but not ratified ‒ ‒

1958 High Seas Convention ‒ ‒ ‒ Signed but not ratified Signed but not ratified ‒ ‒

1958 Fisheries on the High Seas Convention

Table 1.2 Participation of the East Med states in the Law of the Sea Conventions

‒ ‒

‒ ‒ ‒ Signed but not ratified ‒

Optional Protocol on Dispute Settlement

Not a party Not a party

Party

Party Party Party Not a party

1982 Law of the Sea Convention

The law of the sea conferences 13

14

The law of the sea conferences

the East Med states showed interest, among others, in the topics of the territorial sea breadth; the continental shelf and the EEZ concepts; the regime of islands; enclosed and semi-enclosed seas; and maritime boundary delimitation. What follows is an outline of the above-mentioned notions, the positions the East Med states’ set forth on each topic at the UNCLOS III, as demonstrated in the deliberations, accompanied by a short commentary and a brief presentation of the regional states’ domestic legislation on those matters.

2.3.1 Territorial sea84 INTRODUCTION

Given that one of the main concerns of littoral states has been the protection of their coasts against threats coming from the sea, they early on asserted jurisdiction over a strip of sea adjacent to their coasts for security reasons.85 Even though state practice reveals a variance of claims as regards the breadth of this zone, and in spite of the fact that in the early 20th century the 3 nm limit was prevailing,86 later on overwhelming state practice led to its expansion. It is now accepted that the territorial sea belongs inherently to the littoral state, which exercises sovereignty over the waters, seabed and subsoil and airspace,87 with the exception of innocent passage and ‘other rules of international law’, and its width cannot exceed 12 nm.88 The coastal state’s near-absolute jurisdiction in the territorial sea is evident from the limitations imposed by the Convention on vessels exercising innocent passage (Articles 18–23, 25 LOSC) as the pertinent provisions seek to accommodate the coastal states’ security concerns, a subject of grave concern for the East Med states.89 THE EAST MED STATES’ POSITIONS

As mentioned above, serious difficulties confronted the law of the sea conferences regarding the definition of the territorial sea breadth. From the onset, the East Med states provided substantial input to the discourse on the breadth of the territorial sea. Initially, although they did not espouse a common line on the issue, most of them adhered to the widely accepted three-mile limit. Some of them sought to establish a territorial sea breadth of between three and 12 miles in the 1950s, a period in which such claims were deemed maximalist. Gradually, however, all East Med countries, although some of them have yet to extend their territorial sea to 12 nm, have acknowledged the prevalence of the 12-mile limit now established by the LOSC and recognised as a rule of customary international law gaining overwhelming support in state practice.90 From the early 1970s, Turkey and Greece monopolised the discourse on the territorial sea breadth. In a notable development at the UNCLOS III, Greece expounded a view in favour of a 12-mile territorial sea,91 departing from its previously long-held position advocating a narrow zone in order to not hamper the freedom of the seas. The reasons underpinning this shift were security

The law of the sea conferences 15 concerns in light of the Aegean dispute with Turkey and Greece’s desire to extract natural resources from the seabed and subsoil of the Aegean Sea. Conversely, Israel retained its preference for a six-mile zone, conveying its worry over possible limitation of freedom of navigation following an extension of the territorial sea breadth, whereas the Arab states remained champions of a 12 nm breadth, a position also adopted by Cyprus, which had set the limit of its territorial sea up to 12 nm in 1964.92 For its part, Turkey laid down its concerns at being cut off93 from the high seas if a neighbouring state (implying Greece) was to extend its territorial sea and urged that the territorial sea breadth in semi-enclosed seas should be defined by agreement between the parties involved.94 Turkey was worried because had Greece extended its territorial sea, the 12 nm limit would have been applied to the hundreds of the Greek islands in the Aegean Sea, thus allowing Turkey only a narrow strip of sea.95 This was not surprising, as Turkey had already put forward the same arguments during the deliberations at the Seabed Committee with respect to the situation in the Aegean Sea.96 Additionally, Turkey did not accept the 12-mile limit as a uniform rule and alluded to the previous Greek position (without explicitly mentioning Greece) supporting non-expansion of the territorial sea in earlier conferences, so as to expose the Greek government’s inconsistency on that matter. It should also be pointed out that Greece had opposed the extension of Turkey’s territorial sea up to 12 nm in the Aegean in 1964, alleging a possible impairment of its fishing rights.97 Indeed, the Greek position on the territorial sea breadth was inimical towards the 12 nm limit until the commencement of the UNCLOS III. Turkey was also presenting itself as ‘persistent objector’98 to the 12-mile rule, namely ‘a state that indicates its dissent from a practice while the law is still in the process of development’; hence it ‘is not bound by that rule of law even after it matures’.99 Although established in literature and state practice, this concept is not sufficiently supported by international case law,100 while the Turkish stance on the matter is equivocal. Toluner argues that Turkey does not reject the 12-mile rule per se but disagrees with its application without derogations in a semi-enclosed sea such as the Aegean; therefore, the current Turkish position is that no customary rule of a 12-mile territorial sea in semi-enclosed seas is invoked against Turkey.101 Notwithstanding the fact that prior to the UNCLOS I Turkey had accepted the 12-mile limit as a rule of international law,102 according to Turkish scholars the aforementioned statement was subject to a reservation declaring that the opinions set forth in the particular note verbale were not binding upon the Turkish government.103 Moreover, Turkey, before the opening of the UNCLOS III, had signed a protocol with the USSR accepting a 12-mile territorial sea in the Black Sea.104 Turkish commentators argue that Turkey applies a more extensive territorial sea limit in the Black Sea owing to the fact that it acts in compliance with the principle of reciprocity towards the neighbouring states,105 without clarifying whether this is the case in the East Med as well, since Turkey also has a 12-mile territorial sea therein. Regardless of the above, in the early stages of the

16

The law of the sea conferences

UNCLOS III, the Turkish delegation had noted that in narrow seas 12 miles should be the maximum territorial sea breadth.106 At any rate, a state is not obliged to apply the same territorial sea breadth to every part of its coasts,107 so the decision of Turkey to retain a six-mile territorial sea in the Aegean Sea does not run afoul of international law. Nonetheless, no state is entitled to demand that other states should claim a territorial sea less than 12 miles for this now forms a rule of customary law.108 Whereas Greece contended that the right of coastal states to extend their territorial sea up to 12 miles was well established in international practice and there was an agreement on that in the Conference,109 the Turkish delegation stressed the need for negotiations before a coastal state expands its territorial sea in semi-enclosed seas which might possibly affect straits.110 Furthermore, Turkey has been favouring negotiations over judicial settlement of the Aegean dispute, although initially the Turkish government had been willing to discuss recourse to curial proceedings, at least regarding the continental shelf. As a matter of fact, in a note verbale in 1975 Turkey stressed: ‘[I]n principle, the Turkish Government favourably considers the Greek Government’s proposal to refer the dispute over the delimitation of the Aegean continental shelf jointly to the International Court of Justice.’111 In a joint communiqué in 1975, Greece and Turkey had stated their acceptance of the ICJ jurisdiction over the continental shelf dispute, but the Court did not consider that statement as providing a sufficient jurisdictional basis for adjudicating the case.112 Notwithstanding Turkey’s position that unilateral recourse to dispute settlement mechanisms is an unfriendly act, the UN General Assembly stressed the following: ‘[R]ecourse to judicial settlement of legal disputes, particularly referral to the International Court of Justice, should not be considered an unfriendly act between States.’113 Besides, Article 33 UN Charter includes judicial settlement as one of the peaceful means of dispute resolution. Furthermore, when in 1999 Turkey was accepted as a candidate member of the EU, the European Council, among others, urged the candidate members, failing to reach an agreement, to bring any border disputes before the ICJ.114 CONCLUSION

It is hardly necessary to say that the territorial sea concept has been of fundamental importance for the East Med states. The Arab states have been consistent in their position on a 12 nm territorial sea with a view to serving their security interests, a posture also shared by Cyprus. Despite being reluctant to assert a broad territorial sea until the commencement of the UNCLOS III, Greece shifted its position in favour of the 12 nm limit so as to gain additional maritime space in the Aegean Sea in light of its antagonism with Turkey. Nonetheless, due to the Aegean Sea dispute, Greece still has a 6 nm territorial sea. For the same reason, Turkey has a 6 nm territorial sea in the Aegean Sea, whereas its territorial sea breadth in the Black and the Mediterranean Seas is 12 nm. Even though Israel for decades had a 6 nm territorial sea owing to its dispute with its

The law of the sea conferences 17 Arab neighbours regarding the Gulf of Aqaba, it eventually adhered to the 12 nm limit. Consequently, all East Med states, except for Greece and Turkey in the Aegean Sea, have a territorial sea up to 12 nm. CONTEMPORARY STATE LEGISLATION ON THE TERRITORIAL SEA

Greece Even though at the international conferences prior to the UNCLOS III Greece was supportive of a three-mile territorial sea belt, it had already enacted legislation in 1936 claiming a territorial sea of 6 nm.115 The Greek legislation also ordains that for aviation purposes the territorial sea breadth is 10 nm.116 This constitutes a paradox, as Greece claims sovereignty beyond 6 nm over the airspace but not over the subjacent corresponding maritime area. This inconsistency does not conform to international law as only the airspace above the territorial sea can be considered as falling within the limits of state territory.117 Turkey has objected to Greece’s airspace breadth, although it was not until 1975 that it notified its protest and, subsequently, expressed its disagreement over the 1988 Greek Code of Air Law.118 As discussed earlier, upon the commencement of the UNCLOS III, offshore natural resources and national security reasons dictated a shift in Greece’s longstanding position on a narrow territorial sea breadth kept hitherto due to shipping interests. Since then, the Greek state has advocated a 12 nm zone in order to, among other reasons, serve its security interests against the backdrop of the Aegean dispute.119 This particular stance is echoed in the Greek law ratifying the LOSC, as well as in the declaration upon the ratification of the Convention, whereby Greece reserved its right to extend its territorial sea up to 12 nm.120 A point worth mentioning is that, although Greece has championed the 12 nm limit since the 1970s, it introduced this position in domestic legislation as late as 1995 and has yet to apply it. Greece could also have availed itself of the EEC (at the time) Common Fisheries Policy (‘CFP’) Regulation and established a 12 nm fishery zone,121 which is also recognised as part of customary international law.122 The CFP also provides for the conclusion of agreements between the EU and third states in order for vessels from the EU to fish in the waters of third states and vice versa.123 This is important in terms of the relations of the EU members of the region (Greece and Cyprus) and third regional states given the intense fishing activities therein. Following the enactment of Law 2321/1995 ratifying the LOSC, Turkey reacted rigorously. The Turkish Grand National Assembly adopted a resolution stressing that any attempt on the part of Greece to expand its territorial sea to 12 nm would entail the undertaking of measures from Turkey, even amounting to military force: While the Turkish Grand National Assembly hopes that the Greek Government will not decide to increase its territorial waters in the Aegean beyond six miles, … it has nevertheless decided to grant the Turkish

18

The law of the sea conferences government all powers, including those that may be deemed necessary in the military field, for the protection and defence of our country’s vital interests in the face of such an eventuality.124

In response, Greece sent a letter to the UN Secretary-General condemning the Turkish declaration as constituting threat of use of force and repeated its right to extend its territorial sea as it deems suitable.125 Interestingly, Turkey reiterated its opposition to the extension of the Greek territorial sea when the then outgoing Greek Foreign Minister announced, in October 2018, that Greece was contemplating extension of its territorial sea to 12 nm in the Ionian Sea almost up to Crete.126

Turkey In the aftermath of the UNCLOS I and II, the Turkish government enacted the Territorial Waters Law 476/1964 by virtue of which it claimed a 12 nm territorial sea for the Black and the Mediterranean Seas, on the premise of reciprocity, and 6 nm for the Aegean, whereas its previous claim was 3 nm for all regions.127 In particular, after the conclusion of the 1923 Lausanne Treaty and prior to the enactment of the aforementioned law, Turkey claimed, de facto, a 3 nm territorial sea, but from 1914 to 1923 it asserted a 6 nm territorial sea and, according to the 1918 Customs Law, as amended by Law 906/1926, a contiguous zone up to 4 nm.128 Furthermore, in line with the 1958 Geneva Conventions, the Law set forth that the median line should be the outer limit of the Turkish territorial waters.129 As mentioned above, in 1964 Turkey contemplated extension of its territorial sea to 12 miles (a six-mile territorial sea plus a six-mile fisheries zone) in all regions, but the Greek government categorically disagreed and warned that if Turkey proceeded, Greece would extend its territorial sea even to 20 miles.130 Greece reacted to the establishment of a fisheries zone in the Aegean because it considered this to be a modification to the status quo in the high seas of the Aegean,131 which might have impaired Greek fishermen and shipping activities, even though it later changed its position. A few years later, the Act 2674/1982 repealed the Territorial Waters Law’s provisions conflicting with it.132 Turkey fixed the general breadth of the territorial sea at 6 nm, but granted the Turkish Council of Ministers the authority to expand the territorial sea limits in certain sea areas according to equitable principles,133 not applying the principle of reciprocity, which could propel other neighbouring states ‒ mainly Greece, which had already manifested its preference for a 12-mile limit ‒ to lay claims for a wider territorial sea.134 Accordingly, the Turkish Council of Ministers issued Decree 8/4742 on the authority of which the territorial sea breadth in the Black and Mediterranean Seas would remain the same as prior to the entry into force of the Law 2674/1982.135 As a result, to date Turkey maintains a 12 nm territorial sea in the Black and Mediterranean Seas, whereas it claims a six-mile territorial sea zone in the Aegean.136 Further, in contrast to the previous law, as well as the 1958 Territorial Sea Convention and the LOSC, the Act envisages that delimitation of the territorial sea shall be

The law of the sea conferences 19 carried out by agreement on the basis of equity and special circumstances ‒ rather than equidistance ‒ a position Turkey strongly advocated during the UNCLOS III.137

Syria In line with the viewpoints it expressed during the law of the sea conferences, Syria claimed a territorial sea up to 12 nm long before the worldwide acceptance of this breadth, placing itself in the ‘maximalist’ camp along with Egypt, Lebanon and Cyprus.138 However, when the maximum territorial sea limit was fixed at 12 nm after the UNCLOS III, Syria expanded its territorial sea to 35 nm.139 In 2003, Syria enacted comprehensive legislation dealing with a wide range of maritime issues.140 First, the law in force abandons the previous expansive posture setting the breadth of the Syrian territorial sea to the universally accepted 12 nm limit.141 In broad terms, Syria’s legislation reflects its well-established security concerns and it dedicates Articles 6–18 to the innocent passage regime. Article 8 of the Law allows innocent passage solely ‘in times of peace’, introducing a superfluous qualification as the innocent passage concept does not apply ‒ at least ‒ between belligerent parties during an armed conflict.142 In any case, Article 21 LOSC does not comprise security in the realm of matters a state is entitled to legislate for with respect to innocent passage, and thus any reliance on the ambiguous national security reasoning ‒ without the existence of a manifest threat ‒ in order to impede passage is not in compliance with international law.143 On the other hand, a coastal state may impede noninnocent passage on security grounds within the purview of Article 19 LOSC. Moreover, Syria seeks prior authorisation for warships, ships of a dangerous nature (nuclear-powered ships, ships carrying materials dangerous for the environment or prejudicial to national security), submarines and other diving vessels (which should sail on the surface flying their flag) traversing its territorial sea.144 At any rate, albeit controversial, there are sound arguments supporting the position that the right of innocent passage applies to warships too, as long as they do not act in a manner prejudicial to the coastal state’s security.145 Had innocent passage not been allowed for warships, Articles 30–31 LOSC setting forth rules in the event that warships do not act in compliance with the coastal state’s laws and regulations during passage through the territorial sea would have been redundant.146 Therefore, the Syrian legislation, whenever it is applied, if it substantially hampers the freedom of navigation, will violate the relevant law of the sea rules.147 Another controversial provision of the Law is Article 18, which purports to render immunity of foreign warships and government ships contingent upon reciprocity. This measure cannot be accepted as warships enjoy absolute immunity under both the LOSC and customary international law.148 The remaining articles regulating innocent passage, to a great extent,149 reproduce the LOSC wording.

Egypt For the sake of clarity, it should be pointed out that the pertinent Egyptian legislation was enacted in 1951 and amended in 1958, prior to the conclusion of the 1958 Geneva Conventions on the law of the sea. As seen

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below, several provisions of the law under examination are obsolete and incompatible with contemporary law of the sea. As a result, a revision of the legal framework is indispensable in order for Egypt to align itself with the LOSC and customary international law. For instance, Article 3 of the Decree promulgates that Egypt’s territorial waters are comprised of its internal waters and territorial sea.150 This provision seems to contain a conceptual inaccuracy given that the term ‘territorial waters’ is an older term replaced by the ‘territorial sea’ notion and, in any case, does not include internal waters. Having always been concerned about maritime and coastal security and the marine environment, Egypt declared upon signature of the LOSC that it requires prior authorisation for nuclear-powered ships and ships carrying nuclear or other inherently dangerous and noxious substances, as well as prior notification for warships.151 The strict approach on nuclear-powered and other similar vessels remains controversial as the LOSC does not grant coastal states such powers in light of the conditions envisaged in Article 23 LOSC, which seem to adequately regulate the passage of these ships,152 while Article 22 LOSC may also be used as a foundation of legislative authority with a view to controlling nuclear-powered and other similar ships passing through a state’s territorial sea. On this matter, Kaye argues that the wording of Article 23 LOSC provides for unimpeded freedom of navigation of such vessels through the territorial sea of a coastal state.153 As regards warships (this applies to Syria as well), the UN SecretaryGeneral considered declarations demanding prior authorisation or notification for their passage to be inconsistent with the LOSC,154 although a position has been expressed conceding prior notification as one of the measures elaborated under Article 21 LOSC, but rejecting prior authorisation.155 Moreover, the ITLOS ruled that all ships enjoy the right to innocent passage without excluding warships.156 With a view to expressing the outright condemnation of any attempts to impose restrictions on innocent passage, the USSR and the USA issued a joint statement advocating the right of all ships (including warships) to innocent passage without prior notification or authorisation.157

Lebanon Until the early 1980s, Lebanon had not enacted any laws defining the breadth of its territorial sea, even though it had claimed a 3‒12 nm territorial sea since the 1950s, but interesting information can be extracted from other pieces of legislation. The Fisheries Order 1104/1921, issued by France when Lebanon was still under French mandate, envisaged a six-mile territorial sea; the Code of Customs Regulations, adopted by Order 137/1935, gave authority to customs officers to inspect ships up to a distance of 20 km from the Lebanese coasts; and the Penal Code, enacted by Legislative Decree 340-NT/1943 stipulated the establishment of a 20-km-wide territorial sea for jurisdictional purposes.158 In the wake of the UNCLOS III, Lebanon issued a legislative decree fixing its territorial waters’ breadth to 12 nm, whereas, in line with the Lebanese security concerns, the Decree empowers the Council of Ministers to create navigation routes within the territorial waters that ‘are out of bound of ships’;159 such a decree has not been issued to date. More recently, in light of the hydrocarbons

The law of the sea conferences 21 discoveries in the region, Lebanon set forth Law 163/2011 addressing an array of maritime issues. Pursuant to the Law, Lebanon upholds its 12-mile territorial sea.160

Israel Although Israel had either signed or ratified all of the 1958 Geneva Conventions, it did not sign and has yet to accede to the LOSC. Nonetheless, against the backdrop of the hydrocarbon bonanza, Israel contemplates the enactment of a new comprehensive maritime law incorporating the basic norms of the LOSC in its internal legal order.161 At the moment, according to the Territorial Waters Law, Israel claims a 12 nm territorial sea,162 whereas until 1990 it maintained a six-mile territorial sea belt.163

Cyprus Interestingly, Cyprus has had a 12 nm territorial sea since 1964 when the then universally accepted limit was still 3 nm.164 Furthermore, Cyprus has enacted separate legislation integrating the LOSC provisions on innocent passage into its legal order, whereby it authorises the Council of Ministers to issue regulations in respect of innocent passage according to Article 21 LOSC.165

2.3.2 Continental shelf 166 INTRODUCTION

Another important matter preoccupying the law of the sea conferences was the notion of the continental shelf. This pivotal concept emerged following the first attempts of offshore oil and gas exploitation in the early 20th century.167 In the geological sense the continental shelf is the shallowest part of the continental margin ‒ which also comprises the continental slope and the continental rise ‒ and it is considered to be the submerged prolongation of the land territory.168 In the years preceding the UNCLOS I, it had been accepted that possession of a territorial sea provided the coastal state with rights on the underlying seabed and subsoil.169 However, it was the Truman Proclamation that officially put forward the first ever claim over the natural resources of the continental shelf with a view to carrying out hydrocarbon activities in the Gulf of Mexico.170 In particular, the Proclamation stressed: [T]he Government of the United States regards the natural resources of the subsoil and seabed of the continental shelf beneath the high seas but contiguous to the coasts of the US as appertaining to the US, subject to its jurisdiction and control.171 The continental shelf does not form part of the coastal state’s territory and that is why the state enjoys on it merely ‘sovereign rights’ for exploration and exploitation and not sovereignty. The ILC had explained that this was necessary in order to preserve the freedom of the superjacent sea, which remains part of the high seas, and the air space above. Further, the diminished rights of the coastal

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state over the continental shelf can be explained in light of the attempt of maritime powers to hinder excessive maritime claims.172 The ILC had also made clear that the rights of the coastal state pertaining to the continental shelf are not contingent upon occupation or explicit proclamation.173 This view was later endorsed by the ICJ in the North Sea cases, which set forth that the littoral state’s rights over the continental shelf exist ‘ipso facto and ab initio, by virtue of its sovereignty over the land’ and the right to a continental shelf ‘can be declared … but does not need to be constituted’, while delineation of its outer limits is not a precondition for the possession of a continental shelf.174 It is noteworthy that the aforementioned ruling affirmed the wording of Article 2(3) 1958 Continental Shelf Convention, which the ICJ deemed part of customary international law.175 As regards the legal definition of the continental shelf, the ILC used a combination of the ‘depth’ and ‘exploitability’ criteria: [T]he term continental shelf is used as referring to the seabed and subsoil of the submarine areas adjacent to the coast but outside the area of the territorial sea, to a depth of 200 metres (approximately 100 fathoms), or, beyond that limit, to where the depth of the superjacent waters admits of the exploitation of the natural resources of the said areas.176 However, the ‘exploitability’ criterion was heavily criticised as ‘unsatisfactory’177 and, due to technological developments, it was soon rendered obsolete.178 That led to its replacement by the more precise ‘distance’ criterion for the definition of the outer limit of the continental shelf captured in Article 76(1) LOSC. Furthermore, while the ICJ had initially found the view that the continental shelf is the ‘natural prolongation of the land domain’ to be essential,179 later on the significance of geological factors declined in favour of distance, which was recognised as the basis of title over the continental shelf.180 It was a positive development since the use of natural prolongation as a delimitation criterion engendered uncertainty in maritime delimitation law.181 Judge Jennings expressed his disagreement with the ‘exploitability’ criterion soon after the North Sea judgment was delivered and called the natural prolongation concept an ‘unfortunate device’ and a ‘pure figment of the Court’s imagination’.182 Interestingly, Kwiatkowska points out that the ICJ recognised the natural prolongation concept in order to prove the appurtenance of the continental shelf to the coastal state and not to define the outer limit of it, whereas during the UNCLOS III the particular concept was introduced so as to define the international seabed.183 At any rate, the ICJ in a series of decisions did not consider the natural prolongation concept as a maritime boundary delimitation method under either customary or conventional law.184 Article 76(1) LOSC, which is now part of customary international law,185 enshrines both notions: on the one hand the ‘legal’ or ‘juridical’ continental shelf concept whereby every state is entitled to a continental shelf irrespective of whether the prolongation of its land mass actually extends up to 200 nm, and, on the other, the continental shelf in a geological sense which could stretch out up to 350 nm or more.

The law of the sea conferences 23 THE EAST MED STATES’ POSITIONS

As demonstrated in the preparatory works of the international law of the sea conferences, the East Med states’ contribution to the formulation of the principles regulating this regime, as well as to the repudiation of the ‘depth’ and ‘exploitability’ criteria, was crucial with their stance being reflective of the general trend against those formulae. At the UNCLOS III, Lebanon supported the abolishment of the ‘exploitability’ criterion so as to leave as much of the seabed as possible to the ISA, which was due to be established.186 In a similar vein, Egypt deemed the ‘depth’ and ‘exploitability’ criteria inadequate for the continental shelf delimitation and supported the ‘distance’ criterion.187 Syria also endorsed the establishment of the ‘distance’ criterion and supported the proposal that continental shelf and EEZ should have the same status, as well as that the continental shelf should not extend beyond 200 nm.188 Turkey acknowledged the importance of the continental shelf despite the emergence of the EEZ concept and stated that jurisdiction within these two zones should be complementary.189 Notably, this position is the predominant one in contemporary law of the sea, having also been affirmed by international jurisprudence.190 Nonetheless, the Turkish delegation insisted on the natural prolongation criterion, contrary to the main trend favouring the ‘distance’ criterion, in light of its dispute with Greece as to whether the Aegean islands may generate a continental shelf of their own.191 Greece submitted draft articles on the continental shelf, which mirrored the 1958 Geneva Convention on the Continental Shelf provisions, additionally including a clause recognising the capacity of islands to generate a continental shelf of their own.192 Further, in line with the Turkish view, the Greek delegation stressed that the continental shelf concept, despite the appearance of the EEZ, should be maintained, but the ‘exploitability’ criterion should be substituted by more precise criteria such as depth and breadth. Even though Cyprus did not take active part in the discourse on the matter, it is worth mentioning that in 1974, while the UNCLOS III was underway, it enacted a law regulating the continental shelf regime referring to the depth and exploitability criteria.193 The East Med states’ agreement on the revocation of the ‘exploitability’ criterion reflects the conclusions of UNGA Res 2574 A (XXIV) (1969), which had acknowledged the ambivalence of the particular criterion and the need for its revision. The ICJ confirmed that the ‘exploitability’ test had rendered the definition of the outer limits of the continental shelf vague, and Article 76(1) eventually discarded it in favour of the ‘distance’ criterion.194 CONCLUSION

In sum, all East Med states supported the continental shelf concept, while they also advocated the elimination of the ‘depth’ and ‘exploitability’ criteria for the determination of the outer limits of the continental shelf in favour of the

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‘distance’ criterion due to the vagueness and uncertainty that these criteria generated. A few years later, the continental shelf proved to be lucrative for the East Med states following the discovery of hydrocarbons in the seabed and subsoil of the region.195

2.3.3 Exclusive economic zone196 INTRODUCTION

Very much associated with the continental shelf ‒ although a distinct maritime zone ‒ is the EEZ concept. The origins of the EEZ can be traced back to the Truman Proclamation on fisheries, whereby the USA asserted jurisdiction over portion of the high seas in order to protect and exploit fishery resources.197 Bearing this in mind, it should be stressed from the outset that fishing is ‘at the heart of the EEZ’, while the coastal state does not have plenary powers there, but only sovereign rights and jurisdiction.198 In the aftermath of the Truman Proclamation, Argentina claimed the seabed and subsoil as well as the superjacent waters as part of its ‘epicontinental sea’.199 In 1947, Chile and Peru asserted sovereignty over the continental shelf and the sea waters adjacent to their coasts up to 200 nm with a view to sufficiently managing the natural resources in those waters200 and to protecting their whaling industry from distant water fishing fleets,201 but with no intention to maintain a 200-nm territorial sea.202 Chile, Peru and Ecuador endorsed this practice through the 1952 Declaration of Santiago, whereby they explained that the proclamation of a 200-mile zone was dictated by the fact that these states possess a narrow continental shelf,203 as well as by those states’ efforts to protect their fishery resources from long-distance fishing fleets.204 The growing trend prior to and after both the UNCLOS I and II towards the extension of coastal state jurisdiction over the sea space adjacent to their shores facilitated the universal acceptance of the concept. In 1972 the Declaration of Santo Domingo defined the territorial sea breadth at 12 miles and promulgated the ‘patrimonial sea’ notion referring to a maritime zone extending beyond territorial sea less than 200 miles.205 The actual term ‘exclusive economic zone’ was introduced for the first time in the Yaoundé Conclusions adopted in 1972 by 16 African states, which sought to attain exclusive jurisdiction over the living resources of the sea and their conservation,206 and it was the result of a combination of the exclusive fisheries zone and the ‘patrimonial sea’ concepts.207 Following the issuance of the particular document, Kenya and other African states submitted proposals to the Seabed Committee, which condoned the Yaoundé principles.208 The Organization of African Unity also advocated the EEZ notion through the Addis Ababa Declaration (1973), while the Non-Aligned Movement adopted a resolution supporting EEZ in 1973.209 By and large, the EEZ is a ‘multifunctional’ zone where the interests of the coastal state are accommodated with the freedom of the high seas, after a

The law of the sea conferences 25 trade-off achieved at the UNCLOS III in an effort of the maritime powers to stave off the expansionist claims of developing states.210 It should not escape notice, though, that the freedom of the high seas exercised in the EEZ by other states according to Article 58(1)(2) LOSC has a more limited scope and is subject to the coastal state’s jurisdiction under the LOSC: In exercising their rights and performing their duties under this Convention in the exclusive economic zone, States shall have due regard to the rights and duties of the coastal State and shall comply with the laws and regulations adopted by the coastal State …211 As a result, the freedom of the seas does not apply to the same extent as in the high seas, given the restrictions enshrined in the EEZ regime, namely the ‘due regard’ obligation of foreign states in the exercise of their rights in the EEZ of another state and the capacity of the coastal state to regulate fishing, construction of installations and the performance of marine scientific research in its EEZ. This is why the EEZ is called ‘sui generis’, because it is neither part of the territorial sea nor of the high seas.212 However, the EEZ is closely interrelated to the continental shelf,213 and thus the provisions of the continental shelf regime apply mutatis mutandis to the EEZ seabed and subsoil on the authority of Article 56(3) LOSC. But, contrary to what appertains to the continental shelf, which inherently belongs to a coastal state and therefore no declaration is necessary, the EEZ must be proclaimed so as to come into being.214 Furthermore, it is important to highlight that declaration of an EEZ does not entail absorption of the continental shelf, as although there can be a continental shelf without an EEZ, there cannot be an EEZ without a continental shelf.215 Although there was a tendency during the UNCLOS III supporting merger, this separation was upheld in the LOSC due to the insistence of the ‘broad-margin’ states, namely those which can claim continental shelf rights beyond 200 nm.216 An important clarification must be made with respect to the legal regime governing the EEZ. As mentioned above, in that zone – as in the continental shelf ‒ the coastal state does not enjoy sovereignty but sovereign rights, which are of lesser legal weight, and jurisdiction, which is more limited than the latter.217 Nonetheless, Articles 56 and 73 LOSC, as well as customary law,218 provide the coastal state with the authority to take enforcement measures in order to safeguard its rights over offshore living natural resources,219 while the fact that the EEZ concept is deemed part of customary international law entails that even non-parties to the LOSC may invoke it. 220 In any case, the right of a coastal state to unilaterally declare an EEZ or to merely use some of the rights contained in that notion cannot be prevented.221 Lastly, regardless of the confusion surrounding continental shelf delimitation, EEZ limits are defined solely by the ‘distance’ criterion without any reference to natural prolongation, rendering delimitation a simpler task.222

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THE EAST MED STATES’ POSITIONS

As it had not been shaped before the 1970s, the legal regime of the EEZ was discussed only at the UNCLOS III. From the outset, the majority of East Med states declared their support for a 200-mile EEZ (Egypt, Greece, Lebanon and Cyprus).223 Nevertheless, as the freedom of the seas had a prominent position on those states’ political agenda, some of them were reluctant to accept the new zone unreservedly. Soon enough, the states under concern realised that the new zone would be of much benefit to them. Israel asked for clarification on the economic activities that would be permitted within the EEZ in narrow seas such as the Mediterranean and drew attention to the importance of preserving the freedom of the high seas and fishing rights therein.224 Being a traditional seafaring nation,225 Greece was also interested in preserving the freedom of navigation; hence, it submitted a proposal at informal meetings for the observance of the freedom of the seas within the EEZ and the protection of coastal states’, as well as of other states’ rights in this zone.226 Along with Israel, Turkey and Lebanon were concerned lest the EEZ would hamper the freedom of the seas,227 given the narrowness of the sea washing their coasts. The Lebanese government was of the opinion that EEZ in the Mediterranean would be meaningless owing to the small width of the marine domain and, although accepting in principle the new zone, opposed the exercise of police powers by the coastal states therein and proposed the replacement of the EEZ by a contiguous fishing zone, which would be more acceptable.228 CONCLUSION

Eventually, the East Med states’ concerns about the maintenance of the freedom of the seas in the new zone were adequately accommodated by the LOSC (Part V). On the whole, the East Med states did not take any initiatives concerning the introduction and establishment of the EEZ, as they had done with respect to other law of the sea topics. They merely expressed their positions on the submitted proposals and, in the end, in spite of their initial scepticism, they backed the then newly emerged maritime zone. The support of the East Med states to the EEZ concept is aptly illustrated by the fact that all ‒ except for Greece ‒ have declared an EEZ (Turkey only in the Black Sea) and ‒ except for Greece and Syria ‒ have penned EEZ boundary delimitation agreements.229 CONTEMPORARY DOMESTIC LEGISLATION (CONTINENTAL SHELF AND EEZ)

Turkey Even though Turkey had voted against the LOSC, a few years later, in 1986, it declared a 200 nm EEZ in the Black Sea ‒ but not in the Aegean and the Mediterranean Seas230 ‒ embodying to a great extent the provisions of Part V LOSC in its legislation. In particular, the Decree 86/11264 envisages that Turkey has exclusive sovereign rights for the exploration and exploitation of the natural resources in its continental shelf/EEZ, for the construction of artificial

The law of the sea conferences 27 islands, installations and structures, for the conduct of marine scientific research and for protection and preservation of the marine environment; the freedoms of the high seas shall be applied in the Turkish EEZ as long as their exercise is in compliance with the legislation and practice of Turkey.231 As regards delimitation agreements, the Decree makes reference to the use of equitable principles with a view to achieving equitable solutions through negotiations ‒ a long-running Turkish view ‒ and that previous agreements concluded by Turkey in the Black Sea shall not be affected.232

Greece The other state not having proclaimed an EEZ in the East Med is Greece owing to the Aegean conflict with Turkey. Notably, in 1976 the European Council gave the opportunity to member states to extend their fishing zones, but this measure was not applied in the Mediterranean; therefore, even after Greece’s accession to the then EEC (1981) this decision could not have been implemented.233 In virtue of Law 2289/1995, as amended by Law 4001/2011, Greece restates that it has sovereign rights over the continental shelf and in the EEZ (once declared). Greece remains committed to the median/ equidistance line principle, stressing that in the absence of a delimitation agreement the outer limit of its continental shelf and EEZ (once declared) is the median line.234 Article 12(12) of the Law 2289/1995 regulates the regime of installations used for exploration and exploitation of hydrocarbons and safety zones designated around them and paragraph 13 of the same article assimilates installations and safety zones to territory. It should be noted that this stance appears to be excessive, as safety zones of a maximum breadth of 500 metres cannot be deemed part of the coastal state’s territory. Their establishment merely affords the coastal state jurisdiction limited to taking measures for the safety of both navigation and the installations around which the zones are situated.235 An Arbitral Tribunal under Annex VII LOSC followed a restrictive interpretation of the LOSC relevant provisions stressing that the rights accorded to the coastal state by the Convention as regards safety zones anyway ‘go beyond its rights in the EEZ at large’.236 Moreover, integration of offshore installations into the coastal state’s territory is expansive since the latter does not enjoy sovereignty over those constructions, because they are situated on the continental shelf where the coastal state has merely sovereign rights and jurisdiction; hence, only laws related to the functions of those edifices can be enforced.237 Even though the exact scope of legislation applicable to installations has not been determined and although many activities related to the functions of the installation may be included, it is certain that a coastal state is not entitled to impose the entire spectrum of its legislation on installations. For the same reasons, paragraph 13 of Article 12 setting forth that the Greek legislation applies on installations and safety zones ‘in general’ is equivocal. By virtue of Article 60 LOSC, the coastal state’s jurisdiction over safety zones and installations regarding the application of its legislation is circumscribed, and thus the coastal state cannot enforce the full gamut of its legislation therein, save those laws pertinent to the purpose of

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installations and safety zones. Probably, it would have been more accurate if the Law provided for the implementation of ‘all applicable legislation’ or ‘all laws related to the function or purpose’ (of installations and safety zones).

Egypt Following the UNCLOS I, where Egypt had actively participated as one of the constituent states of the United Arab Republic (the other being Syria), the government incorporated the core provisions of the 1958 Continental Shelf Convention in the domestic legal order, demonstrating its adherence to the then newly established regime of the continental shelf. Nonetheless, the relevant Presidential Decision mentions that Egypt asserts sovereignty rather than sovereign rights over the continental shelf,238 which is an expansive position contrary to international law. There is a possibility that the Decision has not been translated accurately. As seen above, upon the ratification of the LOSC, Egypt issued a declaration concerning the EEZ, without setting limits, and, together with Morocco, became the first Mediterranean states to pursue their rights in the particular zone.239 Whereas Egypt has not enacted any legislation declaring an EEZ, it is argued that the aforementioned declaration, paired with the signing of an EEZ delimitation agreement with Cyprus in 2003, could be deemed actions equivalent to the proclamation of an EEZ.

Israel In the same vein, the EEZ delimitation agreement with Cyprus in 2010 arguably marked the declaration of an EEZ on the part of Israel, although it is supported that a subsequent declaration of EEZ is necessary in order for the delimitation agreement to be opposable against third states.240 Be that as it may, it is submitted that the conclusion of a delimitation agreement is a stronger indication for the existence of an EEZ than a unilateral declaration. Additionally, Israel transmitted the coordinates for its EEZ to the UN following the delimitation agreement.241 It should be noted that by sending coordinates to the UN, Israel followed the procedure envisaged in Article 75(2) LOSC concerning the deposition of coordinates, even though Israel is not a party to the Convention and no reference to the said provision was made. Nonetheless, this is another sign illustrating Israel’s willingness to act in conformity with international law and in line with the LOSC provisions, even if they are not part of customary international law like Article 75(2) LOSC. The Israeli (as well as the Turkish and Syrian) example verifies that a state which is not a party to the LOSC is not precluded from claiming an EEZ, owing to the concept’s customary character, and/or signing EEZ delimitation agreements. Israel had also long before accepted and incorporated the continental shelf notion in its internal legislation but considers this area as part of the territory of the state,242 a viewpoint not compatible with international law.

Syria Likewise, Syria, despite the fact that it is not a party to the LOSC, uses the EEZ notion. Therefore, it proclaimed a 200 nm EEZ in 2003 and attributed the responsibility to protect the state’s exclusive rights therein to the Ministry of Defence,243 an action alluding to Syria’s security concerns and restrictive policy.

The law of the sea conferences 29 According to the pertinent legislation echoing the LOSC and customary international law, the Syrian state enjoys exclusive sovereign rights over the natural resources of the continental shelf/EEZ and jurisdiction concerning the establishment of artificial islands, installations and structures.244 Further, for the laying of cables and pipelines in the Syrian continental shelf/EEZ, as well as the establishment of artificial islands, installations and structures, the granting of a permit by the government is necessary.245 It is noteworthy that Article 26 of the Law gives the geological definition of the continental shelf without mentioning its maximum claimed breadth. In addition, Article 29 of the Law assimilates artificial islands, installations and structures with the continental shelf, which is a broad interpretation and, as seen earlier, is at variance with international law. The Law also regulates the conduct of marine scientific research in the territorial sea and the continental shelf/EEZ of Syria.246 Finally, the law does not encompass any clause on maritime delimitation.

Lebanon On the authority of Law 163/2011, Lebanon has declared a 200 nm EEZ claiming sovereign rights over the natural resources of the seabed and subsoil, as well as over those found in the superjacent water column.247 Article 6 of the Law stresses that the Lebanese EEZ extends westward as far as the equidistant point between Lebanon, Cyprus and Syria on the one hand and Lebanon, Cyprus and Palestine on the other, without mentioning Israel. Additionally, Decree 6433/2011 defined the EEZ outer limits,248 in light of the maritime dispute with Israel.249 The Law also provides for a 200 nm continental shelf over which Lebanon has exclusive sovereign rights for the exploration of living and non-living natural resources, as well as jurisdiction for the construction of artificial islands, installations and structures. It is also envisaged that the Lebanese government has the authority to set the conditions for the laying of cables and pipelines on the continental shelf; the exploitation of natural resources should be conducted in compliance with Lebanon’s obligations with respect to the protection of the environment, while the government of Lebanon encourages marine scientific research.250 In general, the provisions of the law on the continental shelf/EEZ embody the pertinent LOSC provisions and reflect Lebanon’s long-standing positions on security and protection and preservation of the marine environment.

Cyprus Cyprus has been very active in terms of continental shelf/EEZrelated matters owing to the discovery of hydrocarbons in its seabed and subsoil. It proclaimed a 200 nm EEZ in 2004 and in 2014 amended and updated its continental shelf/EEZ laws, which enshrine the provisions of Parts V and VI LOSC.251 In respect of continental shelf/EEZ delimitation, Cyprus, upholding its long-standing position, claims that, pending agreement, the outer limit of its continental shelf/EEZ is the median/equidistance line.252 The Law regulates exploration and exploitation activities regarding both living and non-living resources in the continental shelf/EEZ, setting penalties for wrongdoers.253

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As to the provisions on regulating fishing activities, they should be interpreted in conjunction with EU law given that the Union has exclusive competence over fisheries in the EEZ of its member states; hence, fishing is addressed solely by the CFP. At this juncture, although it is not directly germane to the Law, it should be pointed out that the EU’s exclusive competence on fisheries entails that member states have been stripped of the capacity to conclude international fishing agreements.254 Accordingly, fishing in ‘Union waters’ by vessels from third countries should be governed by agreements concluded between the EU and third states, without any involvement of the member states as such.255 Article 7(2) of the Law providing for the imprisonment of the persons exploring and/or exploiting the living resources in the Cypriot EEZ without permission is in contravention of Article 73(3) LOSC, which explicitly prohibits imprisonment in case of breach of fisheries laws and regulations in the EEZ, unless there are specific agreements in place.256 In any case, since the CFP supersedes any member state legislation on fisheries, the provision under concern should remain inapplicable. On the contrary, there is no such limitation in the LOSC in terms of violation of domestic legislation regarding non-living resources, and therefore imprisonment stipulated in Article 8(2) is not contrary to the Convention. What is more, the Law requires the granting of licences for the laying of cables/pipelines, as well as the construction of installations related to pipelines/cables within those zones.257 Given that Article 79(1) LOSC acknowledges the freedom of all states to lay submarine pipelines and cables on another state’s continental shelf, depending on the case, the permit precondition may be incompatible with the Convention. The rule is that every state is entitled to lay submarine pipelines and cables, subject to limitations set by the Convention (Articles 58(3) and 79(2)(3) LOSC). Since the said limitations are an exception to the rule, any measures taken by the coastal state should not lead to an unreasonable prohibition of the aforementioned freedom envisaged in Article 79 LOSC, which is applicable to the EEZ perforce Article 56(3) LOSC. As a matter of fact, Cyprus has enacted Regulations on the laying of cables and pipelines providing for very specific conditions according to which the government of Cyprus may withhold consent (most notoriously the catchall ‘national security’ clause), in essence rendering prohibition of laying pipelines and/or cables unlikely.258 It is argued that cables and pipelines should not be treated in the same way, as Article 79 LOSC requires state consent for the delineation of the course only of pipelines, not cables. It may be the case that, even though there is a provision in the domestic legislation of Cyprus requiring a licence, in practice such a clause will not impede any laying unless there are reasons to do so according to the LOSC. Therefore, if there is no intention to restrict this freedom, it would be better if those ‘licencing’ provisions were replaced by others stipulating consultation, notification and cooperation in good faith instead.259 Article 8B(2) of the Law deals with implementation of the Cypriot legislation on the continental shelf/EEZ, including installations. The Law sets forth that:

The law of the sea conferences 31 In the exercise of the sovereign rights and jurisdiction of the Republic in the Exclusive Economic Zone and the Continental Shelf, in accordance with this Law and international law, the provisions of any law in force in the Republic shall apply. Although this clause creates ambiguity (‘any law … shall apply’), it nevertheless inserts a qualification (‘in the exercise of the sovereign rights and jurisdiction’), which seems to narrow the scope of the legislation to be applied on installations. On the other hand, paragraph 3 of Article 8B is in compliance with international law, since it confines the application of the laws regarding safety zones to those concerning safety of navigation and protection of the constructions therein.260 Moreover, the Law authorises the Council of Ministers to make regulations on, inter alia, the protection of the marine environment, fishing, marine scientific research and the laying of submarine cables and pipelines.261 Cyprus has also extended its jurisdiction regarding protection of underwater cultural heritage (‘UCH’) on its continental shelf/EEZ. According to Part IIIA of the Antiquities Law, any antiquities found on the continental shelf/EEZ of Cyprus belong to the state and no person is allowed to remove those or make excavations without a permit.262 Jurisdiction over UCH beyond 24 nm has been a source of controversy among the members of the international community. Notwithstanding the fact that through the particular legislation Cyprus purports to meet the general obligation to protect UCH, as envisaged in Article 303(1) LOSC, and this could be a welcome approach de lege ferenda as it does not seem to hamper the freedom of the seas,263 the Cypriot legislation on this matter is not in compliance with international law as it stands.264 Nevertheless, it is argued that such an extension would be ‘possible between states having enacted similar legislation for similar zones’.265 Another solution would be the conclusion of pertinent agreements between neighbouring states in light of the commitment of the East Med states to protecting UCH expressed in trilateral declarations issued over the last few years.266

2.3.4 Regime of islands INTRODUCTION

The regime of islands has always been critical in the law of the sea ambit. The Basis of Discussion No 12, set out at the 1930 Hague Conference, and Article 10(2) 1958 Convention on the Territorial Sea and Contiguous Zone provided islands with a territorial sea of their own, while Article 1(b) 1958 Convention on the Continental Shelf recognised the capacity of islands to have a continental shelf, a rule deemed part of customary international law.267 It should be borne in mind that the effect of islands on a maritime boundary may be diminished, not because they are islands, but due to possible distortions they might create, even though there is no rule ‘on the extent to which the influence of offshore islands should be reduced’.268 In any case, it is established that the maritime space

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granted to islands should not be less than the territorial sea breadth since territorial sea claims prevail over any continental shelf/EEZ rights of another state.269 The particular topic is of special importance to the East Med owing to the existence of hundreds of islands in the Aegean Sea, as well as to the fact that Cyprus is an island state. During the law of the sea conferences, the crux of the matter was whether islands should be put on an equal footing with continental lands in terms of their entitlement to maritime rights. Greece and Cyprus took pains to entrench this opinion, whereas Turkey disagreed because had that position been conceded, Turkey’s maritime space in the Aegean and the Eastern Mediterranean Seas would have drastically been trimmed owing to the presence of the Aegean islands belonging to Greece and the island of Cyprus. THE EAST MED STATES’ POSITIONS

As expected, the regime of islands was a ‘bone of contention’ between Turkey and Greece at the UNCLOS III. Over the course of the deliberations, Turkey ‒ invoking the natural prolongation criterion ‒ argued that in some regions (implying the Aegean) islands rest on the continental shelf of another state and that islands should be deemed ‘special circumstances’ in respect of maritime delimitation.270 As a matter of fact, the 1958 Geneva Conventions make reference to ‘special circumstances’ affecting territorial sea and continental shelf delimitation without defining which those circumstances are.271 Subsequent case law considered unstable islands, navigable channels, traditional access to fisheries, oil wells as circumstances necessary to be taken into account in delimitation. The ILC contemplated the possibility of considering islands as ‘special circumstances’ with respect to continental shelf delimitation.272 On the other hand, Greece submitted proposals aimed at consolidating the view that islands should be on the same footing as continental territories.273 The Greek government stressed that islands form an integral part of its territory and, thus, are entitled to maritime zones of their own as a matter of sovereignty.274 For the sake of clarity, it must be noted that Turkey recognised, in principle, that islands form part of the territory of a state and, hence, have a continental shelf of their own, but sought clarification on the applicable method in terms of the designation of the sea areas where the state would exercise its sovereign rights generated from islands.275 Even so, Turkey attempted to deny a continental shelf to islands with a certain location,276 namely the Greek islands in the Aegean Sea, so as to create some kind of regional deviation. According to Bolükbasi, ‘these islands are an incidental feature of the western coast of Anatolia, superimposed upon the area constituting seaward extension of that coast’.277 On the contrary, another Turkish scholar accepts that it is not clear whether the eastern Aegean islands are situated on the Turkish mainland’s prolongation and that the significance of geological factors in delimitation, especially in restricted areas such as enclosed or semi-enclosed seas, has declined.278 Being an island state, Cyprus repeatedly advocated equality between insular and continental lands, adding that island populations depend to a large extent on

The law of the sea conferences 33 279

maritime resources for their survival. Furthermore, the Cypriot delegate stated that the legitimate rights of islands were based on the principle of ‘the sovereign equality of all states’,280 a principle derived from Article 2(1) UN Charter. Turkey responded by submitting formal and informal draft articles stipulating that size, economic life and population were criteria for the allocation of marine areas to islands, repeating the claim that islands should be deemed special circumstances and, if they are situated in the economic zones or the continental shelf of other states, do not generate maritime zones of their own.281 Turkey and several other states encompassed the aforementioned claim in a joint proposal.282 Egypt merely referred to the regime of islands as being of ‘vital importance’ necessitating further discussion.283 When draft article 121 LOSC on the regime of islands was formulated, Cyprus expressed its satisfaction and stressed that it would not accept any changes to the agreed text.284 Greece kept the same stance and deemed the particular provision a ‘fundamental principle of international law’ ‒ as the said provision reflected the Greek approach.285 Turkey argued that this rule was contradictory to international law and to the draft articles concerning territorial sea, continental shelf and EEZ.286 What is more, Turkey noted that draft article 121 did not refer to the fact that islands constitute ‘special circumstances’287 and, owing to its failure to address the issue of the maritime space given to islands, which, according to Turkey, should be decided in conformity with equitable principles and relevant circumstances,288 the particular article should not be applied to islands situated in maritime areas to be delimited.289 For its part, Greece held the view that the regime of islands should not be linked to the maritime delimitation rules.290 It is noteworthy that because of the existence of numerous rocks and low-tide elevations in the Aegean Sea, Greece sought the deletion of paragraph 3 of draft article 121. On the other hand, Turkey opposed that view in light of its attempt to achieve the diminution of the capacity of islands to generate full maritime zones.291 At any rate, the argument that islands may be located on another state’s continental shelf did not gain steam and has been rejected by international jurisprudence.292 In particular, the allegation with respect to islands sitting on another state’s continental shelf, thus not being capable of generating their own continental shelf, has been rendered obsolete, following the denigration of geological and geomorphological considerations and the prevalence of the ‘distance’ criterion in delimitation, as well as the emergence of the EEZ concept, which is based solely on distance.293 However, it is rightly argued that the natural prolongation and the ‘distance’ criterion are not rules of delimitation, but principles of entitlement/bases of title. Eventually, insular territories have been placed on an equal footing with the continental lands in terms of their capacity to generate maritime zones,294 and the ICJ has crystallised that Article 121 LOSC on the regime of islands is part of customary international law in its entirety,295 thus putting an end to the long-standing debate as to the maritime rights of islands. Nevertheless, jurisprudence concerning the effect given to islands in delimitation cases is still equivocal and ‘the extent of this “equal” treatment is often

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disputed’, whereas in several instances islands facing longer continental coastal fronts have been granted diminished effect.296 In the now prevalent delimitation methodology, namely the ‘three-stage approach’,297 islands can be used both at the first stage as instruments for the drawing of a provisional line and at the second stage as a relevant circumstance calling for an adjustment of the provisionally drawn equidistance line.298 In any case, it seems that international courts and tribunals take into consideration a range of relevant circumstances in order to determine the effect to be given to islands in delimitation and they do not decide about their effect in isolation.299 Probably, the guiding principle should be the one provided by the ITLOS: [T]he effect to be given to an island in the delimitation of the maritime boundary in the exclusive economic zone and the continental shelf depends on the geographic realities and the circumstances of the specific case. There is no general rule in this respect. Each case is unique and requires specific treatment …300

CONCLUSION

It should be borne in mind that Egypt, Lebanon, Israel and Syria did not participate in the debates over islands owing to lack of interest, whereas Greece, Cyprus and Turkey were very active in view of the Aegean dispute and the insular character of Cyprus. On the one side of the spectrum, Greece and Cyprus supported that islands should be on an equal footing with continental lands in respect of their capacity to claim maritime zones and their effect on delimitation. On the other side of the spectrum, Turkey endeavoured to reduce islands’ maritime rights, attempting to characterise them as ‘special circumstances’ in general. Given the seriousness of the matter, no change in the posture of Greece, Cyprus and Turkey has since occurred and these states have kept sparring over the regime of islands. Considering the recent developments in the region, it could be said that Egypt, Lebanon and Israel have accepted the capacity of islands to generate full maritime zones and have full effect on maritime boundaries ‒ at least in the geographical context of the East Med ‒ as evinced by the EEZ delimitation agreements based on the median line they have signed with Cyprus.301

2.3.5 Enclosed and semi-enclosed seas302 INTRODUCTION

Given that the Aegean Sea is a semi-enclosed sea with special characteristics,303 the above matter preoccupied Turkey and Greece during the UNCLOS III. Being interconnected with the matters of islands and territorial sea breadth, the regime of enclosed and semi-enclosed seas held a prominent position in the deliberations in general and among the East Med states in particular. Apart from

The law of the sea conferences 35 Greece and Turkey, Israel was also interested in this topic due to its apprehension over the legal framework governing the narrow waters of the Gulf of Aqaba. THE EAST MED STATES’ POSITIONS

Turkey sought to achieve derogations in the implementation of general rules of international law in enclosed and semi-enclosed seas,304 requesting negotiations prior to the exercise of any rights therein, including exploration and exploitation of natural resources,305 appealing to equity and relevant/special circumstances so as to justify its claims.306 Nonetheless, the ICJ has resolved that equity is not a delimitation method, but merely an aim one should heed while designating a delimitation line.307 Although maritime delimitation requires the conclusion of a bilateral agreement in order to be opposable to other states,308 there is no limitation upon coastal states’ right to extend their territorial sea up to 12 nm under Article 3 LOSC in enclosed and semi-enclosed seas. Besides, Article 123 LOSC employs hortatory language and does not include cooperation on the exploitation of non-living resources.309 According to the Turkish view, any extension of the territorial sea breadth by one of the states bordering a narrow sea would upset the existing balance,310 alluding that way to the situation in the Aegean Sea. In addition, Turkey argued that such expansion would have constituted an abuse of rights as provided in Article 300 LOSC.311 Be that as it may, the framework of the particular notion is restricted to relations between states parties to the LOSC, to the effect that non-states parties ‒ such as Turkey ‒ cannot rely upon it.312 On this point the Tribunal in the Chagos Archipelago case stated: ‘[W]ith respect to Article 300 and the abuse of rights, the Tribunal agrees with the Parties that a claim pursuant to Article 300 is necessarily linked to the alleged violation of another provision of the Convention.’313 It is also maintained that the Convention’s provisions on cooperation in enclosed and semi-enclosed seas are applicable only as between states parties to LOSC,314 and hence do not apply in the Aegean Sea between Greece and Turkey. For its part, Israel stressed that semi-enclosed seas required special treatment since what was suitable for the wide oceans would not be appropriate for narrower seas and thus the new convention should be adaptable to the peculiarities of each region.315 It can be inferred that Israel’s approach was linked to its concerns that its access to the high seas would be impeded if the other Arab states bordering the Aqaba Gulf extended their maritime zones. This can be ascertained by the fact that Israel had not been negative in abolishing the semi-enclosed seas provisions, so long as the freedoms pertaining to straits were to be applied in narrow seas.316 As far as Greece was concerned, it opposed the introduction of the semi-enclosed seas notion in the Convention because there was no clear definition of it. The Greek delegation expressed the opinion that the draft articles under discussion at the time adequately covered those seas and no exceptional regime should be established.317 Furthermore, Greece, in contradiction to Turkey, held the view that each state has the discretion to fix its territorial sea breadth in a semi-enclosed sea in conformity with international law and no

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deviation to this principle could be conceded.318 Cyprus, although it had initially expressed its opposition to the inclusion of the concept in the Convention as it would, so the Cypriot argument went, lead to fragmentation, recognised the need for cooperation in enclosed and semi-enclosed seas and later accepted the agreed provisions on this topic.319 Concerning attempts at achieving divergences from the general rules in enclosed and semi-enclosed seas, it is contended that no additional rights should be afforded to states bordering enclosed and semi-enclosed seas, nor should any further limitations be imposed upon them.320 A Turkish author admits that the LOSC provisions applicable to enclosed and semi-enclosed seas are confined solely to encouraging coastal states to cooperate over living marine resources,321 whereas such exhortations do not extend to non-living natural resources.322 Echoing the mandate given by Resolution 3067 (XXVIII) the LOSC Preamble envisages that ‘the problems of the ocean space are closely interrelated and need to be considered as a whole’, while this is also reiterated every year in the UN General Assembly’s annual resolution on the law of the sea.323 The UN Secretary-General clarified the international community’s stance on the universal application of the Convention excluding region-dependent derogations: It is the Secretary-General’s belief that the rights and obligations under UNCLOS should not be region-dependent and that no additional conditions on the enjoyment by States parties of rights provided by UNCLOS should be imposed. Furthermore, States parties to UNCLOS are bound to refrain from taking actions that would prevent another State party from enjoying its rights under its provisions. UNCLOS was not negotiated to correct geographical circumstances.324 CONCLUSION

Against the background of the Aegean Sea and the Gulf of Aqaba disputes, Greece, Turkey and Israel showed particular interest in this matter. Despite efforts by Turkey and Israel to introduce divergences in relation to the application of general international law in enclosed and semi-enclosed seas, the LOSC does not condone this approach. These disparate positions on the topic reveal the attempt of Turkey and Israel to restrict certain activities in such areas in order to safeguard their interests. While, following the extension of the territorial sea limit to 12 nm, this predicament has been solved in the Aqaba Gulf, Turkey still maintains the view that there should be deviations in the implementation of international law in the Aegean Sea.

2.3.6 Maritime boundary delimitation325 INTRODUCTION

One of the fundamental, albeit controversial, issues of the law of the sea is maritime delimitation. The East Med states played an active role during the discourse

The law of the sea conferences 37 on the matter as the narrowness of the regional sea, as well as the ambiguity surrounding the applicable methods and the factors to be taken into account create serious predicaments concerning maritime delimitation. Arduous negotiations took place during the UNCLOS III on maritime delimitation and the East Med states found themselves in opposite camps. As regards territorial sea delimitation, its limited extent and the lesser resource probabilities made it easier to apply the median/equidistance line method there;326 this is reflected in Article 15 LOSC and forms part of customary international law.327 In terms of continental shelf delimitation, the 1958 Geneva legal regime favoured, in principle, the median/ equidistance line. The 1958 Continental Shelf Convention (Article 6) provides for delimitation based upon agreement and failing an agreement, and ‘unless another boundary line is justified by special circumstances’, the median/equidistance line principle was to be applied. The ICJ in the North Sea cases resolved that the use of the median line in continental shelf delimitation was not mandatory, although the Court recognised the median line as the most certain and equitable method in delimiting the continental shelf of states with opposite coasts. The Court also introduced the equitable principles/relevant circumstances concept for the first time,328 notwithstanding that no discernible ‘equitable principles’ occurred in subsequent delimitation cases329 and equitable principles are merely guidelines without setting forth any clear-cut obligations. According to the definition given by the ICJ presented by Kwiatkowska: [T]he doctrine of equitable principles is the fundamental norm of customary international law governing maritime boundary delimitation by agreement, in accordance with equitable principles, taking account of all relevant circumstances, so as to arrive to an equitable result.330 In other words, the equitable principles notion places emphasis on the outcome of the delimitation procedure rather than the method to be utilised.331 THE EAST MED STATES’ POSITIONS

Given this uncertainty, the UNCLOS III had to deal with a ‘Gordian knot’ and at the same time satisfy variant positions. Turkey and Syria advocated delimitation according to equitable principles,332 whereas Cyprus and Greece were proponents of the median/equidistance line.333 These states were active members of the ‘pro-equity’ and ‘pro-median line’ groups respectively, which formed Negotiation Group 7 addressing delimitation matters.334 Israel followed a ‘bridging’ approach stressing that delimitation should be effected according to equitable principles, but also having regard to the median/equidistance line and special circumstances,335 while Egypt and Lebanon did not express any position on the matter. Turkey presented a draft article on territorial sea delimitation where it restated its preference for the application of equitable principles over the median line, which was merely one of the many delimitation methods ‒ a position

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promulgated earlier by the ICJ336 ‒ stating also that the mere existence of islands constitutes a special circumstance.337 This is a departure from the 1958 Geneva Conventions rationale whereby islands were to be deemed special circumstances only if they would be a source of inequity.338 Moreover, the Turkish delegation, either on its own or together with other delegations (including Syria), introduced formal and informal proposals on the delimitation of the continental shelf and the EEZ, suggesting that the geomorphological structure, the general configuration of the coasts and the existence of islands, as well as ‘relevant circumstances’ should be taken into consideration.339 As the Conference did not endorse these positions, Turkey declared at the end of the UNCLOS III that it was not bound by the rules stipulated in Articles 74 and 83 LOSC on delimitation and maintained its position for delimitation following negotiations on the basis of equity.340 Over recent years, Turkey seems to have abandoned the ‘natural prolongation’ argument, advocating the application of equitable principles and special circumstances in semi-enclosed seas, in order to pursue delimitation between the continental lands of Greece and Turkey disregarding the Aegean islands.341 At this juncture, it should be pointed out that despite its commitment to equity, Turkey supported the median/equidistance line method in its delimitation agreements with Bulgaria and USSR in the Black Sea, also a semi-enclosed sea, while the ICJ did not deem the enclosed character of the Black Sea a factor in dictating the adjustment of the provisional equidistance line between Ukraine and Romania.342 On the other hand, Greece vehemently objected the ‘pro-equity’ group’s viewpoints and considered the ‘equitable principles’ notion subjective. The Greek delegation noted that the North Sea cases referred to continental shelf and not to territorial sea delimitation, while it recalled the Court’s position on the certainty the median line provided in terms of delimitation.343 Greece, in line with the 1958 Conventions, expressed the opinion that delimitation by means of a bilateral agreement should be the primary task, but failing such a compromise, the median/equidistance line should be used, owing to its objective character, which would protect smaller states’ interests against states invoking other vague criteria.344 Greece also suggested that ‘equity’ should be coupled with a compulsory judicial settlement procedure.345 The Cypriot delegation shared the Greek view and stressed the need for an effective compulsory dispute settlement apparatus, which would be essential for the implementation of the LOSC, especially as regards weaker states, in light of the ambivalent delimitation rules of the forthcoming convention.346 Cyprus championed the median line in case no agreement could be reached, urging for the introduction of objective criteria for delimitation.347 Cyprus was a co-sponsor, together with Greece and other states, of a proposal for the delimitation of the continental shelf and the EEZ in accordance with the median line method.348 From a perusal of Articles 74 and 83 LOSC, it can be seen that no delimitation method concerning the continental shelf/EEZ has been given any prevalence.349 It can be argued that the acceptance of these provisions was the result of a ‘zero sum game’ among the participants. These articles can be described as ‘neutral’,

The law of the sea conferences 39 lacking adequate substance, being the result of the drafters’ attempt to avoid controversy with respect to equidistance.350 As a result, international courts and tribunals have undertaken the daunting task of clarifying and implementing those vague rules.351 Hence, maritime delimitation law is mainly ‘judge-made’ law, but states have also contributed significantly to its development through their practice (i.e. delimitation agreements, pleadings submitted to international courts and tribunals). In general, international courts and tribunals seem to promote conflation of the ‘equidistance/special circumstances’ envisaged in Article 6 of the 1958 Continental Shelf Convention with the judicially developed ‘equitable principles/relevant circumstances’ approach,352 so as to produce a commonly acceptable continental shelf/EEZ delimitation method. Significantly, by conceding that equidistance may also lead to an equitable result, international jurisprudence affirmed the customary character of Article 6 of the 1958 Continental Shelf Convention concerning continental shelf/EEZ delimitation.353 It should also be pointed out that ‘more clarity and predictability were brought about by case law’ applying the equidistance principle,354 given the uncertainty stemming from the ICJ’s interpretation of equity in the North Sea cases,355 while the distance criterion seems to give preference to the equitable method of the median/equidistance line.356 In any case, an initial claim based on median/equidistance line would be in conformity with the obligation to act in good faith.357 Brown highlights the confusion created by the North Sea cases, mentioning that the particular decision undermined the equidistance principle, gave prevalence to the vague equitable principles concept at the expense of the more limited notion of special circumstances, and broadened the ambit of considerations taken into account in applying equitable principles, thus generating uncertainty.358 Nevertheless, despite the fact that the median/equidistance line has been the starting point as regards maritime delimitation cases since 2009 (at least nominally), international jurisprudence over recent years seems to have been drifting towards the equitable principles method again.359 CONCLUSION

Maritime boundary delimitation has been one of the most significant topics for the East Med states given the crucial role of delimitation in respect of maritime activities, including hydrocarbon operations. Greece and Cyprus supported the median/equidistance line in order to make sure that their interests would be adequately safeguarded since they deemed this method objective. Conversely, Turkey (and to a lesser degree Syria), against the background of the Aegean dispute, advocated the equitable principles method with a view to taking advantage of its long coastline and achieving diminution of the effect of islands. Moreover, although Israel, Lebanon and Egypt did not take a firm position on the matter during the law of the sea conferences, they have accepted the median line method in the EEZ delimitation agreements they have concluded with Cyprus.360

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3 Conclusion The recent developments in the East Med (i.e. hydrocarbon discoveries) demonstrate how critical the implementation of the law of the sea rules is for the region and attest why this particular region deserves to be scrutinised under the prism of the law of the sea. Irrespective of the lack of a regulatory framework in the past, there is now a comprehensive legal apparatus, namely the LOSC, which, if properly applied, would afford the East Med states a unique opportunity to extract hydrocarbons unhindered and thus upgrade their economic and political status. Of crucial importance in terms of explaining their approach to the law of the sea is the examination of the positions held by the East Med states over the last century expressed during the international conferences on the law of the sea. Tracing the reasons underpinning the East Med states’ conduct in respect of maritime affairs facilitates the interpretation of their contemporary stance and enhances the endeavour to get a clear picture on the application of the law of the sea in the region. In general, the East Med states recognised the pivotal role the sea domain holds for them and, accordingly, they attached great importance to maritime issues. From the analysis made in this chapter, it can also be deduced that these states strongly advocated the freedom of the seas. However, they later attempted to accommodate the foregoing position with commercial concerns, especially in the aftermath of the extension of the coastal states’ rights and jurisdiction, through the expansion of the territorial sea limit and the establishment of the EEZ. All East Med states embraced the 12-mile limit, except for Greece and Turkey in the Aegean Sea. Turkey does not accept 12 nm as a rule applicable in the Aegean Sea, albeit claiming a 12-mile territorial sea in the Black and the Mediterranean Seas. Greece, despite its support of a 12-mile zone, has not to date expanded its territorial sea in the Aegean, retaining a 6 nm zone so as to stave off possible friction with Turkey. According to the examination undertaken above, all regional states supported the continental shelf notion despite some initial reservations from Greece and Turkey. A notable fact is the East Med states’ contribution to the abolishment of the ‘depth’ and ‘exploitability’ criteria regarding delimitation of the continental shelf in favour of the ‘distance’ criterion. Despite that, the majority of the regional states ‒ except for Egypt and Cyprus ‒ had doubts about the establishment of the EEZ, which is a zone solely based on distance. Potential impairment of the freedom of the seas was the source of scepticism for the part of Israel and Greece, whereas Turkey did not endorse the distance criterion in delimitation, insisting on natural prolongation. Eventually, all East Med states condoned the EEZ concept. Further, Greece and Cyprus strongly argued for the granting of full rights to islands in terms of their capacity to generate maritime zones, whereas Turkey fervently rejected that position. This chapter also reveals that different views were held on the application of the LOSC, as Turkey and Israel sought regional deviation from the general rules in enclosed and semi-enclosed seas, whereas Greece, Egypt and Cyprus supported universal application, which is

The law of the sea conferences 41 Table 1.3 Contemporary claims of the East Med states (after the UNCLOS III, 1982) States

Territorial Sea

Contiguous Zone

Continental Shelf

Exclusive Economic Zone

Cyprus

12 nm

200 nm

200 nm

Egypt Greece Israel Lebanon Syria Turkey

12 nm 6 nm 12 nm 12 nm 12 nm 6 nm (Aegean Sea) 12 nm (Black and Mediterranean Seas)

24 nm (archaeological zone) 24 nm ‒ ‒ 24 nm 24 nm ‒

200 200 200 200 200 200

200 nm ‒ 200 nm 200 nm 200 nm 200 nm (Black Sea)

nm nm nm nm nm nm

the position taken by the LOSC and reiterated by the UN Secretary-General. Within a volatile diplomatic situation in light of the Aegean dispute, Greece and Turkey found themselves in different camps in respect of delimitation methods and the regime of islands. Turkey, backed by Syria, favoured the equitable principles/relevant circumstances. On the other hand, Greece, along with Cyprus, advocated the median/equidistance line method. At the moment, Israel, Turkey and Syria have not become parties to the LOSC. Bearing in mind the growing importance of the rules enshrined in the Convention, these states should reconsider their stance on the matter. Besides, many of the LOSC substantive provisions have entered the customary law realm and are being used by and are binding upon these non-states parties too. The Turkish government has also accepted this position in a statement delivered at the Intergovernmental Conference on an international legally binding instrument under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction, where the Turkish delegate stressed that ‘Turkey’s position regarding UNCLOS cannot be construed as an objection to all its provisions’.361 Finally, one of the ways to trace and perceive a state’s stance on a variety of topics important to international law is by examining municipal law.362 Therefore, this chapter has also scrutinised the internal legislation of the East Med states governing certain core law of the sea issues in view of the positions these states held at the aforementioned international conferences.363 According to the findings of the preceding analysis, the East Med states’ domestic legislation concerning the law of the sea does not appear to be in full conformity with conventional and customary international law, with variant national interests and geopolitical developments being the main reasons for this. At any rate, the ‘litmus test’ for the legality of the measures taken is whether when applied they breach the rights of third states and/or the rights owed to the international community in its entirety. When examining these issues, one should bear in mind the appeal of the UN Secretary-General, who at times referred to the need for

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harmonisation of national legislation with the Convention and reminded states parties of their legal obligation to do so364 (recalling that any declarations or statements concerning the LOSC should not exclude or modify the legal effect of the pertinent provisions).365 Furthermore, the expansionist legislation of the East Med states in certain matters brings to mind the concerns raised by Ambassador Koh366 in this respect and displays the need for action in conformity with the Convention. In general, the incorporation of the majority of the LOSC provisions in the East Med states’ legal order (including Turkey, Syria and Israel), aside from corroborating the position that the Convention has universal application, also manifests the acknowledgement of the law of the sea rules by those states and their willingness to implement them.367

Notes 1 Nikolaos Ioannidis, ‘The Eastern Mediterranean States’ Approach to the Law of the Sea: Tensions and Trends’ (PhD thesis, University of Bristol 2017) Chapter 1. 2 Shabtai Rosenne (ed), League of Nations: Conference for the Codification of International Law [1930], Vols I‒IV (Oceana Publications 1975) 867–871. 3 L A Teclaff, ‘Shrinking the High Seas by Technical Methods: From the 1930 Hague Conference to the 1958 Geneva Conference’ (1961–1962) 39(5) UDLJ 660, 683. 4 ‘Report of the International Law Commission covering the work of its eighth session’ (23 April–4 July 1956) UN Doc A/3159. Reproduced in YBILC, Vol II (1956) 256; Robin R Churchill and Vaughan A Lowe, The Law of the Sea (3rd edn, MUP 1999) 15. 5 Convention on the Territorial Sea and the Contiguous Zone (signed 29 April 1958, entered into force 10 September 1964) 516 UNTS 205. 6 Convention on the High Seas (signed 29 April 1958, entered into force 30 September 1962) 450 UNTS 11. 7 Convention on Fishing and Conservation of the Living Resources of the High Seas (signed 29 April 1958, entered into force 20 March 1966) 559 UNTS 285. 8 Convention on the Continental Shelf (signed 29 April 1958, entered into force 10 June 1964) 499 UNTS 311. 9 Optional Protocol of Signature concerning the Compulsory Settlement of Disputes arising out of the Law of the Sea Conventions (signed 29 April 1958, entered into force 30 September 1962) 450 UNTS 169. 10 P C Jessup, ‘The United Nations Conference on the Law of the Sea’ (1959) 59(2) CLR 234. 11 M Sorensen, ‘The Law of the Sea’ (1957–1959) 32 IC 195, 253. 12 M M Whiteman, ‘Conference on the Law of the Sea: Convention on the Continental Shelf’ (1958) 52(4) AJIL 629, 659; see also A H Dean, ‘The Geneva Conference on the Law of the Sea: What Was Accomplished’ (1958) 52(4) AJIL 607. 13 For a more detailed analysis of the East Med states’ stance at the 1930 Hague Conference, as well as the 1958 and 1960 United Nations Conferences on the Law of the Sea, see Ioannidis (n 1) 34–40. 14 Audiovisual Library of International Law, ‘Status of the 1958 Geneva Conventions on the Law of the Sea’, http://legal.un.org/avl/ha/gclos/gclos.html.

The law of the sea conferences 43 15 Israel signed on 29 April 1958 and ratified on 6 September 1961. 16 Israel signed on 29 April 1958 and ratified on 6 September 1961; Lebanon signed on 29 May 1958; Cyprus acceded on 23 May 1988. 17 Israel signed on 29 April 1958 and Lebanon signed on 29 May 1958. 18 Israel signed on 29 April 1958 and ratified on 6 September 1961; Lebanon signed on 29 May 1958; Greece and Cyprus acceded on 6 November 1972 and on 11 April 1974 respectively. 19 Israel signed on 29 April 1958. 20 T Treves, ‘Historical Development of the Law of the Sea’ in Donald R Rothwell et al. (eds), The Oxford Handbook of the Law of the Sea (OUP 2015) 16; on the bindingness of customary international law, see Chapter 2, n 238. 21 Churchill and Lowe (n 4) 16. 22 E L Evriviades, ‘The Third World’s Approach to the Deep Seabed’ (1982) 11(3–4) ODIL 201, 208. 23 Yoshifumi Tanaka, The International Law of the Sea (2nd edn, CUP 2015) 25. 24 UNGA Res 2750C (XXV) (17 December 1970); S Rosenne, ‘The Third United Nations Conference on the Law of the Sea’ (1976) 11(1) ILR 1; James Harrison, Making the Law of the Sea (CUP 2011) 27–48. 25 Continental Shelf Convention (n 8) art 1; M Miyoshi, ‘Some Thoughts on Maritime Boundary Delimitation’ in Seoung-Yong Hong and Jon M Van Dyke (eds), Maritime Boundary Disputes, Settlement Processes, and the Law of the Sea (Martinus Nijhoff 2009) 117; Case concerning the Delimitation of Maritime Areas between Canada and the French Republic (1992) 31 ILM 1149, para 78. 26 The Seabed Committee became permanent a year later. UNGA Res 2467A (XXIII) (21 December 1968) para 1. 27 UNGA Res 3067 (XXVIII) (16 November 1973) para 3. 28 Donald R Rothwell and Tim Stephens, The International Law of the Sea (2nd edn, Hart Publishing 2016) 12. 29 Official Records of the Third United Nations Conference on the Law of the Sea, Vol III, A/CONF.62/29, para 9. 30 Official Records (n 29) Vol IX, A/CONF.62/62. 31 Myron H Nordquist, Shabtai Rosenne, Satya N Nandan (eds), United Nations Convention on the Law of the Sea 1982: A Commentary, Vol I (Martinus Nijhoff 1985) 92; ‘[informal negotiating groups] are the machinery through which much of the process of negotiation is carried on…’: B Buzan, ‘United we Stand: Informal Negotiating Groups at UNCLOS III’ (1980) 4(3) MP 183, 200; Ambassador Koh also praised the work of informal negotiating groups, considering them to be a forum where progress was more likely to be achieved: T T B Koh, ‘A Constitution for the Oceans’ in Nordquist et al. (n 31) 14. 32 S Rosenne and J Gebhard, ‘Conferences on the Law of the Sea’ in R Wolfrum (ed), The Max Planck Encyclopedia of Public International Law (Oxford University Press 2008, online edition) para 38, www.mpepil.com; on the freedom of the seas concept, see Hugo Grotius, The Freedom of the Seas or The right which belongs to the Dutch to take part in the East Indian trade (Ralph van Deman Magoffin tr, OUP 1916); A Reppy, ‘The Grotian Doctrine of the Freedom of the Seas Reappraised’ (1950) 19(3) FLR 243; R Baird, ‘Political and Commercial Interests as Influences in the Development of the Doctrine of the Freedom of the High Seas’ (1996) 12 QUTLJ 274; E Gordon, ‘Grotius and the Freedom of the Seas in the Seventeenth Century’ (2008) 16(2) WJILDR 252; M Young, ‘Then and Now: Reappraising Freedom of the Seas in Modern Law of the Sea’ (2016) 47(2) ODIL 165.

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33 Agreement relating to the implementation of Part XI of the United Nations Convention on the Law of the Sea (entry into force provisionally 16 November 1994 and definitively 28 July 1996) 1836 UNTS 3. 34 Nordquist et al. (n 31) 68–86. 35 Rothwell and Stephens (n 28) 13. 36 Churchill and Lowe (n 4) 22; for a general overview of the Convention and an account of the negotiations, see R R Churchill, ‘The 1982 United Nations Convention on the Law of the Sea’ in Rothwell et al. (n 20) 24–45; Harrison (n 24) 37–61. 37 UNGA Res 37/66 (3 December 1982); UNGA Res 38/59 A (14 December 1983). 38 Rosenne and Gebhard (n 32) para 45. 39 B H Oxman, ‘United States Interests in the Law of the Sea Convention’ (1994) 88(1) AJIL 167, 168; D L Larson, ‘The Reagan Rejection of the UN Convention’ (1985) 14(4) ODIL 337; Proclamation No 5030 (1983) 22 ILM 464; Roberts notes that apart from concerns regarding deep seabed mining, the USA has not acceded to the Convention owing to the fears of Republican Senators who believe that accession to the LOSC will be detrimental to the nation’s sovereignty: H Roberts, ‘Responses to Sovereign Disputes in the South China Sea’ (2015) 30(1) IJMCL 199, 207–209. 40 The United Nations 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 (adopted 4 August 1995, entered into force 11 December 2001) 2167 UNTS 88. 41 UNGA Resolutions on the Law of the Sea (1993–2019), www.un.org/depts/ los/general_assembly/general_assembly_resolutions.htm. 42 Accompanied by Saint Kitts and Nevis in 2000, Benin in 2007, and Venezuela in 2016. Ibid; it is worth mentioning that in a statement at the Intergovernmental Conference on an International legally binding instrument under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction the nonparties to the LOSC stressed that neither their participation in the conference nor its possible outcome may affect their legal status, thus reaffirming their negative stance towards the Convention. Statement by Colombia on behalf of El Salvador, Eritrea, Iran, Turkey and Colombia (25 March 2019), http:// statements.unmeetings.org/media2/21102552/colombia.pdf. 43 UNGA, ‘Oceans and the Law of the Sea ‒ Reports of the Secretary-General’, UN Docs A/53/456 (1998) paras 2–4; Α/57/57 (2002) para 13; A/58/65 (2003) para 248; A/59/62 (2004) paras 2–3; A/65/69/Add.2 (2010) para 439; A/66/70/Add.2 (2011) para 357; A/67/79/Add.1 (2012) para 179. 44 2002 Secretary-General Report (n 43) para 13. In the same paragraph, explicit reference is made to Israel, Syria and Turkey. 45 Award of the Arbitral Tribunal in the second stage of the proceedings between Eritrea and Yemen (Maritime Delimitation) [1999] 22 RIAA 335, para 130; R Bernhard, ‘Custom and Treaty in the Law of the Sea’ (1987) 205 Recueil des Cours de l’Académie de Droit International de La Haye 247, 251; Restatement of the Law Third, Restatement of the Law: The Foreign Relations Law of the United States, Vol II (American Law Institute 1987) 5–6; D Freestone, ‘The 1982 Law of the Sea Convention at 30: Successes, Challenges and New Agendas’ in David Freestone (ed), The 1982 Law of the Sea Convention at 30: Successes, Challenges and New Agendas (Martinus Nijhoff 2012) 3; M D Evans, ‘The Law of the Sea’ in Malcolm D Evans (ed), International Law

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46

47 48 49 50 51 52

53 54 55 56 57

58 59

(5th edn, OUP 2018) 637; Churchill (n 36) 37–38; J A Roach, ‘Today’s Customary International Law of the Sea’ (2014) 45(3) ODIL 239; see also the commentary on the EEZ delimitation agreement between Israel-Cyprus (Chapter 2, subsection 3.4.). On the Aegean Sea dispute, see Aegean Sea Continental Shelf Case (Jurisdiction) [1978] ICJ Rep 3; Deniz Bolükbasi, Turkey and Greece, The Aegean Disputes: A Unique Case in International Law (Cavendish Publishing 2004); Haralampos Athanasopulos, Greece, Turkey and the Aegean Sea: A Case Study in International Law (McFarland Publishers 2001); A F Koymen, ‘The Aegean Sea Continental Shelf Problem: Presentation of the Turkish Case’ (1978) 6 International Business Lawyer 495; J Georgacopoulos, ‘The Aegean Sea Continental Shelf Problem: Presentation of the Greek Case’ (1978) 6 International Business Lawyer 479; Yücel Acer, The Aegean Maritime Disputes and International Law (Ashgate Publishing 2002); Angelos Syrigos, The Status of the Aegean Sea in International Law (Sakkoulas/Bryulant 1998); Y Inan and Y Acer, ‘The Aegean Disputes’ in Ali L Karaosmanoğlu and Seyfi Taşhan (eds), The Europeanization of Turkey’s Security Policy: Prospects and Pitfalls (Foreign Policy Institute 2002). See infra. Official Records (n 29) Vol XVI, A/CONF.62/SR.182, para 28. Status of the United Nations Convention on the Law of the Sea, www.un.org/ Depts/los/reference_files/status2019.pdf. Ibid. Ibid. The reason is that Egypt participated in the work of the ISA established on the authority of the 1994 Agreement. 2002 Secretary-General Report (n 43) para 15. Status of UNCLOS (n 49); as regards the choice of procedure for the settlement of disputes under Part XV LOSC, Egypt opted for arbitration under Annex VII LOSC, Greece chose the ITLOS, whereas Cyprus and Lebanon have not made any choice. Settlement of disputes mechanism, www.un.org/depts/los/ settlement_of_disputes/choice_procedure.htm. Official Records (n 29) Vol XVI, A/CONF.62/L.129 and A/CONF.62/ L.138. Official Records (n 29) Vol IX, A/CONF.62/L.26. Final Act of the Third United Nations Conference on the Law of the Sea, p. 190, www.un.org/depts/los/convention_agreements/texts/final_act_ eng.pdf. Official Records (n 29) Vol XVI, A/CONF.62/SR.182, para 74. Official Records (n 29) Vol XVII, A/CONF.62/SR.190, para 24; in any case, this is no longer a convincing argument for not acceding to the LOSC, as Israel recognised the PLO in 1993. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion) [2004] ICJ Rep 136, para 118. Official Records (n 29) Vol XVII, A/CONF.62/WS/33; Vol XVII, A/CONF.62/SR.190, paras 19, 21. Treaty of Peace between the State of Israel and the Arab Republic of Egypt (signed 26 March 1979, entered into force 25 April 1979) 1138 UNTS 72; Bing Bing Jia, The Regime of Straits in International Law (Clarendon Press 1998) 127; the only navigable channel of the Strait of Tiran is the Enterprise Passage between the Sinai Peninsula and Tiran island; Ruth Lapidoth, The Red Sea and the Gulf of Aden (Springer 1982) 172; W M Reisman, ‘The Regime of Straits and National Security: An Appraisal of International Lawmaking’ (1980) 74(1) AJIL 48, 76; A E Danseyar, ‘Legal Status of the Gulf of Aqaba and the

46

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61 62

63

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The law of the sea conferences Strait of Tiran: From Customary International Law to the 1979 Egyptian-Israeli Peace Treaty’ (1982) 5(1) BCICLR 127, 169; these freedoms have also been given adequate protection in the 1994 Israel‒Jordan Peace Treaty: Treaty of Peace between the State of Israel and the Hashemite Kingdom of Jordan (signed 26 October 1994, entered into force 10 November 1994) 2042 UNTS 351, art 14; for a brief history of the concept of freedom of navigation, see K Agyebeng, ‘Theory in Search of Practice: The Right of Innocent Passage in the Territorial Sea’ (2005) Cornell Law School Graduate Student Papers, Paper 9, pp. 6–10. K M A Elrasheed, ‘Military Manoeuvers in the Mediterranean’ in Institute of Public International Law and International Relations of Thessaloniki, The Law of the Sea with Emphasis on the Mediterranean Issues, Vol XVII (Thessaloniki 1991) 113. A Gioia, ‘Gulf of Aqaba’ in R Wolfrum (ed), The Max Planck Encyclopedia of Public International Law (Oxford University Press 2007, online edition) para 17, www.mpepil.com. Official Records (n 29) Vol I, A/CONF.62/SR.36, para 35; Vol II, A/ CONF.62/C.2/SR.14, paras 27–31; Vol IX, A/CONF.62/SR.105, para 15; Vol XVI, A/CONF.62/SR.163, paras 50–51; Israel, ‘Article 36 (RSNT II)’ (15 September 1976 and 23 June 1977) in Renate Platzöder (ed), Third United Nations Conference on the Law of the Sea: Documents, Vol IV (Oceana Publications 1987) 403. J N Moore, ‘The Regime of Straits and the Third United Nations Conference on the Law of the Sea’ (1980) 74(1) AJIL 77, 113; Lapidoth (n 59) 178–183; R Lapidoth, ‘The Strait of Tiran, the Gulf of Aqaba, and the 1979 Treaty of Peace Between Egypt and Israel’ (1983) 77(1) AJIL 84, 106–107; R Lapidoth, ‘International Straits’ in R Wolfrum (ed), The Max Planck Encyclopedia of Public International Law (Oxford University Press 2006, online edition) paras 27–28, www.mpepil.com; Danseyar (n 59) 172; H Camiños, ‘Categories of International Straits Excluded from the Transit Passage Regime under Part III of the United Nations Convention on the Law of the Sea’ in Tafsir Malick Ndiaye and Rüdiger Wolfrum (eds), Law of the Sea, Environmental Law and Settlement of Disputes: Liber Amicorum Judge Thomas A. Mensah (Martinus Nijhoff 2007) 588. Note verbale by Israel transmitted to the UN. Reproduced in 4 LSB 23; Lapidoth argues that the 1979 Treaty created an ‘objective regime’: Lapidoth (n 59) 180, 182; although the 1979 Treaty cannot be considered as a ‘longstanding international convention’ under Article 35(c) LOSC as it was concluded following the drafting of the particular LOSC provision, by virtue of Article 311(2) LOSC and given the more liberal regime established by the 1979 Treaty, the latter could be deemed compatible with the LOSC, a point agreed upon by both Egypt and Israel. Accordingly, even though other states are not bound by its limitations, the ‘supplementary rights’ afforded by the 1979 Treaty are also accorded to them. Therefore, as Vukas argues, the 1979 Treaty regime applies as lex specialis in the Strait of Tiran and the Gulf of Aqaba within the ambit of LOSC. Nonetheless, the 1979 Treaty does not apply in the territorial seas of Jordan and the Saudi Arabia, which are not parties to it and the regime of non-suspendable innocent passage is applicable therein instead. B Vukas, ‘The New Law of the Sea and Navigation: A View from the Mediterranean’ in Institute of Public International Law and International Relations of Thessaloniki (n 60) 422–423; Camiños (n 63) 587–588; T Treves, ‘La Navigation’ in RenéJean Dupuy (ed), Traité du Nouveau Droit de La Mer (Economica 1985) 793; Erik Jaap Molenaar, Coastal State Jurisdiction over Vessel-Source Pollution (Kluwer 1998) 319; Hugo Camiños and Vincent P Cogliati-Bantz, The Legal

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66 67 68 69

70

71

72 73 74 75

76 77

Regime of Straits: Contemporary Challenges and Solutions (CUP 2015) 107; Ana G López Martín, International Straits: Concept, Classification and Rules of Passage (Springer 2010) 80–81, 99. Egypt, Declarations upon Ratification (26 August 1983), www.un.org/depts/ los/convention_agreements/convention_declarations.htm#Egypt%20Upon%20 ratification; it is supported that Egypt considers transit passage as applicable. Camiños and Cogliati-Bantz (n 64) 108. A Sofaer, ‘Securing Israel’s Offshore Gas Resources’ (Presentation, 23 June 2013) 15. UNGA, 49th Session, Official Records UN Doc A/49/PV.78, p. 4; S Rosenne, ‘The United Nations Convention on the Law of the Sea, 1982. The Application of Part XI: An Element of Background’ (1995) 29(3) ILR 491, 491–492. Official Records (n 29) Vol XVI, A/CONF.62/SR.182, paras 55–56. Letter dated 3 December 2002 from the Permanent Representative of Turkey to the United Nations addressed to the Secretary-General, UN Doc A/57/641; Turkey, GP/7 (4 August 1980) in Renate Platzöder (ed), Third United Nations Conference on the Law of the Sea: Documents, Vol XII (Oceana Publications 1987) 301. N Oral, ‘Non-Ratification of the 1982 Law of the Sea Convention: An Aegean Dilemma of Environmental and Global Consequence’ (2009) 1 BJILP 53, 53–54, 68; Turkish officials reportedly stated in 2011 that they will not adhere to the LOSC until the final settlement of the Aegean dispute. International Crisis Group, ‘Turkey and Greece: Time to Settle the Aegean Dispute’ (Policy Briefing 2011) 5; A Gürel et al., ‘The Cyprus Hydrocarbons Issue: Context, Positions and Future Scenarios’ (PRIO 2013) p. 20 n 81, http://file.prio.no/ publication_files/Cyprus/Report%202013-1%20Hydrocarbons.pdf. S Toluner, ‘Some Reflections on the Interrelation of the Aegean Sea Disputes’ in Bayram Oztürk (ed), The Aegean Sea 2000: Proceedings of the International Symposium on the Aegean Sea, 5–7 May 2000, Bodrum, Turkey (Turkish Marine Research Foundation 2000) 131; D S Saltzman, ‘A Legal Survey of the Aegean Issues of Dispute and Prospects for a Non-judicial Multidisciplinary Solution’ in Oztürk (n 71) 199 n 74; Acer supports Turkey in not signing because of its resentment at the absence of a reference to special cases in Article 3 LOSC. Acer (n 46) 147; U Leanza, ‘The Delimitation of the Continental Shelf of the Mediterranean Sea’ (1993) 8(3) IJMCL 373, 392. Official Records (n 29) Vol XVII, A/CONF.62/WS/37 and Add.1–2, pp. 242–243; E Korkut, Turkey and the International Law of the Sea (Wildy, Simmonds & Hill 2017) 5–6, 9. Official Records (n 29) Vol XVI, A/CONF.62/SR.182, paras 148–149. Egypt, Declarations upon Ratification (n 65). Ibid. ‘The Arab Republic of Egypt will exercise as from this day the rights attributed to it by the provisions of Parts V and VI of the United Nations Convention on the Law of the Sea in the exclusive economic zone situated beyond and adjacent to its territorial sea in the Mediterranean Sea and in the Red Sea’; DOALOS, Table of claims to maritime jurisdiction (as at 15 July 2011) p. 6, www.un.org/depts/los/LEGISLATIONANDTREATIES/PDF FILES/table_summary_of_claims.pdf. Egypt, Declarations upon Ratification (n 65). Official Records (n 29) Vol I, A/CONF.62/SR.32, para 27 and Vol II, A/ CONF.62/C.2/SR.39, para 80; E Roucounas, ‘Greece and the Law of the Sea’ in Tullio Treves and Laura Pineschi (eds), The Law of the Sea: The European Union and its Member States (Martinus Nijhoff 1997) 232–233; Sophia Kopela, Dependent Archipelagos in the Law of the Sea (Martinus Nijhoff 2013);

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The law of the sea conferences The Philippines v China Award [2016] para 573, https://pcacases.com/web/ sendAttach/2086. Official Records (n 29) Vol XVII, A/CONF.62/SR.191, para 139. ‘[A] unilateral statement, however phrased or made, made by a State or by an international organization whereby that State or that organization purports to specify or clarify the meaning or scope of a treaty or of certain of its provisions’: ‘Report of the International Law Commission covering the work of its sixtythird session’ (26 April‒3 June and 4 July‒12 August 2011) UN Doc A/66/ 10/Add.1, p. 63; on declarations made under the LOSC, see Y-H Song, ‘Survey of Declarations or Statements Made by the Parties to the Law of the Sea Convention: 30 Years after Adoption’ (2013) 28(1) IJMCL 5; interpretative declarations which seek to act as reservations to treaties prohibiting reservations do not produce any legal effects: L D M Nelson, ‘Declarations, Statements and “Disguised Reservations” with Respect to the Convention on the Law of the Sea’ (2001) 50(4) ICLQ 767, 781; Schmitt argues that the ‘Messina exception’ (Article 38(1) LOSC) is satisfying for Greece: M N Schmitt, ‘Aegean Angst: A Historical and Legal Analysis of the Greek-Turkish Dispute’ (1996–1997) 2(1) RWULR 15, 31. However, the ‘Messina exception’ does not apply to straits formed solely by islands; Greece had also submitted informal proposals on the matter at the UNCLOS III. Greece, ‘Articles 35–43 (ISNT II)’ (30 March 1976) in Platzöder (n 62) 282; Greece, ‘Proposed amendments on Part III’, C.2/Informal Meeting/17 (28 April 1978) in Renate Platzöder (ed), Third United Nations Conference on the Law of the Sea: Documents, Vol V (Oceana Publications 1987) 23–24. Official Records (n 29) Vol XVII, A/CONF.62/WS/34; Vol XVII, A/CONF.62/WS/37 and Add.1–2, p. 242; Turkey, ‘Objection to the declaration made by Greece upon signature and ratification of the Convention’. Reproduced in 30 LSB 9 (1995). Greece, ‘Note dated 30 June 1997 regarding the Turkish notification dated 22 February 1996 on the interpretative statement made by Greece at the time of both signature and ratification of the United Nations Convention on the Law of the Sea’. Reproduced in 35 LSB 11 (1997). Greece, Interpretative Declaration on the subject of straits made upon signature (10 December 1982) and confirmed upon ratification (21 July 1995), www.un. org/depts/los/convention_agreements/convention_declarations.htm#Greece %20Interpretative%20declaration%20on%20the%20subjects%20of%20straits%20 upon%20signature%20%2810%20December%201982%29%20and%20confirmed %20upon%20ratification. ‘There is no obligation upon possessors of rights to exercise them … To equate this [non exercise of rights] with the creation of a vacuum would be to equate a right to an obligation.’ Barcelona Traction, Light and Power Company, Limited (Belgium v Spain) (Judgment) [1970] ICJ Rep 3, para 80; see also additional case law on the matter. Chapter 3, footnote 96. Daniel P O’Connell, The International Law of the Sea, Vol I (Ivan A Shearer ed, Clarendon Press 1982) 59–235, 259–298; Churchill and Lowe (n 4) 71–100; J E Noyes, ‘The Territorial Sea and Contiguous Zone’ in Rothwell et al. (n 20) 91–107; Rothwell and Stephens (n 28) 60–79; Rothwell and Stephens refer to the Corfu Channel and Fisheries cases, arguing that the concept of the territorial sea was implicitly recognised by the ICJ as part of customary international law back then: Rothwell and Stephens (n 28) 64; the ICJ explicitly recognised the customary character of the territorial sea notion in 1986: Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America) (Judgment) [1986] ICJ Rep 14, para 212; Territorial and Maritime

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85 86

87

88

89 90

91 92 93

94

Dispute (Nicaragua v Colombia) (Judgment) [2012] ICJ Rep 624, para 177; B Kwiatkowska, ‘Equitable Maritime Boundary Delimitation: A Legal Perspective’ (1988) 3(4) IJCEL 287, 294. Rothwell and Stephens (n 28) 60. Ram P Anand, Origin and Development of the Law of the Sea: History of International Law Revisited (Martinus Nijhoff 1982) 139–141; the so-called ‘cannon-shot rule’. Cornelius van Bynkershoek, De Dominio Maris Dissertatio (Ralph van Deman Magoffin tr, OUP 1923) 44; it is argued that the range of cannons in the early 18th century, when Bynkershoek published his work, was less than 3 nm: Anand (n 86) 139. ‘[L]e territoire maritime est une dépendance nécessaire d’un territoire terrestre’: Grisbadarna Case (Norway v Sweden) [1909] 11 RIAA 159; United Nations Convention on the Law of the Sea (signed 10 December 1982, entered into force 16 November 1994) 1833 UNTS 3, art 2; Noyes (n 84) 94. LOSC (n 87) arts 2(3), 3, 17; innocent passage is now deemed part of the corpus of customary international law: Nicaragua case (n 84) para 214; Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v Bahrain) (Judgment) [2001] ICJ Rep 97, para 223; René-Jean Dupuy and Daniel Vignes (eds), A Handbook on the New Law of the Sea, Vol I (Martinus Nijhoff 1991) 259; on the significance of the concept of innocent passage in international law, see D Froman, ‘Uncharted Waters: Non-Innocent Passage of Warships in the Territorial Sea’ (1984) 21(3) SDLR 625, 628; K Hakapää and E J Molenaar, ‘Innocent Passage – Past and Present’ (1999) 23(2) MP 131; Agyebeng (n 59) 9. Ioannidis (n 1) 94–98 and Chapter 3; see also infra (states’ domestic legislation). Case concerning the Delimitation of the Maritime Boundary between Guinea and Guinea-Bissau [1985] 25 ILM 251, paras 43, 111(a); Nicaragua v Colombia (n 84) para 177; Roach (n 45) 242–243; Shearer notes that it is safer and more convenient for merchant vessels to sail within a distance of 12 nm from the coasts: A I Shearer, ‘Problems of Jurisdiction and Law Enforcement Against Delinquent Vessels’ (1986) 35(2) ICLQ 320, 323 n 7; the European Economic Community had incorporated the 12 nm rule in its 1983 Common Fisheries Policy. See infra; Noyes (n 84) 94–95. Official Records (n 29) Vol I, A/CONF.62/SR.32, para 25. Official Records (n 29) Vol I, A/CONF.62/SR.36, paras 33, 35 and Vol II, A/CONF.62/C.2/SR.3, para 36. Bolükbasi (n 46) 122–124; cut-off could play a role in maritime delimitation. Nicaragua v Colombia (n 84) para 215; ‘[S]ome degree of cut-off may be inherent in every delimitation’: Canada/France Award (n 25) para 67; ‘a decision as to the existence of a cut-off effect must take into account the whole area in which competing claims have been made’: Bangladesh v India Award [2014] para 404, https://pcacases.com/web/sendAttach/383; application of the equidistance delimitation method could lead to a cut-off effect. North Sea Continental Shelf Cases (Judgment) [1969] ICJ Rep 3, para 89; Bangladesh v India Award (n 93) para 413; Y E Acikgonul, ‘Reflections on the Principle of Non-Cut Off: A Growing Concept in Maritime Boundary Delimitation Law’ (2016) 47(1) ODIL 52; on this point, Lando notes that ‘If one accepts that cut-off prevails over enclavement, it would also aim to ensure that islands are awarded the fullest extent of maritime entitlements under international law’: Massimo Lando, Delimitation as a Judicial Process (CUP 2019) 170. Official Records (n 29) Vol III, A/CONF.62/C.2/L.8, para 2 (later replaced by A/CONF.62/C.2/L.90 retaining the same wording in relation to territorial sea breadth).

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95 Shigeru Oda, The Law of the Sea in Our Time II: The United Nations Seabed Committee, 1968–1973 (Sijthoff-Leyden 1977) 280; still, Turkish ships would enjoy the right of innocent passage under customary law; according to a Turkish author, ‘Turkish vessels would be obliged to conform to the innocent passage regime, which Greece may suspend from time to time’: Korkut (n 72) 45. 96 UN Doc A/AC.138/SC.II/L.16 and Rev.1. Reproduced in 3 Report of the Committee on the Peaceful Uses of the Seabed and the Ocean Floor beyond the Limits of National Jurisdiction (1973) Annex II: Report of the SubCommittee II, Appendix V, p. 2. 97 Statement of Ambassador Namik Yolga at the ‘Conference on Aegean Issues: Problems and Political Matrix’ (Haccetepe University, 20 January 1995). Reproduced in J M van Dyke, ‘The Aegean Sea Dispute: Options and Avenues’ (1996) 20(5) MP 397, 401 n 37. 98 Official Records (n 29) Vol XVII, A/CONF.62/WS/37 and Add.1–2, p. 242; Fisheries case (United Kingdom v Norway) [1951] ICJ Rep 116, p. 131; Asylum case (Colombia v Peru) (Judgment) [1950] ICJ Rep 266, pp. 277–78. 99 Restatement of the Law Third, Restatement of the Law: the Foreign Relations Law of the United States, Vol I (American Law Institute 1987) 24–35; a few nuclear states’ rejection of a rule prohibiting the use of nuclear weapons thwarted its emergence as a customary rule, despite the overwhelming support it enjoys by the other members of the international community: Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) [1996] ICJ Rep 226, para 73; J Charney, ‘The Persistent Objector Rule and the Development of Customary International Law’ (1985) 56(1) BYIL 1; Official Records (n 29) Vol XVII, A/CONF.62/SR.189, para 150; J M van Dyke, ‘An Analysis of the Aegean Disputes under International Law’ (2005) 36(1) ODIL 63, 99; Bolükbasi (n 46) 206–211. 100 Antonio Cassese, International Law (2nd edn, OUP 2005) 162–163; T Stein, ‘The Approach of the Different Drummer: The Principle of the Persistent Objector in International Law’ (1985) 26(2) HILJ 457; P Dumberry, ‘Incoherent and Ineffective: The Concept of Persistent Objector Revisited’ (2010) 59(3) ICLQ 779, 779–802; Fifth report on identification of customary international law (Michael Wood, Special Rapporteur) UN Doc A/CN.4/717, paras 106–111; James A Green, The Persistent Objector Rule in International Law (OUP 2016). 101 Toluner (n 71) 130–131; Acer (n 46) 110, 145–146; Turkey sought a flexible rule providing for the acceptance of territorial sea breadth less than 12 nm in special cases such as the Aegean: Acer (n 46) 105; Bolükbasi (n 46) 204–205; Korkut (n 72) 31–33. 102 UN Doc A/CN.4/99. Reproduced in YBILC, Vol II (1956) 74. 103 Ibid; Toluner (n 71) 134 n 49; ‘when referring to a 12 nautical miles limit, Turkey had in mind the issue of fisheries rights, the principle of reciprocity as well as security considerations related to the Black Sea’: Bolükbasi (n 46) 148–149. 104 Protocol concerning the territorial waters boundary between the USSR and Turkey (signed 17 April 1973) art 1. Reproduced in US Department of State, Limits in the Seas No. 59, ‘Territorial Sea Boundary: Soviet Union – Turkey’ (9 October 1974), www.state.gov/wp-content/uploads/2019/11/LIS-59.pdf. 105 The report of the Ministry of Foreign Affairs and Ministry of International Affairs on the draft of Territorial Waters Act (1/206) of 31 May 1962. Reproduced in Toluner (n 71) 132 and 133 n 45; Law 2674/1982 upheld that Turkey will retain a 12-mile territorial sea in the Black and the Mediterranean Seas, but only six miles in the Aegean. See infra.

The law of the sea conferences 51 106 Official Records (n 29) Vol IV, A/CONF.62/C.2/SR.48, para 36. 107 Myron H Nordquist, Shabtai Rosenne, Satya N Nandan (eds), United Nations Convention on the Law of the Sea 1982: A Commentary, Vol II (Martinus Nijhoff 1993) 81. 108 Following the ratification of the LOSC from the Greek Parliament, the Turkish Grand National Assembly adopted a unanimous resolution on 8 June 1995 stating that should Greece extend its territorial sea beyond six miles, Turkey would take all necessary measures. See infra. 109 Official Records (n 29) Vol II, A/CONF.62/C.2/SR.5, paras 23–24, Vol III, A/CONF.62/C.2/L.22 (Greece: draft articles, art. 7) and Vol IX, A/CONF.62/SR.103, para 46. 110 Official Records (n 29) Vol IX, A/CONF.62/SR.102, para 56; Sinagra questions the right of Greece to extend its territorial sea up to 12 miles in the Aegean: A Sinagra, ‘The Problem of Delimiting the Territorial Waters between Greece and Turkey in the Aegean Sea’ in Oztürk (n 71) 178. 111 Turkish Note Verbale to the Greek Government (6 February 1975) (emphasis added). Reproduced in Aegean Sea Continental Shelf case (Greece v Turkey) ICJ Pleadings 31. 112 Aegean Sea Continental Shelf case (n 46) para 107; Turkey recognised the compulsory jurisdiction of the ICJ until 1972. ‘Declarations recognizing as compulsory the jurisdiction of the International Court of Justice under Article 36, paragraph 2, of the Statute of the Court’, https://treaties.un.org/ Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=I-4&chapter=1&clang=_en# 8; ‘Declaration of Turkey Recognizing as Compulsory the Jurisdiction of the International Court of Justice, in Conformity with Article 36, Paragraph 2, of the Statute of the International Court of Justice. Ankara, 22 May 1947.’ Renewed for a further five-year period as from 23 May 1967. Reproduced in 604 UNTS 349. 113 UNGA Res 3232 (XXIX) (12 December 1974); the same wording was used in the ‘Peaceful settlement of disputes between states’ (Manila Declaration), UNGA Res 37/10 (15 November 1982) UN Doc A/RES/37/10, Annex, para 5; ‘[T]he judicial settlement of international disputes, with a view to which the Court has been established, is simply an alternative to the direct and friendly settlement of such disputes between the Parties; as consequently it is for the Court to facilitate, so far as is compatible with its Statute, such direct and friendly settlement’: Case of the Free Zones of the Upper Savoy and the District of Gex [1929] PCIJ Rep Series A No 22, p. 13; unilateral recourse to third party dispute resolution mechanisms is not an abuse of rights: Barbados v Trinidad and Tobago Award [2006] 27 RIAA 147, para 208; The Philippines v China Award (n 77) paras 126–128; it is also interesting to note that generally the Soviet Union and its allies showed a preference for negotiations and rejected third-party dispute settlement mechanisms, whereas the Western states supported arbitration and judicial procedures. Latin American states deemed international courts and tribunals a means to safeguard their interests against developed states: D H Anderson, ‘Peaceful Settlement of Disputes Under UNCLOS’ in Jill Barrett and Richard Barnes (eds), Law of the Sea: UNCLOS as a Living Treaty (BIICL 2016) 386, 389; Myron H Nordquist, Shabtai Rosenne, Satya N Nandan (eds), United Nations Convention on the Law of the Sea 1982: A Commentary, Vol V (Martinus Nijhoff 1989) 41–43; Natalie Klein, Dispute Settlement in the UN Convention on the Law of the Sea (CUP 2005) 54; T Treves, ‘Article 287: Choice of Procedure’ in Alexander Prölls (ed), United Nations Convention on the Law of the Sea: A Commentary (Beck-Hart-Nomos 2017) 1851–1852.

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114 European Council Conclusions (10–11 December 1999) para 4. 115 Compulsory Law No 230/1936, art 1, www.un.org/depts/los/LEGIS LATIONANDTREATIES/PDFFILES/GRC_1936_Law.pdf; Turkey did not protest owing to the good relations between the two countries at the time: Acer (n 46) 30; K M Ioannou, ‘The Greek Territorial Sea’ in Theodore C Kariotis (ed), Greece and the Law of the Sea (Martinus Nijhoff 1997) 128–129; Syrigos (n 46) 9–10; Bolükbasi (n 46) 126–127. 116 Decree of 6/18 September 1931 to define the extent of the territorial waters for the purposes of aviation and the control thereof, www.un.org/depts/los/ LEGISLATIONANDTREATIES/PDFFILES/GRC_1931_Decree.pdf; by virtue of the Code of Air Law (1815/1988), Greece reaffirmed its ten-mile airspace: Syrigos (n 46) 25. 117 Convention on International Civil Aviation (signed 7 December 1944, entered into force 4 April 1947) 15 UNTS 295, arts 1–2; LOSC (n 87) art 2(2). 118 Ioannou (n 115) 133; Bolükbasi (n 46) 595–600; the USA protested against the Greek assertions over the airspace in 1994. US Department of State, Limits in the Seas No 36 (8th revision) ‘National Claims to Maritime Jurisdiction – Greece’ (25 May 2000) p. 63, www.state.gov/wp-content/uploads/2020/01/ LIS-36.pdf. 119 A Strati, ‘Greek Shipping Interests and the UN Convention on the Law of the Sea’ in Kariotis (n 115) 279. 120 Law 2321/1995, art 2; Ioannou (n 115) 130; Bolükbasi (n 46) 134; ‘[i]n ratifying the United Nations Convention on the Law of the Sea, Greece secures all rights and assumes all the obligations deriving from the Convention. Greece shall determine when and how it shall exercise those rights, according to its national strategy. This shall not imply that Greece renounces these rights in any way’ (emphasis added): Declaration upon ratification (n 82). 121 Council Regulation (EEC) No 170/83 of 25 January 1983 establishing a Community system for the conservation and management of fishery resources [1983] OJ L 24/1, art 6(1); Council Regulation (EEC) No 3760/92 of 20 December 1992 establishing a Community system for fisheries and aquaculture [1992] OL L 389/1, art 6(1); Council Regulation (EC) No 2371/2002 of 20 December 2002 on the conservation and sustainable exploitation of fisheries resources under the Common Fisheries Policy [2002] OJ L 358/59; Regulation (EU) No 1152/2012 of the European Parliament and of the Council of 21 November 2012 amending Council Regulation (EC) No 2371/2002 on the conservation and sustainable exploitation of fisheries resources under the common fisheries policy [2012] OJ L 343/30; Regulation (EU) 1380/2013 of the European Parliament and of the Council of 11 December 2013 on the Common Fisheries Policy, amending Council Regulations (EC) No 1954/2003 and (EC) No 1224/2009 and repealing Council Regulations (EC) No 2371/ 2002 and (EC) No 639/2004 and Council Decision 2004/585/EC [2013] OJ L 354/22. 122 Fisheries Jurisdiction (United Kingdom of Great Britain and Northern Ireland v Iceland) (Judgment) [1974] ICJ Rep 3, para 52; Fisheries Jurisdiction (Federal Republic of Germany v Iceland) (Judgment) [1974] ICJ Rep 175, para 44. 123 Council Regulation (EC) No 1006/2008 of 29 September 2008 concerning authorisations for fishing activities of Community fishing vessels outside Community waters and the access of third-country vessels to Community waters, amending Regulations (EEC) No 2847/93 and (EC) No 1627/94 and repealing Regulation (EC) No 3317/94 [2008] OJ L 286/33; C Nordmann, ‘Regional Organisations: The European Community and the Law of the Sea Convention’ in Davor Vidas and Willy Østreng (eds), Order for the Oceans at the

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124

125 126

127 128 129 130

131 132 133 134 135 136 137 138

139 140

141 142

Turn of the Century (Kluwer 1999) 362; on the EU role in the East Med hydrocarbon activities, see Chapter 2, subsection 2.2. Acer (n 46) 32 (emphasis added); in fact, Turkey had stated earlier (1985) that it would ‘take the necessary measures’ if Greece extended its territorial sea and from May 1994 started issuing similar warnings to Greece: Ioannou (n 115) 118; Bolükbasi (n 46) 66. Nevertheless, this remains solely a declaration and does not constitute an authorisation of war. Murat Yetkin, ‘Casus belli yapıcı bir çıkış’ [‘A constructive argument on casus belli’] Radikal (Istanbul, 9 April 2005). Since 2005, the European Commission, through its Progress Report on Turkey, as well as the European Parliament, urge Turkey to drop the ‘casus belli’. Letter dated 12 June 1995 of the Greek Permanent Representative to the United Nations addressed to the Secretary-General, UN Doc A/50/216-S/ 1995/476; Bolükbasi (n 46)143. Statement of the Spokesperson of the Ministry of Foreign Affairs, Mr. Hami Aksoy, in Response to a Question Regarding the plan by the Government of Greece to gradually extend the ‘Greek territorial waters’ to 12 nautical mile (23 October 2018); ‘Greece, Turkey in spat over extension of territorial waters’ (Ekathimerini, 23 October 2018), www.ekathimerini.com/233935/article/ ekathimerini/news/greece-turkey-in-spat-over-extension-of-territorial-waters. Territorial Waters Law 476/1964, arts 1–2. Reproduced in US Department of State, Limits in the Seas No. 32, ‘Straight Baselines: Turkey’ (25 March 1971), www.state.gov/wp-content/uploads/2019/10/LIS-32.pdf. Acer (n 46) 29; Bolükbasi (n 46) 147, 219; Ioannou (n 115) 138. Law 476/1964 (n 127) arts 3–5. Syrigos (n 46) 12–13; Korkut (n 72) 31; Turkey’s intention echoed the ‘sixplus-six’ formula proposed at the UNCLOS II a few years earlier (1960): ‘Summary Records of Plenary Meetings and Meetings of the Committee of the Whole’, Second United Nations Conference on the Law of the Sea (17 March–26 April 1960) Annexes p. 169, UN Doc A/CONF.19/C.1/L.10. Bolükbasi (n 46) 158–162, 222–224. Act No 2674/1982 on the Territorial Sea of the Republic of Turkey, Article 6, www.un.org/depts/los/LEGISLATIONANDTREATIES/PDFFILES/TUR_ 1982_Act.pdf. Act No 2674/1982 (n 132) art 1. Acer (n 46) 29. Decree 8/4742 by the Council of Ministers, www.un.org/depts/los/ LEGISLATIONANDTREATIES/PDFFILES/TUR_1992_Decree.pdf; Bolükbasi (n 18) 181. Korkut (n 72) 36. Act No 2674/1982 (n 132) art 2. Legislative Decree 304/1963 concerning the Territorial Sea of the Syrian Arab Republic, art 4. Reproduced in US Department of State, Limits in the Seas No 53 (10 October 1973) ‘Straight Baselines: Syria’, www.state.gov/wpcontent/uploads/2019/11/LIS-53.pdf. Syria, Law 37/1981, art 1. Reproduced in 1 LSB 61(1983). Law No 28/2003, Definition Act of Internal Waters and Territorial Sea Limits of the Syrian Arab Republic, www.un.org/depts/los/LEGISLATIO NANDTREATIES/PDFFILES/syr_2003e.pdf; the Law (Article 44) repeals previous maritime legislation. Ibid art 4. Rothwell and Stephens (n 28) 278; during an armed conflict the rules of international humanitarian law apply in the sea as well: Yoram Dinstein,

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144 145 146 147

148 149 150

151 152

153 154

The law of the sea conferences The Conduct of Hostilities under the Law of International Armed Conflict (3rd edn, CUP 2016) 128–133; San Remo Manual on International Law Applicable to Armed Conflicts at Sea (12 June 1994). In general, security measures restricting navigation in the territorial sea find no support in the LOSC: S Kaye, ‘Freedom of Navigation in a Post 9/11 World’ in David Freestone et al. (eds), The Law of the Sea: Progress and Prospects (OUP 2006) 351. Law No 28/2003 (n 140) art 9; the Syrian authorities have always been requesting prior authorisation for warships traversing Syria’s territorial sea. Legislative Decree 304/1963 (n 138) art 12. Points (e) and (f) Article 19 LOSC clearly seem to apply to warships. Rothwell and Stephens (n 28) 289–292; Natalie Klein, Maritime Security and the Law of the Sea (OUP 2011) 25, 31; Evans (n 45) 647; O’Connell (n 84) 291. Bateman argues that there is evidence that prior notification or authorisation requirements are satisfied informally by a low-level contact by a naval attaché to the local maritime authorities: S Bateman, ‘Security and the Law of the Sea in East Asia: Navigational Regimes and Exclusive Economic Zones’ in Freestone et al. (n 143) 368; Lowe argues that there is practice according to which warships do give prior notice to local authorities ‘without admission of any legal obligation to notify’: A V Lowe, ‘National Security and the Law of the Sea’ in Institute of Public International Law and International Relations of Thessaloniki (n 60) 157; Y Tanaka, ‘Navigational Rights and Freedoms’ in Rothwell et al. (n 20) 545–547. See discussion in Chapter 3, subsection 4.1. Only Article 7(l) of the Law considering ‘roaming or circling about’ as an act rendering passage non-innocent, adds an extra clause to those promulgated in Article 19 LOSC. Decree concerning the Territorial Waters of the Arab Republic of Egypt of 15 January 1951, as amended by Presidential Decree No 180 of 17 February 1958, www.un.org/depts/los/LEGISLATIONANDTREATIES/PDFFILES/EGY_ 1958_Decree.pdf; for an analysis of the Egyptian legislation, see G Francalaci and T Scovazzi, ‘The Old and New Egyptian Legislation on Straight Baselines’ in Gerald H Blake (ed), Maritime Boundaries (Routledge 1994) 127–143. Egyptian Declarations (n 65); US Department of State, Limits in the Seas No 36 (8th revision) ‘National Claims to Maritime Jurisdiction – Egypt’ (25 May 2000) p. 46. Rothwell and Stephens (n 28) 238–239; Part XII, Section 5 LOSC contains a wide range of provisions (i.e. articles 208, 210–212 214, 216, 220, 226) providing coastal states with prescriptive and enforcement jurisdiction in respect of marine environment protection; New Zealand, a party to the LOSC, enacted legislation prohibiting the entrance of nuclear-powered vessels in its ports: New Zealand Nuclear Free Zone, Disarmament and Arms Control Act (1987); Noyes (n 84) 102–103; for pertinent treaties, see the Convention on the Liability of Operators of Nuclear Ships concluded in 1962 under the auspices of the IMO, but has not entered into force; however, the 1971 Convention relating to Civil Liability in the Field of Maritime Carriage of Nuclear Material (NUCLEAR) is in force. Kaye (n 143) 361. UNGA, ‘Oceans and the Law of the Sea ‒ Report of the Secretary-General’ (1999) UN Doc A/54/429, para 16; 2004 Secretary-General Report (n 43) para 12; the Second Committee of the 1930 Hague Conference opined that warships enjoy the right of unimpeded passage through straits; Shabtai Rosenne

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159 160

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(ed), League of Nations: Conference for the Codification of International Law [1930], Vol IV (Oceana Publications 1975) 1410; the ICJ condoned this view a few years later: Corfu Channel Case (United Kingdom of Great Britain and Northern Ireland v Albania) (Judgment) [1949] ICJ Rep 4, p. 28; T A Clingan, ‘Freedom of Navigation in a Post-UNCLOS III Environment’ (1983) 46(2) LCP 107, 112. Vukas (n 64) 414; van Dyke seems to accept prior notification in cases an accident would have ‘grave’ repercussions on the marine environment: J M van Dyke, ‘The Disappearing Right to Navigational Freedom in the Exclusive Economic Zone’ (2005) 29(2) MP 107, 111. Detention of three Ukrainian naval vessels (Ukraine v Russian Federation), Provisional Measures, Order of 25 May 2019, ITLOS Reports 2018–2019, to be published, para 68. USA‒USSR Joint Statement with Attached Uniform Interpretation of Rules of International Law Governing Innocent Passage (23 September 1989) 28 ILM 1444. Ali A El-Hakim, The Middle Eastern States and the Law of the Sea (MUP 1979) 7; United Nations Legislative Series, ‘National Legislation and Treaties relating to the Law of the Sea’, UN Doc ST/LEG/Ser.B/1 (1951) pp. 83, 307. Legislative Decree No 138 concerning territorial waters and sea areas (7 September 1983), www.un.org/depts/los/LEGISLATIONANDTREATIES/ PDFFILES/LBN_1983_Decree.pdf. Law 163/2011 on the Delineation and Declaration of the Maritime Zones of the Lebanese Republic (17 August 2011) art 4. Reproduced in ASDEAM, ‘The Legal Framework of Lebanon’s Maritime Boundaries: The Exclusive Economic Zone and Offshore Hydrocarbon Resources’ (November 2012). Y Teff-Seker, E Eiran and A Rubin, ‘Israel Turns to the Sea’ (2018) 72(4) Middle East Journal 610, 612–614. Territorial Waters Law 5717/1956 as amended by the Territorial Waters (Amendment) Law 5750/1990, www.un.org/depts/los/LEGISLATIO NANDTREATIES/PDFFILES/ISR_1990_AmendedLaw.pdf. This was defined by a Government decision on 11 September 1955, Document A/CN.4/97/Add.1 to 3: Summary of replies from Governments and conclusions of the Special Rapporteur in YBILC, Vol II (1956) 23. The Territorial Sea Laws 1964 and 2014 (45/1964), art 3, www.olc.gov.cy/ olc/olc.nsf/293C1735D2C2E8D1C2258485003811A7/$file/The%20Territorial %20Sea%20Laws%201964%20and%202014.pdf; the extension of the territorial sea of the Republic of Cyprus was opposed by Turkey as, so the Turkish argument goes, it was decided without the participation of the Turkish Cypriots. Official Records (n 29) Vol XVII, A/CONF.62/WS/37 and Add.1–2, p. 243. The Regulation of the Innocent Passage of Ships in the Territorial Waters Law 28(I)/2011, arts 6 and 7(2), www.un.org/depts/los/LEGISLATIONAND TREATIES/PDFFILES/cyp_2011_innocent_passage_law.pdf. O’Connell (n 84) 467–509; Churchill and Lowe (n 4) 141–157; T L McDorman, ‘The Continental Shelf’ in Rothwell et al. (n 20) 181–202; Rothwell and Stephens (n 28) 102–126. O’Connell (n 84) 470–472. Rothwell and Stephens (n 28) 102. According to O’Connell, two Argentinians, Captain Storni and Professor Suarez, seem to be the inspirators of the continental shelf notion: O’Connell (n 84) 469, 526.

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170 McDorman (n 166) 183; Dupuy and Vignes (n 88) 363; following the Truman Proclamation, Mexico, Chile, Peru, Costa Rica, Nicaragua, Ecuador, Honduras and Venezuela issued claims on their adjacent continental shelf: John C Colombos, The International Law of the Sea (6th rev edn, Longmans 1967) 74; see also Treaty between Great Britain and Northern Ireland and Venezuela relating to the Submarine Areas of the Gulf of Paria (signed 26 February 1942, entered into force 22 September 1942) 205 LNTS 121; Argentina had already issued a continental shelf decree in 1944: Decree No 1, 385 concerning Mineral Reserves (24 January 1944) Boletin Oficial de la Republica Argentina, Vol 52(14) (17 March 1944) in United Nations, Laws and Regulations on the Regime of the High Seas, UN Doc St/LEG/SER.B/1 (1951); North Sea cases (n 93) para 47; Continental Shelf (Tunisia/Libyan Arab Jamahiriya) (Judgment) [1982] ICJ Rep 18, para 36. 171 United States, ‘Proclamation by the President with respect to the Natural Resources of the Subsoil and Seabed of the Continental Shelf’ (28 September 1945). Reproduced in 40 Supplement to AJIL (1946) p. 45. 172 J Charney, ‘Entry Into Force of the 1982 Convention on the Law of the Sea’ (1995) 35(2) VJIL 381, 404; the term ‘sovereign rights’ was proposed by the ILC as a compromise in order to accommodate the terminology used by states at the time as regards their rights over the continental shelf, namely ‘jurisdiction and control’ on the one hand and ‘sovereignty’ on the other. ‘Report of the International Law Commission covering the work of its third session’ (16 May‒27 July 1951) UN Doc A/1858. Reproduced in YBILC, Vol II (1951) 24; ‘Report of the International Law Commission covering the work of its fifth session’ (1 June‒14 August 1953) UN Doc A/2456. Reproduced in YBILC, Vol II (1953) 214; ILC Report (n 4) 297–298; O’Connell (n 84) 477–480; the concepts of sovereignty and jurisdiction were separated around the mid-19th century and are no longer deemed coterminous: Shearer (n 90) 321. 173 ILC Report (n 4) 298; O’Connell (n 84) 472. The particular position was based upon the opinions of Gidel and Lauterpacht. 174 North Sea Cases (n 93) para 19; Delimitation of the Maritime Boundary in the Bay of Bengal (Bangladesh/Myanmar), Judgment, ITLOS Reports 2012, p. 4, paras 408–409; Nicaragua v Colombia (n 84) para 115. 175 ‘The rights of the coastal state over the continental shelf do not depend on occupation, effective or notional, or on any express proclamation’: North Sea cases (n 93) para 63. 176 ILC Report (n 4) 296 (emphasis added). 177 Statement by H S Amerasinghe in Nordquist et al. (n 31) 3, 8. Amerasinghe also noted that this criterion had encouraged states ‘to treat the continental shelf as coterminous with the continental margin’, which, certainly, leads to an unjustified broadening of state jurisdiction over the continental shelf; Evans (n 45) 656. 178 Treves (n 20) 15; ‘[r]etaining such a clause in the new Convention was all the more pointless, since it served no purpose due to the extension of the shelf to hundreds of miles off the coast’: Dupuy and Vignes (n 88) 366. 179 North Sea cases (n 93) para 40; D N Hutchinson, ‘The Concept of Natural Prolongation in the Jurisprudence Concerning Delimitation of Continental Shelf Areas’ (1984) 55(1) BYIL 133. 180 See subsection 2.3.6. and Chapter 2, subsection 3.2. 181 N M Antunes and V Becker-Weinberg, ‘Entitlement to Maritime Zones and Their Delimitation: In the Doldrums of Uncertainty and Unpredictability’ in Alex G Oude Elferink, Tore Henriksen and Signe Veierud Busch (eds), Maritime Boundary Delimitation: The Case Law Is it Consistent and Predictable? (CUP 2018) 71.

The law of the sea conferences 57 182 R Y Jennings, ‘The Limits of the Continental Shelf Jurisdiction: Some Possible Implications of the North Sea Case Judgment’ (1969) 18(4) ICLQ 819, 832; R Y Jennings, ‘The Principles Governing Marine Boundaries’ in Kay Hailbronner et al. (eds) Staat und Völkerrechtsordnung: Festschrift für Karl Doehring (Springer 1989) 406. 183 Kwiatkowska (n 84) 296. 184 Edward D Brown, Sea-Bed Energy and Mineral Resources and the Law of the Sea, Volume 1: The Areas within National Jurisdiction (Graham and Trotman 1984) I.7 10–11, 18; Miyoshi (n 25) 108–111. 185 Nicaragua v Colombia (n 84) para 118. 186 Official Records (n 29) Vol II, A/CONF.62/C.2/SR.17, para 37. 187 Official Records (n 29) Vol II, A/CONF.62/C.2/SR.18, para 78. 188 Official Records (n 29) Vol IX, A/CONF.62/SR.105, para 46 189 Official Records (n 29) Vol II, A/CONF.62/C.2/SR.19, para 34. 190 See infra, subsection 2.3.3. 191 Official Records (n 29) Vol I, A/CONF.62/SR.39, para 36; see infra, subsection 2.3.4. 192 Official Records (n 29) Vol III, A/CONF.62/C.2/L.25; this was also recognised in the North Sea cases (n 93) para 63. 193 Official Records (n 29) Vol II, A/CONF.62/C.2/SR.18, paras 46–47; Cyprus, Continental Shelf Law 8/1974, www.un.org/depts/los/ LEGISLATIONANTREATIES/PDFFILES/CYP_1974_Law.pdf; interestingly, in a note verbale transmitted to the UN on 31 May 1972, Cyprus had endorsed the natural prolongation concept, as elaborated in the 1969 North Sea cases: Office for Ocean Affairs and the Law of the Sea, National Legislation on the Continental Shelf (United Nations 1989) 70. 194 Tunisia/Libya (n 170) paras 42–43, 47–48, 70; Continental Shelf (Libyan Arab Jamahiriyia/Malta) (Judgment) [1985] ICJ Rep 13, paras 33–34, 39–40, 77; Canada/France Award (n 25) para 47; Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada/United States of America) (Judgment) [1984] ICJ Rep 246, paras 193–195; Barbados v Trinidad and Tobago Award (n 113) paras 224–226; Bangladesh/Myanmar (n 174) para 322. 195 See Chapter 2. 196 O’Connell (n 84) 552–581; Churchill and Lowe (n 4) 160–179; R Beckman and T Davenport, ‘The EEZ Regime: Reflections after 30 years’ (Paper delivered at LOSI Conference on Securing the Ocean for the Next Generation, May 2012); G Andreone, ‘The Exclusive Economic Zone’ in Rothwell et al. (n 20) 159–180; Rothwell and Stephens (n 28) 85–101. 197 United States, ‘Proclamation by the President with respect to Coastal Fisheries in Certain Areas of the High Seas’ (28 September 1945). Reproduced in 40 Supplement to AJIL (1946) p. 46; B Kwiatkowska, ‘Creeping Jurisdiction beyond 200 Miles in the Light of the 1982 Law of the Sea Convention and State Practice’ (1991) 22(2) ODIL 153, 159; Lagoni argues that the particular proclamation was never actually applied: R Lagoni, ‘Interim Measures Pending Maritime Delimitation Agreements’ (1984) 78(2) AJIL 345, 345 n 1. 198 ‘[T]he concept of sovereign rights and the exclusive jurisdiction over fisheries … was the central objective motivating the introduction of the exclusive economic zone concept’: The Philippines v China (n 77) para 700; Evans (n 45) 659; Rothwell and Stephens (n 28) 462; Nordquist et al (n 107) 493. 199 Argentina, ‘Declaration Proclaiming Sovereignty over the Epicontinental Sea and the Continental Shelf’ (9 October 1946). Reproduced in 41 Supplement to AJIL (1947) p. 11; Argentina along with Spain and Portugal had raised concerns over depletion of fish stocks since 1916: I Townsend-Gault,

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The law of the sea conferences ‘The “Territorialisation” of the Exclusive Economic Zone: A Requiem for the Remnants of the Freedoms of the Seas?’ in Clive Schofield et al. (eds), The Limits of Maritime Jurisdiction (Martinus Nijhoff 2014) 68. Francisco Orrego Vicuña (ed), The Exclusive Economic Zone: A Latin American Perspective (Westview Press 1984) 3. A L Hollick, ‘The Origins of 200-Mile Offshore Zones’ (1977) 71(3) AJIL 494, 495; H Chiu, ‘Some Problems concerning the Application of the Maritime Boundary Delimitation Provisions of the 1982 United Nations Convention on the Law of the Sea between Adjacent or Opposite States’ (1985) 9(1) MDJILT 1, 12. Dean (n 12) 609. Agreements between Chile, Ecuador and Peru, signed at the First Conference on the Exploitation and Conservation of the Maritime Resources of the South Pacific (18 August 1952). Reproduced in Lay et al. (eds), New Directions in the Law of the Sea, Vol I (Oceana 1973) 231; Hollick (n 201) 500; Treves (n 20) 11–12; it is also argued that the Latin American states assertions were prompted mostly because of the US opposition to the 200 nm limit: E Franckx, ‘The 200Mile Limit: Between Creeping Jurisdiction and Creeping Common Heritage? Some Law of the Sea Considerations from Professor Louis Sohn’s Former L.L.M Student’ (2007) 39(3) GWILR 467, 479; the Santiago Declaration is considered to have played a central role in the establishment of the EEZ concept: Maritime Dispute (Peru v Chile) (Judgment) [2014] ICJ Rep 3, paras 45–70, 74. Peru v Chile (n 203) paras 19, 25, 26, 63; Nordquist et al. (n 107) 494; Nico Schrijver, Sovereignty over Natural Resources: Balancing Rights and Duties (CUP 1997) 205; C Gray, ‘The 2014 Judicial Activity of the International Court of Justice’ (2015) 109(3) AJIL 583, 604. Declaration of Santo Domingo (9 June 1972) 11 ILM 892. Conclusions in the General Report of the African States Regional Seminar on the Law of the Sea, held at Yaoundé (20–30 June 1972) ST/LEG/SER.B/ 16, p. 601. Andreone (n 196) 161. UN Docs A/A.138/SC.II/L.10 and A/A.138/SC.II/L.40. Reproduced in 5 Report of the Committee on the Peaceful Uses of the Sea-bed and the Ocean Floor beyond the Limits of National Jurisdiction (1973) pp. 180–182. Declaration of the Organization of African Unity on the issues of the Law of the Sea (May 1973). Official Records (n 29) Vol III, A/CONF.62/33; Resolution adopted by the Fourth Conference of Heads of State or Government of Non-Aligned Countries (Algiers, 5–9 September 1973). Official Records (n 29) Vol III, A/9330. O’Connell (n 84) 477–480; Barbara Kwiatkowska, The 200 Mile Exclusive Economic Zone in the Law of the Sea (Martinus Nijhoff 1989) 233; D R Rothwell and N Klein, ‘Maritime Security and the Law of the Sea’ in Natalie Klein et al. (eds), Maritime Security: International Law and Policy Perspectives from Australia and New Zealand (Routledge 2010) 28; The Philippines v China Award (n 77) paras 248–249. LOSC (n 87) art 58(3) (emphasis added); the ‘due regard’ rule is also applicable to the coastal state in respect of the rights and duties of other states within its EEZ (Article 56(2) LOSC); B H Oxman, ‘Marine Archaeology and the International Law of the Sea’ (1987–1988) 12(3) CVLAJLA 353, 368. Official Records (n 29) Vol V, A/CONF.62/WP.8/Rev.1/Part II, RSNT (Part II), Introductory note, para 17. Libya/Malta (n 194) para 33; Qatar v Bahrain (n 88) para 226.

The law of the sea conferences 59 214 E D Brown, The International Law of the Sea (Dartmouth 1994) 218; Israel, although it had not previously declared an EEZ, concluded an EEZ delimitation agreement with Cyprus in 2010. See infra (states’ domestic legislation) and Chapter 2, subsections 3.3‒3.4. 215 Libya/Malta (n 194) paras 33–34; Barbados v Trinidad and Tobago Award (n 113) para 234; the creation of ‘grey areas’ in the Bay of Bengal cases turned this well-established view on its head: M Evans, ‘Relevant Circumstances’ in Oude Elferink et al. (n 181) 244 (especially footnotes 97–98). 216 O’Connell (n 84) 579; Kwiatkowska (n 197) 154. 217 Gulf of Maine (n 194) para 19; Guinea/Guinea-Bissau (n 90) para 124; Maritime Delimitation in the Black Sea (Romania v Ukraine) (Judgment) [2009] ICJ Rep 61, para 217. 218 What is part of customary law is the concept of the continental shelf and EEZ together with the ensuing rights and obligations of the coastal state and third states, not all the provisions of Parts V and VI LOSC: Roach (n 45) 246–248. 219 Shearer (n 90) 220–222, 245; Klein (n 146) 99. 220 Tunisia/Libya (n 170) para 100; Gulf of Maine case (n 194) para 94; Libya/ Malta (n 194) paras 33–34; Maritime Delimitation in the Area between Greenland and Jan Mayen (Denmark v Norway) [1993] ICJ Rep 38, para 47. 221 B Vukas, ‘State Practice in the Aftermath of the UN Convention on the Law of the Sea: The Exclusive Economic Zone and the Mediterranean Sea’ in Anastasia Strati et al. (eds), Unresolved Issues and New Challenges to the Law of the Sea: Time Before and Time After (Martinus Nijhoff 2006) 256; T Scovazzi, ‘Recent Developments as regards Maritime Delimitation in the Adriatic Sea’ in Rainer Lagoni and Daniel Vignes (eds), Maritime Delimitation (Martinus Nijhoff 2006) 195–196. 222 Brown (n 184) I.10 24; see Chapter 2, subsection 3.3. 223 Official Records (n 29) Vol I, A/CONF.62/SR.23, paras 65, 67 (Egypt); A/CONF.62/SR.32, para 25 (Greece); A/CONF.62/SR.33, paras 21, 23 (Lebanon); A/CONF.62/SR.40, para 37 (Cyprus). 224 Official Records (n 29) Vol I, A/CONF.62/SR.36, para 34; Vol II, A/CONF.62/C.2/SR.22, paras 111–113, 120–121; Vol XI, A/CONF.62/ SR.114, para 36. 225 Official Records (n 29) Vol I, A/CONF.62/SR.32, para 16. 226 Greece, ‘Articles 44, 46 and 61 (RSNT II)’ (June 1977) in Platzöder (n 62) 418. 227 Official Records (n 29) Vol II, A/CONF.62/C.2/SR.27, para 26 (Turkey); A/CONF.62/C.2/SR.28, para 56 (Lebanon). 228 Official Records (n 29) Vol II, A/CONF.62/C.2/SR.28, paras 57, 61, 64. 229 See Chapter 2, section 3. 230 Because of the delimitation disputes with Greece and Cyprus. Korkut (n 72) 121. 231 Decree 86/11264 by the Council of Ministers (17 December 1986), arts 1–3, www.un.org/depts/los/LEGISLATIONANDTREATIES/PDFFILES/TUR_ 1986_Decree.pdf. 232 Ibid art 1; on Turkey’s EEZ agreements in the Black Sea, see Ioannidis (n 1) 215–224; on the Turkish position as regards delimitation according to equitable principles in the East Med, see Chapter 3, subsection 5.2. 233 ‘[A]s from 1 January 1977, Member States shall, by means of concerted action, extend the limits of their fishing zones to 200 miles off their North Sea and North Atlantic coasts, without prejudice to similar action being taken for the other fishing zones within their jurisdiction such as the Mediterranean’ (emphasis added): Council Resolution of 3 November 1976 on external aspects of the

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The law of the sea conferences creation of a 200-mile fishing zone in the Community with effect from 1 January 1977 [1981] OJ C 105/1; Acer (n 46) 42; the EU proposed the establishment of fisheries zones up to 200 nm again in 2002: European Commission, ‘Community Action Plan for the conservation and sustainable exploitation of fisheries resources in the Mediterranean Sea under the Common Fisheries Policy’ COM (2002) 535 final. Law No 2289/1995 on prospecting, exploration and exploitation of hydrocarbons and other provisions, as amended by Law No 4001/2011, art 2. Reproduced in 79 LSB 14 (2013); previously, Greece had declared its rights over its continental shelf by virtue of Legislative Decree 142/1969 adopting the 200 m depth criterion. LOSC (n 87) art 60(4)(5)(6); these rules can be deemed part of customary international law. N Klein, ‘Legal Implications of Australia’s Maritime Identification Zone’ (2006) 55(2) ICLQ 337, 340; during the UNCLOS III concerns were expressed on whether the 500 metres breadth is insufficient, but eventually was retained leaving any changes to be made to the competent international organisation, namely the IMO. O’Connell (n 84) 502; in a report on the matter, the IMO stressed that there is no need for a broader safety zone limit. IMO Sub-committee on the Safety of Navigation, Report to the Maritime Safety Committee (NAV 56/20, 21 August 2010) paras 4.15–4.16; A Harel, ‘Preventing Terrorist Attacks on Offshore Platforms: Do States Have Sufficient Legal Tools?’ (2012) 4 HNSJ 131; S Pesch, ‘Coastal State Jurisdiction around Installations: Safety Zones in the Law of the Sea’ (2015) 30(3) IJMCL 512. Arctic Sunrise Award (The Netherlands v Russia) [2015] paras 211, 248–249, www.pcacases.com/web/sendAttach/1438. LOSC (n 87) art 60(2); Nordquist et al. (n 107) 585; Kwiatkowska (n 197) 161; Rosalyn Higgins, Problems and Process: International Law and How We Use It (OUP 1995) 138; Oude Elferink maintains that the coastal state has ‘comprehensive jurisdiction’ over such installations, but also refers to the entitlement to enforce ‘all applicable legislation’ on the installation. The use of the term ‘applicable’ rightly adds a qualification entailing that a state cannot implement the whole ambit of state legislation on installations: A G Oude Elferink, ‘The Arctic Sunrise Incident: A Multi-faceted Law of the Sea Case with a Human Rights Dimension’ (2014) 29(2) IJMCL 244, 255, 257, 270; the Arbitral Tribunal in the South China Sea case discussed the provisions of Articles 60 and 80 LOSC – reiterating, in essence, their content ‒ mentioning that the coastal state has ‘exclusive decision-making and regulatory power over the construction and operation of artificial islands and of installations and structures’ without referring to what extent the coastal state’s legislation is applicable over those: The Philippines v China Award (n 77) paras 1015–1043 (especially para 1035). Presidential Decision No. 1051/1958 concerning the Continental Shelf, www.un.org/depts/los/LEGISLATIONANDTREATIES/PDFFILES/EGY_ 1958_Decision.pdf. Egyptian Declarations (n 65); Report of the Secretary-General, ‘Oceans and the Law of the Sea’ (1994) UN Doc A/49/631, para 29; 2003 Secretary-General Report (n 43) para 30; T Treves, ‘International Legal Problems of Marine Scientific Research with Particular Reference to the Mediterranean Sea’ in Umberto Leanza (ed), Il Regime Giuridico Internationale del Mare Mediterraneo (Giuffrè Editore 1987) 299–300. I Papanicolopulu, ‘A Note on Maritime Delimitation in a Multizonal Context: The Case of the Mediterranean’ (2007) 38(4) ODIL 381, 391; I Papanicolopulu, ‘Mediterranean Sea’ in Rothwell et al. (n 20) 608; for an

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242 243 244 245 246 247 248 249 250

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analysis of the delimitation agreements in the East Med see Chapter 2, subsection 3.4.; see also Chapter 3, subsection 5.3. List of Geographical Coordinates for the Delimitation of the Northern Limit of the Territorial Sea and Exclusive Economic Zone of the State of Israel (12 July 2011), www.un.org/depts/los/LEGISLATIONANDTREATIES/PDFFILES/ isr_eez_northernlimit2011.pdf. Submarine Areas Law (10 February 1953), www.un.org/depts/los/ LEGISLATIONANDTREATIES/PDFFILES/ISR_1953_Law.pdf. Law No 28/2003 (n 140) arts 21, 23(c). Ibid arts 22–23, 27. Ibid arts 24(b) and 25(a); on the validity of permit requests for the laying of submarine cables and pipelines see infra (discussion on the Cypriot legislation). Ibid art 30. Law 163/2011 (n 160) arts 6–7. Decree 6433/2011 on the Delineation of the boundaries of the exclusive economic zone of Lebanon (1 October 2011), www.un.org/depts/los/ LEGISLATIONANDTREATIES/PDFFILES/lbn_2011decree6433.pdf. See Chapter 3, subsection 4.2. Law 163/2011 (n 160) arts 8–11, 13, 15; the Offshore Petroleum Resources Law 132/2010 confers exclusive ownership of petroleum resources to the state: Offshore Petroleum Resources Law 132/2010, art 4, www.lpa.gov.lb/pdf/ OPRL%20-%20English.pdf. The Exclusive Economic Zone and the Continental Shelf Laws 2004 and 2014, 64(I)/2004, www.mfa.gov.cy/mfa/mfa2016.nsf/all/8D450A891DD09140C 2258042004122E8/$file/THE%20EXCLUSING%20ECONOMIC%20ZONE %20AND%20THE%20CONTINENTAL%20SHELF%20LAWS%202004%20AND %202014FINAL.pdf?openelement; Cyprus had previously enacted the Continental Shelf Law 8/1974 incorporating the provisions of the 1958 Convention on the Continental Shelf. EEZ and Continental Shelf Laws (n 251) art 3(2). EEZ and Continental Shelf Laws (n 251) arts 7–8; those provisions served as the legal basis for the issuance of arrest warrants for those participating in the drilling operations carried out by Turkey in the continental shelf/EEZ of Cyprus. See Chapter 3, subsection 5.4. Declaration concerning the competence of the European Community with regard to matters governed by the United Nations Convention on the Law of the Sea of 10 December 1982 and the Agreement of 28 July 1994 relating to the implementation of Part XI of the Convention, www.un.org/depts/los/ convention_agreements/convention_declarations.htm#European Community Upon signature; Joined Cases C-3/76, 4/76 and 6/76 Cornelius Kramer and others [1976] ECR 1279; Joined Cases C-63/90 and 67/90 Spain and Portugal v Council [1992] ECR I-05073, para 44; Case C-70/90 Spain v Council [1992] ECR I-05159, para 29; C-71/90 Spain v Council [1992] ECR I-05175, para 29; C-73/90 Spain v Council [1992] ECR I-05191, para 32; S Bolaert-Suominen, ‘The European Community, the European Court of Justice and the Law of the Sea’ (2008) 23(4) IJMCL 643, 669 n 89, 671–673; Treaty on the Functioning of the European Union [2008] OJ C 115/47 art 3(d); Regulation 1380/2013 (n 121); J F Buhl, ‘The European Economic Community and the Law of the Sea’ (1982) 11(3–4) ODIL 181, 189. See footnote 123. M/V “Virginia G” (Panama/Guinea-Bissau), Judgment, ITLOS Reports 2014, p. 4, para 157; Nordquist et al. (n 107) 795; Rothwell and Stephens (n 28) 462–463; William T Burke, The New International Law of Fisheries: UNCLOS

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259 260 261 262 263 264 265 266 267 268 269

The law of the sea conferences 1982 and Beyond (Clarendon Press 1994) 314; Treves argues that the duty of prompt release denies the option of imprisonment: T Treves, ‘Human Rights and the Law of the Sea’ (2010) 28(1) BJIL 1, 5; see also “Juno Trader” (Saint Vincent and the Grenadines v Guinea-Bissau), Prompt Release, Judgment, ITLOS Reports 2004, p. 17, para 77. EEZ and Continental Shelf Laws (n 251) art 8A. Regulations 578/2014 and 579/2014 on the conditions for the granting of a permission to lay submarine cables and pipelines respectively issued by the government of the Republic of Cyprus; this applies to the respective provisions of the Syrian legislation as well: Churchill and Lowe (n 4) 170, 174; Maria Gavouneli, Functional Jurisdiction in the Law of the Sea (Martinus Nijhoff 2007) 65–66; Anderson supports that the term ‘freedom’ should be subjected to some qualifications even on the high seas: D Anderson, ‘Freedoms of the High Seas in the Modern Law of the Sea’ in Freestone et al. (n 143) 331; M Hayashi, ‘Straddling and Highly Migratory Fish Stocks Agreements’ in Ellen Hey (ed), Developments in International Fisheries Law (Kluwer Law International 1999) 76; for instance, even though Denmark was extremely reluctant to allow the laying of the ‘Nord Stream II’ on its continental shelf/EEZ setting a host of conditions, it eventually gave its consent. The Danish government had previously rejected a route through its territorial sea and suggested an alternative one: Nord Stream 2, ‘Permitting Process in Denmark’, www. nord-stream2.com/permitting-denmark/danish-permitting-process. This example demonstrates that a coastal state cannot impede the laying of a pipeline on its continental shelf/EEZ, save for exceptional reasons. Beckman and Davenport (n 196) pp. 21–24; T Davenport, ‘Submarine Communications Cables and Law of the Sea: Problems in Law and Practice’ (2012) 43(3) ODIL 201. IMO, Safety Zones and Safety of Navigation around Offshore Installations and Structures, Resolution A.671(16) 1989. EEZ and Continental Shelf Laws (n 251) art 11. Cyprus, Antiquities Law, Cap 31, arts 18A–18D; the Law provides for the creation of Zones for the Protection of Underwater Antiquities. T Scovazzi, ‘The Protection of Underwater Cultural Heritage: Article 303 and the UNESCO Convention’ in Freestone (n 143) 134. Kwiatkowska had predicted the development of the concept of an ‘offshore cultural protection zone’ up to 200 nm: Kwiatkowska (n 197) 164. M J Aznar, ‘The Contiguous Zone as an Archaeological Maritime Zone’ (2014) 29(1) IJMCL 1, 47; see also David Attard, The Exclusive Economic Zone in International Law (Clarendon Press 1987) 121. See Chapter 2, subsection 4.2. North Sea cases (n 93) para 63; ‘[T]he entitlement to continental shelf is the same for an island as for mainland’: Libya/Malta (n 194) para 52. R Beckman and C Schofield, ‘Moving Beyond Disputes Over Island Sovereignty: ICJ Decision Sets Stage for Maritime Boundary Delimitation in the Singapore Strait’ (2009) 40(1) ODIL 1, 14. Anglo-French Continental Shelf Case (United Kingdom of Great Britain and Northern Ireland/France) [1977] 18 RIAA 3, para 202; Dubai/Sharjah Border Arbitration [1981] 91 ILR 543, paras 258–259; Eritrea/Yemen (Maritime Delimitation) (n 45) paras 119, 155; Qatar v Bahrain (n 88) para 205; Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v Honduras) (Judgment) [2007] ICJ Rep 659, para 302; Bangladesh/Myanmar (n 174) para 169; Nicaragua v Colombia (n 84)

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271 272 273 274 275 276

277 278 279 280 281

282 283 284 285 286 287 288 289 290

paras 36, 178; D E Karl, ‘Islands and the Delimitation of the Continental Shelf: A Framework for Analysis’ (1977) 71 AJIL 653. Turkish note verbale (27 February 1974). Reproduced in Aegean Sea Continental Shelf case (Greece v Turkey) ICJ Pleadings 23–25; Official Records (n 29) Vol I, A/CONF.62/SR.39, paras 29, 38; Turkish scientists argue that there is a geological unity between the eastern Aegean islands and Asia Minor: M Eryilmaz et al., ‘Underwater Morphology of the Aegean Sea and Natural Prolongation of the Anatolian Mainland’ (1998) 4(2) TJMS 61, 68–69, 71; the natural prolongations of Greece and Turkey do not seem to be separated: Acer (n 46) 14, 16–17, 230–231. Convention on the Territorial Sea (n 5) art 12(1); Convention on the Continental Shelf (n 8) art 6(2); on the special circumstances concept, see Brown (n 184) I.6 28–38. YBILC, Vol II (1953) 216. Official Records (n 29) Vol II, A/CONF.62/C.2/SR.24, para 27; Vol III, A/ CONF.62/C.2/L.32 and A/CONF.62/C.2/L.50. Official Records (n 29) Vol II, A/CONF.62/C.2/SR.39, paras 76–78. Official Records (n 29) Vol II, A/CONF.62/C.2/SR.6, para 13; Acer (n 46) 152. Acer points out that Turkey recognises the right of islands to a continental shelf, but it disputes their capacity to have full effect in delimitation cases. Y Acer, ‘The Aegean Issue: Parties, Arguments and the Relevant Delimitation Law’ (Turkish Weekly, 6 September 2007); Acer (n 46) 154. Bolükbasi (n 46) 531. Acer (n 46) 231–232; Y Acer, ‘Maritime Delimitation in the Aegean Sea’, Part II (22 May 2007). Official Records (n 29) Vol I, A/CONF.62/SR.40, para 40; Vol II, A/ CONF.62/C.2/SR.22, para 88 and A/CONF.62/C.2/SR.40, paras 17–18; Vol IX, A/CONF.62/SR.105, para 43; Vol XVII, A/CONF.62/SR.189, para 70. Official Records (n 29) Vol II, A/CONF.62/C.2/SR.40, para 20. Official Records (n 29) Vol II, A/CONF.62/C.2/SR 39, paras 62–63; Vol III, A/CONF.62/C.2/L.55; Turkey, ‘Article 61 (ISNT II)’ (15 April 1976) and ‘Article 132 (ISNT II)’ (25 April 1976), Turkey and others, ‘Article 128 (RSNT II)’ in Platzöder (n 62) 319–320, 348, 483; according to Saltzman, the criteria invoked by Turkey have been rejected or have not been taken into account by the ICJ: Saltzman (n 71) 198; an Arbitral Tribunal constituted under Annex VII LOSC stressed that factors ‘such as size, prior civilian habitation, and the presence of productive soil, flora, and fauna might all be informative but not determinative’ to decide whether a feature is an island or not: The Philippines v China Award (n 77) para 422. Official Records (n 29) Vol VII, A/CONF.62/C.2/L.96. Official Records (n 29) Vol IX, A/CONF.62/SR.104, para 62. Official Records (n 29) Vol XIII, A/CONF.62/SR.128, para 90; Vol XVI, A/CONF.62/SR.166, para 13. Official Records (n 29) Vol XVI, A/CONF.62/SR.165, para 110; Schmitt (n 79) 40. Official Records (n 29) Vol XIII, A/CONF.62/SR.127, para 37. Official Records (n 29) Vol XIV, A/CONF.62/SR.140, para 55. Turkey, ‘Article 61 (ISNT II)’ (15 April 1976) in Platzöder (n 62) 319–320; Turkey and others, ‘Article 121’, C.2/Informal Meeting/21 (28 April 1978) in Platzöder (n 79) 30; Official Records (n 29) Vol XVI, A/CONF.62/SR.160, para 11. Official Records (n 29) Vol XVII, A/CONF.62/SR.189, para 166. Official Records (n 29), Vol XIII, A/CONF.62/SR.127, para 26.

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291 Official Records (n 29) Vol IX, A/CONF.62/SR.103, para 49; Vol XVI, A/ CONF.62/SR.168, para 41 (Greece); Vol XVI, A/CONF.62/WS/20 (Turkey); the Arbitral Tribunal in the 2016 The Philippines v China case made a lengthy analysis of Article 121(3) LOSC in paras 473–553 (n 77). 292 Canada/France Award (n 25) para 46; Nicaragua v Colombia (n 84) para 214. 293 See footnote 184; Karl (n 269) 654. 294 Libya/Malta (n 194) para 52; Jan Mayen case (n 220) para 70; Qatar v Bahrain (n 88) para 185; Nicaragua v Colombia (n 84) para 176. 295 Nicaragua v Colombia (n 84) para 139. 296 R W Smith and L T Bradford, ‘Island Disputes and the Law of the Sea: An Examination of Sovereignty and Delimitation Dispute’ (1998) 2(4) Maritime Briefing 1, 18, 22; on the diminished effect of islands in maritime delimitation, see Anglo-French Case (n 269); Tunisia/Libya (n 170); Black Sea (n 217); Bangladesh/Myanmar (n 174); Derek Bowett, The Legal Regime of Islands in International Law (Oceana Publications 1979); Hiran W Jayewardene, The Regime of Islands in International Law (Martinus Nijhoff 1990) 354–371; Rothwell and Stephens (n 28) 437–439; Churchill and Lowe (n 4) 188–189; Kwiatkowska (n 844) 295; M D Evans, ‘Maritime Boundary Delimitation’ in Rothwell et al. (n 20) 272–274. 297 See Chapter 2, subsection 3.2. 298 Lando (n 93) 155. 299 Ibid 185–186. 300 Bangladesh/Myanmar (n 174) paras 317, 147; on the effect of insular features in maritime delimitations see D Bowett, ‘Islands, Rocks, Reefs, and Low-Tide Elevations in Maritime Boundary Delimitations’ in Jonathan I Charney and Lewis M Alexander (eds), International Maritime Boundaries, Vol I (Martinus Nijhoff 1993) 131–151; Jayewardene (n 296) 355–489; Sean Murphy, International Law Relating to Islands (Brill 2017) 221–276. 301 See Chapter 2, subsections 3.3.-3.4. 302 There is no distinction between the two concepts as the legal regime envisaged in the Convention applies to both: Mitja Grbec, Extension of Coastal State Jurisdiction in Enclosed and Semi-enclosed Seas: A Mediterranean and Adriatic Perspective (Routledge 2014) 24–25. 303 Acer (n 46) 137; LOSC (n 87) arts 122–123 (‘Enclosed or semi-enclosed seas’). 304 Official Records (n 29) Vol XVII, A/CONF.62/WS/37 and Add.1–2, p. 242; Korkut (n 72) 34–35. 305 Official Records (n 29) Vol III, A/CONF.62/C.2/L.8, para 3; Turkey and Yugoslavia, ‘Articles 129–133 (RSNT II)’ (22 June 1977) and Turkey, ‘Articles 130–132 (RSNT II)’ (14 June 1977) in Platzöder (n 62) 491–493; Turkey and others, ‘Articles 122–123’, C.2/Informal Meeting/18 and Rev.1 (28 April and 1 September 1978) and Turkey, ‘Article 3’, C.2/Informal Meeting/23 (28 April 1978) in Platzöder (n 79) 24–25, 33; Toluner (n 71) 123; Grbec (n 302) 31, 46–47. 306 Official Records (n 29) Vol III, A/CONF.62/C.2/L.56; Turkey, ‘Articles 133–135 (ISNT II)’ and ‘Articles 133–136 (ISNT II)’ (27 April 1976) and Turkey and others, ‘Article 129’ (22 June 1977) and Turkey, ‘Articles 129–132 (RSNT II)’ (8 June 1977) and Turkey and Yugoslavia, ‘Articles 129–133 (RSNT II)’ (8 June 1977) in Platzöder (n 62) 351–354, 486–488, 491–493. 307 Nordquist et al. (n 107) 814; Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v Nigeria: Equatorial Guinea intervening) (Judgment) [2002] ICJ Rep 303, para 294. 308 Fisheries case (n 98) p. 132; Tunisia/Libya (n 170) para 87; see Chapter 3, subsection 4.2.

The law of the sea conferences 65 309 Myron H Nordquist, Shabtai Rosenne, Satya N Nandan (eds), United Nations Convention on the Law of the Sea 1982: A Commentary, Vol III (Martinus Nijhoff 1995) 366; D M Ong, ‘Joint Development of Common Offshore Oil and Gas Deposits: “Mere” State Practice or Customary International Law?’ (1999) 93(4) AJIL 771, 782–783; R J McLaughlin, ‘Maritime Boundary Delimitation and Cooperative Management of Transboundary Hydrocarbons in the Ultra-deepwaters of the Gulf of Mexico’ in Hong and van Dyke (n 25) 213; conversely, Grbec argues that states bordering enclosed or semi-enclosed seas have a general obligation on the basis of good faith to cooperate on all matters including the extension of the territorial sea breadth, as well as the proclamation of EEZ: Grbec (n 302) 36–46, 58, 67. 310 Official Records (n 29) Vol IV, A/CONF.62/C.2/SR.48, para 37. 311 Official Records (n 29) Vol XVII, A/CONF.62/SR.189, para 147; Turkey, ‘Article 123, chapeu, line 1’, C.2/Informal Meeting/71 (18 March 1982) in Platzöder (n 79) 76. 312 Nordquist et al. (n 113) 152; ‘Turkey … must also contend with the fact that as a non-party to the UNCLOS, its ability to assert a violation of its provisions is limited’: Saltzman (n 71) 193. 313 The Chagos Marine Protected Area Award (Mauritius v United Kingdom) [2015] para 303, www.pca-cpa.org/showpage.asp?pag_id=1429; ‘[A]rticle 300 cannot be invoked on its own. It becomes relevant only when “the rights, jurisdiction and freedoms recognised” in the Convention are exercised in an abusive manner’: M/V “Louisa” (Saint Vincent and the Grenadines v Kingdom of Spain), Judgment, ITLOS Reports 2013, p. 4, para 137; M/V “Virginia G” (n 256) paras 396, 398–399; M/V “Norstar” (Panama v. Italy), Judgment, ITLOS Reports 2018–2019, to be published, para 241. 314 Bing (n 59) 23. 315 Official Records (n 29) Vol II, A/CONF.62/C.2/SR.38, paras 9–10. 316 Official Records (n 29) Vol XVI, A/CONF.62/SR.163, paras 48–49, 55; Israel, ‘Article 130 bis (RSNT II)’ (14 June 1977) in Platzöder (n 62) 494. 317 Official Records (n 29) Vol II, A/CONF.62/C.2/SR.38, paras 52–53; Vol XVII, A/CONF.62/SR.191, paras 137–138. 318 Official Records (n 29) Vol XV, A/CONF.62/SR.148, para 64. 319 Official Records (n 29) Vol IX, A/CONF.62/SR.105, para 43; Vol XVI, A/CONF.62/SR.166, para 13. 320 Nordquist et al. (n 309) 365; B H Oxman, ‘The Territorial Temptation: A Siren Song at Sea’ (2006) 100(4) AJIL 830, 843; Faraj Abdullah Ahnish, The International Law of Maritime Boundaries and the Practice of States in the Mediterranean Sea (Clarendon Press 1993) 268. 321 Oral (n 70) 68; the relevant articles of the Convention refer to cooperation only with respect to fisheries, marine environment and marine scientific research: LOSC (n 87) art 123. 322 Ong (n 309) 782. 323 UNGA Resolutions on the Law of the Sea (n 41). 324 2004 Secretary-General Report (n 43) para 41 (emphasis added). 325 Daniel P O’Connell, The International Law of the Sea, Vol II (Ivan A Shearer ed, Clarendon Press 1982) 635–732; Churchill and Lowe (n 4) 181–200; Evans in Rothwell et al. (n 296) 254–279; Rothwell and Stephens (n 28) 412–444; see also Chapter 2, subsection 3.2. 326 Nicaragua v Honduras (n 269) para 269; Rothwell and Stephens (n 28) 421; Evans in Rothwell et al. (n 296) 254–256. 327 Qatar v Bahrain (n 88) paras 175–176; Nicaragua v Honduras (n 269) paras 268, 281.

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328 North Sea cases (n 93) paras 22–23, 57, 82, 85, 101; Tunisia/Libya (n 170) paras 109–111; the ICJ referred to the length and direction of the coastlines, the presence of islands and previously established colonial boundaries as being relevant circumstances: Tunisia/Libya (n 170) paras 75–95; M D Blecher, ‘Equitable Delimitation of Continental Shelf’ (1979) 73(1) AJIL 60, 60–78; P Bravender-Coyle, ‘The Emerging Legal Principles and Equitable Criteria Governing the Delimitation of Maritime Boundaries between States’ (1988) 19(3) ODIL 171, 171–227; Robert Kolb, Case Law on Equitable Maritime Delimitation: Digest and Commentaries (Martinus Nijhoff 2003); Thomas Cottier, Equitable Principles of Maritime Boundary Delimitation: The Quest for Distributive Justice in International Law (CUP 2015). 329 J P Kozyris, ‘Equity, Equidistance, Proportionality at Sea: the Status of Island Coastal Fronts and a Coda for the Aegean’ in Kariotis (n 115) 51. 330 Kwiatkowska (n 84) 289, 303–304. 331 Beckman and Schofield (n 268) 12; M D Evans, ‘Maritime Boundary Delimitation: Whatever Next?’ in Barrett and Barnes (n 113) 56. 332 Official Records (n 29) Vol II, A/CONF.62/C.2/SR.19, para 37 (Turkey); Vol IX, A/CONF.62/SR.105, para 47 (Syria). 333 Official Records (n 29) Vol I, A/CONF.62/SR.32, para 26 (Greece) and A/CONF.62/SR.40, para 41 (Cyprus). 334 Official Records (n 29) Vol IX, A/CONF.62/62; T T B Koh and S Jayakumar, ‘The Negotiating Process of the Third United Nations Conference on the Law of the Sea’ in Nordquist et al. (n 31) 78–79. 335 Israel, ‘Informal Working Paper’, NG7/28 (28 March 1979) in Renate Platzöder (ed), Third United Nations Conference on the Law of the Sea: Documents, Vol IX (Oceana Publications 1987) 448. 336 See footnote 328. 337 Official Records (n 29) Vol III, A/CONF.62/C.2/L.9; UN Doc A/AC.138/ SC.II/L.22 and Rev. 1. Reproduced in Seabed Committee Report (n 96) pp. 22–23; Turkish scholars have criticised the prevalence of the median line over equitable principles regarding territorial sea delimitation: Korkut (n 72) 39; however, it should be recalled that the Turkish 1964 Law on the Territorial Sea had supported territorial sea delimitation according to the median line. Supra, subsection 2.3.1. 338 Anglo-French Case (n 269) paras 244–245; Jayewardene (n 296) 345–346; Bowett (n 296) 35–36. 339 Official Records (n 29) Vol III, A/CONF.62/C.2/L.23 and A/CONF.62/ C.2/L.34; Turkey, ‘Article 61 (ISNT II)’ (15 April 1976) and Turkey and others, ‘Articles 62 and 71 (RSNT II)’ in Platzöder (n 62) 319, 468; Turkey and others, ‘Informal suggestions relating to Articles 74 and 83’, NG7/4 (21 April 1978) and NG7/10/Rev.2 (28 March 1980) in Platzöder (n 335) 397, 404. 340 Official Records (n 29) Vol XVI, A/CONF.62/SR.160, para 11; on the Turkish position as regards delimitation and the effect of islands see Korkut (n 72) 109–11, 134–138. 341 Angelos M Syrigos, Greco-Turkish Relations (Pataki Publishing 2015) [in Greek] 251. 342 S Alexandrov, ‘The Delimitation of the Continental Shelf in an Enclosed Sea’ (1992) 5 Hague Yearbook of International Law 3, 19; Black Sea case (n 217) para 178; for the delimitations in the Black Sea, see footnote 232. 343 Official Records (n 29) Vol II, A/CONF.62/C.2/SR.5, paras 24, 28.

The law of the sea conferences 67 344 Official Records (n 29) Vol II, A/CONF.62/C.2/SR.18, para 50; Greece, Cyprus and others, ‘Informal suggestions relating to paragraphs 1, 2 and 3 of Articles 74 and 84 ICNT’, NG7/2 and Rev.1 and 2 (20 April 1978, 25 and 28 March 1980) in Platzöder (n 335) 392–394. 345 Official Records (n 29) Vol IX, A/CONF.62/SR.103, para 50. 346 Official Records (n 29) Vol V, A/CONF.62/SR.60, para 49. 347 Official Records (n 29) Vol II, A/CONF.62/C.2/SR.20, para 43; this position is mirrored in Cyprus’ legislation. See supra, subsection 2.3.3. 348 See footnote 333. 349 Nordquist et al. (n 107) 814; see Chapter 2, subsection 3.2. 350 Eritrea/Yemen (Maritime Delimitation) (n 45) para 116; F Bastianelli, ‘Border Delimitation in the Mediterranean Sea’ (1982) 17(4) Lo Spettatore Internazionale 319, 331, 333; M D Evans, ‘Maritime Boundary Delimitation: Where Do We Go From Here?’ in Freestone et al. (n 143) 138; Rothwell and Stephens (n 28) 422. 351 H L A Hart, The Concept of Law (3rd edn, OUP 2012) 135. 352 Anglo-French Continental Shelf case (n 269) paras 65, 87, 148; Jan Mayen case (n 220) paras 46, 56; Qatar v Bahrain (n 88) paras 174–176, 231; Cameroon v Nigeria (n 307) para 288; Bangladesh/Myanmar (n 174) para 239. 353 Libya/Malta (n 194) para 44; Jan Mayen case (n 220) paras 56, 64; Eritrea/ Yemen (Maritime Delimitation) (n 45) para 131; Yoshifumi Tanaka, Predictability and Flexibility in the Law of Maritime Delimitation (Hart Publishing 2006) 96–98; Evans in Barrett and Barnes (n 331) 47–48. 354 Statement by Rolf Einar Fife during the LOSC 20th Anniversary Commemoration in a panel discussion on ‘Challenges for the Present and Solutions for the Future’. Reproduced in Andrew Jacovides, International Law and Diplomacy (Martinus Nijhoff 2011) 106; Rothwell and Stephens (n 28) 423; Evans in Rothwell et al. (n 296) 257–259. 355 Brown (n 184) I.6 37, I.7 18, I.10 2. 356 Kwiatkowska (n 84) 290, 300–301. 357 See Chapter 3, section 3. 358 Brown (n 184) I.10 27; see also Chapter 2, subsection 3.2. 359 See Chapter 2, subsection 3.2. 360 See Chapter 2, subsections 3.3–3.4. 361 Statement by Turkey (25 March 2019), http://statements.unmeetings.org/ media2/21102581/turkey.pdf; non-parties’ practice reveals that they invoke and try to act in conformity with the LOSC rules. On this point, a Turkish author notes: ‘[M]ost provisions of the LOSC are customary international law. Turkey, well aware of this situation, is endeavouring to comply with the LOSC’: Korkut (n 72) 222. 362 Anglo-Iranian Oil Co. Case (Jurisdiction) [1952] ICJ Rep 93; ‘[M]unicipal laws are merely facts which express the will and constitute the activities of States, in the same manner as do legal decisions or administrative measures’: Certain German Interests in Upper Silesia (Germany v Poland) (Merits) [1926] Series A No 7, p. 19. 363 The East Med states’ contemporary viewpoints on core law of the sea issues are also reflected in their practice, which is analysed in Chapters 2 and 3. 364 UNGA, ‘Oceans and the Law of the Sea – Report of the Secretary-General’ (1996) UN Doc A/51/645, para 39; 1998 Secretary-General Report (n 43) paras 2–4; 1999 Secretary-General Report (n 154) para 73; 2002 SecretaryGeneral Report (n 43) para 52; 2004 Secretary-General Report (n 43) paras 12, 307; all annual UNGA resolutions on the law of the sea refer to the need for harmonisation of all states’ legislation with the LOSC.

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365 LOSC (n 87) art 310; UNGA, ‘Oceans and the Law of the Sea – Report of the Secretary-General’ (1997) UN Doc A/52/487, para 15; Black Sea case (n 217) para 42; ‘[A] State which has contracted valid international obligations is bound to make in its legislation such modifications as may be necessary to ensure the fulfilment of the obligations undertaken’: Exchange of Greek and Turkish Populations (Advisory Opinion) [1924] PCIJ Rep Series B No 10, p. 20. 366 ‘I wish to express a serious concern about the tendency by some coastal states to expand their jurisdictions and their rights in violation of the Convention. Some states have drawn straight baselines when they are not so entitled. Other states have enacted laws and regulations governing activities in the Exclusive Economic Zone even though they have no jurisdiction over such activities under the Convention’: T Koh, ‘Singapore’ in DOALOS, United Nations Convention on the Law of the Sea at Thirty: Reflections (2013) 106. 367 Korkut (n 72) 10.

2

Contemporary developments with respect to the oil and gas discoveries and maritime delimitation in the Eastern Mediterranean sea

1 Introduction For the better part of the 20th century navigation and fishing remained the main preoccupation of the East Med peoples. By the end of the millennium, the discovery of the ‘Noa’ gas field offshore Israel appeared to be changing the East Med states’ perception of the usage of the sea.1 Even though the region is rich in onshore oil and gas, the finding of hydrocarbons in the seabed and subsoil of their waters reinvigorated the regional states’ interest in the sea. More reserves were found off the shores of Israel, Cyprus and Egypt,2 while the United States Geological Survey estimated that the Levant Basin alone contains 1.7 million barrels of oil and 122 trillion cubic feet of natural gas.3 This energy boom made the regional states realise that in order to take advantage of the immense un­ derwater wealth, they must act in compliance with the law of the sea. Considering that the oil and gas industry in the East Med is rapidly growing, expectations are high for the East Med states, which aim to improve their economies and turn themselves into energy producers and exporters. The crux of the matter is that once again the sea has been generous and provides the East Med states with an opportunity to progress and prosper. Oil and gas exploration and exploitation, as well as its transportation (either via pipelines or by ships) have been at the forefront over the last years. Despite this, it should not escape notice that hydrocarbon activities are of a commercial character. It follows that the long-standing maritime commercial tradition of the East Med continues in other forms and remains a vital source of income and a pillar of development and stability. As it has rightly been pointed out, the discoveries ‘offer a radical energy shift’ for the regional states; they are a ‘game-changer’, a ‘gas revolution’ and may assist them in improving their economies and transform the region into a gas hub. However, milestones of this kind are usually likened to a double-edged sword, for if there is no prudent management, the oil and gas reserves may end up becoming a curse and a source of friction.4 This chapter aims to present the activities of the East Med states in respect of hydrocarbons, namely the announcement of licensing rounds; the granting of exploration and exploitation licences to oil companies; the hydrocarbon reserves found; and how the EU comes into play in view of oil and gas activities.

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However, this chapter does not elaborate on technical details with regard to oil and gas operations. It merely attempts to provide a general impression of these activities so as to set the backdrop against which the developments analysed later on have occurred. Following the offshore hydrocarbon discoveries, Egypt, Israel, Cyprus and Lebanon granted oil and gas exploration and exploitation conces­ sions5 and proceeded with the development of the reserves found in the seabed and subsoil of their adjacent seas. Turkey was mainly engaged in oil and gas activities in the Black Sea but, in light of the major discoveries in the East Med, decided to carry out operations in its Mediterranean waters as well. Despite encouraging indications regarding the existence of hydrocarbons in the waters off their coasts and their expressed desire to take advantage of those, Syria and Greece for different reasons still lag behind their neighbours in respect of oil and gas development. Further, given that two of the regional states (Greece, Cyprus) are member states of the EU and the Union itself is a party to the LOSC, it is necessary to examine the role of the EU concerning the ongoing developments in the region. This chapter highlights that, on the one hand, the EU seems to attach great significance to its involvement in the East Med energy bonanza in the face of its oft-stated aspiration to diversify its energy supply and the emer­ gence of the East Med states as potential suppliers. On the other, the Union is already present in the region in the sense that its legislation on the granting of hydrocarbon licences, protection of the marine environment and the conduct of fishing activities, as well as safety of offshore oil installations is applicable in the waters of Greece and Cyprus. As examined in Chapter 1, certain East Med states have enacted new laws and regulations, while others are in the process of revising existing and/or of adopting new laws in order to catch up with the rapid developments in the field of hydrocarbons.6 Hence, it is argued that these discoveries have been a catalyst for the application of the law of the sea in the area under concern, given that the regional states have realised the great potential that offshore hydrocarbon de­ posits provide and have decided to open communication channels and seek cooperation within the context of international law. The significance of these discoveries in terms of international law lies in the fact that had they not taken place, probably there would have been no maritime boundary delimitation and other pertinent agreements in the East Med. Therefore, oil and gas discoveries should be praised for being the main reason for the emergence of the East Med as an example of collaboration through the implementation of the law of the sea. This is aptly shown in the boundary delimitation and other pertinent agreements signed by the East Med states. Undoubtedly, the maritime boundary delimitations are a hallmark in the history of the East Med. Against this background, the critical role of the law of maritime delimitation is demonstrated, for the establishment of definitive mar­ itime boundaries contributes to the creation of certainty for investments. Notably, this chapter offers an insight into maritime delimitation law and the delimitation agreements in the region, and makes an article-by-article com­ mentary thereof. EEZ delimitation agreements were concluded between Egypt

Contemporary developments 71 and Cyprus (2003), Lebanon and Cyprus (2007), and Israel and Cyprus (2010). Egypt and Cyprus penned a framework agreement on the development of crossmedian line hydrocarbon resources (2013), while Cyprus has been negotiating framework agreements with Israel and Lebanon. Furthermore, tripartite meet­ ings were held in order to discuss further deepening of collaboration among the parties involved. As this chapter analyses, the aforementioned treaties and declarations have laid the foundations for regional cooperation in an array of maritime activities and the establishment of a secure and stable environment. In respect of the East Med states’ positions on maritime delimitation, Greece and Cyprus remain committed to the median/equidistance line method, which they have championed for decades. A significant point is that the EEZ treaties under concern recognised full effect to the island of Cyprus strengthening the diachronic stance of Greece and Cyprus on the regime of islands entailing that islands should be put on an equal footing with continental lands and generate full maritime zones. Importantly, the EEZ agreements also demonstrate the ad­ herence of Egypt, Lebanon and Israel to the median/equidistance line and lead to the conclusion that there is a practice in favour of the particular formula, albeit not binding. Hence, although their stance was equivocal during the law of the sea conferences, Egypt, Lebanon and Israel seem to adopt the median/equi­ distance line method. Even though Turkey still supports the equitable principles method and does not claim an EEZ in the Aegean and the East Med Seas, it has declared an EEZ and has signed delimitation agreements in the Black Sea in conformity with the median/equidistance line method. Thus, its posture on the matter is not uniform and depends on the region and its neighbours in each case, something which is totally legitimate. This divergence in Turkish behaviour illustrates how states’ actions on legal issues are being driven by political interests. Certainly, this ap­ plies to the other East Med states too and, as seen in the previous chapter, this was discernible over the course of the deliberations at the law of the sea con­ ferences.7 Quite interesting is the fact that notwithstanding that they have not acceded to the LOSC, Turkey and Israel have not only declared an EEZ, but have also delimited segments of it, corroborating the view in favour of the universal application of the Convention and of customary international law co­ dified and/or created by the LOSC. In spite of the fact that the above devel­ opments are encouraging, they, nonetheless, sparked a reaction on the part of Turkey, which in turn caused an immediate response from Greece and Cyprus. At the same time, a maritime dispute between Lebanon and Israel has also surfaced showing that the situation in the East Med remains perplexed. These disagreements resulted in prolonged disputes where the states involved have been expressing their views either through the exchange of letters or by means of acts on the ground.8 In a nutshell, the developments analysed below reaffirm the significance of offshore hydrocarbons, the discovery of which compelled the East Med states to seek collaboration in many sectors within the realm of international law. Moreover, the current circumstances enhance the argument that the sea and

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commercial activities have always been critical for forging cooperation in the East Med and achieving progress and prosperity. While the maritime domain has al­ ways been used for the transportation of goods and the acquisition of food, nowadays it has also become a source of another precious commodity, namely hydrocarbons, which can be transferred by sea either in a liquefied form via ships or in a gaseous form through pipelines laid on the seabed. Therefore, it is in­ ferred that seaborne commercial activities in the region continue in another form, rendering the application of the law of the sea apparatus indispensable, especially maritime delimitation law. As shown below, any wrongful conduct breaching the pertinent legal framework causes friction and impedes states from enjoying the region’s energy dividends.

2 The hydrocarbon bonanza and the role of the European Union 2.1 Overview of the offshore oil and gas activities in the East Med 9 Although onshore oil and gas operations have been conducted for decades on the continental territory of the East Med states, offshore activities were rare due to the lack of appropriate technological means. For instance, the first well off­ shore Israel was drilled in 1969 and the first seismic surveys offshore Cyprus were conducted between 1970 and 1974.10 These activities reflected a global ten­ dency as offshore oil and gas production worldwide soared between 1960 and 1970, especially after the 1973 oil crisis.11 Availing themselves of the evolution of survey and drilling technology, the East Med states have launched bidding rounds and granted licences to oil companies so as to perform offshore oil and gas exploration and exploitation activities. It is argued that the geological structure of the East Med is indicative of vast hydrocarbon reserves12 and surveys have shown that the seabed of the region appears to contain the largest gas wells found in decades.13 Geological data suggests that the Herodotus Basin (between Cyprus and Crete) seems to have a hydrocarbon potential because of the pre­ sence of underwater mud volcanoes,14 partly explaining the conundrum between Turkey on the one hand and Greece and Cyprus on the other over the particular maritime space.15 Nevertheless, with a view to confirming their initial estimates on whether hydrocarbon fields actually exist in a specific area, oil companies need to conduct exploratory and, later, appraisal drillings. On account of the promising indications, several international and stateowned oil companies, including Shell, BP, ENI, Total, Noble, Delek, Avner, Woodside, Exxon Mobil and TPAO (Türkiye Petrolleri Anonim Ortaklığı – Turkish Anonymous Petroleum Company), expressed great interest in the energy potential of the region and have secured oil and gas concessions. A clarification is also necessary from the outset so as to make clear that the geological structure of the East Med maritime area comprises several basins, namely the Levant Basin, the Nile Delta Basin and the Herodotus Basin. Each of these basins presents distinct geological features, albeit with many

Contemporary developments 73 similarities. Moreover, apart from developing their own separate resources, four East Med states (Cyprus, Greece, Egypt and Israel) together with Italy, Jordan and Palestine decided to join forces and establish the Eastern Mediterranean Gas Forum (‘EMGF’) in order to, among others, secure supply and demand, as well as develop the necessary energy infrastructure. Notably, Turkey, Lebanon and Syria do not participate in the Forum, mostly because of the strained re­ lations between Turkey and Cyprus on the one hand and between Israel and Lebanon on the other.16 In particular, Turkey was not invited at all, whereas Lebanon declined an invitation to participate owing to the presence of Israel. Nonetheless, it should be noted that the EMGF is open to all East Med states, while non-East Med states may also take part as observers. In any case, this initiative reaffirms the cooperative mentality prevailing among the majority of regional states in light of the hydrocarbon discoveries and the energy potential. Within this context, Egypt and Cyprus penned an agreement for the laying of an underwater pipeline transferring natural gas from the latter’s fields to Egypt’s liquefied natural gas (‘LNG’) plants.17

Israel Owing to the fact that the largest oil producers are Arab countries, which do not recognise Israel, the Israelis have been very concerned in respect of their energy security.18 Hence, Israel sought to establish its own oil and gas industry as a means of diminishing the country’s energy dependence on Arab states. To this effect, hydrocarbon exploration activities offshore Israel were carried out for the first time in the 1960s,19 but it was not until the late 1990s that significant deposits were found, boosting Israel’s oil and gas sector. The first two significant hydrocarbon reserves were discovered off the Mediterranean coast of Israel in 1999 and were named ‘Noa’ and ‘Mari-B’.20 Interestingly enough, certain au­ thors argue that Israel’s hydrocarbon operations in the now depleted Mari-B field might have fallen within the maritime area that the Palestinians could claim.21 In 2000, the ‘Gaza Marine’ field was discovered offshore Gaza,22 but to date remains undeveloped because of disagreements between Israel and the Palestinians regarding control over gas flows; the reluctance of Israel to pay market price for the gas and revenue sharing; the Hamas takeover in Gaza; and intra-Palestinian conflicts.23 In particular, due to the fact that Hamas assumed power in Gaza in 2007, Israel did not wish to see any income from hydrocarbons used to subsidy the activities of Hamas.24 Notwithstanding apprehension re­ garding the role of Hamas, Israel seems to recognise the rights of the Palestinians over the field.25 Additional findings raised expectations as ‘Tamar’ and ‘Dalit’ (2009), the gigantic ‘Leviathan’26 (2010),27 ‘Tanin’ (2012)28 and ‘Karish’ (2013, 2019)29 were discovered.30 Another tender was launched by Israel for 24 blocks in November 2016;31 two bids were submitted and six exploration licences were granted.32 Israel opened a new round in 201833 and issued licences to two consortia consisting of five international and local companies for 12 out of 19 tendered blocks.34

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Cyprus Despite some sporadic attempts made with respect to oil exploration offshore Cyprus in the early 1970s,35 there was no follow-up until the early 2000s. Cyprus’ first tender for 11 of its 13 blocks took place in 2007 and resulted in the granting of a licence for Block 12.36 Following the second licensing round in 2012, concessions were awarded for blocks 2, 3, 9, 10 and 11.37 No bids were accepted for the blocks partly claimed by Turkey, namely 1, 4, 5, 6, and 7.38 After a third tender was launched in early 2016, blocks 6, 8 and 10 were awarded.39 Notably, this time Block 6, falling partly within Turkey’s continental shelf claims,40 had been included in the tender due to the latent potential it appears to have (together with Block 10) on account of its proximity to the very large ‘Zohr’ field discovered in the Egyptian EEZ just 6 km from the maritime boundary between Egypt and Cyprus. So far, three fields (‘Aphrodite’, ‘Kalypso’, and ‘Glaucus’) have been found in the continental shelf/EEZ of Cyprus.

Syria Syria, which has been an onshore oil producer since the 1960s and a gas producer since the 1980s,41 announced its first bidding round for four offshore blocks in 2007, but there was no interest because of unfavourable terms and the small size of the blocks.42 After the failure of a tender for three blocks in 2011,43 another round was planned in early 2012 and discussions were held for further offshore exploration in 2013. In any case, no offshore activities have been carried out as a result of the civil war in which the country has been embroiled since 2011. Thus, the Syrian state is unable to pursue any further development of its hydrocarbon sector, although it granted a concession to a Russian company in June 2013.44

Egypt Egypt is the largest non-OPEC (Organization of the Petroleum Exporting Countries) oil producer and one of the most important gas producers in Africa.45 In the late 1960s, the supergiant field ‘El Morgan’ was found in the Gulf of Suez and natural gas was discovered onshore in the Nile Delta region,46 while Egypt became the first East Med state to extract offshore natural gas in the second half of the 1980s in the Mediterranean Sea and the Nile Delta.47 After several suc­ cessful bidding rounds in the 1990s,48 the first significant ultra-deepwater dis­ covery was made in the Nile Delta region (NEMED block) in 2003,49 a region which has been producing hydrocarbons for decades.50 In the subsequent years, Egypt issued international tenders for both onshore and offshore blocks.51 Accordingly, discoveries were made in March 2015 in ‘Atoll-1’ deepwater ex­ ploration well52 and in the Nile Delta.53 The latest significant discovery was a vast deposit named ‘Zohr’, found in the Shorouk offshore block close to the EEZ delimitation line with Cyprus in August 201554 and from which Egypt has already started production.55 Egypt has also granted 12 offshore and onshore

Contemporary developments 75 blocks after a bidding round launched in 2018,56 while it plans to offer another 11 blocks off its western coast.57

Lebanon Although it did not receive any bids for offshore areas in 1994,58 Lebanon held a pre-qualification bidding round in 201359 as 2D and 3D seismic surveys con­ ducted in the period between 2000 and 2002 and 200760 revealed promising oil and gas potential. Notwithstanding years of inaction owing to the inability of the local political powers forming the government to reach an agreement, the Lebanese government eventually managed to enact the two necessary decrees (Decree 42/2017 on the delineation of ten offshore blocks and Decree 43/2017 on the approval of the model Exploration and Production Agreement). Hence, Lebanon initiated an international tender in early 2018 awarding two blocks, 61 and also launched a second tender in 2019.62

Turkey Being a large energy consumer, Turkey has been striving to diversify its energy resources and suppliers in order to establish supply security.63 In terms of hydrocarbon operations, Turkey had mostly been focused on the Black Sea, but operations were unsuccessful.64 The East Med discoveries and the perti­ nent activity on the part of Israel, Egypt and Cyprus prompted Turkey to turn to that region instead.65 As a result, Turkey has carried out exploration ac­ tivities offshore Antalya, the Mersin Bay and the Iskenderun Gulf.66 It has also awarded licences to the TPAO for maritime regions also claimed by Greece and Cyprus and has performed seismic surveys and drillings therein.67 Furthermore, Turkey participates in pipeline projects such as ‘TurkStream’ and ‘TANAP’, aspiring both to become an energy hub and meet its domestic energy needs.68

Greece In spite of the fact that systematic oil and gas activities on land and sea began in the 1960s and culminated in the discovery of several exploitable reserves in the northern Aegean Sea between 1971 and 1974,69 Greece has not been engaged in offshore hydrocarbon activities therein since the 1970s, given the Aegean dispute with Turkey. It should be mentioned that Greece and Turkey by virtue of the 1976 Bern procès-verbal pledged not to undertake ‘any initiative or act relating to the Continental Shelf of the Aegean Sea’.70 However, Greece launched a tender71 and has performed offshore seismic surveys in the Ionian Sea and in the south of Crete, granting a concession for a field offshore western Peloponnese.72 Greece issued another bidding round for two blocks in the west and south-west of Crete73 and eventually granted licences for them in June 2019.74 At any rate, the map depicting the areas open for licensing is an apt illustration of the

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reluctance of Greece to proceed with hydrocarbon operations in the Aegean Sea with a view to avoiding tensions.

2.2 The role of the European Union Even though the EU should not be considered as a panacea, its engagement in addressing maritime issues involving member states and third countries in the East Med could be significant given its well-established interest in the maritime domain. The EU (European Economic Community at the time) had participated in the UNCLOS III as an observer, signed the LOSC on 7 December 1984 and formally confirmed it on 1 April 1998 (European Community at the time). Therefore, the LOSC forms part of the acquis communautaire75 and, conse­ quently, applies automatically to member states, while candidate states are re­ quired to adhere to it as a precondition to joining the EU, since every agreement signed or acceded to by the EU is binding upon member states.76 The EU has repeatedly stressed that the application of the LOSC and the establishment of maritime zones in the Mediterranean Sea would facilitate the monitoring of maritime activities and the implementation of its maritime policies therein,77 and that any illegal activities in the region concerned could affect, among others, the security of energy supplies of the Union.78 Particularly, in 1976 the Commission had proposed the establishment of a 200-mile fishing zone, but it was not implemented in the Mediterranean Sea due to the Turkish reaction.79 In addition, the Committee of the Regions stressed the need for cooperation in the Mediterranean Sea given that it is a semienclosed sea and deemed the delimitation of those waters an utmost necessity in order for states to be able to regulate activities there. It also suggested that maritime boundary delimitations in the Mediterranean should be carried out in accordance with the LOSC and expressed the view that the Union should en­ courage non-EU Mediterranean states to become parties to the LOSC.80 As several EU member states border the Mediterranean Sea, it goes without saying that the Union has a pivotal role to play in the region.81 Bearing in mind that Greece and Cyprus are EU member states, their hydrocarbon activities need to be in conformity with EU legislation.82 As seen above, the tenders of Greece and Cyprus were published in the Official Journal of the EU according to Directive 94/22/EC.83 The Union has also set forth regulations in respect of the pro­ tection of the marine environment from oil and gas operations,84 as well as the safety of offshore oil installations.85 These regulations provide for the conduct of environmental impact assessments for planned activities in the sea, while such an obligation is also enshrined in Article 206 LOSC, already forming part of cus­ tomary international law.86 Moreover, the EU can play an active role by en­ couraging -not imposing- the conclusion of maritime boundary delimitations and promoting hydrocarbon exploration and exploitation activities concerning its member states, based on Article 194 Treaty on the Functioning of the European Union.87 The aforementioned position was explicitly expressed in the ‘Energy Roadmap 2050’ issued by the European Parliament.88

Contemporary developments 77 It has now been settled that EU legislation applies to all maritime zones in which its member states exercise sovereignty, sovereign rights or jurisdiction,89 namely in what is ‒ euphemistically ‒ called ‘Union waters’.90 In addition, any agreements on oil and gas concluded by Greece and Cyprus with their neigh­ bours and any ensuing activities also need to conform to EU law. Therefore, the legal framework of the Union could apply indirectly to maritime zones of nonmember states as well. Importantly, the CJEU has resolved that it has exclusive jurisdiction to adjudicate disputes on the interpretation and application of LOSC provisions falling within the ambit of the Union’s competence.91 Nonetheless, it should be noted that there is no such thing as a ‘European EEZ’, since the EU does not have jurisdiction over the full spectrum of the sovereign rights and jurisdiction that can be exercised in the EEZ.92 Rather, it is preferable to speak of member states’ EEZs where all the activities shall be undertaken in compliance with the LOSC as part of the acquis communautaire. Further, it should be borne in mind that the competence to declare and/or extend and/or delimit maritime zones lies solely with the member states, but the EU may have a role to play if the establishment or a revision of boundaries affects other member states’ interests under Union law.93 It should also be pointed out that the EU seems to support the declaration of full EEZs, not merely functional zones (i.e. fisheries zones, environmental protection zones, etc.).94 Over the last few years and on account of its strained relations with Russia,95 the EU has been seeking diversification of its energy sources and routes.96 This approach has been reiterated in a gamut of instruments whereby the EU has expressed its willingness to use the East Med hydrocarbons and deepen its re­ lations with the regional states.97 A new initiative by the Commission on Energy Union, the most authoritative text on EU energy policy, recognises the vul­ nerability of the EU in terms of energy security and, therefore, sets diversification of energy supply as one of its main tasks in order to reduce energy dependence on third countries, while it promotes the development of the Mediterranean Gas Hub as an alternative energy provider.98 European Energy Security is another project prioritising energy production within the EU and attempting to widen the scope of energy sources and routes, naming the East Med as a potential gas hub.99 Some of the factors vouching for East Med gas is the proximity of the region to Europe, the presence of two EU members there and the absence of any intermediaries in the energy corridor. To this end, the EU is poised to support any of its member states having the potential to become energy suppliers, Greece and Cyprus included,100 as ‘without sufficient domestic natural gas production, external suppliers are always central to EU ambitions’.101 The East Med appears to be a promising alternative in terms of energy for Europe,102 although the discoveries so far may only cover a small part of EU’s gas needs.103 The European Parliament has also explicitly recognised the important position the East Med could have in the EU’s attempts to achieve energy supply diversification.104 Bearing in mind the above, the Union’s role is significant in terms of shaping a stable environment in the East Med so as to secure safe extraction of

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hydrocarbons and foster construction of energy facilities there.105 The EU also seeks energy collaboration with third neighbouring states, within the framework of the European Neighbourhood Policy and Union for the Mediterranean,106 and promotes the construction of extensive infrastructure projects connecting the EU with third states.107 For instance, the European Commission has included the ‘EuroAsia Interconnector’ (underwater elec­ tricity cable connecting Israel, Cyprus and Greece)108 and a pipeline from offshore Cyprus to mainland Greece through Crete (‘East Med’ pipeline)109 in the ‘Projects of Common Interest’ (‘PCI’), and thus the interested states will receive funding for the conduct of at least the relevant studies.110 Although an LNG terminal facility in Cyprus was also encompassed in the list in 2013, it has now been removed and replaced by a more general reference to projects aimed at ‘removing internal bottlenecks in Cyprus to end isolation and to allow for the transmission of gas from the Eastern Mediterranean re­ gion’, which could include a range of projects.111 However, Turkey is op­ posed to the ‘EastMed’ pipeline perspective ‒ as well as to the laying of the ‘EuroAsia Interconnector’ ‒ since its route is designed to pass through a maritime area between Crete and Cyprus, the greatest part of which is claimed by Turkey. Nevertheless, it is far from clear whether the designed routes of both the ‘EastMed’ pipeline and the ‘EuroAsia Interconnector’ fall within the limits of the Turkish continental shelf (Turkey has not explicitly declared an EEZ in the Mediterranean), since these projects will be located very close to the alleged median line between Turkey and Egypt.112 Besides, Article 87(1)(c) LOSC ordains that the laying of submarine cables and pipelines is an aspect of the freedom of the seas, while Articles 58(3) and 79 LOSC envisage that the coastal state is, in principle, not entitled to ‘impede the laying or maintenance of such cables or pipelines’ on its continental shelf, but this is subject to its right to take measures regarding its exploration and exploitation activities and/or in order to prevent marine pollution (the latter applies only to pipelines). Notwithstanding the above, the designation of the route of pipelines (no re­ ference is made to cables) is subject to the coastal state’s consent.113 As a response to the aforementioned project, Turkey champions the construction of a pipeline transferring East Med gas to Asia Minor and from there to Europe114 within the context of its aspiration to become an energy hub in order to increase its strategic importance.115 At any rate, as Jose Manuel Barosso, the former President of the European Commission, clearly stated, the East Med is an energy corridor under con­ sideration for Europe,116 while the then Vice-President of the Commission stressed that the East Med gas is significant for the EU’s energy security, and thus it should be exported to Europe.117 These actions fall within the EU’s attempts for the ‘Europeanisation’ of energy corridors and the extension of the energy acquis to the neighbouring non-member states so as to develop a ‘panEuropean Energy Community’.118 The Union has also highlighted the im­ portance of establishing energy partnerships with producing countries based on EU regulations.119

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3 Maritime boundary delimitation and other relevant agreements in the East Med 3.1 Introduction This section aims to map the overall situation in the East Med as regards the regional states’ maritime boundary delimitations by giving a general overview of the importance of maritime delimitation agreements and the current trends in international case law. It also provides an analysis of the said maritime boundary delimitation agreements. All three EEZ delimitation agreements are analysed together for coherence purposes as their wording is virtually identical and they were effected according to the median line. Those delimitation agreements highlight the importance of international law and the law of the sea in terms of achieving stability and enhancing cooperation. As a matter of fact, all three agreements provide for the conclusion of framework agreements so as to facil­ itate the signing of unitisation agreements regulating the development of straddling reserves.

3.2 Maritime delimitation law120 Maritime boundary delimitation is a pivotal function within the realm of the law of the sea and it is driven by the desire of states to create a stable and secure environment for mainly unhindered hydrocarbon exploration and exploitation activities, as well as to avoid tensions.121 International oil companies are reluctant to invest time and money in turbulent regions where the maritime space lying off the coasts of the licensing state is not delimited in a precise manner.122 In paraphrasing the fundamental axiom, ‘the land dominates the sea’ ‒ entailing that an entity is capable of claiming rights in the sea waters washing its coast and over the seabed when it enjoys sovereignty over those shores123 ‒ three ICJ judges, with a view to highlighting the significance attached by states to oil and gas resources, stated that ‘oil dominates the land and the sea’.124 The Arbitral Tribunal in Bangladesh v India also stressed: The importance of stable and definitive maritime boundaries is all the more essential when the exploration and exploitation of the resources of the continental shelf are at stake … the sovereign rights of coastal States, and therefore the maritime boundaries between them, must be determined with precision to allow for development and investment.125 The ICJ had also made a similar finding in the Aegean Sea Continental Shelf case: The dispute relates to the determination of the respective areas of continental shelf over which Greece and Turkey are entitled to exercise the sovereign rights recognized by international law. It is therefore necessary to establish the boundary or boundaries between neighbouring States, that

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Contemporary developments is to say, to draw the exact line or lines where the extension in space of the sovereign powers and rights of Greece meets those of Turkey.126

In another instance the Arbitral Tribunal in the Beagle Channel case noted: ‘A limit, a boundary, across which the jurisdictions of the respective bordering States may not pass, implies definitiveness and permanence’,127 while definitive maritime boundaries contribute to maritime security given that the protection of economic interests is part of state’s security because it diminishes the possibility of dependence on other states.128 The significance of maritime boundary deli­ mitation has also been highlighted by the UN Secretary-General in his annual report on the law of the sea.129 On the same matter, Bardonnet notes that ‘delimitation is indispensable to the legal sphere for it is the foundation of multiple State prerogatives which can be exercised and go together only if their respective fields of application are specified’.130 With respect to the delimitation methodology, international jurisprudence has been equivocal. In the North Sea Continental Shelf cases, the ICJ adopted Truman’s reference to ‘equitable principles’ and applied them instead of the median/equidistance line method envisaged in the 1958 Continental Shelf Convention in order to achieve an equitable result.131 In 1977, the Court of Arbitration attempted to merge equidistance with equitable principles in the Anglo-French Continental Shelf case.132 In a trilogy of judgments (1982 Tunisia/Libya; 1984 Gulf of Maine; 1985 Libya/Malta), the ICJ diminished the significance of the median/equidistance line, although it used the particular method at certain points in those judgments or alluded to the possibility of applying it if it leads to an equitable outcome.133 The approach followed by international courts and tribunals seemed to introduce ‘autonomous’ equity and disregard the corrective function of equity (infra legem), creating a risk of sub­ jectivity.134 As regards the uncertainty prevailing during the period from 1969 until the early 1990s, Lando rightly points out: ‘The international tribunals’ approach meant that such tribunals could choose to delimit a boundary using any method which they considered to be appropriate in the circumstances, at the expense of predictability and certainty.’135 Eventually, in the Jan Mayen case, the Court explicitly admitted that the median line may also lead to an equitable result.136 The Court’s findings on this point were reflected in the Eritrea/Yemen award: [B]etween coasts that are opposite to each other the median or equidistance line normally provides an equitable boundary in accordance with the requirements of the Convention, and in particular those of its articles 74 and 83 which respectively provide for the equitable delimitation of the EEZ and of the continental shelf between States with opposite or adjacent coasts.137 Furthermore, in 2002 the ICJ clarified the role equity should have in maritime delimitation:

Contemporary developments 81 The Court is bound to stress in this connection that delimiting with a concern to achieving an equitable result, as required by current international law, is not the same as delimiting in equity. The Court’s jurisprudence shows that, in disputes relating to maritime delimitation, equity is not a method of delimitation, but solely an aim that should be borne in mind in effecting the delimitation.138 Consequently, international jurisprudence in the 1990s and early 2000s turned equity into part of a normative rule139 and paved the way for granting median/ equidistance line priority (albeit not primacy)140 in the delimitation process,141 as reflected in the ‘three-stage’ method carved out by the same forum in the 2009 Black Sea case. Even though international courts and tribunals since the Black Sea case have nominally been applying the ‘three-stage method’ in mar­ itime boundary delimitation cases142 ‒ namely, (1) the designation of a provi­ sional median/equidistance line as a starting point; (2) the consideration of any relevant circumstances possibly dictating an adjustment of the initially drawn; and (3) a check whether the outcome of the first two stages is dispropor­ tionate143 ‒ in practice, this does not seem to be the case as international judicial organs do not actually plot a strict median/equidistance line at the outset of the delimitation exercise.144 In other words, although international judicial organs ‘preach’ the need for a uniform approach to resolving delimitation disputes, the three-stage method is not exactly what it looks (or sounds) like inasmuch as in many cases the provisional line drawn deviates from the median/equidistance line and the ‘three-stage’ method is not strictly observed.145 On this point, Lathrop notes: [T]he case law is rife with examples of first-stage subjective assessments of coastal geography that, according to the Court’s own process, should not appear until the second stage. In more than half of the cases in which a provisional line has been constructed, the inherent value of an objective first stage has been reduced by using subjectively chosen base points to construct that line.146 As a result, the contemporary trend in maritime delimitation law does not de­ monstrate a clear uniformity of approach. It is also worth mentioning that ‘an excessive departure from a provisionally drawn equidistance line may run the risk of undermining the predictability of the law of maritime delimitation’.147 Notwithstanding the above, as alluded to earlier, a series of cases rendered by international courts and tribunals recognise the appropriateness of the median/ equidistance line method concerning opposite coasts.148 International jur­ isprudence has also endorsed the implementation of this method in cases in­ volving adjacent coasts.149 Thus, several authors reasonably argue that the distinction between opposite and adjacent coast has become obsolete, especially after the entrenchment of the ‘three-stage’ approach entailing the designation of a provisional median line as the first step of the delimitation process.150 What is

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more, state practice supports the application of the particular method in the delimitation of both opposite and/or adjacent coasts.151 At any rate, although the median line has been the starting point, the provisional median/equidistance line remained unadjusted only in three cases.152 An additional factor worth examining is the impact of economic considerations on maritime delimitation. Undoubtedly, economic factors are the raison d’être of the legal concepts of continental shelf and EEZ.153 As the ICJ propounded in the North Sea cases: ‘The natural resources of the subsoil of the sea in those parts which consist of continental shelf are the very object of the legal regime established subsequent to the Truman Proclamation.’154 In the Tunisia/Libya case, the Court put forward that: [T]he concept of the continental shelf, which may be said to date from the Truman Proclamation of 28 September 1945, has become one of the most well known and exhaustively studied, in view of the considerable economic importance of the exploitation activities effected under its aegis.155 A few years later, the Court underlined that only those considerations germane to the concept of the continental shelf should be scrutinised in the delimitation process.156 Since the main reason these notions were conceived was the aspira­ tion of states to avail themselves of the offshore natural resources, it seems ra­ tional to assume that economic factors should influence delimitation.157 As the ICJ noted: States in most cases had not found it necessary to conclude treaties or legislate about their lateral sea boundaries with adjacent States before the question of exploiting the natural resources of the seabed and subsoil arose … The natural resources of the subsoil of the sea in those parts which consist of continental shelf are the very object of the legal regime established subsequent to the Truman Proclamation.158 As a matter of fact, several states have accentuated the economic background underpinning the legal regime of the continental shelf and EEZ, as well as the connection between delimitation and economic factors in their pleadings within the context of cases before international courts and tribunals.159 Nevertheless, it is reiterated that international courts and tribunals have not accorded economic considerations sufficient weight, even though they have not totally rejected them.160 As Weil aptly put it, ‘[e]conomic considerations are a relevant cir­ cumstance which nobody dare (or rather, can) mention’ and they ‘have more than once been in the courts’ mind’.161 Whether economic factors should bear upon the course of a maritime boundary was a matter debated in a range of cases. The ICJ opined that natural resources ‘so far as known or readily ascertainable’ could be considered as re­ levant circumstances.162 In the Nicaragua v Colombia case, the Court, in dealing with the matter of access to natural resources, although it did not reject it as

Contemporary developments 83 relevant circumstance, nonetheless set a high threshold (‘exceptional issues of access’), which was not met in the case at hand.163 The Tunisia/Libya case was the only instance where oil concessions were explicitly taken into account,164 whereas jurisprudence repudiated this factor in the Indonesia/Malaysia, Cameroon v Nigeria, Nicaragua v Honduras and Guyana v Suriname cases.165 In the Newfoundland and Labrador/Nova Scotia arbitration, the Arbitral Tribunal stressed that the matter of access to the natural resources of maritime zones is not irrelevant to the delimitation process.166 In the Ghana/Côte d’Ivoire case, the equidistance line eventually drawn was more beneficial to Ghana than the equidistance line it claimed based on oil concessions, since the Chamber was not convinced that there was a tacit delimitation agreement based on oil activ­ ities.167 In order to justify its preference for geographical factors over resourcerelated criteria, the Chamber invoked the ‘catastrophic repercussions’ test and referred to previous case law upholding this viewpoint, noting that the minimum required standard of evidence was not met.168 This outcome illustrates the in­ sistence of international courts and tribunals, in an attempt to attain consistency and predictability, on not affording significant weight to economic factors irre­ spective of the peculiarities of each case. The aforementioned high threshold was actually set within the context of a fisheries case. As maintained by the ICJ, in order for this factor to be deemed a relevant circumstance, it is necessary to prove that if the delimitation line ignores fisheries practice, ‘catastrophic repercussions for the livelihood’ of the population concerned will occur.169 However, it should not escape notice that when the evidence provided was sufficient, international courts and tribunals did not dis­ regard the fisheries factor.170 Actually, in the Jan Mayen case access to fisheries was considered to be germane, while in the Peru v Chile case the ICJ used fisheries practice so as to determine the extent of the boundary constituted by the tacit agreement.171 Interestingly, despite the fact that the Chamber in the Gulf of Maine case had ostensibly declined to regard fisheries as pertinent, the delimi­ tation line provided each party the maritime area to be most significant in terms of fisheries,172 while the delimitation line did not generate adverse consequences on fisheries in the Tunisia/Libya case either.173 This demonstrates that the fisheries factor was utilised in the Gulf of Maine case to check the equitableness of the line and reinforces the argument that non-geographical factors are being implicitly taken into account. Notwithstanding the above, in the Canada/ France, Eritrea/Yemen and Barbados v Trinidad and Tobago cases, the ‘cata­ strophic repercussions’ criterion was not fulfilled.174 Any arguments in favour of the relevance of economic factors to delimitation should not be deemed an endorsement of the view that a maritime delimitation should be effected in a manner assisting states in improving their economic status and/or by making a comparison of the parties’ economies. In essence, it was exactly this posture that the ICJ rightly rejected, not the pertinence of economic factors as such in maritime delimitation.175 On the contrary, what international courts and tribunals could contemplate over the course of the delimitation process and provide protection to is the capacity of coastal states to exercise their sovereign

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rights (exploration and exploitation) on the natural resources of the continental shelf/EEZ and preserve national security, an aspect of which is energy sufficiency. In a nutshell, recourse to economic factors in delimitation should not serve the purposes of distributive justice but should ensure that a state is able to enjoy its inherent sovereign rights. Therefore, international courts and tribunals could employ these elements as a conglomeration so as to assess the equitableness of the result dictated by geography.176 What is more, the ‘catastrophic repercussions’ threshold, namely the position that natural resources should be taken into con­ sideration in delimitation only when the consequences from debarring a state having access to them would be disastrous, is very high and should be lowered,177 always having in mind the oddities in any given case. At any rate, the significance of economic factors in respect of maritime delimitation is affirmed in the case of the East Med given that the regional states’ desire to proceed to hydrocarbon ex­ ploration and exploitation activities was the driving force behind the conclusion of maritime delimitation agreements among them.

3.3 The background of the maritime delimitation agreements in the East Med Stimulated by the hydrocarbon discoveries, the majority of the East Med states decided to collaborate with a view to gaining benefits from the oil and gas reserves. As seen above, a fundamental prerequisite to do so is the delimitation of maritime boundaries. Even though not all of them had advocated the median/equidistance line method at the law of the sea conferences (some of them had not expressed their views on this matter at all),178 the contemporary stance of Greece, Cyprus, Egypt, Lebanon and Israel, as evinced through their domestic legislation and/or the mar­ itime boundary delimitation treaties they have signed, is supportive of this method.179 To date, three maritime boundary delimitation agreements have been signed in the region under examination. Egypt and Cyprus were pioneers in maritime delimitation as in 2003 they concluded the first EEZ delimitation agreement in the Mediterranean Sea (Figure 2.1).180 This is despite the fact that in 1984 France and Monaco agreed on the delimitation of ‘the maritime areas situated beyond the ter­ ritorial sea of Monaco’, probably with the intention to include a future declaration of EEZ.181 Since at the time neither party had established an EEZ (France proclaimed an EEZ in 2012, whereas Monaco has yet to do so), the 1984 arrangement cannot be considered an EEZ delimitation treaty. On the whole, the Mediterranean states refrained from claiming EEZs and delimiting their maritime boundaries for a range of reasons, including their desire for unimpeded fishing activities in those waters; the narrowness of the Mediterranean Sea, which is also a factor impeding maritime de­ limitation in the region; and the lack of interest in offshore hydrocarbon activities, especially due to the limited technological capacity, as well as high costs.182 It is worth noting that during the 22nd session of the General Fisheries Council for the Mediterranean, the Arab member states, including Egypt and Syria, called upon the other Mediterranean states to examine the possibility of establishing EEZs in order to exercise their sovereign rights over living resources in a more effective manner.183

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Figure 2.1 EEZ boundary between Egypt and Cyprus. Source: 52 LSB 47.

It is also noteworthy that the Egypt‒Cyprus delimitation (entered into force in March 2004) predates the official proclamation of EEZ by Cyprus (April 2004). Thus, Cyprus established an EEZ initially by means of a delimitation agreement and later on complemented that act by enacting relevant legislation. Egypt and Cyprus used the median line despite the fact that the former possesses a longer relevant coast compared with Cyprus. It seems that Egypt wanted to set a pre­ cedent regarding its maritime boundary with Saudi Arabia in the Red Sea, which was eventually effected on the basis of the median line method.184 What is more, the westernmost end of the Egyptian‒Cypriot delimitation line was moved eastwards between 9 nm and 12.5 nm, after consultations held between Greece and Cyprus in order to stop short of the Greece‒Egypt‒Cyprus tripoint. The reasons behind the adjustment were that the tripoint could not be defined with accuracy, the disagreement between Greece and Turkey on whether the Greek island of Kastellorizo should have had full effect and that the parties should have been cautious not to encroach on a maritime area where Turkey might also have maritime entitlements.185 A similar arrangement was reached between Saudi Arabia and Bahrain in 1958, according to which the maritime boundary was the median line notwithstanding the longer relevant coastline of Saudi Arabia, as well as between Tunisia and Italy, although the Tunisian relevant coast is longer than that of the Italian islands involved in the delimitation.186 Likewise, Mexico and Cuba inked a delimitation agreement based on equidistance despite coastal

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disparity in favour of Mexico, while Cape Verde and Senegal also utilised the median line, although the latter’s relevant coastline is longer.187 As seen previously, Greece claims only a 6 nm territorial sea and has not pro­ claimed an EEZ. Nevertheless, Greece and Turkey have been quarrelling ‒ besides the Aegean dispute ‒ over the waters of the East Med. Turkey claims the waters between the Greek islands of the south-eastern Aegean Sea and Cyprus as part of its continental shelf, disregarding the rights of the Greek islands, as well as the capacity of Cyprus to generate maritime zones beyond the territorial sea. Turkey also pub­ lishes maps where its alleged maritime borders according to the median line abut those of Egypt.188 As a consequence, the Turkish putative continental shelf limits partly overlap with blocks 1, 4, 5, 6 and 7 of Cyprus’ continental shelf/EEZ and also partially coincides with segments of the Greek continental shelf (Figure 2.2).189 One of the arguments put forward by Turkey in order to persuade Egypt to abandon its EEZ delimitation with Cyprus is that Egypt has ‘abolished’ a maritime space of approximately 19.400 km2 owing to the median line agreed with Cyprus.190 The Turkish contentions over the western sector,191 but mainly over the south-western segment of the Cyprus’ continental shelf/EEZ, in relation to which a maritime boundary delimitation and a framework agreement between Cyprus and Egypt are in force,192 contest the former’s sovereign rights under both conventional and customary law. Significantly, the framework agreement and the fact that Egypt has

Figure 2.2 Turkey’s claims in the East Med. Source: Cagatay Erciyes, ‘Maritime Delimitation and Offshore Activities in the Eastern Mediterranean: Legal and Political Perspectives, Recent Developments’ 2012.

Contemporary developments 87 awarded oil concessions respecting the median line with Cyprus have reaffirmed and consolidated the maritime boundary of the two states and, accordingly, any efforts towards a unilateral revocation of the delimitation agreement would be extremely difficult. Even if such an act does take place, it would be hard to affect the maritime boundary because of the ‘doctrine of executed treaty provisions’, which entails that ‘once a boundary line has been established by treaty … its existence as a legal construction binding on the parties is no longer dependent on the continued existence of the treaty or the treaty provision which established it’.193 On the other hand, Greece considers the Turkish assertions to be a violation of its inherent right to a continental shelf.194 It should be borne in mind that when two states decide to delimit their maritime boundaries, they should always take into account the rights of a third interested party upon which no obligations can be imposed by a treaty to which it is not a party (pacta tertiis rule).195 This will apply in the event that Greece, Egypt and Cyprus determine the tripoint and proceed with the delimitation of their maritime zones, since the interests of Turkey, whose coasts project into the relevant maritime area, should not be ignored and/or impaired. In the same vein, the delimitation agreement between Turkey and Libya196 would have an impact on the rights of Greece over a sig­ nificant maritime area. Bearing in mind the above, it is argued that a trilateral delimitation between Greece, Egypt and Cyprus without taking into account Turkey’s maritime entitlements, as well as the delimitation agreement between Turkey and Libya, which would impinge on the entitlements of Greece, would not be binding on Turkey and Greece respectively.197 When it comes to judicial maritime delimitation, as the stare decisis principle does not apply in international law, judgments by international courts and tribu­ nals are binding only on the parties to a case;198 hence, such decisions are res inter alios acta for third states.199 Sometimes, the designation of a maritime boundary might affect a third party’s rights and the fact that such a judgment is not binding on that state might not be adequate.200 It has also, plausibly, been argued that if a delimitation judgment includes areas over which a third state has laid claims, the judgment will not be deemed definitive.201 This strips maritime delimitation of its significance as it does not lead to the establishment of legal certainty. Of course, third states may apply for intervention in a delimitation case.202 Nevertheless, the fact that the ICJ has accepted only a handful of applications for intervention shows that there is a high threshold for third states to overcome in order to participate in the proceedings.203 As noted above, international courts and tribunals have been utterly cautious not to encroach upon third states’ maritime zones or claimed maritime zones or affect future delimitations in the region; that is why they choose to draw maritime boundaries without an endpoint.204 Case law shows that during the delimitation process courts and tribunals do take into account third states’ maritime claims, even when they exceed the provisional median line, if none of the parties object to that,205 whereas Kolb argues that courts should not pay regard to third states’ abusive claims.206 Nonetheless, determining whether a third party’s claim is excessive/abusive inescapably involves an examination of assertions over which the court has no jurisdiction. It is suggested that the best approach is to

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consider the median line as the outer limit of a third state’s assertions.207 It is true that the risk of infringing a third state’s maritime rights has not averted courts or tribunals from designating a maritime boundary in a host of cases. However, there has never been a case where delimitation between three states might prejudice the rights of a fourth state. Such an eventuality might bring into play the so-called ‘Monetary Gold’ principle.208 This principle was carved out by the ICJ in the 1954 Monetary Gold Removed from Rome in 1943 case. France, the UK and the USA had undertaken the responsibility to assist in the distribution of the monetary gold seized by Germany since 1938. However, two states, namely Italy and Albania, sparred over the monetary gold removed from Rome by the Nazis in 1943. In 1953 a sole arbitrator ruled that the gold belonged to Albania. Following that award, the UK claimed the gold as partial satisfaction in the 1949 Corfu Channel case. Italy then filed a case against the Allied Powers claiming the gold, while it also submitted a preliminary question asking whether the Court should exercise its jurisdiction and hear the case despite Albania’s absence from the proceedings. Eventually, the Court resolved that it did not have jurisdiction because Albania, whose interests ‘would form the very subject-matter of the decision’ was not a party to the case.209 This wording demonstrates that the Court has set a high threshold for the application of the principle. What is crucial here is not whether a state’s rights have been affected. Rather, what the Court said is that it cannot adjudicate a case when a precondition for the exercise of its jurisdiction is a decision on a prior dispute over which it does not have jurisdiction. The aforementioned principle has never been used in a maritime delimitation case because, as illustrated above, international courts and tribunals have always taken into consideration third states’ interests when designating a maritime boundary. It has been argued that this practice amounts to a ‘transformed’ ‘Monetary Gold’ principle.210 It seems that, within the context of maritime delimitation, the principle could apply only in exceptional circumstances. One such circumstance could be the determination of a tripoint by means of a judicial decision in a case where a fourth state’s interests might be at stake. In delimitation cases involving two parties the courts have avoided drawing a tripoint either because they had no jurisdiction to do so or because they were careful not to impair third states’ rights. As the ICJ aptly put it: [I]n relation to the specific issue of the tripoint the Court notes that both Parties agree that it should not fix one. It is indeed not entitled to do so. In determining any line, the Court must take account of this.211 Therefore, the designation of a trilateral boundary between Greece, Egypt and Cyprus by an international court or tribunal would inevitably create a de facto tripoint between Greece, Egypt and Cyprus. Of course, that would be perfectly acceptable if the only interested parties in the region were Greece, Egypt and Cyprus and they had given their consent to do so. Taking into consideration that Turkey has also put forward claims over the relevant

Contemporary developments 89 maritime space, an international court or tribunal would not be able to ex­ ercise its jurisdiction and fix a tripoint which will, de facto, delimit part of Turkey’s maritime zones in the East Med. In the case at hand, there would be no possibility for the adjudicating body to stop before reaching an endpoint. In other words, if a court or tribunal undertakes such an endeavour, it will inevitably impinge upon Turkey’s rights. Furthermore, the choice of a par­ ticular delimitation method (the median line in the case under examination) would, perhaps, have repercussions for future delimitations in the region212 and affect Turkey’s interests. Having in mind the above, it seems that an at­ tempted judicial trilateral delimitation would render Turkey’s interests ‘the very subject-matter of the decision’ and the court would, most likely, decline to exercise its jurisdiction to draw a maritime boundary between Greece, Egypt and Cyprus. Conversely, the above has no bearing when it comes to the 2003 Egypt‒Cyprus EEZ accord, given that the agreed boundary lies in a maritime space where Turkey cannot have any entitlements. Turkey has also no coastal fronts pro­ jecting in the maritime space delimited in virtue of the treaties concluded between Lebanon-Cyprus and Israel-Cyprus. Indeed, as Turkey has stated, the line of argumentation used to question these agreements relates to the alleged violation of the rights of the Turkish Cypriots with respect to the hydrocarbons found offshore Cyprus and not to any rights of Turkey over the maritime area delimited by these instruments. Turkish commentators also argue that the de­ limitation agreements signed by Cyprus are not fair since the latter ‘has illegally acquired’ maritime areas that should fall under the jurisdiction of Egypt, Lebanon and Israel.213 Based on the ‘pilot agreement’ with Egypt, Cyprus penned another two delimitation agreements with Lebanon (2007)214 and Israel (2010) (Figures 2.3 and 2.4).215 All three agreements are concise and comprise five articles each. Although the agreement between Lebanon and Cyprus is not in force, the western limit of Lebanon’s EEZ, as outlined by the coordinates the Lebanese authorities unilaterally deposited with the UN Secretary-General in 2010 and 2011, are well-nigh identical to the median line agreed between Lebanon and Cyprus.216 The reasons Lebanon did not ratify the agreement until 2010 were an internal political deadlock; interference by Turkey (there was an ongoing negotiation between Turkey and Lebanon at the time, which led to the signing of a free trade agreement in 2010);217 and, probably, the fact that the Lebanese negotiators had not specified the value of the southernmost point on the delimitation line (Point 1).218 As a matter of fact, two months after the signing of the Lebanese‒Cypriot delimitation agreement, Saad Hariri, son of the former Lebanese Prime Minister, Rafik Hariri, and leader of the party having the majority in the Lebanese parliament, stated that the agreement was done hastily and, with a view to remedying the mistake, Lebanon would continue talks with Turkey.219 In the same vein, a retired General of the Lebanese Army commented that ‘ratification could jeopardize the economic interest between Turkey and Lebanon’.220 In a press release on the matter, Turkey stressed:

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Figure 2.3 EEZ delimitation between Lebanon and Cyprus. Source: Department of Lands and Surveys of the Republic of Cyprus.

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Figure 2.4 EEZ delimitation between Israel and Cyprus. Source: Department of Lands and Surveys of the Republic of Cyprus.

Upon information that negotiations were underway on the same subject matter [EEZ delimitation] between Lebanon and the Greek Cypriot side, demarches had been made at the level of prime Minister and the Foreign Minister of Lebanon … it has also been requested that the said agreement [Lebanon-Cyprus EEZ delimitation] was not given effect in any case.221 Cyprus responded by stressing that ‘Turkey has no right whatsoever to challenge the delimitation of the exclusive economic zone or the continental shelf between

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the Republic of Cyprus and its neighbouring States … in areas that are neither opposite nor adjacent to Turkish coasts’ and emphasised that the maritime claims of Turkey ‘have no foundation in international law’.222 The conclusion of the 2010 Israeli‒Cypriot agreement is another reason Lebanon has not ratified the delimitation with Cyprus given that the former and Israel plunged into a new dispute, this time concerning maritime space. Israel and Cyprus utilised Point 1 of the Lebanon‒Cyprus agreement as the starting point for the delimita­ tion of their maritime boundary, but Lebanon ‒ without contesting the Lebanon‒Cyprus western sector of their maritime boundary ‒ has not accepted this and asserts additional maritime space, thus exacerbating its already strained rela­ tions with Israel.223 As regards Syria, despite efforts made prior to the outbreak of the civil strife with a view to reaching an agreement on the delimitation of the maritime boundaries between Syria and Cyprus,224 the former was reluctant to enter into any agreement in the light of pressure exerted by Turkey.225 Another reason Syria declined the conclusion of a delimitation agreement with Cyprus is that it did not want to worsen its relations with Turkey in light of the long-standing territorial dispute between the two states over Alexandretta (Iskenderun) and its adjacent sea waters. By virtue of the 1921 Ankara Agreement between Turkey and France (Syria was under the French Mandate), the Sanjak (‘administrative district’) of Alexandretta, which was part of Syria, acquired a special adminis­ trative regime and several rights were granted to the Turkish inhabitants of the region. As the quota of the Turkish population there soared over the course of the years, Turkey pressed for the cession of the Sanjak, which was eventually effected on the authority of a new agreement between Turkey and France in 1939. In spite of the fact that this arrangement was contrary to the Mandate for Syria and Lebanon ‒ France had accepted it driven by its aspiration to secure its national interests in the region rather than to protect the well-being of the in­ habitants ‒ Alexandretta remains part of Turkey to date.226 The long-standing turmoil in Syria has rendered the conclusion of any delimitation agreement with Cyprus unlikely, although such an eventuality should not be ruled out as soon as the situation in the country has been stabilised. Indisputably, the treaties under scrutiny were signed so as to facilitate ex­ ploration and exploitation of the offshore hydrocarbon deposits. These activities could very well be regulated solely by the continental shelf rules to which the LOSC provisions on the EEZ refer when it comes to rights pertinent to the EEZ’s seabed and subsoil.227 At first sight, opting for an EEZ instead of a continental shelf delimitation does not appear to create any problems. On the contrary, the establishment of an EEZ provides coastal states with additional sovereign rights over fisheries and the production of energy from the water, currents and winds, as well as jurisdiction to regulate marine scientific research activities. In other words, by declaring an EEZ coastal states enhance their de­ gree of jurisdiction over the water column above the continental shelf. However, EEZ delimitation in a narrow sea such as the East Med inescapably entails au­ tomatic delimitation of the continental shelf. Therefore, reference should also be

Contemporary developments 93 made to the continental shelf concept or, at least, to a single maritime boundary, which is preferred in state practice and international jurisprudence.228 Besides, case law demonstrates that what dominates the procedure is the delimitation of the continental shelf, whereas features related to the water column have no significant role.229 This view is corroborated by the fact that what is usually proposed as an alternative to maritime delimitation is the creation of a joint development zone with an aim of evading tension and securing benefits from hydrocarbons for all the states involved.230 Moreover, the EEZ does not only afford rights to the coastal state, but also entails responsibilities in respect of conservation and management of fisheries, as well as protection and preservation of the marine environment.231 If states fail to perform their duties in respect of fisheries and the marine environment, they might confront predicaments. This especially applies to the EU member states, since, as outlined earlier, the Union has enacted specific legislation regarding fisheries and the protection of the marine environment that these states should follow. Given its competence over those issues,232 non-fulfilment on the part of these states of their obligations to the EU may render them accountable under EU law. On the other hand, the implementation of EU rules on fisheries and the protection of the marine environment within the EEZ of Cyprus has had an impact on fishermen from third states, namely Egypt, Israel and Lebanon who have traditionally fished there, since they can no longer lawfully enter EU member states’ EEZs.233 Thus, so as to both achieve a better application of EU law in the EEZ of Cyprus and stave off any friction between Cyprus and its neighbours concerning fishing activities, and given that member states cannot enter into agreements with third states in respect of matters falling within the exclusive competence of the Union,234 it would be ap­ propriate for the EU to strike pertinent agreements with Egypt, Israel and Lebanon, although the Commission has been reluctant to do so. The reason underpinning the decision of Egypt and Cyprus to proceed with an EEZ delimitation without any reference to the continental shelf was Egypt’s mistaken belief that the extensive natural prolongation of its land mass into the sea meant that it should have been granted greater maritime space than Cyprus. In the end, with a view to reaching an agreement based on the median line, the two states decided to use only the EEZ concept where the natural prolongation criterion does not apply, even though international jurisprudence has made it clear that natural prolongation is not applicable to the continental shelf up to 200 nm as well.235 Another reason for not referring to the continental shelf was the understanding of both states that the EEZ concept encompasses the con­ tinental shelf. As regards the other two delimitation agreements, the same pat­ tern was followed as it was deemed functional and easier to use the EEZ notion according to the distance criterion rather than the continental shelf concept.

3.4 The provisions of the EEZ delimitation agreements The EEZ delimitation agreements in the region are modelled on the Egypt‒Cyprus treaty. As a matter of fact, the wording of the Lebanon‒Cyprus

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accord is virtually identical to that of the Egypt‒Cyprus treaty. The Israel‒Cyprus instrument contains minor differences, mostly clarifications. What follows is the text of the Egypt‒Cyprus agreement (the variations included in the Israel‒Cyprus agreement are in italics contained in square brackets) with a short commentary on every provision. The … (hereinafter referred to as ‘the two Parties’) [hereinafter, each, individually, a “Party”; jointly, the “two Parties”] Desiring to strengthen further the ties of good-neighbourliness and cooperation between the two countries; Recognizing the importance of the delimitation of the exclusive economic zone for the purpose of development in both countries; Recalling the relevant provisions of the United Nations Convention on the Law of the Sea of 10 December 1982, to which the two countries are parties [Recalling the provisions of the United Nations Convention on the Law of the Sea of 10 December 1982, relating to the Exclusive Economic Zone]; [Basing themselves on the rules and principles of international law of the sea applicable to the matter;] In the Preamble, the contracting parties stress the desire for cooperation, note the importance of EEZ delimitation ‘for the purpose of development’ and recall the relevant LOSC provisions. These references reflect the importance and ne­ cessity of maritime delimitation, as a form of cooperation, in order to establish a secure environment facilitating progress and prosperity.236 Furthermore, the invocation of the LOSC as one of the legal bases of the Israeli‒Cypriot agree­ ment is of utmost significance as it is not only a sign of the broad acceptance of the Convention, but, most importantly, denotes Israel’s positive stance towards the LOSC and its willingness to act in conformity with the Convention, at least in terms of the provisions on the EEZ. In any event, the substantive rules on the EEZ concept form part and parcel of customary international law;237 thus, even non-member states to the Convention are entitled to use and are obliged to observe them.238 The view that Israel recognises the rules pertinent to the EEZ as part of customary law is evident by the reference to ‘rules and principles of international law applicable to the matter’, which goes to the above-mentioned rules of the LOSC on the EEZ notion. This position is clearly outlined in Article 1(e) of the Israeli‒Cypriot agreement (see below). Article 1 (a) The delimitation of the exclusive economic zone between the two Parties is effected by the median line of which every point is equidistant from the

Contemporary developments 95 nearest point on the baseline of the two Parties [… is effected by the median line, as such term is defined in paragraph (b) below]. (b) The median line and its limits is defined by points … according to the list of geographical coordinates annexed to this Agreement (Annex I) [… geographical coordinates attached hereto as Annex 1, which constitutes an integral part of this Agreement]. (c) The median line, as determined, appears graphically on the Official Hydrographic Chart published by the British Admiralty, No. 183 (Ras at Tin to Iskenderun), scale 1/1,100,000 (annex II) [Attached hereto as Annex II, which constitutes an integral part of this agreement]. (d) At the request of either of the two Parties, any further improvement on the positional accuracy of the median line will be agreed upon by the two Parties using the same principles, when more accurate data are available [paragraph (d) is totally different in the Israeli‒Cypriot accord and reads as follows: The coordinate values of the agreed points … on the median line take precedence over the chart noted in paragraph (c) above, and over any other map or chart that reflects the location of the median line between the Parties]. (e) Taking into consideration article 74 of the United Nations Convention on the Law of the Sea of 10 December 1982, the geographical coordinates of points … could be reviewed and/or extended (and duly revised – Leb‒Cy agreement) as necessary in the light of future delimitation of the exclusive economic zone with other concerned neighbouring States and in accordance with an agreement to be reached in this matter by the neighbouring States concerned [Taking into consideration the principles of customary interna­ tional law relating to the delimitation of the Exclusive Economic Zone between States, the geographical coordinates of points … could be reviewed and/or modified in light of a future agreement regarding the delimitation of the Exclusive Economic Zone to be reached by the three States concerned with respect to each of the said points]. According to Article 1(a) of each agreement, the maritime limit between the parties is the median line, namely a line ‘every point of which is equidistant from the nearest points on the baselines from which the breadth of the territorial seas of each of the two States is measured’.239 The mutual acceptance and use of the median line affirms the existence of a common approach in the East Med favouring this method,240 with the exception of Turkey and Palestine. It is re­ minded that Turkey241 has long advocated equitable principles which provide that all relevant factors should be considered in order to reach an equitable re­ sult.242 In any case, even though all the agreements thus far are couched on the median/equidistance line, Turkey and Palestine are not obliged to follow this pattern.243 Even the states who agreed to apply the median line in the

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delimitations under concern are not bound to apply it in other delimitation agreements they may conclude in the future. Moreover, paragraphs (b)‒(d) of Article 1 of the Agreements provide for the definition of the coordinates of the delimitation lines. A variation in comparison to the other two instruments is found in the Israeli‒Cypriot treaty where paragraphs (b) and (d) of Article 1 stress that the agreed coordinates of the median line take precedence over the map of the British Admiralty referred to in paragraph (c) or over any other map. This clause was incorporated into the text upon the insistence of the Israelis who sought as much precision as possible. As a matter of fact, the Israeli ap­ proach is preferable since coordinates do provide a greater degree of accuracy than any map.244 Furthermore, Article 1(e) addresses a possible review and/or modification of the extreme ends of the demarcation line and the determination of a tripoint. This proviso is quite crucial as it bestows on the contracting parties the power to adjust their maritime boundaries should they reach an agreement with a third state on a triple point joining their respective EEZs. Notably, the Egypt‒Cyprus and Lebanon‒Cyprus agreements make a generic reference to future agreements ‘with other concerned neighbouring States’, and the Israeli‒Cypriot agreement refers to a future agreement specifically between ‘the three States concerned’, namely Cyprus, Lebanon and Israel. It is also noteworthy that, whereas the Lebanon‒Cyprus and Israel‒Cyprus agreements explicitly envisage revision/ modification, the Egypt‒Cyprus accord enshrines the term ‘extension’. This might allude to the extension of the western end of the delimitation line between the two in order to reach the tripoint with Greece in the event of a future agreement with the latter. Interestingly, this clause mirrors the entrenched practice of international jurisprudence ‒ as discussed above ‒ and of states not to define tripoints and the precise endpoint of a delimitation line so as not to impair the rights of third states.245 According to the relevant coordinates, the southern extreme end of the Israeli‒Cypriot boundary (Point 12) and the eastern terminal point of the Egyptian‒Cypriot agreement (Point 8) coincide. However, even though Egypt has not protested against the Israeli‒Cypriot delimitation, explicit agreement is required in order to establish a tripoint between Egypt, Israel and Cyprus. Nonetheless, it can be argued that there is a ‘presumed’ tripoint between Egypt, Israel and Cyprus, namely three coincident endpoints lacking a trilateral agreement to bind them together.246 State practice shows that an agreement on a tripoint is possible even without the conclusion of bilateral delimitation agree­ ments between all the involved states. This is the case in the Baltic Sea where Sweden, Latvia and Estonia agreed to a tripoint in 1997 (‘hybrid’ or ‘mixed’ agreement),247 while solely a delimitation treaty signed by Estonia and Latvia had been in place. Estonia and Sweden concluded a bilateral delimitation accord after the tripoint agreement, whereas Latvia and Sweden have not yet plotted their maritime boundary.248 In respect of the determination of the tripoint be­ tween Cyprus, Lebanon and Israel, the situation is more complicated because of the overlapping claims of Lebanon and Israel. The delimitation lines designated by virtue of the Lebanese‒Cypriot and the Israeli‒Cypriot treaties stop short

Contemporary developments 97 approximately 9 nm northwards of the tripoint between Cyprus, Israel and Lebanon. The inconsistency between the Lebanon‒Cyprus boundary, the official Lebanese position on delimitation and the Israel‒Cyprus delimitation line generated a disputed maritime area over which Lebanon and Israel have sparred since 2010.249 It is also interesting to note that the Egyptian‒Cypriot and Lebanese‒Cypriot agreements recall Article 74 LOSC, whereas the Israeli‒Cypriot agreement refers to ‘the principles of customary international law relating to the delimi­ tation’ of the EEZ. This affirms the conclusion, as stressed earlier, that Israel accepts the application of the LOSC provisions pertinent to EEZ delimitation, in particular Article 74.250 Admittedly, such a distinction may seem superfluous since paragraph 1 of Articles 74 and 83 LOSC, which refers to the obligation of states to enter into negotiations so as to delimit their maritime boundary,251 has become part of customary international law, and thus is binding upon Israel as well.252 Nevertheless, given Israel’s non-participation in the LOSC, it ap­ pears that the Israelis did not want to use this particular conventional provision as a legal basis for the drawing of their maritime boundary. The difference of the clause under examination with the Preamble is that in the latter there is re­ ference to the rules governing the EEZ concept in general, whereas the former specifically mentions Article 74 LOSC. The median line is nowhere to be found in the wording of Articles 74 and 83 LOSC; nevertheless, these provisions refer to ‘agreement on the basis of international law’. Thus, it could be argued that the median/equidistance line method is implicitly incorporated in these clauses, as it forms part of general international law, while the application of the median/equidistance line may also lead to an equitable solution as captured in the aforementioned provisions.253 It should also be reiterated that equitable principles is not a delimitation method, but merely a goal taken into account during delimitation.254 There has also been a growing trend towards assim­ ilation of the two methods (equidistance and equitable principles), early signs of which are discernible in several cases before international courts and tribu­ nals.255 At the moment, the view supporting integration of the two methods seems to prevail,256 but nothing prevents states from agreeing to designate their maritime boundaries using only one of those. Moreover, the legislative history of Articles 74 and 83 LOSC reveals that all negotiating texts until 1981 included the median/equidistance line method, which was later discarded in favour of a ‘fragile compromise’, namely the wording of these articles as it stands today.257 The actual text of paragraph 1 of draft article 74 in 1980 read as follows: The delimitation of the exclusive economic zone between States with opposite or adjacent coasts shall be effected by agreement in conformity with international law. Such an agreement shall be in accordance with equitable principles, employing the median or equidistance line, where appropriate, and taking into account of all circumstances prevailing in the area concerned.258

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It is also argued that Articles 74 and 83 LOSC were deliberately ambiguous in order to make agreement between the parties in a dispute more likely.259 At any rate, the inclusion of the median/equidistance line method in the draft treaty until the ‘eleventh hour’ demonstrates that the drafters did contemplate the median/equidistance line method as an option leading to an equitable delimi­ tation, notwithstanding its eventual rejection in the interest of reaching an agreement on the LOSC. Additionally, it has been supported that ‘equidistance is inherent in delimitation’ and ‘reflects a standard of equitableness’.260 On the reason for dropping the median/equidistance line, the Chairman of the Second Committee of the UNCLOS III stated: Since the Conference may not adopt a compulsory jurisdictional procedure for the settlement of delimitation disputes, I felt that the reference to the median or equidistant line as an interim solution might not have the intended effect of encouraging agreements. In fact such reference might defeat the main purport of the article as set out in paragraph 1.261 Further, it is worth mentioning that Article 6 of the 1958 Convention on the Continental Shelf, which still applies between Israel and Cyprus, provides for the application of the median line in the absence of a delimitation agreement. Hence, in case no agreement could be reached and lacking any special circumstances, the median line would have been applied as the default rule.262 Article 2 In case there are natural resources [including hydrocarbons reservoirs] extending from the exclusive economic zone of one Party to the exclusive economic zone of the other, the two Parties shall cooperate in order to reach an agreement on the modalities of the exploitation of such resources … in order to reach a framework unitization agreement on the modalities of the joint development and exploitation of such resources]. In virtue of Article 2 of the agreements under examination, the parties undertake an obligation to cooperate so as to conclude framework agreements263 in the event of discovery of straddling hydrocarbon reserves (stretching from the continental shelf/EEZ of one party to the continental shelf/EEZ of the other).264 This clause mirrors the exhortation set forth by international courts and tribunals in terms of promoting collaboration on the development of un­ derwater natural resources among neighbouring states,265 while such provisions can be found in the majority of maritime boundary delimitation agreements.266 Nonetheless, the said provision sets an obligation of conduct as it does not entail the reaching of an agreement, but requires meaningful negotiations in good faith. On the authority of this proviso, a framework agreement was concluded between Egypt and Cyprus in 2013,267 while Cyprus has entered into negotia­ tions with Israel and Lebanon so as to conclude similar agreements. Notably, the

Contemporary developments 99 Israeli‒Cypriot delimitation agreement differs from the other two on this point as it refers to a framework unitisation agreement. As will be elaborated below, a framework agreement is different from a unitisation agreement in several aspects, mainly because the latter is usually concluded by the respective licensees (fol­ lowing authorisation by the states-parties to a framework agreement) and not by states (although it is also possible for states to conclude a unitisation agreement with the participation of the licensees). Nonetheless, Cyprus and Israel decided to refer to both types of instruments at the request of Cyprus. According to a diplomatic source, it seems that there was no particular reason behind this choice and this is confirmed by the fact that neither party wanted to depart from the practice followed in the previous two delimitation agreements with respect to this point, namely to conclude a government-to-government framework agree­ ment first and then authorise the licensees to strike a separate unitisation agreement. Hence, there is no disagreement among Israel and Cyprus that a framework and a unitisation agreement remain two distinct instruments. Article 3 [Without prejudice to the provisions of Article 1(e)] If either (any – Leb‒Cy agreement) of the two Parties is engaged in negotiations aimed at the delimitation of its exclusive economic zone with another State, that Party, before reaching a final agreement with the other State, shall notify and consult the other Party, if such delimitation is in connection with coordinates … Article 3 of the delimitation agreements contains a clause contributing to the furtherance of regional cooperation and eschewal of any misunderstandings among the interesting parties. In accordance with this article, if one of the two parties commences negotiations for the delimitation of its EEZ with another state, that party ‘shall notify and consult’ the other party, before reaching final agreement in case the extreme points of their established boundary are affected. Although Cypriot officials claim that Cyprus did inform Lebanon before concluding the delimitation agreement with Israel, Lebanon maintains that no meaningful negotiations took place and avers that Cyprus acted in bad faith.268 However, it should be borne in mind the Lebanon‒Cyprus delimi­ tation agreement was (and still is) not in force at the time, and thus the obligation envisaged in Article 3 was not activated. Be that as it may, giving a briefing to the government of Lebanon would suffice as a sign of good faith on the part of Cyprus. Article 4 (a) Any dispute arising from the implementation of this Agreement shall be settled through diplomatic channels in a spirit of understanding and cooperation.

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Contemporary developments (b) In case the two Parties do not settle the dispute within a reasonable period of time through diplomatic channels, [in accordance with paragraph (a) above] the dispute will be referred to arbitration. [The terms of reference and the procedure of the arbitration shall be determined by the Parties, by mutual agreement, prior to the commencement of the arbitration]. Article 5 1 This Agreement is subject to ratification according to the constitutional procedures in each country. 2 This Agreement shall enter into force upon the exchange of the instruments of ratification.

Moreover, Article 4 provides for dispute settlement through diplomatic channels or the possibility of recourse to arbitration in the event that ‘the two Parties do not settle the dispute within a reasonable period of time through diplomatic channels’. 269 This term is noteworthy especially as re­ gards the delimitation agreement between Israel and Cyprus given the for­ mer’s long-standing reluctance to subject its disputes to third-party dispute settlement mechanisms (i.e. the ICJ). As a matter of fact, Israel has appeared before the ICJ only once without reaching the merits stage, while, in an­ other instance, it had agreed to bring its dispute with Egypt over Taba (a small strip of land on the coast of the Aqaba Gulf) to arbitration, where the Arbitral Tribunal eventually granted Taba to Egypt.270 Therefore, the ac­ ceptance on the part of Israel of an arbitration procedure is indicative of the significance the agreement holds for Israel, and of its determination to es­ tablish a solid, long-term cooperation framework with Cyprus. Nonetheless, it should be borne in mind that recourse to arbitration can only be made through prior mutual agreement of the parties as provided for in Article 4(b) of the Israeli‒Cypriot treaty. In other words, the particular clause requires the conclusion of an additional agreement (compromis) according to which the parties will determine ‘the terms of reference and the procedure of the arbitration’.271 This procedure echoes the well-established Israeli distrust vis-à-vis third-party dispute settlement mechanisms. Interestingly enough, it is not clear whether the dispute resolution clauses in the other two delimitation agreements render unilateral recourse to arbitration possible. Given the wording of the particular clause (‘the dispute will be referred to arbitration’), it should be accepted that resort to arbitration under these treaties cannot be made unilaterally either and further steps should be taken, in the fashion explicitly articulated in the Israel‒Cyprus agreement. Finally, Article 5 outlines the necessary procedure for the agreements to enter into force, namely ratification by the signatories and exchange of the pertinent ratification instruments.

Contemporary developments 101 3.5 Egypt‒Cyprus agreement on the development of cross-median line hydrocarbon resources (2013)272 The importance of inter-state collaboration with a view to protecting and con­ serving shared natural resources has long been recognised in international law.273 One of the measures aiming to safeguard shared natural resources is the con­ clusion of agreements on the development of hydrocarbon deposits extending on either side of a maritime boundary based on pertinent clauses included in most delimitation agreements.274 It is maintained that states have an obligation under customary law to work together for the exploration or exploitation of a common deposit.275 However, it appears that this rule has not been crystallised as yet, while the obligation to cooperate is one of conduct and not of result.276 Therefore, the only way for an obligation to cooperate on the development of cross-boundary reserves to be binding on states is through the conclusion of pertinent agreements.277 Such agreements are necessary because the ‘rule of capture’, namely the purported right to unilateral drilling from a common well until it is drained, is prohibited under international law.278 For if a hydrocarbon deposit falls partly in an area belonging to a state and another state extracts the whole reserve, this would amount to a violation of a state’s sovereign rights over its natural resources. On the authority of Article 2 of the 2003 maritime delimitation agreement, Egypt and Cyprus inked the above-mentioned agreement in 2013 ‒ a modified version of the treaty signed in 2006 ‒ following a Memorandum of Understanding on the matter signed in 2005. It should be emphasised that the legal premise for a framework agreement is a delimitation treaty, as it is necessary to designate a boundary first in order to ascertain whether there is a reserve straddling that boundary. According to the Preamble of the Agreement, each state pledges to notify the other when a potential reserve, which may straddle the maritime boundary of their EEZs, is identified, while each party should have full access to the data pertinent to discoveries in the Near-by Area from the EEZ limit, namely an area up to 10 km (Article 2).279 In late August 2015, the Italian oil company ENI discovered a huge deposit (named ‘Zohr’) offshore Egypt.280 As the particular reserve is situated 6 km from the EEZ boundary between Egypt and Cyprus, the agreement under examination was implemented and Egypt fulfilled its obligation to grant information to Cyprus regarding the field (Article 3). Article 4 envisages that when a cross-median line reserve is found, the parties should seek an agreement for the development and exploitation of it (the uni­ tisation agreement). Notably, a unitisation agreement can be reached among the licensees operating on either side of the boundary, while the states concerned have to approve the operators’ agreement.281 However, if the interested states want to have more control over the process, they may conclude the unitisation agreement themselves with the participation of the licensees. As noted earlier, even though the Israeli‒Cypriot delimitation treaty refers to a ‘framework uni­ tization’ agreement, the aforementioned two-step approach should be followed in that case as well.

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At this point, a distinction should be made between unitisation agreements and joint development agreements. Whereas the former ‘envisage the preserva­ tion and development of an identified hydrocarbon deposit as a single unit in order to ensure its efficient production and to avoid waste’, the latter ‘are signed between two or more States and establish the conditions for the undertaking of exploration and exploitation activities of offshore hydrocarbon deposits that may be found in the seabed and marine subsoil of a designated maritime area, before or after the delimitation of maritime boundaries’.282 Usually, albeit not in all cases, unitisation agreements are being concluded when a reserve straddles an established maritime boundary, whereas joint development zones are being used in undelimited/disputed maritime areas. Judge Evensen supported the conclu­ sion of unitisation agreements ‘in order to regulate the exploitation and the shared ownership where a petroleum deposit either straddles the line of deli­ mitation or the outer lines restricting the zones of joint exploration’.283 Echoing the environmental sensitivities of both states, Articles 5 and 6 provide for compliance with health, safety and environmental requirements during the performance of activities relevant to joint development. By virtue of Article 7, the agreement does not affect the sovereign rights and jurisdiction of each party in its EEZ, unless it is necessary for the observance of the provisions of the agreement. Finally, as stated in Article 8, in case a dispute arises, the means of settlement included in Article 4 of the delimitation agreement apply (through diplomatic channels or arbitration). Importantly, as the aforementioned provi­ sions are based on the EEZ boundary between the two parties, it is argued that the agreement under examination entrenches the median line and leaves little room for questioning its validity.

4 Turkey’s reaction to the maritime delimitations in the East Med 4.1 Introduction Despite the fact that most East Med states have been keen on collaborating in order to avail themselves of the energy windfall, Turkey has taken a different stance. In the wake of the Egypt‒Cyprus delimitation agreement, Turkey reacted in a firm way and has been embroiled in a diplomatic row with Cyprus and Greece. In broad terms, as mentioned above, Turkey maintains that the Greek islands of the south-eastern Aegean and Cyprus cannot claim either a continental shelf or an EEZ in the maritime area between them, and the purported Turkish continental shelf limit extends up to a median line with the Egyptian EEZ, disregarding any projections of the Greek islands and Cyprus in the particular maritime space. Further, Turkey submits that Cyprus’s offshore blocks in the south-west of the island encroach upon the Turkish continental shelf, while the pertinent hydrocarbon activities on the part of the Cypriot government are unacceptable as they do not take into consideration the rights of the Turkish Cypriots and should be put on hold until a solution to the Cyprus Problem is

Contemporary developments 103 achieved. Apart from granting oil concessions to the TPAO, Turkey has per­ formed seismic surveys and drillings in undelimited maritime areas and/or within the continental shelf/EEZ of Cyprus and/or in the latter’s territorial sea. For its part, Cyprus argues that it has every right under international law to claim all maritime zones and explore and exploit the natural resources found there, while Greece upholds its position that the Aegean islands have the capacity to generate all maritime zones. The Cypriot government has also repeatedly stated that the Turkish Cypriots will benefit from the energy dividends. The aforementioned diplomatic row, as well as the maritime incidents presented below, illustrate the significance of hydrocarbons and how non-observance of international law and lack of cooperation lead to stagnation of oil and gas operations.284 Against this backdrop, the EU, the UK, France and Israel supported the rights of Cyprus over its maritime zones and natural resources. At the same time, trilateral meetings between the East Med states have been taking place with a view to deepening collaboration on maritime affairs, as well as on other matters of interest to the states under concern.

4.2 Exchange of letters, the stance of the international community and trilateral meetings On 2 March 2004, Turkey transmitted a note to the UN Secretary-General in order to make clear that it does not recognise the 2003 agreement between Egypt and Cyprus as: [T]he delimitation of the EEZ or the continental shelf in the Eastern Mediterranean, especially in areas falling beyond the western part of the longitude 32° 16′ 18″ [just outside Cyprus’s western territorial sea], also concerns Turkey’s existing ipso facto and ab initio legal and sovereign rights, emanating from the established principles of international law … the delimitation of the EEZ and the continental shelf beyond the western parts of the longitude 32° 16′ 18″ should be effected by agreement between the related states at the region based on the principle of equity.285 It was the first time Turkey explicitly declared its interest in the particular sea area with respect to the continental shelf, as the reference to ‘ipso facto and ab initio’ rights denotes,286 since Turkey does not expressly claim an EEZ in the Mediterranean Sea. Additionally, Turkey reiterated its non-recognition of the Republic of Cyprus using the term ‘Greek Cypriot Administration of Southern Cyprus’ instead, which, so the Turkish argument runs, does not represent the Cypriot people in its entirety, and thus it is not entitled to conclude international agreements on their behalf. Cyprus responded through a statement sent to the UN Secretary-General whereby it rejected the Turkish positions as ‘vague and unfounded’, while it condemned the attempts to diminish the sovereignty of Cyprus, which is a member-state of the EU. The statement also stressed the long-standing adherence of Cyprus to the law of the sea rules, criticising Turkey’s

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reluctance to accede to the LOSC. By way of reply to the Turkish claims for the maritime area western of longitude 32° 16′ 18″, Cyprus, referring to its agree­ ment with Egypt, stated: [W]hen deciding on the extent of the delimitation line, both countries agreed to avoid extending that line in areas where the rights of third coastal States could be affected (disclaimer), without abolishing their sovereign rights to do so in the future, when an agreement with those States could be reached.287 Cyprus pointed out that the Turkish position in respect of the maritime area western of the longitude 32° 16′ 18″ aims at refuting the capacity of islands to generate maritime zones and disregards the obligation set forth in Articles 74 and 83 LOSC, namely that delimitation should be effected by virtue of general in­ ternational law. Greece was also involved in this conundrum by means of a note verbale communicated to the UN Secretary-General, whereby it noted that it is one of the interested states in the region reaffirming its commitment to the principle of median/equidistance line.288 Besides, the westernmost end of the purported median line between Turkey and Egypt is at 28° 00′ 00″ longitude, thus virtually eliminating the Greek eastern Aegean islands’ effect in the relevant maritime space. In late 2005, Turkey reopened the matter with another note verbale, in which it repeated its previous positions seeking cooperation regarding maritime delimitations on the basis of the enclosed or semi-enclosed seas regime: [A]ccording to one of the general principles of international law of the sea, States bordering an enclosed or semi-enclosed sea, such as the Mediterranean Sea, are under an obligation to cooperate with each other in the exercise of their rights and in the performance of their rights.289 Although Turkey considers the enclosed/semi-enclosed seas concept to be a general principle of international law creating obligations for collaboration on every matter in such seas, this interpretation of Articles 122–123 LOSC is not in accordance with the Convention in as much as it was rejected by the UNCLOS III.290 Again, Cyprus replied via a note verbale upholding the postures contained in its previous statement. Nonetheless, perhaps without having understood the essence of the Turkish argument, Cyprus agreed with the position of Turkey on cooperation in semi-enclosed seas and attempted to take advantage of it by noting that: The Republic of Cyprus infers from this statement [on semi-enclosed seas] that Turkey concurs with the rest of the international community in recognizing the Republic of Cyprus as a State under established norms of Public International Law and expects that Turkey will engage constructively in bilateral consultations in order to reach an analogous agreement of delimitation with the legitimate Government of the Republic of Cyprus.291

Contemporary developments 105 Cyprus sent additional letters against Turkish threats regarding the former’s oil and gas activities and maritime delimitation agreements.292 In August 2007, Cyprus transmitted a letter to the UN ‒ reiterating its long-standing arguments concerning its sovereign rights over offshore natural resources ‒ as a response to a letter from Turkey opposing the Cypriot government’s call for an international tender concerning some of the offshore blocks in its continental shelf/EEZ, and repeating the Turkish position that when it comes to maritime delimitation in a semi-enclosed sea, the consent of all states bordering such a sea is required.293 In the aftermath of the conclusion of the Lebanese‒Cypriot delimitation agree­ ment, Turkey communicated a letter to the UN on behalf of the Turkish Cypriot leader, who considered the particular treaty as null and void since, so the Turkish argument goes, the Republic of Cyprus does not represent the Turkish Cypriots.294 Given that Lebanon did not ratify the agreement, no further con­ frontation took place on this matter. In a similar vein, Turkey also objected to the delimitation agreement between Israel and Cyprus, although it did not lay any claims regarding the delimited sea space. Conversely, once again, the Turkish arguments evolved around the ‘incapacity’ of the Republic of Cyprus to re­ present the Turkish Cypriots.295 At this juncture, it should be noted that the Turkish Cypriots remain citizens of the Republic of Cyprus and they are entitled to enjoy the benefits accruing from hydrocarbons should they seek dismantlement of the secessionist entity in northern Cyprus and return to the legitimate state. Still, it should not be an­ ticipated that they would be allocated distinct ownership rights over the hy­ drocarbons as a community. On the contrary, since natural resources belong to the Cypriot people as a whole, they will be able to avail themselves of the gas profits on an equal footing with their Greek Cypriot fellow citizens. This ap­ proach was followed in Norway where ‘it was at the outset established that the resources belong to the people. No special groups are in the position to claim any particular ownership to the resources.’296 In another letter transmitted to the UN rejecting the Israeli‒Cypriot delimitation treaty, Turkey stressed that any maritime boundary delimitations concerning Cyprus should be concluded after a solution to the Cyprus Problem is reached.297 On the other side, Cyprus replied by stating the following: The recent Agreement on Delimitation of the Exclusive Economic Zone, which was co-signed by the Republic of Cyprus and the State of Israel, was within the framework of exercising the Republic’s sovereign rights … The Republic of Cyprus is the only legitimate state in Cyprus, which is fully and internationally recognized and represents the people of Cyprus as a whole, including Turkish Cypriots. Turkey not only does not have the authority to question the legitimacy thereof, but it has the obligation to recognize the Republic of Cyprus, within the framework of its EU accession course … These agreements involve and benefit the people of Cyprus as a whole. What prevents Turkish Cypriots from benefiting of the initiatives of the Republic of Cyprus is the illegal Turkish occupation of the northern part of Cyprus.298

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Cyprus found support from Israel299 and the European Council, which has re­ peatedly placed emphasis on ‘the sovereign rights of the EU Member States which include, inter alia, entering into bilateral agreements, in accordance with the EU acquis and international law, including the UN Convention on the Law of the Sea’ (as of 2011 the Council added the phrase ‘the right of the Member States to explore and exploit their natural resources’ in the wording).300 With respect to the tenders launched by Cyprus, since Turkey considers co­ operation between East Med states to be detrimental to its aspirations to become an energy hub,301 upon announcement of the first bidding round on the part of Cyprus, it expressed its dismay and condemnation. In two letters to the UN Secretary-General, Turkey conveyed its opposition to the 2007 bidding round as being an unacceptable unilateral act impairing the Turkish Cypriots’ rights, purporting to create a fait accompli and undermining the peace process for the solution of the Cyprus Problem.302 When Cyprus proceeded with a second tender in 2012, Turkey objected once again, reiterating that such acts violate the inherent rights of the Turkish Cypriots over the island’s natural resources. Turkey further argued that certain of the designated blocks of Cyprus overlap with Turkey’s continental shelf and the ‘TRNC’s’ blocks. The Turkish govern­ ment stated it will not allow any hydrocarbon operations in the areas under concern and ‘will take all necessary measures to protect its rights and interests in the maritime areas falling within its continental shelf’.303 In a statement issued on 23 March 2013, Turkey accused the Republic of Cyprus of acting as the sole owner of the island and repeated its position for cooperation between the two communities of the island as regards equal sharing of the hydrocarbons.304 Following a second exploratory drilling operation within Cyprus’s EEZ, Turkey set forth that such activities are provocative and prejudice the Turkish Cypriots’ inherent rights over the island’s natural resources.305 Cyprus stressed that it ‘has the sovereign and inalienable right to explore and exploit its natural resources’ in its EEZ according to international and EU law, as well as that hydrocarbons belong to all Cypriots irrespective of religion and language.306 In another press release, the Turkish government noted that unilateral steps taken on the part of the Republic of Cyprus harm the efforts towards a solution to the Cyprus Problem.307 In connection with these statements, a Turkish writer says: ‘Turkey tries to block the Cypriot-Greek gas transport project and to reap as a large a share of the Cypriot gas as possible either through a comprehensive settlement on the island or via TPAO’s concession agreement with “TRNC”.’308 In the wake of Cyprus’s third licensing round in early 2016, Turkey repeated its opposition to such initiatives which disregard the rights of the Turkish Cypriots over the natural resources of the island and breach Turkey’s rights over its continental shelf as, so the Turkish argument goes, Block 6 offered by Cyprus falls partly within the Turkish continental shelf, adding that it ‘will not hesitate to take all necessary measures to protect its rights and interests in its continental shelf’.309 Cyprus, yet again, replied that it merely exercises its sovereign rights according to international law, taking into consideration the rights of the Turkish Cypriots as well.310 Turkey responded by once more restating its claims over the

Contemporary developments 107 maritime space off the western coast of Cyprus (beyond the meridian 32° 16′ 18″), denying the latter any continental shelf/EEZ rights further off its 12 nm territorial sea. The Turkish government maintained its objections and non-recognition of the 2003 Egypt‒Cyprus EEZ delimitation agreement, asserting that its continental shelf extends up to a point where a median line with Egypt can be drawn, while it argued that the western terminal point of the median line should be defined following future delimitation agreements in the Aegean and the Mediterranean Seas, according to ‘all relevant and special circumstances’. Moreover, Turkey reiterated that certain hydrocarbon blocks of Cyprus partly fall within the Turkish continental shelf.311 Greece also responded by rejecting the Turkish line of argumentation, and in order to safeguard its position with respect to the continental shelf, as well as the capacity of islands to generate maritime zones and maritime boundary delimitation, it stated: The aforementioned [Turkey’s] letter contains unsubstantiated, unfounded and abusive allegations that totally disregard the sovereign rights of other States, including Greece, in the maritime areas of the eastern Mediterranean that are west of meridian 32° 16′ 18″. Such allegations go well beyond the rules of international law by denying the entitlement of Greek islands to maritime zones … Greece wishes to reiterate that it has ipso facto and ab initio sovereign rights and jurisdiction in the above area … [T]he Turkish allegation referring to the delimitation agreements in the Mediterranean and the Aegean Sea is totally misleading and arbitrary, as it aims at interfering with the rights of Greece to effect delimitation of its maritime areas by agreement with third States on the basis of international law, without prejudice to the sovereign rights of third States.312 By way of reply, Turkey, in line with its well-established view, argued that delimitations in enclosed and semi-enclosed seas, such as the East Med, should be concluded by agreements based on equity in order not to impair the rights of states and entities (alluding to the ‘TRNC’), while it repeated that a coastal state should not be cut off from the high seas. Next, it referred, once again, to the incapacity of islands to engender full maritime zones when facing con­ tinental lands. In the end, Turkey rejected the Greek arguments and advanced the view that a continental shelf delimitation should be concluded between Turkey and Egypt according to the median line. Greece replied by calling the Turkish allegations ‘unsubstantiated’ and accusing Turkey of ‘misleading and erroneous use of the principle of equity’ as well as of ‘partial reading of jur­ isprudence’. Greece upheld the view that islands do have the right to generate maritime zones, while it argued that maritime delimitation is not among the areas of cooperation in semi-enclosed seas and that the Turkish claims in the East Med interfere with the right to freely delimit its maritime zones with other states by agreement.313 In an another statement, the Turkish Foreign Ministry’s spokesman attempted to discourage oil companies from making bids for the blocks offered by Cyprus, restating the view that part of Block 6 falls

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within the Turkish continental shelf. He also added that such acts overlook the rights of the Turkish Cypriots, while he characterised any licences to be granted by Cyprus as ‘illegal and invalid’, warning that Turkey will ‘take all necessary measures to protect its rights and interests’,314 a wording alluding to the possibility of employing forcible measures. A reply came from Cyprus, whose government stressed that it duly exercises its sovereign rights in line with in­ ternational law, always taking into account the rights of the Turkish Cypriots, while it also noted that it will not cease its hydrocarbon activities and that the fact that certain of the biggest oil companies in the world have expressed in­ terest in Cypriot blocks provides the best answer to Turkey.315 Tensions persisted unabated and a new round of exchange of letters com­ menced in early 2017 when Turkey protested to the UN with respect to the granting of a new concession by Cyprus concerning Block 6, which Turkey considers to be partly falling within its own continental shelf. After repeating its claims in the region (to the west of meridian 32° 16′ 18″), the Permanent Representative of Turkey stated that his country ‘will not allow foreign com­ panies to conduct unauthorized hydrocarbon exploration and exploitation ac­ tivities on its continental shelf’.316 In its response, Cyprus reiterated that, according to the LOSC, islands are entitled to all maritime zones and that the Turkish assertions would deprive Cyprus of any continental shelf/EEZ beyond longitude 32° 16′ 18″. Furthermore, the government of Cyprus stressed that Block 6 falls ‘undoubtedly’ within a duly delimited area of the Cypriot con­ tinental shelf/EEZ and, thus, so the Cypriot argument goes, ‘The assertions made on the part of Turkey are … legally unfounded and beyond any reasonable geographical limits.’317 Greece also replied to the Turkish letter of 12 April 2017 by rejecting the Turkish allegations, which, according to Greece, ignore the sovereign rights of other states, including Greece, while the Greek government also reiterated its long-held position that the Greek islands are capable of gen­ erating maritime zones of their own.318 Within the same context, the Turkish Ministry of Foreign Affairs issued a statement against Cyprus’s hydrocarbon activities as the latter, according to Turkey, does not take into account the rights of the Turkish Cypriots over the natural resources of the island. In light of an exploratory drilling in Block 11 by Cyprus, Turkey expressed in clear terms its determination ‘to protect both its own rights and interests in its continental shelf and to continue its support to the Turkish Cypriot side’. By way of response, Cyprus noted that the natural resources of the island belong to all Cypriots and that the result of the aforesaid drilling ‘should be of interest to the Turkish Cypriots as well’.319 A few months later, in December 2017, the Turkish Ministry of Foreign Affairs condemned an exploratory drilling in Block 6 on behalf of the Republic of Cyprus. Turkey expressed anew its commitment to safeguard its own rights and support the Turkish Cypriots, while it also an­ nounced its planned exploration activities in the East Med in areas claimed by both itself and the ‘TRNC’.320 Along the same lines, the ‘TRNC’ protested against the hydrocarbon activities of the Republic of Cyprus, proposed the postponement of such operations until a solution of the Cyprus Problem is

Contemporary developments 109 reached and stated that they will take all necessary measures together with Turkey with a view to preserving their rights.321 Almost a year later, the Turkish Ministry of Foreign Affairs strongly reacted when Cyprus invited international oil companies for exploration activities in Block 7 delineated by the Republic of Cyprus. According to Turkey, that action ignored the rights of the Turkish Cypriots and violated Turkey’s rights over its continental shelf, as the latter asserts that Block 7 falls in part within its con­ tinental shelf. Furthermore, Turkey once again stated its determination to take necessary measures to protect its rights, including drilling operations in the East Med.322 In November 2018, Turkey issued another protest, this time against drilling conducted by ExxonMobil in the continental shelf/EEZ of Cyprus. Turkey repeated its warning towards foreign oil companies not to participate ‘in the unilateral exploration and exploitation activities of the Greek Cypriot Administration’ and said that it will commence hydrocarbon operations in maritime areas for which the Turkish Cypriots granted concessions to the TPAO.323 In January 2018, the ‘TRNC’ accused the Republic of Cyprus of disregarding the rights of the Turkish Cypriots by conducting unilateral hy­ drocarbon activities and proposed that the natural resources found in the East Med should be transferred to Europe through northern Cyprus and Turkey.324 It is worth noting that Turkey’s announcements as regards its planned hydro­ carbon activities in the East Med was a prelude to the developments which eventually took place later on.325 In early 2018, the Turkish Foreign Minister contested yet again the validity of the 2003 Egypt‒Cyprus delimitation agree­ ment because, so the Turkish argument runs, it violates Turkey’s continental shelf, and hence no other state is allowed to conduct any hydrocarbon activities on the Turkish continental shelf. However, Egypt responded vigorously stating that the validity of the agreement cannot be questioned and that Egypt will not tolerate any attempts to diminish its rights in the area.326 When Cyprus signed contracts with oil companies ENI and TOTAL concerning hydrocarbon activities in Block 7 of the Cypriot continental shelf/EEZ (September 2019), Turkey sent a letter to the UN Secretary-General arguing that such acts disregard the rights of the Turkish Cypriots and overlook the fact that Block 7 partly falls within the Turkish continental shelf. Furthermore, Turkey warned foreign oil companies, third states and the Republic of Cyprus that it will not tolerate any unauthorised hydrocarbon activities and ‘it will continue to take the necessary measures to protect its rights and interests’.327 Notwithstanding the stark opposition on the part of Turkey, the other East Med states remain committed to the cooperative scheme they have been for­ ging over the last years. Greece, Egypt and Cyprus held seven trilateral meetings on 8 November 2014, 29 April 2015, 9 December 2015, 11 October 2016, 21 November 2017, 10 October 2018 and 8 October 2019. Apart from energy and maritime issues, the participant states dealt with several matters of regional and international interest. The first meeting resulted in the Cairo Declaration, whereby the parties reiterated their commitment to the principles of international law and the LOSC, condemned the Turkish

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activities in the Cypriot EEZ and reaffirmed their determination to cooperate on the energy sector. The parties declared their willingness to proceed with the delimitation of their maritime zones, ‘where this is not yet done’, namely as between Greece‒Egypt and Greece‒Cyprus or possibly the conclusion of a trilateral delimitation.328 Another declaration was issued after the second meeting (Nicosia Declaration), where the parties reaffirmed what was said in the previous statement as regards cooperation within the law of the sea fra­ mework.329 In the third meeting, which was conducted after the discovery of the huge ‘Zohr’ hydrocarbon field offshore Egypt, the parties re-emphasised the importance of hydrocarbons in their attempt to achieve peace and stability in the region (Athens Declaration). In the same vein, the three states pledged to continue and further their partnership based on international law and the LOSC with respect to energy and the protection of the environment, against the backdrop of the hydrocarbon activities.330 In the aftermath of the fourth meeting, the participants expressed their determination to enhance their co­ operation on exploitation and transfer of natural gas in view of the soaring energy challenges.331 In the fifth and sixth meetings, the parties agreed on the need to take measures for the protection of underwater cultural heritage, while in the sixth meeting they decided to establish a Permanent Secretariat in Nicosia in order to improve the effectiveness of the tripartite mechanism.332 In February 2018, Greece, Egypt and Cyprus transmitted to the UN their joint declaration issued after their fifth meeting, whereby they stressed, among others, ‘their commitment to proceed expeditiously with the negotiations on the delimitation of their common maritime boundaries as appropriate’.333 Turkey responded by restating its claims in the East Med, while it characterised the reference to ‘common maritime boundaries’ as void and unfounded.334 On 8 October 2019, the seventh trilateral meeting between Greece, Egypt and Cyprus took place in Cairo. In their joint declaration the parties raised con­ cerns over the violations by Turkey in Cyprus’s maritime zones, pledged to enhance their cooperation in the fields of hydrocarbons and the protection of underwater cultural heritage, while they agreed to intensify their efforts to establish a tripartite cooperation mechanism, as they had agreed at the sixth meeting.335 The Egypt‒Greece‒Cyprus trilateral mechanism served as a model for other trilateral schemes of cooperation in the region. Hence, six tripartite meetings between Greece, Israel and Cyprus took place on 28 January 2016, 8 December 2016, 15 June 2017, 8 May 2018, 20 December 2018 and 20 March 2019. In the Declarations issued following those meetings, the parties vowed to collaborate, among others, on energy (including support to the ‘EastMed’ pipeline and ‘EuroAsia Interconnector’ projects), maritime transport, search and rescue, the protection of the marine environment and underwater cultural heritage. Furthermore, Greece and Israel expressed their solidarity to Cyprus with respect to the latter’s entitlement to exercise its so­ vereign rights in its maritime zones. This tripartite scheme also endorsed the creation of a Permanent Secretariat in Nicosia for the coordination of its work.

Contemporary developments 111 Notably, the US Secretary of State participated in the sixth trilateral meeting supporting the tripartite mechanism, while the leaders vowed to increase their efforts in terms of regional cooperation and energy independence and se­ curity.336 Surprisingly, given the ongoing destructive civil war, Syria officially for the first time opposed Turkey’s maritime claims, considering them non-binding towards other states. It also stated that the designation of the outer limits of maritime zones should be effected by agreement and that the Turkish claims do not affect Syria’s sovereign rights. What makes Syria’s reaction more interesting is the fact that Turkey’s assertions outlined in the letter dated 27 March 2018, to which Syria replies, refer to the maritime area to the west of meridian 32° 16′ 18″ and, therefore, do not affect any sea waters adjacent to the Syrian coasts. What does seem to affect Syria’s maritime rights is the purported continental shelf delimi­ tation ‘agreement’ between Turkey and the ‘TRNC’.337

5 Conclusion Over the last two decades, significant hydrocarbon deposits have been found in the seabed and subsoil of the East Med sea waters, while there are indications for even bigger reserves lying in the substratum of the region yet to be dis­ covered. Consequently, the oil and gas industry in the East Med is rapidly growing, expectations are high and the maritime domain grabs the East Med states’ attention anew. As this chapter has shown, Egypt and Israel have already extracted offshore hydrocarbons and produce and sell natural gas, and Cyprus is expected to do so within the next few years. On the other hand, Lebanon, Turkey and Greece, for a range of reasons, lag behind their neighbours in this respect, but they have commenced hydrocarbon activities and are soon ex­ pected to move forward in terms of hydrocarbon development. What is more, as depicted above, the EU membership of Greece and Cyprus brings the Union into play as the waters of those two states are also deemed ‘Union waters’, a fact entailing the application of the acquis therein. Additionally, the EU itself has highlighted the importance of the East Med hydrocarbons to its efforts to di­ versify its energy sources, routes and supply. The turn of events in the region renders inter-state cooperation indispensable and that is where international law steps in, providing the proper legal framework in order to regulate colla­ boration, thus emphasising the significance it holds for states acting within the purview of the rule of law. Moreover, this chapter has illustrated that the hy­ drocarbon discoveries, as well as the prospect of additional findings have made the regional states realise that in order to avail themselves of the immense underwater wealth, they must delimit their maritime space and conclude ad­ ditional treaties in conformity with the law of the sea. These findings, if managed wisely, could improve the economies of the states under concern.338 Furthermore, natural gas will enable the East Med states to become less de­ pendent on oil imports and meet the soaring domestic gas demands.339 As will be seen in Chapter 3, energy resources may also become a source of friction

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owing to conflicting state interests in the context of what it is called ‘resource nationalism’.340 In terms of maritime delimitation law, it should be pointed out that international jurisprudence has made significant progress in terms of clar­ ifying the Convention’s ambiguous provisions. The outcome of this decades-long process, namely the ‘three-stage’ approach, provides sufficient guidance to international courts and tribunals dealing with delimitation cases, although in several cases the aforementioned method was not properly applied. On the whole, the East Med states have clinched and/or are in the process of negotiating maritime boundary delimitation and framework agreements on the development of straddling hydrocarbon reserves. These instruments verify the inference that regional states share the same mentality in relation to issues pertaining to the maritime space. These accords also demonstrate the adherence of the involved states to international law and the law of the sea rules, both conventional and customary, while they affirm the sig­ nificance of maritime delimitation law with respect to the creation of a safe and stable environment where states can exercise their sovereign rights over the hydrocarbons found in the seabed and subsoil of their sea domain. Further, the analysis of the three delimitation agreements (2003 Egypt‒Cyprus; 2007 Lebanon‒Cyprus; 2010 Israel‒Cyprus) made above reveals a regional practice, albeit not binding, in favour of the median/ equidistance line method championed by the states which have always been supportive of this method, namely Greece and Cyprus. At the same time, states without any clear position in the past have also applied the median/ equidistance line method in their delimitation agreements (Egypt, Lebanon, Israel). Nevertheless, Turkey insists on its long-held view that maritime delimitations should be effected according to equitable principles, taking into account any relevant circumstances so as to justify its position that islands do not generate full maritime zones and should not be given full effect in maritime delimitation. With a view to communicating their positions to the international community and safeguarding their interests in the marine domain of the East Med, the re­ gional states engaged in a diplomatic row exchanging notes and statements. Against this backdrop, the East Med states, except for Turkey, have enhanced their cooperation by way of trilateral meetings within the context of which they pledged to act jointly in a range of fields of common interest. Notwithstanding the above, the regional states have put forward overlapping maritime claims generating tension in the East Med. The spar between Greece and Cyprus on the one hand and Turkey on the other has been at the epicentre, while the Israeli‒Lebanese conundrum as regards a narrow maritime area has come to the fore. In light of the foregoing, it is necessary to analyse the pertinent legal framework governing hydrocarbon activities in undelimited maritime areas and assess the regional states’ conduct with reference to the rules of international law and the law of the sea.

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Notes 1 The first offshore gas field found in 1999 was named ‘Noa’ after the biblical hero. Other fields have been given names from the Bible, as well as from Greek history and mythology (i.e. ‘Tamar’, ‘Dalit’, ‘Leviathan’, ‘Aphrodite’, ‘Onasagoras’, ‘Glaucus’, ‘Kalypso’). 2 US Energy Information Administration, ‘Eastern Mediterranean Region’ (15 August 2013), www.eia.gov/international/analysis/regions-of-interest/ Eastern_Mediterranean; ‘Shell Egypt announces two ultra-deepwater dis­ coveries’ (Gulf Oil and Gas, 15 February 2004), www.gulfoilandgas.com/ webpro1/MAIN/Mainnews.asp?id=395. 3 United States Geological Survey, ‘Assessment of Undiscovered Oil and Gas Resources of the Levant Basin Province, Eastern Mediterranean’ Factsheet (March 2010), https://pubs.usgs.gov/fs/2010/3014/pdf/FS10–3014.pdf. 4 H Darbouche et al, ‘East Mediterranean Gas: What Kind of a Game-Changer?’ (The Oxford Institute for Energy Studies 2012); S Tagliapetra, ‘Towards a New Eastern Mediterranean Energy Corridor? Natural Gas Developments between Market Opportunities and Geopolitical Risks’ (Fondazione Eni Enrico Mattei 2012) 7; L El-Katiri, ‘The Eastern Mediterranean: the Middle East’s Final Gas Frontier’ (2013) 93 Oxford Energy Forum 5; M de Boncourt, ‘Offshore Gas in East Mediterranean: From Myth to Reality’ (IFRI 2013) 39; Sami Andoura and David Koranyi (eds), ‘Energy in the Eastern Mediterranean: Promise or Peril’ (Atlantic Council 2014); Angelos Giannakopoulos (ed), ‘Energy Cooperation and Security in the Eastern Mediterranean: A Seismic Shift Towards Peace or Conflict?’ (The S Daniel Abraham Center for International and Regional Studies 2016). 5 The term ‘concessions’ is utilised in a generic form, used interchangeably with the terms ‘licence’ and ‘grant’, although their meaning does not coincide. Pierre Guislain, The Privatization Challenge: A Strategic, Legal and Institutional Analysis of International Experience (World Bank Regional and Sectoral Studies 1997) 243. 6 See Chapter 1, subsection 2.3. 7 See Chapter 1, subsection 2.3. 8 On the overlapping claims between regional states, see Chapter 3. 9 Nearly one-quarter of the world’s oil and gas reserves is located offshore. David J Bederman, International Law Frameworks (Thomson Reuters Foundation Press 2010) 125; for an overview of the discoveries in the East Med up to 2013, see S Karbuz, ‘The Underbelly of Eastern Mediterranean Gas’ (August 2013) Journal of Energy Security, www.ensec.org/index.php? option=com_content&view=article&id=445:the-under-belly-of-easternmediterranean-gas&catid=137:issue-content&Itemid=422. 10 A Varshavsky, ‘Current Status of Offshore Oil and Gas Exploration in Israel’ (Presentation, Ministry of Energy and Water Resources of Israel, March 2012) 2; M Gardosh et al, ‘The Levant Basin Offshore Israel: Stratigraphy, Structure, Tectonic Evolution and Implications for Hydrocarbon Exploration’ (2008) p. 5, www.gsi.gov.il/_uploads/ftp/GsiReport/2008/Gardosh-Michael-GSI-42008.pdf; A Gürel and L Le Cornu, ‘Turkey and Eastern Mediterranean Hydrocarbons’ (GPOT 2013) 4; A Demetriou, ‘Cyprus Offshore Hydrocarbons Exploration and Production: Prospects for the Establishment of a Regional Energy Hub’ (Presentation, September 2013) 2. 11 G H Blake, ‘World Maritime Boundary Delimitation: The State of Play’ in Blake (Chapter 1, n 150) 8; S Kaye, ‘International Measures to Protect Oil Platforms, Pipelines, and Submarine Cables From Attack’ (2006–2007) 31(2) TMLJ 377, 384.

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12 Gardosh et al (n 10) p. 100. 13 Daniel Meier, ‘Lebanon’s Maritime Boundaries: Between Economic Opportunities and Military Confrontation’ (2013) p. 8, https://lebanesestudies.com/wpcontent/uploads/2019/09/maritime.pdf. 14 R S Byramjee et al, ‘Petroleum Potential of Deep-Water Areas of the Mediterranean and Caribbean Seas’ (World Petroleum Congress 1975) 309. 15 See infra section 4 and Chapter 3, subsection 4.1. 16 O Winter and G Lindenstrauss, ‘Beyond Energy: The Significance of the Eastern Mediterranean Gas Forum’ (INSS Insight No 1133, 3 February 2019), www. inss.org.il/publication/beyond-energy-significance-eastern-mediterranean-gasforum. 17 ‘Cyprus, Egypt sign gas pipeline agreement’ Cyprus Mail (Nicosia, 19 September 2018), https://cyprus-mail.com/old/2018/09/19/cyprus-egyptsign-gas-pipeline-agreement. 18 B Schaffer, ‘Israel ‒ New natural gas producer in the Mediterranean’ (2011) 39 Energy Policy 5380; de Boncourt (n 4) 19; J Stocker, ‘No EEZ Solution: The Politics of Oil and Gas in the Eastern Mediterranean’ (2012) 66(4) MEJ 579, 583. 19 Varshavsky (n 10); Gardosh et al (n 10). 20 Darbouche et al (n 4) 3; S Henderson, ‘Natural Gas Export Options for Israel and Cyprus’ (GMF 2013) 7; EIA, ‘Eastern Mediterranean Region’ (n 2). 21 Stocker (n 18) 589; W Khadduri, ‘East Mediterranean Gas: Opportunities and Challenges’ (2012) 17(1) Mediterranean Politics 111, 113–114; such an eventuality could be possible if the waters off Gaza are not delimited according to the median line; on the regime of the sea area adjacent to Gaza, see Chapter 4, section 2. 22 T Boersma and N Sachs, ‘Gaza Marine: Natural Gas Extraction in Tumultuous Times?’ (Brookings 2015). 23 Darbouche et al (n 4) 3, 6; Gürel and Le Cornu (n 10) 7; E Mendes, ‘Statehood and Palestine for the Purposes of Article 12(3) of the ICC Statute: A Contrary Perspective’ (30 March 2010) p. 35, www.icc-cpi.int/NR/ rdonlyres/D3C77FA6-9DEE-45B1-ACC0-B41706BB41E5/281876/ OTPErrolMendesNewSTATEHOODANDPALESTINEFORTHEPURPOS. pdf; M Bilgin, ‘Prospects of Natural Gas in Turkey and Israel’ in Ayşegül Sever and Orna Almog (eds), Contemporary Israeli‒Turkish Relations in Comparative Perspective (Springer 2019) 201. 24 S Vogler and E V Thompson, ‘Gas Discoveries in the Eastern Mediterranean: Implications for Regional Maritime Security’ (GMF 2015) 3; Khadduri (n 21) 111–112; Stocker (n 18) 588; W Khadduri, ‘Gaza Gas: Challenges Versus Opportunities’ (2013) 93 Oxford Energy Forum 30. 25 Boersma and Sachs (n 22) 7–8, 11–12; de Boncourt (n 4) 14–15; Tagliapetra (n 4) 13; L El-Katiri and M El-Katiri, ‘Regionalizing East Mediterranean Gas: Energy Security, Stability and the US Role’ (United States Army War College Press 2014) 8, 10; D Arbell et al, ‘Politics Trump Economics in the Complex Game of Eastern Mediterranean Hydrocarbons’ (Brookings Institute 2013), www.brookings.edu/research/opinions/2013/12/20-politics-trumpeconomics-eastern-mediterranean-hydrocarbons; Shell has abandoned Gaza fields as, given the political complexities, it could not sign any export deals. ‘Shell Relinquishes Gaza Gas Field Rights’ (Globes, 8 March 2018), https:// en.globes.co.il/en/article-shell-relinquishes-gaza-gas-field-rights1001226973. 26 N Sachs and T Boersma, ‘The Energy Island: Israel Deals with its Natural Gas Discoveries’ (Brookings Institute 2015) 2.

Contemporary developments 115 27 Darbouche et al (n 4) 4; Israel discovered another two fields called ‘Shimson’ and ‘Pinnacles’: de Boncourt (n 4) 10. 28 Delek Drilling and Avner Oil Exploration, (Presentation, September 2016), www.delekdrilling.co.il/sites/default/files/media/document/field_pt_pdf/ DD_AVNR_Sep27_isa_1.pdf. 29 ‘Noble Energy declares discovery at Karish’ (Globes, 22 May 2013), https:// en.globes.co.il/en/article-1000846175; ‘Energean declares 28–42 BCM Karish gas discovery’ (Globes, 15 April 2019), https://en.globes.co.il/en/ article-energean-declares-28-42-bcm-karish-gas-discovery-1001282233. 30 Teff-Seker, Y, Eiran E. and Rubin A, ‘Israel Turns to the Sea (2018) 72(4) Middle East Journal 610, 617–618; a study estimates that the discovered re­ serves contain a significant amount of gas: Leviathan 620 bcm, Tamar 280 bcm, Dolphin 2 bcm, Dalit 14 bcm, Tanin 33 bcm, Mari-B 30 bcm: Simone Tagliapietra, Energy Relations in the Euro-Mediterranean: A Political Economy Perspective (Palgrave Macmillan 2017) 93. 31 Ministry of Natural Infrastructure, Energy and Water Resources of Israel, ‘Bid Round Block Delineation’, www.energy-sea.gov.il/English-Site/Pages/Offshore %20Bid%20Rounds/Tender_Block_Delineation.aspx; Ministry of Natural Infrastructure, Energy and Water Resources of Israel, ‘Call for Bids: 1st Offshore Bidding Round 2016’, www.energy-sea.gov.il/English-Site/Pages/Regulation/ Call%20for%20Bids_Israel%201st%20Offshore%20Bid%20Round.pdf. 32 ‘Israeli Offshore Drilling Rights Draw Just Two Bids despite Deadline Extensions’ Haaretz (Tel Aviv, 15 November 2017), www.haaretz.com/israelnews/business/israeli-offshore-drilling-rights-draw-just-two-bids-1.5465890; ‘Two bids in Israel’s offshore energy licenses tender’ (Globes, 15 July 2019), https://en.globes.co.il/en/article-two-bids-received-in-israels-offshoreenergy-licenses-tender-1001293557. 33 Ministry of Energy of the State of Israel, ‘Call for bids’ (4 November 2018), www.energy-sea.gov.il/English-Site/Pages/Offshore%20Bid%20Rounds/ Israel%202nd%20Offshore%20Bid%20Round%20CFP.pdf. 34 ‘Twelve licenses approved for gas, oil exploration off Israel’s coast’ Jerusalem Post (Jerusalem, 30 July 2019), www.jpost.com/Jpost-Tech/Twelve-licensesapproved-for-gas-oil-exploration-off-Israels-coast-597156. 35 Gürel and Le Cornu (n 10); Demetriou (n 10). 36 Notice from the Government of the Republic of Cyprus concerning Directive 94/22/EC of the European Parliament and of the Council on the conditions for granting and using authorisations for the prospection, exploration and production of hydrocarbons [2007] OJ C 100/10 (4 May 2007); Republic of Cyprus, ‘First Licensing Round 2007’. Blocks 3 and 13 were not offered, www.mcit.gov.cy/mcit/hydrocarbon.nsf/All/ DEEB0BDEA0BA05BFC2258473002FA9A6?OpenDocument. 37 Notice from the Government of the Republic of Cyprus concerning Directive 94/22/EC of the European Parliament and of the Council on the conditions for granting and using authorisations for the prospection, exploration and production of hydrocarbons [2012] OJ C 38/24 (11 February 2012); Republic of Cyprus, ‘Second Licensing Round 2012’, www.mcit.gov.cy/mcit/hydrocarbon.nsf/All/ FC3D661D96DAEB85C22584730030243C?OpenDocument; Block 10 was allocated to the French company Total, which eventually withdrew as a result of unsuccessful attempts to trace evidence of natural gas therein. After the third licensing round the block was awarded to Exxon Mobil. 38 Gürel and Le Cornu (n 10) 4. 39 Notice from the Government of the Republic of Cyprus concerning Directive 94/22/EC of the European Parliament and of the Council on the conditions

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Contemporary developments for granting and using authorisations for the prospection, exploration and production of hydrocarbons [2016] OJ C 110/3 (24 March 2016); Ministry of Energy of the Republic of Cyprus, ‘3rd Licensing Round: Council of Ministers’ decision on selected applicants for negotiations’ (21 December 2016), www. mcit.gov.cy/mcit/hydrocarbon.nsf/All/1CB3AAD395B8100AC2258473003 03D03?OpenDocument. On the Turkish maritime claims, see infra, subsection 3.3. and Chapter 3. EIA ‘Eastern Mediterranean Region’ (n 2); US Energy Information Administration, ‘Syria’ (24 June 2015), www.eia.gov/beta/international/analysis.cfm?iso=SYR; A R Chehaitli, ‘The Maritime Borders Conflict of Lebanon and its Impact on the Drilling Process of Gas and Oil’ (MA Thesis, Notre Dame University 2015) 16. Syria: Energy Policy, Laws and Regulations Handbook, Vol I (International Business Publications 2015) 48; de Boncourt (n 4) 13; Khadduri (n 21) 116. Syrian Arab Republic, ‘Announcement for International Offshore Bid Round’ (2011), www.cgg.com/data/1/rec_docs/1787_round_announcement.pdf. Darbouche et al (n 4) 3, 5; EIA ‘Eastern Mediterranean Region’ (n 2); El-Katiri and El-Katiri (n 25) 6, 18; Syria: Energy Policy (n 42) 66; E B Gunaydin, ‘Turkey’s Potential Role in the Emerging South-Eastern Mediterranean Energy Corridor’ (Istituto Affari Internazionali 2014) 4; Yury Shafranik, ‘Russia’s Soyuzneftegaz Drops Plans for Offshore Oil and Gas Exploration in Syria’ The Moscow Times (Moscow, 29 September 2015), www.themoscowtimes.com/ 2015/09/29/russias-soyuzneftegaz-drops-plans-for-offshore-oil-and-gasexploration-in-syria-a49927. US Energy Information Administration, ‘Egypt’ (2 June 2015). M Bunter, ‘The Mediterranean Basin: A Strategic Component of a European Energy and Defence Area?’ (2004) 2(1) OGEL 4–6. Stocker (n 18) 580–581; Khadduri (n 21) 112. ‘Overview of Egypt’s Upstream Sector’ (Egypt Oil and Gas Web Portal, March 2014), https://issuu.com/egyptoil-gas/docs/eog_newspaper_march_2014_issue. ‘Shell Egypt announces two ultra-deepwater discoveries’ (Gulf Oil and Gas, 15 February 2004), www.gulfoilandgas.com/webpro1/MAIN/Mainnews. asp?id=395; Gürel et al (Chapter 1, n 70) 1; ‘Defense Ministry approves tender for gas exploration in the Mediterranean’ (Egypt Independent, 29 May 2012), www.egyptindependent.com/news/defense-ministry-approves-tendergas-exploration-mediterranean; it is worth mentioning that deepwater gas dis­ coveries are more costly to develop than the shallow ones. R Maalouf, ‘Lebanon’s First Licensing Round and the Prospects of Deepwater Gas Developments’ (2015) 13(1) OGEL 3. V Marcel, ‘Prospects for Good Governance in Lebanon’s Nascent Petroleum Sector’ (2013) Energy Strategy Reviews 1. EGAS, ‘Announcement for International Bid Round’ (2012), www.egas.com. eg/BidRound2012/Announcement_2012.pdf; EGAS, ‘Bid Round 2013’, www.egas.com.eg/Business_Opportunities/Bid_Round2013_List.aspx; Offshore Energy Today.com, ‘Eni gets hands on three exploration blocks in Egypt’ (25 September 2014), www.offshoreenergytoday.com/eni-gets-handson-three-exploration-blocks-in-egypt. ‘BP makes second significant gas discovery in Egypt’s East Mediterranean Sea’ (BP, 9 March 2015), www.bp.com/en/global/corporate/news-and-insights/ press-releases/bp-makes-second-gas-discovery-egypt.html. ‘Important gas discovery in the Egyptian Nile Delta’ (ENI, 20 July 2015), www. eni.com/en-IT/media/press-release/2015/07/eni-important-gas-discoveryin-the-egyptian-nile-delta.html.

Contemporary developments 117 54 ENI, ‘Eni discovers a supergiant gas field in the Egyptian offshore, the largest ever found in the Mediterranean Sea’ (30 August 2015), www.eni.com/en_IT/media/ press-releases/2015/08/Eni_discovers_supergiant_gas_field_in_Egyptian_offshore_ the_largest_ever_found_in_Mediterranean_Sea.shtml; Charles Ellinas, John Roberts and Harry Tzimitras, ‘Hydrocarbon Developments in the Eastern Mediterranean: The Case for Pragmatism’ (Atlantic Council 2016) pp. 9–10. 55 ENI, ‘Zohr: production underway in record time’ (18 December 2017), www. eni.com/en_IT/operations/upstream/exploration-model/zohr-egypt.page? lnkfrm=asknow. 56 ‘EGAS, EGPC 2018 Bid Rounds Results Announced with 12 Blocks Awarded’ (EnergyEgypt, 13 February 2019), https://energyegypt.net/egas-egpc-2018bid-rounds-results-announced-with-12-blocks-awarded. 57 ‘Egypt to Offer 11 Blocks in West Mediterranean Bid Round by Q1–2020’ (Energy Egypt, 30 May 2019), https://energyegypt.net/egypt-to-offer-11blocks-in-west-mediterranean-bid-round-by-q1-2020. 58 K Talus, ‘Legal and Regulatory Regime for Lebanese Offshore Petroleum’ (2013) 11(3) OGEL 2. 59 Lebanese Petroleum Administration, ‘Licensing Timetable’, www.lpa.gov.lb. 60 Khadduri (n 21) 115; Together with the 2003 pre-qualification round, Lebanon had launched tenders for the construction of an LNG terminal and LNG sup­ plies: Maalouf (n 49) 4 n 18. 61 Lebanese Petroleum Administration, ‘First EPAs signed in Blocks 4 and 9’ (January 2018), www.lpa.gov.lb/english/oil-amp-gas/major-developments. 62 Lebanese Petroleum Administration, ‘Second Licensing Round’, www.lpa.gov.lb/ english/licensing-rounds/second-licencing-round/timeline1; the fact that Lebanon has licensed and issued tenders for blocks partly falling within an area claimed by Israel has sparked the latter’s reaction. See Chapter 3, subsection 4.2. 63 Bilgin (n 23) 209. 64 M Bilgin, ‘Energy Policy in Turkey: Security, Markets, Supplies and Pipelines’ (2011) 12(3) Turkish Studies 403; Exxon Mobil, ‘Locations: Turkey’, http:// corporate.exxonmobil.com/en/company/worldwide-operations/locations/ turkey. 65 TPAO, Annual Report (2011) 10, 17, 23; TPAO, Oil and Natural Gas Sector Report (2012) 15; TPAO, 2012 Oil and Natural Gas Sector Report (May 2013) 12; US Energy Information Administration, ‘Turkey’ (2 February 2017), www. eia.gov/international/analysis/country/TUR; NATO Parliamentary Assembly, ‘European Energy Security: The Southern Gas Corridor’ (23 November 2014) para 56; Gürel and Le Cornu (n 10) 2, 9; Gürel et al (n 49) 6; Haifa Research Center for Maritime Strategy, ‘Israel’s Maritime Strategic Assessment: 2015 Annual Report’ (October 2015) 48; M Öğütçü, ‘Rivalry in the Eastern Mediterranean: The Turkish Dimension’ (GMF 2012) 2. 66 TPAO, ‘Basic Activities: Exploration’, www.tpao.gov.tr/eng/index.php?tp= m&id=78. 67 See Chapter 3, subsections 4.1, 5.3‒5.4. 68 Bilgin (n 23) 211–214. 69 A Phylactopoulos, ‘Mediterranean Discord: Conflicting Greek-Turkish Claims on the Aegean Seabed’ (1974) 8(3) IL 431, 432 . 70 Greece-Turkey: Agreement on Procedures for Negotiation of Aegean Continental Shelf Issue (11 November 1976). Reproduced in 16 ILM 13 (1977); Turkey argues that the moratorium imposed on hydrocarbon activities in the Aegean Sea by virtue of the Bern arrangement persists to date. Ministry of Foreign Affairs of Turkey, ‘Background note on Aegean Disputes’, www.mfa.gov.tr/background-note-on-aegean-disputes.en.mfa; Syrigos holds

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Contemporary developments the view that the procès-verbal was terminated in 1988, following its re­ nouncement by Greece before the Security Council: Syrigos (Chapter 1, n 341) 328–329; see also the 1988 Davos Declaration, which was an attempt to avert war between Greece and Turkey. Richard Clogg, A Concise History of Greece (3rd edn, CUP 2013) 189. Notice from the Government of the Hellenic Republic concerning Directive 94/22/EC of the European Parliament and of the Council on the conditions for granting and using authorisations for the prospection, exploration and production of hydrocarbons [2014] OJ C 390/7. ‘Vast Gas Reserves Offshore Greece’ (Natural Gas Europe, 12 August 2013), www.naturalgaseurope.com/greece-natural-gas-reserves?utm_source=Natural+ Gas+Europe+Newsletter&utm_campaign=e18a86eb33-RSS_EMAIL_CAMPA IGN&utm_medium=email&utm_term=0_c95c702d4c-e18a86eb33-3077601 37; ‘Energean secures exploitation license for West Katakolon, offshore Western Greece’ (WorldOil, 29 November 2016), www.worldoil.com/news/2016/11/ 29/energean-secures-exploitation-license-for-west-katakolon-offshore-westerngreece. Notice from the Hellenic Republic concerning Directive 94/22/EC of the European Parliament and of the Council on the conditions for granting and using authorisations for the prospection, exploration and production of hy­ drocarbons [2017] OJ C 411/04 (2 December 2017). ‘Greece licenses Exxon, Total to explore untapped waters off Crete’ (Ekathimerini, 27 June 2019), www.ekathimerini.com/241968/article/ekathimerini/business/ greece-licenses-exxon-total-to-explore-untapped-waters-off-crete. LOSC (Chapter 1, n 87) arts 1(2)(2), 305(1)(f), 306, 307 and Annex IX; Council Decision 98/392/EC of 23 March 1998 concerning the conclusion by the European Community of the United Nations Convention of 10 December 1982 on the Law of the Sea and the Agreement of 28 July 1994 relating to the implementation of Part XI thereof [1998] OJ L 179/1; TFEU (Chapter 1, n 254) art 216(2); Case 181/73 Haegeman v Belgium [1974] ECR 449, paras 2–6; Case C-286/90 Anklagemyndigheden v Poulsen and Diva Navigation [1992] ECR I-6019, para 10; Case C-459/03 Commission of the European Communities v Ireland [2006] ECR I-4657, paras 3, 82, 120–121; Case C-308/06 Intertanko and Others v The Secretary of State for the Department for Transport [2008] ECR I-4057, para 53; Case C-15/17 Bosphorus Queen Shipping Ltd Corp. v Rajavartiolaitos [2018] para 44; T Treves, ‘The EEC and the Law of the Sea: How Close to One Voice?’ (1983) 12(3–4) ODIL 173; T Treves, ‘The European Community and the Law of the Sea Convention: New Developments’ in Enzo Canizzaro (ed), The European Union as an Actor in International Relations (Kluwer Law International 2002) 279; BolaertSuominen (Chapter 1, n 254) 664–670; for the reasons the EEC pursued participation in the LOSC and its contribution in the UNCLOS III, see Nordmann (Chapter 1, n 123) 358, 362; R Long, ‘The European Union and the Law of the Sea Convention at the Age of 30’ in Freestone (Chapter 1, n 45) 37; R Long, ‘Law of the Sea Dispute Settlement and the Law of the Sea’ in Barrett and Barnes (Chapter 1, n 113) 417–455. The EU may bring proceedings against member states for non-compliance with directives implementing treaties. TFEU (n 75) art 216(2); Case C-182/89 Commission v France [1990] ECR I-4337; Case C-459/03 Commission of the European Communities v Ireland [2006] ECR I-4640, Opinion of Advocate General Poiares Maduro, para 30. Council of the European Union, ‘European Union Maritime Security Strategy’ (24 June 2014) 2–6; see also European Commission, ‘Improving governance of

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the marine space: an opportunity for Blue Growth in the Mediterranean Sea’, Press release (11 July 2013); Commission, ‘An Integrated Maritime Policy for the European Union’ COM (2007) 575 final; N Oral et al, ‘The Role of Maritime Zones in Promoting Effective Governance for Protection of the Mediterranean Marine Environment’, Report of the Expert Group on Governance of the Mediterranean Sea (2009) 57. European Parliament resolution of 12 September 2013 on the maritime di­ mension of the Common Security and Defence Policy (2012/2318(INI)), para 23. Council Resolution of 3 November 1976 (Chapter 1, n 233); T C Kariotis, ‘A Greek Exclusive Economic Zone in the Aegean Sea’ (2007) 18(3) MQ 56, 65; the Ministerial Conference for the Sustainable Development of Fisheries in the Mediterranean (2003) supported the establishment of fisheries protection zones (Venice Declaration, art 10). Opinion of the Committee of the Regions on ‘Towards an integrated maritime policy for better governance in the Mediterranean’ [2010] OJ C 267/39, paras 18, 28, 34, 36, 77, 110. Oral et al (n 77) 12. Commission, ‘European Energy Security Strategy’ COM (2014) 330 final, p. 13; Kramer Cases (Chapter 1, n 254); Buhl (Chapter 1, n 254) 193; E D Brown, ‘The Significance of a Possible EC EEZ for the Law Relating to Artificial Islands, Installations and Structures, and to Cables and Pipelines, in the Exclusive Economic Zone’ (1992) 23(2–3) ODIL 115, 139; Case C-6/04 Commission v UK [2005] ECR I-9017, paras 115–117. Subsection 2.1. Directive 2014/52/EU of the European Parliament and of the Council of 16 April 2014 amending Directive 2011/92/EU on the assessment of the effects of certain public and private projects on the environment [2014] OJ L 124/1. Directive 2013/30/EU of the European Parliament and of the Council of 12 June 2013 on safety of offshore oil and gas operations and amending Directive 2004/35/EC [2013] OJ L 178/66; this Directive covers platforms installed for oil and gas operations; therefore, it does not apply to any other activities, in­ cluding the functioning of pipelines; M Gavouneli, ‘Energy Installations in the Marine Environment’ in Barrett and Barnes (n 75) 202–203; on the con­ struction and operation of pipelines, see the Safety Guidelines and Good Practices for Pipelines, which are, nevertheless, not binding; Directive 2004/ 35/EC of the European Parliament and of the Council of 21 April 2004 on environmental liability with regard to the prevention and remedying of environmental damage [2004] OJ L 143/56; Directive 2014/52/EU of the European Parliament and of the Council of 16 April 2014 amending Directive 2011/92/EU on the assessment of the effects of certain public and private projects on the environment [2014] OJ L 124/1. Pulp Mills on the River Uruguay (Argentina v Uruguay) (Judgment) [2010] ICJ Rep 14, para 204; Responsibilities and obligations of States with respect to activities in the Area, Advisory Opinion, 1 February 2011, ITLOS Reports 2011, p. 10, para 135; Certain Activities carried out by Nicaragua in the Border Area (Costa Rica v Nicaragua) and Construction of a Road in Costa Rica Along the San Juan River (Nicaragua v Costa Rica) [2015] para 104; states are also under the duty to ensure that activities within their jurisdiction will not cause pollution in other states’ territories as noted in Article 194(2) LOSC and stressed in the Trail Smelter case (United States/Canada) [1941] 3 RIAA 1905, p. 1965; Legality of the Threat or Use of Nuclear Weapons (Chapter 1, n 99) para 29; MOX Plant (Ireland v United Kingdom), Provisional Measures, Order of

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Contemporary developments 3 December 2001, ITLOS Reports 2001, p. 95, para 82; Pulp Mills (n 87) para 101; see also Corfu Channel Case (Chapter 1, n 154) p. 22; GabčíkovoNagymaros Project (Hungary/Slovakia) (Judgment) [1997] ICJ Rep 7, para 112; Declaration of the United Nations Conference on the Human Environment (Stockholm Declaration) (1972) UN Doc A/Conf.48/14/Rev.1 11 ILM 1417, Principle 21; Rio Declaration on Environment and Development (1992) UN Doc A/CONF.151/26 31 ILM 874, Principle 2; the Mediterranean states are obliged to act in conformity with the Offshore Protocol to the 1976 Barcelona Convention; Protocol for the Protection of the Mediterranean Sea against Pollution Resulting from Exploration and Exploitation of the Continental Shelf and the Seabed and its Subsoil (adopted 14 October 1994, entered into force 24 March 2011) UNEP (OCA/MED IG.4/4); International Law Commission, Articles on Prevention of Transboundary Harm from Hazardous Activities (53rd session, 2001) UN Doc A/RES/56/82. Reproduced in YBILC, Vol II (2001) p. 146. TFEU (n 75) art 194. European Parliament, ‘Energy Roadmap 2050, a Future with Energy (2012/ 2013(INI))’ (14 March 2013) paras 77–78 (emphasis added). Commission v UK (n 82); Case 36/74 Walrave v Union Cycliste Internationale [1974] ECR 1405; Case 237/83 Prodest/Caisse primaire d’assurance maladie de Paris [1984] 3153; Case C-214/94 Boukhalfa v Germany [1996] ECR I-2253; Case 167/73 Commission v France [1974] ECR 359; Case 9/88 Mario Lopes da Veiga v Staatssecretaris v Justitie [1989] ECR 2989; Bolaert-Suominen (n 75) 688–689. Regulation 1380/2013 (Chapter 1, n 121) art 4(1); Bolaert-Suominen (n 75) 682–683. Commission v Ireland (n 75) paras 126–128. In 2014 an initiative was undertaken exploring the possibility of establishing a ‘European EEZ’, but no further developments have taken place ever since. Bolaert-Suominen (n 75) 659. Grbec (Chapter 1, n 302) 132–133. NATO Parliamentary Assembly (n 65) para 11. Energy Roadmap 2050 (n 88) paras 12, 49–50, 66, 69, 76; R Leal-Arcas, ‘The EU and Russia as Trading Partners: Friends or Foes?’ (2009) 14(3) European Foreign Affairs Review 337, 346. Commission, ‘Green Paper: Towards a European Strategy for the security of energy supply’ COM (2000) 769 final; European Council Conclusions (22 May 2013) para 6; European Council Conclusions (23–24 October 2014) para 5; Commission, ‘A policy framework for climate and energy in the period from 2020 to 2030 COM (2014) 15 final, pp. 4, 11–12, 16–17; M Leigh and C Brandsma, ‘Energy Resources in the Eastern Mediterranean: Source for Cooperation or Fuel for Tension’ (Brussels Forum 2012); T Boersma, ‘European Energy Security and the Role of Russia’ (GMF 2013) 2. Commission, ‘A Framework Strategy for a Resilient Energy Union with a Forward-Looking Climate Change Policy’ COM (2015) 80 final, pp. 2, 4, 6, 19; Bunter (n 46) 14–16; S Cropsey, ‘US Policy and the Strategic Relationship of Greece, Cyprus and Israel: Power Shifts in the Eastern Mediterranean’ (Hudson Institute 2015) pp. 21–25. European Energy Security Strategy (n 82) pp. 3, 13–16, 20; NATO Parliamentary Assembly (n 65) para 25; the Commission has also come up with a masterplan for the prevention of gas crises. Commission, ‘Commission pro­ poses new rules on gas and a heating and a cooling strategy’ (16 February

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2016), https://ec.europa.eu/energy/en/news/commission-proposes-newrules-gas-and-heating-and-cooling-strategy. European Council Conclusions (4 February 2011) para 7. Boersma (n 97) 4. ECORYS, Deltares and Oceanic Développement, ‘Blue Growth: Scenarios and Drivers for Sustainable Growth from the Oceans, Seas and Coasts’ (13 August 2015) 55, 101; R Dickel et al, ‘Reducing European Dependence on Russian Gas: Distinguishing Natural Gas Security from Geopolitics’ (Oxford Institute for Energy Studies 2014) 21; Tagliapetra (n 4) 23; T Sikorski, ‘Eastern Mediterranean LNG: A Different Global Gas Market’ (2013) 93 Oxford Energy Forum 5; M Ratner et al, ‘Europe’s Energy Security: Options and Challenges to Natural Gas Supply Diversification’ (Congressional Research Service 2013) 27, 29; N Anzinger, ‘Will the Eastern Mediterranean Become the Next Persian Gulf?’ (American Enterprise Institute for Public Policy Research – Middle Eastern Outlook No 3 2013) 2; M Koehler, ‘Gas Discoveries in the Eastern Mediterranean: Implications for the European Union’ (GMF 2012) 1; K Ilter, ‘The Eastern Mediterranean: Energy, Maritime Security and Strategic Alliances’ (MA Thesis, Naval Postgraduate College 2012) 19. Boersma (n 97) 4. European Parliament resolution of 25 October 2016 on EU strategy for li­ quefied natural gas and gas storage (2016/2059(INI)) Preamble and para 28. Koehler (n 102) 2–3. Commission, ‘European Neighbourhood Policy ‒ Strategy Paper’ COM (2004) 373 final; European Neighbourhood Policy, http://eeas.europa.eu/enp; Council of the European Union, ‘Barcelona Process: Union for the Mediterranean ministerial conference – Final Declaration’ (3–4 November 2008); Israel’s Maritime Strategic Assessment (n 65) 69; P Ghikas, ‘Petroleum Resources in South Eastern Mediterranean – A Deus Ex Machina for EU Supply Security?’ (2013) 11(3) OGEL 2; the 2016 Cairo Declaration mentions that the trilateral cooperation between Egypt, Greece and Cyprus could serve as a model for the promotion of EU relations with the regional non-EU member states. See infra subsection 5.2; see also cooperation on fisheries in Chapter 1, foot­ note 213. Safety of offshore oil and gas activities is also among the EU goals. See footnote 82; Commission, ‘On security of energy supply and international cooperation – “The EU Energy Policy: Engaging with Partners beyond our Borders”’ COM (2011) 539 final, pp. 3–5, 14; Commission, ‘Energy 2020: A strategy for competitive, sustainable and secure energy’ COM (2010) 639 final; Commission, ‘Energy infrastructure priorities for 2020 and beyond – A Blueprint for an Integrated European Energy Network’ COM (2010) 677 final. In August 2013 Israel, Cyprus and Greece signed a MoU on the construction of the EuroAsia Interconnector; ‘improving interconnection is a flagship of the EU’s current energy policies’: Schaffer (n 18) 5386; on the importance the EU attaches to interconnection of electricity systems, see Directive 2009/72/EC of the European Parliament and of the Council of 13 July 2009 concerning common rules for the internal market in electricity and repealing Directive 2003/54/EC [2009] OJ L 211/5; Commission, ‘Second Strategic Energy Review: An EU Energy Security and Solidarity Action Plan’ COM (2008) 781 final. The Israeli Prime Minister Netanyahu proposed this project in 2010: Avi BarEli, ‘Netanyahu Offers Natural Gas to Greece’ Haaretz (Tel Aviv, 30 August 2010); Amiram Barkat, ‘Israel Proposes Undersea Gas Pipeline to Europe’ (Globes, 30 August 2010), www.globes.co.il/en/article-1000585066; Israel,

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Cyprus and Greece pledged to explore the possibility of a pipeline (‘East Med Pipeline’) funnelling gas from the region to Europe. Nicosia Declaration. See infra, subsection 4.2; despite the considerable length (1000 km) and depths (up to 3000 m), the construction of this pipeline is believed to be feasible. IGI Poseidon, ‘Eastmed’, www.igi-poseidon.com/en/eastmed; Commission, ‘Eastern Mediterranean Natural Gas Pipeline – Pre-FEED studies’, https://ec. europa.eu/inea/en/connecting-europe-facility/cef-energy/projects-bycountry/multi-country/7.3.1-0025-elcy-s-m-15; Cropsey (n 98) 29–30; in December 2016 Israel, Greece and Cyprus pledged to promote the ‘East Med’ pipeline and the ‘Euro Asia Interconnector’, while they accentuated the need for additional findings in order for the project to be more worthwhile: Jerusalem Declaration. Infra, subsection 5.2; ‘Israel, Greece, Cyprus agree on European gas pipeline’ (Globes, 8 December 2016), www.globes.co.il/en/ article-israel-greece-cyprus-agree-on-promoting-european-gas-pipeline1001165829; on 5 December 2017, Greece, Italy, Israel and Cyprus signed a MoU on cooperation regarding the East Med pipeline: Joint Statement of the Minister of Energy, Commerce, Industry and Tourism of the Republic of Cyprus, the Minister of Environment and Energy of the Hellenic Republic, the Minister of Energy of the State of Israel and the Ambassador of the Italian Republic to Cyprus, www.mcit.gov.cy/mcit/mcit.nsf/68CBED43F07CCF 19C22581F0002A2D64/$file/JOINT%20STATEMENT%20EASTMED.pdf; in March 2019, Israel, Greece and Cyprus renewed their pledge to move forward with the EastMed pipeline: ‘Leaders of Cyprus, Greece and Israel signed agreement on EastMed pipeline’ (Energyworld, 22 March 2019), www.energyworldmag.com/ leaders-of-cyprus-greece-and-israel-signed-agreement-on-eastmed-pipeline; Israel, Greece and Cyprus were expected to sign an agreement on 2 January 2020 so as to pave the way for the construction of the EastMed pipeline: ‘Greece, Israel, Cyprus to sign deal on gas pipeline on January 2’ (Reuters, 22 December 2019), www. reuters.com/article/us-greece-cyprus-israel/greece-israel-cyprus-to-sign-deal-ongas-pipeline-on-january-2-idUSKBN1YQ0HK. 110 Commission Delegated Regulation (EU) 2016/89 of 18 November 2015 amending Regulation (EU) No 347/2013 of the European Parliament and of the Council as regards the Union list of projects of common interest [2016] OJ L 19/1. 111 T Tsakiris, ‘Shifting Sands or Burning Bridges?: The Evolution of TurkishIsraeli Relations after the Mavi Marmara Incident and the Strategic Energy Calculations of Greece and Cyprus’ (ELIAMEP 2014) 33–35; Cyprus signed a MoU with oil companies Noble, Avner and Delek for the construction of an LNG terminal in Cyprus in June 2013: Karen Ayat, ‘Vassilikos LNG Terminal Construction Negotiations Reach Final Stages’ (Natural Gas Europe, 12 August 2013), www.naturalgaseurope.com/cyprus-vassilikos-lng-terminal?utm_ source=Natural+Gas+Europe+Newsletter&utm_campaign=e18a86eb33-RSS_ EMAIL_CAMPAIGN&utm_medium=email&utm_term=0_c95c702d4ce18a86eb33-307760137; although the LNG option is more expensive than a pipeline, it provides the exporter state with more market options: Henderson (n 20) 4. 112 See infra, subsection 3.3; Lebanon raised concerns lest the EastMed pipeline infringes upon its maritime zones. However, the planned route suggests that the pipeline will not pass through maritime areas under the jurisdiction of/claimed by Lebanon: ‘Lebanon warns neighbours against using disputed territory for EastMed gas pipeline’ (Reuters, 7 March 2019), www.reuters.com/article/usnatgas-lebanon-israel/lebanon-warns-neighbors-against-using-disputedterritory-for-eastmed-gas-pipeline-idUSKCN1QO1H7.

Contemporary developments 123 113 Chapter 1, subsection 2.3. 114 Ellinas et al (n 54) 8, 16, 19, 22; a pipeline to Turkey would follow a shorter route, but geopolitical peculiarities render this project difficult to materialise: Darbouche et al (n 4) 20–21, 27. 115 S Laciner, ‘Turkey’s Pipeline Politics’ (2009) 5 Review of International Law and Politics 149, 152; Bilgin (n 64) 399; Ilter (n 102) 3; Gunaydin (n 44) 2. 116 Jose Manuel Barosso, ‘Energy Priorities for Europe’ (Presentation, 22 May 2013), http://ec.europa.eu/commission_2010-2014/president/news/archives/2013/ 05/pdf/energy_en.pdf; European Union Maritime Security Strategy (n 77); Regulation (EU) 347/2013 of the European Commission and of the Council of 17 April 2013 on guidelines for trans-European energy infrastructure and re­ pealing Decision No 1364/2006/EC and amending Regulations (EC) No 713/ 2009, (EC) No 714/2009 and (EC) No 715/2009, Annex 1. 117 Angelos Anastasiou, ‘Eastern Mediterranean “very important” to Europe’s en­ ergy security’ Cyprus Mail (Nicosia, 11 January 2016), http://cyprus-mail. com/2016/01/11/eastern-mediterranean-very-important-to-europes-energysecurity. 118 Commission, ‘Green Paper: A European Strategy for Sustainable, Competitive and Secure Energy’ COM (2006) 105 final, 16. 119 Commission, ‘An energy policy for Europe’ COM (2007) 1 final; G Escribano, ‘Convergence towards Differentiation: The Case of Mediterranean Energy Corridors’ (2010) 15(2) Mediterranean Politics 211, 213–214. 120 For a concise account of the evolution of maritime delimitation law, see D McRae, ‘The Applicable Law: The Geneva Convention on the Continental Shelf, the LOSC, and Customary International Law’ in Oude Elferink et al (Chapter 1, n 181) 92. 121 ‘States in most cases had not found it necessary to conclude treaties or legislate about their lateral sea boundaries with adjacent States before the question of exploiting the natural resources of the seabed and subsoil arose’: North Sea cases (Chapter 1, n 93) para 48; ‘[t]he prospect of the future exploration and ex­ ploitation of oil resources led directly to the first tentative steps toward the establishment of boundaries’: Dubai/Sharjah Border Arbitration (Chapter 1, n 269) para 28; J W Donaldson, ‘Oil and Water: Assessing the Link between Maritime Boundary Delimitation and Hydrocarbon Resources’ in Schofield et al (Chapter 1, n 199) 130, 137–139; D W Bowett, ‘The Economic Factor in Maritime Delimitation Cases’ in International Law at the Time of its Codification: Essays in Honour of Roberto Ago (Giuffrè Editore 1987) 53; B Kwiatkowska, ‘Economic and Environmental Considerations in Maritime Boundary Delimitations’ in Charney and Alexander (Chapter 1, n 300) 75; Tanaka, Predictability and Flexibility (Chapter 1, n 353) 287–8; Libya/Malta (Chapter 1, n 194) para 50; T L McDorman et al, ‘The Gulf of Maine Boundary: Dropping Anchor or Setting a Course?’ (1985) 9(2) Marine Policy 101; Attard (Chapter 1, n 265) 275; Cottier (Chapter 1, n 328) 456, 559, 583; Evans in Rothwell et al (Chapter 1, n 296) 274; Rothwell and Stephens (Chapter 1, n 28) 85; S Fietta and R Cleverly, A Practitioner’s Guide to Maritime Boundary Delimitation (OUP 2016) 88–89. 122 C Schofield, ‘The El Dorado Effect: Reappraising the “Oil Factor” in Maritime Boundary Disputes’ in Schofield et al (n 121) 124; ‘[t]he dividing line in the area between Greenland and the Canadian Arctic Islands, established for the purpose of each Party’s exploration and exploitation of the natural resources…’: Agreement between the Kingdom of Denmark and Government of Canada relating to the Delimitation of the Continental Shelf between Greenland and Canada (signed 17 December 1973, entered into force 13 March 1974) 950

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Contemporary developments UNTS 151, art 1; ‘[w]ishing to open up further opportunities for their re­ spective off-shore petroleum and related industries by establishing boundaries between their respective parts of the continental shelf’: Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the Republic of Ireland concerning the Delimitation of Areas of the Continental Shelf between the Two Countries (signed 7 November 1988, entered into force 11 January 1990) 1564 UNTS 217, Preamble; on the importance of economic factors in maritime delimitation case law, see infra. Hugo Grotius, De Jure Belli et Pacis (William Whewell tr, Cambridge 1853) 259 (Book II, Chapter 3, para 8); Bynkershoek (Chapter 1, n 86) 43–45; Grisbadarna case (Chapter 1, n 87); Fisheries case (Chapter 1, n 98) p. 133; North Sea cases (n 121) para 96; Aegean Sea Continental Shelf case (Chapter 1, n 46) para 86; Tunisia/Libya (Chapter 1, n 170) para 73; Libya/Malta (n 121) para 49; Jan Mayen case (Chapter 1, n 220) para 80; Qatar v Bahrain (Chapter 1, n 88) para 185; Newfoundland and Labrador/Nova Scotia (Phase II) [2002] para 1.27; Nicaragua v Honduras (Chapter 1, n 269) para 113; Black Sea case (Chapter 1, n 217) para 77; Bangladesh/Myanmar (Chapter 1, n 174) paras 409, 455; Nicaragua v Colombia (Chapter 1, n 84) para 140; Bangladesh v India (Chapter 1, n 93) para 279. Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v Bahrain) (Judgment) [2001] ICJ Rep 97, Joint Dissenting Opinion of Judges Bedjaoui, Ranjeva and Coroma, para 215; G H Blake, ‘World Maritime Boundary Delimitation: The State of Play’ in Gerald Blake (ed), Maritime Boundaries and Ocean Resources (Croom Helm 1987) 6; C H Schofield, ‘Blurring the Lines: Maritime Joint Development and the Cooperative Management of Ocean Resources’ (2009) 8(1) Issues in Legal Scholarship 4; I F I Shihata and W T Onorato, ‘The Joint Development of International Petroleum Resources in Undefined and Disputed Areas’ (1996) 11(2) ICSID Review-FILJ 299, 299–300; L Brilmayer and N Klein, ‘Land and Sea: Two Sovereignty Regimes in Search of a Common Denominator’ (2001) 33 NYUJILP 703, 732–736. Bangladesh v India (n 123) para 218 (emphasis added); The Temple of Preah Vihear (Cambodia v Thailand) (Judgment) [1962] ICJ Rep 6, p. 34; Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v Nigeria: Equatorial Guinea intervening), Rejoinder of Nigeria, para 10.39; A Pellet, ‘Land and Maritime Tripoints in International Jurisprudence’ in Holger P. Hestermeyer et al (eds), Coexistence, Cooperation and Solidarity: Liber Amicorum Rüdiger Wolfrum, Vol I (Brill 2011) 247. Aegean Sea Continental Shelf case (n 123) para 85. Dispute between Argentina and Chile concerning the Beagle Channel [1977] 21 RIAA 53, para 18; ‘[t]he establishment of a permanent maritime boundary is a matter of grave importance’: Nicaragua v Honduras (n 123) para 253; Bangladesh/Myanmar (n 123) para 95; Nicaragua v Colombia (n 123) para 219; Kwiatkowska (Chapter 1, n 197) 157–158. T T B Koh, ‘Negotiating a New World Order for the Sea’ (1983–1984) 24(4) VJIL 761, 783; Rothwell and Klein (Chapter 1, n 210) 27; N Klein, ‘Maritime Security’ in Rothwell et al (Chapter 1, n 20) 586. 1999 Secretary-General Report (Chapter 1, n 154) paras 72, 74; ‘[t]he deli­ mitation of maritime boundaries has certainly become an important element of the practice of States in the modern law of the sea’: UNGA, ‘Oceans and the Law of the Sea ‒ Report of the Secretary-General’ (2001) UN Doc A/56/58, para 41; ‘[d]elineating and delimiting maritime jurisdictions and exercise of sovereignty, and sovereign rights in accordance with international law are crucial

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for the rule of law in oceans and for ensuring that States benefit fully from the use of ocean resources’: 2011 Secretary-General Report Add. 2 (Chapter 1, n 433) para 351; UNGA, ‘Oceans and the Law of the Sea ‒ Report of the Secretary-General’ (2014) UN Doc A/69/71/Add. 1, para 13; UNGA, ‘Oceans and the Law of the Sea ‒ Report of the Secretary-General’ (2015) UN Doc A/70/74, para 88. D Bardonnet, ‘Les frontières terrestres et la relativité de leur trace’ (1976) 153(5) Recueil des Cours de l’Académie de Droit International de La Haye 21; T Treves, ‘The International Tribunal for the Law of the Sea and Oil and Gas Industry’ (Paper delivered at the Second Oil and Gas Conference – Managing Risk – Dispute Avoidance and Resolution, 20–21 September 2007) p. 5; ac­ cording to international jurisprudence, though, no state is to be granted the maximum reach of its entitlements: Bangladesh v India (n 123) para 469. North Sea cases (n 121) paras 47, 101(C)(1). Anglo-French Continental Shelf (Chapter 1, n 269) paras 73, 148. ‘[E]quidistance may be applied if it leads to an equitable solution’: Tunisia/ Libya (n 123) para 109; the second segment of the delimitation line between Canada and the USA is an adjusted median line: Gulf of Maine (Chapter 1, n 194) paras 216–223; the median line was the starting point (but was adjusted later on) in the delimitation between Libya and Malta: Libya/Malta (n 121) para 73; ‘[t]he judgment, separate opinions, and dissenting opinions in that case [Tunisia/Libya] provide the springboard for a discussion of equidistance as a provisional starting point’: C G Lathrop, ‘The Provisional Equidistance Line: Charting a Course between Objectivity and Subjectivity?’ in Oude Elferink et al (n 120) 202. L Delabie, ‘The Role of Equity, Equitable Principles, and the Equitable Solution in Maritime Delimitation’ in Oude Elferink (n 120) 149, 153–154; on the vagueness of equitable principles see Barbados v Trinidad and Tobago (Chapter 1, n 113) para 230 and Chapter 1, subsection 2.3.6. Lando (Chapter 1, n 93) 19. Jan Mayen (n 123) para 56; the Court of Arbitration in the Dubai/Sharjah case had also promulgated that the equidistance line it utilised was in conformity with equitable principles and produced an equitable result, although it did not give any effect to the Abu Musa island other than a 12-mile territorial sea: Dubai/Sharjah Border Arbitration (n 121) paras 13, 256; Newfoundland and Labrador/Nova Scotia (Phase II) (n 123) paras 2.27–2.28, 5.2; it has also been held that delimitation based on a strict mathematical formula does not lead to a result equitable in itself: Jan Mayen (n 123) paras 69–70; Newfoundland and Labrador/Nova Scotia (Phase II) (n 123) paras 2.34, 4.23, 5.6; Barbados v Trinidad and Tobago (n 134) para 328; Nicaragua v Colombia (n 123) para 210; delimitation should not be a mere division of maritime areas proportionate to the respective lengths of the coasts of the parties: Gulf of Maine (n 133) para 185; Libya/Malta (n 121) paras 58, 68; Nicaragua v Colombia (n 123) para 240. Eritrea/Yemen [1999] (Chapter 1, n 45) para 131; Chapter 1, section 2.3.6. Cameroon v Nigeria (Chapter 1, n 307) para 294 (emphasis added). Delabie (n 134) 157–158, 160–162. There is no rule of international law precluding states from using different de­ limitation methods in various parts of their maritime domain and no particular delimitation method is obligatory. This is a necessary clarification given that Turkey applied the median line in its delimitations in the Black Sea, whereas it rejects the median line in the Aegean and Mediterranean Seas concerning Greece and Cyprus.

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141 F Olorundami, ‘The ICJ and Its Lip Service to the Non-Priority Status of the Equidistance Method of Delimitation’ (2015) 4(1) CJICL 53. 142 Black Sea case (n 123); Bangladesh/Myanmar (n 123); Nicaragua v Colombia (n 123); Bangladesh v India (n 123); Peru v Chile (Chapter 1, n 203); Delimitation of the Maritime Boundary in the Atlantic Ocean (Ghana/Côte d’Ivoire), Judgment, ITLOS Reports 2017, p. 4; Maritime Delimitation in the Caribbean Sea and the Pacific Ocean (Costa Rica v Nicaragua) and Land Boundary in the Northern Part of Isla Portillos (Costa Rica v Nicaragua) (Judgment) [2018] ICJ Rep 5; the 2007 Nicaragua v Honduras has been the only exception thus far, as the Court concluded that it could not use the median/equidistance line because of the highly unstable nature of the coast: Nicaragua v Honduras (n 123) para 280. 143 It should be noted that the third stage in the delimitation process was in­ troduced for the first time in the Gulf of Maine case where the Chamber checked the equitableness of the designated boundary in order to ensure that it would not entail any ‘catastrophic repercussions for the livelihood and economic wellbeing of the population of the countries concerned’: Gulf of Maine (n 133) para 237. 144 Evans in Rothwell et al (n 121) 260–261; C Schofield, ‘Departures from the Coast: Trends in the Application of Territorial Sea Baselines under the Law of the Sea Convention’ in Freestone (Chapter 1, n 143) 57; Evans in Evans (Chapter 1, n 45) 664; Antunes and Becker-Weinberg (Chapter 1, n 181) 81. 145 Evans in Barrett and Barnes (Chapter 1, n 331) 50–79; F Olorundami, ‘Objectivity versus Subjectivity in the Context of the ICJ’s Three-stage Methodology of Maritime Boundary Delimitation’ (2016) 32(1) IJMCL 36; Fietta and Cleverly (n 121) 570; Evans in Oude Elferink et al (Chapter 1, n 215) 239–243. 146 Lathrop in Oude Elferink et al (n 133) 210 (emphasis added). For examples from case law see 214–219. 147 Y Tanaka, ‘Reflections on the Territorial and Maritime Dispute between Nicaragua v Colombia before the International Court of Justice’ (2013) 26(4) LJIL 909, 930. 148 North Sea cases (n 121) paras 57–58; Anglo-French Continental Shelf case (n 132) para 95; Eritrea/Yemen [1999] (n 137) para 131; M D Evans, ‘The Maritime Delimitation Between Eritrea and Yemen’ (2001) 14(1) LJIL 141. 149 Qatar v Bahrain (n 123) para 230; Cameroon v Nigeria (n 138) paras 288–290. 150 Kolb (Chapter 1, n 328) 548; Y Tanaka, ‘Article 74: Delimitation of the Exclusive Economic Zone between States with Opposite or Adjacent Coasts’ in Prölls (Chapter 1, n 113) 571; Y Tanaka, ‘Article 83: Delimitation of the Continental Shelf between States with Opposite or Adjacent Coasts’ in Prölls (n 150) 657; Evans in Oude Elferink et al (n 145) 249. 151 J I Charney, ‘Introduction’ in Jonathan I Charney and Lewis M Alexander (eds), International Maritime Boundaries, Vol II (Martinus Nijhoff 1993) xlii. 152 Cameroon v Nigeria (n 138); Guyana v Suriname Award [2007] 30 RIAA 1; Ghana/Côte d’Ivoire (n 142). 153 Evans in Freestone (Chapter 1, n 350) 159. 154 North Sea cases (n 121) para 97. 155 Tunisia/Libya (n 123) para 36 (emphasis added). 156 Libya/Malta (n 121) para 48. 157 North Sea Continental Shelf Cases (Judgment) [1969] ICJ Rep 66, Separate Opinion of Judge Jessup, pp. 66, 72; Bowett (n 121) 45, 53; Tanaka, Predictability and Flexibility (n 121) 287–288; Delimitation of the Maritime Boundary in the Bay of Bengal (Bangladesh/Myanmar), Judgment, ITLOS

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160 161 162 163 164

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166 167 168 169 170 171 172

173 174 175

Reports 2012, p. 235, Dissenting Opinion of Judge Lucky, p. 236; North Sea Continental Shelf Cases (Judgment) [1969] ICJ Rep 100, Separate Opinion of Judge Ammoun, para 18; Continental Shelf (Tunisia/Libyan Arab Jamahiriya) (Judgment) [1982] ICJ Rep 157, Dissenting Opinion of Judge Oda, para 119; Libya/Malta (n 121) para 50; McDorman et al (n 121) 101; Attard (n 121) 275; Prosper Weil, The Law of Maritime Delimitation: Reflections (Grotius 1989) 258, 264; Cottier (n 121) 456, 559, 583; Evans in Rothwell et al (n 121) 274; Rothwell and Stephens (n 121) 85; Fietta and Cleverly (n 121) 88–89. North Sea cases (n 121) paras 48, 97. North Sea Continental Shelf Cases, Rejoinder of Denmark and the Netherlands, p. 486; Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v Bahrain), Memorial of Qatar, pp. 44–45, 218–220, 251; Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v Nigeria: Equatorial Guinea intervening), Memorial of Cameroon, pp. 23, 133, 499–500, 519; Delimitation of the Maritime Boundary in the Bay of Bengal (Bangladesh/Myanmar), Rejoinder of Myanmar, pp. 210, 214–215; Delimitation of the Maritime Boundary in the Atlantic Ocean (Ghana/Côte d’Ivoire), Counter-Memorial of Côte d’Ivoire, pp. 13, 47. Weil (n 157) 259; Cottier (n 121) 560, 564; Evans in Rothwell et al (n 121) 269; Fietta and Cleverly (n 121) 88. Weil (n 157) 263–264. North Sea cases (n 121) para 101(D)(2); Libya/Malta (n 121) para 50; Newfoundland and Labrador/Nova Scotia (Phase II) (n 123) para 3.20. Nicaragua v Colombia (n 123) para 223. Tunisia/Libya (n 123) paras 117–119; international courts and tribunals did not consider state conduct as sufficient in order to establish a maritime boundary. According to an arbitral tribunal, ‘it is necessary to show an unequivocal pattern of conduct as between the two parties concerned’: Newfoundland and Labrador/Nova Scotia (Phase II) (n 123) paras 3.4–3.5, 3.7. Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia) (Judgment) [2002] ICJ Rep 664, para 79; Cameroon v Nigeria (n 138) para 304; Nicaragua v Honduras (n 123) para 258; Guyana v Suriname (n 152) para 390. Newfoundland and Labrador/Nova Scotia Award (Phase II) (n 123) paras 3.21–3.23. Ghana/Côte d’Ivoire (n 142) paras 146–149, 537; Delimitation of the Maritime Boundary in the Atlantic Ocean (Ghana/Côte d’Ivoire), Memorial of Ghana, para 5.81. Ghana/Côte d’Ivoire (n 142) paras 452–453. Gulf of Maine case (n 133) para 237; Canada/France (Chapter 1, n 25) para 84; Barbados v Trinidad and Tobago (n 134) paras 266–270; Bangladesh v India (n 123) para 423. Barbados v Trinidad and Tobago (n 134) para 241; Fietta and Cleverly (n 121) 85. Jan Mayen (n 123) para 76; Peru v Chile (n 142) para 151. McDorman et al (n 121) 99; Birnie argues that in opting for the certainty of geographical criteria, the Chamber reached a less equitable solution: P Birnie, ‘Delimitation of Maritime Boundaries: Emergent Legal Principles and Problems’ in Blake (n 124) 28. Birnie (n 172) 24. Canada/France (n 169) para 87; Eritrea/Yemen [1999] (n 137), para 72; Barbados v Trinidad and Tobago (n 134) para 267. Libya/Malta (n 121) para 50; Jan Mayen case (n 123) paras 79–80.

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176 Malcolm D Evans, Relevant Circumstances and Maritime Delimitation (Clarendon Press 1989) 208–216; McDorman et al (n 121) 99; Fietta and Cleverly (n 121) 89; N A Ioannides, ‘The “Predominant Interest Concept” in Maritime Delimitation’ (forthcoming 2020) ODIL. 177 McDorman et al (n 121) 101. 178 See Chapter 1, subsection 2.3.6. 179 See Chapter 1, subsection 2.3.3 (contemporary domestic legislation) and infra, subsection 3.4. 180 Agreement between the Republic of Cyprus and the Arab Republic of Egypt on the Delimitation of the Exclusive Economic Zone (signed 17 February 2003, entered into force 7 March 2004) 2488 UNTS 3; 2003 Secretary-General Report (Chapter 1, n 43) para 30; it is worth recalling that Egypt and Cyprus at the UNCLOS III had accepted the then newly emerged EEZ concept un­ reservedly. Chapter 1, subsection 2.3.3. 181 Convention on Maritime Delimitation between the Government of His Most Serene Highness the Prince of Monaco and the Government of the French Republic (signed 16 February 1984, entered into force 22 August 1985) 1411 UNTS 290. 182 C Chevalier, ‘Governance in the Mediterranean Sea: Legal Regime and Prospectives’ (IUCN Centre for Mediterranean Cooperation 2004) p. 7; Scovazzi referred to ‘EEZ phobia’: T Scovazzi, ‘The Mediterranean Sea Maritime Boundaries’ in David A Colson and Robert W Smith, International Maritime Boundaries, Vol V (Martinus Nijhoff 2005) 3482–3483; M Grbec, ‘Extension of Coastal State Jurisdiction in the Mediterranean: Quasi EEZs or Real Sui Generis Zones?’ in Norman A Martínez Gutiérrez (ed), Serving the Rule of International Maritime Law: Essays in Honour of Professor David Joseph Attard (Routledge 2010) 181; Grbec (n 95) 74–75; Leanza (Chapter 1, n 71) 375, 377. 183 GFCM, Report on the Twenty-second Session (October 1997) GFCM/XXIII/ 98/Inf.4, Appendix F. 184 Jacovides (Chapter 1, n 354) 109–110. 185 Anastasia Strati, Greek Maritime Zones and Delimitations with Neighbouring States (Nomiki Vivliothiki 2012) [in Greek] 103; on the non-opposability of treaties to third parties, see Chapter 3, subsection 5.4. 186 Charney and Alexander (n 151) 1489–1497, 1611–1625. 187 Charney and Alexander (n 121) 565–576; David A Colson and Robert W Smith (eds), International Maritime Boundaries, Vol III (Martinus Nijhoff 2005–2011) 2279–2291. 188 C Erciyes, ‘Maritime Delimitation and Off-Shore Activities in the Eastern Mediterranean: Legal and Political Perspectives, Recent Developments’ (Turkish Ministry of Foreign Affairs 2012), www.mfa.gov.tr/site_media/html/ maritime_delimitation.pdf; Turkish Naval Forces Strategy (2016), www.dzkk. tsk.tr/data/icerik/392/FLASH/EN/index.html; B Öztürk and S H Başeren, ‘The Exclusive Economic Zone Debates in the Eastern Mediterranean Sea and Fisheries’ (2008) 14(2) Journal of the Black Sea and Mediterranean Environment 77. 189 D A Colson, ‘The Legal Regime of Maritime Boundary Agreements’ in Charney and Alexander (n 121) 67; see infra, section 4. 190 A Turkish author argues that both Israel and Lebanon should revisit their EEZ delimitation agreements with Cyprus as they are detrimental to their interests: S S Çubukçuoğlu, ‘Turkey’s Exclusive Economic Zone in the Mediterranean Sea: The Case of Kastellorizo’ (Master’s Thesis, The Fletcher School of Law and Diplomacy 2014) 27, 32, www.academia.edu/9532225/

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191 192 193

194 195

196 197 198 199 200 201 202 203

Turkeys_EEZ_in_the_Mediterranean_Sea_The_Case_of_Kastellorizo; Yayci holds the view that Turkey can conclude delimitation agreements with Egypt, Syria, Israel, Libya and Lebanon disregarding the island of Cyprus: C Yayci, ‘The Problem of Delimitation of Maritime Areas in Eastern Mediterranean and Turkey’ (2012) 4(6) Bilge Strateji 1, 1–2. There is no maritime boundary delimitation agreement either between Cyprus and Greece or Turkey concerning the maritime area between the Greek islands of the south-eastern Aegean and Cyprus. See infra subsections 3.4 and 3.5. G Marston, ‘The Stability of Land and Sea Boundary Delimitations in International Law’ in Blake (Chapter 1, n 150) 145–146, 153; Vienna Convention on the Law of Treaties (signed 23 May 1969, entered into force 27 January 1980) 1155 UNTS 331, arts 62(2)(a), 70(1); Territorial Dispute (Libyan Arab Jamahiriya/Chad) (Judgment) [1994] ICJ Rep 37, paras 72–73; Territorial and Maritime Dispute (Nicaragua v Colombia) (Preliminary Objections) [2007] ICJ Rep 832, para 89; M Fitzmaurice, ‘The Practical Working of Treaties’ in Evans (Chapter 1, n 45) 169; international case law condones the view that Article 62(2)(a) VCLT applies to maritime boundaries as well: Aegean Sea Continental Shelf case (n 123) para 85; Arbitral Award of 31 July 1989 (Guinea-Bissau v Senegal) (Judgment) [1991] ICJ Rep 53, para 63; Bangladesh v India (n 123) para 216; Dupuy and Vignes (Chapter 1, n 88) 426; several scholars support that maritime boundary agreements should not be excluded from the application of the rebus sic stantibus principle. For a discus­ sion on these positions, see S Árnadóttir, ‘Termination of Maritime Boundaries Due to a Fundamental Change of Circumstances’ (2016) 32(83) UJIEL 94; Weil (n 157) 94–95; in any case, the use of the doctrine of fundamental change of circumstances as a means justifying termination of or withdrawal from a treaty should be applied restrictively: Fisheries Jurisdiction Case (United Kingdom of Great Britain and Northern Ireland v Iceland) (Jurisdiction) [1973] ICJ Rep 3, para 43; Gabčíkovo-Nagymaros Project (Hungary/Slovakia) (n 86) para 104; Malcolm N Shaw, International Law (8th edn, CUP 2017) 720–722. See infra section 4 and Chapter 3, subsection 4.1. VCLT (n 193) art 34; Island of Palmas case (Netherlands/USA) [1928] 2 RIAA 829, p. 842; North Sea cases (n 121) paras 14, 28 35–36; Frontier Dispute (Burkina Faso/Republic of Mali) (Judgment) [1986] ICJ Rep 554, para 47; Land, Island and Maritime Frontier Dispute (El Salvador/Honduras) (Application by Nicaragua for permission to intervene) [1990] ICJ Rep 92, para 77; Territorial and Maritime Dispute (Nicaragua v Colombia) Application by Costa Rica for Permission to Intervene (Judgment) [2011] ICJ Rep 348, para 86; Bangladesh/Myanmar (n 123) para 462; Colson (n 189) 61–63. See Chapter 3, subsection 5.4. Ian Brownlie, Brownlie’s Principles of Public International Law (James Crawford ed, 9th edn OUP 2019) 370. Article 59 ICJ Statute; Article 296(2) LOSC; Article 33(2) ITLOS Statute. Island of Palmas Case (n 195) p. 842; Nicaragua v Colombia (n 123) para 227; Bangladesh v India (n 123) para 411. Cameroon v Nigeria (n 138) para 238. N Burke O’Sullivan, ‘The Case Law’s Handling of Issues concerning Third States’ in Oude Elferink et al (n 120) 268. Article 62 ICJ Statute (the intervening party is not bound by the judgment); Article 31 ITLOS Statute (the judgment is binding on the intervening party). There has never been a request for intervention before the ITLOS.

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204 Tunisia/Libya (n 123) para 130; Libya/Malta (n 121) paras 20–23; Guinea/ Guinea-Bissau (Chapter 1, n 90) paras 93–94; Eritrea/Yemen (Maritime deli­ mitation) (n 137) paras 44–46, 136, 164; Cameroon v Nigeria (n 138) paras 238, 292; Nicaragua v Honduras (n 123) paras 312, 317; Black Sea case (n 123) paras 112, 114; Nicaragua v Colombia (n 123) para 228; Ghana/Côte d’Ivoire (n 142) paras 283, 323; Costa Rica v Nicaragua (n 142) paras 120–123, 134, 144, 157, 164; DOALOS, Handbook on the Delimitation of Maritime Boundaries (2000) para 204; C G Lathrop, ‘Tripoint Issues in Maritime Boundary Delimitation’ in Colson and Smith (n 182) 3322; Fietta and Cleverly, (n 121) 50–51, 71–72, 145–146; Lando (n 135) 217–221. 205 Libya/Malta (n 121) para 23. 206 Robert Kolb, The International Court of Justice (Hart 2013) 580. 207 Burke O’Sullivan (n 201) 277. 208 Kolb (n 206) 567–577; Brownlie’s Principles of Public International Law (n 197) 672–673; H Thirlway, ‘The International Court of Justice’ in Evans (n 144) 593–594; East Timor (Portugal v Australia) (Judgment) [1995] ICJ Rep 90, para 29; Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America) (Jurisdiction and Admissibility) [1984] ICJ Rep 392, para 88; Certain Phosphate Lands in Nauru (Nauru v Australia) (Preliminary Objections) [1992] ICJ Rep 240, paras 50–55; Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda) (Judgment) [2005] ICJ Rep 168, paras 203–204; The Philippines v China Award (Chapter 1, n 77) paras 157, 168, 634–641; M/V “Norstar” (Panama v Italy), Preliminary Objections, Judgment, ITLOS Reports 2016, p. 44, paras 172–173. 209 Monetary Gold Removed from Rome in 1943 (Italy v France, United Kingdom and United States of America) (Preliminary Question) [1954] ICJ Rep 19, p. 32 (emphasis added). 210 Kolb (n 206) 580. 211 Cameroon v Nigeria (n 138) para 238. 212 Burke O’Sullivan (n 201) 272–273. 213 Infra, section 4 and Chapter 3, subsection 4.1; I S Kaya, ‘Turkey’s Legal Position in the Eastern Mediterranean’ (The New Turkey, 19 May 2019), https://thenewturkey.org/turkeys-legal-position-in-the-eastern-mediterranean; Yayci (n 190) 1. 214 Agreement between the Government of the Republic of Cyprus and the Government of the Republic of Lebanon on the Delimitation of the Exclusive Economic Zone (17 January 2007) (not in force). Reproduced in David A Colson and Robert W Smith (eds), International Maritime Boundaries, Vol VI (Martinus Nijhoff 2005–2011) 4452. 215 Agreement between the Government of the Republic of Cyprus and the Government of the State of Israel on the Delimitation of the Exclusive Economic Zone (signed 17 December 2010, entered into force 25 February 2011) 2740 UNTS 55; Cyprus and Israel also concluded an agreement on confidential in­ formation. Agreement between the Government of the Republic of Cyprus and the Government of the State of Israel, on Exchange and Non-Disclosure of Confidential Information (signed 28 April 2014, entered into force 14 July 2014) Republic of Cyprus, Government Gazette No 4195 (4 July 2014) p. 10617, www.mof.gov.cy/ mof/gpo/gpo.nsf/All/5F4B14A1A6C1674AC2257D0B00415505/$file/ 4195%204%207%202014%20PARARTIMA%201o%20MEROS%20III.pdf. 216 Chapter 3, subsection 4.2; even though the delimitation agreement is not in force, the parties are under an obligation ‘not to defeat the object and purpose’ of that treaty: VCLT (n 193) art 18; O Dӧrr, ‘Article 18: Obligation not to defeat the object and purpose of a treaty prior to its entry into force’ in Oliver

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217 218

219 220

221

222 223 224

225 226 227 228

229 230

231 232

Dӧrr and Kirsten Schmalenbach (eds), Vienna Convention on the Law of Treaties: A Commentary (Springer 2012) 226. Korkut (Chapter 1, n 72) 102. European Commission, ‘Turkey 2007 Progress Report’ COM (2007) 663 final, p. 25, http://ec.europa.eu/enlargement/pdf/key_documents/2007/nov/ turkey_progress_reports_en.pdf; Meier (n 13) p. 4; V Marcel, ‘Prospects for Good Governance in Lebanon’s Nascent Petroleum Sector’ (2013) Energy Strategy Reviews 2; Chehaitli (n 41) 25, 36. ‘Hariri’den petrol itirafı: Hatamızı telafi edeceğiz’ Zaman (Istanbul, 2 March 2007). N Abdel-Kader, ‘Potential Conflict between Lebanon and Israel over Oil and Gas Resources – A Lebanese Perspective’ (October 2011), www.lebarmy.gov.lb/en/ content/potential-conflict-between-lebanon-and-israel-over-oil-and-gasresources-%E2%80%93-lebanese. Ministry of Foreign Affairs of Turkey, Press Release (30 January 2007) (emphasis added). In the same press release Turkey stated that it, as well as the ‘TRNC’, has rights over parts of the maritime areas for which Cyprus concluded delimitation agreements and that it is determined to protect its rights and interests, www.mfa.gov.tr/_p_30-january-2007_-press-release-regardingthe-efforts-of-the-greek-cypriot-administration-of-southern-cyprus-to-signbilateral-agreements-concerning-maritime-jurisdiction-areas-with-the-countriesin-the-eastern-mediterranean_br___p_.en.mfa. Identical letters dated 31 January 2007 from the Permanent Representative of Cyprus to the United Nations addressed to the Secretary-General and the President of the Security Council, UN Doc A/61/726-S/2007/52. Chapter 3, subsection 4.2. Victor Prescott and Clive Schofield, The Maritime Political Boundaries of the World (2nd edn, Martinus Nijhoff 2005) 394; W Khadduri, ‘The East Mediterranean Offshore Petroleum Frontier’ (1 November 2010) 53(44) Middle East Economic Survey. Stocker (n 18) 584. M Khadduri, ‘The Alexandretta Dispute’ (1945) 39(3) AJIL 406; Prescott and Schofield (n 224) 384–385. LOSC (n 75) art 56(3). Gulf of Maine case (n 133); Guinea/Guinea-Bissau (n 204); Canada/France Award (n 169) para 37; Jan Mayen case (n 123); Eritrea/Yemen [1999] (n 137); Qatar v Bahrain (n 123); Barbados v Trinidad and Tobago (n 134); Judge Oda noted that the idea for a single maritime boundary was generated over the course of the Tunisia/Libya case: Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v Bahrain) (Judgment) [2001] ICJ Rep 97, Separate Opinion of Judge Oda, para 12; Brown (Chapter 1, n 184) I.10 25; Rothwell and Stephens (n 121) 440–441. Evans in Rothwell (n 121) 266. North Sea cases (n 121) paras 97, 99; ‘[W]hile, as the Court states, the principle of joint exploitation is particularly appropriate in cases involving the principle of the unity of a deposit, it may have a wider application in agreements reached by the Parties concerning the still undelimited but potentially overlapping areas of the continental shelf which have been in dispute’: North Sea Continental Shelf Cases (Judgment) [1969] ICJ Rep 66, Separate Opinion of Judge Jessup, p. 82; Continental Shelf (Tunisia/Libyan Arab Jamahiriya) (Judgment) [1982] ICJ Rep 278, Dissenting Opinion of Judge Evensen, pp. 320–321; see infra sub­ section 3.5 on unitisation agreements and joint development zones. LOSC (n 75) art 56(1)(a) and (b)(iii). Kramer cases (n 82).

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233 It is argued that EU member states may refuse to prosecute fishermen from third countries with a view to not impairing their relations with those states: R Long, ‘Stepping over Maritime Boundaries to Apply New Normative Tools in EU Law and Policy’ in Myron H Nordquist and John N Moore (eds), Maritime Border Diplomacy (Martinus Nijhoff 2012). Nevertheless, the European Commission has been strict in this respect and demands that member states apply the per­ tinent rules without any exceptions. 234 On the obligation of EU member states to observe the Common Fisheries Policy Regulation see supra, subsection 2.2. 235 See Chapter 1, subsection 2.3.2. 236 See supra, subsection 3.2. 237 See Chapter 1, subsection 2.3.3. 238 On the bindingness of custom, see VCLT (n 193) art 38; North Sea cases (n 121) para 60; Shaw (n 193) 704; A Roberts and S Sivakumarani, ‘The Theory and Reality of the Sources of International Law’ in Evans (n 144) 92, 96; Cassese (Chapter 1, n 100) 157, 162. 239 LOSC (n 75) art 15. 240 The median/equidistance line is the preferable method in the western Mediterranean as well: Papanicolopulu, ‘The Mediterranean Sea’ (Chapter 1, n 240) 612. 241 Official Records of the Third United Nations Conference on the Law of the Sea (Chapter 1, n 29) Vol II, A/CONF.62/C.2/SR.19, para 37 and Vol XVI, A/ CONF.62/SR.160, para 11; Chapter 1, subsection 2.3.6; Palestine, which is not a state, supports the implementation of equitable principles in maritime delimitation as well. See Chapter 4, section 2. 242 North Sea cases (n 121) paras 23, 57–58, 85, 101. 243 Chapter 1, subsection 2.3.6. 244 C G Lathrop, ‘Baselines’ in Rothwell et al (Chapter 1, n 20) 77; P R R Gardiner, ‘The Limits of the Area Beyond National Jurisdiction – Some Problems with Particular Reference to the Role of the Commission on the Limits of the Continental Shelf’ in Blake (n 124) 65. 245 T Scovazzi, ‘Maritime Boundaries in the Eastern Mediterranean Sea’ (GMF 2012) p. 9 n 32; S Whittemore Boggs, ‘Problems of Water-Boundary Definition: Median Lines and International Boundaries through Territorial Waters’ (1937) 27(3) Geographical Review 445, 453. 246 Lathrop, ‘Tripoint Issues in Maritime Boundary Delimitation’ (n 204) 3308–3309, 3336; it seems that Egypt and Israel have attempted to reach a maritime delimitation agreement, but to no avail: ‘An Egyptian-Israeli Agreement: New Maritime Borders and Israeli Gas Imports for a Reduced Gas Fine’ (Mada Masr, 30 August 2017), https://madamasr.com/en/2017/ 08/30/feature/politics/an-egyptian-israeli-agreement-new-maritime-bordersand-israeli-gas-imports-for-a-reduced-gas-fine. 247 Agreement between the Government of the Republic of Estonia, the Government of the Republic of Latvia and the Government of the Kingdom of Sweden on the Common Maritime Boundary Point in the Baltic Sea (30 April 1997) 2474 UNTS 43, www.un.org/Depts/los/LEGISLATIONANDTREATIES/ PDFFILES/TREATIES/EST-LVA-SWE1997MB.PDF. 248 Lathrop, ‘Tripoint Issues in Maritime Boundary Delimitation’ (n 204) 3335 n 136; Jonathan I Charney and Robert W Smith (eds), International Maritime Boundaries, Vol IV (Martinus Nijhoff 2002) 3041–3056. 249 Chapter 3, subsection 4.2. 250 Peru, also a non-party to the Convention, accepted the application of the LOSC with respect to its maritime zones: Peru v Chile (n 142) para 178.

Contemporary developments 133 251 North Sea cases (n 121) para 85(a); Cameroon v Nigeria (n 138) para 244. 252 Guinea/Guinea-Bissau (n 204) para 88; Jan Mayen case (n 123) para 48; Eritrea/Yemen [1999] (n 137) para 130; Qatar v Bahrain (n 123) para 167; Bangladesh/Myanmar (n 123) para 183; Nicaragua v Colombia (n 123) paras 114, 139; Peru v Chile (n 142) para 179. 253 North Sea cases (n 121) para 109; Jan Mayen case (n 123) para 56; Eritrea/ Yemen [1999] (n 137) paras 131–132; Barbados v Trinidad and Tobago (n 134) paras 220–245; Qatar v Bahrain (n 123) para 231; Guyana v Suriname Award (n 152) paras 335, 342; Black Sea (n 123) paras 115–122; Bangladesh/ Myanmar (n 123) 225–240, 455; Anglo-French Continental Shelf case (n 132) para 70; Libya/Malta (n 121) paras 44; Cameroon v Nigeria (n 138) para 288–289; Birnie in Blake (n 172) 17; Karl (Chapter 1, n 269) 653; Chiu (Chapter 1, n 201); Vasco Becker-Weinberg, Joint Development of Hydrocarbon Deposits in the Law of the Sea (Springer 2014) 173–174; equity and equidistance can complement each other in producing an equitable result: Kwiatkowska (Chapter 1, n 84) 290–291, 300–301; Tanaka in Prölls (n 150) 574–575, 660–661; Chapter 1, subsection 2.3.6. 254 See Chapter 1, subsection 2.3.6 and supra subsection 3.2. 255 See Chapter 1, subsection 2.3.6. 256 Bangladesh/Myanmar (n 123) para 238. 257 Brown (n 228) I.10 2–9. 258 Official Records (n 241) ICNT/Rev.2, A/CONF.62/WP.10/Rev.2 (1980) 259 See Chapter 1, subsection 2.3.6 and supra, subsection 3.2. 260 Marques Antunes and Becker-Weinberg (n 144) 74; supra, subsection 3.2 261 Official Records (n 241) Vol IV (1975) p. 163; contemporary maritime deli­ mitation law has now endorsed the use of the median/equidistance line as a starting point. Supra, subsection 3.2. 262 Nordquist et al (Chapter 1, n 113) 243; N Matz-Lück, ‘Article 311: Relation to other conventions and international agreements’ in Prölls (n 150) 2013–2014; Newfoundland and Labrador/Nova Scotia (Phase II) (n 123) para 2.25; Chapter 1, subsection 2.1. 263 On the concept of framework agreement see infra, subsection 3.5. 264 States are under an obligation to enter into negotiations for the apportionment of a common hydrocarbon deposit: W T Onorato, ‘Apportionment of an International Common Petroleum Deposit’ (1977) 26(2) ICLQ 324, 330. 265 Unilateral exploitation of a common deposit is not in conformity with inter­ national law: The Trail Smelter case (n 86); unilateral drilling of a common deposit violates territorial sovereignty and territorial integrity: R Lagoni, ‘Oil and Gas Deposits across National Frontiers’ (1979) 73(2) AJIL 215, 217, 221; Ong (Chapter 1, n 309) 799–800; Schrijver (Chapter 1, n 204) 276–278, 338–339; for a more detailed analysis on hydrocarbon activities in undelimited maritime areas, see Chapter 3, section 3. 266 Onorato (n 264) 325; Agreement between the Government of the Republic of Tunisia and the Government of the Italian Republic concerning the Delimitation of the Continental Shelf between the two Countries (signed 20 August 1971, entered into force 6 December 1978) 1129 UNTS 254, art 4; Convention between Italy and Spain on the Delimitation of the Continental Shelf between the two States (signed 19 February 1974, entered into force 16 November 1978) 1120 UNTS 361, art 2; Agreement on provisional arrange­ ments for the delimitation of the maritime boundary between the Republic of Tunisia and the People’s Democratic Republic of Algeria (signed 11 February 2002, entered into force 22 November 2003) 2238 UNTS 197, art 5. 267 Infra, subsection 3.5.

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268 Chapter 3, subsection 4.2. 269 Colson holds the view that dispute settlement clauses in delimitation agreements are merely hortatory: Colson (n 189) 52. 270 Aerial Incident of July 27th, 1955 (Israel v Bulgaria) (Preliminary Objections) [1959] ICJ Rep 127; Location of Boundary Markers in Taba between Egypt and Israel (Egypt/Israel) [1988] 20 RIAA 1; R Lapidoth, ‘Taba Arbitration’ in R Wolfrum (ed), The Max Planck Encyclopedia of Public International Law (Oxford University Press 2006 online edition), www.mpepil.com. 271 Kolb (n 206) 541. 272 Framework Agreement Between the Government of the Republic of Cyprus and the Government of the Arab Republic of Egypt Concerning the Development of Cross-Median Line Hydrocarbons Resources, Republic of Cyprus, Government Gazette No 4196 (signed 12 December 2013, entered into force 25 July 2014) p. 10703, www.mof.gov.cy/mof/gpo/gpo.nsf/All/A88D02909DC27F10C22 57D20002C1DB5/$file/4196%2025%207%202014%20PARARTIMA%201o%20 MEROS%20III%20.pdf; Colson (n 125) 55. 273 North Sea cases (n 121) paras 95, 97, 99; Eritrea/Yemen (Maritime Delimitation) (n 137) paras 84, 86; Guyana v Suriname (n 152) para 463; Remarks by Gidel in Reports on the Continental Shelf of the International Law Commission – Memorandum presented by the Secretariat. Reproduced in YBILC, Vol II (1950) 112; UNGA Res 3129/1973 (XXVIII) (13 December 1973); Draft Principles of Conduct in the Field of the Environment for the Guidance of States in the Conservation and Harmonious Utilization of Natural Resources Shared by Two or More States (1978). Reproduced in YBILC, Vol II (1983) 197–199; UNGA Res 3281 (XXIX) (12 December 1974); UNGA Res 34/186 (18 December 1979); Ong (n 265) 771. 274 A E Bastida et al, ‘Cross-Border Unitization and Joint Development Agreements: An International Law Perspective’ (2007) 29(2) HJIL 355, 378–380. 275 UNGA Res 3281 (XXIX) (12 December 1974), art 3; Lagoni (n 265) 233–236; Ong (n 265) 802; D M Ong, ‘The 1979 and 1990 Malaysia-Thailand Joint Development Agreements: A Model for International Legal Co-operation in Common Offshore Petroleum Deposits?’ (1999) 14(2) IJMCL 207, 214–218; T Davenport, ‘The Exploration and Exploitation of Hydrocarbon Resources in Areas of Overlapping Claims’ in Robert Beckman et al (eds), Beyond Territorial Disputes in the South China Sea: Legal Frameworks for the Joint Development of Hydrocarbon Resources (Edward Elgar 2013) 107–109. 276 C Redgwell, ‘International Regulation of Energy Activities’ in Martha Roggenkamp et al (eds), Energy Law in Europe: National, EU and International Regulation (3rd edn, OUP 2016) 61–62; Bastida et al (n 274) 380. 277 For examples of unitisation treaties, see Bastida et al (n 274) 391–399. 278 Lagoni (n 265) 220, 239–240; M Miyoshi, ‘The Basic Concept of Joint Development of Hydrocarbon Resources on the Continental Shelf: With special reference to the discussions at the East-West Centre Workshops on the SouthEast Asian seas’ (1988) 3(1) IJECL 1, 6, 10; on the ‘rule of capture’ notion, see B M Kramer and O L Anderson, ‘The Rule of Capture: An Oil and Gas Perspective’ (2005) 35(4) Environmental Law 899; C Robson, ‘Transboundary Petroleum Reservoir: Legal Issues and Solutions’ in G Blake et al, The Peaceful Management of Transboundary Resources (Graham and Trotman/Martinus Nijhoff 1995) 3; R Bundy, ‘Natural Resource Development (Oil and Gas) and Boundary Disputes’ in Blake ibid 23; T Daintith, ‘Finders Keepers? How the Law of Capture Shaped the World Oil Industry’ (RFF Press 2010) 370–2, 394; Y van Logchem, ‘The Status of a Rule of Capture under International Law of the Sea with regard to Offshore Oil and Gas Resource Related Activities’ (2018)

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279

280 281

282

283 284 285

286 287

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26(2) MSILR 195; N A Ioannides, ‘The China-Japan and Venezuela-Guyana Maritime Disputes: How the Law on Undelimited Maritime Areas Addresses Unilateral Hydrocarbon Activities’ (EJIL:Talk! 25 January 2019), www.ejiltalk.org/ the-china-japan-and-venezuela-guyana-maritime-disputes-how-the-law-onundelimited-maritime-areas-addresses-unilateral-hydrocarbon-activities. Lagoni argues that if drilling operations at a common deposit on behalf of one state might cause damage to the area of the other, there is a duty under cus­ tomary law which requires neighbouring states to exchange technical informa­ tion on the reserve: Lagoni (n 265) 237–238. See supra, subsection 2.1. ‘The apportionment of reserves on each side of the median line and the allo­ cation or appropriation of oil and gas is determined by the licensees in the unitization agreement and is subject to the approval of the states’: Lagoni (n 265) 224; ILC, ‘Shared Natural Resources: Comments and Observations Received from Governments’ (17 June 2009) UN Doc A/CN.4/607/Add.1, para 47 (Cyprus); J C Woodliffe, ‘International Unitisation of an Offshore Gas Field’ (1977) 26(2) ICLQ 338; P D Cameron, ‘The Rules of Engagement: Developing Cross-Border Petroleum Deposits in the North Sea and the Caribbean’ (2006) 55(3) ICLQ 559; Bastida et al (n 274) 370. Becker-Weinberg (n 253) 18–20; Kwiatkowska, (n 121) 86; Ong (n 265) 787; other scholars do not distinguish these two concepts. T A Mensah, ‘Joint Development Zones as an Alternative Dispute Settlement Approach in Maritime Boundary Delimitation’ in Lagoni and Vignes (Chapter 1, n 221) 146–147; Onorato (n 264) 332–333; the joint development concept was elaborated in the North Sea cases, but its origins can be traced back to the 1930s: M Miyoshi, ‘The Joint Development of Offshore Oil and Gas in Relation to Maritime Boundary Delimitation’ (1999) 2(5) IBRU Maritime Briefing 1; Articles 74(3) and 83(3) LOSC form the legal basis of a joint development scheme in an undelimited area: Schofield (n 124) 4; joint de­ velopment ventures do not prejudice each state’s maritime claims: Shihata and Onorato (n 124) 312; Bastida et al (n 274) 370–371; for examples of treaties establishing joint development zones, see Bastida et al (n 274) 399–414. Continental Shelf (Tunisia/Libyan Arab Jamahiriya) (Judgment) [1982] ICJ Rep 278, Dissenting Opinion of Judge Evensen, p. 321. See Chapter 3, subsection 4.1. Information note by Turkey, concerning its objection to the Agreement be­ tween the Republic of Cyprus and the Arab Republic of Egypt on the Delimitation of the Exclusive Economic Zone, 17 February 2003. Reproduced in 54 LSB 127 (2004). The ICJ introduced this terminology in a case which has served as the main source of the Turkish argumentation on the law of the sea ever since. North Sea cases (n 121) paras 19, 39. Statement of the position of the Government of the Republic of Cyprus, dated 28 December 2004, with respect to the information note by Turkey, con­ cerning the latter’s objection to the Agreement between the Republic of Cyprus and the Arab Republic of Egypt on the Delimitation of the Exclusive Economic Zone of 17 February 2003. Reproduced in 57 LSB 124 (2005); see supra subsection 3.3. Note verbale dated 24 February 2005 addressed to the Secretary-General concerning Turkey’s objection to the Agreement between the Republic of Cyprus and the Arab Republic of Egypt on the Delimitation of the Exclusive Economic Zone of 17 February 2003. Reproduced in 57 LSB 129 (2005).

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289 Turkey’s note verbale dated 4 October 2005 from the Permanent Mission of Turkey to the United Nations addressed to the Secretary-General of the United Nations. Reproduced in 59 LSB 34 (2005). 290 See Chapter 1, subsection 2.3.5. 291 Note verbale dated 19 October 2006 from the Permanent Mission of the Republic of Cyprus to the United Nations addressed to the Secretary-General of the United Nations. Reproduced in 62 LSB 164 (2006). 292 Identical letters dated 31 January 2007 (n 222). 293 Letter dated 23 July 2007 from the Permanent Representative of Turkey to the United Nations addressed to the Secretary-General, UN Doc A/61/1011-S/ 2007/456; Letter dated 6 August 2007 from the Chargé d’affaires a.i. of the Permanent Mission of Cyprus to the United Nations addressed to the SecretaryGeneral, UN Doc A/61/1020–S/2007/474. 294 Letter dated 2 February 2007 from the Permanent Representative of Turkey to the United Nations addressed to the Secretary-General, UN Doc A/61/727-S/ 2007/54; see also Ministry of Foreign Affairs of Turkey, Press Release (30 January 2007) (n 221). 295 Letter dated 23 December 2010 from the Permanent Representative of Turkey to the United Nations addressed to the Secretary-General, UN Doc A/65/ 674–S/2010/674; Letter dated 17 April 2009 from the Permanent Representative of Turkey to the United Nations addressed to the SecretaryGeneral, UN Doc A/63/828-S/2009/216. 296 L A Andersen, ‘Hydrocarbon Resources and Revenue Management: The Case of Norway’ in Hubert Faustmann et al (eds), ‘Cyprus Offshore Hydrocarbons: Regional Politics and Wealth Distribution’ (Friedrich Ebert Stiftung-PRIO 2012) 70. 297 Letter dated 25 January 2011 from the Permanent Representative of Turkey to the United Nations addressed to the Secretary-General, UN Doc A/65/702-S/ 2011/46; a decision of the ‘TRNC’ ‘Legislative Assembly’ condemning the delimitation between Israel and Cyprus was appended to the letter. 298 Letter dated 20 January 2011 from the Permanent Representative of Cyprus to the United Nations addressed to the Secretary-General, UN Doc A/65/695-S/ 2011/31. 299 ‘Israel and Cyprus v Turkey: A Dispute over an Israeli Gas’ (Aksakal, 29 January 2011). 300 European Council, ‘Council Conclusions on Enlargement/Stabilisation and Association Process’ (7–8 December 2009), para 12; European Council, ‘Council Conclusions on Enlargement/Stabilisation and Association Process’ (14 December 2010), p. 3; European Council, ‘Council Conclusions on Enlargement and Stabilisation and Association Process’ (5 December 2011), para 21; European Council, ‘Council Conclusions on Enlargement and Stabilisation and Association Process’ (11 December 2012), para 21; European Council, ‘Council Conclusions on Enlargement and Stabilisation and Association Process’ (17 December 2013), para 14. At the end of the paragraph another sentence was added in relation to the previous years: ‘…and also stresses the need to respect the sovereignty of Member States over their territorial sea’; European Council, ‘Council Conclusions on Enlargement/Stabilisation and Association Process’ (16 December 2014) para 22; European Council, ‘Council Conclusions on Enlargement/Stabilisation and Association Process’ (15 December 2015) para 20; European Council, ‘Council Conclusions on Enlargement/Stabilisation and Association Process’ (26 June 2018) para 33; European Council, ‘Council Conclusions on Enlargement/Stabilisation and Association Process’ (18 June 2019) para 35.

Contemporary developments 137 301 Tagliapetra (n 4) 22; K Tastan and T Kutschka, ‘The Implications of Eastern Mediterranean Gas for Turkey’ (GMF 2019) 1–2. 302 Letter dated 23 July 2007 (n 293); Letter dated 8 August 2007 from the Permanent Representative of Turkey to the United Nations addressed to the Secretary-General, UN Doc A/61/1027–S/2007/487; Turkey also reacted to Cyprus’s planned drilling in 2011 by stating that such actions are unlawful, ‘create tension in the region, compromise and prejudge the Turkish Cypriots’ existing and inherent equal rights over the natural resources of the island’: Ministry of Foreign Affairs of Turkey, Press Release (5 August 2011), www.mfa.gov.tr/no_181_-5-august-2011_-press-release-regarding-the-greek-cypriot-administration_sgas-exploration-activities-in-the-eastern-mediterranean.en.mfa. 303 See Press Release 5 August 2011 (n 302); Ministry of Foreign Affairs of Turkey, Press Release (15 February 2012), www.mfa.gov.tr/no_-43_-15-february2012_-second-international-tender-for-off_shore-hydrocarbon-explorationcalled-by-the-greek-cypriot-administration-_gca_.en.mfa. The wording appears to allude to threat of use of force in contravention of Article 2(4) UN Charter. Ministry of Foreign Affairs of Turkey, Press Release (18 May 2012), www.mfa. gov.tr/no_-140_-18-may-2012_-press-release-regarding-the-internationaltender-for-off_shore-hydrocarbon-exploration-and-exploitation-opened-bythe-greek-cypriot-administration.en.mfa; Ministry of Foreign Affairs of Turkey, Press Release (3 November 2012), www.mfa.gov.tr/no_-249_-3-november2012_-press-release-regarding-hydrocarbon-activities-of-the-gca.en.mfa; see Chapter 3, subsection 4.1. and section 5. 304 Ministry of Foreign Affairs of Turkey, ‘Statement Regarding the Claims of the Gcasc on Hydrocarbon Resources in the eastern Mediterranean’ (23 March 2013), www.mfa.gov.tr/no_-83_-23-march-2013_-statement-regarding-the-claims-ofthe-gcasc-on-hydrocarbon-resources-in-the-eastern-mediterranean.en.mfa. 305 Ministry of Foreign Affairs of Turkey, Press Release (14 June 2013), www.mfa.gov. tr/no_-170_-14-june-2013_-press-release-regarding-the-second-drilling-activityof-the-greek-cypriots.en.mfa. 306 ‘Nicosia responds to Ankara’s threats regarding offshore drilling’ (Cyprus News Agency, 4 November 2012), www.hri.org/news/cyprus/cna/2012/12-11-06. cna.html#05. 307 Ministry of Foreign Affairs of Turkey, Press Release (4 October 2014), www. mfa.gov.tr/no_-311_-04-october-2014_-press-release-regarding-drillingactivity-of-the-greek-cypriots.en.mfa. 308 Çubukçuoğlu (n 190) p. 39. 309 Ministry of Foreign Affairs of Turkey, Press Release (25 March 2016), www.mfa. gov.tr/no_-74_-25-march-2016_-press-release-regarding-the-third-internationaltender-for-off_shore-hydrocarbon-exploration-by-the-greek-cypriot-administration. en.mfa. Again, the phrasing used by Turkey seems to imply threat of use of force; ‘TRNC’ ‘Ministry of Foreign Affairs’, Press Release (25 March 2016), http://mfa. gov.ct.tr/regarding-announcement-greek-cypriot-administration-unilateral-3rdround-tender-hydrocarbon-research. 310 Letter dated 7 April 2016 from the Permanent Representative of Cyprus to the United Nations addressed to the Secretary-General, UN Doc A/70/825-S/ 2016/329. 311 Letter dated 28 April 2016 from the Permanent Representative of Turkey to the United Nations addressed to the Secretary-General, UN Doc A/70/855-S/ 2016/406. 312 Letter dated 23 May 2016 from the Permanent Representative of Greece to the United Nations addressed to the Secretary-General, UN Doc A/70/900-S/ 2016/474.

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313 Letter dated 15 June 2016 from the Chargé d’affaires a.i. of the Permanent Mission of Turkey to the United Nations addressed to the Secretary-General, UN Doc A/70/945-S/2016/541; Letter dated 8 December 2016 from the Permanent Representative of Greece to the United Nations addressed to the Secretary-General, UN Doc A/71/675-S/2016/1043. 314 Ministry of Foreign Affairs of Turkey, ‘Statement of the Spokesperson of the Ministry of Foreign Affairs, Tanju Bilgiç, in Response to a Question Regarding the Third International Tender for Off-shore Hydrocarbon Exploration by the Greek Cypriot Administration’ (2 August 2016), www.mfa.gov.tr/qa_29_-2-august-2016_