A general view of the International Court of Justice (ICJ) in The Hague. ‘Without a delimitation agreement or recourse to conciliation or ultimately to international justice, there is no delimitation,’ the author says.
The delimitation of the continental shelf and the exclusive economic zone (EEZ) has the “advantage” of being an institutionalized and compulsory procedure under international law (articles 74 and 83 of the United Nations Convention on the Law of the Sea [UNCLOS]) that includes consultations, negotiations, agreement between states with opposite or adjacent coasts and whose potential areas of jurisdiction overlap or, in the event of an inability to reach an agreement, recourse to the procedures provided for in the UNCLOS and in the end a “procedural” agreement for a joint recourse to an international judicial or arbitration procedure.
Diplomatic initiatives to delimit the continental shelf and the EEZ are therefore an obligation under international law. This does not mean that the other side will agree or that it will not attempt to involve other matters in the process. It is important that the Greek position is clear. For a country like Greece, which always states that the axis of its foreign policy is respect for international law, such initiatives should be a given. This is after all showcased in the recent agreement between Greece and Italy on the conversion of the 1977 continental shelf delimitation agreement to an EEZ delimitation agreement, before it was even declared, without a change in the overall limits, and it is also evident in the even more recent partial EEZ delimitation agreement with Egypt west of the 28th (to be exact of the 27.59th) meridian and up to the 26th meridian.
We must not forget the previous negotiations with Libya, the agreement signed in 2009 with Albania that was not ratified and did not enter into force due to the Albanian withdrawal, and especially the successive rounds of exploratory talks between Greece and Turkey from 2002 to 2016. It was not until 2013 that, under Greek initiative, those rounds included in their subject the concept of the EEZ and the geographical area of the Mediterranean, following my persistent and clear instruction. The same issues were then raised at the level of the foreign ministers of the two countries.
Many pretend to have “discovered” all this after the conclusion – in violation of international law – of the null and void Erdogan-Sarraj memorandum of understanding on the delimitation of maritime zones between Turkey and Libya – with all that can and should be noted about the way in which Libya operates as a subject of international law, is internationally represented and concludes treaties.
Nothing arose suddenly though. In recent months the public debate has been dominated by aspects of the issue of the delimitation of maritime zones, which were put forth in a timely manner years ago but had not received the necessary attention relevant to their criticality. Two factors contributed to this: first, the decades-long prevailing perception that time works in our favor and thus waiting, procrastination or inaction is not an issue that should concern us; second, the obsession with the narrow geographical horizon of the Aegean and the devaluation of the wider horizon of the Eastern Mediterranean where an important part of the Greek territory and a large part of the under delimitation sovereign rights of the country are located.
The proposal for consultations and – in case of failure to reach an agreement in essence – the proposal for signing a “procedural” agreement that will establish the joint appeal of Greece and Turkey to the International Court of Justice, on the sole dispute concerning the delimitation of the continental shelf and the EEZ in the Aegean and Eastern Mediterranean, is therefore not a subject for internal political debate in Greece that may lead to another option, but the only course under international law.
This does not mean that the Greek proposal will be accepted easily and quickly or that there will be no different proposals or initiatives or variations from the other side, that no objections, terms or conditions will be put forth. We have an obligation to define the Greek position, which must be simple and clear and be the subject of the diplomatic initiative as explicitly provided for in the International Law of the Sea. The subject of this discussion is only the delimitation of the continental shelf and the EEZ in the Aegean and the Eastern Mediterranean. Not the so-called “gray zones,” the so-called “demilitarization of the islands” or other issues of national sovereignty or national security.
This was also clarified with the statements signed by me as minister of foreign affairs and submitted on January 14, 2015 by the Hellenic Republic to the UN regarding the recognition by Greece of the mandatory jurisdiction of the ICJ. These issues are explicitly excluded from the jurisdiction of the ICJ, unless there is an procedural agreement – that is, unless Greece desires it. Of course, the resumption of exploratory talks and the implementation of the delimitation procedure provided for in the UNCLOS will affect the overall climate of bilateral relations.
The choice of resorting to international justice, if an agreement is not reached with mutual concessions and compromises, is not an option that always leads to the desired result. All too often, international justice operates in an offset way, taking into account political criteria, seeking balances and arrangements that go beyond the strictly judicial application of the rules of international law. However, without a delimitation agreement or recourse to conciliation or ultimately to international justice, there is no delimitation. In the absence of delimitation, there are no legal conditions for the full and definitive exercise and enjoyment of the relevant sovereign rights in the continental shelf and the EEZ. Thus, without delimitation, there is no active sovereign right that may be restricted. There is a potential sovereign right, the full activation of which presupposes delimitation, and the long wait for its full exercise may lead to the devaluation of the material of the object, owing to the gradual reduction of the importance of fossil fuels.
Evangelos Venizelos is a former deputy prime minister and minister of foreign affairs, and former minister of national defense. This text is a pre-publication of an excerpt from the introduction to his new book, “Delimitation of Maritime Zones and Greco-Turkish Relations” (Papadopoulos Publications, published in Greek on September 21, 2020).