Is the ICJ the answer or a pipe dream?

Is the ICJ the answer or a pipe dream?

The circle of experts on Greek-Turkish relations – which keeps expanding the more the crisis between the two countries deepens as more pundits seek to make themselves heard – has been torn in recent weeks between those who are in favor of Greece taking recourse to the International Court of Justice at The Hague (and they are quite numerous) and those who aren’t. As a proponent of the former, I would like to outline the benefits of such an action.

To begin with, developments in Greek-Turkish relations following the relatively recent change of direction in Turkish diplomacy, with a hardening of its stance toward Greece, have rendered a resolution of the issues at a bilateral level almost impossible. The addition of the Ankara-Tripoli maritime borders deal has left the Greek diplomatic establishment with few options, as the terms of the agreement essentially seek to prevent larger Greek islands from claiming a continental shelf and an exclusive economic zone (EEZ).

Article 121 of the Law of the Seas and the conventional law that stems from it grants islands equal rights in this regard to mainland territories and their coasts. And while international law (articles 74 and 83 refer to the delimitation of maritime borders between states with opposite or adjacent coastlines) has tempered and refined the rules of Article 121, the restriction of the effect of island coastlines is nowhere to be found in the unfortunate terms the Ankara-Tripoli agreement imposes on the Greek islands, and particularly for the biggest of these, like Rhodes and Crete. Therefore, since the climate is unfavorable for a bilateral resolution, international recourse is the only alternative.

The issue is not simple, because such a move would require Turkey’s consent via an arbitration agreement – a bilateral deal that is – which would also form the basis of the positions that would be brought before the ICJ. Even though Turkey has finally accepted this likelihood, the terms it is seeking to secure are very different to Greece’s.

While Greece is willing to settle for an arbitration agreement to bring one dispute (over the continental shelf/EEZ) before the international court, Turkey has said that in order to agree on such a move it wants a more comprehensive resolution of Greek-Turkish differences, suggesting that it is seeking to open the issues of the breadth of territorial waters and airspace, the sovereignty of certain Greek islands (Ankara’s so-called “gray zones”) and possibly the demilitarization of Greece’s easternmost islands, an issue that has recently returned to the fore.

As far as Greece is concerned, the unilateral right to define its territorial waters and its sovereignty over the islands are issues that cannot be left to the judgment of the court, while the demilitarization of the islands, a status quo that is by nature temporary, is no longer in force due to the fact that decades have passed since its establishment. Greece, therefore, does not want to see the court’s jurisdiction extending to these areas. The issue at hand, therefore, is to achieve an arbitration agreement that will take only the dispute concerning the continental shelf and EEZ to The Hague. This is something that would require lengthy and extremely unpleasant negotiations, which would likely end up without any such agreement.

There are other obstacles to the idea of taking recourse to the ICJ, such as the issue of territorial waters. Would Greece agree to going to the court with 6 nautical miles? Given that the continental shelf and economic zone starts at the seaward edge of a country’s territorial sea and extends outward, defining the breadth of the territorial sea is crucial. Furthermore, under the law, a country cannot expand them once the continental shelf and EEZ have been delimited.

Greece and Turkey had established the institution of exploratory talks to pave the way for an arbitration agreement, but this stopped in 2016. The talks tackled all the regional and preliminary issues dividing the two countries and sought their resolution in an atmosphere good faith, without having to take judicial recourse, when the two sides agreed that the moment was ripe for it. Unfortunately, the initiative ran out of momentum and was stopped, because of Turkey.

Recent contacts between the two sides (including at the highest level) stressed the need to relaunch these exploratory talks. This would offer a glimmer of hope for a bilateral resolution of the issues of the territorial waters and “gray zones,” which would then allow us to take recourse to the ICJ with a lighter docket.

There is, of course, an alternative solution to the deadlock of negotiations on an arbitration agreement, which is for Greece to sign its own deal with Libya, similar to that of Turkey. Such a move would certainly prevent any progress on Greek-Turkish differences and push the issue far into the future, with whatever consequences this may entail. It would, however, have the benefit of underscoring the lack of legitimacy of the Ankara-Tripoli agreement and restore a sense of legality. The snag is that in the context of international law, an illegal action can only be reversed if the wrongdoing has been acknowledged by the perpetrator or through international arbitration.

This option, of transferring the burden of proof, does not appear to meet with any obstacles. After all, Libya itself has pointed to the possibility of taking recourse to the ICJ, something it is quite experienced at doing, as the court just recently ruled on the country’s maritime borders agreement with Tunisia and Malta.

The object of the case would be to determine the legitimacy of the Ankara-Tripoli accord from the perspective of international law, meaning whether the delimitation it foresees is legal given that it comprises sections of the Greek continental shelf in maritime areas that by law belong to Greece. By posing this question, Greece hopes that the ICJ will deem the agreement illegal, while at the same time resolving the issue of the exact effect of the Greek islands in the delimitation. It may not be an ideal solution, but given the circumstances it may be the only feasible one right now.

Christos Rozakis is emeritus professor of the National and Kapodistrian University of Athens.

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