Guest Post: Friction in the Cyprus EEZ: Analyzing Conflicting Claims under the Law of the Sea

by Nikolaos Ioannidis

[Nikolaos A. Ioannidis is a doctoral candidate in Public International Law at the University of Bristol]

Αs of October 20, a Turkish survey vessel, the “Hayreddin Barbaros Pasa”, accompanied by a frigate of the Turkish Navy, has been carrying out seismic surveys within the continental shelf and the Exclusive Economic Zone (“EEZ”) of Cyprus.The area of operarions is very close to block 9, where the Italian oil company ENI is drilling for hydrocarbons on behalf of the Republic of Cyprus. Although these activities have sparked rigorous reactions on the part of the Republic of Cyprus, the “Barbaros” has yet to terminate its operations.

Prior to analyzing the ongoing situation, I’ll begin with a short review of the legal regime of the waters under consideration. According to customary international law and the Law of the Sea Convention 1982 (“LOSC”) a coastal state maintains an inherent right to a continental shelf, which extends up to a distance of 200 nautical miles (“nm”) measured from the coast. In addition, a littoral state is also entitled to claim an EEZ of a breadth of 200nm. In these zones, the coastal state enjoys exclusive sovereign rights for the purpose of exploring and exploiting the natural resources, either living or non-living, in its seabed and subsoil (articles 58(1)(a), 77(1)(2) and 81). Consequently, no other state can set forth assertions over the natural resources in another state’s maritime zones. Nevertheless, in both the continental shelf and the EEZ the freedom of navigation shall not be hindered (articles 58(1) and 78) as those waters, in essence, form part of the high seas. This is a trade-off aiming at striking a balance between the viewpoints of the great maritime powers on the one hand (which were reluctant to concede expansion of state jurisdiction over the high seas) and the smaller states on the other hand (which sought extended maritime rights in order to safeguard the natural resources of their sea waters).

The Eastern Mediterranean conundrum

The predicament in the waters surrounding Cyprus goes back to 2003 when Cyprus concluded an EEZ delimitation agreement with Egypt (Cyprus penned two more delineation agreements with Lebanon in 2007 -yet to be ratified- and Israel in 2010). Turkey holds a long-standing position according to which islands facing longer coastal fronts should have diminished rights in terms of generating maritime zones; as a result, Turkey does not recognize the rights of the Republic of Cyprus to a continental shelf and its capacity to claim an EEZ around the island.  Further, the Turkish government argues that the breakaway regime in northern Cyprus, namely the self-proclaimed “Turkish Republic of Northern Cyprus” -a territory which has been occupied by the Turkish Armed Forces since 1974 and is deemed invalid by the UN Security Council (Resolutions 541/83 and 550/84) and the International Court of Justice (Kosovo Advisory Opinion 2010, para 81)- is eligible to lay claims with respect to the island’s underwater natural resources. Turkey and the putative state in northern Cyprus granted oil concessions to TPAO (the Turkish national petroleum company) as regards the entire maritime space around Cyprus, in conflict with the Republic of Cyprus’ claim based on the LOSC and customary international law and despite the fact that the Turkish coasts do not project in some of the claimed sea areas. Moreover, Turkey concluded a continental shelf delimitation agreement with the secessionist entity in northern Cyprus and conducted seismic surveys in the western sector of the Republic of Cyprus’ EEZ purporting to create “grey zones” around the island.

Against this backdrop, Turkey issued a NAVTEX notifying mariners that the government-controlled research vessel “Barbaros” will perform seismic surveys off the southern coast of Cyprus from October 20 to December 30, 2014 .Indeed, since October 20 the “Barbaros” has been sailing in the continental shelf and the EEZ of Cyprus in low speed (not exceeding 4.5-5 knots), a factor indicating that seismic research for the discovery of hydrocarbon reserves is taking place. Notwithstanding the freedom of navigation according to which the Cypriot authorities cannot hamper the “Barbaros” from traversing its waters, the conduct of research operations is in breach of both international law and the Cypriot legislation by virtue of which such unauthorized actions constitute criminal offences.

Even though the LOSC stipulates that “States shall have due regard to the rights and duties … and shall comply with the laws and regulations” of the coastal state in the EEZ (art. 58(3) LOSC) the Convention remains silent as to the measures a littoral state is entitled to take in case its sovereign rights in the continental shelf and the EEZ are violated. Nonetheless, the International Law Commission back in 1956 considered the exercise of enforcement measures by the coastal state with a view to protecting its natural resources to fall within the scope of the “sovereign rights” notion (ILC Commentary 1956, p. 297); ergo, the Republic of Cyprus is authorized to implement its pertinent legislation on the members of the crew and the company owning “Barbaros”.

Apart from any legal implications, the above-mentioned activities prompted the government of the Republic of Cyprus to withdraw from the UN-led negotiations for the solution of the Cyprus Problem (the occupation of northern Cyprus by the Turkish Armed Forces since 1974). Moreover, on October 24 the European Council condemned the foregoing illicit actions (European Council, Conclusions, para 24). Over the last few years, owing to its strained relations with Russia, the European Union (“EU”) has been seeking diversification of its energy sources; to this end, the EU is poised to support any of its member-states, which have the potential to become energy suppliers, Cyprus being one of them.

Concluding remarks

Given the soaring needs for additional energy supplies, tensions over sea waters, where vast reserves of hydrocarbons lie, will inevitably be occurring. In the present case, the Turkish seismic surveys within the continental shelf and the EEZ of Cyprus are not in conformity with international law, namely the yardstick according to which interstate controversies should be dealt with. Also, the infringement of the Republic of Cyprus’ sovereign rights within its maritime zones poses a serious threat to security and stability in the region. A more rigorous response by the international community is required so as to thwarting further entrenchment of such illegitimate actions that, inter alia, impede Cyprus from exercising its inalienable sovereign rights over its natural resources; put at stake the aspirations of the EU to diversify its energy sources; and set dangerous precedents as these actions might be contemplated as a new form of intervention in contravention of article 2(4) UN Charter.

http://opiniojuris.org/2014/11/04/guest-post-friction-cyprus-eez-analyzing-conflicting-claims-law-sea/

9 Responses

  1. Dear Nikolaos,

    Thank you for the very interesting and informative post. Certainly a complex part of the world.

    Articles 19, 21, 40 and 54 of the UNCLOS make it clear that hydrographic surveys would require the permission of the coastal State(s) during innocent passage, transit passage and archipelagic sealanes passage. Can you please advise why the conduct of seismic surveys within the continental shelf and the EEZ of another State are contrary to international law? Is there a part of UNCLOS that I have overlooked or is it pursuant to other legal principles?

    Thank you

  2. I think there is one aspect missing to your analysis, Nikolaos, and which at the same time answers Ian’s question. According to Article 246(2) of UNCLOS “Marine scientific research in the exclusive economic zone and on the continental shelf shall be conducted with the consent of the coastal State.” The same Article, in its paragraph 5(a), provides that a State may refuse such an undertaking if, inter alia, it “is of direct significance for the exploration and exploitation of natural resources.” Cyprus’ claim as to the illegality of Turkey’s actions would thus probably be based on this provision, and not Articles 58, 77 and 81. Also, I think it could have been interesting to say something about the unavailability of dispute settlement mechanisms, Turkey not having ratified UNCLOS.

  3. Dear Ian and Paul,

    thanks for your comments.

    Turkey has been conducting seismic surveys with a view to gathering seismic data as regards hydrocarbon reserves in Cyprus’ EEZ and continental shelf. These activities do not fall within the scope of marine scientific research, although quite often states use MSR as a pretext in order to collect seismic data. Nevertheless, that’s not the case here.

    Thus, the applicable provisions are those included in Parts V and VI, which deal with these maritime zones. As Turkey questions the sovereign rights of Cyprus over its natural resources in its EEZ and continental shelf, articles 58,77 and 81 LOSC form the legal foundation upon which Cyprus (and every coastal state) should base its claims for the cessation of such unlawful actions.

  4. Dear Nikolaos,
    Congratulations on the thorough and lucid analysis of the given topic! It is certainly obvious that the current Turkish activities within the Republic of Cyprus’ EEZ pose a direct threat towards peace, security and stability of the region.
    It is even arguable that since rights of a sovereign nature prescribed under both conventional and customary international law are infringed, certain counter-measures might be justified pursuant to the preconditions set down by the customary Law of State Responsibility for Internationally Wrongful Acts (as depicted by the ILC’s restatement on the issue, viz. the ARSIWA).
    Allow me to thank you, once more, for your calm and highly scientific approach towards a situation that poses, yet again, the perennial question of whether the Republic of Turkey is willing to offer any token of good faith vis-à-vis the ultimate solution of the Cypriot question.

  5. I guess we need another article from a Natural Resources expert to explain us how these natural resources are stolen by one community in Cyprus. Republic of Cyprus running on 1 leg since 1964 cannot have the cake and eat it too. Only a united Cyprus and its people are rightful owners of natural resources.

  6. Thank you for your interesting and beautifully written post.

    I am having difficulty in understanding an important aspect of your argument though: How is Turkey, not being a party to UNCLOS, is bound by Cyprus’s EEZ and continental shelf claim, mainly, based on UNCLOS arts. 57 and 76?

    If, on the other hand, these claims are based on customary law then the question still stands as Turkey consistently challenged continental shelf and EEZ claims in southern Mediterranean. Therefore it is difficult to see how is Turkey bound by Cyprus’ claims, unless there is an agreement between these two.

    On the issue raised by another respondent, I think it is only fair that to accept the natural resources of the island belongs to both communities of the island, namely Greek and Turkish Cypriots. Prof. Skordas suggested creation of a “Trust Fund” and distribution of any revenue from the oil or gas, in proportion, for the people of Cyprus. (see transcription of his speech at http://www.wilsoncenter.org/event/oil-exploitation-the-eastern-mediterranean-cyprus-turkey-and-international-law)

    Undeniably, such a pro-active approach would go further in undergoing peace proceedings than to shy away from negotiations by using the existing tension as an excuse.

  7. Dear Selman, thanks for your comment.

    Most provisions in Parts V and VI of the Law of the Sea Convention dealing with the continental shelf and the EEZ are now deemed rules of customary international law, thus opposable even against non-states parties to the Convention as well.

    Turkey cannot object to the right of the Republic of Cyprus to claim sovereign rights over its continental shelf since every state has an inherent right to a continental shelf (North Sea cases 1969). In any case, Turkey cannot establish itself as a “persistent objector” given the fact that it questioned Cyprus’ rights over continental shelf and EEZ as late as 2003, after Cyprus had concluded a maritime delimitation agreement with Egypt.

    With respect to the Turkish Cypriots, the Republic of Cyprus has never denied their right to gain profit from the hydrocarbons. Nevertheless, as long as the illegal military occupation of northern Cyprus by the Turkish Armed Forces persists, no arrangement on that matter can be reached. The Turkish Cypriots should renounce the non-valid “TRNC” and return to the Republic of Cyprus in order to benefit from the hydrocarbon bonanza in their capacity as citizens of the Republic of Cyprus.

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