The Law and Geopolitics of Maritime Delimitation in the Eastern Mediterranean By: Danial Kaysi Thesis, 2013 For: Professor Michael Riesman, Yale Law School INTRODUCTION: .................................................................................................................................. 3 I. THE MEDITERRANEAN EXPERIENCE WITH THE EXCLUSIVE ECONOMIC ZONE .......................................................................................................................................................... 4 II. BACKGROUND ON CHALLENGES AND CONSTRAINTS ........................................................... 7 III: THE GEOPOLITICS OF MARITIME BOUNDARY-MAKING ..................................... 13 IV. LAW OF THE SEA & THE MEDITERRANEAN: .............................................................. 32 V. ENVISIONING A SUSTAINABLE MARITIME REGIME ............................................................ 34 CONCLUSION: .................................................................................................................................... 49 2 Introduction: The 21st century has seen the beginnings of significant developments in state practice as pertaining to maritime affairs. United States officials1 have signaled the possibility of ratifying the 1982 United Nationals Law of the Sea Convention (UNCLOS III)2, China has challenged its interpretation, and many aspects of the Convention have come to be regarded as customary international law. The discovery of considerable offshore natural gas reserves in Egyptian, Israeli, and Palestinian waters at the turn of the century has since led to a rush by ‘Levantine Basin’ riparian states to determine their maritime boundaries and invest in the exploration of their claimed waters. In a period of global and regional systemic change, new and protracted disputes in a region with several undefined land boundaries – let alone an agreed-upon maritime regime – the discovery of gas has worked in parallel with other regional developments to create new geopolitical dynamics and security tensions. The mounting disputes concerning gas exploration and zonal delimitation in the Eastern Mediterranean Sea and the South China Sea will have lasting ramifications on global and regional power dynamics and will fundamentally influence the future of the Law of the Sea Convention. The 1982 United Nations Convention on the Law of the Sea (UNCLOS III) has been valuable in codifying laws pertaining to sovereignty and cooperation in the world’s seas and oceans, and has designated fairly defined rights and responsibilities for States. Today’s major disputes in the Eastern Mediterranean have revealed some of the shortcomings of the most important source of maritime law and have, so far, demonstrated the limits of its influence in the Levantine Basin. However, the region’s states may ultimately either considerably increase in the influence of UNCLOS III on the continual shaping of customary maritime law or curtail its status if the parties fail to overcome self-imposed challenges and disputes. This paper will discuss the political and legal aspects of the maritime disputes in the Eastern Mediterranean and the factors relevant to their conciliation. The first part of 1 U.S. Department of State, Law of the Sea Convention. Available at http://www.state.gov/e/oes/lawofthesea/ 2 United Nations Convention on the Law of the Seas, 1982. 3 the paper introduces the Mediterranean Sea and the relevance of the Exclusive Economic Zone (EEZ) regime in its basins. In Part II, I will give a summary of historical cleavages in the Levant Basin, with a focus on relevant modern Lebanese-Israeli and inter-Cypriot events. Part III will discuss the increasing interest in EEZ delimitation over the past decade due to hydrocarbon prospects in the Eastern Mediterranean and the geopolitical and maritime challenges and disputes that have since been taking shape. In Part IV, an overview of the law of the sea will be presented. Finally, I will discuss relevant avenues for achieving balanced solutions to maritime tensions in the region and present the most relevant criteria in delimiting maritime boundaries in consideration of the two main disputes at hand – between Lebanon and Israel and between the Republic of Cyprus on one hand and Turkey and the Turkish Republic of Northern Cyprus on the other. I. The Mediterranean Experience with the Exclusive Economic Zone The Mediterranean Sea presents a complex and unique geographical, legal, and political situation. Based on the 1982 Convention on the Law of the Sea’s definition, the Mediterranean is considered an ‘enclosed or semi-enclosed sea’, whereby it is “a gulf, basin, or sea surrounded by two or more States and connected to another sea or the ocean by a narrow outlet or consisting entirely or primarily of the territorial seas and exclusive economic zones of two or more coastal States” (UNCLOS, Art. 122). According to the European Commission’s Atlas of the Seas, “the Mediterranean is quite deep (average depth: 1 500 m). There is little tidal variation… the climate is warm and dry [and] the water – also warm – is highly saline.”3 Connected to the Atlantic Ocean via the Strait of Gibraltar, the Red Sea via the Suez Canal, and the Black Sea via the Bosporus and Dardanelles Straits, the Mediterranean has had a unique relationship with the UNCLOS III conventions. It is surrounded by 21 states: Albania, Algeria, Bosnia-Herzegovina, Croatia, Cyprus, Egypt, 3 European Commission, European Atlas of the Seas, Mediterranean (2010). Available at http://ec.europa.eu/maritimeaffairs/atlas/seabasins/mediterranean/index_en.htm 4 France, Greece, Israel, Italy, Lebanon, Libya, Malta, Monaco, Montenegro, Morocco, Slovenia, Spain, Syria, Tunisia, and Turkey.4 In addition, the Turkish Republic of Northern Cyprus and the Palestinian Gaza Strip, both regions with differing legal designations, are located on the Mediterranean. Seven Mediterranean states are members of the European Union: Cyprus, Greece, France, Italy, Malta, Slovenia, and Spain. The United Kingdom also has a presence in parts of the Mediterranean Sea via its sovereignty over Gibraltar and over the Akrotiri and Dhekelia military bases at the southern coast of the Republic of Cyprus.5 The legal establishment of the concept of the Exclusive Economic Zone in 1982 allowed a state the right to delimit an area of limited sovereignty over waters up to 200 nautical miles (nm) from the baselines employed to measure the extent of its territorial sea (UNCLOS III, Art 57). The requirement that coastal party States proceed to claim their EEZs in order to gain the rights designated within them (as opposed to the continental shelf, whose rights a state de facto enjoys) has led states around the world to attempt to settle their boundaries. However, the Mediterranean Sea, until recently, saw little enthusiasm or attempts to demarcate such zones. All Mediterranean states have declared a Territorial Sea of up to 12 nm over which they have extensive sovereignty (Turkey and Greece, however, due to ongoing disputes, have 6 nm Territorial Seas in the Mediterranean’s Aegean Sea basin), but the majority of the Mediterranean’s waters continue to be recognized as high seas. In the Eastern Mediterranean, before the discovery of sizeable gas deposits in the past few years, the number of coastal states that had taken serious steps towards demarcating their EEZs was insignificant. Morocco had claimed an EEZ in 1980,6 though it has only enforced its EEZ in the Atlantic Ocean. France and Spain have also declared EEZs in the Atlantic Ocean, but not in the Mediterranean. Turkey has declared an EEZ in 4 Chevalier, Claudiane (1999). IUCN Centre for Mediterranean Cooperation. Irini Papanicolopulu (2007): A Note on Maritime Delimitation in a Multizonal Context: The Case of the Mediterranean, Ocean Development & International Law, 38:4, 381-398 5 6 See Morocco Act No. 1-81 of April 8, 1980, Available at http://www.un.org/Depts/los/LEGISLATIONANDTREATIES/PDFFILES/MAR_1981_Act.pdf 5 the Black Sea but not in the Mediterranean.7 Egypt had, upon signing UNCLOS III, declared that it would exercise its rights in its Exclusive Economic Zone.8 However, no national legislation has since been passed in Egyptian parliament, and Egypt’s EEZ status remains unclear. Several issues explain this peculiar situation by which Mediterranean coastal states had foregone their rights to enforce a level of sovereignty over such a wide maritime territory. Most importantly, the Mediterranean is a narrow, semi-enclosed sea dotted with numerous islands that made it so that if all Mediterranean states were to declare 200 nm EEZs, overlaps would no doubt occur all around. This would make it impossible to fully enjoy EEZ rights in the Mediterranean and would threaten to provoke numerous disputes between the States surrounding the Mediterranean. In addition, the concept of ‘high seas’ or a common heritage of mankind would cease to exist as it has for many centuries, since the proclamation of EEZs by the states surrounding the sea would ultimately extend state sovereignties across the entirety of the Mediterranean’s waters. (See Figure 1). Such a development is undesirable to many Mediterranean states, considering for example, that it would significantly decrease the high seas areas suitable for fishing and the exploitation of living resources around the Mediterranean. Further, the stretching of over twenty EEZs in a strategically significant ‘enclosed or semi-enclosed’ area having a coastline of 13,890 miles would most likely create difficulties for both Mediterranean and non-Mediterranean states – particularly naval and maritime powers – attempting to pass through politically charged waters or pursuing trade at its coasts. Turkey’s Permanent Representative to the United Nations observed, during a plenary meeting of the third U.N. Convention for the Law of the Sea, that Turkey would “receive no direct benefit from the establishment of economic zones since the narrow and semienclosed nature of [Turkey’s seas] would prevent it from extending its jurisdiction to more than a fraction of the intended maximum breadth of the economic zone,” adding 7 U.S. Maritime Claims Reference Manual (2005). ‘United Nations Convention on the Law of the Sea: Declarations made upon signature, ratification, accession or succession or anytime thereafter.’ United Nations Division for Ocean Affairs and the Law of the Sea. Available at: http://www.un.org/depts/los/convention_agreements/fish_stocks_agreement_declarations.htm 8 6 that the seas surrounding Turkey were “not well endowed in living resources.”9 Other Mediterranean states, including Lebanon and Egypt, appeared to agree, though neither they nor Turkey opposed the concept of the EEZ per se.10 Nonetheless, several Mediterranean states have employed certain aspects of the EEZ and declared Fishing Zones and Ecological Protection Zones, both of which are officially legal subcategories of the EEZ.11 In fact, cooperation around the Mediterranean has been, for the most part, exceptionally efficacious in matters of fishing and environmental protection.12 II. Background on Challenges and Constraints The Eastern Mediterranean, off the coastal areas of the ‘Fertile Crescent,’ stretches from southern Turkey in the north along the Mediterranean coast to Syria, Lebanon, Israel and the Occupied Palestinian Territories in the East, and down to the eastern portion of the Egyptian coast. Located mid-sea is the island of Cyprus, the third largest island in the Mediterranean Sea. Between Cyprus, Lebanon, Israel, Gaza, and Syria (and slightly extending into Egyptian territory) lays the Levantine Basin (see Figure 2), a 32,000 square mile basin characterized by deep highly saline waters. East Mediterranean Land Disputes: Delimitation of maritime boundaries in the Levantine region is a particularly difficult endeavor for several reasons. A significant factor is that some of the most enduring disputes in modern history surround the Levantine. The island of Cyprus has, since the late 1950s, seen ethnic conflict between its Greek and Turkish Cypriot communities and has de facto been divided into two states, the Republic of Cyprus (hereafter referred to as ROC; a member of the European Union and backed by Greece) and the Turkish Republic of Northern Cyprus (hereafter TRNC; a de facto state long recognized only by Turkey). 9 Third United Nations Conference on the Law of the Sea: official records, Plenary Meetings (Meeting 24) 1975; 1984, United Nations, New York. 10 Ibid. Meetings 27 and 28. 11 Chevalier (1999). 12 Papanicolopulu (2007). 7 Figure 1: Distances between coasts in the Mediterranean Sea13 13 From: Ahnish, Faraj Abdullah (1993), The International Law of Maritime Boundaries and the Practice of States in the Mediterranean Sea. 8 A United Nations buffer zone has stood between the two entities since 1964. Though a wall marking the buffer zone was torn down in 2008 and steps have been taken to facilitate transportation and relations between the residents of the two Cypriot entities, relations remain tense and a resolution to the conflict is not yet in sight.14 In addition to a small U.N. contingent, Turkey and the United Kingdom maintain military presence on opposite sides of the island. The heavy intervention and representation practiced by Turkey and Greece15 on behalf of their respective co-ethnics has considerably intensified the protracted nature of the Cypriot divide, with the pseudo-isolated TRNC heavily relying on Turkey for both political and economic sustenance. Greece and Turkey, in turn, have had confrontational relations for years, not the least of which being over the delimitation of maritime boundaries in the Aegean Sea. To the east of Cyprus, the creation of Israel in 1948 and the ensuing Palestinian expulsions and refugee crisis16 led to the flow of over 100,000 Palestinian refugees, sparking initial contentions between the Hebrew and Arab neighbors. By the late 1960s, the Palestinian Liberation Organization had organized in Lebanon and what began as Israeli-Palestinian border clashes led to a 1978 Israeli invasion of Lebanon (and later partial withdrawal as a United Nations peacekeeping force was created to restore peace). Clashes in the early 1980s, as the United Nations Law of the Sea Convention was being finalized, led to a 1982 Israel invasion that reached Lebanon’s capital, Beirut.17 The invasion drove the PLO out of Lebanon, but was followed by a 22 year occupation of southern Lebanon, seen as the main cause for the creation, also in 1982, of Iranian- 14 See ICG Sept. 2009 Report, “Cyprus: Reunification or Partition?” Available at: http://www.crisisgroup.org/~/media/Files/europe/201_cyprus___reunification_or_partition.pdf ; Cyprus Country Profile- BBC News. Available at: http://news.bbc.co.uk/2/hi/europe/country_profiles/1016541.stm 15 Greece’s involvement has historically been significant, particularly due to early claims to the island. Currently, however, while still relevant, Greece’s support of the ROC is less significant as its economy struggles and the ROC’s EU membership and improving economy will necessarily significantly decrease its dependence on Greek backing. 16 The Israeli-Palestinian conflict is certainly the most protracted and contentious in the region, and is relevant to this discussion. However, for the purposes of this paper, it will only be discussed in relation to the Gaza Strip. 17 According to Noam Chomsky’s The Fateful Triangle (1999), Israel violated Lebanon’s territorial sea over 650 times between 1981 and 1982. 9 backed Hezbollah, an armed militia that fought Israeli military presence in Lebanon, and eventually claimed victory in Israel’s 2000 withdrawal. At the Israeli-Lebanese-Syrian border, the Shebaa Farms (about 80 sq miles) remain occupied since 1967, a main lingering point of contention following Israel’s 2000 withdrawal from Lebanon. Shebaa is the location of one of the three tributaries that flow into the River Jordan, currently a main source of water for Israel (the other tributaries being in Lebanon and the Golan Heights). While Israel claims that Shebaa is part of the occupied Syrian Golan Heights, Syrian officials and Lebanon maintain that it is Lebanese territory. U.N. documents either counter the latter claim or are unclear, and Syria refuses to officially commit to stated positions by submitting relevant signed documents to the U.N. Hezbollah, Israel, and Syria have all employed the Shebaa Farms as a strategic chip, serving to prolong a dispute also linked to control over natural resources.18 Figure 2: Levant Basin Province - United States Geological Survey (2010) 18 See “Shebaa Farms key to Levant Hydro-diplomacy,” Integrated Regional Information Networks, September 10, 2009. Available at http://www.irinnews.org/report.aspx?ReportId=86092 10 More recently, Israel and Hezbollah went to war in July 2006, leading to over a thousand deaths – the vast majority Lebanese civilians – and severe damage to Lebanon’s infrastructure. However, Hezbollah was capable of claiming military victory as its paramilitary forces seriously deterred Israel’s technologically advanced ground forces. Hezbollah’s boosted confidence, coupled with an increasingly contentious internal rift19 eventually led to three days show of force and take-over of Beirut by the Hezbollah-led March 8 alliance in 2008. Political deadlock has perpetuated in Lebanon since the assassination of former Prime Minister and philanthropist Rafik el-Hariri in 2005. The rift between the two major blocs further intensified due to the 2006 and 2008 events, disagreements over Hezbollah’s military nature, as well as, more recently, the opposing stances vis-à-vis the Syrian revolution that has increasingly spilled across the Lebanese border. Various other significant and intertwined disputes have shaped the geopolitical dynamics of the Eastern Mediterranean region. Syria and Turkey have, since the 1930s, tended towards tense relations and at least twice drew close to military conflict over the then-disputed Turkish region of Hatay (or Iskandaroon/Alexandrette) and the Syrian government’s support for the Kurdish Worker’s Party (PKK). Disputes between Syria and Turkey led the latter to amass troops at the Syrian border in 1998, This led to a signed agreement whereby Syria accepted Turkish sovereignty over Hatay and expelled PKK leader Abdullah Ocalan from its land, bringing relations to a historic high. Relations significantly improved from the signing of the 1998 agreement until tensions again reignited in 2011 as Turkey’s leadership strongly backed Syrian opposition forces seeking to topple the Assad regime. 19 The 2006-2008 Lebanese political rift between the Iranian-Syrian-backed March 8 coalition and the Western-Saudi-backed March 14 coalition was the most contentious since the end of the civil war. The aftermath of the 2006 July War saw heightened tensions as the National Dialogue broke down and the March 8 coalition demanded veto power in the March 14-majority government. The crisis was thereafter characterized by the resignation of six March 8 ministers, a downtown sit-in calling for the government’s resignation, and parliamentary paralysis, all continuing from the end of 2006 to mid-2008. Several government MPs were assassinated in this period and a in the presidential vacuum also occurred for six months. The May 2008 election of a president and Doha Agreement brought reduced tensions and led to the formation of a short-lived unity government in November 2009. 11 Further south, Syrian historic claims over Lebanon as an ‘amputated territory’ and its subsequent peacekeeping and military involvement in the 1975-1990 Lebanese Civil War have long created a complex situation. A post-war military-political Syrian hegemony over Lebanon was shaken in 2005, when mass protests in Lebanon drove Syria to withdraw its troops from Lebanon and establish official diplomatic relations in 2008. This led to a period of strong tensions between Lebanon and Syria. Lebanon has yet to officially demarcate its land boundaries with either Syria or Israel. Indeed, the colonial 1920 Franco-British boundary Agreement and the 1923 Paulet-Newcombe Agreement had delimited the borders between the three countries, and was confirmed by the 1949 Armistice Agreement between Lebanon and Israel. However, the boundaries are yet to be demarcated.20 A joint-committee was subsequently created in the 1950s to determine the boundaries between Lebanon and Syria, though its recommendations were never ultimately implemented. More recently, United Nations Security Council Resolutions 1559 and 1701 (2004 and 2006 respectively) called on Lebanon to secure and fix its borders. Lebanon’s political leaders have also expressed such a need – as the boundary with Syria increasingly becomes a gray area – and worked towards demarcating the Lebanese-Syrian border. These attempts have so far been unsuccessful due to tensions between the two countries and Syria’s position that demarcation could not happen before the Golan Heights and the Shebaa Farms were liberated.21 However, the Syrian uprising has prompted the regime to plant landmines along the western border with Lebanon, which, in effect, could become a de facto – though partial – demarcation.22 In the south, Lebanon and Israel remain officially at war and the Shebaa Farms remains an issue of sovereignty for Lebanon. The Shebaa territory would not likely influence the maritime boundaries, as it is not adjacent to the coast. However, while the armistice Blue Line between Lebanon and Israel has been considered the line (except for small areas) upon which a future boundary would be based, it is not ultimately considered 20 International Boundary Study of the Israel-Lebanon boundaries. Limits of the Sea. (Florida State University, 1967) Available at: http://www.law.fsu.edu/library/collection/limitsinseas/ibs075.pdf 21 2009 Lebanon-Syria Border Report. Now Lebanon. (2009) 22 Syria: Army Planting Banned Landmines. Human Rights Watch, March 13, 2012. Available at: http://www.hrw.org/news/2012/03/13/syria-army-planting-banned-landmines 12 authoritative by all sides. A study on international boundaries conducted by the United States’ State Department proclaimed that the “Israel-Lebanon frontier should never be symbolized as an international boundary.”23 Israel has also intermittently been at war with both Syria and Egypt between 1948 and 1978, but has maintained a negative peace with Egypt since 1978 and a cold war with Syria since 1973, continuing to occupy the Syrian Golan Heights. Further, Israel had no diplomatic relations with the ROC until 1994. Recently – and for strategic reasons – the two began building a strategic relationship. This came as Israel’s long-time strategic alliance with Turkey turned into contentious antagonism beginning in 2009. III: The Geopolitics of Maritime Boundary-making The depth of the Mediterranean Sea, and particularly that of the Eastern Mediterranean, had long restricted accessibility to potential deep seabed natural resources. In 1995, the world’s deep-water technological capabilities had only allowed exploitation and production at depths of up to 900 feet. Further, locating fields was more difficult in areas with high levels of salinity, such as the Levantine.24 Water depth in the Eastern Mediterranean ranges from about 2925 feet (890 m) in the south to about 7550 feet (2300 m) in the north.25 Technological advances towards the end of the 20th century broke down those barriers, making the Eastern and Southeastern Levantine basin areas of high interest for exploration and exploitation of oil and natural gas.26 The Natural Resource Factor: 23 International Boundary Study of the Israel-Lebanon boundaries. Limits of the Sea. (Florida State University, 1967) Available at: http://www.law.fsu.edu/library/collection/limitsinseas/ibs075.pdf 24 Ahnish, Faraj Abdullah (1993), The International Law of Maritime Boundaries and the Practice of States I the Mediterranean Sea. p. 350-353 25 Schmiedl, G. et al., Climatic forcing of eastern Mediterranean deep-water formation and benthic ecosystems during the past 22,000 years, Quaternary Science Reviews (2010). 26 Capabilities at water depths as high as those in the northern Levantine basin were still unavailable until 2007. See “Plumbing the depths,” The Economist, March 4, 2010. Available at http://www.economist.com/node/15582301 13 Early Offshore Discoveries: The discovery of gas in the waters of the Eastern Mediterranean has had a complicating effect on the region’s protracted political disputes, and vice versa. Within a single year, three natural gas finds drove the region’s interest in devising maritime strategies, particularly in light of geological similarities in various parts of the Eastern Mediterranean creating high expectations for the states involved.27 While Israel had conducted onshore exploratory drilling since the state’s creation, essentially driven by a lack of relations with the majority of its exporting neighbors,28 the American-based Noble Energy consortium and its Israeli partners, in 1999, discovered over 1 trillion cubic feet (TcF)29 of natural gas in the Mari-B field, which is contended to be straddling the (unsettled) Gaza Strip-Israel maritime border, and lays 15 miles from the coast.30 Production in Mari-B began in 2004 and has gone towards supporting Israel’s electricity generation. However, the find was not significant, with the field expected to dry up by 2013. In early 2000, Egypt also made gas discoveries offshore its Mediterranean coast in the Nile Delta Basin. That same year, the British Gas group (BG) – licensed in 1998 by the Palestinian Authority (PA) to explore offshore the Gaza Strip – successfully struck gas in the Gaza Marine-1 and Gaza Marine-2 fields, estimated to hold around 1 TcF of extractable natural gas; the PA had licensed the BG group for exploration rights over 25 years - giving the Palestinian Investment Fund 10% ownership and nominally giving the BG group 90% ownership of the endeavor (possibly shared with BG’s regional partners).31 As the relatively small Palestinian energy needs entirely depend on Israeli 27 A. Bruneton, E. Konofagos & E. Foscolos, Economic and Geopolitical Importance of Eastern Mediterranean Gas Fields for Greece and the E.U. 160 Mineral Wealth p. 7-8 (2011). 28 Exploration History. Zion Oil and Gas, Inc. (Updated 2009). Available at http://www.zionoil.com/exploration-history 29 Note that quantitative data on gas fields and resources vary according to source. This report will employ the numbers provided by exploring corporations. If such data is unavailable, data will rely on other reliable sources including government statements and documents, respected and specialized online databases and resource analysis organizations, or trusted media sources. 30 Williams, Peggy. “Israel.” Oil and Gas Investor Magazine. November 1, 2009. (p. 38-50). Available at the Noble Energy webpage at http://tinyurl.com/Israel-Gas-pdf 31 BG Group, Africa, Middle East and Asia: Areas of Palestinian Authority and Israel. Data Book, 2009. Available at http://www.bggroup.com/InvestorRelations/Reports/DB2009/global/amea/Pages/israel_palestinian_authority.as px 14 supplies, the estimated four billion dollar find was significant towards creating an economically viable Palestinian state, with high likelihood of energy independence and even export. In addition, the Noa South field, straddling Israeli-Palestinian waters by all accounts, was discovered with an insignificant 150BcF, with production being unilaterally kicked off by Israel soon after the discovery.32 Constraints have blocked the Gaza Marina fields from being developed to this day. Israeli officials rejected BG group’s talks with Egypt as a prospective market for the gas and initially refused to buy Palestinian gas (under former Prime Minister Ariel Sharon), the only other viable option available to Palestinian officials. A naval blockade on the Gaza Strip began soon after the BG group’s discoveries and only tightened with time. As an economic siege on Gaza escalated (and it became clear that both Noa South and Mari-B would dry up by 2012), Israel eventually offered to buy the gas from the BG group and supply the Gaza Strip through a pipeline from an Israeli terminal.33 Nonetheless, negotiations faltered and the BG group pulled out in 2007, closing its Israel offices the following year.34 Matters were further complicated by Hamas’ seizure of control in the Gaza Strip, the Israeli-Egyptian siege on Gaza, continued violence, and the 2008 Gaza War. The Cypriot Island and the EEZs of the Eastern Mediterranean: The offshore gas discoveries and the economic incentives they wrought for coastal states, led to a rapidly increased interest in the exploration and, subsequently, the pursuit of EEZ delimitation by the states of the Levantine basin. Delimiting EEZs was once undesirable and unlikely in the region due to the risk of conflict and fear of setting precedent and thus risking the disappearance of the ‘high seas’ in the basin, which would reduce fishing opportunities that have already been shrinking over the past decades. In the Levantine Basin, the costs of exploration and exploitation of resources (the major beneficial reason for delimitation past the territorial sea) were considerably high due to the high salinity, deep waters, earthquake-proneness, and political risk in the region. 32 Ministry of Planning and Administrative Development, Palestinian National Plan 2011-2013: Energy Sector Strategy (Ramallah: Palestinian National Authority,[2009]). 33 Ibid. 34 BG Group (2009). 15 Figure 3: BG Group’s Block in the Gaza Strip’s waters – BG Group website Equally important has been the presence of near chaotic and disparate approaches of East Mediterranean states towards the law of the sea, further complicating endeavors to amicably delimit maritime boundaries or creating a maritime legal regime in the region. While Egypt had ratified the UNCLOS III in 1983, the ROC in 1988, and Lebanon in 1995, three major Eastern Mediterranean powers, Turkey, Syria, and Israel have yet to sign or ratify the Conventions. Syria had in fact claimed a 35 nm territorial sea until 2003.35 By 2003, the UNCLOS regime on delimitation and the notion of an EEZ were clearly becoming customary through state practice; the Syrian government complied with the 12 nm limit set by UNCLOS and became the first state in the Mediterranean Sea to pass legislation claiming all of its maritime zones.36 Egypt, one of the earliest signatories of the UNCLOS III Convention and the first Eastern Mediterranean state to exploit natural resources in Mediterranean waters, had – while ratifying the Convention – declared that it would “exercise as from this day the 35 Ahnish (1993) The Act of Internal Waters and Territorial Sea Limits in the Syrian Arab Republic, Law No. 28, November 19, 2003. 36 16 rights attributed to it by the provisions of part V and VI [of UNCLOS III] in the exclusive economic zone situated beyond and adjacent to its territorial sea in the Mediterranean Sea and the Red Sea… in accordance with the rules, criteria, and modalities laid down in the Convention.”37 However, a local legislation parallel to the 1983 declaration was never codified in the Egyptian corpus juris, and Egypt made no efforts to officially determine the extent of its waters until February 2003, when Egypt and ROC established a line of equidistance to draw out their respective EEZs. The Cypriot-Egyptian delimitation agreement signaled the beginning of ROC interest in exploring its waters, which – in light of recent Egyptian, Israeli, and Palestinian discoveries nearby – were also believed to carry natural gas deposits. Subsequently, the ROC drafted legislation – ratified in April 2004 – unilaterally claiming its Contiguous Zone (CZ) and its EEZ.38 This drew the ire of the TRNC and the Turkish government, which does not recognize the ROC’s legitimacy. The then-ROC President Tassos Papadopoulos described Turkey’s rejection of the Cypriot-Egyptian delineation as an attempt to hinder its achievement.39 The Turkish government was no doubt concerned over its own maritime rights as well as those of the TRNC. A Turkish objection was communicated to the United Nations in March of 2004 and later published in the Law of the Sea Bulletin, expressing Turkey’s position that “the delimitation of the EEZ or the continental shelf in the Eastern Mediterranean… also concerns Turkey’s existing ipso facto and ab initio legal and sovereign rights.” Turkey further expressed its view that any delimitation beyond (a 37 Third United Nations Conference on the Law of the Sea: official records, Plenary Meetings (Meeting 24) 1975; 1984, United Nations, New York. 38 The legislation, while ratified on April 2, 2004, includes an article stipulating that it would retroactively enter into force on March 21, 2003. It is unusual for a state to negotiate an EEZ boundary before in fact claiming the EEZ. As such, it appears that the entry into force was meant to be earlier than ROC’s ratification of the agreement with Egypt. See the Exclusive Economic Zone Law of 2004, Cyprus & the Agreement between the ROC and the Republic of Egypt can be accessed at http://www.un.org/depts/los/LEGISLATIONANDTREATIES/STATEFILES/CYP.htm 39 Letter by the President of the Republic, Mr Tassos Papadopoulos, to the U.N. SecretaryGeneral, Mr Kofi Annan, dated 7 June, 2004. Available at http://www.cyprus.gov.cy/moi/pio/pio.nsf/All/E570E4948868A105C2256EAE003CAAE0?OpenDo cument 17 specified) longitudinal point needed to be “effected by agreement between the related states at the region based on the principle of equity.”40 Defending Turkish Cypriot rights, Turkey’s government has since argued that no maritime agreements, exploration, or drilling should be undertaken by the ROC before the ROC-TRNC conflict is resolved, further stressing the position that the ROC cannot claim representation of the entirety of the Cypriot island. Arguably, while it is not yet certain whether the conclusion of the Cypriot divide will be in unification or peaceful division, the ROC’s agreement with Egypt is relevant to the southern coast of the island and would not technically affect the likelihood of inter-Cypriot conciliation nor the rights of the TRNC. On the other hand, the unilateral exploitation of what very well could one day be shared resources (between ROC and TRNC) could be seen as justifiable cause for concern. What underlined Turkey’s greater unease was the fact that in 2001, the ROC, had also begun talks with Lebanon and Syria over the delimitation of their respective EEZs. Turkish officials were likely concerned that the realization of such agreements would effectively create a regional maritime regime built around the ROC’s legitimacy and interests at the expense of both Turkish Cypriot and Turkish maritime and security interests.41 Turkey’s objections and its growing economic influence in the Arab world did little to undermine the Egyptian-Cypriot Agreement, which was further bolstered by a 2006 Framework Agreement on the joint-development of shared resources as well as a Confidentiality Agreement. Egyptian disregard for Turkish calls signified Egyptian President Hosni Mubarak’s wariness of the popular Turkish government’s42 increasing interest and influence in the region at a time when Mubarak himself was losing stature and had come to believe that Turkey was attempting to take over Egypt’s faltering 40 Turkey’s statement in the Law of the Sea Bulletin no. 54, p. 12. Available at http://www.un.org/Depts/los/doalos_publications/los_bult.htm 41 “Cyprus and Lebanon will reach an agreement on the delimitation of the exclusive economic zone,” M2 Presswire. March 6, 2002. Available at http://goliath.ecnext.com/coms2/gi_01991573926/Cyprus-and-Lebanon-will-reach.html 42 The Justice and Development Party (Adalet ve Kalkınma Partisi), a secular Islamic political party often compared to Europe’s social conservatives, won Turkey’s 2002 parliamentary elections and formed a successful government. The AKP vastly liberalized the Turkish economy and worked towards developing strategic relations and economic interdependence with a diverse group of international and regional states in pursuit of creating an influential and independent Turkish powerhouse. The AKP is currently serving its third term in power. 18 regional role.43 Nonetheless, upon Mubarak’s fall from power amid street protests in early 2011, the Turkish government was quick to express its interest in a future strategic partnership between Turkey and Egypt. The ROC proceeded in setting the grounds for beginning exploration and taking steps to minimize the challenges it would face. Turkish warnings went unheeded and the terms of the ROC’s EEZ proclamation allowed for an area of up to 200nm from Cyprus’ straight baseline, with an exception for instances where “part of the Exclusive Economic Zone overlaps with [that] of any other State” in which case “the delimitation shall be affected by agreement.” If no agreement is reached, the ROC’s law stipulates that the delimitation of its EEZ would be by means of a median/equidistance line,44 rather than the equity principle, which Turkey has argued should be the basis of delimitation in the Eastern Mediterranean.45 Inhabiting a portion of a small provisionally divided island just over 40 nm from the nearest opposite coast (Turkey), the southern Cypriots nonetheless continued working towards alleviating investor risk concerns amid regional volatility. With steady Greek backing, the ROC leadership was further emboldened by Cyprus’ entry into the European Union just a month after declaring its EEZ and by the near-merger of interests with some influential EU states.46 This provided ROC with significant cover to ignore Turkish objections, particularly with German diplomatic support – in part due to a significant presence of German shipping companies in the ROC’s port cities.47 In addition, French- 43 D. Kaysi, Erdogan and Davutoglu: Turkey's Rise and the Arab Hinterland (Research Paper On File with writer. December 2011). 44 Cyprus Exclusive Economic Zone Law of 2004. April 2, 2004. Available at http://www.un.org/depts/los/LEGISLATIONANDTREATIES/PDFFILES/cyp_2004_eez_proclamati on.pdf 45 The principles of equity and equidistance will be discussed in the final section of this report. 46 Both citizens of ROC and of TRNC are considered members of the European Union, as the island was accepted as a whole. However, EU law is considered suspended in the north because the Government of Cyprus “does not exercise effective control”. This, at the time, could certainly be viewed as the EU encouraging Turkish Cypriots to reach a unification agreement in order to fully enjoy the privileges accorded to EU citizens. This also highlights the growth of strategic competition and, in fact, rivalry between certain members of the EU - particularly France - and Turkey. See the European Commission Enlargement concerning the Turkish Cypriot community, available at http://ec.europa.eu/enlargement/turkish_cypriot_community/index_en.htm 47 “Relations between Cyprus and Germany.” Federal Republic of Germany, Federal Foreign Office. Last updated March 2011. Available at: http://www.auswaertigesamt.de/EN/Aussenpolitik/Laender/Laenderinfos/01-Nodes/Zypern_node.html 19 Cypriot relations hit a new plane in 2006, and were highlighted by a defense cooperation agreement that was signed the following year.48 The ROC thus began implementing seismic studies (conducted by Norwegian PGS and French-based international consultancy Beicep-Franlab) and divided its southern and eastern waters into 13 exploration blocs. In early 2007, Cyprus proceeded to conduct its first licensing round for hydrocarbons exploitation and pass two legislations describing the ROC’s hydrocarbons exploration regime.49 The Tri-point in the Lebanese-Cypriot Agreement: Another small country with a penchant for allowing its ethnosectarian cleavages to be exploited by global and regional power competition, Lebanon had shown an early interest in exploring its offshore prospects. Seismic studies of Lebanon’s territorial waters and its (then undeclared) EEZ/continental shelf were conducted by Norwegian-based PGS and UK-based Spectrum in 2000 and 2002 in order to both clarify the geographic characteristics of the EEZ and conduct an initial study of the seabed, revealing several locations with prospective hydrocarbon reserves.50 The high prospects of discovering hydrocarbons would not only signify energy independence for Lebanon, but also constituted a source for paying off its debt of over $50 billion and ending its crippling electricity crisis.51 Spectrum has estimated that Lebanon’s territorial waters held around 25 TcF of natural gas. Despite the internal political crisis in Lebanon intensifying after the 2006 war with Israel, Lebanon formed a joint committee with its Southern Cypriot neighbors in 2006 in order to discuss the necessary conditions for defining the limits of the EEZ 48 See joint statement by French and Cypriot officials after defense agreement signing on March 1, 2007, available at: http://www.mfa.gov.cy/mfa/mfa2006.nsf/All/6AD36B7AD6606DFFC225729100367E73 49 Texts of relevant hydrocarbon exploration legislations and a listing of bilateral agreements can be found on the Republic of Cyprus’ Ministry of Commerce Industry and Tourism webpage: http://www.mcit.gov.cy/mcit/mcit.nsf/All/A6D222B09D72E659C2257441002EE9BE?OpenDocum ent 50 “Lebanon: Oil, Gas, and Utilities Report,” Business Intelligence Middle East. December 2, 2004. Available at http://www.bi-me.com/main.php?id=77&t=1 51 Duncan, D. “Lebanon short of electricity,” The National UAE. January 24, 2011. Available at: http://www.thenational.ae/news/world/middle-east/lebanon-short-of-electricity 20 between the two countries.52 Negotiations were based on an initial understanding that, in attempting to agree upon the equidistant line between ROC and Lebanon, the joint committee would not be able to bilaterally determine the endpoints of that line – the southerly tri-point with Israel and the northerly tri-point with Syria – without those countries’ involvement. A tri-point, or trilateral point, is defined as the point often encountered during boundary delimitation negotiations whereby “three bilateral maritime boundaries could intersect”. The location of the tri-point has been an aspect of around half of the world’s maritime delimitations.53 As Lebanon and Israel were and remain at war (and Lebanon does not officially recognize Israel), it was not likely that the Israelis would be brought into the negotiations at that point. The Syrians, on the other hand, were simply not interested at that point in time, likely due to a mutual lack of trust between the Lebanese and Syrian governments as well as the internal political battle that the proSyrian opposition was waging against the anti-Syrian Lebanese government at the time. Taking these difficulties into account, the Lebanese-Cypriot committee drew a simplified equidistant line between Lebanon and the ROC’s relevant coast. The determination of the median line took into consideration the approximated positions of the northerly tri-point with Syria and the southerly tri-point with Israel. After making that determination, the joint-committee chose to plot a temporary median that indicates the EEZ limit between Lebanon and the Cyprus island. The line was nonetheless kept a sufficient distance from the tri-point (Point 7) with Syria and the tri-point with Israel (Point 23) so as to allow for future negotiations. 52 Information about the negotiations and the draft agreement between Lebanon and Cyprus have depended primarily on e-mail correspondence with a high-ranking member of Lebanon’s Ministry of Public Works & Transport who is also a member of the Lebanese committee tasked with negotiation the country’s EEZ with the Republic of Cyprus. E-mail correspondence occurred January 5-15, 2012. Information has also been derived from public Lebanese and Cypriot statements and regional media. 53 An equidistant line or a median line is, as defined in the 1982 Conventions, “the 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.” (UNCLOS III, Art 15) 21 Figure 4: Section of map showing the temporary endpoints on the final line agreed upon between Lebanon and the ROC on January 17, 2007. As such, the January 2007 agreement between Lebanon and the ROC determined the breadth of their respective EEZs, but not the width. The committee drew a ‘temporary median line’ (From Point 1 in the South to Point 6 in the North) that shied away a sufficient distance from the tri-points and allowed for buffer areas that the sides agreed to not exploit pending agreement on negotiated tripoints with the neighboring states. [See Fig. 4] This temporary nature of the line as well as the determination of the tri-point, considered to be the actual southernmost point on the Lebanese-Cypriot median line, were stipulated in the final article of the agreement according to Lebanese press reports. As such, it would appear that Lebanon and the ROC employed Article 74 of the 1982 Convention in order to find a solution for an inability to completely achieve the goal they set out for: Pending agreement as provided for in paragraph 1, the States concerned, in a spirit of understanding and cooperation, shall make every effort to enter into provisional arrangements of a practical 22 nature and, during this transitional period, not to jeopardize or hamper the reaching of the final agreement. Such arrangements shall be without prejudice to the final delimitation.54 The signing of the agreement between the ROC and Lebanon came days before the ROC announced that it was conducting its first licensing round for hydrocarbons exploration and exploitation in early February. The Turkish Foreign Ministry declared that Turkey did not recognize the agreements and called on Lebanon and Egypt to freeze their agreements until the inter-Cypriot dispute is resolved, claiming “legitimate and legal rights and interests” for both TRNC and Turkish, which it would defend. The TRNC’s leadership continued to express their view that both sides should gain from any resources in Cyprus’ waters.55 While the ROC brandished the agreement with Lebanon along with the Egyptian agreement at a great many junctures, in Beirut the agreement was greeted differently. It was described as a ‘draft agreement’ and a ‘temporary agreement’ by several officials and remained without parliamentary discussion or ratification for close to two years. Some media outlets in Beirut have argued that Turkish Prime Minister Recep Erdogan had convinced Lebanon’s majority leader Saad al-Hariri to table the agreement. However, due to the political crisis and the Parliament Speaker Nabih Berri being an opposition leader, Lebanon’s parliament, as mentioned earlier, was also often not in session. Major discoveries & shifting geostrategic waters: Meanwhile, Noble Energy and its Israeli partners continued exploring the Israeli seabed, meeting little luck until the end of 2008, when the Tamar gas field was found to have 9 TcF of recoverable gas, significantly changing the Eastern Mediterranean game. A well was completed in early 2009, after which Noble hit the Dalit field (0.5 TcF).56 Later in the same year, upon the creation of a Lebanese unity government by Saad Hariri, a 54 UNCLOS III, Article 74-3 (1982) “Turkey Urges Lebanon, Egypt to Delay Gas, Oil Deals with Cyprus,” Naharnet. January 30, 2007. Available here: http://old.naharnet.com/domino/tn/NewsDesk.nsf/getstory?openform&C0635A717CB54E0AC225 7273006C54B1 56 Oil and Gas Investor (2009) 55 23 committee comprised of five concerned ministries was formed to study various aspects of Lebanon’s EEZ. Several actors were convinced that Lebanon had committed a political and diplomatic blunder in the agreement reached with Cyprus. The concern was that setting an undefined endpoint to the equidistance line and shying away from the actual extent of its width, even temporarily, would give Israel the chance to extend its claims. However, the negotiations that occurred so soon after the 2006 War witnessed a caution approach by the Lebanese government, which aimed to reach an agreement based on straightforward techniques drawn from UNCLOS, International Court of Justice decisions, and state practice to avoid renewed tensions.57 On another front, Turkish-Israeli relations were beginning to fall apart. The devastating War on Gaza of 2008 sparked growing international weariness with the ways Israel dealt with its problems and disputes, leading to the widening of differences with Turkey in particular. By the time the 2010 Mavi Marmara maritime incident had occurred, Turkish PM Erdogan’s popularity among Arab populations was already significant. By the beginning of 2010, his government had spearheaded the region’s largest Free Trade Zone between Turkey, Syria, Lebanon, and Jordan as well as several other bilateral Free Trade Agreements and strategic agreements with regional and international powers including China, Egypt, the GCC, and Russia. Egyptian complicity with the occupation regime in enforcing the blockade-turned-siege in Gaza created a distinct contrast amongst Arab populations between Erdogan, who stood up to Israel’s blockade, and former Egyptian President Hosni Mubarak who enforced it. To Israel, this signified a growing strategic partnership with Egypt, which, by 2008, was supplying 40% of Israel’s gas supplies at below-market rates. Nonetheless, Israeli leadership took great comfort in the increasing prospects of becoming energy independent. In 2010, with the discovery of the Tamar and Dalit fields, the questionable location of those fields on maps released to the media by Israeli authorities and Noble Energy, , alarmed Lebanese authorities who argued that the fields stretched into Lebanese waters. Further, a 2010 United States Geological Survey (USGS) revealed an estimated 57 E.g. in the ICJ Continental Shelf case between Libyan Arab Jamahiriya/Malta (1985), the Court states: “The limits within which the Court, in order to preserve the rights of third States, will confine its decision in the present case, may thus be defined in terms of the claims of Italy…” 24 122 TcF of recoverable natural gas and 1.7 billion barrels of recoverable oil in the Levant Basin. This sped up Lebanese efforts to determine the EEZ’s southern boundary and work on the proper legislation in order to attract investment, passing an Offshore Hydrocarbon Law in mid-2010.58 The concern was partially due to new surveys that indicated the possibility of transboundary hydrocarbons fields that stretched between the waters of Lebanon, Cyprus, and Israel – and to which Lebanon would be a latecomer in any case. In July and then October 2010, in anticipation of an ROC-Israeli agreement, Lebanon deposited letters with the United Nations Secretary General. The letters described the coordinates delineating its EEZ’s southern and western boundaries.59 The unilateral declaration set Lebanon’s maritime boundary with Israel as stretching from the coastal point B1 at Ras al-Naqurah60 to Point 23, which in 2007 was agreed upon as the Southern Limit of Cypriot-Lebanese EEZ. The line between Lebanese and Israeli land had also been determined based on the equidistance principle, drawn between Lebanese and Israeli territory and “on the coordinates of which all must agree” according to a later letter from the Lebanese Minister of Foreign Affairs to the Secretary General Ban Ki Moon. The original agreement had kept away from this tri-point, though, and temporarily set the median at the floating or undefined endpoint labeled Point 1.61 In December 2010, just as an Israeli-Cypriot EEZ agreement was being finalized, Noble Energy and its Israeli partners discovered the Leviathan field. Leviathan was estimated to hold 16 TcF of natural gas and said to be one of the largest natural gas finds in the past decade. Despite the ROC’s 2007 agreement with Lebanon, the Israeli-Cypriot Agreement – employing the same Admiralty nautical chart that the Lebanese-Cypriot agreement had to determine the EEZ limits –revealed a shocking overlap.62 Rather than 58 Israel Offshore Hydrocarbon Law no. 132. See Lebanon’s submissions, communications, and relevant legislations at the Division for Ocean Affairs and the Law of the Sea’s website. Available here: http://www.un.org/Depts/los/LEGISLATIONANDTREATIES/STATEFILES/LBN.htm 60 Based on the 1949 Armistice Line. 61 See Letter dated 20 June, 2011 on Lebanon’s country page at the Division for Ocean Affairs and the Law of the Sea’s website. Available here: http://www.un.org/Depts/los/LEGISLATIONANDTREATIES/STATEFILES/LBN.htm 62 Admiralty nautical chart No. 183 (Ra's at Tin to Iskenderun, 1:1,100,000) produced by the United Kingdom Hydrographic Office. (Map attached to document) 59 25 set the limit at the tri-point determined in the Lebanese-Cypriot Agreement, the IsraeliCypriot Agreement set the northernmost point of their median line at Point 1, which had been used as the ‘undefined endpoint on a final line segment’ in the previous LebanonROC agreement.63 The ROC Agreement with Israel went into force in February 2011 at a time when neighboring Egypt (which shares another tri-point with Cyprus and Israel) was mired in a revolution. The Lebanese sent two letters of complaint and clarification to the United Nations in June and September 2011. Eventually, in October 2011, Lebanon unilaterally delimited all sides of its maritime boundaries and submitted the EEZ claims to the UN (though unilateral pronouncements are not binding on third parties, here too, Syria’s government was also facing internal strife and was unable to express its opinion).64 After approving regulatory laws in January 2012, Lebanon planned to initiate its first licensing round for exploration later this year, though the overlapping regional tensions may again delayed progress.65 Further, Lebanon’s delicate sectarian balance delayed the formation of a Petroleum Administration Committee, which was eventually announced in the beginning of November 2012. Energy and Water Minister Gibran Basil expressed his expectation that bidding would still begin this year. The significance of the EEZ agreement between the Israeli and Cypriot governments goes well beyond the 10.5 miles between Point 1 and Point 23 contended by Lebanon. While Lebanon is engaging in a stretched out renegotiation of the non-binding agreement with the Republic of Cyprus, Lebanese and Israeli actors are promising to defend their respective waters by all means necessary. Meanwhile, Turkey had been flexing its naval power, shadowing ROC waters and employing military vessels to escort a rig right outside Cyprus’ waters after it warned ROC against drilling. An increase in international naval activity in the Levantine Basin has been clear since mid-2011 as 63 See the Agreement between the Republic of Cyprus and Israel: http://www.un.org/Depts/los/LEGISLATIONANDTREATIES/PDFFILES/TREATIES/cyp_isr_eez_2 010.pdf 64 See Lebanon’s EEZ declaration: http://www.un.org/Depts/los/LEGISLATIONANDTREATIES/PDFFILES/lbn_2011decree6433.pdf 65 “Lebanon to take part in regional energy forum in Cyprus next week,” Daily Star Lebanon. June 23, 2012. Available at: http://www.dailystar.com.lb/Business/Lebanon/2012/Jun-23/177854lebanon-to-take-part-in-regional-energy-forum-in-cyprus-next-week.ashx 26 French, American, German, and Russian governments defended Cyprus’ rights to drill in order to ensure their stakes in the future of regional energy prospects and worked to project power in light of the Syrian uprising. Further, tensions between Israel and Turkey have increased as Israeli-ROC and Israeli-Greek strategic defense relations were forged following the signing of the EEZ agreement. An Israeli-Greek-Cypriot triangle has developed over the past months based on defense and energy relations and a common interest in undercutting Turkish leadership and assertiveness in the region.66 The severe strain in Turkish-Israeli military, political, and diplomatic relations has also led to strategic considerations of alliances. Noble Energy and Israel’s Delek Drilling LP and Avner Oil Exploration LLP began drilling Cyprus’ Block 12, which is expected to contain 5-8 TcF. Turkey responded by intensifying its warnings and naval presence around Cyprus while Israeli Unmanned Aerial Vehicles (UAVs) were employed to secure the drilling sites, underlining a new partnership between the two states. Israel, Greece, and Cyprus have significantly strengthened strategic military and energy relations and the Israeli air force has become a common presence over Cypriot waters.67 At a time when Israel was beginning to be seen as a strategically risky country to publically back, Israel’s partnership with Cyprus may well provide it the avenue to become an asset for the EU, both as an energy supplier and as a military protector and production partner of Cyprus, the EU’s new energy-rich foothold in the Eastern Mediterranean. In dismay at the situation it has found itself in over the past two years, describing ROC’s actions as ‘provocation,’ Turkish leadership have taken several steps to ensure that Turkey does not get boxed into its territorial sea. Most importantly, while Turkish threats will likely not materialize into military action, the threat of blacklist energy companies working in the ROC’s EEZ could keep big corporations from taking part in ROC exploration, as most major companies are already involved in Turkish energy 66 “Russia Backs Greece-Cyprus-Israel Triangle Against Turkey on Offshore Gas,” The Jamestown Foundation. May 8, 2012. http://www.jamestown.org/single/?no_cache=1&tx_ttnews[tt_news]=39345&tx_ttnews[backPid]=7 &cHash=25463fdb6e74385691562acb0cf0a270 67 “Israel tightens Med defense links over gas,” United Press International. January 11, 2012. See http://www.upi.com/Business_News/Energy-Resources/2012/01/11/Israel-tightens-Med-defenselinks-over-gas/UPI-69981326305296/ 27 projects.68 However, energy companies from Russia, France, the U.K., and even Malaysia have signaled interest in the Aphrodite Block off the southern coast of Cyprus and Israel’s Noble Energy appears to have taken a significant stake in the project. Second, and perhaps most importantly, following a Greek decision to begin drilling in an area Turkey contends to, Turkey signed a Continental Shelf Delimitation Agreement with TRNC leadership in order to begin exploration itself.69 By November, Turkey’s stateowned TPAO had penned an exploration deal with Royal Dutch Shell and exploration has reportedly already begun.70 Figure 5: The Republic of Cyprus’ 13 blocks for hydrocarbon exploration - Source: Cyprus Ministry of Commerce, Industry and Tourism - Hydrocarbon Exploration Section 68 Erdogan threatens to blacklist companies working with Cyprus on Oil, Gas. Bloomberg, September 22, 2011. See http://www.bloomberg.com/news/2011-09-22/erdogan-threatens-toblacklist-companies-working-with-cyprus-on-oil-gas.html 69 Statement by Prime Minister Erdogan following the signing of continental shelf delimitation agreement between Turkey and the Turkish Republic of Northern Cyprus, September 21, 2011. See http://www.mfa.gov.tr/statement-by-prime-minister-erdogan-following-the-signing-ofcontinental-shelf-delimitation-agreement-between-turkey-and-the-tur.en.mfa 70 Turkey's TPAO, Shell sign exploration deal. Reuters, November 23, 2011. See http://www.reuters.com/article/2011/11/23/turkey-shell-idUSL5E7MN1AA20111123 28 Russian and European Union interests in the region have also played a major part in the chaos of the Mediterranean competition, adding multiple factors to the TurkishCypriot and Turkish-Israeli competition. First, French-Turkish competition became more clearly contentious in the aftermath of the NATO mission in Libya, as Turkey managed to sign several economic cooperation deals that French President Nicolas Sarkozy’s government was vying for as well as to get the Turkish military recruited to train Libya’s newly formed military. The two had come to heads over the Cyprus issue and the competition intensified as Turkey and France began viewing each other as direct competitors for influence in North Africa.71 Heightened French attention to relations with Cyprus has been related both to energy opportunities and to a growing (though certainly not new) French interest in gaining a foothold of influence in the non-European areas of the Mediterranean. The influence of Sarkozy’s recent election loss on these issues remains unclear, though most analysts look forward to an improvement in relations between Turkey and France. Second, and significantly, Syria’s government had begun preparations for an offshore bidding round in early 2011, mere weeks before the Syrian revolution began.72 French company CGGVeritas was one of the primary actors in the pre-bidding stage, which partially explains France’s relatively reserved approach at the outset of the Syrian revolution at a time when Turkey, the United States, and traditional Arab energy giants of the Gulf Cooperation Council presented an almost united front in pressuring Syria’s current President Bashar al-Assad to end the violence and heed the revolutionaries’ calls. While France later took a clearer and stronger stance against Assad, Russia has continued to side squarely with the Syrian regime. Syria currently provides Russia with its only foothold in the strategically critical Eastern Mediterranean, a naval base that remains the only Russian military outpost outside of the former Soviet Union. Russia’s support for Cyprus reflects both its complex relations with Turkey and its need to create opportunities in case the Assad regime falls. Russian and Turkish leadership have, in 71 See, for example, analysis by Veysel Ayhan, Erdogan-Sarkozy rivalry in Libya. Today’s Zaman. September 16, 2011. http:// www.todayszaman.com/news-257338-erdogan-sarkozy-rivalry-inlibya-–-1.html 72 “Syrian Offshore: Exciting New Frontier,” CGGVeritas. See at: http://www.geoexpro.com/article/Syrian_Offshore_Exciting_New_Frontier/9747e096.aspx 29 recent years, worked to improve and strengthen economic and strategic relations. Significantly, however, these relations have not grown as meaningfully as many proponents of the ‘Turkey turning east’ theory claimed they would. Turkey’s hosting of a NATO missile shield as well as sharp strategic and political disagreements on the Syrian issue have served as major impediments hampering efforts to fully implement Turkish Foreign Minister’s “multi-vector” foreign policy at the present time. Further, in light of the Syrian uprising, Russia has become more visibly involved in the region, attempting to safeguard and increase its influence as regional power dynamics are shaken by the Arab uprisings and the global power structure begins to give way for a yet to be defined global governance system. A key point as related to Russia’s interest remains the energy itself. As the chief supplier of European gas, Russia has long generated unease within the European Community (EC). The EC has made marked efforts towards diversifying its member states’ sources of natural gas in order to end a near-stranglehold by Russia’s Gazprom over European energy needs. As the subcontinent foresees a decline in nuclear energy and a rise in natural gas use for its energy needs, EC states have found great opportunity in countries not aligned with Russia, such as Azerbaijan, North African states, and most recently Israel and the ROC. Turkey has worked to position itself as the central energy transport hub in Afro-Eurasia with a majority of new Europe-bound pipeline possibilities running through Turkish lands. Some of Turkey’s closest Asian allies are natural gas giants Qatar and Azerbaijan (alongside other important – though more complex partnerships – such as Turkmenistan, and Saudi Arabia). As such, Turkey has positioned itself for a central role in the Eurasian energy game in order to meet its growing local energy demands as well as create strategic revenue via pipeline profits. Russia’s energy agenda continues to entail the purchase and resale of gas resources through Gazprom, signified most recently by negotiations over Israel’s Leviathan field and serious attempts to challenge pipeline proposals that would provide Europe with alternatives to Russian and Russian-dominated energy sources. Turkey, in the meantime, has also prepared itself for other possibilities, signing a deal to transport gas from Azerbaijan’s sizeable Shah Deniz gas fields to European states and creating a ro-ro shipping line to Egypt in order to export to the Gulf Peninsula and Africa 30 as an alternative to the Syrian route. Negotiations are taking place for a Turkish logistics center on Egypt’s energy-rich northern coast, alongside other strategic trade and industry initiatives.73 In addition, Qatar, one of the biggest natural gas exporters, and among the chief strategic allies of both Turkish and Egyptian leadership, has moved towards setting the grounds for a greater role in the Mediterranean energy network. This comes as, even amidst efforts to topple the Assad regime, the govenrments of Iran, Iraq, and Syria signed a Memorandum of Understanding in August 2011 to build a gas pipeline from Iran’s South Pars field (shared with Qatar) in order to supply Syria, Lebanon, and, implicitly, Europe in the future. Such a project, if successful, and if the Syrian regime survives, would strongly compete with Central Asian, Qatari, and North African projects and access to friendly and stable Syrian shores would no doubt ascertain great strategic gain for the EC, Turkey, and Qatar, all of which are keen to undercut Russian and Iranian attempts at maintaining or building energy dominance on the European in the European and Asian markets. On the other hand, Turkey’s growing influence in the Middle East, Central Asia, and the Balkans has created an uncomfortable situation for some in the European Union as well, whereby they have found themselves moving towards a situation of dependence on rival Russia to the north and rising Muslim-majority regional power Turkey to the east. As Europe’s economy struggles and the United States no longer sees singlehandedly ensuring European interests as a priority amid an increasingly self-balancing world, chief European states have turned to the Mediterranean as a final outlet capable of giving Europe leverage in a world of multiple rising powers. France, in particular – though not solely – has also worked to make inroads towards influence in Africa. The United States, remaining strategically close to the EU, Turkey, and Israel does not necessarily oppose this new balance of power in the Eastern Mediterranean as two former balancers (Egypt and Syria) face years of transition and an inability to seriously contend for regional influence at this point in time. 73 Turkey bypasses Syria to reach Middle East via Egyptian ports. Today’s Zaman, April 23, 2012. See http://www.todayszaman.com/news-278367-turkey-bypasses-syria-to-reach-middle-east-viaegyptian-ports.html 31 IV. Law of the Sea & the Mediterranean: Brief history of the law of the sea: The 1982 United Nations Convention on the Law of the Sea (UNCLOS III) is considered to be a major milestone in international law, and particularly in reference to the regulation of the world’s seas and oceans and nations’ conduct in their waters. The detailed convention went into effect in 1994 and laid out the rights and responsibilities of member states, with the goal of fostering cooperation. A chief aim of the UNCLOS III, as stated in its preamble, was to: “[Establish]… with due regard for the sovereignty of all states, a legal order for the seas and oceans which would facilitate international communication, and will promote the peaceful use of the seas and oceans, the equitable and efficient utilization of their resources, the conservation of their living resources, and the study, protection, and preservation of the marine environment.”74 The Law of the Sea convention was necessary to address the modern problems with the rise of the nation-state, building on debates and challenges from previous eras, and attempting to balance varying demands. The seas and oceans had been subject to international law for centuries, particularly in relation to the conflict between sovereignty and the idea of the ‘open seas’ whereby seas and oceans were often open to passage and exploitation by any state. However, before 1958, a codified international law on matters of the sea was nonexistent. Relevant customary law was vague, and general practice “recognized the sovereignty of the coastal State over the waters immediately adjacent to its coast (generally to a distance of 3 [nautical miles]) – the territorial sea.”75 In 1958, at Geneva, several conventions were negotiated at the United Nations Conference on the Law of the Sea, resulting in the Convention on the Territorial Sea and the Contiguous Zone, the Convention on the High Seas, the Convention on Fishing and Conservation of Living Resources of the High Seas, the Convention on the Continental 74 UN Convention on the Law of the Sea, p. 25 Jiuyong SHI, Maritime Delimitation in the Jurisprudence of the International Court of Justice, 9 Chinese Journal of International Law 271 (2010). 75 32 Shelf, and an Optional Protocol on the Compulsory Settlement of Disputes. Together, these conventions comprised of the codification of law pertaining to the seas and oceans. While the 1958 UNCLOS I conventions failed to specify a maximum breadth for the territorial sea (and thus other zones) of a coastal state76, the concepts of the continental shelf and a contiguous zone were agreed upon to designate areas with limited sovereignty beyond a state’s territorial sea.77 UNCLOS III and the Exclusive Economic Zone: The eventual disarray in the global maritime regime necessitated the renegotiation of the law of the sea. The Third Convention on the Law of the Sea brought about significant advances in the understanding and codification of maritime legal regimes among other issues of concern such as the management of fisheries and environmental protection.78 One of the most significant results of UNCLOS III has been the detailed codification and definition of maritime zones, creating a distinction between the levels of sovereignty granted to a coastal state within the area of each zone. The territorial sea, in which a state could exercise full sovereignty and impose its own laws (in the subsoil, seabed, waters, and airspace), was set at 12 nm from the coast’s baseline, and the relevant conditions for its determination were also laid out (UNCLOS III, Art 2). The Contiguous Zone (CZ), extending 24 nm from the same baseline used to determine the territorial sea, allows the state policing rights (UNCLOS III, Art 33). A state’s Continental Shelf (CS) extended up to 200 nm from the baseline or through the natural prolongation of its land to the continental margin (up to 350 nm). CS rights are considered de jure inherently, without the need for a state to claim them. The coastal state has exclusive rights to explore and exploit the seabed and the subsoil of its Continental Shelf (with no rights over the deep ocean floor or the waters of the region (UNCLOS III, Art 76-1,2,3 and Art 77-1). At the time, the continental shelf was already considered customary law and had been codified in the 1958 UNCLOS conventions. 76 Territorial seas of coastal states varied and ranged from three to two hundred nautical miles. Convention on the Continental Shelf (1958); Convention on the Territorial Sea and the Contiguous Zone (1958). 78 Budislav, Vukas, The Law of the Sea: Selected Writings, p. 5 (2004). 77 33 Perhaps one of the most important results of the nine-year UNCLOS III negotiations was the general acceptance of the Exclusive Economic Zone (EEZ). In essence, the emergence of the EEZ as a spatial maritime classification during the 1982 Convention negotiations was aimed at balancing between the interests of states that sought to exercise their sovereignty 200 nautical miles into the sea and others (particularly naval powers) that were concerned over the shrinking of the High Seas. Until then, 200 nm had corresponded only to the breadth allowed to a state’s Continental Shelf. Within the EEZ, the coastal state enjoyed several rights (as well as responsibility for significant obligations). As laid out by the convention, the EEZ provided, inter alia: Sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources, whether living or non-living, of the waters superjacent to the seabed and of the seabed and its subsoil, and with regard to other activities for the economic exploitation and exploration of the zone, such as the production of energy from the water, currents and winds. (UNCLOS III, Art 56-1a) Until the mid-1990s, states’ EEZ claims (or lack thereof) were driven by considerations regarding exclusive access to living resources and, thus, the human and economic security and sustenance that comes with it. At the turn of the twenty-first century, however, the widespread discovery of offshore hydrocarbons in the world’s seas and oceans (and the prospects thereof) would come to change that, dominating the drive for states to secure their EEZs. Hydrocarbon energy and the prosperity and security it promises to provide a state have become the primary mover in maritime cooperation and competition. V. Envisioning a Sustainable Maritime Regime The unilateral claims and narrow bilateral approaches that have created the current configuration of exclusive zones of maritime jurisdiction in the Eastern Mediterranean will exacerbate tensions if the parties continue attempting to divide the sea 34 in competitive and contentious manners. It is reasonable to say that the geographic makeup of the Eastern Mediterranean is difficult to deal with and that the political and strategic import of the region, as demonstrated in this paper, plays and will continue to play a definitive role in the region’s maritime boundary-creation activities. Nonetheless, it is possible and important to point out some critical factors that must be taken into account if the states agree on pursuing a regional solution – or at the least take considerations of stability into account. Such dialogue would provide states with the opportunity to build constructive and cooperative relations among the varied and oft troubled relations amongst nations in the region and be a driver for resolving other aspects of conflicts in the region. Otherwise, the mismanagement of EEZ zonation in a maritime area such as the Eastern Mediterranean could lead to closed systems that create navigational and security challenges, as well as difficulties in attracting investors. Current Array of East Mediterranean Claims: It must be pointed out that in relation to delimitation and jurisdiction, the current state of matters is problematic. The following list includes the major agreements and unilateral delimitations that have taken place and were discussed earlier throughout this paper, touching briefly on characteristics of the agreements in order to shed some light on the nature of the Eastern Mediterranean delimitation problem: • Unilateral claims of EEZs by Egypt & Syria without delineation of boundaries (1983 and 2003, respectively) – Only Syria’s claim was officially ratified into law, however, its recognition remains unilateral. • Agreement on EEZ delimitation between Egypt and the Republic of Cyprus (2003): “…Effected by the median line of which every point is equidistant from the nearest point on the baseline of the two Parties.”79 (ARE-ROC EEZ Agreement, Art 1-a) • Unilateral claim of EEZ by the ROC (2004), also of unilateral recognition until this day, with only Egyptian and Israeli boundaries with Cyprus determined. 79 Agreement between the Republic of Cyprus and the Arab Republic of Egypt on the Delimitation of the Exclusive Economic Zone, 17 February 2003. Available at: http://www.un.org/depts/los/LEGISLATIONANDTREATIES/PDFFILES/TREATIES/EGYCYP2003EZ.pdf 35 • Agreement on EEZ delimitation between Lebanon and the ROC (2007): the text itself was never publicized by either side or made available in full. However, the two opposite states have also agreed on the basis of principles of strict equidistance. This agreement was not ratified and is not in force due to a lack of clear and precise language that needs to be used in the drafting of agreements based on undefined endpoints on a final line segment. The undefined trilateral point is often employed “purposely by parties in a negotiation as a way to define a range of possible tri-points.”80 Certainly, the Lebanese committee that negotiated with the ROC did not intend to create a range of options for Israel. The agreement was never ratified. • Agreement on the EEZ between Israel and Cyprus (2010): The agreement does not mention the use of the equidistance method for determining the median line. Annex I specifies the use of geodesic methods to specify the lines between coordinates. The agreement further states: “The coordinate values of the agreed points 1 to 12 on the median line takes precedence… over any other map or chart that reflects the location of the median line between the parties.”81 (SOI-ROC Agreement, Art 1-d) This agreement has created a median that overlaps with the median Cyprus had previously agreed upon with Lebanon, thus allowing Israel to claim several miles of water beyond the simple equidistance line with Lebanon.82 • Unilateral claim and delimitation of EEZ boundaries by Lebanon (2010). • Unilateral claim and delimitation of northern EEZ boundary with Lebanon by Israel. (2011). • Agreement between the Republic of Turkey and the Turkish Republic of Northern Cyprus on the Delimitation of the Continental Shelf (2011): The agreement has 80 Coalter Lathrop, Tripoint Issues in Maritime Boundary Delimitation, in International Maritime Boundaries p. 3316 (D. A. Colson & R. W. Smith eds., 2005). 81 Agreement between the Government of the State of Israel and the Government of the Republic of Cyprus on the Delimitation of the Exclusive Economic Zone, , December 17, 2010. Available at: http://www.un.org/depts/los/LEGISLATIONANDTREATIES/PDFFILES/TREATIES/cyp_isr_eez_2 010.pdf 82 According to Lathrop (2005), “there appears to be only three tripoint situations in which the second boundary oversteps the first boundary. They are the Columbia-Haiti-Jamaica, Dominican Republic-United States (Puerto Rico)-Venezuela, and Equatorial Guinea (Rio Muni)-Gabon Sao Tome and Principe.” p 3308 36 not yet, to the knowledge of this writer, been made publically available. According to a statement by Turkish Prime Minister Erdogan: “This agreement was determined according to a drawing of up of 27 geographical coordinates determined in accordance with international law... The advancing of the eastern and western points [of the] maritime [boundary] in this agreement was tied to both sides' future and [the] principles of fairness and international law.” 83 It is assumed that Turkey did not attempt to agree on an EEZ for repeatedly stated concerns over fisheries and Turkey’s naval maneuverability in the waters around it. Further, since the Continental Shelf does not require actual recognition, this agreement has worked towards legitimizing the TRNC as well as employing a concept that may be presented as less impinging on the rights of other concerned states. Customary and Binding: It is fitting that two of the landmark International Court of Justice decisions that worked to shape future understandings of maritime law were related to Mediterranean states (Libyan Arab Jamahiriya-Malta (1985); Libyan Arab Jamahiriya- Tunisia (1982)). To date, three of six states considered in this paper to comprise the coastal states of the Eastern Mediterranean (along with the Palestinian Authority and the Turkish Republic of Northern Cyprus) have not signed the United Nations Law of the Sea Convention: Syria, Turkey, and Israel. When non-signatories have, through the use of legal arguments, disagreed or disputed certain maritime acts of other states, involved signatories often reminded that they are not Parties to the treaty and, thus, should not opine. In addition, the nonsignatories have at times acted as though they were not bound, which, in fact is not true. The majority of the text of the 1982 UN Convention on the Law of the Sea has become customary international law, and is considered a binding and accepted part of the law of the sea, as is the concept of the Exclusive Economic Zone, which is now widely claimed by coastal states. Thailand, in May 2011, became the 162nd state to ratify the 83 “Turkey Signs Continental Shelf Agreement,” Sabah. Available here: http://english.sabah.com.tr/National/2011/09/22/turkey-signs-continental-shelf-agreement 37 Convention84 and opinion juris widely refers to (and develops) the concepts and provisions of the Convention. Non-signatories have generally accepted UNCLOS III, with the exception of specific parts. This is particularly so in our case of interest. Turkey has declared an EEZ in the Black Sea and refers to the principles of the Convention (and was active during the drafting) in its diplomatic communications. Syria, in 2003, claimed its EEZ, as did Israel in 2011. As such, all three non-signatories in the region have imparted recognition and taken part in increasing the influence of UNCLOS on customary law. In fact, ratifying the UNCLOS agreement would allow these countries greater benefits and would open avenues to ease the disputes. Critically, a Party need not agree to the dispute-settlement jurisdiction of the International Court of Justice (ICJ), the International Tribunal of the Law of the Sea (ITLS), or other arbitration or adjudication mechanisms. For any such mechanism to be employed in a particular case, the consent of both parties is required in order to address a case. In the case of the Lebanese-Israeli boundary dispute or the ROC-TRNC/Turkish claims, ITLS and other third-party arbitration mechanisms described in UNCLOS may be suitable and would involve imparting similar levels of recognition towards the opposing party as, for example, mediation by UN peacekeeping forces does. The difference is that such a court would have greater knowledge of delimitation and its legal and practical specificities. However, it is less clear whether Lebanon, Israel, the two Cyprus governments, and Turkey would agree to resolve their contentions in front of an international judiciary. The oft-preferred and long tried method of negotiation for Israel is that of a third state mediator agreed upon by both sides. In the recent past, in negotiations with other regional actors, Israel has opted for negotiations via Egyptian, Turkish, American, and German mediation. 84 Chronological lists of ratifications of, accessions and successions to the Convention and the related Agreements as at 03 June 2011. UN Division for Ocean Affairs and the Law of the Sea. Available here: http://www.un.org/Depts/los/reference_files/chronological_lists_of_ratifications.htm#The%20Unite d%20Nations%20Convention%20on%20the%20Law%20of%20the%20Sea 38 The United Nations Interim Force in Lebanon (UNIFIL) remains another possible mediator, perhaps with support from UN legal experts. Lebanon has already sought a UNIFIL solution to the dispute and a meeting has taken place between Lebanon, Israel, and UNIFIL on the issue on August 18, 2011,85 later calling for a maritime ‘blue line’ similar to the line delimiting Lebanon’s borders with Israel. However, this may effectively extend the dispute and further complicate the problem for Lebanon, especially given Israel’s national drilling capabilities. While there had earlier been mixed statements from the UNIFIL leadership, after the August meeting, the UNIFIL Commander Major General Alberto Asarta expressed his hopes that he would be able to mediate between Lebanon and Israel on the maritime boundaries as well as officially demarcate the Blue Line86 before the end of his term.87 A U.N. role, while welcomed, rarely presents more than a sounding board. Such issues need either regional agreements or the mediation of a party with the power to influence both sides and use economic and diplomatic weight to do so. Cyprus has expressed interest in mediating in order to press Lebanon to ratify the January 2007 agreement.88 Of course, it would ultimately be wise to resolve the issue among the Mediterranean region’s states and do so on technical grounds that would employ the equidistant method in light of relevant factors to reaching an equitable delimitation. Equidistance and Equity: The debate over the expansion of exclusive waters in the Eastern Mediterranean began in 2003 as the ROC was negotiating with Egypt on EEZ delimitation. Turkey’s reaction, in a letter to United Nations Secretary-General and published as a Communication in the Law of the Sea Bulletin stated: “Delimitation of the exclusive economic zone or the continental shelf in the Eastern Mediterranean, especially in areas falling beyond the western parts of 85 “Lebanon, Israel, UNIFIL discuss disputed maritime borders,” Daily Star Lebanon, August 18, 2011. http://www.dailystar.com.lb/News/Politics/2011/Aug-18/Lebanon-Israel-UNIFIL-discussdisputed-maritime-borders.ashx#axzz1lqazcX7t 86 “Asarta Proposed UNIFIL Mediatory Role in Demarcating Maritime Border between Lebanon and Israel,” Naharnet. July 21, 2011. http://www.naharnet.com/stories/en/10847 87 Asarta’s appointment as UNIFIL Commander ended on January 28, 2012. 88 “Maritime gas fued moves toward resolution,” Daily Star Lebanon. April 5, 2012. Available at: http://www.dailystar.com.lb/News/Politics/2012/Apr-05/169297-maritime-gas-feud-moves-towardresolution.ashx 39 longitude 32 12’ 18”, should be effected by agreement between the related States at the region based on the principle of equity.”89 Greece’s response came as that of the ROC’s patron and a party that has had longstanding (unresolved) differences with Turkey on maritime delimitation in the Aegean Sea. Rejecting this notion, Greece submitted a note verbale to the United Nations, published in the Law of the Sea Bulletin: "Greece, as one of the ‘related States at the region’, would like to reiterate its long-standing position that the delimitation of the continental shelf or the exclusive economic zone between States with opposite coasts (both continental and insular) should take place in accordance with the pertinent rules of international law on the basis of the principle of equidistance/median line. This is confirmed by widespread, long-standing State practice.”90 These statements reflect a debate that has persisted since the Conference negotiations that led to the final draft of the Convention concerning the method of delineating boundaries between states. The Truman Proclamation of 1945 (concerning the Continental Shelf) conveyed that the US would determine the boundary “in accordance with equitable principles.”91 Articles 74 (economic zone) and 83 (continental shelf) of UNCLOS III, as such, specified that “The delimitation of the economic zone/continental shelf between States with opposite or adjacent coasts shall be effected by agreement on the basis of international law, as referred to in Article 38 of the Statute of the International Court of Justice, in order to achieve an equitable solution.” ICJ rulings have been telling in this regard. The Court, in the 1993 Jan Mayen case, stated: 89 Information note by Turkey, concerning its objection to the Agreement between the Republic of Cyprus and the Arab Republic of Egypt on the Delimitation of the Exclusive Economic Zone dated 17 February 2003. Law of the Sea Bulletin. No. 54. Available at: http://www.un.org/Depts/los/doalos_publications/LOSBulletins/bulletinpdf/bulletin54e.pdf 90 Note verbale from the Permanent Mission of Greece to the United Nations dated 24 February 2005, Law of the Sea Bulletin. No. 57, 2005. Available at http://www.un.org/Depts/los/doalos_publications/LOSBulletins/bulletinpdf/bulletin57e.pdf 91 Policy of the United States with Respect to the Natural Resources of the Subsoil and Sea Bed of the Continental Shelf, September 28, 1945. 40 "That statement of an ‘equitable solution’ as the aim of any delimitation process reflects the requirements of customary law as regards the delimitation both of the continental shelf and of exclusive economic zones.”92 In the Eritria v. Yemen case of 1992, in which Eritrea was in fact not a Party to UNCLOS, but had agreed to submit to its authority, the Permanent Court of Arbitration stated: It is a generally accepted view, as is evidenced in both the writings of commentators and in the jurisprudence, that between 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. Indeed both Parties to the present case have claimed a boundary constructed on the equidistance method, although based on different points of departure and resulting in very different lines.93 (Par 131) As such, the court described the equidistance line as an important initial step for delimitation between opposite states, but then, to ensure equitable delimitation, conducted a proportionality test to adjust the median based on the nature and breadth of a state’s coast. The importance of proportionality as a criterion towards achieving equity has been repeatedly indicated by ICJ decisions. While states have employed proportionality, technical difficulties regarding the weight given to such calculations of proportions have kept the principle from being widely practiced in cases of bilateral negotiations.94 It appears that the majority of practice, though, both judicial and state, customarily begins by drawing an equidistance line95 from the baseline of the shore and 92 Case Concerning Maritime Delimitation in the Area Between Greenland and Jan Mayen (Denmark v. Norway). ICJ Judgement 1993. Available here: http://www.icjcij.org/docket/index.php?sum=401&code=gjm&p1=3&p2=3&case=78&k=e0&p3=5 93 nd Award of the Arbitral Tribunal: 2 Stage (Maritime Delimitation). October 1996 94 Yoshifumi Tanaka, Predictability and Flexibility in the Law of Maritime Delimitation (2006) Hart Publishing. p 179 95 The Libya-Malta Case ruling contended that this is not to be taken for granted as the only way to begin delimitation. This is true, and many ways have been devised by states and courts: strict equidistance, adjusted equidistance, equidistance with full-effect to islands or half-effect to 41 then proceeds to adjust for equity (since the 1958 UNCLOS, this is also known as the ‘equidistance-special circumstance’ method, which was employed for delimiting the territorial sea). Courts tend to widely use the concept, though there is no magic rule, and each situation and case is considered for an array of factors influencing the equitability of delimitation. Several factors and criteria have been employed to achieve equity and significant levels of objectivity and predictability have developed in determining the factors that could be relevant to any particular case. What is clear, however, is that, “the varied geographic situations addressed in the early cases… confirmed that, even if the pendulum had swung too far away from the objective precision of equidistance, the use of equidistance alone could not ensure an equitable solution in each and every case.”96 Further, the Judgment states that “jurisprudence has developed in favor of the equidistance/special circumstances method.97 Relevant Factors towards an Equitable Solution in the Region: a) “Land dominates the sea”: This principle of delimitation, widely accepted in case law, upholds that the state’s waters extend from the land sovereignty of a state.98 As in the case of Eritrea v Yemen, Courts have often had to resolve land disputes before moving on to delimit those concerning water rights. While Israel’s occupation of the Shebaa region is not pertinent, due to the area’s inland location, the lack of permanent land boundaries presents a considerable impediment. The Cypriot conflict, however, is one that is squarely within the realm of this basic factor of equitability. As sovereignty remains unresolved, the maritime boundaries are de facto considered undetermined until resolution of land issues. The most recent relevant judgment clearly describes the extent to which this concept, in its various facets, has become a principle of international law. The International Tribunal islands, perpendicular lines, parallels of latitude and meridians of longitude, enclaving islands, bisector, or politically-defined lines. 96 Dispute Concerning Delimitation of the Maritime Boundary between Bangladesh and Myanmar in the Bay of Bengal, Judgement, International Tribunal for the Law of the Sea, March 14, 2012. p. 72-73, par. 228. 97 İbid, p. 75, par. 238. 98 Jiyuyong, SHI (2010). 42 for the Law of the Sea, in its March 2012 judgment concerning the maritime boundaries between Bangladesh and Myanmar, recalls the North Sea cases when the ICJ stated: “‘the land is the legal source of power which a State may exercise over territorial extensions to seaward’ (North Sea Continental Shelf Judgment, I.C.J. Reports 1969, p. 3, at p. 51, paragraph 96).”99 b) Geographic factors are considered primary factors in delimitation and several must be taken into account: The consideration of regional characteristics and geography is significant. Since the Eastern Mediterranean is a semi-closed or closed sea, it is pertinent to account for that in the delimitation.100 The narrowness of the region’s length and the presence of a state island are complicating factors that call for regional cooperation in order to devise a maritime regime or negotiate a wide regional agreement on the criteria and principles to be employed in the region’s waters. Article 123 of UNCLOS, concerning closed and semi-closed waters, calls for cooperation on several matters. It however fails to address the stickier issues that are bound to come up such as cooperation on non-living resources or on delimitation. Determining the coastal area or the baseline. Some states, such as Turkey, Egypt, Syria, and Cyprus have long coastlines that are irregular in some parts. These countries have drawn straight baselines (at times in combination with normal baselines) to indicate indents in the coast and bays. The majority of states however, employ normal baselines to determine their waters, generally at the low-water line. The configurations and directions of adjacent coasts are important in determining the median. Bays, small islands off the coast, harbors, indents, and roadsteads are considered as belonging to the coast and affect the direction of the line determined by the parties.101 In the Eastern Mediterranean, two possible issues arise in this regard: the concave nature of the Gaza Strip’s coast and – to a lesser degree – of the coast between Syria and Turkey. As displayed in figure three, Gaza’s territorial seas are locked in. Further, the 99 Bangladesh/Myanmar. p. 61, par. 185 (2012). Handbook on the Delimitation of Maritime Boundaries, United Nations (2000). 101 Handbook on the Delimitation of Maritime Boundaries, United Nations 3-7 (2000). 100 43 area currently considered ‘territorial seas’ and allowed to fishing boats is an area of only 3 nm and is also under blockade and Israeli naval control.102 Such a case involving Egypt, Gaza, and Israel, for example, (or even one that would involve Turkey, Cyprus and Syria) would necessarily require adjustment due to the fact that “When in fact... there are three adjacent States along a concave coastline, the equidistance method has the other drawback of resulting in the middle country being enclaved by the other two and thus prevented from extending its maritime territory as far seaward as international law permits” (p. 682, par. 104).103 When using a single-boundary line (combining various maritime zones), geological and geomorphological characteristics of the continental shelf are important in determining the natural prolongation of the coast. However, studies have shown similar structures across the seabed of the southeastern Mediterranean, which would make this more costly and less relevant. Further, in the case of EEZ’s, the geological character of the earth is of little importance besides that of the existence of resources. In regards to the Continental Shelf, this is relayed in the ICJ ruling on the Libya-Malta case: The Court takes the view that, since the development of the law enables a State to claim continental shelf up to as far as 200 miles from its coast, whatever the geological characteristics of the corresponding sea-bed and subsoil, there is no reason to ascribe any role to geological or geophysical factors within that distance.104 As discussed briefly above, proportionality is critical to an equitable solution and central to our discussion concerning the eastern Mediterranean. Lebanon (~139 miles) and Israel (~168 m) have fairly comparable coastlines, thus eliminating the need to consider excess disproportionality. 102 Gaza fleet leashed by Israel, starved for fuel. Reuters. May 23, 2012. Available at: http://www.reuters.com/article/2012/05/23/us-palestinians-gaza-fishingidUSBRE84M0UX20120523 and Fishing without sea in Gaza. Oxfam Conflict and Emergencies. September 21, 2010. See at: http://blogs.oxfam.org/en/blog/10-09-21-fishing-without-sea-gaza 103 Delimitation of the Maritime Boundary Between Guinea and Guinea-Bissau. Decision of 14 February 1985, ILR, Vol. 77. 104 Libya v. Malta (1985) para. 36-41 44 Cyprus’ coastline is about 648 miles in length. However, the practice of only approaching the relevant coastline was ignored in the strict equitability of the negotiations that occurred from 2003 to 2010. Further, the claims of third parties were not considered in spite of Turkish opposition. Turkey’s Mediterranean coastline measures about 1,367 miles, a length that would realistically have an influence on any court decision that would encompass a proportionality test, creating a ration of over 2:1 between the Cypriot island (if considered as a whole) and Turkey. Such a test would determine “the relevant maritime area for the purpose of the delimitation of the exclusive economic zone and the continental shelf… [which] is that resulting from the projections of the relevant coasts of the party.”105 Further, Egypt’s coast, stretching about 650 miles and Syria’s approximately 119 miles would also be taken into consideration. Customary law must be considered when aiming for equitability. The concept of the relevant coast here describes the segment of the coast that generates projections overlapping with the projections emanating from the coasts of other relevant parties.106 This is of utmost importance in such a narrow maritime region as the determination of the relevant coasts would create a more just and stable maritime regime in the future and circumvent possible future disputes. In case Cypriot unity is achieved, the issue of proportionality would remain just as pertinent. Cyprus’ small coast must be dealt with creatively in delimiting boundaries with its neighbors, possibly through giving it partial effect at the relevant coast or through creating a corridor, particularly due to the short distance between Cyprus and continental states.107 Nonetheless, it must be noted that Cyprus, as a state island, nominally has the right to claim an EEZ of full effect. However, there have not been sufficient examples of such complex cases of a small island that is very close to another state’s long shoreline from one direction while maintaining a fair (but still relatively short) distance from other states from at least two other directions. c) Security, political, and economic factors: 105 Bangladesh/Myanmar (2012) para. 489. e.g. Tunisia/Libyan Arab Jamahiriya), Judgment, I.C.J. Reports 1982, p. 61, para. 75 107 See UN Handbook on Delimitation p 47-62; and Ahnish (1993) and Antunes (2003) for detailed discussion 106 45 Clearly, while the geographic issues stated above are of primary importance for a fair EEZ configuration in this tense maritime region, other issues need to be considered, particularly as bilateral agreements will foreseeably remain the main avenue for delimitation. In light of newly discovered natural resources, the delimitation of boundaries in an area known for modern day contentions will require economic, political, strategic, and security considerations. Dictators in the region have begun to be toppled, which will hopefully bode well for amiability and the prospects for regional stability over the long-term. However, several issues remain. The ROC now more likely intends to ensure security in its seas with concerns over a rising Turkish power and its opposition to ROC exploration – though not without legal basis – and EEZ delimitation. Lebanon also will likely be more concerned over its maritime security in light of Israeli threats and precedent, particularly considering that no powerful military is offering its capabilities to the multi-ethnic country. Israel, Turkey, Egypt, and Syria – though militarily advanced – no doubt also have security concerns. The navigability of the sea is critical for states with trade, naval, and marine interests. In times of increased tension, it would be conceivable for one state to lose its means of navigating towards the central or western Mediterranean. This is likely one of Turkey’s greatest concerns. For example, in light of current tensions, a hypothetical EEZ agreement between Greece and the ROC would create significant cause for concern on Turkey’s part (which would be highly difficult in any case considering the clear quadrilateral nature of the region between Greece, Turkey, TRNC, and ROC). A situation of heightened enmity between Turkey and the TRNC on one side and Israel, the ROC, and Greece on the other may carry risks for Turkish ships or planes (as recently experienced when the Syrian military shot down a Turkish plane that had briefly entered its waters). Even legitimate laws, such as UNCLOS III Article 73’s Enforcement of the Laws and Regulations of the Coastal State, may end up being abused for political concerns.108 Such abuse would become more likely if access to Turkey’s sovereign waters becomes encircled from the east via Israel (and, perhaps even Syria, if regime 108 According to Article 73, a state may board, arrest, or file judicial proceedings against [passengers and crew] within the EEZ. In essence, such a situation could lead to serious maritime incidents. 46 continuity is achieved) from the west via Greece and the ROC (though Cyprus has yet to determine its western EEZ). Turkey’s growing trade and naval interests would effectively be threatened by such a scenario in which its lengthy coast would be boxed in from the rest of the Mediterranean. In times of high tensions, such a scenario involving a maritime security incident caused by the narrowing of the high seas seas may well trigger a Turkish-TRNC response driving the Turkish Republic of Northern Cyprus to claim independence as is increasingly becoming a topic of discussion in both Turkey and the TRNC. The breakdown of the latest rounds of negotiations between the ROC and the TRNC has increased TRNC considerations of a ‘plan B’, particularly after September 2011, when the Republic of Cyprus began drilling amid ongoing talks109 The TRNC is already beginning to build relations and recognition via business and diplomatic interest by Turkey’s partners in the Organization for Islamic Cooperation (OIC) and other international venues such as the Islamic Development Bank. The OIC recently welcomed the TRNC’s bid to join the organization as TRNC President Derviş Eroğlu was hosted by Saudi Arabia for the first time. A bid for TRNC independence would essentially reduce the possibility of Turkish freedom of navigability in the seas being impeded.110 But as with most new state births, secessions, or annexations this would create a new source of instability in the region. Turkey’s concerns over the narrowing of its waters and the closing of the high seas are real and legitimate. A deal with the ROC (if a future inter-Cypriot peace occurs) could possibly alleviate some of these concerns by, for example, signing separate deals, one for a joint-Fisheries Zone and other navigation-related aspects and another for Exclusive Economic Zones. After all, while the size of populations is not considered in the determination of equitable solutions, historic economic claims are, and Turkey’s historic use of the Mediterranean for various economic activities cannot be denied. 109 “Time for Independence for Northern Cyprus,” The Journal of Turkish Weekly. November 2, 2011. http://www.turkishweekly.net/columnist/3541/time-for-independence-for-northerncyprus.html 110 “Turkish Cypriot President has First Talks with OIC,” Today’s Zaman. April 8, 2012. Available at http://www.todayszaman.com/newsDetail_getNewsById.action?newsId=276790; “TRNC to host Islamic Development Bank’s Forum,” April 11, 2012. Available at: http://www.aa.com.tr/en/s/45106--trnc-to-host-islamic-development-bank-s-forum 47 Further, the length of the Turkish coast vis-à-vis the parallel (or whole) Cypriot coast is significantly large, giving weight to Turkey’s concern that the current state of affairs is neither sustainable nor productive. Essentially, while Turkey could possibly gain energy deals if it comes to agreement with the ROC, it is far more likely that the ROC would choose to transport gas through Greece to the rest of Europe. Economically, the states of the Mediterranean are visibly guarded over their newfound (or not yet found) prosperity. However, an unstable area and an unsustainable maritime regime will considerably hinder the economic prosperity sought by all sides. The shared gas fields may create both economic and political opportunities if the states are all capable of recognizing that their economic prosperity is interconnected rather than forging alliances and creating new regional blocs. The fact that the ROC is currently planning to build a gas liquefaction terminal as well as an oil storage terminal would create a situation in which the ROC could transfer not only Israeli and Cypriot gas to Europe, but also serve as a alternative regional energy hub and a direct competitor with Turkey in regards to energy sources from the Arab Gulf, and southern and eastern Mediterranean coast.111 This, along with the energy, electricity, and security deals recently forged between the ROC, Greece, and Israel, and other issues discussed extensively throughout this paper could only work to harden regional divisions. As this axis entrenches itself, it is likely to provide unwarranted legitimacy to an occupation power in the Palestinian Territories as well as entrench divisions there and on the Cypriot island. Further, in terms of GDP, Lebanon and Gaza will gain greatly from these finds, and, as has been demonstrated repeatedly in world affairs, economic prosperity brings with it increased internal and external stability and security. As such, it is critical to neither undermine the growth of developing countries nor the pursuit of human and economic security of all. On the other hand, unilateral and bilateral initiatives to delimit will undermine that security and stability, particularly since unilateral maritime claims 111 “Cyprus President Lays out Vision as Energy Hub,” The Gulf Intelligence. June 26, 2012. Available at http://www.thegulfintelligence.com/Docs.Viewer/9f184de3-9e1a-492e-b4dce7868da207f0/default.aspx 48 and bilateral agreements do not automatically bind any other state that may technically make claims in the area as well. Conclusion: The extension and delimitation of national waters in the Eastern Mediterranean no doubt brings with it certain obligations, rights, and responsibilities. The natural wealth that may be pursued within those EEZs could provide regional energy security and present concerned states with both significant challenges and opportunities. At the crossroads of Europe, Asia, and Africa, the Eastern Mediterranean has long been an important region in terms of strategic considerations, culture, history, politics, and resources. Its rise as a central hub for natural resource transport between Europe, East Asia, the Persian Gulf, Central Asia, and Africa has increased its strategic import. Revolutions spread across the southern and eastern coasts of the Mediterranean in 2011 and, in 2012, continue to shake the political status quo towards an era of transformation and renewal. While some states face internal instability, those that maintained calm and stability internally have escalated the situation regionally due to hydrocarbon discoveries that so far amount to less than 0.5% of the world’s proven reserves. As such, in pursuit of prospective energy security in the future, regional states that are not threatened by revolt or experiencing democratic transformation have laid grounds for future disagreement and, possibly, instability. The pursuit of further EEZ delimitations for the primary purpose of hydrocarbon exploitation is bound to increase regional tensions and create rival blocks. The incongruous arrangement of states and the protracted nature of their disputes will lead to significant problems beyond that of regional stability if the extension of sovereign waters in parts of the Eastern Mediterranean continues without regional dialogue. The expansion of Exclusive Economic Zones today will serve to end the concept of ‘Common Heritage of Mankind’ in the region from which humanity and civilizations evolved and where sea trade was first born. It has become critical for the remaining regional states (namely Turkey, Syria, and Israel) to ratify the Law of the Sea in order to take advantage of the possibilities it brings 49 for resolving maritime disputes. All states have in fact de facto recognized significant aspects of the 1982 law and would gain from the ability to refer to an international court for advice. However, as referral to international courts necessarily require the approval of both or all relevant and affected states, a regional solution has become necessary to create a stable Mediterranean at a time when both its risk factors and its economic significance continue to increase. The world’s economies are growing more interlinked and interdependent. The Mediterranean, if its riparian states have the will, could comprise a prosperous system that will both provide its smaller states security and economic guarantees and all states the opportunity to reconnect societies and create sustainable growth through cross-cultural cooperation and the mutual ending of land disputes as well as water disputes on equitable bases. Further, a successful regional dialogue in the East Mediterranean will have the ability to influence international maritime law, providing room for new discussion on situations as complex as that, and which, without a doubt, require equity in order to be sustained. The International Court of Justice offers good advice from previous cases: - “In the case of the North Sea in particular, where there is no outer boundary to the continental shelf, it happens that the claims of several States converge, meet and intercross in localities where, despite their distance from the coast, the bed of the sea still unquestionably consists of continental shelf. A study of these convergences, as revealed by the maps, shows how inequitable would be the apparent simplification brought about by a delimitation which, ignoring such geographical circumstances, was based solely on the equidistance method.”112 (Para 89) - “Une méthode valable pour le Tribunal consiste à commencer par embrasser d'un coup d'oeil l'ensemble de la région de l'Afrique occidentale et à rechercher une solution tenant compte d'une façon globale de la forme de ses côtes. Il s'agit alors non plus de se limiter au littoral court, mais de considérer le littoral long. (A viable method [for delimiting] for the Tribunal consists of looking at the whole region of West Africa so as to seek a solution that would comprehensively take into account the shape of its coastline. It would then allow us to no longer limit our considerations to the short coastline, but to the long coastline.”113 (Para 108) 112 North Sea Continental Shelf Cases (Federal Republic of Germany/Denmark; Federal Republic of Germany/Netherlands). ICJ, February 20, 1969. 113 Delimitation of the maritime boundary between Guinea and Guinea-Bissau. Reports of International Arbitral Awards. 14 February, 1985. 50