Published: 09 March 2020 Authors: Stefan Talmon and Mary Lobo
On 27 November 2019, the Governments of Turkey and Libya signed a Memorandum of Understanding (MoU) which purported to delimit the boundaries of the continental shelf and the exclusive economic zone (EEZ) of the two States the eastern Mediterranean Sea. The public disclosure of this document prompted protests from several other States, especially Greece and Cyprus, as the area that had purportedly been delimited between Turkey and Libya included sea areas also claimed by these two States as part of their continental shelf and EEZ.
The MoU established an 18.6 nautical mile (nm) maritime boundary between Turkey and Libya. It thereby denied the Greek islands in the eastern Mediterranean, including most prominently the large islands of Crete and Rhodes, as well as Cyprus, any continental shelf or EEZ and restricted their maritime entitlements to a 12nm territorial sea.
In a first reaction to the MoU, the spokesperson for the Federal Foreign Office declared on 11 December 2019:
“We call on Turkey and Libya to respect the sovereignty and sovereign rights of all EU Member States and to pursue maritime boundary delimitation in accordance with the applicable international law. Our position is clear: maritime boundary delimitation – and this, of course, also applies to the Mediterranean – must be effected in accordance with the applicable law of the sea and in particular with the participation of all parties to the conflict or coastal States […] concerned.”
Asked to provide a legal assessment of the MoU, the spokesperson replied:
“We know of the agreement from statements in the press. That is why I have referred to general principles of international law that are, in principle, also applicable to this situation in the Mediterranean and the coastal States concerned. From here, we cannot undertake a legal examination of an agreement to which we are not a party and of which we do not know the details.”
However, only the next day, Germany was much more forthright in its position on the Turkish-Libyan MoU. After a meeting in Berlin at the State Secretary level in the context of the Greek-German Bilateral Action Plan, the two States issued a joint communiqué which stated:
“Both sides stressed that the Turkey-Libya Memorandum of Understanding on the delimitation of maritime jurisdictions in the Mediterranean Sea infringes upon the sovereign rights of third States, undermining Greek sovereignty and sovereign rights in the Aegean and Eastern Mediterranean and contravenes the Law of the Sea and therefore it cannot produce any legal consequences. The German side expresses its full solidarity with Greece regarding these actions by Turkey.”
An almost identical statement found its way into the European Council conclusions adopted in Brussels on the same day.
On 17 January 2020, the Scientific Research Services of the Federal Parliament issued a legal opinion entitled “International Law Assessment of the Turkish-Libyan Agreement on the Delimitation of their Maritime Spheres of interest in the eastern Mediterranean” which concluded that the document – despite its designation as MoU – constituted a binding international treaty in terms of the Vienna Convention on the Law of Treaties (VCLT) which violated the maritime zones of the Greek islands recognized under customary international law. The legal opinion ended: “The MoU violates the customary international law of the sea and, in conclusion, appears as an inadmissible treaty at the expense of a third party (Article 34 VCLT).” Asked to comment on this opinion the spokesperson for the Federal Foreign Office stated on 24 January 2020:
“We do not comment here on the opinions of the Federal Parliament. […] I would like to refer you to the conclusions of the European Council on 13 December 2019. There, it says:
‘The Turkey-Libya Memorandum of Understanding on the delimitation of maritime jurisdictions in the Mediterranean Sea infringes upon the sovereign rights of third States, does not comply with the Law of the Sea and cannot produce any legal consequences for third States.’
This is a position whose adoption we naturally participated in, which fully reflects our view and which we subscribe to. If I understand correctly the passage from the opinion, which have become publicly know, this position and these passages coincide.”
The Federal Government also reiterated its position on the Turkish-Libyan MoU in response to a parliamentary question. On 29 January 2020, the Minister of State at the Federal Foreign stated:
“According to the Convention on the Law of the Sea, and also according to customary international law, a mutually agreed solution taking into account the individual circumstances of the case and equity should be sought when delimiting sea areas between States with opposite or adjacent coasts. All affected coastal States are to be involved in this process. This also applies to island States and continental States with offshore islands. […] Without prior consultation or other involvement of the neighbouring coastal State Greece and the delimitation of the sea area by agreement, the Memorandum does not meet the requirements under international law.”
Germany and the EU in fact adopted the Greek position that the MoU infringes upon the sovereign rights of third States; that is, Greece and Cyprus; contravenes the law of the sea; and cannot produce any legal consequences for Greece. In political terms, it is not surprising that Germany as a sign of European solidarity aligned its position with that of its fellow EU Member State. However, legally the matter is more complicated.
The least controversial aspect of the German position is the conclusion that the MOU does not have any legal consequences for third States. This is in line with general principles of international law. Irrespective of its designation as an MoU, the document meets the requirements of a treaty in terms of Article 2(1)(a) of the VCLT. This becomes clear from the text of the MoU, which speaks of “Parties”, “entry into force”, and “agreement” as well as the fact that the MoU is to be registered with Secretariat of the United Nations pursuant to Article 102 of the UN Charter. As a treaty the MoU cannot be binding on third States without their consent.
The statements that the MoU infringes upon the sovereign rights of third States and contravenes the law of the sea are more controversial, and both Libya and Turkey have publicly defended the conclusion of the MoU, and have explained their legal position in letters to the United Nations. According to the United Nations Convention on the Law of the Sea (UNCLOS) and corresponding provisions of customary international law, coastal States have “sovereign rights” in their EEZ and over their continental shelf for the purpose of exploring and exploiting their natural resources. The legality of the Turkish-Libyan MoU thus hinges, above all, upon the question of whether the Greek islands in the Aegean and eastern Mediterranean are entitled to their own continental shelf and EEZ. Article 121 UNCLOS provides in the relevant parts:
“2. Except as provided for in paragraph 3, the territorial sea, the contiguous zone, the exclusive economic zone and the continental shelf of an island are determined in accordance with the provisions of this Convention applicable to other land territory.
3. Rocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf.”
Crete, Rhodes and most other relevant Greek islands in the Aegean and eastern Mediterranean are not just rocks but fully-fledged islands in terms of Article 121(2) UNCLOS and are thus entitled to an EEZ and continental shelf. However, neither Turkey nor Libya is a party to UNCLOS. This is of no relevance in the present case as the International Court of Justice (ICJ) found that Article 121(2) UNCLOS reflected customary international law. As such it would also be opposable to Turkey and Libya, unless it could be shown that these two States qualify as persistent objectors to the rule that islands, like continental land territory, are entitled to an EEZ and continental shelf. While the notion that islands are entitled to a continental shelf can already by found in the 1958 Geneva Convention on the Continental Shelf, this is of no assistance in the present case, as neither Turkey nor Libya are parties to this Convention either. Libya has never made public its objection to islands enjoying an EEZ and continental shelf. On the contrary, in the Libyan-Malta Continental Shelf case before the ICJ, the country agreed “that the entitlement to continental shelf is the same for an island as for mainland,” and insisted that “no distinction falls to be made between an island State and an island politically linked with a mainland State.” It contended, however, that “an island may be treated in a particular way in the actual delimitation” of overlapping maritime areas between a mainland and an island territory.
Turkey, on the other hand, has always made clear its objection to the regime of islands as set out in Article 1(b) of the Geneva Convention on the Continental Shelf and Article 121(2) UNCLOS. There are more than 3,000 Greek islands in the Aegean and eastern Mediterranean Sea, several of which lie only a few nautical miles off the Turkish coast. If each of these islands were given a full territorial sea and a continental shelf and EEZ, the Turkish coast would have almost no continental shelf and EEZ of its own. Against this background, Turkey unsuccessfully argued for a different regime of islands during the Third United Nations Conference on the Law of the Sea (1973-1982). Its opposition to Article 121(2) UNCLOS led it – as one of only four States – to vote against the adoption of the text of UNCLOS in April 1982. Turkey also never signed UNCLOS and voted against General Assembly resolutions on “Oceans and the law of the sea” which portrayed UNCLOS as having “a universal and unified character” and being “the only legal framework regulating all activities in the oceans and seas.” Greece has claimed that the Turkish position is contradictory as Turkey “has used Turkish islands and rocks as base points for the construction of the purported ‘equidistance line’” between the Turkish and Libyan coasts in the MoU. However, this is not necessarily the case, as there is a difference between claiming or accepting that islands have their own continental shelf and EEZ and using islands and rocks within 12nm of the mainland coast as base points for construing the equidistance line between two mainland coasts. In the latter case, islands and rocks are treated no different from low-tide elevations situated wholly or partly at a distance not exceeding the breadth of the territorial sea from the mainland. Islands and rocks may not be treated less favourably than low-tide elevations. A good case can therefore be made that Turkey qualifies as a persistent objector to the customary international law regime of islands as reflected in Article 121(2) UNCLOS.
While Turkey can be considered a persistent objector, Libya cannot. The fact that Libya is bound by the customary international law regime of islands does not automatically make the MoU illegal or invalid. As the regime of islands has not obtained the status of jus cogens, States can “contract out” of that regime. However, any such agreement between two States can modify customary international law solely between them and may not affect the enjoyment by other States of their rights or the performance of their obligations under customary international law. Germany rightly pointed out that the MoU cannot produce any legal consequences for third States. The MoU itself in Article IV(3) foresees “negotiations aimed at the delimitation of [a Party’s] Exclusive Economic Zone with another State,” thus making it clear that the MoU does not make any determination with regard to the EEZ and continental shelf of other States. It consequently does not affect the enjoyment by Greece of its rights under the customary international law regime of islands. Libya would only be violating customary international law if, on the basis of the MoU, it denied Greece any EEZ or continental shelf generated by the Greek islands in the eastern Mediterranean.
The fact that Turkey and Libya delimited their potentially overlapping EEZ and continental shelf claims without prior consultation or involvement of Greece does not violate international law. There is no legal basis for the requirement stipulated by the German Federal Government that “all affected coastal States are to be involved in this process” of maritime boundary delimitation. Articles 74 and 83 UNCLOS, which are reflective of customary international law, provide only that the delimitation of the EEZ and continental shelf between States with opposite or adjacent coasts shall be effected by agreement. These provisions do not require that, in case of three or more States with potentially overlapping claims, all delimitations are to be agreed upon at the same time and in the same agreement. On the contrary, State practice shows that in such situations maritime zones are delimited in a number of bilateral agreements. This process is not prejudicial to the rights of the other coastal State not party to an agreement, as these bilateral delimitation agreements are not binding on third States.
The Libya-Turkey MoU may be considered a provocative and unfriendly act towards Greece. As a matter of fact – and politics – it may be undermining Greek sovereignty and sovereign rights in the Aegean and Eastern Mediterranean. As a matter of international law, however, it is not illegal. In particular, the MoU as such does not infringe upon the sovereign rights of Greece and does not violate the law of the sea for the simple reason that it cannot produce any legal consequences for third States.
