The Cyprus conflict is rapidly spreading to the seas. Clashing cartographies and ownership claims have begun circulating through the mass media. Natural-gas-speak is in the air. Accusations, protestations, veiled and naked threats abound. Noble Energy has begun drilling in Cypriot Sea Block 12 (south of the island), renamed Aphrodite, by positioning an extraction platform that goes by the name of Homer. Political reality is intertwined with mythology; epic narratives are about to unfold. Politicians are preparing themselves to do heroic deeds for ‘our’ sake and once again take up the role of ‘our’ mythical guardians.
Sovereignty games have always entailed male bravado and machismo. From Jean Bodin to Ronald Reagan, the exercise of sovereignty has been symbolically narrated in terms of the paramountcy of male authority and what men can and should be allowed to do – and get away with – in everyday life. For Bodin, the 16th century theorist of sovereignty, ‘the absolute and perpetual power’ of the sovereign was akin to that ‘admirable’ power which the Roman pater familias had over his slaves, children and wife. For Reagan, the Cold War icon and ‘great communicator’ of the 20th century, the violent exercises of state sovereignty were justified and aestheticized as a playful exchange of male adolescents. ‘Oh well, boys will be boys!’, he remarkably understated, when informed about the Israeli air strikes against the Iraqi reactor in 1981.
Cynical tautologies of this kind are not only puzzling but dangerous. They leave the manly, arbitrary and abusive power of the state unquestioned. They do this by avoiding reflection on the main feature of modern state sovereignty, namely its ability to use the law to go beyond the law or take exception from the law, including the decision to define the enemy and justify the use of force against him. Or to put this in more simple (Reaganian) terms, it would be like saying that the boys can do what they fancy, freely engage in their neighbourhood fights and harassments while still – and that is the important thing – being able to employ the law to justify their actions. What is legal, what is just, is what the macho boy does and desires.
If we were to apply these untimely meditations to the current situation in Cyprus, one can easily picture the big boys and small boys fighting in the neighbourhood. Clearly the physical and bullying abilities of the big and small boys differ, yet machismo in various degrees characterizes all. Big boy Turkey parades its naval gadgets in the Eastern Mediterranean to warn and intimidate the smaller boy Cyprus not to exploit its seabed unless and until the big boy says so. Small boy Cyprus cavalierly rejects EU calls for negotiation and ultimately adjudication by the International Court of Justice (ICJ), recklessly conflating its lawful right to exploit its seabed (which no one apart from Turkey questions) with its obligation to delimit its Exclusive Economic Zone (EEZ) west and north of the island as well. The big boy is unhappy about the call for adjudication anyway, and bitterly complains, given its physical ability to enforce what it considers to be ‘right’ and ‘just’, which makes it even more perplexing to understand why the small boy dismisses such procedure. In short, political machismo is in full display over this issue, with those speaking in the name of sovereignty making totalizing pronouncements whilst selectively using the law and legal principles, and erasing the inconvenient provisions, nuances and due processes of international law.
Two issues are especially problematic. First, how most politicians and the mass media in Cyprus and Turkey popularly treat the EEZ as if it were an area over which coastal states have territorial sovereignty, i.e. of the same kind they have over land. Nothing is further from the truth. On the contrary, the historical development of the concept of the EEZ was an explicit attempt to obviate the territorial sea claims of certain states up to 200 nautical miles (mostly Latin American countries, which arbitrarily re-appropriated the safety zone established under the 1939 Panama Declaration for neutrality during the WW II). In the 1972 Declaration of Santo Domingo, however, 15 Caribbean states drew a distinction between ‘territorial sea’ and ‘patrimonial sea’ – in the ‘territorial sea’ states could have full sovereignty whereas in the ‘patrimonial sea’ states could only have economic rights, with its delimitation occurring through peaceful means and adjudication, not through declaration and appropriation.
Significantly, the Santo Domingo Declaration was made a year before the beginning of the negotiation of the new Law of the Sea Convention (1973-1982), and it effectively divided the Latin American states between the ‘territorialists’ and the ‘patrimonialists’; basically between those aspiring for hard masculinity (i.e. declaration of sovereignty and appropriation up to 200 nautical miles) versus those promoting soft masculinity (i.e. that a coastal state has limited rights up to 200 miles and it has to negotiate with others where and how to exercise these rights). In the 1982 Law of the Sea Convention, soft masculinity in the form of the EEZ won the day. The Convention clarifies that states possess and can exercise sovereignty only over their Territorial Sea – up to 12 miles; whereas over their EEZ (up to 200 miles) and Continental Shelf (under certain conditions up to 350 miles) they can only have ‘sovereign rights’.
The point that coastal states only have ‘sovereign rights’ – not ‘sovereignty’ – over their EEZ is not pedantic legalism but a deliberate insertion by the drafters of the Convention (a Convention which took 9 years to painstakingly negotiate). It was calculated to deflate unilateral and totalizing territorial claims over the sharing of EEZ resources that could lead to interstate conflict, which the soft ‘patrimonialists’ feared and we currently face in the Eastern Mediterranean. The EEZ was thus designated as a ‘specific legal regime’ where the ‘rights and jurisdiction’ of the coastal state and the ‘rights and freedoms’ of all other states ‘are governed by the relevant provisions of this Convention’ and therefore states in exercising their rights must ‘act in a manner compatible with the provisions of this Convention’ (Articles 55 and 56). That is to say, they are granted rights of exclusivity and exploitation by the Convention beyond their territory on condition that they adhere to the provisions of the Convention and behave in a compatible manner to it. The EEZ constitutes an entirely separate regime outside the sovereign state, beyond Land Territory and Territorial Sea, and where states only have specific competencies. Although states have exclusivity over their EEZ under no circumstances can they treat it as a regime of territorial sovereignty.
The second issue over which there seems to be considerable misunderstanding by politicians and the mass media in the region concerns the delimitation of a coastal state’s EEZ. They wrongly assume or deliberately misinform the public that EEZ can be unilaterally delimited. That is simply illegal, if there are opposite or adjacent coastal states at less than 400 nautical miles. In fact, according to the 1982 Law of the Sea Convention coastal states have a special obligation to delimit the EEZs of opposite or adjacent coasts (Article 74) and cannot avoid that obligation (indeed the Republic of Cyprus duly followed that obligation with Egypt, Israel and Lebanon - the latter agreement yet to be ratified; moreover the Republic of Cyprus in acceding to the Convention has accepted the settling of disputes by international arbitration or adjudication, if agreement with the neighbouring coastal states proves elusive).
The simple matter is that an EEZ between opposite or adjacent coastal states legally exists only when and where it has been duly delimited, either by bilateral agreement or through binding international adjudication. The principle that guides delimitation under the 1982 Convention is that of an ‘equitable solution’ (Article 74), not merely a question of equidistance from the coastal baselines of states. As mentioned, the Republic of Cyprus has duly delimited its EEZ over its south and south-eastern seas (by bilateral agreements with Egypt and Israel, and potentially Lebanon), and that is why there is no legal basis for Turkish protests concerning its right to drill in Block 12 (Aphrodite). In this area, Cyprus has fulfilled its obligations to the Convention so as to exercise its ‘sovereign right’ to exploit the specific seabed and thus there is nothing to negotiate or adjudicate over.
However, over the western and northern seas of the island, i.e. the seas adjacent to the southern coast of Turkey, neither Cyprus nor Turkey can legally exercise their ‘sovereign right’ over the EEZ that they both have. They can make political claims as to the extent of the EEZ but maps that have been circulating showing the ‘Cypriot’ and ‘Turkish’ EEZs have no legal standing whatsoever in international law. They are simply used by both sides for irresponsible political statements, bad public diplomacy and highly dangerous brinkmanship.
The procedure under the 1982 Law of the Sea Convention is very clear. States with adjacent or opposite coasts have to seek a negotiated agreement over the limits of their respective EEZs ‘within a reasonable period of time’. In lieu of a negotiated settlement, then they have to resort to Part XV of the Convention (Articles 279 -299), which includes compulsory acceptance to resort to binding adjudication, among other options, to the International Tribunal for the Law of the Sea or the International Court of Justice (though, there is a possibility under Article 298 of a state opting out of this compulsory procedure, if it makes a declaration upon signature or accession to the Convention and meets certain other conditions for conciliation).
Unfortunately and irresponsibly, over this issue both Cypriot and Turkish governments flag their undisputed ‘sovereign right’ (to an EEZ in the case of Cyprus or Continental Shelf in the case of Turkey) in their adjacent seas and bypass their obligation to duly and properly delimit the area within which that ‘sovereign right’ ought to be exercised. This conflation of issues is totally counterproductive, fuels tension, and serves as an exemplar of hard masculinity. Also counterproductive is the deliberate mixing from the Turkish side of the ‘sovereign right’ of the Republic of Cyprus to exploit its resources with the position that the Greek-Cypriot community cannot be the exclusive beneficiary of these resources as the Republic of Cyprus is officially bicommunal. The Cypriot government seems willing to consider the latter view (sharing in principle the benefits with the Turkish Cypriots) and rightly rejects the former (negotiating or suspending its sovereign right to exploit its EEZ).
There is a paradoxical logic and great irony in the official Turkish discourse. Turkey that has occupied the northern part of the island since 1974 and sponsored a secessionist and unrecognized state there since 1983: (a) demands the resources share of the Turkish-Cypriot community that seceded from the Republic of Cyprus, from within the sea area that the seceding community does not control or even claim; (b) does not recognize the same right of the Greek-Cypriot community over the share of resources under the de facto control of the TRNC with which Turkey has signed an illegal maritime agreement. If the Turkish-Cypriot community has a legal share in the Republic of Cyprus (being a constituent community when it was established), then the legality of the Republic of Cyprus and its ‘sovereign right’ to exploit its resources in the areas that it controls – and even in the areas currently controlled by the Turkish-Cypriot authorities – cannot be disputed.
In sum, in the current debate, yet again, the sovereigns and politicians are invariably using the law for their escapades while deliberately being selective or not paying due regard to the legal provisions that they are employing to persuade us that they are right. If I were asked to recommend a way to defuse the current crisis, I would suggest the following
- The Republic of Turkey and the
Republic of Cyprus should start immediate negotiations for the maritime
delimitation of their respective EEZs and the Greek-Cypriot and Turkish-Cypriot
communities to discuss the share they should have from the exploitation of
any natural resources from the Cypriot EEZ on condition that if there is no agreement within a specific timeframe
in either or both cases, then the matter in dispute to be taken before
the International Court of Justice (ICJ) for a binding decision.
- If the case goes to the ICJ, I would ask the Court for the following: (a) to delimit the maritime border between Turkey and Cyprus west and north of the island in its entirety; (b) to determine the share that the Turkish Cypriots should get from any exploitation of natural resources at sea; and (c) whether they should get this share before or after the settlement of the Cyprus Problem.
I understand that certain issues and qualifications need to be taken into account:
- I realize, for example, that Turkey has not signed the 1982 Law of the Sea Convention. Interestingly, Turkey is referring to its provisions and in any case the substantive rules of the Convention have become customary international law and thereby binding also for states that have not signed and ratified it. Moreover, as painful as this may sound to some ears, there is no other way that Turkey can legally delimit its southern EEZ than by agreeing the extent of its maritime border or adjudicating it with the internationally recognized Republic of Cyprus. Unless Turkey does that it cannot legally exploit its southern seabed resources beyond its Territorial Sea or sign agreements with foreign companies that have a secure legal basis; neither can the Republic of Cyprus do that in the adjacent seas to Turkey, i.e. west and north of the island).
- I also realize that Turkey prefers to refer to Continental Shelf delimitation rather than EEZ delimitation, assessing that the former will be in its favour if somehow the 1958 Continental Shelf Convention applied (but I think this is not legally sustainable following the 1982 Law of the Sea Convention, whereby EEZ claims incorporate and can supersede the Continental Shelf ones, see for example the rationale in the Case of Libva vs. Malta before the ICJ in 1985, and they were notably delimiting Continental Shelves in that case. The natural prolongation of the Continental Shelf matters in claims over 200 up to 350 nautical miles from each adjacent coast; yet this could not be applied in the Eastern Mediterranean when the distance between the Turkish and Egyptian coastal baselines is less than 400 nautical miles and the other interested parties in the region have already claimed and bilaterally delimited EEZs).
- I also realize that Turkey does not recognize the Republic of Cyprus (but the Republic of Cyprus has a locus standi before the ICJ, and as a matter of fact there have been international legal cases between Cyprus and Turkey before, namely interstate cases before the European Court of Human Rights. Given that there are clear common interests in legally delimiting their respective EEZs and also, presumably, common interests in maintaining international peace and security in the region, this is the rational and procedurally correct way to go, if there is no negotiated agreement. Note that compulsory referral to the ICJ is also something that the Security Council can call upon UN member states to accept, under Article 33 of the UN Charter).
- Finally, I realize that the Republic of Cyprus has already begun exploratory drilling in an area where it has duly delimited its EEZ, exercising its sovereign right, though it has not delimited its EEZ in areas adjacent to Turkey or settled the other issues mentioned above (but there is still enough time to negotiate pending issues, and if there is no agreement, commit in advance to refer the case before the ICJ and make its ruling binding, and if necessary retroactive).
I believe that this is an effective way to deflate the dangerous political rhetoric and calm down the sovereignty anxieties and excesses that are very likely to intensify if this maritime issue remains unresolved. If properly managed, it could even be an opportunity for intercommunal and regional cooperation that is urgently needed, bringing ‘unity at sea’, supporting peace settlement efforts in Cyprus and leaving open the possibility of reunification – if not for current, at least for future generations – rather than cementing partition. Perhaps, even the boys may grow up and be boys no more, or no less publicly exposed as the untrustworthy, hypocritical and insecure males that do not deserve to lead us.
This article is based on a speech delivered at the Home for Cooperation, UN Buffer Zone, Nicosia, on 29 September 2011.