Cyprus Mail 30 August 2020 - by Alper Ali Riza
The International Court of Justice is the only way to resolve the dispute
Given the choice to go to war or go to law, most people would choose going to law every time. This is not just the choice of lawyers; it is also the preference of most soldiers with experience of the death and destruction wrought by war.
Stripped of all the propaganda surrounding the claims and counter claims between Turkey on the one side and Cyprus and Greece on the other over their continental shelves, the fact is that if asked the International Court of Justice (ICJ) would apply equitable principles taking into account all relevant circumstances and reach a fair and just result.
Equitable does not mean equal. It means fair and just. Ideally parties should seek to agree delimitation, but we all know that ain’t gonna happen. What they need to do is agree to have their differences resolved by the ICJ.
So the way forward is step by step: the parties to agree to ask the ICJ to help apply relevant circumstances in Turkey’s dispute with Cyprus first and see how we get on, before getting the parties to agree to refer the more complex exercise about the Aegean including the Greek island of Castellorizo just off the south west coast of Turkey.
Cyprus has a standing declaration agreeing to a reference if Turkey agrees. Greece likewise, but it excludes the extent and limits of her territorial sea, which means she will have to agree to a reference. Turkey has made no declaration so she would have to agree specifically to any reference to the ICJ
If a reference were made, the ICJ would apply known principles taking into account all relevant factors. Relevant factors are not what each side contends is relevant but what the ICJ accepts as relevant.
In the case of overlap in continental shelf relevant factors include the configuration of the coast of each of the parties and the disparity of coastal lengths in the context of the general geographical framework of the disputed area; the incidence of natural resources beneath the seabed – obviously if there is none then it’s all much about ado about nothing.
Continental shelf, unlike Exclusive Economic Zones (EEZs), is to do with rights to natural resources of the seabed and its subsoil – I was told, I think in jest, that this includes lobster but not crab or was it the other way round? No matter.
What we are talking about here is the right to exploit the wealth of the seabed and subsoil in the case of continental shelf, and all the sea’s bounty beneath and above the seabed in the case of EEZ, though freedom of navigation is unaffected.
An EEZ has to be claimed and where there is overlap between opposite or adjacent states it has to be agreed, which was why originally countries in enclosed seas such as the Mediterranean preferred the natural rights derived from their continental shelves automatically. I think Greece’s case in the Aegean is more to do with her territorial waters, which is part of sovereign territory per se.
An important relevant consideration between countries of approximately similar size is any special feature from which unjustifiable difference of treatment would result. For example the effect of a concave coast, or the location of islands of state A near the coast of state B; or the eccentric dispersal of islands, have all been used by the court as reasons for making exceptions in order to achieve an equitable outcome.
And so the list goes on including the incidence of natural resources and the principle of equitable access to the natural resources of the disputed area, navigational and defence and other security interests.
All the above are relevant considerations the ICJ would take into account, which I took from the late professor Ian Brownlie’s classic textbook on Principles of Public International Law in order to show that Turkey’s arguments would have some purchase if she agreed to refer her disputes to the ICJ.
For the purposes of delimitation of the continental shelves as between Turkey and Cyprus, the northern part of Cyprus has to be regarded as part of the geographic entity of the island state of Cyprus independently of the political problem on the island.
The constant refrain from Turkish political leaders is that Turkey has the longest coastline, that the claims of Cyprus and Greece are maximalist, that everyone has ganged up on Turkey to exclude her from what belongs to her, and that she will not compromise on what is hers, yet for all that no one is listening.
All Turkey’s protestations fall on deaf ears for a reason, and it is not because they have no purchase in law; far from it. I believe if Turkey were to agree to refer her disputes to the ICJ she will get an equitable result. No, the reason her claims fall on deaf ears is because of the cavalier way she conducts foreign policy – too pushy militarily and not agreeing to delineate equitably and peacefully through the ICJ.
On Cyprus for example the Turkish side, which includes the Turkish Cypriots, speaks with a fork tongue as regards the 1960 treaties and constitution of Cyprus. If Turkey is in Cyprus to re-establish the state of affairs created by the 1960 constitution, then the island must be viewed as one entity.
As I see it the TRNC is the weakest link in the Turkish case in this regard. The Turkish Cypriots declared UDI in the northern part of Cyprus and as luck would have it natural gas was discovered to the south of the island on the initiative of the RoC.
As we all know, you can’t have your cake and eat it. You can’t claim the north having abandoned the south and declared UDI, but when natural gas is found down south turn around and claim half a stake in it. What you do is sort the problem out fairly and equitably for a proportionate share as a community, which means equally as individual citizens as opposed to exorbitantly.
People must think in terms of intergenerational equity long term because here today gone tomorrow politicians have yet to grasp that in international relations we are not just an island people but also an island state in perpetuity.
Alper Ali Riza is a queen’s counsel in the UK and a part time judge
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