By: Niall McMillan
On November 27, 2019, Turkey and Libya’s UN-recognized Government of National Accord (“GNA”) signed a Memorandum of Understanding (“Memorandum”) that redraws and disrupts the eastern Mediterranean’s maritime boundaries. The new boundaries outlined in the Memorandum expressly contradict the territorial claims of other eastern Mediterranean countries. Since the Memorandum’s signing, Cyprus, Egypt, Greece, the GNA’s rival government, the European Union (“EU”), and the United States have all come out in opposition to it, with Greece recalling its ambassador to Turkey and the EU threatening to impose sanctions on people and companies operating under its authority. Further complicating the situation, the Memorandum was signed in the context of a complicated political and economic environment in the region. The area subject to the Memorandum is the site of ongoing petroleum exploration projects by other countries, and there is an ongoing dispute between Turkey and the rest of the world over Turkey’s claim of the northern half of Cyprus.
The heated dispute is fueled largely by its broad legal implications. The Memorandum delimitates the boundaries of the two nations’ continental shelves and exclusive economic zones. Creating these boundaries also vests certain rights to both Libya and Turkey. For example, Article 77 of the U.N. Convention of the Law of the Sea (“Convention”) grants a continental shelf’s country the sovereign, exclusive right to explore and exploit the shelf’s natural resources, including oil and gas. Similarly, Article 56 of the Convention confers to countries the right to engage in and regulate economic activity within its exclusive economic zone.
Under the Convention, the Memorandum, if left in tack, would provide Turkey and Libya the right to exploit the vast natural gas and oil reserves recently discovered within the Memorandum’s boundaries. With other eastern Mediterranean countries already making plans to tap those resources, the Memorandum threatens to undermine those countries’ economic livelihoods. Turkey claims this will ensure that it obtains its fair share of the resources. Other countries, such as Egypt, have disparaged the deal saying it is “illegal and not binding or affecting the interest and the rights of any third parties. Greece, for its part, has called the Memorandum’s boundaries “fictitious, illegal and arbitrary.” In a letter to the U.N., Greece declared the Memorandum to be in violation of Greece’s sovereign rights under Article 121 of the Convention, which it claims grants it rights pertaining to continental shelves and exclusive economic zone around its island of Crete.
Greece and other nations have vowed to dispute the Memorandum in the International Court of Justice (“ICJ”), with Cyrpus already petitioning the ICJ to protect its offshore mineral rights. Turkey and the GNA dismiss these claims as unfounded, and all parties hope to reach an amicable settlement before going to court.However, Turkey is unwilling to recognize the internationally recognized government of Cyprus and that makes a deal with other Mediteranean countries unlikely.
At the ICJ, all sides face a difficult road to resolving the dispute. For example, if Greece is able to bring a petition for the ICJ to determine the legal effect of Greek islands that fall within the boundaries drawn by Turkey and the GNA, Greece would risk ceding control of determining its territorial boundaries to a disinterested third-party. In addition, past cases before the ICJ involving the Libyan coast have achieved mixed results, with the ICJ favoring equitable principles over bright line tests. As a result of a complicated political and legal landscape, the validity of the Memorandum is unlikely to be resolved any time soon. However, as Turkey plans to begin exploring the region’s natural gas reserves within the Memorandum’s boundaries, the legal effects of the Memorandum will be felt by all in the region soon.
Memorandum of Understanding between the Government of the Republic of Turkey and the Government of National Accord State of Libya, Art. I, Nov. 27, 2019 https://www.nordicmonitor.com/wp-content/uploads/2019/12/libya_MOU.pdf (hereinafter “Memorandum”).
Daren Bulter & Tuvan Gumrukcu, Turkey Signs Maritime Boundaries Deal with Libya Amid Exploration Row, Reuters(Nov. 28, 2019), https://www.reuters.com/article/us-turkey-libya/turkey-signs-maritime-boundaries-deal-with-libya-amid-exploration-row-idUSKBN1Y213I (outlining objections made by other coastal countries to the Memorandum).
Aykan Erdemir & Brenna Knippen, Turkey-Libya Maritime Border Deal Escalates Tensions in the Eastern Mediterranean, Found. for Def. of Democracies(Dec. 10, 2019), https://www.fdd.org/analysis/2019/12/10/turkey-libya-maritime-border-deal-escalates-tensions-in-the-eastern-mediterranean/.
See id.(“Tensions among [Turkey, Greece, and Cyprus] were already high due to Turkey’s exploration and drilling for gas within Cypriot territorial waters.”).
See id.(explaining that since 1974, Turkey has occupied the northern half of Cyprus).
Memorandum, supranote 1, Art. I.
U.N. Convention of the Law of the Sea, opened for signatureDec. 10, 1982, 1833 U.N.T.S. 397 (entered into force Nov. 16, 1994).
Id.at Art. 77, ¶ 1-2.
Id.at Art. 56.
Butler & Gumruku, supranote 2.
Letter from the Permanent Representative of Greece to the U.N.’s Secretary-General (Mar. 19, 2020) 1, https://undocs.org/en/a/74/758.
Mesut Hakki Casin, Analysis — Strategic, Legal Aspect of Turkey-Libya Deal, Anadolu Agency (Dec. 13, 2019), https://www.aa.com.tr/en/africa/analysis-strategic-legal-aspects-of-turkey-libya-deal/1673079;See Lefteris Papadimas, Greece Proposes World Court if Maritime Dialogue with Turkey Fails, Reuters(Dec. 29, 2019), https://www.reuters.com/article/us-greece-turkey-hague/greece-proposes-world-court-if-maritime-dialogue-with-turkey-fails-idUSKBN1YX08M (alteration in original) (quoting Greek Prime Minister Kyriakos Mitsotakis) (“But we should say clearly that if we can’t find a solution then we should agree that the one difference that Greece recognizes (over maritime zones) must be judged in an international body like the International Court of Justice (ICJ) in Hague.”).
See, e.g., Letter from the Permanent Representative of Greece to the U.N.’s Secretary-General (Nov. 13, 2019) 2, https://undocs.org/en/A/74/550 (justifying the Memorandum under articles 74(1) and 83(1) of the Convention and article 38 of the Statute of the International Court of Justice).
Id.at 2 (“As far as the western part of the island of Cyprus is concerned, [reaching a maritime border deal] would only be possible after a comprehensive political settlement.”).
Christos Rozakis, Is the ICJ the Answer or a Pipe Dream?, Int’l N.Y. Times – Kathimerini Eng. Ed.(Feb. 24, 2020), https://www.ekathimerini.com/249813/opinion/ekathimerini/comment/is-the-icj-the-answer-or-a-pipe-dream, (weighing the cost and benefits to Greece of bringing a ICJ action against Turkey).
Compare Continental Shelf (Libya /Malta), Judgment, 1985 I.C.J. Rep. 13 (June 3) (taking into account the disproportionate size of Libya’s coastline compared to Malta’s to recognize Libya’s broader claim to a continental shelf), with, Continental Shelf (Tunis./Libya), Judgment, 1982 I.C.J. Rep. 18 (Feb. 24) (taking into account the direction in which the coastlines faced to equitably determine the extent of the countries’ continental shelf claims)..