Greece is trying to expand its territorial waters to a 12 nautical mile radius based on the United Nations Convention on The Law of the Sea. However, neither the Convention nor the International Court of Justice nor the Arbitral Tribunal suggests doing so.
Yesterday, Greek Prime Minister Kyriakos Mitsotakis announced that Greece would increase their territorial waters up to 12 nautical miles in the Ionian Sea. While Mitsotakis said “We also keep our right to increase our territorial waters to 12 nautical miles, in other seas as well”, he also based his arguments on accordance with the United Nations Convention on The Law of the Sea (UNCLOS). Addressing the Sea of Islands (the Aegean Sea), where a 6-mile jurisdiction is still in effect, Mitsotakis naturally touched a nerve in Turkey. How does the Greek claim fit in with the Law of the Sea?
THE GREEK CLAIM
Article 3 of UNCLOS states that the maximum radius of the territorial waters is at 12 nautical miles. The subject of islands having territorial waters is regulated by Article 121. Article 121/2 of the Convention indicates that “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.” Greece argues that the maximum of 12 nautical miles of territorial waters for the mainland can also be applied to every island based on these two articles. In order to support this argument, they claim to be an “Archipelagic State”, and argue that all of its islands have total influence, and that the waters in between those islands are Greek water. In short, they claim that all the islands and waters belong to them except the 3 nautical miles radius left for Turkey by the Treaty of Lausanne.
First of all, it needs to be said that Greece is not an “Archipelagic State”. Article 46 of the United Nations Convention on The Law of the Sea says that an Archipelagic State is “a State constituted wholly by one or more archipelagos and may include other islands.” So, in order for a country to be an Archipelagic State, it has to be entirely or largely made up of islands. However, only 17% of the Greek land area is made up of islands, islets and rocks. Many of these do not have a human habitation or economic life. In this regard, the actual reference in the drawing of these lines should be the mainland.
Secondly, Article 3 of UNCLOS states, “Every State has the right to establish the breadth of its territorial sea up to a limit not exceeding 12 nautical miles, measured from baselines determined in accordance with this Convention.” However, both the customary law and the decisions of the Arbitral Tribunal suggest that there is not an overall rule that can be applied in every single case. In other words, Article 3 does not suggest that the territorial waters are 12 nautical miles, but rather that it can be extended up to 12 nautical miles if the geographical and legal conditions allow. However, Turkey has no obligation regarding Article 3, as it is not a party to UNCLOS in the first place. Given the exclusive situation of the Sea of Islands, the maritime delimitations in here must be made by mutual agreement. Both the Article 15 of the Convention and the customary law suggest in the presence of an exclusive circumstance, the islands have less influence or no influence with respect to the mainland when delimiting the territorial waters.
Again, in the Third Convention on the Law of the Sea can be understood from the statements in Article 121 that the allotting of territorial waters of the islands be evaluated according to these provisions in areas where there are no delimitation disputes, and the aim when making the article was to set a general rule in this subject. Therefore, according to Article 15 of the Convention, in the case of delimitation of territorial waters of the islands, if there are exceptions in the case, it is more likely that they possess limited to no influence.
GOVERNMENT PRACTICES AND DECISIONS
There are also numerous examples of delimitation of the territorial waters between two states where limited or no influence results from territorial islands. Even the recent agreements of Greece with Italy and Egypt do not alot total influence to their islands. It is necessary to pay attention to these following criteria when evaluating an islands’ situation:
– Which side the islands’ median line is on,
– how far away is it to the mainland,
– the island’s land area, economic life, and its situation before modernization,
– whether the island blocks the riparian state’s waterways,
– the principle of proportionality and equality in coastline length.
In addition to these approaches, some examples can be found where no marine jurisdiction has been allotted to islands, even when on the appropriate side of the median line. For example, no jurisdiction has been given for the British-controlled Lantau Island, which is very close to the Chinese coast in the 1899 delimitation agreement between the British Administration of Hong Kong and China. The same is true of Ven Island in the agreement signed in 1930 between Denmark and Sweden, even though the median line was on the correct side of the island.
The decision on the dispute between Bahrain and Qatar over the Island of Qit’at Jaradah, which is controlled by Bahrain, was described as an “unimportant element of the sea”, which is small by land area and is unsuitable for human inhabitation. While there are dozens of similar decisions by the International Court of Justice, Greece is not entitled to even a drop of water from a legal basis.
WHY ARE WE AGAINST 12 NAUTICAL MILES?
The Turkish territorial waters in the Black Sea and in the Mediterranean Sea are set at a 12 nautical mile radius, but any implementation higher than 6 nautical miles in the Sea of Islands was indicated to be “casus belli” with the decision taken in the parliament in 1995. There is a very fundamental reason for this: An implementation of 12 nautical mile radius in the Sea of Islands, which contains up to 3,000 islands, islets and rocks, would block all the cross points in the region and would confine Turkey to the Sea of Marmara. If sailing into the Mediterranean without going through Greek territorial water became basically impossible, the international open zones in the Sea of Islands would fall below 20% from current 49%
Although Greece claims to implement an Innocent Passage Regime in its territorial waters, the dispute is not limited only to this subject. First of all, the implementation of such a regime according to the principles of “ab initio” (from the beginning) and “ipso facto” (by the fact itself), is unacceptable. To put it more simply, while aircraft are allowed to fly over the international airspace above the open zones, the airspace above some territorial waters is under the sovereignty of the state that owns the territorial waters, and cannot possess a right to Innocent Passage. Again, while every nation has the freedom to fish in international zones, all the rights for fishing would be given to the country that holds the territorial waters. While all nations have the freedom to install submarine communications cables and piping in the international waters, any state except the owner of the territorial waters have no such rights. In addition, submarines passing through the territorial waters of a state cruise above the water and the owner state can suspend the Innocent Passage Right, if it deems necessary to maintain the national security of the owner state.
This means that the 12 nautical mile regime would be an absolute violation of Turkish sovereignty. It would be a takeover of the Turkish continental shelf. This is no different than a Greek invasion of Izmir.
HOW CAN THIS PROBLEM BE SOLVED?
The most basic principle in delimiting the maritime jurisdictions is that the sea is a subject to the land. First, the ownership of the island, islet and rocks must be clearly defined, then territorial waters, continental shelves, exclusive economic zones, airspace and the responsibilities of search and rescue must be clearly determined in the Sea of Islands. Greece has applied for the International Court of Justice on the issue, however, the court has rejected the request for the interim injunction, saying the dispute must be solved via bilateral agreements. After that, the dispute was suspended with the Bern Agreement signed between the two nations in 1976, and it was decided that no unilateral steps would be taken in this region. Greece broke the Bern Agreement in 1987 and initiated oil exploration activity 10 miles off the Thasos Island, which resulted in the Turkish Navy giving Greece a good lesson by taking control of the entire Sea of Islands only within 24 hours. The incident that took place in Imia/Kardak was humiliating for Greece. The landing of the Turkish commandos on an island, which they were supposed to protect, being informed who was on the island from the Americans, and failing to detect the Turkish submarines, resulted in the resignation of the Greek General Staff by the end of the day.
Therefore, the Greek demands possess no military, legal or historical basis. It is absurd for Greece, which has expanded its borders five times without even winning a war, to put a claim on islands which Turkey has conquered from either Venice or Genoa. The Greek demands are not negotiable.
For Turkey, keeping the status of the Sea of Islands is important to concentrate on its rights and interests in the Eastern Mediterranean Sea. Moreover, the Sea of Islands becoming a Greek lake is not only a concern for Turkey, but for all the Black Sea countries and all the other countries in the world who have a trade route through the international waters here.
The unique geography of the Sea of Islands will need a unique solution.