The Aegean Sea: A Crisis Waiting to Happen

By Charles Maechling

Since the entry into force in 1994 of the U.N. Convention on the Law of the Sea (LOS), these interrelated issues have reached critical mass. The LOS Convention, now ratified by 109 states, updates and supersedes earlier conventions on the territorial sea, high seas, continental shelf, and living resources; it also codifies other areas of customary international law. Its navigation articles, accepted as international law even by non-signatory nations—including the United States—authorize a territorial sea of up to 12 miles from the coast. In fact, President Ronald Reagan in 1988 authorized extension of the U.S. territorial sea from 3 to 12 miles. Within this area, the coastal state has all the rights of sovereignty, and these rights extend to the air space above and the seabed below.

Both Greece and Turkey remain committed to a six-mile territorial sea in the Aegean, although Greece—which signed the Convention in 1982 and ratified it in January 1995—maintains that since the Convention's entry into force it has had the right under international law to extend to 12 miles whenever it chooses, and its parliament passed a resolution to this effect at the time of ratification. Turkey, however, refuses to adhere to the Convention. It repeatedly has warned that if Greece unilaterally goes beyond six miles it will "take all steps necessary to protect its interests," including going to war.

The crux of the problem is geography. There are nearly 2,400 Greek islands in the Aegean, and the island groups stretch to Turkey's Anatolian mainland. Each of the islands has its own territorial sea, which even with the six-mile limit, often links up with those of its neighbors. Under the six-mile limit, relatively narrow strips of international waters wind through the islands and provide high-seas passage between the Mediterranean and the Dardanelles, the Black Sea, and Turkish ports in Europe and Anatolia. An extension to 12 miles would give Greece 72% of the Aegean, leave Turkey with only 9%, and reduce Aegean international waters to 19%. It would close off nearly every high-seas passageway and turn the Aegean into a Greek lake, with similar consequences for air space.

The LOS Convention does provide important exemptions from territorial sea restrictions. It creates a right of innocent passage, which allows naval and merchant vessels of all nations to make expeditious transits through a coastal state's territorial waters, provided they comply with certain conditions. Warships may not engage in a list of proscribed shipboard activities, including weapons exercises, launching of aircraft, and intelligence collection; submarines must travel on the surface. Merchant vessels are subject to the coastal state's police, safety, and environmental regulations.

Less burdensome are the new categories of transit rights applicable to passage through international straits and sea-lane passage through qualifying island archipelagoes, which are defined as not being extensions of the mainland. The U.S. position is that the passages between Greek islands that are international waters qualify as international straits and are therefore exempt from innocent-passage restrictions. Turkey and other maritime nations take the same view.

Raising the stakes of the present controversy over the territorial sea are five other areas of contention First, and directly related, is ownership of small islets, mostly uninhabited and in close proximity to the Turkish mainland. This came to a head in January 1996, when a Turkish freighter briefly ran aground on the uninhabited islet of Imia—Kardak to Turkey. There ensued a competitive raising of national flags and circling of national patrol boats before both sides backed off under international pressure. Ownership of islets is in some cases dependent on, and in other cases determinative of, the boundaries of territorial waters.

Of much greater consequence is the deadlock over the boundaries of the Aegean continental shelf, with its undisclosed oil and mineral resources. The LOS Convention defines the continental shelf as the natural prolongation of land territory out to the edge of the slope to the ocean floor or 200 nautical miles. With the circumambient shelf of each island included—as Greece insists—Greece would control most of the Aegean continental shelf. Turkey contends that pending overall resolution of the continental shelf boundary question, islands should be excluded; and several times in the 1970s and 1980s, it sent a survey vessel to the North Aegean to look for offshore oil deposits, though taking care to stay outside Greek territorial waters. Its position is that the Aegean is a special case, an enclosed or semi-enclosed sea as defined by the Convention, and that delimitation of the continental shelf should be effected by negotiating a north-south dividing line roughly down the middle, with the exact configuration to be determined by equitable considerations.

Related to the continental shelf issue is the application of the Convention's new exclusive economic zone (EEZ). Under the Convention each coastal state is given a 200-mile EEZ that follows the configuration of the coastline, islands included, and encompasses exclusive exploitation and conservation rights to the zone's living resources. The EEZ does not, however, convey sovereignty beyond the limits of the territorial sea. Applied to the Aegean, the EEZ articles produce the same pattern of overlap as the continental shelf articles. The result, in the Greek view, is that most of the Aegean's fish stocks and other living resources belong to Greece. Turkey maintains that an equitable delimitation of the zone should be reached through negotiation.

Another point of contention is territorial air space. In 1931, Greece proclaimed a ten-mile territorial air space around its Aegean islands, four miles beyond the six-mile sea limit, asserting a need for a wider buffer zone against enemy air attack. The 1982 LOS Convention fixed the breadth of territorial air space as the same as the territorial sea, with the same degree of coastal state sovereignty. Neither Turkey nor the United States has ever recognized the ten-mile extension, and Turkey makes a policy of periodically challenging it with flights of fighter aircraft through the four-mile strip.

A fourth issue is civil air control over Aegean flight routes. In 1952 the International Civil Aviation Organization decreed that the boundaries of flight information regions (FIR), which provide routing services to air carriers, must be consistent with territorial sea boundaries. On this basis, civil air control in Aegean air space was ruled to fall within the Athens flight information region, and NATO flights now conform to this ruling. Turkish military aircraft do not file flight plans with the Athens FIR on the ground that the 1944 Convention on international air traffic does not apply to government aircraft.

A fifth point of contention is the "militarization" of some Greek offshore islands, such as Lesbos and Samos, that are only a few miles from the Anatolian coast. Militarization was prohibited by the 1923 Treaty of Lausanne, but Greece maintains that the 1936 Treaty of Montreux lifted the ban by failing to renew the prohibition. The issue is more sensitive than it may seem. Turkish air and amphibious power easily could overcome Greek defenses on the islands, but the Montreux treaty is a political cornerstone of order in the Eastern Mediterranean.

Not directly connected to the above, but often overshadowing the GreeceTurkey relationship, is Cyprus. The island is divided along a "green line" monitored by the United Nations. The Greek view—supported by the United States, Europe, and most of the rest of the world—is that Cyprus is a unitary federal state composed of two ethnic communities; Turkey claims that the Turkish Republic of Northern Cyprus is a separate sovereign state. The island is a potential powder keg. As recently as the summer of 1996 a Greek demonstration along the "green line" resulted in a clash with Turkish troops that left one Greek demonstrator dead and several wounded.

The deadlock over the Aegean does not, however, mean that a permanent toxic mist hangs over the day-to-day relations between Greece and Turkey. The region is too interdependent to permit such indulgence. So far, neither side has been willing to provoke an outright hostile confrontation: Greece has refrained from extending its territorial sea while proclaiming its right to do so; Turkey has discontinued oil exploration close to the Greek islands. But Cyprus could be a flash point for the entire Aegean controversy. By its 1974 invasion of Cyprus, Turkey demonstrated that it would not hesitate to take swift and violent action if it saw its interests threatened.

Only some of the parties' restraint can be credited to statesmanship. Militarily, Greece is far weaker than Turkey, and its Aegean islands close to the Turkish coast are hopelessly exposed. The triangular relationship with the United States and common membership in NATO have been powerful factors. Both Greece and Turkey continue to rely on high-tech U.S. military equipment, and Turkey is anxious to preserve a stable and constructive image in the West in the face of Kurdish separatism, an unfriendly and unpredictable Iraq, and a rising tide of Islamic fundamentalism at home.

The U.S. Role

Where does the United States stand in this potentially explosive confrontation between NATO allies? As late as the 1980s, the role of mediator would have fallen automatically to this country, as leader of the Western alliance. But as Somalia and Bosnia have shown, in volatile regional disputes our superpower standing provides only a temporary answer. In addition, the mood of the country is more isolationist, the power of the presidency in foreign affairs has weakened, and Congress has undermined support for the United Nations. It is far from certain that the LOS Convention, even with U.S. adherence can provide solutions.

In 1994, after the objectionable seabed mining articles were modified, U.S. policy on the LOS Convention underwent a sharp reversal. On 7 October 1994 President Bill Clinton signed the Convention and sent it to the Senate for approval, although the Senate has yet to act. A 1996 Department of Defense publication stresses that access to the oceans, including areas of foreign coasts at great distances from the United States, is vital to U.S. security and economic interests. In regard to the Aegean dispute, the DoD document states that "the LOS Convention provides both Greece and Turkey with normative rules and dispute resolution machinery."

Unfortunately, the Convention's application to the Aegean has severe disabilities. For one thing, Turkey's refusal to sign raises an insurmountable obstacle to a purely legal solution. In addition, although the United States and other non-signatories consider its navigation articles declarative of international law, the same is not true for other parts of the Convention, at least not yet.

In the case of overlaps between adjacent and opposite states, a common occurrence in the Aegean, the Convention's boundary limitation articles stop short of providing authoritative rules. The Convention also is either silent or unhelpful in regard to other issues in dispute: ownership of disputed islands is not specifically addressed. Civil air traffic services in the Aegean are regulated within a global network; they are affected by the Convention only to the extent that civil air controls are based on the span of territorial waters. The dispute over the militarization of the Greek islands arises from different interpretations of the 1936 treaty on the Turkish straits, a matter not addressed by the Convention.

These gaps leave the disputing parties dependent on Part XV, covering disputes settlement, which unfortunately bears all the stigmata of a contractual instrument drafted by lawyers—complicated options, excessive procedural detail, and escape clauses that vitiate its effect. Instead of a simply worded commitment to arbitrate differences or to take them to the International Court, Part XV offers four adjudication routes. These options offer disputing states and their lawyers rich opportunities for forum shopping.

Resort to Part XV becomes even more problematic in light of its exclusions. Fisheries disputes arising out of the establishment of exclusive economic zones seem to be wholly excluded. Three important classes of dispute—involving boundary delimitation, military activities, and actions of the U.N. Security Council—may be excluded from binding settlement by parties to the Convention at the time of their formal accession. In a 1994 commentary to President Clinton, Secretary Warren Christopher stated that the United States would avail itself of these exclusions when it accedes to the Convention. Turkey no doubt would follow suit, should it ever accede.

Even in the event of Turkish adherence, it is doubtful that Turkey would consent to submission of all the issues in the Aegean controversy to the International Court or an arbitration panel composed exclusively of jurists—too many of the Convention's provisions favor Greece. Nonetheless, judicial rulings on some key issues, especially the continental shelf and exclusive economic zone, may not be as unfavorable as Turkey fears. In recent decisions, the court gave priority to equitable considerations over rigid criteria such as equidistance.

None of these prior cases, however, have confronted the judges with the restrictive contractual provisions of the LOS Convention—and few maritime cases have been infected with such an acrimonious historical context or raised critical national security issues. When one or both of these factors have been present, binding dispute settlement usually has been impossible.

If the United States cannot force the disputing parties to settle their differences within the framework of the LOS Convention, either alone or in concert with NATO partners, what other avenues remain? An attempt to play the superpower and pressure Greece and Turkey into a settlement outside the LOS Convention would require the United States to frame compromise settlements and force them on two NATO allies, each with substantial political leverage in Washington.

If a serious crisis erupts in the Aegean, it won't be just U.S. security interests that are affected, but the broader interests of the international community, as well. The Aegean is a corridor for the Black Sea states—Russia, Ukraine, Bulgaria, and Romania—and the maritime traffic of other countries. It is crisscrossed by commercial airliners flying between Europe and Asia. A threat of war would transcend the local stakes of the disputants and even those of the NATO alliance.

The responsibility for averting such a threat to international public order lies squarely with the United Nations. Article II of the U.N. Charter requires states to settle their differences by peaceful means and refrain from the use or threat of force. There is nothing in the Charter that requires the United Nations to defer to any other treaty, the LOS Convention included, if there is a threat to the peace. If a serious breach threatens the community of nations, the Security Council has not only the right but also the duty to act.

Unilateral action by Greece to extend its Aegean territorial sea beyond the present six-mile limit, coupled with the near certainty of a violent Turkish reaction, would be just such a threat to the peace. Should this occur, the Secretary-General should request a resolution suspending all jurisdictional claims and bringing the entire region under U.N. aegis. Then, the Security Council should call for bilateral negotiations between the disputing parties and appoint a U.N. mediation commission to ensure that they take place. If negotiations fail, the Security Council should authorize deployment of a multinational force of neutral naval vessels to establish a maritime "green line" to separate the disputants` forces and freeze their positions. The object would be to enforce a cease-fire and restore safe conditions for air and sea traffic.

Simultaneously, the Security Council should convene a conference of leading regional and maritime powers to draft a multilateral treaty establishing an Aegean Sea regime similar in purpose to the Montreux treaty governing the Turkish straits. There should be a basic treaty establishing the regime, supplemented by individual protocols addressing the specific issues in dispute, the latter to be negotiated separately so that delay or impasse on one issue would not impair or delay the finalization of the entire regime.

In regard to specific issues in dispute, the gap between Greek insistence on adjudicated settlement and Turkish insistence on negotiation might be bridged by negotiating the terms of mutually framed questions to be adjudicated. A formula might be found for treating the Aegean as an international strait for purposes of vessel transit and overflight, thereby finessing innocent-passage restrictions. A separate treaty regime outside of the LOS Convention would permit a creative division of the continental shelf.

Above all, a paramount role for the United Nations in the Aegean would enhance its battered image and liberate the United States from the impossible obligation of devising and forcing compromise settlements on these bitter antagonists. The overriding objective should be to keep the Aegean Sea a safe corridor for international air and sea traffic.

Charles Maechling Jr. , a former senior State Department official and professor of admiralty and international law, served on the U.S. delegation to the U.N. Law of the Sea Conference that drafted the LOS Convention. He was a naval officer in World War II.

 

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