In the eastern and central Mediterranean, the importance attached by regional actors to the existence of a defined legal framework for maritime delimitation has recently emerged with reference to two separate but interrelated cases: the exploitation of hydrocarbon resources offshore Cyprus and the stipulation of a “memorandum of understanding” between Turkey and the Libyan Government led by Mr Fayez al-Sarraj and recognized by the United Nations (UN). In both cases, a clear contrast between the position and interests of Turkey, on the one hand, and the claims of a number of other coastal States, on the other, emerged. As will be seen, the Italian Government took a strong stance against the actions of Turkey, in the first case, but it adopted, instead, a position of mild criticism in the second case.
The Legality of Exploration and Exploitation of Hydrocarbon Resources Offshore Cyprus
Over the last few years, Italian Governments have been closely monitoring the allocation of sovereign rights over offshore hydrocarbon resources in the eastern Mediterranean Sea, an area of strategic importance for Rome’s national security interests. This should not come as a surprise, given that the Italian energy corporation ENI not only has operations in 7 of the 13 blocks in which the Cypriot Government divided the maritime zones off its south coasts but can also boast a valuable presence in the Egyptian offshore. Italy, together with Israel, Greece and the Republic of Cyprus, also committed to the project of the EastMed pipeline, a major gas infrastructure that would connect the eastern Mediterranean natural gas basin to the European on-land network.[1] Cyprus, one of the most active actors, has so far secured maritime delimitation agreements with Egypt (2003),[2] Lebanon (2007, not ratified yet), and Israel (2010).[3] These agreements revolve around the adoption of the method of the “median line” to achieve an equitable result in the delimitation of the exclusive economic zones (EEZs) where opposite coasts are distant less than 400 nautical miles (nm). Against this background, Turkey promptly reacted to any delimitation effort by other coastal States that could encroach on its continental shelf claim in waters around the island of Cyprus and, more in general, in the entire eastern Mediterranean. Unlike Cyprus, Turkey is not a party to the 1982 United Nations Convention on the Law of the Sea (UNCLOS)[4] and has always refrained from using the terminology of the EEZ regime that UNCLOS first codified. The Turkish authorities instead rely on the doctrine of the “natural prolongation” of the continental shelf to advance a maritime claim not exclusively based on a distance criterion. Furthermore, the Turkish traditional position is built on an interpretation of the regime of islands which reduces their generative capacity to a mere 12 nm territorial sea, and on a certain reading of the impact of the principle of (dis)proportionality on the delimitation process.[5]
In the last years, Ankara has consistently intensified hydrocarbon exploration activities in areas characterized by overlapping claims, at times even relying on the Turkish Cypriots’ alleged right to share the benefits deriving from the natural resources of the island.[6] In 2011, after having concluded a Continental Shelf Delimitation Agreement[7] with the universally unrecognized entity of the Turkish Republic of Northern Cyprus, Turkey also brokered the signing of a Petroleum Services and Production Sharing Contract between the State-owned Turkish Petroleum Corporation (TPAO) and the illegitimate authorities of Northern Cyprus.[8] Under this document, the company was granted access to offshore blocks claimed by Northern Cyprus that substantially overlap with the Republic of Cyprus’ EEZ and territorial sea. Since then, the TPAO has conducted several seismic surveys in contested waters and, on 4 May 2019, its vessel Fatih, accompanied by Turkish navy frigates and submarines, began drilling operations within an area distant only 36 nm from Cypriot west coasts.[9]
Despite repeated reactions from both Nicosia and the European Union (EU), Turkish drillings around the eastern Mediterranean island continued unabated, to the point that, on 11 November 2019, the Council of the EU felt finally compelled to adopt a decision on the issue. In particular, the Council unequivocally stated that Turkish operations:
[…] infringe the sovereignty or sovereign rights and jurisdiction of the Republic of Cyprus in its territorial sea, exclusive economic zone and continental shelf and, when such activities are carried out in areas where the exclusive economic zone and continental shelf have not been delimited under international law with a State having an opposite coast, they jeopardise or hamper the reaching of a delimitation agreement. These actions are contrary to the principles of the United Nations Charter, including the peaceful resolution of disputes, and pose a threat to the interests and security of the Union.[10]
For all the above, already on June 2019, one month after Turkey’s announcement of its intention to drill in waters around Cyprus, the President of the Council of Ministers, Mr Giuseppe Conte, gave an official speech before the Senate of the Republic (123rd Meeting, XVIII Legislature) and the Chamber of Deputies (192nd Meeting, XVIII Legislature), whose relevant part reads as follows:
An issue that, by impulse of Cyprus, will be discussed at the European Council (an issue we have already dealt with in Malta, at La Valletta, within the context of southern Europe’s countries) concerns Turkish drilling activities in the Cypriot exclusive economic zone. In this regard, we monitor with the utmost attention recent developments of energy-related dynamics in the eastern Mediterranean Sea, and we share the concern over the announcement made by Turkey of its intention to undertake activities that might violate the legitimate expectations of the Republic of Cyprus to exercise sovereign rights over the natural resources available in the so-called exclusive economic zone, in compliance with the norms of international law of the European Union [sic].
On 5 October 2019, following intensification of Turkish illegal activities in the area, the Minister of Foreign Affairs and International Cooperation, Mr Luigi Di Maio, also released the following statement:
Italy is concerned for the illegal operations carried out by the Turkish vessel Yavutz in the exclusive economic zone of Cyprus south of the island. We reiterate our request to respect the sovereign rights of Cyprus and to refrain from illegal actions in the area. In July, the Foreign Affairs Council decided political measures to respond to the Turkish initiatives in the eastern Mediterranean, in full solidarity with Cyprus. It also decided to remain seized of the matter. With our partners, we chose a firm yet gradual and reversible approach to create the conditions for a de-escalation in the eastern Mediterranean Sea. We sincerely hope that this outcome is still possible, and we call on Turkey to revert to a more constructive posture.[11]
Towards the end of the year, the Minister of Defense, Mr Lorenzo Guerini, made another statement on the issue. On 28 November 2019, intervening at a joint session (13th Meeting, XVIII Legislature) of the Commission on Defense (IV) of the Chamber of Deputies and the Commission on Defense (4th) of the Senate of the Republic, he stated:
The position of the Government under international law is clear and aimed at protecting national interests, as clear are the decisions adopted by the European Union against Turkey. Italy embraces these decisions, condemns Turkish actions in the eastern Mediterranean and recalls the sovereign rights of the Republic of Cyprus. Therefore, in agreement with the other European partners, within all international fora we will continue to reiterate the necessity that Turkey sits at the negotiating table with the aim of solving the issue, in full respect of Cypriot sovereignty. At the same time, since last April, following an inter-ministerial meeting coordinated by the Ministry of Foreign Affairs, the Department of Defense has confirmed its readiness to provide necessary support for the protection of national interests in the area, taking into consideration also possible synergies with European partners. More precisely, in agreement with ENI, the Government closely monitors exploration operations together with the Cypriot Government and France, co-licensee in some of the blocks through Total. Against this background, for reasons of expediency and with the aim of ensuring a more decisive presence, we have already considered, within the framework of current operations and planned military exercises, periodical monitoring activities in the area by national maritime military assets.
Overall, based on these few excerpts of parliamentary activity, it can be said that Italy has always aligned its position vis-à-vis Turkish activities in waters around the island of Cyprus to that assumed by other European partners, with no significant deviations. As shown by the abovementioned statement of the Minister of Defense, the Italian Government has also openly considered a stronger military and patrolling effort in contested waters. Indeed, on 11 October 2019, the Italian energy corporation ENI confirmed that the company was planning exploration operations, jointly with French partner Total, in Cypriot offshore blocks for the first half of 2020.[12]
The Turkey-Libya Memorandum of Understanding on Delimitation of the Maritime Jurisdiction Areas in the Mediterranean
The activism of Turkey in safeguarding its energy interests in the Mediterranean took a rather unexpected turn when, on 27 November 2019, the Government of Ankara signed a Memorandum of Understanding with the UN-recognized Government of National Accord of Libya for the delimitation of their respective maritime zones.[13] In the same context, the Parties also signed a Memorandum of Understanding on Security and Military Cooperation, envisaging inter alia the “provision of training, consultancy, experience transfer, planning and material support by Turkey for the establishment of Quick Reaction Force covering the police and military responsibilities in Libya”,[14] which appears as potentially incompatible with previous UN Security Council Resolutions.[15] Unsurprisingly, the agreements sparked strong protests from a number of countries, most notably Greece, the Republic of Cyprus, Egypt and France. At the end of a meeting held in Cairo on 8 January 2020, a Joint Final Communiqué released by the Foreign Ministers of the four abovementioned States qualified the signing of the memorandums “between Turkey and Mr. Fayez al-Sarraj the President of the Presidency Council of Libya” as “a violation of relevant United Nations Security Council resolutions and international law”.[16] The Ministers also underlined that the memorandums “undermined regional stability, and are both considered null and void”.[17] With specific reference to the Memorandum on Maritime Jurisdiction, the Communiqué added that such act “infringes upon the sovereign rights of third States, does not comply with the Law of the Sea and cannot produce any legal consequences”, and “reiterated the necessity of full respect of the sovereignty and the sovereign rights of all States in their maritime zones in the Mediterranean”.[18] In the same context, the Ministers “strongly condemned continued Turkish actions in the exclusive economic zone of Cyprus and its territorial waters” and “call[ed] upon Turkey to immediately cease all illegal exploration activities”.[19]
Other individual statements, most notably from Egypt and Greece, criticized more directly the Memorandum not only in the light of its alleged incompatibility with the law of the sea, but also with relation to a purported lack of authority of Mr al-Sarraj’s Government in the light of the power-sharing political agreement previously stipulated by the different factions of the Libyan civil war.[20] In this respect, Egypt, with a note verbale addressed to the UN Secretary-General, explicitly stated that the procedure by which the Memorandum was concluded is “inconsistent with, and violates, the Libyan Political Agreement concluded in Skhirat on 17 December 2015, which was welcomed in Security Council Resolution 2259 (2015) of 23 December 2015”.[21] Greece took a similar stance by claiming that the Agreement “is null and void since it was not endorsed by the House of Representatives of Libya, as required by article 8, paragraph 2 (f), of the Libyan Political Agreement of 2015, approved by the UN Security Council through its resolution 2259 (2015)”.[22]
Against this background, the position of Italy is perhaps more remarkable for its omissions than for its actual content. Indeed, although present at the meeting, Italy refrained from sending a stronger signal to Ankara and Tripoli and did not sign the Joint Final Communiqué by the Foreign Ministers of Egypt, France, Greece and the Republic of Cyprus. With relation to the Memorandum of Maritime Delimitation, the position of Italy is thus exclusively expressed by the stance adopted by the European Council during the 12 December meeting. It should also be recalled that Point 19 of the conclusions adopted on that occasion partially follows the wording of the Joint Communiqué and affirms that the Libya-Turkey maritime agreement “infringes upon the sovereign rights of third States, does not comply with the Law of the Sea and cannot produce any legal consequences for third States”.[23]
In sum, the position of Italy in this second case is rooted in the law of the sea and the Memorandum’s inability to produce effects on third parties. The Memorandum is not questioned, however, with relation to the potentially uncertain legal prerogatives of the Libyan Government of National Accord. It seems reasonable to think that this cautious approach is aimed at preserving the international process to achieve a solution to the Libyan crisis. In this regard, on 11 December 2019, the President of the Council of Ministers, Mr Giuseppe Conte, incidentally commented upon the Libya-Turkey maritime agreement before the Senate of the Republic (172nd Meeting, XVIII Legislature) and the Chamber of Deputies (276th Meeting, XVIII Legislature). In view of the European Council meeting that was to be held on 12 and 13 December, Conte stated the following:
It is important that the European Council reiterates its support to the Eastern Mediterranean Member States and urges for full respect of international law; it is likewise essential that the abovementioned signals do not translate into an approval to a slowdown of the political process for the stabilization of Libya and to a sine die postponement of the Berlin Conference, which we support.
Marco Pertile and Enrico Broggini
[1] Italy did not take part in the 2 January 2020 meeting in Athens, where the competent ministers of Israel, Greece and the Republic of Cyprus signed an intergovernmental agreement that further anchors the commitment of the three countries to the establishment of the project. More information on the EastMed pipeline are available here.
[2] Agreement between the Republic of Cyprus and the Arab Republic of Egypt on the delimitation of the exclusive economic zone, 17 February 2003, entered into force 7 March 2004, 2488 UNTS 3.
[3] Agreement between the Government of the State of Israel and the Government of the Republic of Cyprus on the delimitation of the exclusive economic zone, 17 December 2010, entered into force 25 February 2011, 2740 UNTS 55.
[4] United Nations Convention on the Law of the Sea, 10 December 1982, entered into force 16 November 1994, 1833 UNTS 3.
[5] More precisely on this last point, Turkey argues that, were the delimitation with the Republic of Cyprus to be carried out by simply drawing a median/equidistance line, a disproportion would result between the ratio of respective coastal lengths and the ratio of relevant maritime areas allocated to each party to the dispute. For an overview of relevant case law where the disproportionality test has been applied, see Tanaka, “The Disproportionality Test in the Law of Maritime Delimitation”, in Elferink, Henriksen and Busch (eds.), Maritime Boundary Delimitation: The Case Law: Is It Consistent and Predictable?, Cambridge, 2018, p. 291 ff.
[6] On this point, Turkey has repeatedly clarified the following: “It should be borne in mind that, at the core of the Cyprus problem and the matters pertaining to it, including oil/natural gas exploration and exploitation activities, stands the unlawful claim of the Greek Cypriot side to be the ‘sole government of Cyprus’, the legitimacy of which ceased to exist when the Turkish Cypriots were forcibly ejected from all its organs in 1963. Needless to say, there has not been a joint central administration capable of representing the entire island since 1963, but there exist two independent self-governing administrations on the island of Cyprus. I also wish to bring to your attention that the Greek Cypriot side, by claiming that its ‘sovereign rights are exclusive’, is disregarding the fundamental principle that sovereignty in Cyprus emanates equally from the Turkish Cypriots and Greek Cypriots”. Letter dated 8 April 2019 from the Permanent Representative of Turkey to the United Nations addressed to the Secretary-General, 8 April 2019, UN Doc. A/73/827-S/2019/297.
[7] The Agreement, according to Ankara’s officials, delineates a part of the continental shelves of Turkey and the Turkish Republic of Northern Cyprus with a line constructed by 27 coordinates determined on the basis of international law and equitable principles. On April 2014, by means of an official Letter addressed to the UN Secretary General, Turkey requested the publication of those coordinates in the Law of the Sea Bulletin. Interestingly, though not a party to UNCLOS, Ankara felt obliged, in order to give legal standing to its claim, to act in accordance with Article 84(2) of that Convention, requiring States to give due publicity of charts or lists of geographical coordinates regarding continental shelf delimitation.
[8] Commenting on the legal value of these acts, a scholar noted that this new chapter of the dispute between Turkey as an Occupying Power in Northern Cyprus and the Republic of Cyprus “raises interesting questions in relation to the precise interface between the international law of the sea and the law pertaining to belligerent occupation”. Power, “Occupying the Continental Shelf? A Note Considering the Status of the Continental Shelf Delimitation Agreement Concluded between Turkey and the TRNC during the Belligerent Occupation of Northern Cyprus”, Irish Yearbook of International Law, 2014, p. 91 ff., p. 92.
[9] Against these operations, the Republic of Cyprus has put forward this official argument: “According to international law, the establishment of installations and structures on the continental shelf/EEZ falls within the ambit of the coastal State’s exclusive rights and jurisdiction. Consequently, the deployment of the Fatih in the continental shelf/EEZ of Cyprus is in breach of articles 56 (1) (b) (i), 60 and 80 of the United Nations Convention on the Law of the Sea, which form part of customary international law and thus are also binding on non-parties to the Convention, including Turkey”. Letter dated 11 July 2019 from the Chargé d’affaires a.i. of the Permanent Mission of Cyprus to the United Nations addressed to the Secretary-General, 12 July 2019, UN Doc. A/73/944-S/2019/564.
[10] Council of the European Union decision concerning restrictive measures in view of Turkey’s unauthorised drilling activities in the Eastern Mediterranean, 11 November 2011, CFSP 2019/1894, available here. The expression “jeopardise or hamper the reaching of a delimitation agreement” clearly mirrors the wording of Paragraph 3 common to UNCLOS Articles 74 and 83. In the same decision, the Council established a framework for the adoption of a number of targeted measures against Turkish individuals and entities involved in the illegal actions.
[11] Italian Ministry of Foreign Affairs and International Cooperation, “Italy Concerned for the Illegal Operations of the Turkish Vessel Yavutz in the Exclusive Economic Zone of Cyprus”, 5 October 2019, available here.
[12] “Eni CEO confirms commitment to exploration in Cyprus”, Reuters, 11 October 2019, available here. The area in which ENI and Total are going to operate has already experienced Turkish interferences and activities.
[13] The text of the document can be found (in Turkish, Arabic and English) on the website of the Official Gazette of the Republic of Turkey, available here.
[14] The text of the document can be found (in Turkish, Arabic and English) on the website of the Official Gazette of the Republic of Turkey, available here.
[15] Notwithstanding the arms embargo introduced by Security Council Resolution S/RES/1970 (2011) and subsequently modified by Resolution S/RES/2174 (2014), the Memorandum envisages the transfer of military material to the Government of Tripoli.
[16] Meeting of the Foreign Ministers of Egypt, France, Cyprus and Greece – Final Communiqué, 8 January 2020, available here.
[17] Ibid.
[18] Ibid.
[19] Ibid.
[20] See Libyan Political Agreement, 17 December 2015, available here.
[21] In the same note, Egypt also called on the UN Secretariat to reject “any request to have the coordinates that are set out in the memorandum of understanding concerning the determination of maritime rights in the Mediterranean published in any form by the Division for Ocean Affairs and the Law of the Sea”. See Note verbale dated 23 December 2019 from the Permanent Mission of Egypt to the United Nations addressed to the Secretary-General, 24 December 2019, UN Doc. A/74/628. Indeed, Turkey subsequently made this request in a Letter dated 27 February 2020 from the Permanent Representative of Turkey to the United Nations addressed to the Secretary-General, 2 March 2020, UN Doc. A/74/727.
[22] Letter dated 9 December 2019 from the Permanent Representative of Greece to the United Nations addressed to the Secretary-General, 19 February 2020, UN Doc. A/74/706.
[23] European Council Conclusions, 12 December 2019, EUCO 29/19, available here.
Italy's Diplomatic and Parliamentary Practice on International Law 