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In early October the President of the European Commission, Ursula von der Leyen, threatened Turkey with sanctions if the latter continued to take “unilateral action” in the Eastern Mediterranean. The Commission does not move fast and so Turkey’s behaviour between now and the end of the year will receive a leisurely review, probably by March 2021.
The unilateral actions which prompted the President’s threat were inspired by four complex and interrelated Turkish problems, two of which turn on the very likely presence of large gas reserves in Turkey’s southern littoral. The third problem is ownership of improbable marine resources in the Aegean (well explored, fished out long ago and of little commercial value), while the last one is not an energy problem at all, but is no less painful for Turkey. All four problems are governed by International Law, and that is a good place to start.
Two islands, one large, one tiny, prevent Turkey’s EEZ from including the northern half of the East Med Basin. The larger, Cyprus, sits 100 km south of Turkey and interrupts Turkey’s ownership of the eastern half of its littoral. With Cyprus where it is, Turkey’s EEZ only extends 50 km south of the Turkish coast and then stops. Cyprus owns everything south of that (subject to an argument, discussed below).
The smaller island, the Greek territory of Kastellorizo, is a minute speck of land 2 km off Turkey’s south coast about midway between Cyprus and Rhodes. A simple view (and the Greek view) of EEZ definitions would give this small chip of Greece a large triangular EEZ to its south, and would transfer some 40% of Turkey’s continental shelf to Greek ownership. I call this the Kastellorizo Triangle.
Map of the Kastellorizo Triangle and the contested EEZs
Complex geography, complex laws
Turkey’s argument is that the international law of EEZs is not simple, and that argument is a good one. Customary International Law (which governs Turkey, since Ankara has not acceded to UNCLOS) limits the “EEZ effect” of islands in two very significant ways. The first limitation is that where an island lies inside the natural EEZ of another state the island’s EEZ is calculated in part by comparing the relative lengths of coastline of the island and the adjoining state. While the allocation of EEZs does not need to be absolutely proportional to coastline lengths, Customary International Law DOES make them somewhat proportional. The dispute between Colombia and Nicaragua is one relevant authority among many (and the same law applies both in “Custom” and by “Treaty”). In the case of Kastellorizo, the ratios are about 420 km:14 km, or 30:1.
The second limitation is that the EEZ of an island lying within another state’s continental shelf is enhanced if it needs to “connect” to a neighbouring part of the EEZ of its parent state. Kastellorizo would be able to use this provision, since it lies only 70 km north-east of the EEZ projected by Rhodes.
Combining these two rules in the International Court of Justice (ICJ) would be likely to win Kastellorizo a narrow slice of EEZ to its west and a small EEZ extension to its south. The resulting area would probably no more than 1/30th of the 800,000 sq km under dispute and quite likely less. The Kastellorizo Triangle would belong to Turkey. So why does Turkey not simply take the issue to the ICJ?
It’s not just about the Kastellorizo Triange
The answer is that Ankara is playing for much larger wins around Cyprus. Cyprus’ coastline – 600 km – is nearly three times longer than the 200 km of Turkish coastline to its north. The EEZ under dispute amounts to some 50,000 sq km, joining Egypt’s to its south and Syria’s and Lebanon’s to its east. The “coastline” rule would likely award 80-85% of that to Cyprus. After deducting the 6,000 sq km that are unarguably Turkey’s between Cyprus and Turkey, that would leave Turkey winning small southerly extensions of its EEZ east and west of Cyprus in court, leaving the sweet spots south, south-east and south-west of Cyprus as Cypriot territory.
Turkey’s unilateral argument therefore starts with the proposition that its occupation of northern Cyprus gives it a share of the EEZ to its south, either in geographic terms by moving the borders, or failing that as a form of shared equity in Cyprus’ EEZ. Turkey also refuses to recognise the legal existence of Cyprus as a state. In support of its argument Turkey has unilaterally created its own Block structure in the waters south of Cyprus. This position is a non-starter in court, since it is clearly and unequivocally accepted by everyone except Turkey that the Turkish Republic of North Cyprus is not a state – indeed it is a legal fiction – and that Cyprus is. If Turkey took its EEZ hopes to court it would win the Kastellorizo Triangle, but lose everything south of Cyprus. Ankara definitely does NOT want to take that dispute to the ICJ.
Ankara’s naval problem in the Aegean
The third problem, little discussed, is not an energy problem at all, but turns on the International Law of Territorial Waters. These are the waters inside the (currently) 12-mile or 22-km limit which are treated by law as sovereign territory. It is vital to restate at this point that it is only the resources in an EEZ that are sovereign, not the waters themselves. Any state can use the surface and subsurface waters of an EEZ to sail civilian or military traffic without permission from anyone (and it is those uses which are vexing China in the South China Sea, but more on that another time). Permitted uses also include hydrographic surveying, so I can sail my carrier strike group right up to your Territorial Waters border with impunity. It is only economic exploitation that is controlled by the EEZ’s owner.
Territorial Zones are different. While any nation has a right to sail warships through the Territorial Zones of any other nation without permission, this right is limited to a right of “Innocent Passage”. Innocent Passage forbids the use of weapons' radars or sonars and the carrying out of exercises. Most crucially for Turkey, the right of innocent passage requires submarines to sail through Territorial Zones on the surface. Since a large part of the strategic value of a submarine lies in the fact that no-one knows whether or not your submarine is deployed, forcing a boat to deploy on the surface is a big strategic problem. A submarine which transits Territorial Waters dived and without permission is taking its life in its hands, since the Territorial State is fully within its rights to sink the trespasser at will.
In the wide waters of the eastern Mediterranean Territorial Zones give Turkey no trouble. That is not true, though, in the much narrower waters of the Aegean. Here a multiplicity of Greek islands and islets scattered between Turkey and Greece each have their own Territorial Zones. At present Greece has voluntarily, and sensibly, limited its Territorial Zone claims to 11 km, which offers a narrow but navigable non-territorial Aegean channel joining the Sea of Marmara to the Mediterranean. Turkey (or anyone else, including Russia) can sail a dived submarine along this route at will, allowing Ankara to deploy its large and modern submarine force freely. This voluntary reduction of Territorial Waters is not unique – Russia benefits from a similar restraint in the Baltic approaches to St Petersburg, for example.
As part of its dispute with Turkey Greece is threatening to increase its Aegean Territorial Zones to 22 km. That increase is perfectly within its rights. If it did that then Turkey’s route across the Aegean would close, and it would either have to deploy its submarines to the Mediterranean surfaced (thus handing Greece and its allies the ability to track them at will), or sail them dived within a few kilometres of Turkey’s western coast, or take the risk of deploying them dived through Greek territorial waters where they might be detected, attacked and sunk by the Greek navy – operating fully within its legal rights.
The Turkish “inshore route” is practical until boats try to pass the Mycale Strait between Samos and Turkey. Here Turkish Territorial Waters narrow to less than half a kilometre and water depths shoal to 40 metres. The straits are not impassable to a dived submarine, but present uncomfortable risks: Turkey’s Type 209 boats need a minimum of 30 metres of water for safe dived navigation, leaving no room for error. Boats transiting the Mycale strait dived would suffer a high chance of detection, as they would pass only metres from Greece’s seabed border and whatever sonar, magnetic, IR or visual detection systems Greece has installed there. In practice, the Mycale strait is a turnstile wrapped in barbed wire and illuminated by floodlights. Since Greece has every right to extend its Aegean Territorial Zone to 22 km, an application to the ICJ to prevent that would have no chance of winning.
Aegean EEZs also on the table
That brings us to the fourth argument. Ankara has long-asserted claims to some EEZ rights in the Aegean itself. The claims were originally made when the prospects for Aegean hydrocarbon reserves were fresh and bright, but now that the Aegean has been shown to be devoid of hydrocarbons, and lost its commercial fish stocks long ago, the claim is more symbolic than material. It might well stand up in court (for the same reasons as the claims over the Kastellorizo Triangle), but the win would be pyrrhic.
Turkey is likely to lose two of its four arguments in court, which makes court action an unattractive route. That is probably why Ankara has studiously ignored Nicosia’s application to the ICJ to adjudicate the issue. If a court action is out of the question, then Ankara’s only practical alternative is to negotiate a deal with the other parties to the dispute – Greece and Cyprus – behind which stands the European Commission. Absent active pressure and destabilisation the EC will inevitably support a completely Greek/Cypriot solution – no EEZ for Northern Cyprus, the Kastellorizo Triangle handed to Greece, no EEZ for Turkey south of Cyprus, and 22 km Territorial seas in the Aegean. The correct lens through which to view Turkey’s “unilateral actions” is an investment in setting up external conditions for the negotiations to upset this happy Hellenic ending.
Turkey’s actions are entirely rational and predictable
When seen through that lens Ankara’s actions become highly rational. First, Ankara must show a clear willingness to find and exploit hydrocarbons from both the Kastellorizo Triangle and the waters south of Cyprus. That willingness is being clearly expressed in the deployment of the Oruc Reis survey ship in the Kastellorizo Triangle. Oruc Reis sailed to her task this month escorted by no fewer than five Turkish warships (and probably a submarine as well, out of view).
Second, Ankara must take vigorous steps to prevent any other parties from drilling “its” EEZ. This was demonstrated in 2018 when the drillship Saipem 12000 was evicted from Cyprus’ Block 3 under the guns of a squadron of Turkish frigates.
Other Turkish actions are also consistent with this view of its strategy. Turkey’s target EEZ east and south-east of Cyprus borders with Lebanon’s EEZ. Lebanon, economically floored by a combination of incompetent government and the Beirut fertiliser explosion, badly needs immediate aid, which Ankara is offering. The covert price for that aid is almost certainly support for Turkey’s target EEZ. It makes little difference to Lebanon who its EEZ neighbours are.
Turkey’s strategy is clear to those who wish to see it. For the cynical it was clearly expounded by President Erdogan himself a few days ago (late October) in a speech delivered aboard the drillship Fatih in the Black Sea: “The path to achieving peace and stability in the Eastern Mediterranean goes through respecting, acknowledging and handing over the [EEZ] rights of Turkey and Turkish Cypriots.” Not much equivocation there, then.
Going to court is not an option, nor is going to war
If court is not an option, then Ankara’s ambitions can only be won in a negotiated settlement – a peace conference if you like – in which Athens and Nicosia make concessions which are as visible as they are unpalatable to Greek and Cypriot voters. Ankara is already preparing ground for that settlement by claiming not only the EEZ to the south-east and east of Cyprus but also most of the EEZ to the west and south-west of Cyprus. With no possible foundations in law this claim can only be a sacrificial goat – to be conceded at the final conference through theatrically gritted teeth. Ankara’s claims to EEZ in the Aegean is a second, thinner and feebler, goat, though one which can be trumpeted by Athens as a major win to its electorate.
But a “peace” conference cannot emerge from nowhere. To have a peace conference one must first have a fight (if not an actual war).
It is that “fight” which Ankara is now stirring up. We should expect to see Turkey escalating naval action around Cyprus and in the Kastellorizo Triangle both in frequency and intensity, to a point near, but not quite reaching, the use of kinetic force. That is already happening. In August 2020 one of Oruc Reis’ escorts, a 3,000-tonne frigate, was rammed by a Greek frigate while fending the latter off from what was probably an attempt to sail over and cut the Turks’ seismic tow. The event, the geopolitical equivalent of a chest-bumping argument in a bar, is likely to be the first of many. Turkey has some 70 ships of over 400 tonnes to act as escorts, and is clearly happy to see them engage in naval shoving contests. While such contests are not “kinetic” they can be lethal – witness the seventeen sailors killed in USS Fitzgerald by her collision with MV ACX Crystal in 2017. Both navies are probably happy to take that risk, and Turkey has enough ships to keep up the fight indefinitely.
There is a strong precedent for Ankara’s strategy – it is a clone of that used by Iceland to establish its own EEZ in 1973, in which a handful of small corvettes defeated the entire Royal Navy with the firing of only a single (non-lethal) shot.
Meanwhile Ankara’s exploration needs to hurry up and wait
One of Turkey’s core ambitions will be to prevent anyone from actually finding new reserves in the disputed waters. It will be easier to win a settlement with only “potential” reserves on the table than it will be if those are proven. Turkey’s drillship Yavuz is reportedly drilling somewhere in the Kastellorizo Triangle (though on October 22 she was at anchor at Ta Sacu) but quite possibly against an unprospective target. In any case, if Yavuz does find hydrocarbons we are unlikely to hear about them. Happily for Ankara, it has an unarguable hydrocarbon deposit for its two other drillships to work on in the Sakarya/Tuna 1 field in the Black Sea, alongside possible future neighbouring discoveries. Ankara is in no hurry.
A natural concern for all the parties involved is the possibility that the struggle might morph into a kinetic conflict, either by accident or by design. Accidents can happen, especially when emotions are running high, but it is worth mentioning one major limiting condition which will play strongly into the rules of engagement of both sides and their allies. Both countries are members of NATO. The North Atlantic Treaty makes no mention of what happens if one member attacks another – an inconceivable idea in 1949. What it does clearly say, though, is that if any member is attacked by a third party (member or not, by implication) the other members will (not “may”) come to its defence.
Keeping the North Atlantic Treaty out of the argument
Both Athens and Ankara will be acutely aware that becoming the “aggressor” might bring the whole weight of NATO to the scene in opposition. That thought will probably deter both from the use of kinetic military force beyond “shoving”. To be sure, Ankara is now only semi-attached to NATO, but one can imagine the pleasure with which it would invoke Article 5 of the NATO treaty if given half a chance, and the difficulties that would present to NATO if it happened.
France is already present in the area in support of Greece, but more as punishment of Ankara for opposing France’s client General Haftar in eastern Libya. Barging ships, cutting seismic cables and (perhaps) damaging rig moorings, drilling risers and seabed equipment all fall safely on the “not war” side of the line. Landing armed boarding parties on another nation’s ships in contested waters is more ambiguous. Ankara will need to tread a delicate path to create just enough trouble to spark a “peace” conference, but not enough to spark a shooting war. It is highly doubtful, though, that France, or any other EU navy called in aid, will be willing to accept the risk of dead sailors to dispute the Kastellorizo Triangle or the rights of Cyprus, so expect French ships to hang around on the edge of the argument looking menacing but not actually engaging.
A long argument lies ahead
And that is why the Commission is talking about sanctions. It is not clear what sanctions the EC might impose on Turkey next year (the Greek Foreign Minister mentioned tourism as an attractive candidate). Whatever they are, they will be constrained by the real possibility that Turkey will begin releasing tranches of its two million Syrian refugees on Greece in response. This weapon – the “refugee bomb” in the parlance of Israeli media – can be dialled up and down by Ankara at will. The release of even 10,000 people per month would inflict intense pressure on Athens and the Commission. Another moderator will be the Commission’s fond hope that Turkey might still be brought into the European Union one day. With these in mind we should expect sanctions to be small, weak, but obvious.
Whatever sanctions are applied, Ankara will continue to apply substantial non-kinetic naval pressure around Cyprus and Kastellorizo and to continue obstructing the discovery, production and movement of East Mediterranean gas until the parties decide that a deal is less painful than a dispute. Which begs the question of what parties? Athens will find it intensely difficult to concede anything to Turkey, since the two countries have a history of vicious disputes and wars going back some seven generations. Cyprus’ dispute with Turkey is younger but no less vicious. Turkey, meanwhile, does not even recognise Cyprus as a state. It will be for the Commission to knock heads and more or less impose a solution, which might have to include mutual recognition of both Cyprus and the Turkish Republic of North Cyprus. Don’t expect the ending to come quickly.
Reflections from our correspondents on the ground in the Turkish capital.
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