Rozakis, Hague, and the Turks learning from the Chinese

The appeal to the The Hague International Court of Justice (ICJ) on the settlement of the issue of continental shelf/EEZ with the Turkey, reopens the public debate. Opinions on this are divided and therefore we will attempt to approach it on the basis of the latest developments in the Greek-Turkish geopolitical subsystem, but also on the basis of the lessons we can draw from similar cases of disagreement between states that have ended up in the ICSID.

First of all, let's be clear about who is behind the promotion of the appeal to The Hague. We recall that Christos Rozakis, Professor Emeritus of Public International Law, has led the public debate with arguments in favour of this option. ’We cannot have everything on our side. We have to give something. To go to The Hague we need a compromise« he said adding that, »The Greece has maintained a maximalist position on all its issues. It has considered that it can have an EEZ up to Cyprus, which is impossible. He has assumed that he can have 12nm everywhere. It has considered that it can have an airspace larger than its coastal zone» giving the Turkish diplomacy a foothold to talk about Greek «maximalism»...

The idea of going to the Hague is not, of course, a novel one. Going back to the conclusions of the EU Summit in Helsinki in December 1999, we see that the ground has been prepared since then, since it was decided that the candidate countries (i.e. Turkey) should resolve their «border or related» disputes with neighbouring countries through negotiations or, where this was not possible, by recourse to the ICJ.

Coming back to today, according to an article in the newspaper «Estia» on 2 June 2021, during the two-day visit of M. Cavusoglu to Athens on 30 and 31 May 2021, a change in Turkish strategy was observed. Turkey therefore accepts the Undertaking (which is a necessary condition for recourse to the ICC), something to which until recently it did not openly consent, but even this under clear conditions/requirements. Specifically, demands that the existence of «grey zones» be accepted, that the issue of the «demilitarization» of Greek islands be put on the table, as well as other claims that it raises from time to time. We recall that on January 28, 2020, Democracy published the positions of the Turkish ambassador in Athens, Burak Ozugergin, who had advocated referring the issue of Imia, the «grey zones», the demilitarization of the islands and other Turkish claims to the Hague, while at the same time he had threatened that «if we continue like this, an escalation cannot be ruled out».

So these claims are not new, but it is now proposed to include them in the deal. Such a co-contract in itself would constitute recognition of these claims by Greece as «bilateral disputes».». It is not unlikely that Turkey will seek to slip into the Compromise just to recognize them as «bilateral disputes» and ultimately not accept the jurisdiction of the Hague or any of its decisions.

The appeal to The Hague is a much more complex case than it is presented and involves other settlements of major national importance along with the delimitation of the continental shelf / EEZ according to Professor of International Law and Deputy Minister of Education Angelos Syrigos (Kathimerini, 24/08/2020): «If sovereignty over some territories is contested, it is not possible to delimit maritime zones. If the Turkish «grey zone» theory is applied, the principle of any delimitation should be to establish the sovereignty of the «disputed» Aegean islands whose coasts are used as base lines.

This means that even if Turkey were to consent to a resolution of the dispute over the delimitation of the continental shelf in an international judicial body, the first issue of recourse should be the establishment of sovereignty over the islands. The delimitation of the continental shelf would follow as a second issue. Therefore, what Turkey is seeking with its new tactics is, among other things, to have the sovereignty of the «grey zones» determined by the ICTY. In other words, the Court should decide whether Imia - and not only - is Greek.

But beyond the issue of «grey zones», according to Professor of Economic Geography Theodoros Karyotis (hellasjournal.com, 24/6/2021), so far the decisions taken by the ICJ regarding the delimitation of the continental shelf/ EEZ boundaries are 68% in favour of the principle of equidistance, which is an established Greek position, and 38% in favour of the principle of equity, which favours the Turkish position. In the second case, Greece is faced with the possibility of not being granted full jurisdiction over the Megisti Complex (and especially the island of Strongyli) and therefore losing its common maritime border with Cyprus.

Whether we are prepared to risk 38% the possibility of losing potential sovereign rights under the Law of the Sea and losing the «connection» with Cyprus, is probably enough, in our humble opinion, to deconstruct the narrative of recourse to The Hague as the «ideal solution» unless we are in favour of any solution at all costs, of course... Here let us also take into account the opinion of the former British Ambassador to Greece, John Kittmer, who in an article in the British think tank «RUSI» pointed out that «the previous rulings of the International Court of Justice indicate that it will give the issue a solution where neither side gets everything it wants».

But even if we ignore the above risks, there is an additional critical aspect of the Hague issue which is touched upon by Professor Kostas Grivas, professor of geopolitics (slpress.gr, 09/02/2020): «The Law of the Sea is a dynamic and not static quantity. It is a variable that evolves and mutates according to international geopolitical events, even if they occur in distant places (e.g. the South China Sea) and are not yet reflected in the letter of the law. However, these events arise from ferment in the existential basis of the Law of the Sea, which is the competition between land and sea military power.

Therefore, the application of the Law of the Sea is affected by military power, the facts on the ground (see Oruc Reis investigations in Greek seas for 4.5 months), and/or by inter-state agreements that contradict it (see the Memorandum of Understanding with the Turcolics). A typical example is the ICJ ruling that vindicates the Philippines in its disputes with China in the South China Sea (Kathimerini, 13/07/2016), a ruling that has never been applied on the ground and is systematically ignored by China. In this sense, even if the Greek-Turkish appeal is made with a compromise exclusively on the continental shelf/EEZ issue, and the ICJ makes any decision, no one guarantees its acceptance by Turkey. Unless it is to our detriment of course. Greek military strength is the only guarantee of safeguarding national rights, assisted of course by a strong political will to engage the Armed Forces wherever and whenever necessary, and not phobic compliance for the sake of maintaining an artificial and short-lived calm.

By Dr. Konstantinos Apostolos-Katsarou. Special technical adviser. He has been a lecturer and research fellow at the University of Brighton, UK, where he holds a PhD and a postgraduate degree.