Emerging Voices: The Law of the Sea as a Tool for Stability and Progress in the Eastern Mediterranean Sea*

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On the verge of the 21st century, the discovery of “Noa”, a gas field offshore Israel, reinvigorated the Eastern Mediterranean (East Med) states’ interest in the sea. Additional hydrocarbon deposits were found in the sea waters adjacent to Israel, Gaza, Cyprus and Egypt, while the United States Geological Survey estimated that the Levant Basin alone contains 1.7 million barrels of oil and 122 trillion cubic feet of natural gas. These developments made the regional states realize that, in order to avail themselves of the immense underwater wealth, they should first demarcate their maritime space in conformity with the law of the sea rules. This post analyses the maritime boundary delimitation agreements concluded so far in the East Med. It should be pointed out that these are the first EEZ delimitation agreements to have been signed in the Mediterranean Sea. Perhaps the most noteworthy features of these arrangements is the use of the median line and the adherence of Israel to the 1982 Law of the Sea Convention (LOSC or the Convention) rules on the EEZ and maritime delimitation, despite the fact that it is not a state-party to the Convention.

In particular, four East Med states proceeded with the conclusion of bilateral maritime boundary delimitation agreements; the first delimitation agreement between Egypt and Cyprus in 2003 was followed by another two between Lebanon-Cyprus in 2007 (pending ratification by Lebanon); and Israel-Cyprus in 2010. All three agreements are concise and comprise five virtually identical articles each. Undoubtedly, maritime boundary delimitation is a pivotal function within the realm of the law of the sea. As the Arbitral Tribunal in the Bangladesh/India Award stressed:

“The importance of stable and definitive maritime boundaries is all the more essential when the exploration and exploitation of the resources of the continental shelf are at stake… the sovereign rights of coastal States, and therefore the maritime boundaries between them, must be determined with precision to allow for development and investment (emphasis added).”

Even though the East Med states maintain variant positions on maritime affairs, they have perceived the utility of the law of the sea apparatus in facilitating hydrocarbon exploration and exploitation, hence they decided to act within its ambit and collaborate with a view to gaining multiple profits from the energy windfall.

Legal analysis of the agreements

In the Preambles of these instruments, the contracting parties set forth the desire for cooperation, note the importance of EEZ delimitation “for the purpose of development” and recall the relevant LOSC provisions. The invocation of the LOSC in the Israeli-Cypriot agreement is of utmost significance as it not only illustrates the universal application of the Convention, but, most importantly, highlights the willingness of Israel to act in conformity with the LOSC, despite not being a party to the Convention, at least in terms of the provisions relevant to the EEZ. In any event, the EEZ concept forms part and parcel of customary international law, thus, even non-member states to the Convention are entitled to use and are obliged to observe the relevant rules [Continental Shelf (Tunisia/Libyan Arab Jamahiriya) (Judgment) [1982] ICJ Rep. 18, para. 100; Delimitation of the Maritime Boundary in the Gulf of Maine Area [1984] ICJ Rep. 246, para. 94; Continental Shelf (Libyan Arab Jamahiriyia/Malta) (Judgment) [1985] ICJ Rep. 13, para. 34].

Perforce Article 1(a) of each agreement, the maritime limit between the contracting states is the median line, namely a line “every point of which is equidistant from the nearest points on the baselines of the two Parties” (Article 15 LOSC). The mutual acceptance and use of the median line evinces the establishment of a regional practice in the East Med favouring this method, contrary to the efforts of Turkey, which has diachronically been rejecting the median line/equidistance principle; instead, Turkey has been advocating the vague equitable principles/relevant circumstances method, which provides that all relevant factors should be considered so as to reach an equitable result. Paragraphs b-d of Article 1 address the definition of the coordinates of the maritime boundaries.

Furthermore, Article 1(e) envisages a possible review and/or modification of the extreme ends of the demarcation line; this clause is quite crucial as it provides the contracting parties with the power to adjust their maritime boundaries if they reach an agreement with a third state on a triple point joining their respective EEZs. At any rate, in order to establish a tri-point, explicit agreement by all the parties involved is required. Therefore, although the southern extreme end of the Israeli-Cypriot agreement and the eastern terminal point of the Egyptian-Cypriot agreement coincide and even though Egypt has not protested against the Israeli-Cypriot delimitation, there is no agreed tri-point at the moment. The situation is more perplexed when it comes to the determination of the tri-point between Cyprus-Lebanon-Israel in the face of the overlapping claims of Lebanon and Israel with respect to a maritime space of 850-860 square km. Against this backdrop, Lebanon and Israel have unilaterally submitted the coordinates of their alleged maritime zones to the United Nations spurring further ambivalence. It is obvious that the settlement of this conundrum will not be an easy task, nonetheless it is an indispensable need as both states seek to conduct operations in respect of hydrocarbons in the disputed area.

Also, Article 1(e) of the Egyptian-Cypriot and Lebanese-Cypriot agreements recalls Article 74 LOSC (EEZ delimitation), whereas Article 1(e) of the Israeli-Cypriot agreement refers to “the principles of customary international law relating to the delimitation” of the EEZ, notwithstanding the fact that, as stated in the Preamble of the agreement, Israel accepts the application of the LOSC provisions germane to EEZ, including Article 74. However, such distinction is superfluous inasmuch as Articles 74 and 83 (continental shelf delimitation) LOSC have become part of the corpus of customary international law, hence are binding upon non-states parties to the Convention as well [Guinea/Guinea-Bissau 1985 (77 ILR 636), para 88; Eritrea/Yemen 1999, paras 116, 130; Qatar v Bahrain 2001, para 167; Nicaragua v Colombia 2012, para 139; Peru v Chile 2014, para 179].

In Article 2 of these agreements, the parties express their desire to conclude framework unitization agreements in the event straddling hydrocarbon reserves are found (stretching from the EEZ of one party to the EEZ of the other). This clause accommodates the exhortation set forth by international judicial organs advocating joint exploitation of underwater natural resources among neighbouring states [North Sea Continental Shelf Cases (Judgment) [1969] ICJ Rep. 3, para 97; Eritrea/Yemen (Maritime Delimitation) (1999) paras 84, 86; Guyana/Suriname Award (2007) para 463]. Egypt and Cyprus have already penned such an agreement in 2014 (reaffirming their delimitation agreement, and, accordingly, the median line serving as their maritime boundary), while recently the Prime Minister of Israel and the President of Cyprus pledged to sign a similar instrument. Additionally, Article 3 of the delimitation agreements contains a proviso contributing to the furtherance of regional cooperation and the eschewal of any misunderstandings between the interesting parties. By virtue of this article, if one of the two parties is engaged in negotiations for the delimitation of its EEZ with another state, that party “shall notify and consult” the other party before reaching final agreement in case the extreme points of their established boundary are affected.

Moreover, Article 4 provides for dispute settlement through diplomatic channels or recourse to arbitration in case the disagreement is not resolved through negotiations. This term is worth mentioning particularly with regard to the delimitation agreement between Israel and Cyprus given Israel’s long-standing reluctance to be subject to the compulsory jurisdiction of international judicial organs (i.e. International Court of Justice, International Criminal Court). Therefore, the acceptance by Israel of an arbitration procedure -although recourse to arbitration is possible only by prior mutual agreement of the parties- is indicative of the significance Israel attaches to the agreement together with its willingness to establish a strong, long-term cooperation framework with Cyprus. The fact that Israel has acquiesced to the inclusion of the arbitration clause in the agreement is an element distinguishing the Israeli stance from that of Turkey’s (also a non-LOSC party in the region), which opposes any judicial settlement of international disputes. In addition, even though it could be argued that this provision is inadequate as arbitration is not compulsory, it should not escape notice that the LOSC dispute settlement mechanism itself (as well as the ICJ Statute) provides state-parties with the choice to opt-out from compulsory jurisdiction with respect to certain matters. Therefore, the arbitration clause is notable and should not be scorned for not being obligatory as the acceptance of arbitration, even under the condition of a prior agreement, is an important step on the part of Israel. Finally, Article 5 outlines the steps necessary for the agreements to enter into force.

Several notable inferences can be drawn from the foregoing analysis of the maritime delimitation agreements signed by the East Med states. As regards the technique of delimitation, arguably regional state practice has endorsed and consolidated the median line as all three agreements were effected according to this method. Another interesting aspect is that the LOSC is the touchstone upon which the delimitation agreements were founded. The fact that Israel, a non-state party to the LOSC, has conceded to be bound by some of its core provisions contributes to the entrenchment of the Convention, a development which is instrumental in both the uniform regulation of maritime affairs as well as the avoidance of friction in the region. Of course, the Israel-Cyprus agreement does not entail the capacity of Israel to use the LOSC mechanisms -such thing will be possible only if Israel accedes to the Convention- but, nonetheless, signifies the Israeli willingness to act in line with the Convention. It goes without saying that the conclusion of the aforementioned agreements illustrates the desire of the East Med states to reap the benefits of the hydrocarbon bounty; a point reinforcing this view is the stance of Israel, which has accepted arbitration (following an agreement) as a means of dispute settlement in case of disagreement with Cyprus. On the whole, the signing of delimitation agreements in conformity with the law of the sea norms ascertains the deepening of cooperation among the East Med states, which has been enhanced and is likely to be strengthened even more by the conclusion of additional accords pertinent to maritime affairs.

Posted on “Opinio Juris” on 13 August 2015

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