A. Considerations Related to the Settlement of the Aegean Disputes

Studying the judicial settlement of the Aegean maritime disputes is meaningful as long as there is a real prospect for settlement on the basis of international law. There are various elements effecting such a prospect. Some of them are related to past and present relations between Greece and Turkey. Others are associated with the legal views of the two sides over the fundamentals of the disputed issues. Part II focuses on these elements with a view that any real prospect could only emerge if there are positive improvements with regard to those elements that have so far hindered any judicial settlement of the Aegean maritime disputes.

1. Means and Bases of Settling the Aegean Maritime Disputes

A dispute could be described as a specific disagreement between two sides concerning a matter of fact, law or policy. A disagreement is evident if a claim of one party is met with refusal, counter-claim or denial by another. The nature of a dispute is determined according to the subject-matter of the disputed issue. Accordingly, a legal dispute means a disagreement that concerns a matter of law, or a matter regulated by law.

Within such a broad description, the definition of an international dispute is a rather specific one. In its broadest sense, an international dispute covers a disagreement between individuals or institutions of different nationalities. In a restricted sense, however, an international dispute is one that emerges only between two or more States.[1] Therefore, an international legal dispute means a disagreement between two or more States that concerns a matter of international law, or a matter regulated by international law.[2]

The Aegean disputes are international legal disputes as they are between two countries, namely Greece and Turkey,[3] regulated by the relevant rules and principles of international law as outlined in Part I.[4]

Settlement of international disputes are sought through several specific means and on the basis of various considerations. As far as the means of settlement are concerned, two distinct ways are available. A solution could be sought through a third party which may be an individual or individuals or a body such as an ad hoc tribunal or a permanent legal body like the ICJ. Third-party settlement could moreover take many forms such as conciliation, arbitration and adjudication, as enumerated in Article 33 (1) of the UN Charter.[5]

Alternatively, a solution could be sought, without any third-party involvement, through direct dialogue, generally termed negotiation. Similarly, negotiations may take many forms in practice such as face-to-face dialogue or dialogue in written form.

As to the bases of settlement, there are again two general possibilities. The disputing parties may apply either the relevant principles and rules of international law or, alternatively, apply relatively flexible considerations such as politics or extra-legal principles of good faith.[6]

There is no specific requirement that certain bases of settlement should be applied through certain means of settlement. There is therefore no legal requirement that rules of international law should be applied by an international legal body such as the ICJ.[7] However, if the ICJ is authorised to settle an international dispute, the basis of settlement must be either the relevant rules and principles of international law or principles relating to a decision ex aequo et bono depending on special request of the parties to the dispute in hand.[8]

The Aegean disputes could have accordingly been settled thorough various means on various bases. Disappointingly however, none of the above possible means and bases have seriously been put in practice by the two States. Quite the contrary, they are almost unchanged from when they emerged a few decades ago. The reasons behind the deadlock are partially related to the disagreements over the definition of the disputes and determination of the means and basis of settling them. Elimination of these controversies would certainly be the initial step for a settlement process to commence. For our purpose here, it is necessary to discover if there are developments towards this end. This will be seen after reviewing, in general terms, the disagreements over definition and the means and basis.[9]

2. Controversies Surrounding the Settlement of the Aegean Issues

2.1. Obstacles resulting from past and present relations

2.1.1 Disagreement over disagreements

Despite the fact that the concept of the “Aegean disputes” is widely used in the related literature, there is in fact no agreement over its definition. According to Greek foreign policy statements since the early 1970s, there is only one dispute in the Aegean Sea. It is, according to the statements, the delimitation of the continental shelf. In the Greek view, all the other “disputes” are those raised unilaterally by Turkey and, therefore, merely the “unilateral claims”.[10] On the other hand, Turkey purports since 1970s that there are many disputed issues other than the Aegean continental shelf delimitation,[11] which are outlined in Part I.

Despite such a fundamental disagreement, the two countries have held talks several times on the issues other than the continental shelf. They held negotiations in Rome and Brussels in May 1975.[12] In the 1980s, talks took place at various levels between officials of the two countries.[13] This did not, however, mean that Greece has approved these disputes. The deliberations during these meetings and the outcomes suggest that all of these meetings were deadlocked at this preliminary stage of the definition.

There are many factors behind the Greek refusal to approve these issues as disputes. One fundamental element is the fact that the peoples and governments of the two countries have a considerable suspicion and distrust of each other. This originates from both historic events that have taken place between the two nations over a long period of time and the perception of these events by the two countries.[14]

The Greek people believe that the Turks occupied most of their lands in the past and have the intention to capture even more.[15] This is being the attitudes of Greek people and officials to perceive any claim of Turkey as an attempt to fulfil this goal, whatever the real justification is.[16]

Similar feelings explain Turkey’s stance too.[17] Turkey suspects that some disputes connote Greece’s deliberate deviations from the established Aegean status, such as the militarisation of some islands and the territorial sea dispute.

The sovereignty issue is very illustrative of these feelings between the two nations. For the Greek side, the Turkish claim on the Kardak or Imia Rocks[18] was proof for the Turkish policy of trying to capture what actually belong to Greece. By these specific claims, Turkey was, according to the Greek people and the administration, trying to acquire Greek islands or islets. Against this background, it was stated many times during the Kardak crisis that Turkey was pursuing an expansionist policy against Greece.[19] On the other hand, Turkish people saw the event as part of the Greek policy of displacing and suffocating Turkey and trying to capture what the Greeks think had once belonged to Greece.

Elements of suspicion and distrust are not only the result of what has been experienced in the past but also that they are constantly fed by many recent events such as unfriendly statements.[20] Particularly on the Greek side, politicians have been regularly making inflammatory statements for the internal political benefits, as they are well received by the Greek people.[21]

The existing disputes have contributed to the development of the unfriendly atmosphere. The continental shelf dispute has brought the two sides to the brink of war many times. The the possibility of widening the Greek territorial sea has already been declared by Turkey as a reason for a military confrontation.[22] The 10-mile Greek national airspace is a reason for nearly daily confrontation between the aircrafts of the two States.[23] Issues like the Cyprus dispute and the treatment of the Turkish minority in Western Thrace by Greece, which do not have a direct relationship with the Aegean Sea, have similarly added to hostility.[24] The hostility, a fact of past and present, will need to be removed before any improvement in the elimination of such fundamental differences.

2.1.2. Disagreement over the means and bases of settlement

Since the inception of the Aegean disputes in the 1970s,[25] the two countries have expressed conflicting views as to the means and bases of settling the disputes. The dispute over the continental shelf delimitation has been a prominent example.

Greece has always stated that the dispute should be solved through the ICJ on the basis of international law. The two States should come together to draw up an agreement on the submission to the Court.[26] Turkey, however, is against the idea that the continental shelf dispute or any other issues should be referred directly to the ICJ.[27] It has proposed many times that the two States should start a process of talks on all the Aegean disputes with a view to settling them. According to the proposals, if these negotiations fail to settle all or some of the disputes within a reasonable time, the two States may submit the unresolved disputes to the Court by an agreement to be set up by the two sides. The Court will then settle the issue on the basis of international law.[28] As Turkey insists on negotiations first, it seems to have some considerations other than the rules and principles of international law to be taken into account at least in combination with the latter.[29]

Although Greece officially argues that the settlement should be through the ICJ simply because it is a legal issue, the divergence of opinions between the two countries on the means and basis of settlement seems to be, as in the case of definition, based ultimately on the animosity. This is reflected in various forms.

Greece believes that direct negotiations as proposed by Turkey would most probably put Greece in a situation to accept the existence of other disputes and even make compromises on them. This would be unacceptable because Turkey could succeed in gaining more Greek rights in the Aegean Sea.[30]

Turkey, on the other hand, prefers negotiations firstly to achieve Greek approval of Aegean disputes other than the continental shelf delimitation.[31] Moreover, Turkey believes it will be able to better protect its interests through substantial and direct negotiations as the “balance of interests” established by certain international agreements, especially the Lausanne Peace Treaty of 1923, could better be protected.[32] This explains why Turkey has proposed a “package deal” that presumes that disputes are interrelated and calls for their settlement together.[33] Turkey points out that even if the relevant rules of international law were to be applied, they would be applied flexibly through negotiations.[34]

Finally, Turkey believes that bilateral talks would be the best way to establish the necessary confidence and a friendly atmosphere,[35] which would allow the two sides to decide the means of settlement that would be “appropriate” for every single dispute and make the compromises possible for a solution.[36]

As a result, due to their different expectations and concerns that stem ultimately from the element of animosity, the two States also disagree over the means and bases of settling the disputes. Greece would prefer the settlement of the continental shelf delimitation through the ICJ and on the basis of international law. Turkey, on the other hand, seems to accept the possibility of any means and basis of settlement in general terms.[37] However, it insists that the Aegean issues should first be handled through direct and substantial negotiations between the two States and on the basis of various considerations including, but not limited to, the relevant rules and principles of international law.

2.2. Obstacles that stem from the nature of the disputes

The lack of friendship and confidence is behind many obstacles that must be faced before any process of settlement can be initiated. They also explain to a great extent why the two sides have not been able to agree even on what the disputed issues are and how they will be settled. However, it cannot fully explain why the disputes could not be solved for many decades, despite the fact that both sides have conducted negotiations to settle the disputes.

This suggests that the disputes have difficulties which became evident after the process of settlement was started. Part I has already clarified that the Aegean Sea constitutes a very difficult case for the determination of maritime and other respective rights. Consequently there are huge differences between the arguments of the two States which should be solved before a settlement can be reached. The arguments are sufficiently reviewed in Parts IV and V which clearly indicate the degree of conflict over the Aegean issues. [38]

B. Developments Concerning Judicial Settlements

It clearly emerges that for a judicial or negotiated settlement, positive developments should take place both in the bilateral relations so as to create confidence and in the arguments towards closing the gap.

The chance of improvement in both mutual feelings and respective stances of the two sides is always possible, as is the prospect for a judicial settlement of the Aegean disputes. In fact, such developments have been taking place within the last two years, however, they must be approached with caution. The past has demonstrated that in order to create realistic prospects, developments should first of all break ground in feelings and expectations beyond illusive appearances. Secondly, improvement in the relationship between the two countries should be followed by corresponding developments in closing the gaps between the parties’ respective stances on the disputes. The following review will examine whether these developments offer such hope.

1. Developments Between the Two Peoples

Recent positive developments between Greece and Turkey have been initiated between the peoples. Following a major earthquake in Turkey in August 1999, the Greek people and some Greek organizations sent help to the Turkish people who were so badly affected. In the following month witnessed an earthquake in Greece which was relatively quite minor. The Turkish people initiated in return technical help to contribute to the rescue efforts.

In fact, the mutual help given during the earthquakes did not achieve much. Fortunately, the efforts did not stop there. Within the following years, relations improved in many areas. The conduct between the journalists of the two countries intensified. They have established an organization, “the Turkish-Greek Press Council” which has started to convene regularly, the first time between 5-6 February 2000 in Athens and the second time between 8-10 October 2000 in İstanbul. It was emphasized in the announcements after these meetings that the journalists should set themselves free from the influence of politicians and contribute more to the development of positive relations.[39]

Relations have also improved between the intellectuals. Mutual visits, joint concerts and film production have become almost familiar events,[40] The relations in both the economy and tourism have also increased considerably.[41]

The fact that the positive relations between the peoples are increasing is a strong sign of significant improvement in the establishment of trust and friendship between the peoples. The inevitable repercussion of this improvement could be that one of the major obstacles for a negotiated settlement, namely animosity between the two countries, could be eliminated.

2. Developments Between the Governments

In the meantime, similar developments have been taking place between the governments. It is in fact possible to consider them as results of the friendship that previously had started to grow between the peoples. But, as will be seen below, they have, at least in later stages, gained an impetus of their own.

According to some Turkish and Greek officials, the cooperation between the governments of the two States began before the two peoples started to help each other during the earthquakes. According to these views, the representatives of the two governments cooperated during NATO’s attack on Serbia in the early months of 1999.[42]

Clearly, the two sides have began to conduct negotiations since mid-1999. The Foreign Ministers of the two governments met in New York on 30 June 1999 and established a common approach, according to which, some high-ranking officials from both sides would have talks on trade, regional cooperation, tourism, culture, environment, organized crime, drug smuggling, illegal migration and terrorism.[43] It was decided that the issues of tourism, environment and trade would be taken up in Ankara between 26-27 July 1999 and the rest would be taken up in Athens between 29-30 July 1999. Such cooperation seems to have led consequently to the commencement of a “dialogue” or a “process of negotiation” on such matters.

As planned, the representatives from both sides met in Ankara on 26 July 1999 where the pre-determined issues were considered.[44] The following meeting was held in Athens in early September and the above issues were discussed. Some high-ranking officials from the foreign ministries of the two sides met in Ankara for the third time between 15-16 September. In this meeting, all of the above mentioned subjects were discussed.[45]

Another significant development between the governments was the Greek support for Turkey’s candidacy for full membership of the EU during the Helsinki Summit between 10-11 December 1999, where Turkey’s candidacy was reviewed and approved[46] The already started friendship and cooperation gained a further impetus with Greek support in such a significant issue.

In the following month, the Foreign Minister of Greece, G. Papandreou, paid a visit to Turkey between 19-22 January 2000. As a result of the talks held, the two States signed several agreements of cooperation on the issues mentioned above.[47] Moreover, the Foreign Minister of Turkey, İ. Cem, returned the visit to Greece at the beginning of February. As a result of the mutual visits and the talks held during the visits, ten separate cooperation agreements on the pre-determined issues of trade, tourism, culture, environment, organized crime, drug smuggling, illegal migration and terrorism have been signed.

Another positive consequence of the talks is that a common intention has emerged to apply confidence-building measures (CBMs) between the two countries. The two States had already undertaken to apply a set of CBMs that was prepared mainly according to the proposals of Turkey.[48] But, since Greece was restrained and did not really show the necessary will to apply the agreed measures, the CBMs were in fact death before they were born.[49] Within the talks held during this latest period, the two States considered again a fresh attempt to apply such measures.

It seems that Greece is this time approaching more seriously towards the issue.[50] As part of the move, some military staff from both countries have unprecedentedly started to visit each other’s countries. They have even deployed their soldiers in each other’s countries during some NATO military manoeuvres.[51] Moreover, Greek authorities decided that, unlike before, it is not enough for a Kurdish person just to say that he or she is a Kurd and from Turkey to be accepted as a refugee.[52] This is a significant step towards the establishment of mutual confidence as the “Kurdish issue” in Turkey is taken quite seriously by Turkey and its people.[53]

The Foreign Ministers of the two Governments met again on 18 September 2000 during the United Nations General Assembly’s 55th Session in New York. The most significant result of the meeting was that the two Foreign Ministers declared a sincere will to continue dialogue.[54]

Another significant result of the meeting is the declared support of the Foreign Minister of Greece, Papandreou, for the application of the CBMs proposed by the Turkish Foreign Minister, Cem. Moreover, the officials of the two countries would meet in Ankara at the end of September 2000 to discuss the issue. The CBMs contained measures such as military flights without weapons over the Aegean Sea, joint military manoeuvres in the Aegean and the Mediterranean, the reduction of number, area and extent of the military manoeuvres of the two countries and mutual visits by the military personnel. In addition to these military measures, joint exploration and exploitation of the possible oil reserves in the Aegean Sea was also proposed.[55]

Despite some adverse developments in recent months,[56] top officials of the two countries still continue to meet each other regularly. Recently, the Prime Ministers[57] and the Foreign Ministers[58] of the two countries met each other on the occasion of international meetings. Thus, it clearly shows a continuing will to promote cooperation and dialogue between the two countries.[59]

This was clearly demonstrated by the visit of the Greek Foreign Minister to Turkey in May 2001. A result that has emerged from the meetings between the two Foreign Ministers during the visit is the decision to increase the confidence between the two countries. In this context, the two States decided to become party to the Ottawa Agreement banning anti-personnel mines.[60] This will eventually necessitate the removal of anti-personnel mines in the land border in Thrace.

One inevitably wonders what these developments will do, as such talks in the past did not achieve much.[61] They had even agreed on establishing a group of experts in April 1997, named the so-called “Group of Wisemen” which aimed to examine all the differences between the two countries in order to make suggestions to the parties for settlement.[62] The two States had moreover established a framework, known as the Madrid Declaration, in order to establish the process to be followed for the settlement of the differences.[63]

Recent developments have, however, some distinct characteristics. Firstly, the actual process of talks seems to have been dependent on a more real bases as it has, unlike the previous talks, been initiated between the peoples of the two countries. Secondly, the present process of dialogue seems to be more realistic as it initially aimed at establishing confidence through addressing some preliminary issues such as tourism, cultural cooperation, and cooperation on international crime and terrorism.[64] It is appropriate to consider the recent developments being more prospective. Accordingly, they seem to suggest a stronger prospect for a process towards the settlement of the Aegean maritime disputes.

3. The Decision at the Helsinki Summit

The EU’s Council approved Turkey’s candidacy for full membership at its Helsinki summit as mentioned above. It has certainly been a turning point for Turkey’s efforts to become a full member. It is, however, equally significant for Greek-Turkish relations in general and for the settlement of the Aegean maritime disputes in particular. After noting that “the candidate States are participating in the accession process on an equal footing”, the Council pointed out that:

They must share the values and objectives of the European Union as set out in the Treaties. In this respect the European Council stresses the principle of peaceful settlement of disputes in accordance with the United Nations Charter and urges candidate States to make every effort to resolve any outstanding border and other related issues. Failing this they should within a reasonable time bring the disputes to the International Court of Justice. The European Council will review the situation relating to any outstanding disputes, in particular concerning repercussions on the accession process and in order to promote their settlement through the International Court of Justice, at the latest by the end of 2004.[65]

The provision is likely to cause controversy regarding some obligation such as what would be the situation in terms of full membership if the ICJ is not consulted after negotiations fail. There are, however, some clear points that have arisen undoubtedly from the decision that demonstrate that the decision is significant in this context.

Firstly, the Council emphasises “any outstanding border and related issues”. Obviously, it has a bearing on all the major Aegean disputes as they should be considered as boundary issues or at least issues related to boundary matters.

Secondly, the decision repeats the well-known principle embodied into Article 2, paragraph 3 of the UN Charter that all the disputes between the States must be solved through peaceful means.[66] The candidate States including Turkey should resolve their differences with the member States through any of these means in order to become a full member of the EU.

Finally, the provision specifies clearly that if the disputing States fail to solve such disputes “within a reasonable time” through negotiations or any other peaceful means, they should submit them to the ICJ. The “reasonable time” is specified by the provision as the end of 2004 when the European Council will review the situation in order to promote their settlement through the ICJ. Clearly, Turkey will try to solve its major differences with Greece by the end of year 2004, initially through dialogue. If negotiations fail to solve them within this period, the Council will review the situation and promote recourse to the ICJ.

Although the EU decision seems to give the priority to dialogue and consider the ICJ as the final resort, it is a significant development for the possible settlement of the Aegean disputes through the ICJ beyond 2004, if Greece and Turkey fail to solve them through negotiations by that date. This has been further emphasised by the ensuing developments.

Following the Helsinki decision, the EU prepared a document on the Accession Partnership with Turkey in March 2001 which has categorically listed the conditions for Turkey’s participation.[67] The document in its section named “principles” repeats what has been said in the Helsinki decision. Moreover, it uses more explicit language by providing that the disputes “should be taken to the ICJ” if the disputes could not be settled within a “reasonable time”.

C. Reflections For a Possibility of Judicial Settlements

It should be noted here again that settlement on the basis of international law does not need to be only through the ICJ or any other international judicial body. The two sides could also apply the relevant rules and principles through bilateral talks. Given the arguments of Greece and Turkey as to the basis of the settlement which are examined above, it is, however, more realistic to expect judicial settlement only through the ICJ. Nevertheless, if the Helsinki decision and the ensuing developments are considered, settlement through the ICJ seems to be a final resort, while dialogue is given the priority. Therefore, the prospect for a judicial settlement of the Aegean maritime disputes depends on whether the Aegean maritime disputes could be settled through negotiation initially.

1. Prospect for Negotiated Settlements by the Year 2004

The initial indication is that the recent developments between Greece and Turkey could have substantial impact, in a positive sense, on a settlement through dialogue. A trend seems to have emerged in the Greek official statements that negotiation is preferable[68] and the already started talks may soon cover the more significant issues in the Aegean Sea.[69] Moreover, in addition to its previous efforts in this context,[70] Turkey is putting even greater pressure on Greece to persuade it to engage in negotiations on the Aegean issues.[71]

However, there are some clear signs that settlement through negotiations is still a distinct matter. A real sense of trust and friendship, which is essential for a process of negotiation to start does not yet seem to have been sufficiently established. Firstly, it is obvious that not enough time has elapsed to purport that the centuries-old animosity between the two nations has been removed. Obviously, a period of two years is too short to say that it has sufficiently been reduced so as to eliminate obstacles in the way to settlement. It is reasonable to expect such development to continue.

Some behaviour and announcements from both sides prove this. Firstly, the Greek attitude against the main enemy of Turkey, the violent separatist organization of the Kurdistan Workers Party, better known as the PKK, is still far from satisfying. Despite the fact that the two States have declared that they have agreed on joint action against terrorism and signed an agreement of cooperation, the Greek officials do not seem to include the PKK in their definition of terrorism.[72] It is inevitable that Turkey takes such inaction as a sign of continuing Greek animosity against Turkey.

The most serious event in this regard took place during a NATO exercise, called the “Destined Glory”.[73] Contrary to NATO’s plan and despite the strong objections of Turkey, Greece used the air corridors over the islands of Limnos and Ikaria for military flights during the exercises. Upon objections, Greece cancelled its participation in the exercises.[74]

So started confrontation between Greece and Turkey had repercussions on relations very soon. During the Nikiforos-Toksotis 2000, a military exercise that is regularly done jointly by Greece and the Greek Cypriot Administration, some military confrontations, similar to those in previous years, took place between the military aircraft of Greece and Turkey.[75]

As a result, the Defence Minister of Greece, H. Cohacopoulos, declared a set of new measures. According to these measures, they would take serious action against Turkey and fly with weapons over the Aegean Sea and would no longer participate in joint NATO exercises.[76] This has obviously been a major blow to the application of the CBMs. As a matter of fact, certain measures which were proposed by Turkey to increase the confidence and were accepted by Greece[77] have not still been applied properly. Despite the fact that Turkey has been making some gestures in this respect, [78] it seems that Greece has so far avoided such undertakings.[79]

Apart from the above military confrontations and lack of concrete actions, there have been some political statements which could again be viewed as an indication of continuing animosity. The Greek political parties which have representatives in the Greek Parliament once announced that they would not endorse the nine agreements of cooperation that have been, as mentioned above, signed by Greece and Turkey.

The two States have also confronted each other on the European Union platform. The confrontations have taken place especially when the EU Commission began preparing the Accession Partnership Document on Turkey. Greece tried to secure the inclusion of some preconditions into the document such as the settlement of the Aegean issues and the Cyprus problem,[80] which Turkey is strongly against. Moreover, Greece has also tried to exclude Turkey from the decision-making process within Europe Union on the European Security and Defence Identity which again frustrates Turkey.[81]

All these statements and events show clearly that between the two States, especially at the governmental level, the element of animosity is still a matter of fact. A simple confrontation still easily leads to a more serious and hostile reaction from both sides, which indicates that two sides do not still approach to each other with sufficient trust and friendship.[82]

Inevitably, neither Turkey nor Greece has indicated any change to their respective stances on the definition of the Aegean disputes and the means and bases of settling them. On the contrary, there have been clear statements from some Greek officials that the existence of a dialogue between the two countries on certain issues does not mean that Greece will also consider the Aegean issues raised by Turkey as disputes to be negotiated. They particularly emphasize that the issues which concern sovereignty matters in the Aegean Sea cannot possibly be accepted as disputes whatever the relations might be.[83]

Another indication of continuing disagreement on the means of settlement is the link that is established between the Aegean disputes and the Cyprus problem. Greece has declared several times that any possible development as to settlement of the Aegean issues is strictly linked to the settlement of the Cyprus problem. Greece would not contribute to any improvement in the Aegean unless the Cyprus problem is solved to the satisfaction of Greece.[84]

The final point that should be mentioned regarding the prospect for a negotiated settlement is the lack of any recent development towards narrowing the gap in the respective arguments of the two States.[85] Negotiation would certainly require compromises from both countries for a result to be achieved. However, this is something that seems quite difficult to achieve as the arguments and expectations on the settlement still fundamentally differ.[86]

2. Prospect for Judicial Settlements Through the ICJ

As the possibility of settling the Aegean issues by 2004 through negotiations either on the basis of international law or political principles looks slim, it is therefore logical to expect judicial settlement through the ICJ after 2004, which is a condition of the European Council for Turkey’s full membership to the Union.

It would be premature to think, however, that the two States would definitely go to the ICJ after 2004 just because they failed to settle them through negotiations. First of all, the difficulties which are likely to prevent the settlement of the Aegean issues by 2004 are also likely to prevent a judicial settlement through the ICJ. Greece continues to refuse to acknowledge all the Aegean disputes except the delimitation of the continental shelf. Thus, it could not be expected to go to the ICJ for these issues.

Moreover, as long as Turkey continues to insist for various reasons on direct and substantial negotiation as the preliminary way of settlement,[87] it could not be expected to refer the disputes to the Court. Before the Helsinki summit of the EU Council, Turkish officials were already worried about facing various conditions of this kind.[88] During the Helsinki summit, Turkey accordingly looked quite determined that it would prefer substantial negotiations before trying any other means of settlement.

When the Council informed Turkey of the preconditions in the same day that the summit started, Turkey’s response was that it “cannot accept the implication contained in the Presidency Conclusions according to which the Aegean problems between Turkey and Greece might need to be taken to the International Court of Justice by the year 2004 at the latest.”[89] Upon such a strong response, the EU Presidency explained that the statement did not mean a “definite requirement”, but rather set out the date when the European Council would “review” the situation relating to outstanding disputes.

As seen, the Council eventually established such conditions for the settlement of boundary or related disputes.[90] Turkey seemed to have accepted the EU’s candidacy offer only on the reassurance that it had not been a definite requirement.[91] Turkey now seems to consider the year 2004 as a date after which the European Council will review the situation relating to the outstanding disputes, rather than a definite requirement.[92]

The above facts and developments indicate that there are many obstacles for a judicial settlement of the Aegean maritime disputes after the year 2004. However, all these obstacles may not really be significant in terms of preventing any eventual referral of the disputes to the ICJ. It is possible to identify some elements suggesting a prospect for judicial settlement.

First of all, as a result of some recent developments, Greece finds it difficult not to acknowledge the fact that there are many Aegean disputes other than the continental shelf delimitation. Firstly, not only the continental shelf dispute but all the other differences between Greece and Turkey cause serious tension and confrontation between the two countries. This eventually forces both sides to address the issues in one way or another.[93]

Secondly, it is beyond any doubt that despite the Greek argument to the contrary,[94] disputes including the continental shelf have not been unilaterally raised by Turkey. At least two major issues other than the continental shelf delimitation are the results not of Turkey’s but rather Greece’s own initial attempt. It was Greece that started to militarise certain Greek islands despite the fact that these islands were clearly demilitarised by several international agreements[95] and kept by Greece until the 1970s. It is again Greece that intends to make a change to the present limit of its territorial waters. These are facts that inevitably lead to a situation in which various disputes, as has also been accepted by influential third parties like the EU and the USA, exist in the Aegean Sea.[96]

Another reason why the obstacles for a judicial settlement are not really serious is that the reasons and fears behind the Greek refusal prevent Greece from engaging in direct talks with Turkey but should not necessarily do so if the ICJ is to be the arena. Greece seems to consider itself totally justified by law over the Turkish “claims”,[97] as it has already proposed many times that Turkey go to the ICJ for any claims.[98]

Although the Turkish objection for settlement through the ICJ seems to be the most serious, some factors suggest that it is not an absolute one. Substantial talks should be, in Turkey’s view, the initial way of settlement. But, if the talks can not solve the disputes, then the ICJ could be called in. Therefore, the Turkish stance on this matter is similar to what the EU Helsinki summit put forward. If preliminary talks define all the issues and related questions to be submitted to a third party but fail to yield a settlement within a “reasonable time”, settlement through the ICJ would be the way to be followed. Moreover, Turkey’s ambition to become a full member of the EU may soften the Turkish stance against the ICJ.

Thus, the decision of the EU Council at Helsinki has been a major success for Turkish foreign policy which has aimed since 1963, to promote Turkey as a full EU member. The Council’s decision is regarded widely as a major achievement which cannot be swept aside easily without achieving full membership.

At present, the Turkish Government seems to be doing internally whatever is necessary for this goal, including harmonising the municipal law and making specific improvements in Turkey’s frequently criticised human rights record. These elements are listed as short- or medium-term objectives in the Turkish National Programme prepared by Turkey towards becoming a full member.

These suggest that Turkey’s cautious approach to the Helsinki decision due to the condition of settlement through the ICJ should be regarded as tactical, rather than fundamental. It will not be easy at all for any Turkish Government to refuse the membership offer just because they feel that the disputes should not be settled through the ICJ which Turkey, as has been said, approves in general terms.[99]

Whatever the Turkish policies in this context, it is almost certain that it will face pressure from the EU, especially through Greece, for a settlement through the ICJ beyond 2004. This is clear from the definite expression used in the Document on Accession Partnership mentioned above. Greece has noted that:

[I]f Ankara fails to accept the jurisdiction, as outlined in the Helsinki EU summit that accepted Turkey as a candidate member, of the International Court of Justice in The Hague, it will find itself in trouble with Brussels. Accession talks will not be able to proceed. The only course of action is The Hague.[100]

This supports a view that Greece approved the Turkish candidacy in order to be able to secure stronger pressure from the EU on Turkey for the settlement of the Aegean issues through its preferred means.[101]

Despite the difficulties that are still in the way of settlement of the Aegean maritime issues through the ICJ after 2004, there are also counter signs that these obstacles are not so serious as to prevent it altogether. It is possible and more likely than ever that the two States could go to the ICJ for the settlement on the basis of the relevant rules and principles of international law.

Yucel ACER: U.S.A.K. Centre for Sea and Water Law Studies, Ankara. BA (Ankara U., Turkey), LLM (Sheffield, U.K.), PhD (Bristol, U.K.)
U.S.A.K. / I.S.R.O., International Strategic Research Organization / Uluslararası Stratejik Araştırmalar Kurumu.

1 May 2007, Journal of Turkish Weekly