The observations concerning the delimitation law in the previous parts[1] are aimed at establishing a framework in which the delimitation of the Aegean maritime areas could be carried out on the basis of international law. Part VI takes on the identification of which delimitation principles described in the previous chapters are applicable to the Aegean maritime delimitation. The second main concern is the determination of how they should be applied to the specific circumstances of the Aegean Sea to arrive at an equitable settlement.
The aim here is not to establish a precise delimitation line. This requires highly technical measurements that are not necessary for the purpose of the present study. It will rather be sufficient to indicate a general course of a delimitation line in order to demonstrate how an "equitable" delimitation line could be established between Greece and Turkey in the Aegean Sea.
* A. Main Aspects of the Maritime Delimitation in the Aegean Sea
1. The Framework of a Single Delimitation Line
In the Aegean Sea, delimitation of the continental shelf is the only actual delimitation issue.[2] Delimitation of the territorial sea between Turkey and Greece is a theoretical matter and does not constitute an actual confrontation. Similarly, no actual delimitation dispute exists to concern delimitation of the EEZ as neither of the two States have declared it in the Aegean Sea. It is, however, quite likely that the two States will declare EEZ, delimitation of which will cause a dispute similar to the that of the continental shelf.[3] This is inevitable due to the legal and practical exigencies resulting from the similarities between the two maritime concepts and the characteristics of the Aegean Sea.
On the basis of these facts, our concern here is the delimitation of the continental shelf and the EEZ.[4] However a search for a single delimitation line rather than separate delimitation lines in areas like the Aegean Sea is justified by the maritime delimitation law in general terms.[5] It is helpful to give more detail of the legal and practical facts that justify a single line delimitation with particular reference to the Aegean Sea.
The concepts of the continental shelf and the EEZ are closely related to each other in a legal sense. They attribute the same type of rights to the coastal States and have the same seaward extent in general terms.[6] On the basis of these juridical similarities, it is possible to use a single line delimitation in most cases.[7] On the other hand, a single delimitation line is necessary on the basis of two other principles, even if the parties concerned did not specifically request it. If the area between two countries is less than 400 miles, sea-bed features fail to justify an extension of the continental shelf of one country beyond 200 miles. Secondly, one country cannot have an EEZ without corresponding continental shelf rights underneath it.[8]
When these two principles are combined, one of these two maritime concepts cannot have a wider or narrower delimitation line than the other in certain areas. The delimitation line should thus coincide. It seems that if the two maritime areas are to be delimited in the same delimitation process, the Aegean Sea is an area in which the result should be a single delimitation line, even if Greece and Turkey do not specifically request it.
The Aegean Sea is relatively a narrow sea that is less than double the extent of the 200-mile EEZ even at its widest section. Moreover, hundreds of sizeable islands located in the sea cause the continental shelf and the EEZ area to shrink even further.[9] Therefore, the actual facts of the Aegean Sea clearly indicate that there is no possibility that the continental shelf or the EEZ of one party could be wider than the other.
If, however, Greece and Turkey do not specifically request or seek a single delimitation line,[10] there will be some consequences to be taken into account. In a single-line delimitation requested specifically by the parties, the factors that are exclusively peculiar to only one of the two maritime areas will be disregarded. This is because the delimitation is performed as a single line delimitation from the beginning. However, if it is not requested as a single line delimitation, all the relevant factors will, as it has been clarified in the Jan Mayen Case, be considered although the result might inevitably be a single line.[11].
In the Aegean Sea, a specific request for a single line will result with the exclusion of the Aegean sea-bed features which are exclusively related to the continental shelf concept.[12] It deserves to be noted that the sea-bed features have already lost most of their relevance to the delimitation of the continental shelf within 200 miles.[13] Geomorphology has been replaced by the principle of distance as the basis of title within 200 miles.[14]
It is therefore appropriate to conclude that, if the two States declare an EEZ in the Aegean Sea, the result will inevitably be a single line delimitation regardless of the parties’ request. The parties’ specific request could effect the role of sea-bed features which is in fact limited in the contemporary delimitation law.[15]
2. The Relevant Area and Coastlines
2.1. The relevant delimitation area
The views of Greece and Turkey are at variance on defining the relevant delimitation area which would constitute the basis for the whole delimitation process.[16] Greece restricts the relevant area to the places around the eastern Greek islands and the nearby Turkish coast. These areas are in fact claimed by Turkey as the continental shelf areas. Turkey, on the other hand, argues that not only the area in dispute but the whole of the Aegean Sea is relevant to the delimitation.[17]
The solution to this disagreement is addressed by the principle that the "area in dispute" does not necessarily overlap with the "area" relevant to maritime delimitation. Secondly, the relevant area is determined mostly by the claims of the parties themselves. The only restriction in this context is that the areas claimed by either party should have a geographical relation with the area in dispute.[18]
As already pointed out, the disputed area in the Aegean Sea falls exclusively in the eastern section of a median line between the mainlands where the Greek islands are located close to the Turkish mainland. No claims by Turkey exist east of the imaginary median line between the mainlands.[19] However, the disputed area does not overlap with the relevant area.
Settlement whether the whole Aegean Sea constitutes the relevant area could be addressed on the basis of the parties’ claims. In the Aegean Sea Continental Shelf Case, two related questions in this context were presented to the Court by Greece. The first was whether certain Greek islands in the Aegean Sea, "as part of the territory of Greece", are entitled to the portion of the continental shelf which appertains to them according to the applicable principles and rules of international law".[20] The ICJ, on the basis of this question, observed that the "very essence" of the dispute was the "entitlement of those Greek islands to continental shelf."[21] This was, however, an "essence" only for the purpose of jurisdiction as the initial stage of the case concerned the jurisdiction of the Court only. The Court with this observation was trying to ascertain whether the continental shelf rights were related to the "territorial status of Greece" for jurisdictional purposes.
The second question was "what is ’the course of the boundary (or boundaries) between the portions of the continental shelf appertaining to Greece and Turkey in the Aegean Sea in accordance with the principles and rules of international law’."[22] In fact, this question summed up the dispute as a whole and demonstrated that even according to Greece, the delimitation did not only concern the areas between certain Greek islands and Turkey, but also the Aegean Sea as a whole.
In addition to these deliberation, the other claims of both parties as to the relevant circumstances show that the Aegean Sea as a whole is relevant to delimitation. Greece refers to many factors that are related, not only to the disputed portion of the Aegean Sea but also to the Aegean Sea as a whole, such as the consideration of its entire Aegean coastline. Similarly, Turkey insists on an equidistant line between the mainlands that calls the whole of the Aegean Sea into consideration.[23]
Other than the parties’ arguments, the observations as to the principle of proportionality in Part V suggest that the Aegean Sea as a whole is relevant to the delimitation between Greece and Turkey. The principle requires that whole of the Aegean Sea be taken into account to determine the equity of delimitation result.
The UK-France Arbitration constitutes a precedent in this regard due to its similarities. In that case, the location of the islands had similarities with the location of some of the Aegean islands. As far as the Channel Islands region was concerned, the area in dispute could be restricted to the area around the Channel Islands as the arguments of both sides concerned only that area.[24] The Tribunal in that case did not approve the words that it should decide "the course of the boundary (or boundaries) between the portions of the continental shelf appertaining to the United Kingdom and the Channel Islands and to the French Republic respectively". The Tribunal clearly observed that the delimitation was not between these islands and France, but between the UK and France as a whole.[25] Otherwise, it would lead to the separation of Channel Islands from the British Isles as if they were separate political units.
The above facts indicate that, for the delimitation in the Aegean Sea, it is not only the area in dispute but the Aegean Sea as a whole which is relevant. There is no need to define the Aegean Sea in precise terms for this purpose.[26] There is, however, a problem to be addressed in this context. In the southern Aegean Sea, two States on the North African coasts, namely Libya and Egypt, have a potential title to certain areas as the distance between Greece and Turkey on the one hand and these countries on the other is less than 400 miles. In accordance with the judgments that addressed the similar situations previously,[27] the coastlines of these two States projecting towards the Aegean Sea should be taken as relevant in establishment of the provisional delimitation line between Greece and Turkey on the one hand and Libya and Egypt on the other.[28]
2.2. The relevant coasts
The next problem in the Aegean maritime delimitation is related to the above. It is whether all the coastlines of the two States within the delimitation area, or only some of them, would be relevant to the delimitation. As already noted, they could be taken into account in order to establish the coastal lengths which determine whether the coastal lengths of the two States are significantly different, so as to constitute a relevant factor, and the ratios for the purpose of the proportionality.[29]
Certain principles for the settlement of such issues have already been identified on the basis of the principles flown from the delimitation judgments.[30] Firstly, coastal areas wider than the relevant coasts could be taken into account for the purpose of the proportionality test. Therefore, coastal lengths for the proportionality test could be longer than those that are taken as relevant to the delimitation.
Within the context of the Aegean Sea, the controversial issue is whether the coasts of the Aegean islands will be included into the calculation of Greece’s relevant coastal length.[31] The following question is whether the coasts of these islands should be taken into the calculation for the purpose of the proportionality test.
Coastal lengths for the purpose of the proportionality test in the Aegean Sea, will be considered later.[32] As far as the coastlines to be taken into account as relevant for the delimitation process are concerned, it is not possible to refer to any specific principle other than a general principle which provides that it depends on the circumstances of both the delimitation area and the islands with a view to equitable delimitation. According to the idea of equity, it does not seem to be appropriate to include all the Aegean islands into the calculation. These islands at this stage are yet to be assigned any role within the delimitation process. They should not therefore be included at the outset into the calculation of the coastal lengths.
3. A Sectoral Approach to the Aegean Maritime Delimitation
The complexity of the Aegean geography should be obvious from Part I.[33] It contains both places where the coastal relations of the two States are different and areas where there are many islands situated densely. As pointed out earlier, such cases could be delimited with a sectoral approach for an equitable result.[34]
The geographical circumstances and coastal relations are divergent in three separate Aegean sectors so as to call for the application of different delimitation methods. Firstly, unlike other parts of the Aegean Sea, the mainland coasts are adjacent in the north where the land boundary terminates at the sea. Their coasts are adjacent to a certain point in the northern sector. On the other hand, this part is relatively island-free compared to the southern Aegean Sea.[35]
The remaining part of the Aegean Sea should be considered as two separate sectors. The first is the central Aegean Sea that lies between the 38th and 39th latitudes. The coastal relation of the parties in this sector seems to be perfectly opposite one other, which is disturbed slightly by certain coastal features. Similar to the northern Aegean Sea, there are only a few islands in this region.
The final sector is the southern Aegean Sea that lies southward from the 38th latitude. The coasts of the two States are mostly opposite. However, it also represents a different pattern of coastal relation between the mainlands. The coasts become quasi-adjacent beyond a certain point in this section. This region also has many more islands when it is compared to the other two sectors. Moreover, the biggest Greek island in the Aegean, Crete, is located in this sector in an exceptional position so as to mark the border between the Aegean Sea and the rest of the Mediterranean.[36]
Therefore, for a better assessment of the relevant factors with a view to an equitable delimitation in the Aegean delimitation process, it is necessary to consider the Aegean Sea in these separate sectors. As a reflection of the principle identified previously, the consideration in three separate sectors does not mean to separate them completely. These three sectors will still be taken together at least for the purpose of proportionality calculation.[37]
* B. Equitable Delimitation in the Aegean Sea
It is essential to note at the outset that the principles that represent the geography of the Aegean Sea establish the initial delimitation line as in any other delimitation process. Two points are quite significant in this respect. Firstly, by the term "the geography of the Aegean Sea", it is meant the coastal geography of the mainlands of Greece and Turkey, as approved in the delimitation law.[38] Examination here will initially exclude the islands from consideration in order to establish the main, but provisional, delimitation line. Secondly, the initial line will be evaluated with reference to the other factors including islands in order to arrive at an equitable delimitation.[39]
1. Delimitation Based on the Aegean Coastal Geography
The situation in the Aegean Sea is mostly one of oppositeness thus calling for an establishment of a median line between the mainlands of the two sides. One issue has to be explained at the outset. Within the special context of the Aegean Sea the existence of the different baseline systems of Greece and Turkey has potential to cause a problem. The situation was similar in the Guinea-Guinea Bissau Arbitration. Although the parties presented sufficient information as to their baselines, the Tribunal observed that it was not a "direct concern of the Tribunal".[40] This is why the ICJ in the Tunisia-Libya Case observed that the continental shelf begins, for the purpose of delimitation, from the outer limit of the territorial sea.[41] Thus, the courts are not in a position to consider the baselines other than the delimitation of the continental shelf.
The fundamental question therefore remains to be whether there is any markedly distinctive geographical feature that renders the median line inequitable even as the initial line. Three separate sectors of the Aegean Sea will be considered to discover whether there are any such geographical factors.
1.1. The northern Aegean Sea
The Greek-Turkish land boundary terminates in the mouth of the River Evros (Meri’) in the northeast Aegean Sea. The coasts of the two countries are adjacent to a certain point from the land boundary terminus. Moreover, whole the northern coasts belong to Greece. The coasts of the two States are not, however, only adjacent but also opposite beyond a certain point if the northern shores of Greece are also considered in this particular sector.[42]
According to these geographical facts, the delimitation line for the continental shelf and the EEZ between Greece and Turkey should start until a point where the land boundary terminates at the shore.[43] The maritime boundary for the territorial sea has already been determined between the two countries when the breadth of the territorial sea was 3 miles.[44] However, the two States disagree on the maritime boundary that would separate the respective territorial waters beyond three miles. For our purpose, it seems appropriate to start the delimitation line where the previously determined line ends at 3-mile distance.
The angle of the delimitation line that starts at the adjacent territorial sea limit should not be equidistant between the mainlands in this sector, which would deny one of the most significant geographical factors, namely the northern coasts of Greece. Greece has a longer coastline than Turkey in this sector. Speaking in legal terms, this difference in the coastal lengths should be taken to constitute a special circumstance.[45] Accordingly, the delimitation line should be fixed closer to Turkey to allow more maritime areas to Greece in this particular sector.[46]
It is possible to see similar cases in practice. A situation similar to this was handled in the Gulf of Maine Case. The coasts of the parties were adjacent in the inner section of the Gulf of Maine,[47] however the American coastline was longer than Canada’s within this part, which, like the northern coast of Greece, faced almost all of the delimitation area. The Chamber accepted that the delimitation line would be a line perpendicular to the coast at the land boundary, but would not be perpendicular to the general direction of the coast.[48] The Chamber observed that the difference in the coastal length was a "special circumstance of some weight" which, in the Chamber’s view, justified the correction of the provisional delimitation line in order to allow more maritime area to the USA.[49]
For the Aegean Sea, in addition to the principle respecting coastal lengths, the principle of non-encroachment necessitates that the delimitation line be located closer to the Turkish coast. This principle, which again respects the coastal geography,[50] requires that the Greek coastline surrounding most of the northern Aegean Sea has to be respected. An equidistant line in this part would cut off the projection of the Greek coastline. Therefore, the continental shelf or EEZ of Turkey should be located closer to the Turkish mainland.[51]
The course of the delimitation boundary in the northern Aegean Sea should not always be located closer to Turkish mainland coast however. The effect of the Greek coastline in the north should cease at a point where the northern coasts of Greece have been sufficiently respected. This point should be approximately a mid-way in the sector from north to south.
It seems that the coastal configurations of both countries beyond this point indicates that the delimitation line should gradually become a median line between the two mainlands. Without the effect of the islands in the region, as we assume for the moment, the Greek coasts in the western part of this region have, in general, a concave shape having only one area stretching into the sea. This is the Khalkidhiki Peninsula that separates the Gulf of Strimonikos and the Gulf of Thermaikos. Although a straight median line could be drawn between the mainlands, the effect of this stretch could push the straight median line closer to the Turkish coast in that particular section of the delimitation line. The opposing Turkish coast, the Biga Peninsula, is a similar configuration. Thus, the effect of these features seems to be as an "off-set".[52] The delimitation line will still be a straight median line that would leave equal maritime areas in this particular area.
The Greek mainland coast has one more geographical feature to be considered in this region. The already mentioned stretch on the Greek coast possesses three finger-shaped features that lie even further towards the sea, up to a total distance of 50 miles from the coast.[53] If these features are given full-effect, the delimitation line will be located much closer to the Turkish mainland. The geographical features classified as the "slightest irregularities" by the ICJ in the North Sea Cases seem to be such minor features which produce a disproportionate effect on the delimitation when compared to their presence within the whole geographical context.[54] They are quite narrow, finger-shaped features with no significant presence in the geographical context. Giving full or any limited effect to them would seem to cause a "magnified" and thus "inequitable" effect on the delimitation line. They should therefore be ignored.
Greece does not, as seen, apply straight baselines that could have closed their foremost points. Even if it were so, they should still be ignored for the sake of an equitable delimitation. Consequently, the delimitation line will, in the northern sector, favor Greece due to its longer coastlines.[55]
1.2. The central Aegean Sea
Continuing to assume that the islands, including Evvia which is the second largest Greek island in the Aegean, do not exist, the central section of the Aegean Sea represents a simple geographical scene due to the fact that the mainland coasts of Greece and Turkey are simply opposite each other in this sector. In any delimitation case, such a situation clearly calls for the application of the most equidistant method as the equitable delimitation method.[56]
The coastlines of both States demonstrate a special pattern in this sector. Generally speaking, the Greek coastline deviates from its general direction in the northern section of this sector. The coast becomes convex so as to lie closer to the Turkish mainland. On the other hand, the coast of the Turkish mainland similarly changes direction inwards towards the Turkish mainland.
As the coastlines of both States change course in the same direction, the distance between them stays the same. Accordingly, the delimitation line will still be equidistant from the mainlands allowing equal maritime areas to both countries.
Some other coastal features of the sector suggest a similar deviation on the equidistant delimitation line. If the general direction of the Turkish coast is taken, a protuberance on the Turkish coast, i.e. the "zmir Peninsula, deviates and stretches into the Aegean Sea as far as 40-50 miles from the general direction. Giving a full-effect to this protuberance would certainly replace the equidistant line with a line much closer to the Greek mainland in that particular section.
However, almost opposite the "zmir Peninsula, the Greek coast bends inwards, if the island of Evvia is totally disregarded. These features are positioned so as to create a "broadly offset effect".[57] Taking these factors into account is necessary and does not create a delimitation line different from the equidistant line. It only changes the line’s direction.[58]
Therefore, in the middle sector of the Aegean Sea, the delimitation line will simply be an equidistant line in accordance with the geographical framework in which the coastlines are opposite and comparable in length.[59] There is no geographical feature that would suggest a significant deviation. The geographical features on both sides of the coastlines can only cause the equidistant line to veer to one side or another without making it other than a roughly equidistant line between the mainlands.
1.3. The southern Aegean Sea
The coastlines of Greece and Turkey are still opposite each other in most of the southern Aegean Sea. The most striking coastal feature in this region is that the mainland coasts of Greece and Turkey change their course in opposite directions. While the Greek coast turns westward in its general direction along the Peloponisos peninsula, the Turkish coast turns eastward so as to create the widest part in the Aegean Sea. This is not however something which necessitates a departure from the application of the equidistant method in this particular section.
Among other coastal features which deserve to be considered here is Greece’s Lavrion Peninsula. However, even if it were given full-effect, the result would not be other than an equidistant line between the mainlands simply because the Turkish mainland coast runs eastwards so as to compensate for the effect of the Lavrion Peninsula.[60]
The other significant feature is the coastal relationship between the mainlands. The mainland coastlines of both countries cease to be opposite in the south of the 37th latitude and face the Mediterranean rather than each other. This means that their coasts become adjacent or quasi-adjacent, thus relevant to the determination of the delimitation line in this part of the Mediterranean.[61]
In the absence of islands in this section, the situation is quite similar to one that was dealt with by the Arbitration Court in the UK-France Arbitration. In the Atlantic region, the coasts of the parties were in a similar relationship. The Court eventually ruled that the equitable delimitation line was the one equidistant from the mainlands.
The problem in this sector of the Aegean Sea is how far the delimitation line should go southward. It has already been noted when dealing with the relevant delimitation area that Libya and Egypt on the North African coasts have a potential title to some parts in the southern Aegean Sea. Thus, the coastlines of these countries become relevant to the delimitation in the Aegean Sea. If the island of Crete is taken into account, such a delimitation would be between these countries and Greece for the delimitation in the Mediterranean Sea. Therefore, it does not directly concern the delimitation in the Aegean Sea.[62]
As far as determining a point where the delimitation line will end, it seems appropriate that the delimitation line could be determined at around a point that is equidistant from all these countries concerned.[63] Such a point does not seem to encroach upon any possible claims of the countries on the North African coast, as required by the principles determined in the case-law.
2. The Effect of the Aegean Islands
If the Aegean Sea were a sea with no islands as assumed above, the delimitation of the continental shelf and the EEZ would be, as seen above, relatively simple. The above review has shown that the delimitation line would roughly be an equidistant line in the two sectors of the whole delimitation area. Only in the northern Aegean Sea, would Greece have a wider maritime area than Turkey on the basis of the geographical facts that characterize the area.
Such a simple delimitation process does not, however, reflect the real geographical circumstances of the Aegean Sea. In reality, there are more than 3,000 islands, islets and rocks scattered all around the sea, This makes the Aegean Sea an extremely difficult case for maritime delimitation.[64] The situation becomes even more complicated as most of these islands and islets belong to only one party, Greece. Although considered secondary to the coastal geography of the mainlands, the islands should be taken into account to ensure that the delimitation indicated by the coastal geography is truly an equitable one.[65]
2.1. Basis observations on the role of the Aegean islands
In the light of principles which have already been identified as to the role of islands within delimitation process,[66] they constitute, for delimitation purposes, certain groups according to both their location and other relevant characteristics. Some of these could only have a limited role to play or no role at all.
It is a rule of law that if "low-tide elevations" are situated close to the mainland, they could only be considered as elements relevant to the establishment of baselines. Others which are not close to mainland neither generate maritime areas nor affect the establishment of baselines.[67] They should not accordingly play any significant role in the delimitation of the continental shelf and/or EEZ, other than constituting base points for the measurement.[68]
Such low-tide elevations in the Aegean Sea, whose number could well be in thousands, are therefore ineffective on the delimitation line. Only those that are situated nearer to mainlands could be taken into account as basepoints from which the continental shelf and EEZ could be measured.
On the other hand, even some "high-tide elevations" that are entitled to their own territorial waters are not entitled to their own continental shelf and EEZ areas. It is a rule of both conventional and customary law that rocks which cannot sustain human habitation or economic life of their own shall have no continental shelf or EEZ.[69] However, such islands could still be considered as basepoints for the purpose of the delimitation of the continental shelf and EEZ, if there are situated inside the territorial sea of one country.[70]
There are thousands of rocks in the Aegean Sea which fall within this definition. They are simply rocks "that cannot sustain human habitation or economic life of their own". Accordingly, such elevations in the Aegean Sea should be totally disregarded from the delimitation process. Only those that are close to the mainland should constitute relevant basepoints.
Many such rocks that are situated in the vicinity of the Turkish mainland coasts are subject of a sovereignty dispute between Greece and Turkey.[71] However, since these features do not play any role even as base points, the issue of sovereignty is irrelevant to the delimitation in hand.
As a result, a considerable number of low tide elevations and some of high-tide elevations, i.e. islands, of Greece and Turkey should be excluded from the considerations within the delimitation process. Only those that could be regarded as "major" islands ought to be considered as significant in shaping the delimitation line in accordance with their location and other relevant characteristics.[72]
2.2. The coastal islands in the Aegean
In all the three sectors of the delimitation area Greece has coastal islands which are situated close to its mainland coasts. The northern Aegean Sea has only two such islands.[73] One of those, the island of Thassos, is situated very close to the Greek northern mainland coast, some part of which is situated inside the Greek territorial sea. In the south of this particular region, only one among a group of eight islands, Repi, could be regarded as a coastal island which is situated within the mainland’s territorial sea. In the central Aegean Sea, Evvia is the only major coastal island that lies alongside the Greek mainland. It lies so close that it could in fact be regarded as an integral part of the mainland. In the southern Aegean Sea, the number of the Greek islands is much higher. It is not easy to give an accurate number. At least nine such islands can be enumerated as they are situated either within the bays of the mainland coast or the territorial sea.[74]
As in the previous delimitation cases, the situation in the Aegean Sea poses the same question whether the effect of the coastal islands will have an inequitable effect on the delimitation line between the mainlands if they are accorded any effect. Based on the fact that they are situated very close to mainland, coastal islands have only been regarded as constituting basepoints in establishing the general direction or the coastal length of mainland coasts.[75] In some cases, they were only allowed to carry a partial effect, rather than full-effect.[76]
In the Aegean Sea, if the Greek islands are allowed to transfer the coastal line as far as their location, it will considerably restrict the maritime areas to be attributed to Turkey.[77] The inequity of such an effect is clear. As a result of even the median line delimitation that has been suggested above,[78] Turkey would not have maritime areas equal to those of Greece. Turkey would have a much smaller continental shelf and EEZ areas due to the already existing territorial waters of the Greek islands. This suggests that the coastal islands should be ignored for an equitable delimitation unless they are situated so close to the Greek mainland that they would not have a considerable effect as basepoints for the measurements.
Analogies supporting this contention could be made between the Aegean Sea and some previous cases. A clear analogy is between the Tunisian coastal islands of Kerkennah and Jerba in the Tunisia-Libya Case[79] and the Greek coastal islands of Thassos and Repi in the Northern Aegean Sea. The locations of these islands are similar in the sense that they bear on a delimitation line between coasts which are both adjacent to and opposite each other.[80] Moreover, these islands would similarly change the course of the delimitation line so as to attribute significantly more maritime areas to the mainland.
The way in which these Tunisian islands were considered and given an effect was by using them as basepoints. However, their effect was partial.[81] According to the Court, giving full-effect to these coastal islands would increase much further the effect of the Tunisian projection onto that of Libya and would thus be "excessive".[82] Rather than shifting that line as far as their presence, they only shifted the line in a partial manner. Thus, the baseline did not pass over them but between the mainland and these islands.[83] On the other hand, the Court hardly attributed any role to the Tunisian island of Jerba which was almost touching its own coast. According to the Court "in the part of the area to be delimited in which the island of Jerba would be relevant, there are other considerations which prevail over the effect of its presence".[84]
There was a similar situation in the Guinea-Guinea Bissau Arbitration where islands were situated just off the mainlands.[85] The difference in the Arbitration was the fact that Guinea and Guinea-Bissau were situated as adjacent States. The Tribunal considered the coastal islands only in the calculation of the coastal length for the purpose of proportionality.[86] Rather than affecting the calculation of the coastal length in a full manner, they played a limited role even for this purpose.[87] The Tribunal observed that other considerations, mainly those related to the mainlands were prevalent over their presence.
An analogy between the Greek coastal islands in the southern Aegean Sea and situations in some other previous cases is also possible. The first is the Gulf of Maine Case in which the Canadian coastal island of Seal (with its neighbor Mud island) is a small one (2.5 miles long) inhabited all the year and is situated nine miles inside the closing line of the Gulf of Maine.[88]
As in other cases, the Chamber of the ICJ did not give the island of Seal a continental shelf and fisheries zone of its own. However, it considered that Seal island could not be disregarded for the present purpose on the basis of its "dimensions and, more particularly, of its geographical position".[89] The Chamber considered the island only in the calculation of the proportionality ratios. In this context, they were not attributed full-effect but only "half-effect" in the determination of these ratios.[90] Another similar case was the Libya-Malta Case where a Maltese coastal island was situated just off the mainland coast. The ICJ considered the island as a "minor feature" within the whole setting of the Mediterranean. Accordingly the Court disregarded it altogether in the delimitation process.[91]
The similarity between the coastal islands in the Aegean Sea and those in the Eritrea-Yemen Arbitration is quite considerable in terms of their location and number. Even the arguments of the parties are significantly similar.[92] The Tribunal did not take into account the coastal islands to the south of the delimitation area so as to confirm a similar way of handling the coastal islands in the Aegean Sea.[93] However, the Tribunal included the coastal islands of Eritrea and Yemen to the north of the delimitation area into the establishment of the baselines of both countries from which the delimitation line was to be measured. The Tribunal acted accordingly because both parties accepted that at least the coastal islands of Eritrea constituted part of the mainland coasts.[94]
Among the coastal islands of Greece, Thassos and Evvia are distinct as they are larger and more populated than the others. These are the elements that could play a positive role in considering the effect of islands.[95] As far as Thassos is concerned, allowing it either a full or limited-effect has an "excessive" result on the delimitation line due to its location. As already noted, the indicated delimitation line between the mainlands is already closer to Turkey due to the longer coastlines of Greece in this sector. Moreover, Turkey has even more restricted continental shelf or EEZ areas in this sector due to the already existing territorial waters of the Greek islands under the current 6-mile limit. It seems that there could not be any justification to restrict even further the maritime areas of Turkey in this sector, as it would result in no maritime areas for Turkey at all.
There is another reason to ignore the island of Thassos altogether. The Turkish coastal island of Bozcaada is located almost on the opposite side of Thassos so by ignoring them both the delimitation line can be left unchanged in this particular section. Although there was a similar situation in the UK-France Arbitration and the Tribunal gave certain effect to such islands,[96] the situation in the Aegean is different in the sense that the islands in the UK-France Arbitration were also projecting towards the Atlantic and did not create such dramatic effects.
As far as the island of Evvia is concerned, no such result will appear if it is given a certain effect in the central Aegean Sea. There will be no such significant decrease in the maritime areas of Turkey under the delimitation line suggested by the mainlands. This is due to the fact that unlike the northern sector, the delimitation line in this sector is a median line. This means that the reduction in the Turkish maritime areas would not be considerable. Moreover, Evvia could consequently be given full-effect as the second biggest island in the Aegean Sea and an integral part of the Greek mainland coast.
The location of the island of Kithira in the south-west Aegean Sea is similar. The island constitutes an integral part of the mainland coast. It does not however cause any diversion in the course of the delimitation line in the case of its full-effect. It only establishes a useful point for the establishment of the equidistant line between the mainlands.[97]
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[1] Part III, V.
[2] See Part I, A 2.2.4; Part V, A 1; A 2.
[3] See Part I, B 2.2.5.
[4] Even if it did constitute a subject here, it would still not be possible to consider a single-line for three maritime areas, namely the territorial sea, the continental shelf and the EEZ. It is legally and, in most cases, practically impossible to have a single-line for these three concepts. See Part V, B 5.
[5] See Part V, B 5.
[6] See Part III, B 1, 2; C 1.
[7] Establishing a multi-purpose single-line for both the continental shelf and the EEZ has been a growing tendency in judicial cases, as has been seen. See Part V, B 5. As Attard points out, it has also been a growing tendency in State practice, despite the fact that it is not an obligation. See Attard, (1987), p. 78. See also Bowett, (1987), p. 23, 24.
[8] See Part III, B 2; C 1.
[9] See Part I, A 1. See moreover, Appendix I, Map 1 which indicates that it is relatively a narrow sea area.
[10] It is noted that, single-line delimitation is appropriate within the peculiar circumstances not only for the Aegean Sea, but for the whole Mediterranean. Attard, (1987), p. 79.
[11] See Part V, B 5. Attard points to the fact that, if the States in the Mediterranean do not request a single-line delimitation they will enjoy many more relevant factors being taken into account. Attard, (1987), p. 79.
[12] See Part V, B 5. As Bowett notes, in a single-line delimitation, the search for criteria or factors relevant to both the shelf and water column narrowed the choice of criteria to the relatively simple ones which were related to the geography of the coasts. Naturally, if you discount all the physical features of the sea-bed, you are left with the pure geography, i.e. length and shape of the coasts, the distance between them. Bowett, (1987), p. 26.
[13] See Part V, B 2.2.1.
[14] See Part III, B 2.
[15] See infra, C 1.
[16] See Part V, A 3. Van Dyke notes that "The choice that is made will have a substantial impact on the final result of the delimitation process." Van Dyke, (1996), p. 397.
[17] See Part V, A 3. More recently, the Turkish Foreign Ministry Spokesman said that "We have described the regions of the Aegean continental shelf which remain outside the six-mile territorial waters as a disputed area that has not been delineated between the two countries." F. Ataman, Foreign Ministry acting spokesman, BBC SWB, EE/1902 B/5, 22 January 1994.
[18] See Part V, B 4.1.
[19] See Part V, A 3. For the exact line, see Appendix I, Map 5.
[20] This question was necessitated by the fact that Turkey would not allow any continental shelf areas to these islands. For the Turkish arguments, see Part IV, A 2.
[21] See par. 83.
[22] See par. 82. See also par. 1.
[23] See Part V, A 1, A 2, A 3.
[24] See Part V, B 6. 2.
[25] See par. 184, 185.
[26] As it is not legally imperative to define the relevant area in precise terms, as already noted before. See Part V, 4.1.
[27] See Part V, B 2.2.3; B 4.1.
[28] See infra, B 1.3.
[29] See Part V, B 5.2. See also, for instance, the Tunisia-Libya Case, par. 74-75. For the latter view, see the Canada-France Arbitration, par. 26-31.
[30] See Part V, B 4.2.
[31] See Part V, B 3; B 4.2.
[32] See infra, C 4.
[33] See Part I, A 1.
[34] See Part V, B 7. The advantages of the sectoral approach to the delimitation in the Aegean Sea is apparent to a number of authors. Van Dyke, for instance observes that "The geography of the Aegean requires dividing it into sectors to delimit the maritime boundary." Van Dyke, (1996), p. 402. Moreover, pp. 397-398.
[35] See Part I, A 1.2.1. See also Van Dyke, (1996), pp. 397-398.
[36] For a different division of the Aegean Sea into sectors for the delimitation purposes, see ibid.
[37] See infra, C 4.
[38] See Part V B 2.1.
[39] See Part V, B 2.1.
[40] The Tribunal observed that "The problem of the baselines necessary to establish the 200-mile limit recognised by the Parties as the extent of their exclusive economic zone is not of direct concern to the Tribunal, as these lines depend on the unilateral decision of the States concerned and do not form part of the present dispute", par. 96.
[41] See par. 116.
[42] For the peculiar relation of the Greek-Turkish coasts in the northern sector, see Appendix I, Map 1.
[43] It is also the case for the Aegean Sea. See Van Dyke, (1996), p. 402.
[44] See supra, Part I, B 2.1.2.
[45] See Part V, B 2.1, and 5.
[46] It seems that the observation of Van Dyke as to the delimitation in this sector is superfluous to an extent. He argues that the delimitation line "would gradually move toward a median line between the two continental land masses’.Because the north Aegean has relatively few islands, standard maritime delimitation principles can be used in that area." Van Dyke, (1996), p. 402. However, on the basis of the standard principles, the delimitation line between the mainlands cannot be an equidistant line for the most part of the northern Aegean Sea.
[47] See par. 206.
[48] See par. 174.
[49] See par. 184. In that case, the Chamber did not reflect the effect of the longer coastline on the delimitation line in this particular sector but reflected it upon the delimitation line in the second sector. Thus in this latter sector, the "median line" according to the Chamber, "could well be applicable but it cannot be applied here in the face of the fact that the back of the Gulf is covered by the Maine’s (i.e. the US) coast", par. 218.
[50] See Part V, B 2.1; B 3. In the Guinea-Guinea Bissau Arbitration, the Tribunal observed that "In order for any delimitation to be made on an equitable and objective basis, it is necessary to ensure that, as far as possible, each State controls the maritime territories opposite its coasts and in their vicinity", par. 92. See also par. 98.
[51] For the review of the principle and related examples, see Part V, B 3.
[52] For the review of a similar situation, see the UK-France Arbitration, par. 103.
[53] These are three finger-shaped features called Akti, Sithonia and Kassandra. See Appendix I, Map 1.
[54] See Part V, B 3, B 4. According to the Court, such an exaggeration of the consequences of a natural geographical feature must be remedied or compensated for as far as possible, par. 89. Moreover, the ICJ in the North Sea Cases observed that in order to establish the necessary balance between States with straight and those with markedly concave or convex coasts, or to reduce very irregular coastlines to their truer proportions, the general direction of the coastlines should be considered, par. 98.
[55] This is neither a denial of the principle that "it is not such natural inequities" that "equity could remedy", nor the principle that "There can never be any question of completely refashioning nature", par. 91. The ICJ observed that "given a geographical situation of quasi-equality as between a number of States, of abating the effects of an incidental special feature from which an unjustifiable difference of treatment could result", par. 91.
[56] See Part V, B 2.1.
[57] See, for instance, the UK-France Arbitration, par. 103.
[58] The Tribunal in the UK-France Arbitration observed a similar situation in the case that "The effects of irregularities in the coastline of each State are, broadly, offset by the effects of irregularities in the coastline of the other, and a median line boundary will thus result in a generally equitable delimitation as between the Parties. The Court, therefore, considers that its first step should be to determine the course of the median line within the Channel to the east and to the west of the points where the presence of the Channel Islands has to be taken into consideration", par. 103.
[59] In addition to what we have said as to this principle in Part V, B 2.1; B 3. and to the observation of the ICJ in the North Sea Cases, (see supra, B 1.1) it is necessary to note here that the Arbitration Court in the UK-France Arbitration observed that "where the coastlines of two opposite States are themselves approximately equal in their relation to the continental shelf not only should the boundary in normal circumstances be the median line but the areas of shelf left to each Party on either side of the median line should be broadly equal or at least broadly comparable", par. 182. This is significant because, in a part of the Channel, the French coast stretches into the sea while in the same area, the British coast bends inwards. The Tribunal established a median line in that area on the basis of this principle. See also par. 103.
[60] For the review of a similar situation, see the observation of the Tribunal in the UK-France Arbitration, par. 103.
[61] In the Guinea-Guinea Bissau Arbitration, the tribunal considered that "there is no reason why two States should not have coasts which are partially adjacent and partially opposite each other", par. 91.
[62] The ICJ in the Tunisia-Libya Case observed that: "How far the delimitation line will extend north-eastwards will of course, depend on the delimitations ultimately agreed with the third States on the other side of the Pelagian sea", par. 130. As the Tribunal in the Guinea-Guinea-Bissau Arbitration observed, a "delimitation designed to obtain an equitable result cannot ignore the other delimitations already made or still to be made in the region", par. 93.
[63] See the Eritrea-Yemen Award, par. 136.
[64] See Part I, A 1.1; A 2.
[65] This is what the delimitation principles also necessitate to achieve an equitable delimitation, as already seen in detail. See Part V, B 7.
[66] See Part V, B 6.
[67] See Part III, D 1.
[68] See the North Sea Cases, par. 57. The Court observed that "In these geographical circumstances, the Court has to take into account not only the islands, but also the low-tide elevations, while they do not, as do islands, have any continental shelf of their own, do enjoy some recognition in international law for certain purposes, as is shown by the 1958 Geneva Conventions as well as the draft convention of the Law of the Sea", par. 128. See also par. 79.
[69] See Article 121 (3) of the 1982 Law of the Sea Convention. See moreover, Part III, D 2.
[70] The ICJ pointed out in the Gulf of Maine Case, as it did in the North Sea Cases, that there is a potential disadvantages inherent in any method which "takes tiny islands, uninhabited rocks or low-tide elevations, sometimes lying at a considerable distance from terra firma, as basepoints for drawing of a line intended to affect an equal division of a given area. If any of these geographical features possesses some degree of importance, there is nothing to prevent their subsequently being assigned whatever limited corrective effect may equitable be ascribed to them, but that is an altogether different operation from making a series of such minor features the very basis of the determination of the dividing line or from transforming them into a succession of basepoints for the geometrical construction of the entire line", par. 201.
[71] See Part I, B 1.2.
[72] See Part V, B 6.1; 6.2; 6.3.
[73] See Part I, A 1.2.2. See also the tables included in the present study.
[74] These are Makronissos, Yeoryios, Aiyina, Angistrion, Paros, Idhra, Dhokos, Spetse, Kithira. Three of the coastal islands in this area are situated within the Saronikos Gulf and one of them is within the Argolikos Gulf.
[75] See Part V, B 6.1. Many such islands could be taken as only baselines so that they could be regarded as part of the mainland as only having territorial sea of their own, so far as the delimitation of the continental shelf is concerned. See Karl, (1977), pp. 656-657.
[76] See Part V, B 6 1.
[77] See Appendix I, Map 2.
[78] See supra, B 1.
[79] The Kerkennah Islands were a few miles off the Tunisian coast facing the maritime projection of the Libyan coasts and the island of Jerba was even closer to its mainland coast as it was almost touching it.
[80] The parties gave them different effects ranging from no effect to full-effect. Libya has contented that "in arriving at the general direction of the coast lines, the Island of Jerba invites omission, since it is clearly an exceptional feature and its inclusion would introduce irrelevant complications. Similarly, the Kerkennah Islands should be excluded since they occupy little more than 180 square kilometres", par. 79. See also Herman, (1984), p. 831.
[81] In this context, the Court said that "It is not easy to define what would be the inclination of a line drawn from the most westerly point of the Gulf of Gabes to seaward of the Kerkennah Islands so as to take account of the law-tide elevations to seaward of them; but a line drawn from that point along the seaward coast of the actual islands would clearly run at a bearing of approximately 62 to the meridian. However, the Court considers that to cause the delimitation line to veer even as far as 62, to run parallel to the island coastline, would, in the circumstances of the case, amount to giving excessive weight to the Kerkennah Islands", par. 128.
[82] The Court observed that "to cause the delimitation line veer even as far as 62, to run parallel to the island coastline, would, in the circumstances of the case, amount to giving excessive weight to the Kerkennah Islands", par. 128.
[83] In the area where these islands were situated, there was a change of direction in the Tunisian coast making the Tunisian coast inclined towards the maritime projection of the Libyan coasts. The Court in this regard said that "the existence and position of the Kerkennah Islands and surrounding low-tide elevations, on the other hand, are material", par. 79. The Court explained the technique as follows: Briefly, the technique involves drawing two delimitation lines, one giving to the island the full-effect attributed to it by the delimitation method in use, and the other disregarding the island totally, as though it did not exist. The delimitation line actually adopted is then drawn between the first two lines, either in such a way as to divide equally the area between them, or as bisector of the angle which they make with each other, or possibly by treating the island as displaced toward the mainland by half its actual distance therefrom...the Court considers that it should go so far as to attribute to the Islands a "half-effect" of a similar kind." par. 129. For the calculation of half-effect in State practice, see Beazley, (1979), pp. 154-159.
[84] The Tunisia-Libya Case, par. 79.
[85] The coastline in the area to be delimited in this case was marked with the presence of numerous islands. To determine the extent to which these islands could be taken into account for delimitation purposes the Arbitration Court classified them in their different categories. See par. 95: In short: a) the coastal islands, separated from the coast by a narrow sea. b) The Bijagos Islands: Further off the coastline up to 37 miles belonging to the same territory of nationality. No two of which were further apart than miles from each other. c) There were also the more southerly islands scattered over shallow areas some of which may be taken into account for the establishment of the baselines and be included in the territorial waters, par. 95.
[86] The Court provided in that regard that "In order to ensure that each party has controlled over the maritime territory opposite and in the vicinity of its coasts an important factor is the coastal configuration and orientation. The configuration must include the relevant island i.e. the coastal islands and the Bijagos Archipelago", par. 98.
[87] The Court observed "Furthermore the relevant islands must not be taken into account in the form of the total obtained by adding together the parameters of each of them but as elements determining the general direction of the entire coastline of the country considered." And the Court took into account the island in establishing the coastal length of Guinea Bissau which, par. 97.
[88] See par. 222.
[89] Idem.
[90] The Chamber observed that "it would be excessive to treat the coastline of Nova Scotia as transferred south-west-wards by the whole of the distance between Seal Island and that coast, and therefore thinks it appropriate to give the island half-effect." As the Chamber further explained, "Since it was only a question of adjusting the proportion by reference to which the corrected median line was to be located, the result of the effect to be given to the land was a small traverse displacement of that line, not an angular displacement, and its practical impact was therefore limited", par. 222.
[91] See par. 69.
[92] Yemen argued for a median line between its islands and the mainland of Eritrea by ignoring all the Eritrean coastal islands. It only took the Eritrean islands of Dahlak as basepoints for the median line delimitation in the north. See par. 114. On the other hand, Eritrea ignored all Yemen’s islands. See par. 114, 121.
[93] See par. 128.
[94] See par. 114, 121.
[95] See Part V, B 6.1.
[96] The Tribunal considered that both Ushant and the Scilly Isles "cannot be disregarded in delimiting the continental shelf boundary without refashioning geography" as they were islands of "a certain size and population" and as "natural geographical facts of the Atlantic region", par. 248.
[97] Although the locations could be different, such islands, even if they were small rocks, could be used, where appropriate, as basepoints from measurements, as the Tribunal did in the UK-France Arbitration. Some low-tide elevations, the Eddystone Rocks, were considered in the UK-France Arbitration by the Tribunal. Despite the argument as to whether they should really be regarded as island, (see par. 133, 140), the Tribunal accepted that these features were relevant to the delimitation of the territorial sea and the contiguous zone as they constituted a basepoint for them. See par. 144, 139.
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Yucel ACER: Head of the U.S.A.K. Water and Sea Law Studies Desk & Fellow of the USAK Centre for International Law Studies
Remembering The Orly Attack
