On the hotspots of the maritime space delimitation agreement between the Republic of Albania and the Republic of Greece
by: Dr. Osman METALLA
George C. Marshall Albania board member
Associated Profesor at “Aleksander Moisiu” University of Durres
The issue of the maritime agreement on the delimitation of the maritime spaces between Albania and Greece continues to be a current topic even after many discussions made recently in the print and visual media, followed by a raised public interest. The history of reaching an agreement between the countries dates back to 2007 when the countries decided to negotiate. The 2009 agreement was an agreement reached after a nearly 2-year course of negotiations. However, it was an agreement made 11 years ago, in terms of another expertise, in the absence of many of the new precedents brought by the international court, in the pronounced lack of experience and expertise of Albanian negotiators, and finally this agreement after the lawsuit made by the Socialist Party in opposition at that time was overturned by the Constitutional Court with Decision no. 15 dated 15.04.2010.
In these conditions, the parties agreed to be sent for settlement to an international court in 2012, but in 2013 were postponed because of the change of governments in Greece and in Albania too. Finally, in 2017 the Rama government decided not to send the agreement to an international court but to resume negotiations.
As below, I would like to address in a synthesized way some issues which accompany the reaching of a new agreement and which should be taken into consideration by the Albanian negotiating team for reaching an agreement where the Republic of Albania receives the maritime spaces that belong to it under the International law. – UNCLOS-82
HEADING -1: TERRITORIAL WATER EXPANSION ISSUE FROM 6-12 MILLION MARINE
At the start of negotiations in 2007, Greece’s declarations were for a territorial sea braedth of 6 nautical miles. In 2017, Prime Minister Tsipras would declare that Greece intended to expand its territorial sea by 6-12 miles, and this was announced through Greek Foreign Minister Kotzias. The statements by the Albanian side were vague, confusing and even in support of such an expansion. Two months ago, a similar statement disturbed the waters in Albania and the region with the statement of Prime Minister Mitcotaqis in the Greek Parliament.
REGIONAL IMPLICATIONS – Greece has not declared a 12-mile territorial sea as this has met with strong opposition from Turkey due to the position of the Greek islands very close to Turkish territory (the case of the islands of Castelorezo and Chios) and this leads to spatial disproportions territory. In 1995, when Greece acceded to UNCLOS-82 it would declare a territorial sea of 6 nautical miles with a reservation that at any time in accordance with Article 3 of the Convention it could extend to 12 nautical miles, the Turkish Parliament convened immediately and declared that at any moment Greece would make such a statement it would be in casus belli with Greece.
DIRECT IMPLICATIONS- a declaration of territorial sea expansion from 6-12 miles directly affects the maritime space in front of the Albanian coast. Even in the conditions when the territorial waters are 6 nautical miles, due to the positioning of the islands of Corfu and the islands of Othonoi and Erikouza in its north-west, make the width of the Greek territorial waters in this area measured from the baseline of Corfu go from 13-18 nautical miles. If a territorial sea expansion were to be applied from 6 -12 miles, again this space would be expanded from 19-24 nautical miles, thus producing extraordinary disproportions of spaces and an immediate expansion of Greek territorial sea, as well as the immediate expansion sovereignty of the Greek state in a space in which it has historically not exercised one. The following sketches are for illustrative purposes only and do not represent accurate measurements or any genuine expansion study
Case 1 – Greek territorial sea 6 miles. Case 2– Greek territorial sea 12 miles
INTERNATIONAL LAW – UNCLOS Article 121, which deals with islands, gives islands the right to have their own maritime zones as defined in the convention. If they support human life, they may have a territorial sea and an Exclusive Economic Area (EEA).
International practice and maritime doctrine give priority to the Continental Coast in relation to the islands. There are numerous cases where the International Court of Justice has ruled in favor of partial effects or zero effect on the islands. This is to maintain the proportions of maritime spaces that are shared between countries. In the present case, giving a limited bandage of the territorial waters of the islands of Othonoi and Erikuza would be a more reasonable solution, and the Greek territorial waters being measured from the baseline of the island of Corfu.
This could allow to some extent the expansion of the Greek territorial sea up to 12 miles; as such a measurement should be made from the Corfu baseline, and the granting of a territorial sea band to the islands of Othonoi and Erikoza would respect the proportionality of the delimitation of territorial maritime space between countries
HEADING -2: DIVISION OF EXCLUSIVE ECONOMIC AERIE BETWEEN COUNTRIES
However, the Maritime doctrine and I repeat gives precedence to the continental coast in relation to the islands. This raise the Question: Should Corfu have a EEZ, at a time when its position is such that it has created what is known as the Cut Off effect. In case this island would not be in that position, then, the whole area in front of the Albanian coast beyond the territorial border would be the Albanian EEZ. Even in this case, analyzing the Cut off effect, the case law of the international court has discussed and has precedents.
Thus, in the case of San Martin Island in the delimitation between Bangladesh and Myanmar, the court granted the island only the right of territorial sea and not that of the EEZ. There are other similar cases in court practice. (also, in the practice of delimitation between countries – the case of Lampedusa Island – full effect with Malta as it is an island with an island, and limited effect with Tunisia as it is a continental land-island)
In our case, again this effect is amplified by the presence of the islands of Othonoi and Erikouza which according to the Greek authorities are inhabited islands (with a population of about 500-700 people).
As above, the Albanian negotiators should seek limited effects for the island of Corfu in relation to the EEZ and zero effect for the islands of Othonoi and Erikuza. This would be a fair delimitation on the maritime areas claimed by the Republic of Albania regarding to the EEZ
HEADING – 3: ITALY-GREECE AGREEMENT FOR EEA
Finally, there is a new development. Greece and Italy sign an agreement on the delimitation of the EEA. Such an agreement was negotiated without the presence of the Albanian side and without informing Albania at a time when in the NW part of Corfu there are maritime spaces which in the conditions discussed in HEADING-2 could be spaces that should already be discussed between Italy and Albania and not Italy and Greece
In these conditions, the Republic of Albania should present its reservations to such an agreement which has completely neglected the Albanian side as stakeholders in this maritime space. (Article 34 of the Vienna Convention)
HEADING-4: DECLARATION OF THE APPLICATION OF THE BASIC LINE IN DELIMITION
The measurement of maritime spaces is done from the baseline which according to the convention can be a normal baseline, straight or combined. The application of the baseline must be uncontested and satisfy the provisions of the convention. In these conditions, the Republic of Albania considers such a declaration a change the rules of the game (as in the case of the expansion of the territorial sea from 6-12 miles) in the middle of the negotiations, as the negotiations have started with the declaration of the normal straight line
IMPLICATIONS – in case of application of a straight baseline, the Republic of Albania should study whether the conditions for such an application have been respected and that the closure of inland waters does not affect the delimitation line.
BARKETA CASE – Barketa is a rock that floats on water at high tide and has a surface of several square meters. It’s positioning in the middle of the Corfu canal which has complicated the issue of delimitation.
In the context of straight baseline declaration, it is not clear whether Barketa will be used as the endpoint for baseline measurement. If this is the case, then we are again dealing with a rather troubling problem as we have a change in the historical navigation regime and the status of the navigation area
Based on the Florence Protocol of 1925 This protocol defines in details the land boundary, in a very narrative way they describe the shape, position, circumstances where the pyramid is located, as well as the whole detailed description from pyramid to pyramid to end in the bay of Ftelia with the description: “along the sea line in the bay of Ftelia, the border is directed according to a normal line in the general direction of the coast to the edge of the territorial waters leaving in Albania the small island Tongo”. While in the final act of Paris of 1926 is written the description: “in the water line, the direction is extended in the direction of the normal SW with the territorial sea“.
As it can be seen, the border follows a normal SW direction near the middle of the Corfu canal. That assumes that Barketa rock is not considered.
As above, the Albanian negotiating team should insist not to give any effect to the rock Barketa and the delimitation should follow the normal equidistant line from the two coasts.
Moreover, for 70 years such a practice was followed until the year back in 1997, when the capabilities of our navy were destroyed. In these conditions, the Greek side monitored the entire maritime space alone and “pushed” the traffic on the Albanian side from the Barket rock. At this time there have been an increasing number of incidents especially with fishing and tourist boats, but the absence of the presence of the Albanian authorities for the above reasons, made the Greek Coast Guard have to do according to its plans. Such incidents should be investigated as a good basis for possible defense in the international court.
Based on some of the above findings, I think that the Republic of Albania has already stated that there should be a solution through an international arbitrator should follow these steps:
- To establish as soon as possible the Technical group for the preparation of the technical proposal for the delimitation of the maritime spaces claimed by the Republic of Albania.
- To constitute a professional group of constitutionalists and maritime legal experts for the preparation of technical/legal arguments in defense of the technical proposal.
- To seek international consultancy in order to strengthen the legal position in defense of technical proposals
- To make in advance all necessary reservations/claims before the UN-Security Council regarding:
- Implications of the Italy-Greece agreement
- The application of the straight baseline by the Greek side with the rock of Barketa in mind (Reference Articles 16 and 17 of UNCLOS) and the enclosure of the bays in accordance with the provisions of the UNCLOS-82 convention
- Present reservations regarding the effect of islands in terms of EEA
- Present reserves from the effects produced by the application of territorial sea expansion from 6-12 nautical mile.
- The study of all maritime incidents as a proof of the exercise of the right of navigation and the existence of a approximate delimitation of the maritime space of the territorial sea in the Corfu Channel, and the exercise of the right of navigation for 70 years, and their presentation as facts (Corfu Canal Incident Expertise included) to the International Court/ Arbitration.