ANALYSIS - Albania, Greece taking issue of maritime jurisdiction zones to The Hague

Bill doubling Greece's territorial waters in Ionian Sea brought disputes over maritime jurisdiction with Albania to the fore

Fatjon Cuka   | 12.02.2021
ANALYSIS - Albania, Greece taking issue of maritime jurisdiction zones to The Hague

TIRANA, Albania

The issue of the delimitation of maritime jurisdiction zones between Albania and Greece is causing controversy around the region, especially after the Jan. 20 passage of a bill doubling Greek territorial waters in the Ionian Sea from six miles to 12, with the jurisdiction issue now set to go to The Hague.

The Greek move to double its waters, which drew criticism and sparked debates in Albania in recent months, raised questions about exclusive economic zones on Albania’s continental shelf and determining the maritime jurisdiction zones between the two countries.

History of dispute

The first document establishing borders between Albania and Greece goes back to the 1912-1913 London Conference of Ambassadors. Later, on Jan. 25, 1925, a protocol establishing maritime borders was signed. The final judgment concerning Albanian maritime borders was drafted on July 30, 1926, at the Paris Conference of Ambassadors, signed by Albania, Greece, and Yugoslavia. Although the judgments and protocols established the maritime borders between Albania and Greece, in recent years their delimitation has sparked into a dispute.

The UN Nations Convention on the Law of the Sea (UNCLOS) appears as the most important document on international maritime law. Before the UNCLOS, two separate UN conferences about maritime law were arranged in Geneva in 1958 and 1960. Greece ratified the UNCLOS in 1995 followed by Albania in 2003. The convention, known as "the constitution of maritime law," gives every country has a right to extend its territorial waters up to 12 miles. Nonetheless, some other provisions limit and regulate that right. Due to the characteristics of the Albanian and Greek coasts and the special situations and details of Greek islands such as Corfu, Lazaretto, Ereikoussa, and Othonoi, these provisions have been subject to legal discussions and different interpretations. International legal norms give precise rules and principles for the problem of maritime jurisdiction zones that are binding beyond the parties' interests and requests.

Another controversial topic is the need for an agreement to determining exclusive economic zones under maritime law. According to UNCLOS, which both Albania and Greece are subject to, for two countries with coasts opposite or adjacent to each other, establishing an exclusive economic zone should be made upon a mutual agreement under international law. Continental shelves between two countries with coasts opposite or adjacent are also established under the same basis.

Keeping in mind the international maritime law definitions mentioned above and the characteristics of the Albanian and Greek coasts, to extend territorial waters, parties should make a mutual agreement on small Greek islands' territorial waters and the status of these islands' territorial waters against the continental shelf.

Albania and Greece's dispute comes into clearer focus with Albanian experts on international law suggesting "a small island cannot have the same rights as a continental shelf."

Article 15 of UNCLOS states, "Where the coasts of two States are opposite or adjacent to each other, neither of the two States is entitled, failing agreement between them to the contrary, to extend its territorial sea beyond the median line every point of which is equidistant from the nearest points on the baselines from which the breadth of the territorial seas of each of the two States is measured. However, the above provision does not apply where it is necessary because of historic title or other special circumstances to delimit the territorial seas of the two States in a way which is at variance therewith."

Considering that many Greek islands in the Ionian and Aegean Seas are located very close to the Albanian and Turkish mainland, the situation becomes more complicated for Greece. For that reason, taking action on extending territorial waters and dividing maritime zones requires agreement between Greece and its neighbors.

2009 Albania-Greece agreement and objections

The issues of maritime jurisdiction areas, which were neglected under Albania's communist regime (1944-1991), came back to life after the regime's collapse, and official negotiations began. In 2009, an agreement concerning the "delimitation of counterparties' continental shelf, and other maritime zones in accordance with international law" was signed between the Greek and Albanian governments, represented by then-prime ministers, Kostas Karamanlis and Sali Berisha.

The agreement was objected to by the Socialist Party (PS), led at the time by Edi Rama, who is now Albania’s prime minister. The party later applied to the Supreme Court, arguing that the agreement is unconstitutional. About the agreement, which was nullified after scrutiny and not approved by parliament, the party claimed that the "maritime borders between Albania and Greece were previously determined and there was no need for a new establishment" and that "the agreement's negotiation and preparation period was not dealt with transparency." The party argued that the baseline was not determined before and that it was important to do so for determining the continental shelf and other areas, that the Albanian and Greek coasts were not the same, and that this matter affected the principal to be chosen to determine the maritime border.

According to these arguments, the Greek island of Corfu was located within a maritime jurisdiction zone that should belong to the Albanian government. This argument created advantageous geographic conditions for the Greek party. The socialists, arguing before the Supreme Court, also claimed that the island of Othonoi formed an extension of the Greek maritime area towards the north, to the disadvantage of Albania. The Socialist Party stated there is no reason to acknowledge a maritime area for the Barketa rock since it appears and disappears with the tides.

Rejection of agreement by Albanian Supreme Court

In 2010, Albania’s Supreme Court declared the agreement "legally invalid" and "unconstitutional" and nullified it. The court detected substantial procedural infractions within the draft agreement, breaching the Constitution and UNCLOS. The court stated that the agreement failed to fulfill the "equity" principle stated necessary for the establishment of maritime jurisdictions zones in UNCLOS and emphasized that the "equity" principle is not only taken into account in the determination of continental shelves and exclusive economic zones but also in the division of territorial waters between countries with have coasts opposite or adjacent to each other, citing Article 15. According to this, under "special conditions," coast length, shape, and the presence and natures of islands or rocks are pointed out. Bearing in mind the principle of "equity" and the aforementioned "special conditions," the court stated Albania’s opinion on the matter, adding that the special features of both countries and especially the presence of islands and rocks subject to maritime jurisdiction zones should be taken into account.

The court, while sharing the opinion that the main island of Corfu should be taken in hand separately and that the effects of the settled islands Lazaretto, Ereikoussa, and Othonoi should be assessed individually, also stated that the borderline established by the agreement grants all of the islands full jurisdiction (unjustly), making the islands equal to Albania's continental land. The court also pointed to a 1977 agreement concerning the determination of the continental shelf between Italy and Greece in which the islands of Othonoi and Ereikoussa are granted partial authority.

According to the Supreme Court, another important problem of the 2009 agreement was the Barketa rock. Pointing out that the agreement grants this rock full jurisdiction, it said it is problematic that a small, deserted island with no economic activity is held on equal terms as the continental land of Albania. Moreover, due to its location, the rock causes the borderline between the two countries' continental shelves to shift to a considerable extent.

The court, in its final declaration, also stated the agreement signed by Albania and Greece is unconstitutional for the following reasons: The president did not give the Albanian committee full authority to run the negotiations. There were serious deficiencies in its content. The fundamental principles of international law were not applied to ensure a fair and correct deliberation of the maritime zone between the two countries, and the islands were not considered a special condition.

In case of a possible further negotiation process or if the issue goes to international courts, this decision by the Supreme Court of Albania should be taken into consideration.

Beginning of negotiations and decision to go to international court

The issue of maritime jurisdiction areas between Albania and Greece remains an obvious complication, causing disputes in both countries.

In April 2018, Albanian Prime Minister Edi Rama and then-Greek Prime Minister Alexis Tsipras commenced official meetings once again on the delimitation of maritime jurisdiction zones between the two countries. After several meetings, the parties were unable to reach a settlement and the talks ended without a conclusion. Also, Greece's claims on extending their maritime jurisdiction areas in the Ionian Sea faced a backlash by top Albanian authorities. Against these claims, Rama said, “The right to extend to 12 miles can only be executed in areas where it is applicable," adding that this right is based on UNCLOS and that Albania used this right in 1990 per the equity principle.

Last August former Prime Minister Berisha, who signed the agreement voided by the Supreme Court, said about Greece's plan to double the territorial waters from six miles to 12: "This action will be harmful to Albania. The region is already under trouble from the existing frictions between Turkey and Greece, and these situations will create consequences."

The latest conflict between Albania and Greece arose in 2020. On Oct. 20, Albanian authorities stated that they reached an agreement with Greece to take the issue to the international courts, and Greek Foreign Minister Nikos Dendias confirmed that the issue would be taken to The Hague.

After the parties prepare their documents, they are expected to present their arguments in front of The Hague International Court of Justice. As expected, the court will deliver its final judgment, hopefully resolving the issue as an explicit dispute between the parties.

*Translated from Turkish by Baran Burgaz A​​​​​​​yaz

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