Legal, regional, and international consequences of the maritime agreement signed between Turkey and the Government of National Accord in Libya

EPC | 25 Dec 2019

Local and regional actors have expressed their anger at the memorandum of understanding for the delimitation of maritime boundaries in the Mediterranean Sea which Turkey and the Government of National Accord in Libya, under the leadership of Faiz al-Siraj, signed on 28 November 2019 in Istanbul. This paper will examine the main features of the deal, its position with regard to international law, and the legal, regional and international consequences.

Legal analysis of the agreement reached between Turkey and the Government of National Accord in Libya

  1. General observations on the agreement
  1. The agreement defines the boundaries of the continental shelf and the Turkish and Libyan exclusive economic zones in the Mediterranean Sea, with no regard for the sovereign rights of Greece and Cyprus over those waters.
  2. Article 4 of the agreement provides that Libya and Turkey shall be entitled to a share of the natural resources in each other’s exclusive economic zone, provided that they have concluded agreements for the purpose of jointly exploiting such resources. The danger here lies in the fact that the agreement allows Turkey to conduct a direct military intervention in the waters off the Libyan coast, in connection with the other memorandum of understanding on military cooperation that the two countries concluded at the same time as the maritime agreement.
  3. Turkey exploited the division and chaos in Libya to convince the Government of National Accord to seize the Greek waters in the Mediterranean Sea through the maritime agreement. Furthermore, article 5 of the agreement states that either party may propose revisions or amendments to any part of the agreement with the exception of articles 1 and 2; this is Turkey’s way of ensuring that the Government of National Accord complies with the provisions of the agreement and does not try to dissolve it further down the line.
  1. Position in relation to international law
  1. The 1982 United Nations Convention on the Law of the Sea is considered the primary piece of legislation governing all the uses of the seas and oceans. In article 56, the Convention establishes the concept of an exclusive economic zone of no more than 200 nautical miles, in which a coastal State has sole sovereign economic rights for the purpose of exploring, exploiting, conserving, and managing the natural resources.
  2. Under international law, maritime boundaries cannot be defined unilaterally by a coastal State, as the positions and views of other States that share a maritime boundary with that State must be taken into account[1]. The ultimate goal of such provisions is to prevent international conflict between States regarding the delimitation of maritime boundaries. Article 74 of the Convention on the Law of the Sea provides that the delimitation of maritime boundaries must be carried out on the basis of international law in order to achieve an equitable solution. In addition, article 121 clearly states that islands have the legal right to an exclusive economic zone. International law also provides that the conclusion of land and maritime boundary agreements is a matter of regional sovereignty and that such agreements cannot be concluded if any of the States parties is experiencing a period of war, internal armed conflict, or exceptional internal circumstances, with the exception of natural disasters.

The Turkey–Libya agreement therefore clearly violates several principles of international public and maritime law:

  1. The Libyan Council of Representatives, as the body with the constitutional authority to approve such agreements, rejected the deal. Aguila Saleh, head of the Council of Representatives, sent a letter to the United Nations Secretary-General stating that the Council had rejected the agreement and considered it null and void.
  2. Siraj’s government is not authorized to conclude such an agreement, as Libya and Turkey do not share a geographic boundary, given that the Greek island of Crete is a natural geographic obstacle between the two countries.
  3. Libya is not permitted to enter into the agreement under international law, which prohibits States from concluding such agreements where the State is experiencing exceptional or emergency circumstances, in particular war or internal armed conflict.
  4. Siraj’s government did not coordinate with the Egyptian Government before concluding the agreement with Turkey. This violates international maritime law, as there is a contiguous sea border between Egypt and Libya on one side and a facing sea border between Turkey and Egypt on the other.
  5. Although Turkey has not acceded to the Convention on the Law of the Sea, the provisions apply to all States, including non-States parties such as Turkey.
  6. The agreement is a blatant assault on the sovereign economic rights of Greece in the Mediterranean Sea pursuant to article 121 of the Convention. Greece has expelled the Libyan ambassador in response.

Despite the fact that the agreement between Turkey and the Government of National Accord clearly violates international law, including the principles and goals of the UN Charter, Turkey nonetheless requested that the memorandum be registered with the UN Secretariat in accordance with article 102 of its Charter. The UN responded that the registration of international agreements is a formality which does not prevent the other States concerned (Egypt, Cyprus, and Greece in this case) from making political and legal objections to the agreement in question before the UN in order to defend their sovereign economic rights over their exclusive economic zones, in this case in the Mediterranean Sea.

  1. Legal consequences of the agreement

The deal was an important milestone in Middle East relations, in particular as it included an agreement on the delimitation of shared maritime boundaries. It has various political and non-political implications for the entire region:

  1. As the agreement applies to the exclusive economic zone between Greece and Egypt, it will hinder discussions between Egypt and Greece on the delimitation of their shared maritime boundaries, as was achieved through the Egypt–Cyprus agreement concluded in 2013.
  2. The agreement will have legal implications for the Libyan State in the event that Siraj’s government collapses. Evidence of this is the fact that Turkey managed to get the internationally recognized Government of National Accord to sign the deal; while Siraj’s government enjoys international legal personhood on behalf of the Libyan State, it will also be held internationally responsible for any compensation owed, regardless of whether the Libyan parliament has approved the deal.
  3. The deal, which was signed by the Turkish Council of Foreign Affairs, will increase the likelihood of a maritime conflict between Turkey on the one side and Greece and Egypt on the other, in addition to a land-based conflict in the event that Turkey sends forces into Libyan territory pursuant to the military cooperation agreement signed with Siraj’s government. 

Regional and international consequences

  1. Parties to the deal

There are a number of possible positive and negative consequences for the two parties to the agreement:

  1. Government of National Accord: The main consequences of the agreement for the Government of National Accord may be as follows:
  • The Government of National Accord is using Turkish military support, provided in accordance with the other memorandum of understanding on military and security cooperation, to establish a military and political balance with Khalifa Haftar’s forces and his regional and international supporters. After a period in which the balance has been tilted slightly in Haftar’s favor, this may lead to another reshuffling of power.
  • Conversely, the biggest risks facing the Government of National Accord will be the potential reticence of traditional allies and supporters, in particular Italy, as well as Algeria’s long-standing resistance to the presence of foreign troops in neighboring countries. The Government of National Accord also risks further antagonizing the Egyptian State and reaching a point of militarization from which it is difficult to return.
  1. Turkey: The main consequences of the agreement for Turkey may be as follows:
  • Turkey based its decision to enter into the agreement on calculations regarding its struggle for influence over energy resources in the eastern Mediterranean region. Turkish officials see the agreement as a response to the actions taken by States opposed to Turkish policy (Israel, Egypt, Greece, and Cyprus) in an effort to isolate Turkey.
  • Turkey wants to legalize its military intervention in Libya, protect new Turkish interests arising from the maritime and maritime agreements, and use the agreements as bargaining tools in its relations with the other parties involved in Libya, including on interlocking issues, such as its relations with Russia regarding Syria, its relations with the Europe regarding immigration, its relations with Egypt regarding eastern Mediterranean gas, and its relations with the USA regarding possible sanctions.
  • While the maritime agreement is Ankara’s biggest priority, the Government of National Accord is more concerned with implementing the military and security agreement. Turkey has therefore been keen to adhere to the name of the agreement and to follow the procedures for its ratification by parliament and its referral to the UN.
  • These potential gains that Ankara is pursuing are balanced out by a number of threats and dangers, in particular the possibility that it may be placed under sanctions for breaching the UN Security Council embargo on providing weapons to parties involved in the Libyan conflict. The USA may attempt to use this situation to its advantage with regard to points of contention with Turkey.
  1. International consequences

The main consequences of the agreement from an international perspective may be as follows:

  1. It increases the pressure on opposing European forces involved in Libya and will force them to become more flexible regarding any potential settlement agreement, as their influence with their Libyan counterparts is threatened by the growing roles played by Turkey and Russia. This applies in particular to Italy and France. The two countries will most likely attempt to limit militarism and use their influence to persuade domestic actors to respond to international efforts to achieve a peaceful settlement.
  2. The situation is exacerbating differences between NATO member States, thereby further straining existing tensions. For example, Europe has aligned itself with Greece and Cyprus against Turkey, according to a statement by the European Council rejecting both of the Libya–Turkey agreements. The growing wedge between Turkey and Europe and the increasing disagreements between EU member States based on Turkish–US differences is, of course, in Moscow’s interest.
  1. Regional consequences

The main consequences of the agreement from a regional perspective may be as follows:

  1. There is the potential for direct or indirect military clashes in the Mediterranean. After the agreements were signed, official spokesman for the Libyan National Army Ahmed al-Mismari announced the army’s intention to target any Turkish vessel seen approaching the Libyan coast. Egypt and Russia conducted joint naval exercises in the first week of December, followed by ten days of joint Turkish–US naval exercises off the coast of western Cyprus, which coincided with Israeli exercises and Russian–Syrian exercises. The timing of these exercises with each other and with the crises sparked by the signing of the deals shows the level to which such inter-State differences can escalate, in particular with regard to the conflict over gas fields. In the second week of December, Turkey sent a third exploration vessel into waters near the Cypriot coast, and Erdoğan has announced his intention not to recall any such vessels, despite protests from Europe.
  2. There is a growing likelihood that Egypt and Turkey will clash on land in Libyan territory, as Erdoğan and senior Turkish officials have made it increasingly clear in their statements that Turkey is prepared to send troops to Libya and establish a military base there. In the third week of December, Egyptian President Abdel Fattah al-Sisi responded that Egypt would not allow a foreign power to control Libya.
  3. These developments also have fallout for Algeria. While they align with Algeria’s firm policy of opposition to foreign troops in neighboring countries, they also pose a direct risk to its influence in Libya. Any increase in armed clashes would also pose a security threat to Algeria. On the other hand, the developments align with Algerian interests to a certain degree, as Algiers is keen to prevent Haftar — and, by extension, Egypt — from controlling Tripoli and to ensure that another party (i.e. Turkey) bears the military burden required to prevent that happening.

Possible scenarios

In view of this political and military analysis of the maritime agreement and of the military cooperation agreement concluded at the same time, three possible scenarios may be proposed:

Scenario 1: Agreement revoked following legal protests

In this scenario, Greece and Cyprus — and particularly Greece, which is most heavily affected by the agreement— are asked by the UN General Assembly to refer the maritime agreement concluded between Turkey and the Government of National Accord to the International Court of Justice for an advisory opinion in light of international law and jurisprudence. This scenario is brought about by regional and international efforts, mobilized through the United Nations, to render the agreement void, thereby reducing Turkey’s role in Libya. There are many obstacles to this scenario, however, most importantly that it would take time for the International Court of Justice to produce its advisory opinion and that some major countries are trying to block this outcome.

Scenario 2: Collapse of the Government of National Accord in Libya

 In this scenario, the Libyan National Army succeeds in mobilizing international and regional support in order to bring down the Government of National Accord, following which it withdraws Libya from the agreement on the grounds that Siraj’s government did not have the authority to conclude such an agreement and that the Libyan parliament refused to approve it. Turkey may still claim compensation from Libya in this case, in accordance with the principles of international responsibility, given that the Siraj government was internationally recognized. This scenario will have implications for the conflict between the Libyan National Army and the forces of the Government of National Accord.

Scenario 3: Agreement remains in place in current state (most likely scenario)

In this scenario, Turkey continues to maintain the current status of the agreement and to make use of it both in its relations with the eastern Mediterranean countries (Egypt, Greece, Cyprus, and Israel) and as a bargaining tool in negotiations with the EU on various issues. The agreement with Siraj’s government is part of Turkey’s policy of de facto force. Erdoğan is attempting to use the agreement as a means of placing pressure on other eastern Mediterranean countries by disrupting the Eastern Mediterranean Gas Forum, through which these countries have concluded cooperation agreements on the exploitation of oil and gas resources and on the construction of the gas pipeline that will cut through Crete to Europe. He is also using the issue as leverage regarding migration towards the EU, and as a means of threatening Egypt’s national security across its western border.

Many indicators point to this scenario coming to fruition, given the conflicting positions held by the major countries involved in Libya, and the lack of international consensus on how to resolve the military situation in the country in light of those conflicting interests.

 

[1] This principle was reaffirmed by the International Court of Justice in its case concerning the continental shelf between Tunisia and the Libyan Arab Jamahiriya. For more information, see:  ICJ, Reports 1982, p.18, Paragraph 87.

 

 

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