Towards a New Delimitation of Maritime Borders ? The Greek-Turkish Conflict (Part II)
Written by Virginie de France
Last week, EU leaders agreed on a common stance on Turkey's actions in the Mediterranean. While peaceful dialogue through diplomacy will be the first line of defence, restrictive measures may be adopted in case of renewed unilateral actions or provocations in breach of international law.
At the opening of the talks, the European Council began by reiterating its full solidarity with Greece and Cyprus, whose sovereignty and sovereign rights must be respected and upheld. The exceptional Summit welcomed the recent confidence-building measures taken by Greece and Turkey. The announcement of the resumption of the exploratory talks pertaining to the delimitation of the continental shelf and the EEZ of the two countries is a real step forward. Indeed, the establishment of a stable environment based on mutually beneficial cooperation is undeniably in the EU's strategic interest. At the same time, the European Council invited Turkey to do the same with the Republic of Cyprus and to accept the latter's invitation to resume dialogue aimed at settling all disputes on maritime issues.
Despite obvious difficulties to land a collective position, the twenty-seven states succeeded in defining a clear and unanimous common line: the EU strongly condemns the actions of the Turkish state and is determined to defend its principles and values.
In order to ease tensions in the Mediterranean, the European Council calls for a compromise between "firmness and readiness to engage in positive dialogue". This "dual strategy" aims at settling disputes by peaceful means and in accordance with international law, while not ruling out the possibility of sanctions.
"Pursuing dialogue in good faith and abstaining from unilateral actions which run counter to the EU interests and violate international law and the sovereign rights of EU member states is an absolute requirement in this regard. All differences must be resolved through peaceful dialogue and in accordance with international law."
- European Council conclusions
If Turkey puts an end to the illegal activities outlined in the first part of this article against Greece and Cyprus, the European Council agreed to "launch a constructive political program between the EU and Turkey with particular emphasis on the modernization of the customs union and trade facilitation, people-to-people contacts, high level dialogues and further cooperation on migration issues, in line with the EU-Turkey Declaration of 2016". In other words, the EU is fond of the “carrot and stick”-approach to resolve the ongoing dispute.
Failing this, "the EU will use all the instruments and options at its disposal", the summit conclusions on Turkey state, before listing the articles of the Treaty that authorise the EU to impose a wide range of sanctions, from diplomatic measures to heavy economic strikes.
In her opening remarks, President Von der Leyen specified that, in the event of further unilateral actions or provocation in violation of international law, the EU will use all available instruments and options to defend its interests and those of its Member States.
“We have a range of methods that we can apply immediately, but that's not what we want. What we want and would like to focus on is the construction of a new long-term relationship between the EU and Turkey: a positive agenda that includes the modernisation of our customs union - which will increase trade - and enhanced cooperation on migration on the basis of the EU-Turkey Declaration of 2016”.
- President von der Leyen
In the framework of the Common Foreign and Security Policy (CFSP), the Council may, under Article 29 of the Treaty on European Union (TEU), decide to take restrictive measures against third countries, non-state entities or individuals (article 215 (1) and (2) TFEU). Such measures must be in accordance with the objectives of the CFSP, as listed in Article 21 TEU. As a general rule, decisions taken with respect to the EU’s CFSP are adopted unanimously. “However, in certain cases, an EU country can choose to abstain from voting on a particular action without blocking it”.
Measures such as arms embargoes or restrictions on admissions are directly implemented by member states, which are legally bound to act in accordance with CFSP decisions of the Council.
Other measures aimed at interrupting or limiting, in whole or in part, economic relations with a third country are implemented by means of a binding regulation directly applicable throughout the EU adopted by the Council, acting by qualified majority, on a joint proposal by the High Representative of the Union for Foreign Affairs and Security Policy and the Commission, in accordance with Article 215 of the TFEU. Article 215(1) TFEU specifies that the Council must inform the European Parliament.
The measures used may vary according to the objectives sought by the EU and their likely effectiveness, thus reflecting the targeted and differentiated approach the EU favours. Indeed, these measures are designed to minimize negative consequences for those who are not responsible for the policies or actions that led to the adoption of the sanctions. In this respect, the EU is particularly concerned to minimise the effects on the local civilian population.
These measures must, moreover, fully comply with obligations under international law, including in the field of human rights and fundamental freedoms. In this respect, these regulations are normally not subject to judicial review by the Court of Justice and the General Court in Luxembourg as CFSP is outside the Courts’ jurisdiction except for the respect of the mutual non-affectation clause of art. 40 TEU. CFSP decisions of the Council providing for restrictive measures against natural or legal persons, on the contrary, are subject to judicial review by virtue of art. 275 TFEU.
Finally, the Council must monitor developments and schedule a specific review as soon as a change in the political context occurs. An adjustment of sanctions must always be possible.
As long as the specific objectives of the restrictive measures are not achieved, they must be maintained, unless the Council decides otherwise.
As recalled by President Michel and President Von der Leyen, such sanctions will be used as a last resort. Therefore, it is essential to use diplomatic channels to their full potential to resolve tensions in the Mediterranean Sea. It should be recalled that relations between Turkey and Europe are already relatively fragile with historically recurrent territorial conflicts and, more recently, Syrian migrants crossing Turkey freely to enter the EU illegally via the Greek border. Such issues must imperatively be taken into account in decision-making.
As a reminder, the European Union has already adopted restrictive measures against illegal drilling activities in the Mediterranean Sea. On 27 February 2020, two Turkish nationals, Mehmet Ferruh Akalin and Ali Coscun Namogku, senior executives of the Turkish Petroleum Corporation (TPAO) and involved in illegal drilling for hydrocarbons, were banned from entering the Union and their assets in the EU were frozen. However, these targeted measures did not bear fruit, as Turkey continued its illegal activities in the following months.
According to Greece, the European Union should adopt the "carrot and stick" strategy; make offers of openness towards Ankara, including on the Customs Union, but with threats of retaliation if Turkey continues its illegal actions.
When asked about possible restrictive measures against the Turkish state, Josep Borrell, High Representative of the Union for Foreign Affairs and Security Policy, said that this could for example be a ban on the use of EU ports or a possible seizure of Turkish ships involved in illegal drilling activities. Sanctions targeting the entire Turkish economic sector are also being considered, but only if the targeted measures prove ineffective.
Even if Turkey has, for now, retracted its ships, this European Summit has proven that the EU is ready to take firm and united action when necessary. Should Turkey reiterate its defying behaviour, the EU would use the whole range of tools at its disposal to make it stop.
The author would like to thank Professor Pierre d'Argent for insightful comments and help in the redaction of this article.