Corfu view from Albania

The third week of July, marked the visit of Greek Minister of Foreign Affairs in Albania.
Regardless of the diplomatic tensions the two states had as a consequence of maritime border dispute, both Ministers in their interactions gave positive signs regarding the process of delimitation, which was blocked after Albanian Constitutional Court ruled that Agreement on delimitation of Maritime borders between two countries was incompatible with Albanian Constitution and International Law.
In the last five years, Greece refused to renegotiate the terms of an agreement and threatened Albania to block its way toward EU integration if Albania did not ratify the previous agreement.

Situation created would result with addressing the dispute to an international tribunal, which for the moment is not profitable for none of the states.
Therefore, it appears that two countries will begin the renegotiation of the agreement in the near future, but to foresee what the new agreement will bring, we will use the decision of Albanian Constitutional Court as only source that identifies what the previous Agreement was about, in order to analyze reasons for its failure in the light of International Law.

There are three main reasons that led up to the failure of the previous agreement:

1. The absence of full powers of the Albanian delegation;
2. The failure to apply basic principles of international law to the delimitation of maritime areas between the two countries in order to achieve an equitable solution; and
3. The failure to properly evaluate the islands as special circumstances in the delimitation of maritime areas.

• State as a party to international agreements and creation of political will

States enter on international agreements through expressing their political will to do so, and therefore they accept all the obligations deriving from the respective agreements.
Albania has an interesting view with regard to the state as a party on international agreements.
Following the model set by Federal Constitutional Court of Germany decision concerning the “Petersberg Agreement” on the status of Saarland (Federal Constitutional Court of Germany, 2 BvE 3/51, 29 July 1952), there should be a distinction whether the party to the international agreement is the state or the government.
Following this question, state is a party to an agreement when the subject of the agreements are matters of political issues, while in case of economic, cultural and other agreements party to the agreements is the Government.
This is an very interesting point of view which sets a very interesting distinction within the state institutions, and concluding that governments not all the time represent the state and political will of the state, unless there is an authorization for the government to do so.
This approach is very confusing until one have to dig on the domestic legal system to determine who creates the political will of the state, and in this case are the institutions of the state altogether, with one of them representing the political will on international relations (President in case of Albania).

• Full Powers and relationship between International and Internal Law

One of the reasons for the failure of the agreement was the absence of the authorization of President, as representative of the state’s political will in international relations.
According to Albanian Constitutional Court absence of full powers is a violation of domestic law of fundamental importance and of Albania constitutional principles.
Vienna Convention on the Law of Treaties (VCLT) stipulates that absence of full powers is acceptable when entering into an international agreement, but is necessary for the state to confirm and give its consent to be bound by the treaty to make sure that the treaty will produce its legal effects (Article 8 VCLT).
The Court noted that absence of full powers of the negotiating group has resulted with a violation of Albanian Constitution and Albanian domestic law.
Moreover, VCLT at the Article 27 sets the rule of the dominance of international law over domestic law, pointing out that a state may not invoke its internal law as justification for its failure to perform a treaty, unless the rule of concerned internal law is of fundamental importance (Art. 46 VCLT).
However, when it comes to full powers, VCLT is indifferent toward domestic law, and does not dictate the states on how to regulate the issue of full powers on their domestic legal system.
Article 7 VCLT determines criteria with regard to full powers but it doesn’t limit the states to regulate the issue on their domestic legal system and does not conclude that it is up to states to regulate the institution of full powers, as long as the state will give consent to be bound by the treaty and is as well indifferent on the methods that states apply to fulfill their obligations as long as those obligations are fulfilled.

With respect to the Agreement between Albania and Greece, the negotiation group was established through ordinance of Prime Minister no. 135 for “establishment of intergovernmental working group for determination of continental shelf with neighbouring countries” was authorized to delimitate only 12% of the total area that it delimitated.
Delimitation line between referral point 1 to 139 is of a length of 49,8 nautical miles, which settles the width of the Albanian territorial sea, while the length between referral points 139 and 150 is 14.5 nautical miles long, which gives a total of 64.4 nautical miles, and is to be considered as the line that delimitates the continental shelf between respective countries.
Therefore negotiation group had authorization by Prime Minister to delimitate only continental shelf, but exceeded its powers by delimitating the territorial sea as well.
In the delimitation process, the process of defining the territorial sea of a coastal state concerns a definition of the territory of the state and its boundaries as well, while the definition of the continental shelf and exclusive economic zone (EEZ), where a state exercises only some sovereign rights, is determined by the definition of the maritime boundaries.
On Maritime Delimitation in the Black Sea, Romania v Ukraine case, International Court of Justice held that ‘maritime boundary delimiting the continental shelf and exclusive economic zones is not to be assimilated to a State boundary separating territories of States. The former defines the limits of maritime zones where under international law coastal States have certain sovereign rights and latter defines the territorial limits of State sovereignty.
Joining the absence of authorization by the President and by concluding that negotiation group exceeded its powers given through ordinance of Prime Minister, Court concludes that Albanian negotiation group has delimitated not only the continental shelf but the territorial sea as well and has violated Albanian constitution and domestic law of fundamental importance, such as principle of balance of powers and the rule of law.

• Agreement and the law of the sea

Parties on the agreement, applied the method of Median Line to delimitate their maritime areas, but without taking into account the historical rights and other special circumstances.
Therefore by not taking into account historical rights and special circumstances, was ignored the Article 15 of the United Nation Convention on the Law of the Sea (UNCLOS) which stipulates that use of Median Line “does not apply… by reason of historical title and other special circumstances”
On the North Sea Continental Shelf cases, ICJ pointed out that strict application of the Median Line in many cases creates inequality to certain parties, therefore, when delimitating maritime boundaries, the equitable principle should be applied through which it is possible to achieve an equitable solution between the parties… while equitable principle is a reflection of international customary law as well (Tunisia v Libyan Arab Jamahiriya).
UNCLOS implied and considered the principle of equity as an important element on resolving disputes between states. UNCLOS expressly mentioned principle of equity and its importance on delimiting the territorial sea article 15, the exclusive economic zone article 74(1) and the continental shelf article 83(1).
Article 74(1) and article 83(1) of the UNCLOS stipulate that delimitation of the exclusive economic zone and continental shelf should be on the basis of norms of international law as is defined in article 38 of the Statute of the International Court of Justice, in order to achieve an equitable solution.

Purpose of Article 15 of UNCLOS, which points out the importance of special circumstances is to strengthen the application of ‘equity principle’ in order to achieve an equitable solution according to international law.
In Minquiers and Ecrehos case concerning the sovereignty dispute between France and United Kingdom over a group of islets and rocks in the English Channel, International Court of Justice (ICJ) decided to examine the history of the region since 1066.
Therefore in the Gulf of Maine case, ICJ produced two main principles applicable in every maritime delimitation, the application of equitable criteria in order to achieve an equitable solution considering the geographic configuration of the area, and the other circumstances that should be taken into account during the delimitation process.

With regard to island, presence of islands is to be treated separately in order to determine if they produce full effect, half effect or no effect at all. This is not reflected in the agreement between Albania and Greece, and Greek islands enjoyed full effect according to the terms of the agreement.
Size and configuration of the island, whether the island can sustain human habitation or economic life or not, and its position in the maritime area, must be evaluated separately for every island unless they form an archipelago. This should always be done by means of the equity principle in order to achieve an equitable solution as stated in article 15, article 74, and article 83 of the UNCLOS.
Furthermore, parties failed to properly evaluate the islands as special circumstances, by giving the Greek Islands full effect and therefore considering them effectively equal with the Albanian continental coast which resulted in an inequitable solution in disfavor of Albania.

Another error in the agreement is the full effect given to the “Rock of Barchetta”, which served as a prominent indicator in determining the baseline of Greece, which later was used to delimitate maritime areas through the Median Line method.
Article 13 UNCLOS, stipulates that when a low-tide elevation is wholly situated at a distance exceeding the breadth of the territorial sea from the continental coast or an island, it can not generate territorial sea of its own.
Paragraph 3 of Article 121 of UNCLOS makes a clear distinction between islands and rocks, pointing out that rocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf.
Presence of a low tide elevation near the coast can be taken into account in order to define the base line, but when it is located near the outer line of the maritime boundary it should not be taken into account to define the base line.
According to international law, Rock of Barchetta can not enjoy full effect because it is not an island but a low tide elevation, and by giving full effect, it significantly affected the boundary line in favour of Greece, and caused a reduction of 15 square kilometers in the Albanian territorial sea.
In Nicaragua v. Honduras case (para. 141), ICJ held that low-tide elevations may not be regarded as being part of the territory of the state concerned and thus cannot be fully assimilated with islands and they can not have territorial sea of their own. Therefore low tide elevations cannot enjoy full effect because they cannot sustain inhabitation or economic life and as a result they cannot have a territorial sea of their own.

In the delimitation of the continental shelf agreement between Greece and Italy, the island of Othonoi and Erikuza enjoyed half-effect despite the long distance they had from the Italian coast.
The delimitation line passes through 16 referral points, and delimitation line between points 1 and 4, of length of 55.9 nautical miles, is under the effect of the island of Othonoi. In the respective agreement between Italy and Greece, island of Othonoi enjoyed half-effect and its importance compared with Italian coast was reduced 97%, which resulted on 28.93 square miles profited by the Italy.
In the Agreement between Albania and Greece, islands of Lazareto, Erikuza and Othonoi enjoyed full effect, resulting with a violation of equity´principle, therefore parties by not evaluating the special circumstances, and giving the islands and rocks full effect, with the same effect as Albanian continental coast, Albanian maritime area was reduced with 127 square kilometers.

Considering the above mentioned findings, it is very important that representatives of both states, will take the renegotiation of the agreement seriously, in order to achieve compatibility with principles of international and internal law and produce an equitable solution for Greece and Albania.

 

Photo source: Magalie L’Abbé