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Pavlopoulos: Βetween Greece and Turkey there lies one, and only, difference; that of the demarcation of the island continental shelf and the respective maritime zones

Excerpts from the remarks of former President of the Hellenic Republic and Honorary Professor of the Law School of the National and Kapodistrian University of Athens Mr. Prokopios Pavlopoulos, during the event of the Coordinating Committee of the Bar Associations of Greece in Kastellorizo 19.09.2020, on the subject: «The defensive shielding of the Greek Aegean Islands in accordance to International and European Law».

Preface

In one of its most recent provocations, Turkey has begun, as always in the context of its regular tactics, to add non-existent issues to the negotiation table with Greece – and, consequently, to question our non-negotiable National Position; that there is one, and only, difference, that of the delimitation of the continental shelf of the islands and the corresponding maritime zones – to once again raise the question of whether Greece has the right to defend all, without exception, its Aegean Islands, and in fact regardless of their size and whether they are inhabited or not.

A. It is highly characteristic of its provocation that Turkey raises this issue either by completely distorting the meaning of specific provisions of the Lausanne Treaty, or -even worse- by invoking International Conventions to which it is not a party, such as e.g. the Paris Convention of 1947 for the Dodecanese, which for Turkey constitutes a “res inter alios acta”. Against these unthinkable, institutionally and politically, provocations of Turkey, Greece always responds, each time in accordance to International Law – and also acting on behalf of the European Union, since the Greek territory and borders constitute territory and borders of the European Union – that it holds not only a well-founded right but also an equally well-founded obligation to defend all, without exception and without any discrimination, of its Aegean Islands.

B. In addition, this right of Greece is firmly rooted in the provisions of primary European Law, given that specific rules of the Treaty on European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU) guarantee it, especially when applied in combination with corresponding provisions of International Law – in this case the UN Charter – which are already included in the European Acquis.

I. The legal status of the 1947 Paris Peace Treaty.

To begin with, it must be stated that the status of the final concession of the Dodecanese to Greece is governed by the provisions of the Paris Peace Treaty (April 1947) between the Allies, victors of World War II, and Italy. Of particular importance, within this institutional framework, are the provisions of Article 14 of the above Treaty, according to which: “1. Italy hereby cedes to Greece in full sovereignty the Dodecanese Islands indicated hereafter, namely Stampalia (Astropalia), Rhodes (Rhodos), Calki (Kharki) , Scarpanto, Casos (Casso) , Piscopis (Tilos), Misiros (Nisyros), Calimnos (Kalymnos), Leros, Patmos, Lipsos (Lipso), Simi (Symi), Cos (Kos) and Castellorizo, as well as the adjacent islets. 2 These islands shall be and shall remain demilitarised”. From these provisions, interpreted on the basis of the whole of International and European Law – and therefore on the basis of the general principles governing the interpretation of International and European Law – the following can be deduced, as to the current status of the Dodecanese.

A. The provisions of article 14 par. 1 of the Peace Treaty. The wording of the provisions of paragraph 1 of Article 14 of the Peace Treaty is so clear that it leaves no room for doubt as to the substance and extent of Greek Sovereignty over the Dodecanese. Particularly:

  1. This Sovereignty is “complete”, which implies that there is no limit to its exercise. The content of the “complete” Sovereignty is determined, in the case of the Dodecanese in particular, on the basis of the rules of the current Greek Constitution on Sovereignty, as well as on the basis of the provisions on the Sovereignty of the Member States of the European Union, especially article 4 (2) TEU. Therefore, any challenge to the interpretation of the provisions of Article 14 (1) of the Peace Treaty constitutes in itself a breach of international and European law.
  2. The sovereignty of Greece, in the above sense, extends not only to all the Islands which are explicitly listed in the provisions of paragraph 1 of Article 14 of the Peace Treaty but also, in the straightforward wording of that paragraph, to all the “adjacent islets”. As these provisions make no distinction in this case, their wording covers all kinds of “adjacent islands”, regardless of their size or other characteristics (eg whether they are inhabited or not). In this light, it becomes obvious that in the region of the Dodecanese, from the point of view of International Law, no “gray zones” exist regarding the extent and content of Greek Sovereignty in the above region.

B. The application of the principle of International Law “res inter alios acta”.

Regarding the demilitarization of the Dodecanese, which was provided by the provisions of article 14 (2) of the Peace Treaty, based on the rules of International Law, the following applies:

  1. The claim for the demilitarization of the Dodecanese, according to the provisions of article 14 (2) of the Peace Treaty, must be interpreted in the light of the exercise by Greece, against Turkey, of the right of “legal defence” of a UN Member State, as will be discussed in more detail below.
  2. However, apart from the above argument, Turkey has no right in any case to invoke the 1947 Paris Peace Treaty. And those are the reasons why:

(a) The provisions of Articles 34, 35 and 36 of the Vienna Convention on the Law of International Treaties (1969) provide, inter alia, that:

a1) Each Treaty is valid – and therefore does not create rights and obligations – only between the contracting parties. Against third States, therefore, the Treaty constitutes a “res inter alios acta”.

a2) For this reason, a Treaty applies to a third State only on the double condition that on the one hand it is the intention of the Contracting Parties and, on the other hand, the third State has accepted the obligation explicitly and in writing.

a3) By logical sequence, a Treaty creates a right for a third State only under the also double condition that, on the one hand, the Contracting Parties seek to accord a right on the third State through the Treaty and, on the other hand, the latter agrees to this, explicitly and in writing.

b) Turkey is not, in any legally acceptable sense, a contracting party to the 1947 Peace Treaty. Therefore, this Treaty, in respect of which Turkey is considered a third state, does not create rights or obligations for or against it respectively. In addition:

b1) No provision of the Peace Treaty – as its implementation so far proves – substantiates, albeit in a hypothetical way, that the Contracting Parties sought through it to accord any right to Turkey, much less a right relating to the demilitarization of the Dodecanese. Indeed, as is clear from the circumstances under which the Peace Treaty was concluded in 1947, the demilitarization of the Dodecanese was decided on the proposal of the then Soviet Union, in order for it to accept their concession to Greece, due to the reservations of the Soviet side regarding their use for military purposes from a Western bloc country, such as Greece. In other words, the provision of the demilitarization of the Dodecanese had nothing to do with Turkey and its security.

b2) The above points are reinforced by the fact that the consent of Turkey for the assignment of such a right has never been sought and, consequently, there has never been such consent on its part. The accuracy of this argument is unequivocally documented by Turkey’s own behavior. Indeed, e.g. in 1975 Turkey had addressed – see the Turkish Aide-Memoire of April 3, 1975 – to the parties comprising the Peace Treaty, denouncing alleged violations by Greece in the wider Dodecanese region. Its complaint concluded: “It is for the governments of the contracting states… to require that the Greek Government complies with the spirit and the letter” of the Peace Treaty”. It is clear from this wording alone that Turkey itself has not claimed that it derives a right from the Peace Treaty as regards the status of the Dodecanese. The “deafening” silence of the parties to this “complaint” by Turkey confirms the above arguments.

II. The concept of “legal defence” against “imminent threat” and, a fortiori, “threat of use of force”.

In addition to the other legal foundations, according to the more specific provisions of International Law, Greece is entitled to shield defensively its Aegean Islands, exercising the relevant right provided by special provisions of the UN Charter.

A. The legal basis of the provisions of Article 51 of the UN Charter.

This is a right that was born in favour of Greece many decades ago, given the timeless Turkish aggression and provocation. In particular, however, it was founded, with irrefutable evidence, following the Turkish invasion and occupation of Cyprus in 1974, and especially following the “conclusion”, in 2019, of the so-called “Turkish-Libyan memorandum” between Turkey and the alleged Prime Minister of Libya.

  1. And this is because the Turkish invasion and occupation in Cyprus alone – and for as long as it continues – definitely constitutes an open “imminent threat” against Greece or a clear “threat of use of force” against it.

a) Meanwhile, the ever-expanding Turkish provocation and aggression in the Aegean, mainly in terms of challenging Greece’s sovereign and other rights to the continental shelf and the maritime zones – culminating in the Exclusive Economic Zone – perpetuates and intensifies the “imminent threat” on her part.

b) Especially after the “conclusion” of the legally non-existent “Turkish-Libyan memorandum”, Turkey’s behavior has exceeded all limits of provocation and gross violation of international law, especially the Law of the Sea under the 1982 Montego Bay Treaty. A Treat which binds, in all its provisions, Turkey as well, although it has not acceded to it. This is because the above Treaty, due to the large number of UN Member States that have acceded to it – while the European Union has also acceded as an independent legal entity since 1998 – produces, according to the case law of The Hague Tribunal, generally binding customary rules or, in the most correct view, equally binding “generally accepted rules of International Law”.

  1. This right of Greece is based on the provisions of Article 51 of the UN Charter, which establish – and in fact as jus cogens – the right of “legal defence” of a UN Member State in the case of an “imminent threat” as well, even more so in the case of a “threat of use of force”.

a) Despite the wording of the above provisions which, prima faciae, seem to set the unfolding of an armed attack as a precondition to resort to the process of the above “legal defence”, the vast majority of international scholars and international practices itself accept that an “imminent threat” suffices for the exercise of this right, even more so the “threat of use of force”, which constitutes a direct violation of the provisions of Article 2 (4) of the UN Charter. Therefore, the United States for example, in the aftermath of the 11 September 2001 terrorist attacks, exercised its right to “legitimate defence” – and in fact without temporal restrictions, given that the threat appeared indefinitely – as a legitimate precautionary measure due to an imminent threat and, consequently, impending attack. This view was fully adopted by the UN Secretary General himself, stating – on 21 March 2005 – inter alia: “Imminent threats are fully covered by Article 51, which guarantees the natural right of sovereign states to defend themselves against an armed attack”.

b) In view of the above, Greece has a fortiori the right, when and if it deems appropriate for its defence, to activate with regard to its Aegean Islands, in general, the right of “legal defence” against Turkey, according to the provisions of Article 51 of the UN Charter, in fact without a temporal restriction. This is because, especially after 1974, according to the above, the “threat of use of force” by Turkey – and therefore the consequential “imminent threat” – is on the one hand more than obvious, and verily through repeated and various forms of provocations, and, on the other hand, lasting, as highlighted even by the current Turkish behavior in the Aegean, especially following the “conclusion” of the legally non-existent “Turkish-Libyan memorandum”. A behavior which, due to Turkey’s arbitrary attempt to implement in practice the legally non-existent “Turkish-Libyan memorandum”, entails all the characteristics of a “threat of use of force” in the sense set out above.

c) Additional proof of these points constitutes the completely contrary to any meaning of International Law “casus belli” of Turkey regarding the expansion of the Greek territorial waters. The above “casus belli”, in addition to the fact that it was decided -on 8.6.1995, immediately after the 1982 Montego Bay Treaty on the Law of the Sea entered into force- by the Turkish National Assembly in a manner contrary even to the Turkish constitution itself, has since constituted a constant “threat of use of force” against Greece for the following reason: In essence, Turkey declares through it that the exercise by Greece of the inalienable, under the Law of the Sea, right to extend its territorial waters to 12 nautical miles signifies a “cause of war”. Under these circumstances, the above “casus belli” embodies the “epitome” of the “threat of use of force”, under international law, in particular under the provisions of Article 51 of the UN Charter.

d) Finally, the aforementioned “imminent threat” or even “threat of use of force” on behalf of Turkey and against Greece, is completed by the formation of the so-called Turkish “Army of the Aegean” in July 1975, and in fact with numerous amphibious forces. This refers to an evolution and renaming of the 4th Turkish Army (4th Ordu), which is based in Izmir and, in fact, has been assembled to train the Turkish army for a possible attack against the Greek Aegean Islands.

B. The provisions of Article 51 of the UN Charter as part of the European Acquis and the legal consequences for the defensive shielding of the Greek Aegean Islands.

The above-mentioned provisions of Article 51 of the UN Charter, in addition to their previously explained independent regulatory force in terms of international law, produce legal effects as part of the European Acquis. This is because the provisions of article 42 (7 sub. a) TEU refer directly to the provisions of Article 51 of the UN Charter, when organizing and implementing the “mutual defence” clause between the Member States of the European Union. It becomes evident that this “osmosis” of International and European Law, in the scope of application of the provisions of article 51 of the UN Charter, entails significant legal consequences for Greece. And this occurs both in terms of the activation of the “Mutual Defence” clause against the “imminent threat” or the “threat of use of force” by Turkey, as well as in terms of the very protection of the Greek Aegean Islands which, of course, are part of the European Territory. Specifically:

  1. The aforementioned “Mutual Defence” clause, in the context of European Law, is regulated in its complete form which also includes – complementary of course, and with a completely secondary meaning in this case- the “Solidarity” clause, by the provisions:

a) Of article 42 (7 sub. a) TEU, which states: “If a Member State is the victim of armed aggression on its territory, the other Member States shall have towards it an obligation of aid and assistance by all the means in their power, in accordance with Article 51 of the United Nations Charter”.

b) Of article 222 (1) TFEU, which states: “The Union and its Member States shall act jointly in a spirit of solidarity if a Member State is the object of a terrorist attack or the victim of a natural or man-made disaster. The Union shall mobilise all the instruments at its disposal, including the military resources made available by the Member States, to: (a) – prevent the terrorist threat in the territory of the Member States; – protect democratic institutions and the civilian population from any terrorist attack; – assist a Member State in its territory, at the request of its political authorities, in the event of a terrorist attack; (b) assist a Member State in its territory, at the request of its political authorities, in the event of a natural or man-made disaster”.

  1. The combined – but also complementary, as stated above – applicable clauses of “Mutual Defence” and “Solidarity” are, in terms of regulatory force, complete leges perfectae, therefore binding in full.

a) This arises mainly from the Opinion, which was concluded -following a request on the matter- by the Legal Service of the European Council in 2016. To be precise, on 12.7.2016, the Legal Service of the European Council ruled, through a series of substantiated legal reasoning, that the above clauses produce full legal effects, provided that the conditions for their application are met in accordance with the provisions of articles 42 (7 sub. a) TEU and 222 (1) TFEU respectively.

b) According to the same Opinion, the implementation of the mechanism of the “Mutual Defence” and “Solidarity” clauses may lead to the implementation of a series of measures, in particular diplomatic, administrative, technical and – par excellence – military, through the activation of the appropriate armed forces. It should be particularly emphasized that the above activation of means and armed forces is explicitly provided by the provisions of articles 42 (7 sub. a) TEU and 222 (1) TFEU.

b1) It is highly indicative that the recent 2019 Aachen Treaty between France and Germany, which entered into force in January 2020 – and in particular Article 4(b) thereof, contained in Chapter 2 “Peace, Security and Development”- a clause of mutual Defence assistance is established, “including the use of military force”, in the event of an armed attack on the territory of one of the Parties, in the light, as cited explicitly in the first paragraph of the same article, of the two States’ obligations, not only according to the Article 5 of the NATO Treaty, but also to the Article 42 (7) TEU.

b2) In fact, Chancellor A. Merkel, in her statements at the signing of the Treaty, underlined, in particular regarding the provisions of Chapter 2 on Defence cooperation between France and Germany, that it constituted “Germany’s contribution to the arrival of a European Army” .

c) In essence, the “Mutual Defence” clause – as enshrined in Article 42(7) TEU, through the reference to Article 51 of the UN Charter as well – refers to a law applicable to bilateral transnational agreements between the Member States of the European Union which in reality pave the way for the formation of a common Defence policy of the European Union itself.

  1. In terms of tangible application of the provisions of articles 42(7) TEU and 222(1) TFEU, as regards the “Mutual Defence” and “Solidarity” clauses, there exist so far at least two very typical examples:

a) In November 2015, following the deadly terrorist attacks in Paris, through President François Hollande, France requested and succeeded in activating the implementation of the “Mutual Defence” clause of article 42 (7 sub. a) TEU. It should be noted that France relied, in this case, on the previous implementation of the provisions of Article 51 of the UN Charter by the USA, during the terrorist attack on the Twin Towers on September 11, 2001, as it has already been pointed out. It is emphasized that the French Government consciously decided to exclusively invoke the “Mutual Defence” clause of article 42 (7) TEU and not the corresponding clause in Article 5 of the North Atlantic Treaty. In fact, then Minister of Defence and incumbent Minister of Foreign Affairs of France Jean-Yves Le Drian noted in a statement that “France cannot do everything”, directly referring, in terms of the provision of military assistance by the Member States of the European Union, to the growing operational needs to combat Islamic terrorism in the Middle East and Africa. This “call” was answered by many Member States of the European Union.

b) The reference to the aforementioned clauses during the Meeting of the Ministers of Defence of the European Union on 16.6.2020 can also be characterized as such a precedent, and in fact in view of the critical situation cultivated by the Turkish provocation in the Aegean and the Eastern Mediterranean. In particular, in item 6 of the conclusions, this Summit: “Reiterates the importance of mutual assistance and/or solidarity, in line with Article 42(7) TEU and Article 222 TFEU, and agrees to continue building a common understanding of Article 42(7) TEU and identifying lessons, building on table top exercises and scenario-based policy discussions in the months ahead”.

  1. In the light of the previous conclusions, it also becomes evident that:

a) The right of Greece to defend all its islands in the Aegean, without exception, is also rooted in European Law, through the European Acquis which includes the crucial, in this respect, provisions of International Law.

a1) And to be precise, the direct reference of the provisions of article 42 (7 sub. a) in the provisions of Article 51 of the UN Charter also imply that Greece holds the right to defensively shield the Aegean Islands also in accordance with European Law, under the terms and conditions of the established -by now- interpretation of the provisions of Article 51 of the UN Charter. That is, not only when there is a direct attack against the Aegean Islands, but also when there is an “imminent threat” or, a fortiori, a “threat of use of force”. And Turkey’s current stance, which is known for its unprecedented provocation, not only reaches the threshold of the “imminent threat”, but also far exceeds it, at least to the extent of the “threat of use of force”.

a2) This position is solemnly confirmed by the conclusions of the 10 September 2020 Euro-Mediterranean Conference in Ajaccio, Corsica, to the extent that they state that, under the current circumstances, Turkey is committing a series of violations against the sovereign rights of Greece and Cyprus. In particular, paragraph 6 of the above conclusions states, inter alia, that the participants: “reiterate [their] full support and solidarity with Cyprus and Greece in the face of the repeated infringements on their sovereignty and sovereign rights, as well as confrontational actions by Turkey”. Consequently, Greece has the right to defensively shield the Aegean Islands under both International and European Law.

b) Because the provisions of Article 42 (7) TEU refer directly to the provisions of Article 51 of the UN Charter regarding the activation of the mechanism of the “Mutual Defence” clause – and in combination with the mechanism of the “Solidarity” clause “- the following also becomes obvious:

b1) Due to the fact that the provocative behavior of Turkey unfolds within the context – or even exceeds the limits – of the “imminent threat”, Greece has the right, at any time and at its discretion, to request from the competent bodies of the European Union the activation of the mechanism of the “Mutual Defence” clause, in combination -when and if this is justified by the circumstances, which, of course, is not the case in the situation under review- with the activation of the mechanism of the “Solidarity” clause, according to the provisions of the articles 42 (7 sub. a) TEU and 222 (1) TFEU respectively.

b2) This conclusion, in the context of the application of European Law, is catalytically reinforced by all the statements of the institutions of the European Union and also by individual European Officials, which refer directly to the Turkish arbitrariness to the detriment of Greece. Moreover, they are particularly supported by the aforementioned conclusions of the Euro-Mediterranean Conference of 10 September 2020 in Ajaccio, Corsica.

Epilogue

The previous analysis can be summarized in the following conclusions:

A. Our non-negotiable National Position is that, between Greece and Turkey there lies one, and only, difference; that of the demarcation of the island continental shelf and the respective maritime zones. There is no issue regarding the defensive shielding of the Greek Aegean Islands.

  1. Greece holds the right – but also the obligation, since this concerns the protection of the Greek Territory – not only towards itself but also towards the European Union as a full Member-State, to shield all its islands in the Aegean, regardless of the extent of their territory and whether or not they are inhabited. This right is based on the provisions of Article 51 of the UN Charter, which enshrines the right of a UN Member State to “legitimate Defence”, not only in the event of an armed attack against it, but also in the event of a “threat of use of force” or even an “imminent threat”, as is clear from the practices invoked by the UN itself. Additionally, it is self-evident that Turkey, especially following the invasion of Cyprus in 1974, the completely arbitrary “casus belli” in terms of the expansion of the territorial waters, and the formation of the “Aegean Army”, threatens Greece diachronically and directly, also through the use of force – as further demonstrated by its recent stance following the “conclusion” of the so-called “Turkish-Libyan memorandum” – in direct violation of international law and, above all, the Law of the Sea under the 1982 Montego Bay Treaty, which also binds Turkey through generally accepted rules of international law.
  2. Furthermore, Turkey can absolutely not and in any way invoke the 1947 Paris Peace Convention, by which the Dodecanese were ceded to Greece. This is because Turkey was not a party to the abovementioned treaty, which was concluded between the Allied victors of World War II and Italy. A fortiori, Turkey must fully respect the Peace Treaty, which constitutes a “res inter alios acta” against the country.

B. Greece derives the same right – and therefore the same obligation- under European Law and the corresponding European Acquis, in accordance with the following clarifications, given additionally the climaxing provocative and aggressive behavior on behalf of Turkey against it which, according to the conclusions of the Euro-Mediterranean Conference of 10 September 2020 in Ajaccio, Corsica, directly violates the sovereignty and sovereign rights of Greece.

  1. The provisions of article 42 (7 sub. a) TEU, which establish the institutional guarantees for the activation of the “Mutual Defence” clause when a Member State of the European Union is threatened, refer directly, as regards the conditions for the activation of this clause, to the provisions of Article 51 of UN. Therefore, the above provisions constitute part of the European Acquis, and subsequently Greece has the right to defend the Aegean Islands against the Turkish threat also in the context of the institutional framework of European Law and the corresponding European Acquis.
  2. In addition, and in view of the blatant Turkish provocation and direct threat against it, Greece has the right, at any time, to request in its capacity as a Member State of the European Union the activation of the “Mutual Defence” clause, in accordance with the provisions of Article 42 (7) TEU. In this regard, Greece can refer to the practice, which has been invoked so far in the framework of the European Union, for the activation of the above clause.

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