By Miguel Angel Moratinos Cuyaube & Aris Polydoros Petasis
Turning the region’s economic dream into reality. A lot is going on in the Eastern Mediterranean (EM) offshore energy nucleus with every day bringing new tensions, more polarization and added risk of military confrontation. Intractable problems have become stumbling blogs to progress leaving potentially lucrative energy finds untapped and unused; harming in this ways the beleaguered economies of the region. To overcome this impasse we propose in this paper the alternative of creating a High Energy Authority (HEA) that would be modelled after the High Authority that was central to the Treaty of Paris establishing the European Coal and Steel Community, ECSC Treaty. This treaty applied from 1952 and expired in 2002 as it was valid for 50 years. The Treaty brought together 6 countries: Germany, France, Italy and Belgium, Netherlands and Luxemburg to help them cooperate over resources. Whist the ECSC aimed to free up market access to sources of production the proposed HEA’s aim is to enable the exploration and exploitation of EM energy resources trouble-free and fairly. As such security is central to the HEA aiming to help create a conflict-free region for the sake of economic expansion and improved living standards. Participating countries in the HEA would need to sign a joint/common agreement that would govern the conflict-free exploration and exploitation of energy within the totality of the Exclusive Economic Zones (EEZs) of member countries. The High Authority in the ECSC Treaty was directed at the market and was meant to: a.) supervise the market, b.) monitor compliance with competition rules, and c.) ensure price transparency. Though the idea is similar the HEA in the EM will have these basic features that differ from those of the High Authority: a.) supervise and ensure that the agreed provisions appertaining to the secure exploration and exploitation of the energy resources in the totality of the EEZs are strictly adhered to, b.) monitor the strict application of the provisions of The Law of the Sea—UNCLOS to avoid conflict and tension, c.) monitor compliance with fair exploitation and trade rules as defined in the EU acquis communautaire, and d.) ensure that the internal mechanism for resolving conflicts work and as such minimize the need for external interventions and arbitration as we shall below. In résumé: Though High Authority and HEA are similar in intellection and conceptualisation the former focused primarily on coordinating and supervising issues that had to do with the market (access to coal and steel). The latter (HEA) emphasises security and application of the relevant international laws to access resources through exploration, exploitation and distribution. Importantly, both aim to make it possible for a group of neighbouring countries to work together for the benefit of all.
For now: conflict rather than cooperation. The root causes of the current impasse are: a.) old rivalries failing to give way to cooperation, b.) International Law not universally observed, c.) narrow-minded and insular approaches to ‘national interest,’ instead of regional cooperation and d) polarisation rather than calm and creative thinking. Instead of the energy factor help bring together EM countries it turned the EM into an area of contention, conflict and even irredentism. We now see NAVTEX issued routinely and unceasing reservations of sea zones for spirited naval exercises. Countries are responding to what they see as militarism. In the background lurk the interests of the US-UK axis and those of EM near-neighbour Russia. Other countries that lie outside the EM are also vying for position. The great energy potential of the area was unable to change the EM from what it has always been in the last 70 years according William Mallinson; an area of contention and antagonism. The EM ‘strategic whole’ includes all the above mentioned countries plus: Syria, Cyprus, Egypt, Israel, Lebanon and the Palestinian Authority. Not to mention Italy, Libya, Arab-speaking North Africa and far-flung Qatar, UAE and Saudi Arabia that are already part of the equation. We see the term ‘strategic whole’ appearing back in 1947 in a memorandum titled, Memorandum on Policy in the Middle East and Eastern Mediterranean by the British Group: “[…] the countries of the Eastern Mediterranean, which, with the Middle East, form a ‘strategic whole’.”
UNCLOS. The UN Convention on the Law of the Sea (UNCLOS) was meant to resolve disputes over boundary delineation and exploration rights that are now the main source of conflict in the EM’s energy programme. UNCLOS is an acronym for the United Nations Convention for the Law of the Sea which became effective starting 06.11.1982. This Convention addresses the need of countries (particularly smaller and weaker ones) to protect their marine resources (mostly offshore energy in our case). For purposes of functionality a number of organisations/parties were set up to deal with the operational issues of the Convention whilst the 21-member International Tribunal for the Law of the Sea was set up by UNCLOS as an independent judicial body to deal with unresolved disputes. More specifically the Tribunal is meant to deal with issues, “[…] arising out of the interpretation and application of the Convention.” As such UNCLOS is there to strengthen peace, co-operation and friendly relations that would allow for economic improvement and social betterment of neighbouring nations.
Through UNCLOS countries are provided with the wherewithal to delineate their Exclusive Economic Zone. Critical to our proposal to create a HEA for the EM is Article 55 of Part V of the Convention defines the EXCLUSIVE ECONOMIC ZONE (EEZ) as “[…] an area beyond and adjacent to the territorial sea, subject to the specific legal regime […] under which the rights and jurisdiction of the coastal State and the rights and freedoms of other States are governed by the relevant provisions of this Convention.’” Article 56 is equally central to our recommendation for an HEA in that it defines the ‘Rights, jurisdiction and duties of the coastal State in the exclusive economic zone’ in “[…] exploring and exploiting, conserving and managing resources […] and with regard to other activities for the economic exploitation and exploration of the zone, such as the production of energy from the water, currents and winds;” Article 56 also protects the rights of others. Specifically, this Article states that, “‘In exercising its rights and performing its duties under the Convention in the exclusive economic zone the coastal State shall have due regard to the rights and duties of other States and shall act in a manner compatible with the provisions of this Convention.’” Very beneficially Article 57 demarks and limits the size of a country’s EEZ to 200 nautical miles. More specifically, “‘The exclusive economic zone shall not extend beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured.’” Professor Theodore Kariotis, an authority on EEZs, highlighted to us the importance of the EEZs considering that the oceans take up 71% of the earth’s total surface and that 32% of that area falls under the jurisdiction of coastal states where 87% of all oil deposits lie.
This Convention has already been ratified by 167 states (nearly all UN members) and the European Union as well. The USA that worked so hard to create this valuable Convention as yet has not ratified the Convention not because she disapproves of it but because she disagrees with one part: Part XI. In fact the USA is known to respect the overall provisions of the Convention.
One would have thought that this priceless piece of International Law would have settled things in the EM and as such making the exploration and exploitation of energy plain sailing. But, alas, this has not been the case. Instead we now see: a.) discord, seeing not all countries have ratified the Convention relying instead on own rules and interpretations, b.) conflict, and threat of violence, c.) growing militarization, d.) impasse and untapped resources, e.) crushing military expenditures ostensibly in defence of ‘national interest’, f.) serious economic problems that are creating hardship to the region and stopping economies from reaching their potential, g.) overt or covert Big-power involvement in the region and h.) uncertainty for the future of the region. In other words: instead of energy boosting the region’s economies it ushered in economic uncertainty, rivalry and militarisation which in turn exacerbated the depressing state of the region’s economies.
Countries in the region failed to work as a unified whole and to create the necessary mechanisms and regional bodies. As such the EM energy programme lacks a unified objective which unavoidably created a vacuum that led to the creation of clusters of countries trying to work together but also contain opposing States or regional groupings. For example: Greece, Cyprus and Israel (and Kurds in the background) are preparing to defend against what they see as Turkish militarism and Ottomanism with energy providing the kindle. “The Cyprus gas project is critical to Israel’s economic and diplomatic interests in the coming decades and must be protected at all costs” wrote Dmitri Shufutinsky on April 23, 2019. Greece, Cyprus and Egypt are also working towards a partnership. Turkey is cooperating with rich, but outside the EM, Qatar. Equally, Turkey has signed a bilateral agreement with Libya on maritime boundaries outside UNCLOS mandates which neighbouring Egypt calls illegal and Greece absurd. Even though the Palestinians do not now feature centrally in the energy debate they cannot be ignored. So, all in all the region lacks unity and a central ‘nerve centre’ that would provide supervision and guidance.
Missing ‘optimality’. What is happening now in the EM is a far cry from what economists call ‘optimisation’. In fact, with militarisation in progress an ‘optimal’ outcome is impossible. As such, we wish to provide a new paradigm suggesting the creation of a HEA for the countries of the region; an idea first put forward in 2016¹. This arrangement could in the future include countries beyond the EM and cover all Mediterranean countries stretching all the way to Spain. One would of course need to consider the challenges that lie ahead and which include amongst others: the unresolved Palestinian and Cyprus problems, rampant militarisation, swagger and bravado, turmoil, occasional autocratic behaviour and antagonism between America and Russia that is also played out in the EM. Without the resolution of these burning issues, which after all are mostly the creation of putative HEA members, the HEA project will be faced with an uphill battle. Any country failing to work towards the resolution of these problems will obviously not be meeting minimum HEA entry requirements.
Basic HEA tenets. The basic HEA tenets would be these: a.) each member to benefit in proportion to what the party puts in the project; rich-in-energy countries to make proportionately more than others, b.) all parties work together amicably exercising good management to reduce costs and improve efficiency, economic viability and profitability, c.) energy security would be the concern of the HEA fraternity, d.) disputes to be resolved through well-defined internal processes and rarely through external arbitration. Equally, member states would need to avoid involvement in the antagonisms of great powers, concentrating instead on the HEA. As probably the biggest ultimate beneficiary (secure and reasonably-prised energy) the EU would need to pledge genuine and consistent support for the HEA project. A successful HEA would bring immeasurable benefits to EU and HEA member countries.
Summary.
The Pope recently called for, ‘constructive dialogue’ and ‘respect for international law’ in the EM. This is a good starting point as these two themes would need to become the corner stone of the process leading to the creation of a HEA. With the HEA in place there would be no need for contentious ‘resource sharing ‘solutions’ Instead, the call would be for resource management, solidarity, equanimity, equilibrium, demilitarisation, tranquillity and most importantly strict adherence to International Law and UNCLOS in particular. Risk of military conflict over energy, as the German Foreign Minister warned us of recently by saying that, “a spark could lead to a disaster” will be minimised if not nullified with the HEA in place and considering the HEA’s aims. Calls for nice-sounding but awkward and perplexing ‘interim’’ and ‘compromise’ solutions would sound absurd and pointless as the new structure will be based on legality and economic soundness, respect for rules that would lead to optimality. The creation of a HEA would turn the EM into a place of high living standards and harmony and the EU into a great beneficiary. The HEA would ensure that UNCLOS is applied by all and that everyone works fairly under the guidance and reassurance of the presence of HEA as ‘nerve centre.’ The benefits for the EU of a peaceful exploitation of mostly EU-destined energy could be immense. The EU would enjoy upgraded security of energy supplies coming from a tranquil EM that also includes some EU member states. An added but priceless long-term benefit would be the fact that the HEA would help the democratic polity of the region considering that the functioning democracies in the area could act as models for the less-than-fully democratic members.
* Miguel Angel Moratinos Cuyaube, is former Spanish Minister of Foreign Affairs
* Aris Polydoros Petasis, is editor of Intractable Dilemmas in the Energy-Rich Eastern Mediterranean and author of Leadership Triumphs & Failures
¹ In 2016 Miguel Moratinos came up with the idea of setting up an EM High Energy Authority in his contribution titled, “The Challenges of the Eastern Mediterranean.” Moratinos knows the Eastern Mediterranean issues well having resided in Cyprus whilst serving as EU Special Representative for the Middle East Peace Process. He also served as Spanish ambassador to Israel. Aris Petasis comes from the area and understands the intricacies and political dynamics of a region he served extensively through his work and as such ascribes strongly to the formation of a HEA..
