By Ditmir Bushati*
Winston Churchill used to say that in foreign policy you must always choose the sea. Albeit in the British context, because of the Commonwealth, the above referred to the superiority of the sea over the mainland. In general, the states that have access to the sea are considered lucky. This is also our case, as our country is enclosed in the Balkans but open to the Mediterranean. However, luck is not enough for us. It must be accompanied by strategic discipline and patriotism, because the sea represents a valuable common good that boosts development, in addition to advantage in foreign policy.
During the period of communist isolation, the coastline remained unused, while geopolitical conditions and the division of Europe into blocs was followed by paranoid actions. However, in the last period of communism, the criteria set by International Law of the Sea for maritime zones were indeed met. This was dictated by the progress recognized by International Law of the Sea with the entry into force of the Montego Bay Convention in 1982. The archives of the Ministry of Foreign Affairs contain professional expert assessments outside any ideological sphere of influence, that underscore the importance that an isolated Albania placed to these international developments, belonging to the Mediterranean.
30 years later, we have unfortunately come across the fact that a large part of the coastline has been destroyed, due to the combination of a lack of development vision and the relentless greed of predatory capitalism. 30 years later, we are still not able to showcase a serious investment that has yielded results in the entire value chain of the economy deriving from the sea, even in a part of our Riviera. Nonetheless, every time maritime issues are discussed with neighbors, the rage of hypocrisy erupts, recalling Goethe’s saying: “The one who acts is always unjust. The only one who is just is the one who observes”.
Although Italy is geographically opposite to us and we have Greece and Montenegro on each side, the process of delimitation of the maritime zones with Greece is always in the spotlight, a typical Balkan habit of a love-hate relationship. To date, there has been a lack of public debate to promote the completion of the process with Italy pending since the communist era, or to commence the maritime delimitation process with Montenegro.
Should Albania be engaged in a delimitation process with Greece? I pose this question not because I find myself before a dilemma, but rather because there have been public voices claiming that the issue of the sea is fixed and has been settled by the 1925 Florence Protocol.
Albania and Greece are coastal states, and adjacent. The delimitation of maritime zones entails a mutual strategic interest. The delimitation of the maritime zones for two states that are part the Montego Bay Convention on the Law of the Sea allows them to exercise complete sovereignty over an area clearly defined by coordinates, and to fully utilize natural resources.
According to the provisions of the Convention, the maritime zones between the states consists of three basic elements: a) The territorial sea, which refers to the inland maritime area of a state not exceeding 12 miles from the straight baseline or the natural water line ( Article 3); b) The continental shelf, the part of the seabed up to the depths of the technical use extending not more than 200 miles, and with the 12th mile of the territorial sea border used as a calculation point (Article 76); c) The Exclusive Economic Zone placed on the continental shelf, which extends up to 200 miles and with the 12th mile of the territorial sea as a calculation point. The Exclusive Economic Zone refers to an area beyond and adjacent to the territorial sea (Article 55). Usually, the continental shelf and the Exclusive Economic Zone overlap.
According to the Convention, maritime zones between states are defined by an agreement or court decision and must be reflected in geographical coordinates in an internationally recognized maritime map. The agreement must be submitted to the United Nations. Contrary to the claims, the Protocol of Florence has defined only the land borders between Albania and Greece. The delimitation line of our two states should start from Pyramid 79, which is considered the pyramid where the land meets the sea. However, to date, there is no agreement on the geographical coordinates that shall define the Territorial Sea, the Continental Shelf and the Exclusive Economic Zone.
In order to delimitate maritime areas, it is pivotal that states define the baseline which can be normal, straight or combined, according to the Convention. This subsequently contributes to constructing the delimitation line on which modifications can be made, also taking into account specific elements such as soil geography, historical titles and an equitable solution. Involvement in this process is therefore imperative; still, belated. Its completion enhances opportunities for the proper use of maritime zones and natural resources.
While the necessity of this process is beyond doubt, the crucial issue remains how this process can be conducted. The decision of the Constitutional Court declaring the 27 April 2009 agreement incompatible with the Constitution constitutes a guide that must be read carefully, despite the fact that there are still public voices heralding that this agreement was fair, and the decision of the Constitutional Court was politically influenced.
In terms of substance, there are three elements of this decision we must keep in mind: (i) The non-application of the basic principles of international law regarding the delimitation of maritime zones between the two countries, in order to achieve a fair and equitable solution. In other words, applying only the principle of strict equidistance for all areas and not the corrected equal distance, which would lead to an equitable solution; (ii) Ignoring islands and geographic architecture in general as special circumstances for the delimitation of maritime zones; (iii) Incompatibility between the content and the title of the agreement and the violation of international law by Albania.
Those who are roaring today about the impact of the 12 nautical miles, should better remember that Article 2 of the 2009 agreement, which they signed, explicitly recognized the 12 nautical miles of the territorial sea of Greece, whereas in fact this issue should not be the subject of any agreement, as it constitutes an internal matter of the states themselves governed by the Convention on the Law of the Sea.
Furthermore, from a procedural point of view, we must not forget the conclusions of the decision of the Constitutional Court on: (i) the non-authorization by the President of Albania of full authority to the negotiating team to hold discussions and conclude an agreement with Greece (ii) not identifying prior to the start of the negotiation process the maritime zones, subject of delimitation; (iii) ignoring previous bilateral agreements on border disputes.
Following the ruling of the Constitutional Court, the then government agreed to an international expert assessment. We were also extremely sensitive to this issue. When we were in the opposition we brought the 2009 agreement to the Constitutional Court. When swept into office we set in motion a process of consultation with international and local experts.
All expert assessment concluded that: (i) The 2009 delimitation yielded the minimum result our country could have achieved. (ii) A new agreement based on the principle of equidistance with adjustment was needed due to the geographical architecture; (iii) The application of the above principle would produce benefits to the maritime area of Albania, of which the area in the territorial sea would be more favorable, as in this area a complete domination is exercised over the sea, the seabed and the airspace above it. Meanwhile, on the Continental Shelf and the Exclusive Economic Zone our country would benefit from the expansion of sovereign rights.
For us socialists, the decision of the Constitutional Court was not only a roadmap, but also as a red line that should not be violated. Although, within the interpretative context of the Vienna Convention on the Law of Treaties, the 2009 agreement was not concluded due to its non-ratification, it was not at all easy to return to the negotiating table and proceed to negotiate with Greece in order to conclude a new agreement.
On 14 October 2013, while hosting my Greek counterpart Evangelos Venizelos in Tirana, I presented at the bilateral meeting, and then in public communication, the position of the Rama government not only on maritime issues, but also on all matters of a historical nature with Greece, expressing readiness to address them on the basis of the established principles of international law. I conveyed the same messaged during my visit to Athens on February 6, 2014, in meetings with President Karolos Papoulias, Prime Minister Antonis Samaras and my counterpart Evangelos Venizelos. Defining all issues in a systematic and consistent way, although this element was absent until then, was easier than finding acceptable solutions. Consequently, the meeting at Prime Minister level between Rama and Samaras on September 4, 2014, in the margins of the NATO Summit in Wales, led in the transition from a phase of identifying and presenting bilateral issues, to defining a framework to discuss them.
To this end, we initially commenced exploratory discussions at diplomatic and technical level. Afterwards, with the Tsipras government in Greece, we moved from exploratory discussions to the exchange of views in writing regarding the unresolved issues between us; issues extending over a course of 80 years, from the enactment of a state of war by the Greece against Albania, to the current issues. Together with my counterpart Kotzias, we established a permanent bilateral mechanism at diplomatic level that preceded the political dialogue at Foreign Minister and then Prime Minister level.
In a nutshell, we build step by step a process based on trust, analyzing the discussions, the mutual interests, the tools at our disposal and outlining the way and the agenda on how to resolve all bilateral issues, including the delimitation of the maritime zones, with a view to a fair and equitable solution for both sides.
The negotiation of the new agreement on the delimitation of the maritime zones, which followed the procedure described above, was based on Law 43/2016 “On International Agreements in the Republic of Albania”; a law that in itself reflected the ruling of the Constitutional Court on how Albanian institutions interact and their right to be represented in such a negotiation. The negotiating team, comprising representatives from 11 state and academic institutions, held three rounds of talks with the Greek side.
During this process that involved the central institutions of the country, the Ministry of Europe and Foreign Affairs prepared a voluminous dossier of about 1200 pages with study material, archival, legal, cartographic, photographic, archaeological, mineral, hydrocarbon, navigation and other types of material.
This serious commitment was supported by our strategic partners, whom we kept updated on the set of issues in the discussions, and who encouraged the conclusion of a sustainable solutions between the two sides. It should also be noted that, during this period, Greece committed itself to another diplomatic front with North Macedonia that culminated with the conclusion of the Prespa Agreement.
In the meantime, we managed to address some of the topics of the package. We have addressed the issue of toponyms, thus lifting any barriers to the cross-border movement of our citizens. Greece abolished the use of the Apostille stamp, saving approximately 5 million euros per year from citizens’ pockets for various documents. The abolition of the Apostille stamp also paved the way for the issuance of certificates by our consular offices in Greece, which would be a great relief for our citizens.
About 150 thousands Albanian citizens benefited from the solution to the problem of registration of children born in Greece by one or both parents who do not have a residence permit in Greece. Driving licenses were recognized. The process of recognizing this permit cost Albanian citizens in Greece about 800 euro. We have resumed the revision of school textbook work under the 1998 agreement, exchanging reports on findings in the respective texts on issues of concern to both sides.
Regarding the implementation of the 2009 agreement on the search, exhumation, identification and reburial of Greek soldiers fallen in Albania during the Italian-Greek war of 1940-1941 and the construction of cemeteries for them in the territory of the Republic of In Albania, several technical protocols have been adopted with the aim of: (i) defining the number of Greeks soldiers fallen; (ii) identifying the areas to be excavated; (iii) determining the manner in which the dead bodies are to be identified; (iv) ensuring the presence of all relevant institutions during the excavation process and the accompanying documentation of the process.
Political changes in Greece in mid-2019 resulted in New Democracy coming back to power. New Democracy was in the government at the time of the signing of the agreement for the delimitation of the maritime zones with Albania in 2009. We must not forget that, for New Democracy, the 2009 agreement was considered Greece’s biggest strategic achievement in foreign policy.
This political change in Greece was accompanied by a different approach to the package of unresolved issues between our two countries. This is reflected from the way how the delimitation to the of maritime zones was separated from the package and the way how it will be addressed. For example, the package included the agreements on maintaining land border pyramids as well as on cross-border cooperation. Although not legally related to the the agreement on maritime zones, the conclusion of these agreements, along with the maritime zones, will conclude the border issues between Albania and Greece. At the same time, it buries any claims by Greek extremist circles regarding the so-called Northern Epirus.
It is painful that, despite many years of efforts to maintain the issue of delimitation of maritime zones at a bilateral level, for the first time, the way of resolving this bilateral issue is included in the draft
Negotiating Framework document, which will guide the negotiation process to EU membership of Albania. Although there are EU Member States which have yet to find a solution among themselves regarding maritime delimitation, due to the lack of a unified European standard, the insistence of Greece to bring this bilateral issue – which can only be resolved through international law – and include it in the European agenda, unjustly increases pressure upon us.
Today we are facing the stated fact that Albania and Greece will bring the case for the delimitation of maritime zones to an international court. This also constitutes a demanding process that requires knowledge, serious preparation and time, as we are not dealing with the transfer of jurisdiction over the management of this issue, but rather with the expression of the readiness of the parties to accept the decision of the international court.
In essence, this process is prepared by both parties, while the decision is delivered by the court. In bilateral negotiations, the parties act on the basis of their objectives and exigencies. They control the outcome of the negotiations. When the parties decide to go to court, the court itself operates as the guardian of the precedents set by international law. It is therefore coolheaded to the parties’ objectives.
Before the commencement of the trial, Albania and Greece will have to reengage into an interactive process from which they will have to prepare a joint document on the subject matter, evidencing the commonalities and differences between the parties, for which the court must decide.
The parties precede this process by strengthening their legal position which helps them in their legal confrontation with international law. In the light of this development, should be understood the decree no. 107, dated 25 December 2020, of the President of Greece “On the closing of the bays and drawing of straight baselines in the maritime area of the Ionian and the Ionian Islands up to Cape Tainaro in the Peloponnese”. I am convinced that the relevant institutions in Albania have analyzed the content of the decree and verified the maritime coordinates, in order to ensure that such an act is in accordance with international law and does not endanger our national security. At the same time, they should work on the strategy and the steps to be followed for the litigation process.
According to the International Court of Justice, the maritime delimitation process comprises the following steps: (i) Presentation and analysis of the international and domestic legal basis of the parties. (ii) Analysis of the geography in the maritime area where the delimitation will be carried out and defining the base points from where the delimitation line will start. (iii) Construction of a temporary delimitation line, each point of which is equidistant from the base points on the respective coastline of the parties; (iv) After the construction of the temporary delimitation line, this line is corrected to the territorial sea, providing for special circumstances (the role and weight of the rocks, the shallow points of the sea, the marine facilities) and for historical titles (maritime areas declared and recognized by these titles), for the Continental Shelf and the Exclusive Economic Zone, and for an equitable solution (due to geographical reasons, the islands occupy less weight in the delimitation compared to the mainland).
At the end of this process, a maritime map with the coordinates of the delimitation line between the parties is drawn.
No less important is the decision-making on the choice of the international court that will judge the delimitation of the maritime zones and the internal state organization in response to this process. International law recognizes at least three bodies to which a case can be referred: (i) The International Court of Justice, as the principal guardian of the international law, has considerable experience in resolving such matters; (ii) The International Court on the Law of the Sea, the activity of which is based on the International Convention on the Law of the Sea, but with less experience than the International Court of Justice; (iii) The Permanent Court of Arbitration, although this arbitration does not have the legal weight of the International Court of Justice.
Our country has been only once in the International Court of Justice for the Corfu Channel incident. There have been no practice with the other two institutions.
In view of the above, it is time to reiterate that the exercise of the foreign policy requires strategic discipline. Greece represents a strategic partner in the region, with which we still have important unresolved issues, including the delimitation of maritime zones. This does not imply that we should see Greece neither with paranoia nor with inferiority. Political blame games must give way to a serious discussion that is oriented by the state logic and national interest, which at the same time ensures the widest possible political and social understanding for addressing unresolved issues with the neighbor in accordance with the objectives of our foreign policy.
We have managed to put all bilateral issues on the table. Some of them, as explained above, have been addressed. The way ahead is not easy, especially given the fact that the delimitation of the maritime zones, due to the insistence of Greece, from a bilateral issue has now been included in the European agenda of Albania. Therefore, we must showcase patience in dealing with all issues, and at the same time object the transfer of bilateral issues at the EU level, always bearing in mind that we share interrelated interests with Greece, as well as an interdependent economy. As two of the oldest nations in this European corner, the Albanian-Greek relationship has every potential to unleash positive energy for the entire region./ibna
*Ditmir Bushati is a former Minister of Foreign Affairs of Albania