A Journal of Foreign Policy Issues

A tale of two islets

By Krateros Ioannou, Professor of Public International Law, Democritus University of Thrace

1. A Prologue

The Imia incident, which brought Greece and Turkey to the verge of armed conflict during the last days of January 1996, would have remained one of the various episodes in an ongoing Turkish threat against Greece, if it were not for some specific features. To begin with, it was the first time since the Greek-Turkish settlement of the Peace of Lausanne in 1923 that Turkey challenged the Greek sovereignty over parts of its land territory. Indeed, all previous Turkish challenges, even the ones that developed to dangerous incidents, as in March 1987, concerned disputes over maritime zones, especially the continental shelf in the Aegean. The same is true for the Turkish threat of the use of force (casus belli) against Greece in case Greece exercise its rights for the extension of the breadth of its territorial sea to 12 miles. However, in the case of the Imia islets the claim was laid upon Greek land.

A second feature of the Imia incident was that its facet was purely legal. Had it not been part of an overall Turkish expansionist strategy in the Aegean, or had the two islets been situated in other part of the world, the issue could have been easily settled through any international legal procedure.

A difference between two States on the interpretation of treaties is by far one of the most common phenomenon in international relations. The peculiarity of the Imia incident was that the legal issues were discovered more than 70 years after the main instruments had been concluded.

In the following lines we shall attempt to describe the factual background of the incident and to discuss the legal issues involved.

2. The geographical facts

US Airforce Pilotage Chart PC G-38 (file size 202KB)
Detailed map of the area (file size 227KB)

The two Imia islets lie in the Southeast Aegean Sea, at a distance of approximately 6 nautical miles east of the Greek island of Kalymnos (which belongs to the Dodecanese group), 1.9 miles Southeast of the Greek island of Kalolimnos, 1 mile west of the boundary that divides Greek from Turkish territorial sea and 3.5 miles west of the Turkish mainland coast. These islets are referred to with various names.

They are both uninhabited but for a long duration of time Greek shepherds from Kalymnos bring their goats there to graze. The larger of the two islets has an area of approximately 2.5 hectares while the smaller and more easterly has an area of 1.5 hectares. On the old Ottoman maps they are referred to as the "Kardak islets", and more recently they have been recorded as the "Ikinse (double) islets".

On the Greek maps they used to be named as the "Limnia islets". However, today they are referred to in Greece as the Imia islets, a name which appears on some Greek maps.

3. The Greek title of sovereignty.

3.1. The Agreements between Italy and Turkey.

The Dodecanese islands came under Italian control following the Italo-Turkish war of 1912. The formal cession of these islands to Italy took place with the Treaty of Lausanne, signed by Turkey and the Allies on July 24, 1923. By virtue of Article 15 of this Treaty Turkey renounced and waived in favour of Italy Çany right and titleÈ on the Dodecanese islands, including Kalymnos, as well as on the "islets dependent thereon".

3.1. The submission of the Italian-Turkish dispute to the P.C.I.J.

A few years later a dispute arose between Turkey and Italy over the sovereignty of a number of islets adjacent to the Dodecanese islands as well as over the precise position of the boundary line between the Italian held Dodecanese islands and the Turkish territory. Both States concluded a Special Agreement on May 30, 1929 and submitted to the Permanent Court of International Justice at the Hague the following question for adjudication: "Whether according to the Treaty of Peace of Lausanne the following islets should be assigned in their entirety, to either of the parties: Volo (Catal Ada), Ochendra (Uvendire), Furnachia (Furnakya), Cato Volo (Katovolo), Prasoudi, Rho (San Giorgio), Maradi, Tchatulata (Catulata), Pighi (Pigi), Dassia (Dasya), Macri (Makri), Psomi, San Giorgio (Aya Yorgi), Polifados, Psoradia (Psoradya), Ipsili, Alimentaria (Alimentarya), Caravola (Karavola), Roccie Vutzachi (Roksi Vucaki), Mavro Poini and Mavro Poinachi (Mavro Poinaki)". The Court was also asked to adjudge to which of the parties should, according to the terms of the Treaty of Lausanne, be assigned the island of Kara Ada, situated in the Bay of Bodrum. The Imia islets (with the Turkish name Kardak) were not included in the enumeration of the disputed areas in the Special Agreement. [P.C.I.J. Delimitation of the territorial Waters Between the Island of Castellorizo and the Coast of Anatolia Case, Series C, No. 61 at 10].

3.2. The Agreement of January 1932

On January 4, 1932 Italy and Turkey signed in Ankara an Agreement, which entered into force on 10 May 1933. The Agreement related to the sovereignty over islets referred to above and located between the coasts of Anatolia and the islands of Castellorizo and Kara Ada, as well as the delimitation of the territorial waters surrounding those islands in the Aegean Sea. [138 L.N.T.S. 243. The Agreement was registered with the Secretariat of the League of Nations on 24 May 1933, under serial No. 3191]. Following this Agreement the proceedings before the P.C.I.J. between the two States were discontinued. However, the Special Agreement submitted to P.C.I.J. is clear evidence regarding the islets that were considered by both States as disputed at that time.

3.3. The Proces Verbal of December 1932.

The Agreement of 4 January 1932 set down with precision the maritime frontier between the island of Castellorizo and the Turkish coast. The day this Agreement was signed, the two parties exchanged official letters by which they mutually asserted that there was no difference between them as to their respective territorial sovereignty and called for a joint Italo-Turkish technical committee to be set up for the purpose of precisely delimiting the rest of the maritime boundary between the Dodecanese and the Turkish coast. In execution of the above Agreement, the representatives of Italy and Turkey signed in Ankara, on December 28, 1932 a supplementary agreement (Proces Verbal) by which the rest of the maritime boundary between the Dodecanese and the Turkish coast was precisely delimited. The supplementary agreement fixes 37 pairs of reference points between which the maritime boundary dividing Turkish and Italian territory (which at that time included the Dodecanese islands) was drawn. In the above Proces Verbal it was spelled out precisely to which state the majority of the remaining islets belong, "...ne faisant l' objet d' aucune contestation". Included are the "Kardak islets", which are described as belonging to Italy, with the boundary line between Italian and Turkish territorial waters "a moitie distance entre Kardak (Rks) et Kato I (Anatolia)", that is falling midway between the Kardak islets and the island of Kato, Anatolia. Thus, Italian sovereignty over the Imia islets was confirmed by the explicit reference made to them in the text itself.

3.4. The cession of the Dodecanese islands to Greece

The Dodecanese islands eventually came under Greek sovereignty with the Treaty of Paris of February 10, 1947 between Italy and the Allied powers in the Second World War. By virtue of this Treaty Italy ceded all territorial claims to the Dodecanese islands, including "...Kalymnos...as well as the adjacent islets" to Greece. Thus Greece became the successor of all the territory previously controlled by Italy in the Dodecanese area, including, of course, the islets Imia which had been clearly fixed as being Italian territory in the Italian-Turkish Proces Verbal of December 28, 1932. The acquisition of the Dodecanese was sanctioned in Greece by Law 547/1948 which includes a list of the islets and rocks of the region allocated to various administrative regions. The Imia islets (called in the Law: Limnia) were allotted to the District of Kalymnos. From 1947 till December 1995 Turkey never questioned the territorial status of Imia.

4. The incident.

On December 25, 1995 the Turkish cargo vessel "Figen Akat" ran aground on one of the Imia rocky islets. Although the accident occurred within Greek territorial waters the captain of the "Figen Akat" refused assistance from the competent Greek authorities claiming that he was within Turkish territorial waters. Despite assurances to the contrary, the captain sought assistance from the Turkish authorities. Finally, in agreement with the Turkish company that owned the vessel, the "Figen Akat" was towed to the Turkish port of Gulluk by a Greek tug boat.

On December 29, 1995, the Turkish Ministry of Foreign Affairs addressed to the Greek Embassy in Ankara a Note Verbal, asserting, for the first time in more than half a century, that Imia constitutes part of the Turkish territory, registered in the land registry of the Turkish province of Mugla. Greece reacted and on January 10, 1996 it addressed a Note Verbal to the Turkish Ministry of Foreign Affairs. By that Note Greece rejected the Turkish claims and underlined that Imia is Greek territory by virtue of cession from Italy, to which it belonged in accordance with the 1932 Italo-Turkish Agreement and the subsequent Proces Verbal.

While legal and diplomatic staffs in both Athens and Ankara started to dig the archives and to develop more elaborate arguments, the incident escalated to a crisis. On January 25, 1996, the Mayor of Kalymnos together with three other Greek citizens raised a Greek flag on the larger of the Imia islets. On January 27, 1996, Turkish journalists from the Turkish daily Hurriyet landed on this same islet, took down the Greek flag that was posted there and raised the Turkish flag. Although the Turkish Government did not officially endorse the action of the Turkish journalists, the Turkish Prime Minister at that time, Ms Tansu Ciller, insisted a few days later: "We can't let a foreign flag fly on Turkish soil. The flag will come down."

On January 28, 1996, a Greek navy detachment replaced the Greek flag. At the same time a major naval build up was developing around the Imia islets and at various times up to 20 vessels were reported in the area. On January 30, 1996, Turkey sent several ships to the region, prompting Greece to send an equal number. A Turkish frigate violated Greek territorial waters targeting a Greek gunboat that was patrolling the area and a Turkish helicopter flew over the Imia islets. The same day the entire Greek fleet left its naval base near Pireus and sailed to the Aegean. The crisis reached its peak in the early morning hours of January 31, 1996 when the Turkish army landed some men on the smaller of the Imia islets.

At this very critical moment the U.S. Government mediated between Greece and Turkey in order to avert an armed conflict between the two States. The mediation proved successful. After a special session of the Greek Government's National Security Council in the early hours of January 31, 1996 the Ministers of Defence and Foreign Affairs announced that an understanding had been reached by means of American mediation. Both sides would withdraw their forces from the area of Imia and the situation would return to the status quo ante.

The Greek Government, ever since, has been reiterating continuously that the only way for Turkey to settle its territorial claim is to submit it, to the International Court of Justice.

5. The legal arguments.

5.1. The legal arguments of Turkey.

Turning again to the legal background a new Turkish Note Verbal of January 29, 1996 set out the main Turkish arguments concerning the territorial claim over Imia and initiated for the first time the notion-if not the terminology-of "grey zones" in the Aegean. The Turkish arguments as stated in the above Note Verbal can be summarised as follows:

a) The Turkish-Italian Agreement of 1932 and the subsequent instrument of December 1932 "have been negotiated within the context of the particular situation of the pre- second world era". The Turkish Note Verbal does not draw the logical conclusion of this argument. It is evident, however, that Turkey hinted at the non-applicability of the Italo-Turkish agreements due to the fact that they were, according to Turkey's view, imposed upon Turkey.

b) The reference to the "Kardak rocks" is made only in the December 1932 Proces Verbal, not in the main Italo-Turkish Agreement of 1932. However, as regards to this latter document "the legal procedures were not completed" (meaning obviously that there does not exist any Turkish implementing legislation nor any ratification instrument specifically in regard to the Proces Verbal) and "it was not registered with the League of Nations".

c) During the negotiations for the Treaty of Paris of 1947 Greece suggested that the Treaty should include a reference to the Italo-Turkish instruments of 1932. This suggestion was not accepted.

d) Greece has approached the Turkish Government in 1950 and yet again in 1963 "proposing talks with a view to exchanging letters between the two Governments ascertaining the validity of the [Italo-Turkish instruments of 1932]". According to Turkey, steps (c) and (d) above, it is evident "that Greece herself had doubts as to the validity of said documents".

e) Article 14 (1) of the Treaty of Paris of 1947 refers to "adjacent islets". However, according to Turkey, the Imia (Kardak) cannot be considered as "islets". Furthermore, they lie at 3.8 miles off the Turkish coast whereas they lie at 5.5 miles away from the nearest Greek islands. Therefore, these "rocks" cannot be defined as "adjacent" to the Greek islands which are enumerated in the Peace Treaty of 1947. Consequently, according to Turkey, these "rocks" have never been ceded to either Italy or Greece and should be considered as Turkish territory.

f) National Greek legislation, namely Law 518/1948 "entails no legal consequences in international law".

g) The invocation by Greece of the Treaty of Paris of 1947 can be effective only if it is made with good faith. However, Greece does not take into account that by virtue of this Treaty the Dodecanese islands should remain demilitarised.

Finally Turkey stated, in the same Note Verbal, in clear terms the "grey area" claim. "...It is obvious that the possession of other small islands, islets and rocks in the Aegean the status of which has not been clearly defined by international documents has yet to be determined by agreement. Therefore, attempts by Greece to inhabit the small islands, islets and rocks in question in an artificial and demonstrative fashion can in no way create any legal consequences in regard to their status.

The Government of Turkey is ready to enter into negotiations with Greece with a view to determining the possession of small islands, islets and rocks in the Aegean. After such negotiations the issue of the delimitation of the territorial waters could also be discussed and finalised."

A few days later, namely on February 5, 1996, an official Turkish statement further defined Turkey's arguments, "...the agreement signed on December 28, 1932 between Italy and Turkey does not amount to a Treaty as such, since the subject of the treaty was neither discussed nor validated by the Turkish national parliament. Rather, it amounts only to an act resulting from a meeting of low-level officials from both sides, and is not legally binding for Turkey.

Since therefore, the agreement does not exist, the Aegean Sea is up to negotiation. In the Aegean there are 3000 disputed rocks and islets, and eventual actual islands, whose status Turkey is examining in detail on the basis of all former agreements".

5.2. International reaction.

The reactions to the above Turkish contentions were manifold. On February 6, 1996 the Italian Foreign Ministry issued a statement in which it specified that "The Italo-Turkish agreement of 1932 is valid and continuous to be valid". On February 8, 1996 the Italian Ministry of Foreign Affairs, this time under the capacity of Italy as exercising the Presidency of the European Union, issued a Press Release stating, inter alia: "On the part of the Italian side a thorough review is being undertaken on the terms of the controversy between Greece and Turkey to a dispute over the sovereignty of the Aegean island (isola, in the original Italian text), Imia-Kardak.

As it has been noted, the area in which the island in question is situated formed the object of delimitation agreements between Italy and Turkey, already in 1932, following the succession of the Dodecanese from Turkey to Italy by means of the Treaty of Lausanne 1923. The Italian rights over the area were subsequently transferred to Greece by means of the Paris Treaty of 1947".

Furthermore, the European Parliament adopted on February 14, 1996 a Joint Motion for a Resolution, in which in unequivocal terms it reaffirms that "the islet of Imia belongs to the Dodecanese group of islands, on the basis of the Lausanne Treaty of 1923, the Protocol between Italy and Turkey of 1932 and the Paris Treaty of 1947, and whereas even on Turkish maps from the 1960's these islets are shown as Greek territory". The same Joint Motion stated that the European Parliament is "gravely concerned by the dangerous violation by Turkey of sovereign rights of Greece".

5.3. The Greek legal counter- arguments.

Greece reacted on February 12, 1996 with a long Note Verbal in which it replied to all Turkish arguments.

a) As to the Turkish assertion about the political climate at the time of the conclusion of the 1932 Italo-Turkish Agreement, Greece observed that it does not have any legal significance. Indeed, Article 62(2), al. (a') of the Vienna Convention of 1969 on the Law of Treaties stipulates that "A fundamental change of circumstances may not be invoked as a ground for terminating or withdrawing from a treaty: if the treaty establishes a boundary...". (See also Articles 11 and 12 of the Vienna Convention of 1978 of Succession of States in Respect of Treaties).

b) As to the allegation that the Proces Verbal was not registered with the League of Nations, Greece observed that the Proces Verbal of December 28, 1932 was concluded by virtue of the exchange of letter provided in the Agreement of January 4, 1932 and was therefore complementary to that Agreement, which had been duly ratified and registered. Indeed, the Proces Verbal simply referred to a matter of maritime delimitation in a region where, as its text itself and the letters exchanged affirm, no dispute whatsoever existed with regard to sovereignty. Consequently, this text needed no further approval by the parties and was put into effect upon its signature. Greece could have added that the invocation by Turkey of the absence of any national implementing legislation concerning the Proces Verbal contradicts its own argument concerning the relevance of domestic legislation.

c) Greece furthermore observed that Turkey in the period 1932-1947 and thereafter, until the Imia incident, had not challenged the validity of these Agreements. The same holds true for Italy and for the period Italy was exercising sovereignty over the Dodecanese islands. On the contrary, Turkey, not only in 1932, but also in 1950, had accepted that there already existed maritime delimitation in the area. This is proved by the Regional Air Navigation Agreement of the Second Middle East Regional Air Navigation Meeting held in Istanbul in 1950. In a series of maps adopted by the above Agreement as well as on maps published by Turkey, this delimitation, as well as the fact that the Imia islets belong to Greece, is depicted.

d) As to the alleged Greek proposals submitted during the 1947 Peace Conference in Paris, the non inclusion of the reference of the Italo-Turkish Agreements in the text of the Peace Treaty in no way affects their validity. The Conference simply preferred for reasons of simplicity and brevity to stay with the corresponding text of Article 15 of the Lausanne Peace Treaty, under which the Dodecanese and its adjacent islets were ceded to Italy.

e) The geographical term for the characterisation of the Imia territory (island, or islet or rock) has no effect on the title of sovereignty. The Italo-Turkish Agreements are clearly referring to Italian sovereignty over Imia. Furthermore, the size of any land formation in the sea does not affect sovereignty. Apart from the above arguments it should be noted that a series of Turkish maps, as well as American and Italian maps, clearly depict the fact that Imia was within Italian, and from 1947, Greek territorial waters.

5.4. Some additional legal arguments.

The thrust of the legal arguments of Turkey is the non-registration of the December 1932 agreement. One may develop a series of legal arguments referring to this particular issue, mainly to the question whether such an omission does in fact have any legal significance today. However, we deem that a similar discussion is meaningless. The December 1932 demarcated a marine boundary which was respected by all parties involved, including third parties. As the International Court of Justice has stated in its judgement of February 3, 1994, concerning the Territorial Dispute (Libya/ Chad), "The establishment of [a] boundary is a fact which, from the outset, has had legal life of its own, independently of the fate of [the...] Treaty. Once agreed, the boundary stands, for any other approach would vitiate the fundamental principle of the stability of boundaries, the importance of which has been repeatedly emphasised by the Court". [Par. 72]. Furthermore, it should be noted that the same Court, in its judgement concerning the merits of the Temple of Preah Vihear case (1962) based its decision upholding a "map line" on the fact that "both Parties by their conduct recognised the lined and thereby in effect agreed to regard it as being the frontier line".

In view of the above and of the continuous, uninterrupted and unopposed practice in the area, as well as the relevant maps established not only by Turkey itself but by third parties as well, the Proces Verbal of December 1932 stands by its own, irrespective of its non-registration with the League of Nations. It should be understood that the case law of the International Court of Justice is one of the main reasons that Turkey avoids to submit its claim to the Court.

6. The aftermath of the incident.

Although the crisis over Imia belongs to the past, unfortunately an epilogue to the incident does not exist yet. Turkey's territorial claim was neither withdrawn nor submitted to international adjudication. It remains as part of the overall revisionist Turkish policy in the Aegean. Unlike its European partners and its Western allies Greece is obliged to remain alert and to be ready to exercise armed self-defence vis-ˆ-vis a neighbour who refuses to recognise the most elementary principles of international law and is threatening Greece with war. It is characteristic that the Turkish Prime Minister of that time, Tansu Ciller, during the Greek-Turkish crisis in February 1996 over the Imia islets, threatened Greece with war on seven occasions in a period of twelve days. The successor of Tansu Ciller, Mesut Yilmaz, refused to recall the threat of war. On May 21, 1996 the Turkish Minister of Foreign Affairs at the time, declared in Washington D.C. that "... all issues in the Aegean are logically and legally interconnected, as is the issue of sovereignty of some rocks and islets, which is not clear under the Treaty of LausanneZ. Consequently the issue of sovereignty of some of these islets, which have territorial sea, is connected with the delimitation of the continental shelf and the (issue) of some islands which are demilitarised in accordance with the Treaty of Lausanne. Thus, when one refers to the status of islets and rocks (should also refer) to the status of the demilitarised islands...".

The Turkish Foreign Minister avoided to use the term casus belli but instead declared that the threat comes from Greece with its intention to extend its territorial sea. More recently, that is by the beginning of June 1996, Turkey has put forward a new "theory" claiming that the Aegean comprises "grey areas". In fact, Turkey alleges that besides the sovereignty of the larger inhabited Aegean islands where Greek sovereignty is based on various treaties, there exist other islands, islets and rocks that "Greece considers its territory" without, according to Turkish allegations, being supported by any agreement. These islands are considered by Turkey either as a "no man's land" or, in some cases, as belonging to Turkey.

This Turkish view is analysed by the Turkish daily "Milliyet" in an article published on June 13, 1996. The newspaper listed the islets Farmakonisi, Agathonisi and Kalolimnos, which are close to the Asia Minor coast, as being part of these "grey areas". Apart from disputing sovereignty over islets close to its coast Turkey in June 1996, also disputed was the Greek sovereignty over the island of Gavdos, which lies off the Southwest coast of Crete and is inhabited by some 300 Greek fishermen. Indeed, during the planning of the NATO exercise "Dynamic Mix", the representative of the Turkish General Staff Captain Hussein Cifci submitted a statement, according to which Turkey opposed the inclusion in the exercise of the Greek island of Gavdos "due to the disputed situation regarding sovereignty". The Greek Foreign Minister Mr Th. Pangalos considered that the incident, "Has gone over and beyond anything that has happened up to now".

On June 9, 1996 the Turkish Prime Minister of the time, Mr Messut Yilmaz, did not expressly condemn the action of the Turkish Captain in NATO but specified the "grey areas" as following: "There are certain rocky islands in the Aegean whose status is not clear according to the Lausanne Treaty. In case talks fail, this can be resolved at the International Court of Justice". It should be noted that the regime of the Gavdos island has nothing to do with the Lausanne Treaty, since it is under Greek sovereignty in accordance with the arrangements of the Treaty of London of 1913.

The Imia incident and its aftermath clearly reveal a tendency, if not an overall strategy, from the part of Turkey to revise the legal and factual status quo in the Aegean Sea. The systematic avoidance of an international adjudication even of such issues as the delimitation of the continental shelf, is a further indication of the fact that the dearth of legal arguments for its claims guides Turkey to a policy of tension, if not eventual confrontation with Greece. Greece, from its part disposes a weapon of considerable power: the rules of international law. Whether this weapon can deter the Turkish policy is a problem which concerns not only Greece but the international community as a whole.