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Continuing the analysis of concepts of International Law that concern us and are often incorrectly used in public discourse, the expressions Ipso Facto and Ab Initio will be analyzed below, which were widely used during the latest formulation of the map of the potential continental shelf (!!!) for the spatial planning that we sent to the EE (MSP- Marine Spatial Planning).

The phrases “ipso facto” and “ab initio” come from the Latin language, which forms the basis of many legal terms of Roman Law and modern legal vocabulary.

1. IPSO FACTO

The concept of “ipso facto” means “as of the fact itself”. In the United Nations Convention on the Law of the Sea (UNCLOS), in Article 77, paragraph 3, on the continental shelf, the concept is found, since it is defined that:

"The rights of the coastal State over the continental shelf do not depend on possession, actual or notional, or on any express declaration."

That is, the sovereign rights of the state over the continental shelf do not require a declaration or any act to be valid. They exist due to the geophysical reality of continental extension.

2. FROM INITIO

The concept “ab initio” means “from the beginning”.

For the continental shelf, this means that the sovereign rights of the state to exploit the seabed (and fishing for demersal species) and its subsoil exist “from the beginning”, that is, from the moment the state acquired its sovereignty over the land (or from the existence of the state), without requiring a subsequent act.

The combination of these concepts characterizes the passive nature of continental shelf rights. They are not “rights of sovereignty,” but “sovereign rights to exploit.” The state does not “acquire” them, it has them from the beginning.

3. USE IN LAW

The two concepts are used internationally:

1) IN THE CONVENTION ON THE LAW OF THE SEA (e.g. Article 77 UNCLOS on the continental shelf) but also in International Law (ICJ Statute, Article 36 para. 2 – “The States Parties to this Statute may at any time declare that they recognize as obligatory ipso facto and without special agreement, in relation to any other State accepting the same obligation, the jurisdiction of the Court in all legal disputes concerning….”).

2) Also in TREATIES/BILATERAL AGREEMENTS the concept of ab initio is found (In cases of invalidity of a treaty ex tunc, "From the beginning" - Invalidity that operates retroactively, as if the treaty never existed. E.g. due to fraud or use of force according to article 52 of the Vienna Convention on the Law of Treaties (1969)).

Invalidity also applies ab initio in Arbitration cases and in Investment Law (e.g. In investment arbitration jurisprudence – ICSID, UNCITRAL, SCC – Invalidity that operates retroactively, as if the treaty never existed.).

2) In CIVIL LAW the concept “Ipso facto” is often used interpretatively or in legal practice, to describe an automatic legal consequence, mainly in automatic termination (termination) clauses. And also of a contract that is void ab initio.

3) In CRIMINAL LAW it is mainly used as an interpretative concept: e.g. "The act is ipso facto punishable", i.e. the act itself constitutes an offense without requiring intent in specific crimes (e.g. illegal carrying of weapons). The concept "ab initio" is used for "A crime that is invalid/non-existent ab initio. E.g. police proceedings when the legal formalities were not followed (such as the lack of a warrant, failure to inform of rights, etc.), i.e. when it violates fundamental rights, become invalid ab initio" (Invalid preliminary investigation or arrest ab initio).

4. ICJ DECISIONS REFERRING TO THE CONCEPTS

1) In the case of “North Sea Continental Shelf Cases (1969)”: Germany vs Denmark & ​​Netherlands, concerning the delimitation of the continental shelf in the North Sea. The Court ruled that: “The rights of the coastal State over the area of ​​the continental shelf which constitutes a natural extension of its land towards and under the sea, exist ipso facto and ab initio, by virtue of its sovereignty over the land, and as an extension thereof in the exercise of sovereign rights for the purposes of exploration and exploitation of natural resources”.

2) In the case of “Nicaragua v United States (1986)”: Republic of Nicaragua v United States of America – “Military and Paramilitary Activities in and against Nicaragua”: Nicaragua accused the US of: Supporting the Contra rebels, for military attacks on ports and oil installations and for violating its sovereignty. The Court ruled that “….the principles of non-use of force and non-intervention constitute not only customary international law but are recognized as such in general international law and are ipso facto binding on all States.”.

5. WHAT DO THE CONCEPTS “IPSO FACTO” AND “AB INITIO” MEAN FOR GREECE AND TURKEY?

1) Greece argues that its islands have a continental shelf ipso facto and ab initio, and therefore no declaration of the continental shelf is required for its existence. It exists by the nature of their territory and by the principle of state sovereignty over them.

2) Turkey has not signed UNCLOS and disputes that the Greek islands have full influence on the continental shelf or EEZ, especially if they are located opposite mainland Turkey (e.g. Kastellorizo, Rhodes etc.), because they are located on the Turkish continental shelf. It supports the theory of "continental extension" and not the principle that islands and islets that can sustain economic life have an EEZ, which is enshrined in UNCLOS according to Article 121 - Status of Islands:

Paragraph 2: “Except as otherwise provided in this Convention, an island has the same territorial sea, contiguous zone, exclusive economic zone and continental shelf as a continental land.”

Paragraph 3: “Rocks that cannot sustain human habitation or economic life on their own do not have an EEZ or continental shelf.”

6. THE PRACTICAL APPLICATION OF THE CONCEPTS “IPSO FACTO” AND “AB INITIO”

1) Greece considers that it has automatic sovereign rights to the continental shelf of its islands, without declaration (ipso facto and ab initio). This is the reason why it has not declared a continental shelf, but claims it as existing by nature.

2) Turkey disputes that the Greek islands have a full-length continental shelf, claiming that they lie on its continental extension. It has declared “Turkish Continental Shelf claim lines” in the Eastern Mediterranean (2019) that overlap areas of the Greek continental shelf, south of Kastelorizo, Rhodes, Karpathos and Kasos.

7. LEGAL CONSEQUENCE

The concept of ipso facto and ab initio:

1) It reinforces Greece's position that a declaration is not required for the existence of a continental shelf.

2) These concepts are mainly legally relied upon to conduct research or exploitation.

3) It opposes (based on the provisions of UNCLOS and ICJ decisions) the Turkish position that Greece must declare a continental shelf in order to have it.

8. STRATEGIC IMPORTANCE

In the Greek-Turkish negotiations, Greece, based on the concepts of ipso facto and ab initio:

1) It attempts to legally protect the Greek position in any appeals to the ICJ or Arbitration.

2) It also justifies the absence of a Greek declaration of a continental shelf.

3) It continues to support the argument of the islands' full influence on the continental shelf and EEZ.

6. THE CONCEPT OF “POTENTIAL REEFER SHELF”

In the map submitted by Greece to the European Commission (MPS – Maritime Spatial Planning), there is talk of a "potential continental shelf" in areas that have not been demarcated with a neighboring state (e.g. Turkey) while there are disputes/objections from third states.

From a legal point of view, the continental shelf is not “potential” in itself, in the sense of its existence in its own right.

The demarcation is potential.

The term "potential" is used diplomatically and technically here to indicate that: "The final extent of the Greek continental shelf is potential", as it will be determined through delimitation with Turkey or an ICJ - ITLOS decision, if the two countries appeal.

Greece does not renounce the ipso facto & ab initio right, but recognizes that the exact line of validity of its right has not been delimited. Legally, however, the term potential is not appropriate, if understood as the existence of a continental shelf, because it exists ipso facto. The continental shelf is not “potential” in terms of its existence.

In UNCLOS, there is no concept of "potential continental shelf." It can be characterized as "potential" in terms of its extent, in areas where delimitation is pending.

In particular, it can also be used in international practice (e.g. Norway–Russia, Ghana–Côte d'Ivoire) as a "potential continental shelf claim", but not as a legal term, but as a term for cartographic depiction prior to delimitation.

7. OVERLAY AREAS

1) Therefore, countries can exploit their continental shelf even if they have not declared it (while no one else can exploit the resources of the continental shelf without the consent of the state with sovereign rights over it, due to its “ipso facto” and “ab initio” character).

2) But what happens in areas where the continental shelf (or EEZ) claims of two or more states overlap?

In these cases, Article 83 UNCLOS (for continental shelf) and Article 74 (for EEZ) provide:

a) Good faith negotiation to reach an agreement.

b) Until then, states must not jeopardize the final demarcation.

c) They cannot take unilateral actions of exploitation that would violate the rights of the other.

This practically means that despite the ipso facto and ab initio right, the exercise of these rights in the overlapping areas must be done in a manner that does not affect the potential right of the other state.

In these cases, activities are usually frozen until demarcation is made or a temporary joint development zone agreement is reached.

3) Jurisprudential foundation:

a) In the case of “North Sea Continental Shelf (1969)”, the ICJ ruled that ((ICJ Reports 1969, §86):

(1) Pending the delimitation, the parties have an obligation not to jeopardize or impede the achievement of the final agreement.

"Pending delimitation, the parties are under an obligation not to jeopardize or hamper the reaching of the final agreement."

(2) This principle was later enshrined in Article 83(3) UNCLOS on the continental shelf and 74(3) on the EEZ, establishing:

– Obligation of self-restraint

– Prohibition of unilateral acts of exploitation that affect the final agreement.

b) Also in the Gulf of Maine Case (1984), the ICJ emphasized (ICJ Reports 1984, §249):

(1) "It is obvious that the Parties are under an obligation to refrain from any action which might aggravate or extend the dispute or make its settlement more difficult."

That is, no state can carry out unilateral acts of exploitation or research that would jeopardize the final agreement.

4). Practical Consequence, especially in Greek-Turkish disputes.

a) In the Aegean and Eastern Mediterranean, Greece claims that the continental shelf of the islands exists ipso facto and ab initio, therefore it has the right to exploit it.

b) Turkey refutes this argument, not only for the overlapping areas but for the entire continental shelf in the Aegean, and claims that Greece cannot unilaterally exercise rights without an agreement.

He even cites the Bern Protocol (November 1976), when the two countries agreed (to sign a memorandum of understanding for recourse to the ICJ).

This established rules of conduct for their talks. Turkey accepted that the dispute was legal in nature, because it agreed to study the international rules for the delimitation of the continental shelf. The Greek side agreed to the resumption of direct negotiations, while at the same time the (ultimately futile) process of Greek appeal to the International Court of Justice continued.

The text uses the term "Aegean continental shelf". Turkey considers that the specific term includes the entire Aegean continental shelf. This is why it reacts to surveys that are carried out only slightly outside the Greek territorial waters of 6 nautical miles (e.g. at 7 nautical miles, as has now been done in Crete). The Greek side argues that paragraph 6 of the Protocol refers to abstention from any initiative or action related to the Aegean continental shelf, "which could disturb the negotiation".

Therefore, it cannot be considered that all areas of the continental shelf are a nuisance to the negotiation. Obviously, then, the Bern Protocol refers to areas of the continental shelf over which there are overlapping claims of the two countries.

Turkey also claims that the Protocol remains in force because it does not explicitly state a time limit nor is there any provision for its termination.

Greece claims that the Berne Protocol was “directly related” to the negotiations that were interrupted in 1980 due to Turkish fault. Therefore, the Protocol ceased to be in force after 1980. Greece sent a verbal notice of denunciation in 1986 and explicitly stated in a letter to the Security Council/UN in 1987 that the Berne Protocol is obsolete and inoperative.

FINALLY

1) States must refrain from unilaterally exploiting the area of ​​overlapping continental shelves claimed by each country, without the existence of a common agreement or final delimitation (through arbitration or an ICJ – ITLOS decision).

2) This is mainly exploited by Turkey, constantly and step by step expanding its claims to the detriment of Greece, while simultaneously trying to prohibit Greece from any research and exploitation beyond the territorial sea (6 nautical miles).

3) However, from the Turkish side, unilateral investigations are very often carried out (e.g. Turkish NAVTEX for investigations from Barbaros, Oruc Reis within the Greek continental shelf up to the territorial waters of Greece), with misinterpretation of UNCLOS and direct questioning of its provisions for the islands, and de facto questioning of the status quo.