Turkish illegal restrictive measures against Cyprus and European Union Shipping

I / Introduction

1. The Turkish restrictive measures were originally introduced in April 1987 and concerned exclusively the prohibition of Cyprus flag vessels to call Turkish ports. At that time, the Turkish Authorities justified the said measures as a counteraction to the adoption by the Republic of Cyprus in October 1974 of a lawful Order proclaiming the ports situated in the occupied north part of Cyprus as closed ports to the international navigation (the ports of Famagusta, Karavostasi and Kyrenia are declared closed to all vessels).

This closed ports measure was introduced in order to uphold and maintain the sovereignty of the Republic of Cyprus over its ports and harbors and due to the fact that safety of navigation could no longer be guaranteed in the area illegally occupied by the Turkish army since 1974. The above decision of the Government of the Republic of Cyprus was officially communicated to the Inter Governmental Maritime Consultative Organization (IMCO – today the International Maritime Organization: IMO). Furthermore, any illegal calls at these three closed ports constitute also a serious infringement of relevant international law instruments (among others, the International Convention on the Safety of Life at Sea).

2. In May 1997, Turkey issued new instructions to its ports and harbors to clarify uncertainties arising from the application of the restrictions, thus extending them against ships under a foreign flag (of any nationality) sailing to Turkish ports directly from any Cypriot port under the effective control of the Republic of Cyprus or against ships of any nationality related to the Republic of Cyprus in terms of ownership or shipmanagement. The immediate effect of these instructions was to restrict the use of Cypriot ports for transhipment operations of shipping lines in the Mediterranean.

3. It is also pointed out that the Republic of Cyprus fully complies with its international and Community law obligations vis- ΰ – vis Turkish flag ships, as these ships can freely call at any Cypriot port under the effective control of the Republic of Cyprus. It is noted in this respect that the calls of Turkish flag ships at such ports have been increased considerably within 2005 in comparison to the period of 2000-2004.

It is recalled that originally in 1987, the matter was raised by Cyprus and Greece in the IMO. During the period 1997-2001, the Republic of Cyprus launched an intense diplomatic campaign and the issue of the Turkish embargo has been raised and discussed on several occasions before international bodies, especially within the EU Institutions.

II/ Incidents since Cyprus’ accession to the EU

Since the accession of the Republic of Cyprus to the EU on 1st May 2004, nine incidents have occurred and were officially reported to the Cyprus Authorities, indicating that the Government of Turkey still continues to violate basic principles of International and Community law, thus seriously affecting international and EU shipping interests. A brief description of all these incidents is given in the following Table:

The last reported incident of the sailing yacht GANYMEDE, is actually the first incident where the Turkish restrictive measures were extended against a sailing yacht and not a merchant ship. Given the fact that S/Y GANYMEDE had been allowed to enter Turkish ports in the past, this incident confirms the more stringent enforcement of these measures now observed by the Turkish Authorities, despite the repeated calls from the EU.

III / A New Dimension: the EU – Turkey Relations

Although the Turkish restrictions have for some years now adversely affected the development of Cyprus’ ports, reduced the trade and hindered the growth of the Register of Cyprus Ships, the issue has gained a new dimension since the Republic of Cyprus is now a full member of the EU and the Turkish measures affect the interests of a Union enlarged to 27 Member States.

All nine incidents described above, have been extensively and officially reported to the EU institutions by the Republic of Cyprus.

The measures imposed by Turkey, a country that is linked by a Customs Union to the EU and seeks membership to the EU, seriously affect private and public interests of the European Community, notably EU shipowners and shipmanagers.

The EU – Turkey Customs Union Agreement (1963 Ankara Agreement and its 1970 Additional Protocol) contains substantial provisions which impose on Turkey the legal obligation to lift its embargo against Cyprus related shipping.

Furthermore, the Turkish restrictions violate all commercial principles in shipping which are laid down in Council Regulation EEC No. 4055/86 (Freedom to provide services), such as the freedom of navigation, freedom of transit, freedom of access to ports and harbors, as well as equality of treatment. The whole issue relates also to EEC – Council regulation (EEC) No. 4058/86 of 22 December 1986 concerning coordinated action to safeguard free access to cargoes in ocean trades.

Finally, the legal obligation on Turkey to lift its embargo against Cyprus and Community shipping is now enshrined in the Community acquis by virtue of:

a) The Declaration by the European Community and its Member States adopted on 21 September 2005, following the declaration made by Turkey upon signature on 29 July 2005 of the Ankara Agreement Protocol;

b) The Negotiating Framework for Turkey adopted by the EU on 3 October 2005.

c) The General Affairs and External Relations Council’s (GAERC) conclusions of December 11, 2006. (Endorsed by the European Council)

The Council decided that Member States within the Intergovernmental Conference will not open 8 chapters covering policy areas relevant to Turkey’s restrictions as regards the Republic of Cyprus until the Commission verifies that Turkey has fulfilled its commitments related to the Additional Protocol. It also stated that it “recalls the declaration of the European Community and its Member States of 21 September 2005 and notes that Turkey has not fulfilled its obligation of full non-discriminatory implementation of the Additional Protocol to the Association Agreement”.
In parallel, and as an additional political criterion applicable to Turkey’s negotiations, the Council decided that the Member States within the Intergovernmental Conference will not decide on provisionally closing the remaining 26 chapters until the Commission verifies that Turkey has fulfilled its commitments related to the Additional Protocol.

The whole issue of Turkey’s restrictions applied to Cyprus and EU shipping appears in the European Commission’s Reports on Turkey’s Progress towards accession during the last years.

The 2006 Progress Report presented by the European Commission on the 8th of November 2006 states clearly that: “No progress can be reported concerning the access to Turkish ports of Cyprus-flagged and/or managed vessels, and of vessels whose last port of call was Cyprus.”

Furthermore, the same Report has urged “Turkey to remove all restrictions on the free movement of goods, including restrictions on means of transport regarding to Cyprus. […] Such restrictions on shipping often preclude the most economical way of transport and therefore result in a barrier to free movement of goods and to trade. They infringe the Customs Union agreement.”

It is further recalled that the recent European Parliament’s resolution on Turkey’s progress towards accession has expressed “its disappointment over the fact that, in spite of its contractual obligations, Turkey continues to maintain restrictions against vessels flying the Cypriot flag and vessels approaching from harbours in the Republic of Cyprus, denying them access to Turkish ports” and has reminded Turkey that this practice constitutes a breach by Turkey of the Ankara Agreement, the related Customs Union Agreement and the Additional Protocol, as the restrictions infringe the principle of the free movement of goods[…].”

The European Council decision not to open negotiations with Turkey on a number of key Chapters of the Accession Negotiations constitutes a clear signal that a breach of Turkey’s legal obligations arising from the Community Acquis cannot be accepted. It is now up to the Turkish side to fulfill its obligations.

IV / Conclusion

With the Turkish embargo still in force, a shipowner/shipmanager may at any time find his interests seriously prejudiced in case there is any connection with Cyprus, however small, as this is clearly demonstrated by the above mentioned nine cases. Clearly, such provisions constitute an obstacle to the trade between EU ports and Turkey, affecting the owner, the charterer and all the parties involved in the carriage of goods by sea and all operations incidental to the proper operation of the ship.

The Turkish embargo distorts the application of the principle of fair and free competition in shipping trade with the EU, adversely affects the merchant fleets of EU Member States, and causes substantial increases in transportation costs. The Turkish measures restrict or threaten to restrict free access of EU shipping companies or ships to cargoes in ocean trades. Furthermore, the Turkish embargo undermines the economic development and cooperation of the region, within the framework of the EuroMediterranean Partnership.

The full implementation of EU – Turkey Customs Union Agreement and its extension to the Republic of Cyprus will lead to the lifting of the Turkish restrictive measures against Cyprus and Community shipping with very positive economic effects for the Cyprus, Community and regional shipping (e.g. further development of the Cyprus Ship Register and shipmanagement sector; increase of the Cyprus port traffic; starting of sea cruises from Cyprus to Turkey; development of Short Sea Shipping in the region, etc.) .

The economic consequences of the Turkish restrictions imposed on Cyprus and foreign flagged vessels were assessed in 2005. Based on 2004 data, the actual direct annual costs for the economy of the Republic of Cyprus is estimated to 99.5 million EUROS, representing around 1.2% of the GDP. Revocation of the said measures will lead to positive effects for the EU and regional economy.

The Republic of Cyprus intends to fully exercise its rights arising from the relevant Community legislation and policy in order to counteract the aforementioned continuing Turkish violations of international and Community law, protect its own national interests and the Community interests in general.