Negotiation and Signature of the Caen Agreement on the Delimitation of Territorial Waters and Maritime Jurisdiction between Italy and France

On 13 January 2016 the French authorities arrested the Italian fishing vessel Mina with the accusation of violating French territorial waters. The Mina was arrested during fishery of the red shrimp off the Ligurian coast, between Ventimiglia and the Mentone bay, before the Balzi Rossi reef, and was released upon payment of an 8300-euro deposit. Subsequently, the French authorities expressed regret for the arrest, conceding that it ensued from a wrongful determination of the boundary and jurisdiction over the area. The case spotlighted the on-going discussion between Italy and France over the determination of their maritime boundaries and corresponding fishing rights in an area off Liguria and North of Sardinia, pending the ratification of the so-called Caen Agreement.[1] To date, Italy’s and France’s jurisdiction and fishing rights in the respective areas have been regulated de facto by the 1986 Bocche di Bonifacio Agreement[2] and the 1892 Convention on the fishing zone in the Mentone Bay.[3] More specifically, the 1892 Mentone Bay Convention has never entered into force and was negotiated as a modus vivendi providing for a cooperative ground between the countries, whilst leaving their positions legally unprejudiced. As to the Bocche di Bonifacio Agreement, it only determines French and Italian territorial waters in the Strait of Bonifacio. Though regulating the fisheries traditions and practices of French and Italian fishing vessels in a common zone West of the Strait, the Agreement fails to comprehensively establish the Parties’ maritime boundaries and fishing rights. The Caen Agreement, when in force, would thus constitute the first bilateral instrument to effectively determine the maritime boundaries between the two countries and serve as a basis to settle possible disputes.

Preoccupied with the status of the negotiation process and the protection of Italian fishing rights in the concerned maritime zone, some members of the Parliament posed a parliamentary question to the Sottosegretario di Stato per gli Affari esteri e la Cooperazione internazionale (Undersecretary of State for Foreign Affairs and International Cooperation), Mr Benedetto Della Vedova, and subsequently to the Ministro degli Affari esteri e della Cooperazione internazionale (Minister for Foreign Affairs and International Cooperation), Mr Paolo Gentiloni Silveri. The members of the Parliament were concerned that the Caen Agreement could erode the protection of Italian fishery resources and restrain Italian access to fisheries in the area off the Ligurian coast, where the commercially valuable red shrimp is found. They feared that the Agreement would raise environmental concerns and waive Italian rights over rich fishing waters, therefore affecting the Italian national interest and maritime rights.

Against this background, on 12 February 2016, the Sottosegretario intervened before the Camera dei Deputati (Chamber of Deputies) (568th Meeting – XVII Legislature) clarifying the reasons for signing the Caen Agreement. He stated:

For a long time France and Italy have felt the urgency of filling a legal void and settle clear boundaries for their rights over coastal maritime areas. Let us consider, for instance, that for decades only the 1986 Bocche di Bonifacio Agreement and the 1892 Convention on the fishing zone in the Mentone Bay regulated our neighborly (maritime) relations with France: the latter Convention has never entered into force, yet its dividing line constitutes the cartographic reference that both countries have to date applied.

He then added:

We deemed it appropriate that a general instrument be signed, to update and effectively regulate the Italian-French maritime boundaries, also in view of the provisions of the 1982 United Nations Convention on the Law of the Sea. Italy and France established respectively in 2011 and 2012 an Exclusive Protection Zone and an Exclusive Economic Zone, a choice that accounts for a much needed determination of their boundaries from the wide areas of the Ligurian Sea to the Thyrreanean Sea, that they share, and whose external boundaries had been only provisionally determined prior to the delimitation agreements.

Mr Della Vedova further highlighted that following a long round of negotiations started in 2006 and ended in 2012, the Caen Agreement was signed on 21 March 2015. He also recalled that the Agreement had not entered into force yet, as in Italy it must undergo parliamentary ratification whereas in France it has already concluded the internal procedures under the aegis of the Executive. With regard to the content of the Agreement and as to the protection of Italian fishing rights, Mr Della Vedova confirmed that:

the Agreement complies with the rules established under the UN Convention on the Law of the Sea with respect to the boundaries and delimitations of territorial waters as well as other maritime zones, with specific regard to the principles of the median line for territorial seas and equal rights for the continental shelf. During the negotiations, Italy got to retain the definition of straight baseline for its Tuscan archipelago, as agreed in 1977 when delimiting the territorial sea, which significantly moves towards Corsica the baselines wherefrom to calculate the median line, and that France repeatedly disputed as in contrast with the Convention. In addition, Italy succeeded in preserving an area West of the Bocche di Bonifacio, traditionally used by both Italian and French fishing vessels, and still object of the 1986 Bocche di Bonifacio Agreement. The Caen Agreement not only regulates the maritime boundaries between our country and France, but also amends the rules on the exploitation of the seabed or the groundwater resources that are located across the delimitation line.

As mentioned, on 24 February 2016, the Ministro degli Affari esteri e della Cooperazione internazionale (Minister for Foreign Affairs and International Cooperation), Paolo Gentiloni Silveri, intervened before the Camera dei Deputati (Chamber of Deputies) (576th Meeting – XVII Legislature) and answered a similar parliamentary question concerning the Caen Agreement and the case of the Mina.

Mr Gentiloni Silveri repeated that the Agreement had not yet entered into force and stated that it does not waive Italian rights over rich fishing waters. He confirmed that the Caen Agreement leaves unaffected the boundaries agreed upon under the 1986 Bocche di Bonificio Agreement, emphasizing that the former determines for the first time each country’s (maritime) jurisdiction protecting Italian seas beyond the breadth of the territorial waters. As to coastal fishing, the Ministro stated that the relevant European legislation shall apply and that presently:

evaluations and technical elements are being collected from the competent Ministry to consider appropriate integrative instruments to the Agreement. After that, the Government will be able to initiate the ratification process.

Considering future possible arrests of other Italian fishing vessels by the French authorities, he underlined:

that the Government will endeavor to protect our interests, as it did with regard to the arrest of Mina fishing vessels, in which case the French authorities acknowledged in writing their regrettable mistake, releasing the fishing vessel and giving grounds to claim damages before the French judiciary.

On 25 February 2016, before the Camera dei Deputati (Chamber of Deputies) (570th Meeting – XVII Legislature) Mr Della Vedova further illustrated the implications of the Caen Agreement for Italian interests, maritime jurisdiction and fishing rights, reiterating that the Agreement serves the purpose of effectively and unequivocally determining maritime boundaries between Italy and France. He explained that:

the law of the sea is subject to important changes owing, on the one hand, to the States attempting to expand their jurisdiction over high seas according to the UN 1982 Convention on the Law of the Sea and, on the other hand, to the proliferation of European legislation on the common fishery policy.

In support of this allegation and of the timely conclusion of the Caen Agreement, he reminded the Parliament that:

pending a delimitation agreement, France created an Ecological Protection Zone (2004) and an Exclusive Economic Zone (2011). Through internal normative acts, Italy and France did establish, although provisionally, their respective external limits of jurisdiction, pending such delimitation agreement.

With respect to access to the marine resources, the Undersecretary concluded as follows:

the Agreement protects national interests in that it provides for Italy’s and France’s coordinated action with respect to the exploitation of seabed deposits across the delimitation line. Similarly, with regard to the Mentone Bay, in the Liguria Sea and the territorial boundary between Italy and France, failing any previous agreement on the matter, the Caen Agreement follows the principle of equidistance, as established under the 1982 United Nations Convention.

In this respect, it is noteworthy that Article 74 of the United Nations Convention on the Law of the Sea (UNCLOS) – titled ‘Delimitation of the exclusive economic zone between States with opposite or adjacent coasts’ – does not establish the principle of equidistance as the Undersecretary claims. The provision stipulates that the delimitation shall be effected by agreement on the basis of international law, as referred to in Article 38 of the Statute of the International Court of Justice (ICJ), to achieve an ‘equitable solution’. During the Third United Nations Conference on the Law of the Sea (UNCLOS III) leading to the adoption of the Convention, States proved divided between pro-equidistance States and pro-equity States opposing the equidistance/median line standard being elevated to the status of basic principle. The latter group of States relied on the ICJ decision on the 1969 North Sea Continental Shelf case, where the Court held that the principle of equidistance as defined in Article 6 of the 1958 Geneva Convention on the Continental Shelf was not a rule of customary international law.[4] Article 74 UNCLOS, therefore, reads as a compromise formula, whereby the principle of equidistance, referred to by the Sottosegretario, could effectively operate only as a method for achieving an equitable solution of disputes in light of the applicable international law, which includes judicial and arbitral decisions of relevant international bodies.

The original Italian version of the speeches translated or quoted above can be found here below:

Benedetto della Vedova, 12 February 2016

Paolo Gentiloni Silveri, 24 February 2016

Benedetto della Vedova, 25 February 2016 

[1] Accordo tra il Governo della Repubblica italiana ed il Governo della Repubblica francese relativo alla delimitazione delle acque territoriali e delle zone di giurisdizione nazionale tra la Francia e l’Italia, 21 March 2015, also available at: <http://reglementation-polmer.chez-alice.fr/Textes/accord_frontiere_maritime_franco_italien.pdf&gt; (last accessed: 10 April 2017). The Agreement establishes the maritime frontiers for the French EEZ, the Italian environmental protection zone (EPZ) and the continental shelf and territorial waters. It endorses the practice of a ‘single maritime boundary’ as employed by Cyprus, Egypt and Israel in delimiting their EEZs. See, F. Caffio, “The Maritime Frontier between Italy and France: A Paradigm for the Delimitation of Mediterranean Maritime Spaces”, in Maritime Safety and Security Law Journal, Vol. 2/2016.

[2] Convenzione tra il Governo della Repubblica italiana ed il Governo della Repubblica francese relativa alla delimitazione delle frontiere marittime nell’area delle Bocche di Bonifacio, 28 November 1986, also available at: <https://www.senato.it/service/PDF/PDFServer/DF/269088.pdf> (last accessed: 10 April 2017).

[3] Processo verbale di delimitazione della linea di pesca nella Baia di Mentone, 18 June 1892, in “Raccolta dei trattati e delle convenzioni tra il Regno di Italia e gli altri Stati”, Vol. 13, pp. 135-137, Torino, 1895, also available at: <https://archive.org/details/trattatieconvenz13ital> (last accessed: 10 April 2017).

[4] North Sea Continental Shelf Case, 20 February 1969, paras. 60-82, available at: <http://www.icj-cij.org/docket/index.php?p1=3&p2=3&case=51&code=cs&p3=4&gt; (last accessed: 10 April 2017).

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