On 1 September 2020, two Italian fishing vessels from Mazara del Vallo, Sicily, were seized by Libyan forces operating under the authority of the Benghazi unrecognized government. The seizure took place approximately 38 miles off the coast of Cyrenaica. The fishermen of the two boats – eight Italians, six Tunisians, two Indonesians, and two Senegalese – were accused of fishing in Libyan waters and were transferred to Libyan soil where they began a period of detention that would last 108 days.[1] The fishing vessels were also seized by the Libyan militia.
According to unofficial Libyan sources, during secret negotiations with the Italian intelligence, General Haftar, the strongman of Cyrenaica, had initially conditioned the release of the fishermen on the release of four Libyan boatmen who were serving a sentence in Italy for human trafficking.[2] The detention of the fishermen was ended only on 18 December of the same year, when the President of the Council of Ministers, Mr Giuseppe Conte, and the Minister of Foreign Affairs and International Cooperation, Mr Luigi Di Maio, personally travelled to Benghazi to meet General Haftar. The meeting, which led to the unblocking of the situation, took place without media coverage and without any detailed statement about its content. At the end of it, the Minister of Foreign Affairs merely declared:
The Government continues to firmly support the stabilization process in Libya. This is what President Giuseppe Conte and I reiterated to Haftar today during our talks in Benghazi.[3]
Politically, the case of the Mazara fishermen represented one of the thorniest issues addressed by the second Conte Government. The case was the object of numerous parliamentary questions portraying it as evidence of Italy’s progressive loss of influence in Libya in favor of other foreign actors such as Turkey, Egypt and the Russian Federation.[4] The Italian Government entered into lengthy confidential negotiations but was pressed by the opposition and was accused of inexperience and inertia.
The episode is interrelated not only with the civil war ongoing in Libya, but also with the decade-long “red prawn war” during which the Libyan authorities have been repeatedly obstructing the fishing activities of Italian boats in an area of the Mediterranean where they claim jurisdiction.[5] In this respect, it is worth recalling that Libya has claimed the entire Gulf of Sidra as a historic bay since 1973[6] and that in 2005 the Libyan authorities established a 62 nautical miles fisheries protection zone calculated from the external limit of the territorial waters.[7] Considering the 12 miles of territorial waters, the breadth of the Libyan fisheries protection zone is thus 74 miles from the baselines, the Gulf of Sidra being qualified as internal waters. Subsequently, in 2009, Libya also instituted an EEZ whose outer limits remain undefined as they “shall be established together with neighboring States in accordance with instruments concluded on the basis of international law”.[8] It is also worth noting that the 2008 Treaty of Friendship between Italy and Libya envisaged inter alia the establishment of some form of economic cooperation between the parties in the field of fishing activities.[9] On the Italian side, however, the stipulation of treaties on this matter falls within the competence of the EU, which, as of now, has negotiated no agreement with Libya.
From a legal standpoint, the interest of this case is twofold. Firstly, the Italian Government was called on to take a position on the legality of the Libyan claims to some areas of the Mediterranean under the applicable rules of the law of the sea. Secondly, it is of note that on this occasion the enforcement action by the Libyan side was not carried out by the internationally recognized Government of Tripoli, but by the local de facto government controlling the eastern territories in the context of a civil war. The case of the fishermen is therefore an important opportunity to know whether, in the view of Italy, an unrecognized insurgent government is legally entitled to carry out enforcement action in the areas of the sea under their control.
With regard to the first point of interest, one should consider that, in its declarations before Parliament, the Italian Government did not contest explicitly the lawfulness of the Libyan fisheries protection zone. In particular, on 18 October 2020, answering a parliamentary question before the Senate of the Republic (XVIII Legislature, 266th Meeting), the Minister of Foreign Affairs stated:
The Libyan intervention […] seems to have stemmed from the alleged violation of the self-proclaimed fishing protection zone. The stretch of sea where the vessels were seized is said to be considered a military zone on the eastern Libyan side. Beyond the war situation that characterizes the Libyan scenario and the evaluations of the legal-international profile, in May 2019, the Interministerial Coordination Committee for the Safety of Transport and Infrastructure (Cocist) [Comitato di Coordinamento Interministeriale per la Sicurezza dei Trasporti e delle Infrastrutture], declared the area of the Libyan fishing protection zone at high risk for all vessels flying the Italian flag, without distinction. On several occasions in the past, the Farnesina [i.e. the Ministry for Foreign Affairs], together with the General Command of the Coast Guard and the Ministry of Agricultural Policies, has recommended that Italian fishing vessels avoid the waters off the Libyan coast. In accordance with the Cocist’s decisions, Navy units navigating in the area are inviting Italian fishing vessels located there to leave. A state of detention for someone who violates a self-proclaimed zone – I want to say it – is unacceptable, but that remains a risk zone – this is a message I am sending to all the fishing communities – just as it would be unacceptable if someone were to tell us: “If you free ours, we will give you the Italians”.
The analysis of this statement reveals that the position of the Italian Government on the lawfulness of the Libyan fisheries protection zone is somewhat ambiguous. On the one hand, the fishing protection zone is qualified as “self-proclaimed”, with language leading to the conclusion that such zone has not been established in agreement with the Italian authorities and is not recognized by them. On the other, it is clarified that, for reasons of security, the Navy invites Italian fishing vessels to avoid those waters. In essence, therefore, by using the term “self-proclaimed” the Italian authorities do not explicitly qualify the Libyan claim as unlawful because under the law of the sea the establishment of protection zones can be unilaterally made. In addition, it is noteworthy that the Italian Navy refrains from physically protecting the Italian vessels operating in the area.
The additional clarification by Minister Di Maio affirming that detention for violating “a self-proclaimed zone” is “unacceptable” is equally inconclusive as it might refer not only to the potential illegality of the fisheries protection zone but also, arguably, to that of the sanction adopted by the Libyan authorities.[10]
This nuanced position, which refrains from qualifying the Libyan fisheries protection zone as unlawful, is probably motivated by the fact that the breadth of the Libyan zone is below the 200 nautical miles that States can claim as their EEZ under UNCLOS and customary law.[11] Furthermore, the Libyan claim falls short of a hypothetical median line from the Italian coasts, that is, the default criterion in delimitation agreements and judicial decisions.[12] In the Mediterranean, the proclamation of a reduced fisheries protection zone is generally a deliberate choice of States aimed at avoiding issues of delimitation with other coastal States.[13] Among the measures adopted by Libyan authorities, the most problematic one is thus the closure of the Gulf of Sidra on the grounds of its alleged status as historic bay.[14] In this respect, it should be noted, however, that Italy adopted a similar position in the case of the Gulf of Taranto.[15]
In conclusion, the cautious approach of the Italian Government seems to be justified in the light of the absence of strong legal arguments in favor of a right to fish in the area where the vessels were seized. The Italian authorities could perhaps have invoked the potential existence of historic rights on the part of Sicilian fishermen in the waters under consideration and the qualification of the Mediterranean as semi-enclosed sea. It should be acknowledged, however, that reference to historic rights has not been made in the articles of UNCLOS related to maritime delimitation and that the existence of a self-standing role for historic rights detached from delimitation has not been firmly established in international practice.[16] Under UNCLOS, moreover, the qualification of the Mediterranean as semi-enclosed sea does not bring about a modification of the legal regime on maritime delimitation, but only encourages States to cooperate on a number of matters, including the management of living resources.[17]
Turning now to the second element of legal interest in the case at hand, that is, the position of Italy with regard to the exercise of powers of administration by the government of eastern Libya, a written answer by the Deputy Minister of Foreign Affairs and International Cooperation, Ms Marina Sereni, must be considered. On 20 October 2020, Ms Sereni answered in writing parliamentary question no. 4-04252 of 15 October 2020. She affirmed:
A state of detention for someone violating a self-proclaimed zone is unacceptable, especially considering that it is issued by an entity that neither Italy nor the international community recognizes as a legitimate government. Italy does not accept blackmail. This does not alter the fact that this remains a risk zone.
The Deputy Minister also underlined the need for a bilateral agreement of delimitation with Libya:
In recent years, a growing number of States have proclaimed their own maritime zones to exercise exclusive rights of sovereignty. Italy has concluded agreements with some of these, such as Algeria and Greece.[18] It is obviously impossible, at this stage, to envisage similar agreements with Libya, which is unfortunately the scene of armed clashes and disputes between several factions.
The first part of this declaration clearly militates against the thesis according to which insurgents, especially when they establish a local de facto government, may exercise limited powers of administration, including the closure of ports, opposable to third parties.[19] To the contrary, in the view of the Italian Government, emerging from this case is that the exercise of enforcement action at sea by an unrecognized government is unacceptable. The second part of the answer is also interesting as it clarifies that stipulating a delimitation agreement with a country ravaged by a civil war would be “impossible”. As this part of the statement does not differentiate between the position of the recognized government and that of other factions in the civil war, one could argue that even delimitation agreements with the internationally recognized government, such as the one recently stipulated by Turkey and Libya for the delimitation of the EEZ, would be precluded pending a final settlement of the internal conflict.[20]
As a final comment, it is worth noting that, if, on the one hand, it is clear that Italy does not recognize the insurgents of the eastern territories as the government of Libya, on the other, the official interaction with them, which culminated in the visit of the President of the Council of Ministers and the Minister of Foreign Affairs to Benghazi, certainly amounts to a form of recognition of insurgency.
Marco Pertile
A quotable version of this post was published in the Italian Yearbook of International Law: Pertile, “The Libyan Fisheries Protection Zone and the Powers of Enforcement of a Local De Facto Government During the Libyan Civil War”, IYIL XXX (2020), 2021, pp. 510-516; available here.
[1] “Libia, liberi i pescatori italiani dopo 108 giorni di sequestro. Hanno lasciato Bengasi”, ANSA, 18 December 2020.
[2] “Italy PM flies in as Libya frees Sicilian fishermen”, France24, 17 December 2020.
[3] See supra note 1.
[4] See, for instance, parliamentary questions no. 3-01978 of 14 October 2020 and no. 4-04388 of 10 November 2020. Parliamentary questions were raised also by Italian MEPs. See priority question no. P-005620/2020 to the Commission of 14 October 2020, here.
[5] “Red prawn war fuels anti-EU feeling among Italian fishing crews”, The Guardian, 19 November 2019.
[6] “Information concerning the jurisdiction of the Gulf of Surt, 1973”, available here.
[7] General People’s Committee Decision No. 37 of 1373 from the death of the Prophet (AD 2005) concerning the declaration of a Libyan fisheries protection zone in the Mediterranean Sea, available here.
[8] General People’s Committee Decision No. 260 of A.J. 1377 (A.D. 2009) concerning the declaration of the exclusive economic zone of the Great Socialist People’s Libyan Arab Jamahiriya, available here.
[9] Trattato di amicizia, partenariato e cooperazione tra la Repubblica italiana e la Grande Giamahiria araba libica popolare socialista, 30 August 2008, ratified by Law no. 7 of 6 February 2009, Article 17. See Ronzitti, “Italia-Libia: il Trattato di Bengasi e la sua effettiva rilevanza”, Affari internazionali, 14 July 2018.
[10] Art. 73(2) UNCLOS provides that “[a]rrested vessels and their crews shall be promptly released upon the posting of reasonable bond or other security”, and the ensuing paragraph clarifies that “[c]oastal State penalties for violations of fisheries laws and regulations in the exclusive economic zone may not include imprisonment, in the absence of agreements to the contrary by the States concerned, or any other form of corporal punishment”. The customary status of this rule, however, is dubious. See Ronzitti, “La tormentata vicenda della pesca nelle acque libiche”, Affari internazionali, 11 November 2020.
[11] Libya has signed but not ratified UNCLOS, which sanctioned the legal concept of the EEZ. However, it is widely held that such concept has been recognized by customary law as well. See Continental Shelf (Libyan Arab Jamahiriya/Malta), Judgment of 21 March 1984, ICJ Reports, 1985, p. 3 ff., para. 44.
[12] Ronzitti, cit. supra note 10.
[13] Papanicolopulu, “Mediterranean Sea”, Max Planck Encyclopedia of Public International Law, 2012.
[14] On the issue, see Francioni, “The Status of the Gulf of Sirte under International Law”, Syracuse Journal of International Law and Commerce, 1984, p. 311 ff. The author argues for a “relative approach” to historic bays, emphasizing the role of reciprocity.
[15] Ibid., pp. 323-324.
[16] Bernard, “The Effect of Historic Fishing Rights in Maritime Boundaries Delimitation” in Scheiber and Sang Kwon (eds.), Securing the Ocean for the Next Generation, Papers from the Law of the Sea Institute, UC Berkeley– Korea Institute of Ocean Science and Technology, Seoul, 2012, p. 2 ff.
[17] See Arts. 122-123 UNCLOS.
[18] [Translator’s note] The delimitation agreement with Greece was ratified and implemented in the Italian legal order in June 2021. See Law no. 93 of 1 June 2021 on the “Ratification and implementation of the Agreement between the Italian Republic and the Hellenic Republic on the delimitation of their respective maritime zones, done at Athens on 9 June 2020”. On this topic see also, Mancini, “The Agreement between Greece and Italy on the Delimitation of their Respective Maritime Zones”, IYIL XXX (2020), 2021, pp. 283-294.
[19] Based on some elements of the arbitral and State practice of the 19th and 20th centuries, a number of scholars have argued that local de facto governments during civil wars may exercise powers of administration on the territory and the sea areas under their control. See, for instance, Jennings and Watts (eds.), Oppenheim’s International Law (Peace), Vol. I, 9th ed., London, 1993, pp. 167-168; Dickinson, “The Closure of Ports in Control of Insurgents”, AJIL, 1930, p. 69 ff., pp. 73-74. For a review of the debate, see Pertile, Diritto internazionale e rapporti economici nelle guerre civili, Napoli, 2020, pp. 278-287. With direct reference to the present case, arguing that the insurgent government has the right to claim the “exercise of rights” on behalf of Libya, see Ronzitti, cit. supra note 10.
[20] See Memorandum of Understanding between the Government of the Republic of Turkey and the Government of National Accord-State of Libya on Delimitation of the Maritime Jurisdiction Areas in the Mediterranean, available here. With regard to the wider issue of the powers of disposition of the incumbent government during a civil war, see Pertile, cit. supra note 19, pp. 133-141.
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