With Presidential Decree no. 18-96 of 20 March 2018, Algeria officially proclaimed an exclusive economic zone (EEZ) in the Mediterranean Sea so as to exercise therein its sovereign rights and jurisdiction in accordance with Part V of the 1982 UN Convention on the Law of the Sea (UNCLOS). The act included a list of 63 geographical coordinates delineating the extension of the maritime claim but envisaged that the outer limits of the EEZ could be modified through bilateral agreements with neighboring States, where necessary.[1]
This move sparked an almost immediate reaction from both Italy and Spain. These countries, through their Permanent Missions to the UN, addressed two separate official communications to the Secretary-General, Mr António Guterres, whereby they brought to notice their disagreement with the geographical coordinates established by Algeria in the Presidential Decree.
In its communication, Italy expressed its opposition to the definition of the Algerian EEZ because it “unduly overlaps on zones of legitimate and exclusive national Italian interest”.[2] Italy also referred to Article 74 UNCLOS on the delimitation of the EEZ between States with opposite or adjacent coasts, recalling the legal framework thereby envisaged to regulate the conduct of the parties to a dispute during the transitional period preceding the achievement of a final delimitation agreement. Finally, Italy expressed its readiness to enter negotiations with the counterpart.
The Spanish Government expressed its opposition to the unilateral Algerian act by claiming that some portions of the EEZ “are clearly disproportionate in relation to the equidistant median line between the Algerian and Spanish coasts”. It also reaffirmed that, in accordance with Article 74 UNCLOS, “the equidistant line between the baselines from which the breadth of the territorial sea is measured is the most equitable solution for delimiting, by mutual agreement, the exclusive economic zones between States with opposite or adjacent coasts”.[3]
On 29 June 2019, Algeria replied to both Italy and Spain by means of two notes verbales. As to the dispute with Rome, the Algerian Ministry for Foreign Affairs stated that the extension of the claimed EEZ was determined by taking into due consideration the “objective rules and relevant principles of international law”, in compliance with Article 74 UNCLOS.[4] Nonetheless, the Ministry assured Italy of Algeria’s readiness to negotiate an equitable and mutually acceptable solution.[5]
The answer to the Spanish counterpart was more articulated. This is probably due to the fact that Spain, unlike Italy, had already proclaimed an EEZ of its own in April 2013.[6] Algeria, in the note verbale addressed to the Spanish Government, recognized that their respective EEZs effectively overlapped in certain maritime areas. In light of this consideration, Algeria included the following statement:
Algeria and Spain are required, in accordance with international case law and State practice, to refrain, at this stage, from engaging in activities in that area in connection with their sovereign rights, including exploration and exploitation, and conservation and management of natural resources, whether living or non-living, as set forth in article 56 of the United Nations Convention on the Law of the Sea.[7]
This is an important declaration from the perspective of the law of the sea. Indeed, it appears that Algeria recognizes the existence of an obligation for a coastal State, pending a final delimitation, not to engage in unilateral activities related to the exercise of sovereign rights in disputed sea areas. This is not an obvious recognition, since the precise content of the two separate obligations included in Article 74(3) UNCLOS (and of the analogous obligations for continental shelf disputes included in Article 83(3) UNCLOS) has not been definitively settled under international law. This is widely noted by scholarly contributions on the subject.[8]
As regards the Italian position, one could take the view that the terminology adopted by Italy in its official communication is not the one traditionally used by States when defending their position in maritime delimitation disputes. Italy, instead of framing the Algerian unilateral act as an encroachment on its sovereign rights over certain maritime areas, preferred to qualify it as an interference in maritime zones of “legitimate and exclusive” national interest.[9] On 22 May 2020, in delivering to the Senate of the Republic a written answer to two parliamentary questions (nos. 4-02850 and 4-02860) that had called on the Government to clarify the state of play in the bilateral negotiations with Algeria on the issue of EEZ delimitation, the Undersecretary of State for Foreign Affairs and International Cooperation, Mr Manlio Di Stefano, reiterated that the Algerian EEZ “includes portions of the sea of exclusive Italian interest, even though Italy has not yet established an EEZ or [ecological protection zone] (EPZ) of its own nor claimed sovereign rights”.[10]
However, this stance may be deemed incomplete from a law of the sea perspective. It is surprising that the Italian representatives never referred to the legal regime of the continental shelf. It is well known that the sovereign rights of a coastal State over this maritime zone, under customary international law, do not depend on any effective occupation or declaration but exist ipso facto and ab initio. It is true that the spatial ambit of the sovereign rights of a coastal State in the EEZ and in the continental shelf differs in that, whereas sovereign rights in the former extend to the waters above the seabed, in the latter the legal status of the water column is not affected. This notwithstanding, one may argue that Italy, at least with reference to the seabed and subsoil, could have more convincingly framed the unilateral act carried out by Algeria as an attempt to create a fait accompli aimed at preventing Italy from claiming a portion of its continental shelf.
It seems also noteworthy that Algeria, in its note verbale to Italy, did not include a statement analogous to the one included in its reply to the Spanish Government with reference to the obligation of restraint in disputed maritime areas. This is probably attributable to the way in which Italy framed its position. Indeed, as seen above, in its communication to the UN Secretary-General, Italy objected to the coordinates set out by Algeria exclusively on the grounds that the resulting EEZ “unduly overlaps on zones of legitimate and exclusive national Italian interest”. It has already been noted that Italy could have mentioned the legal regime of the continental shelf. Moreover, one may wonder why Italy did not explicitly mention in its initial protest the fact that the Algerian EEZ partially overlaps with an EPZ proclaimed by Rome in 2011.[11] A reference to this issue, as will be shown below, was made during a parliamentary debate. True, unlike in the case of the EEZ, in an EPZ a coastal State does not exercise sovereign rights for the purpose of exploring and exploiting natural resources; nonetheless, mentioning the establishment of an EPZ, coupled with a reference to the notion of continental shelf, would have probably strengthened the Italian stance and, in turn, prompted a different reaction from Algeria.[12]
On 5 February 2020, the maritime dispute with Algeria resurfaced in the Italian political debate at the 300th Meeting (XVIII Legislature) of the Chamber of Deputies. On that occasion, speaking on behalf of the Minister of Foreign Affairs, the Minister for Parliamentary Relations, Mr Federico D’Incà, addressed a parliamentary question on the matter. The relevant parts of his statement read as follows:
The [Algerian] decision, taken without a preliminary agreement with neighboring coastal States, creates an EEZ that overlaps, west of Sardinia, with the ecological protection zone (EPZ) established by Italy in 2011 and with an analogous EEZ established by Spain in 2013. The Algerian EEZ laps for 70 nautical miles at the Italian territorial waters to the south-west of Sardinia. By declaring an EEZ of this extension, Algeria has disregarded Article 74 of the UN Convention on the Law of the Sea, which requires States, pending a delimitation agreement, to cooperate in good faith with neighboring States and not to hamper or jeopardize the reaching of a final agreement by engaging in acts that might prejudice the interests of other States.
First of all, one could see that, unlike in Italy’s initial protest, in this official stance a specific reference was made to the fact that the Algerian EEZ overlaps with the Italian EPZ. This reference was certainly pertinent, as was pertinent the reference to Article 74 UNCLOS. However, it should be noted that no mention was made of Article 121 UNCLOS on the regime of islands. The EEZ proclaimed by the Algerian Government, as specified by the Minister, also extends to areas immediately beyond the territorial sea around the Italian island of Sardinia. Therefore, in this and in all other official documents here analyzed, Rome could have claimed that the Algerian act deprived the said island, and thus Italy, of its legitimate entitlement to maritime zones beyond the territorial sea in breach of Article 121(2). It is not possible to cast a doubt on Sardinia’s status of island for the purpose of Article 121 UNCLOS, a convention that both Italy and Algeria have ratified. Therefore, during the negotiation of an EEZ delimitation, one could safely assume that the status of Sardinia will not be contested.
In his answer, D’Incà also specified that Italy had proposed the establishment of a joint committee that could lead to the definition of a delimitation agreement between the parties to the dispute. Finally, the Minister recalled that a legislative proposal had been deposited with the Chamber of Deputies on the establishment of an Italian EEZ, a move that would “provide a better framework for negotiations” with the Algerian Government.
On the establishment of a joint committee, it is worth noting that, on 2 March 2020, the Italian Undersecretary of State for Foreign Affairs Di Stefano and the Algerian Minister of Foreign Affairs, Mr Sabri Boukadoum, reached an agreement on the establishment of a Bilateral Technical Commission for the delimitation of their respective maritime areas.[13]
At its 423rd Meeting (XVIII Legislature) held on 5 November 2020, the Chamber of Deputies eventually approved a legislative proposal (Bill no. S.2007), whose text is now under scrutiny of the Senate of the Republic, for the establishment of an EEZ beyond the outer limit of the territorial sea.
Overall, Italy could have been more assertive in defending its position under international law, by making explicit reference to the sovereign rights of a coastal State over the continental shelf and to the legal regime of islands, as shaped by UNCLOS and now embodied in customary international law. Yet, Italy decided to protest against Algeria’s unilateral act only by resorting to the notion of “national interest” and calling upon Algeria to respect the provisions included in Article 74 UNCLOS. However, Italy’s readiness to enter into negotiations and its active role in the establishment of a Joint Delimitation Committee may be praised.
Enrico Broggini
A quotable version of this post was published in the Italian Yearbook of International Law: Broggini, “Maritime Delimitation in the Central Mediterranean Sea and Algeria’s Proclamation of an Exclusive Economic Zone”, IYIL XXX (2020), 2021, pp. 506-510; available here.
[1] Presidential Decree no. 18-96 of 2 Rajab A.H. 1439, corresponding to 20 March A.D. 2018, establishing an exclusive economic zone off the coast of Algeria, 20 March 2018.
[2] Communication from Italy dated 28 November 2018, available here.
[3] Letter from Spain to the Secretary-General of 27 July 2018, available here.
[4] Communication from Algeria addressed to Italy dated 20 June 2019, available here.
[5] Ibid.
[6] Royal Decree No. 236/2013, of 5 April 2013, establishing the Exclusive Economic Zone of Spain in the Northwest Mediterranean, 17 April 2013.
[7] Communication from Algeria addressed to Spain dated 20 June 2019, available here.
[8] See Milano and Papanicolopulu, “State Responsibility in Disputed Areas on Land and at Sea”, ZaöRV, 2011, p. 587 ff.; van Logchem, “The Scope for Unilateralism in Disputed Maritime Areas”, in Schofield, Lee and Kwon (eds.), The Limits of Maritime Jurisdiction, Leiden/Boston, 2014, p. 291 ff.; De Herdt, “Meaningful Responses to Unilateralism in Undelimited Maritime Areas”, Journal of Territorial and Maritime Studies, 2019, p. 5 ff.
[9] See supra note 2.
[10] Only at a later stage the Italian Parliament adopted a piece of legislation (Law no. 91 of 14 June 2021) authorizing the Government to establish an EEZ “to be notified to the States whose territory is adjacent to the territory of Italy or faces it”.
[11] Presidential Decree no. 209 of 27 October 2011, 17 December 2011.
[12] In fact, it should be specified that the precise content of EPZ regimes tends to vary. For example, the EPZ proclaimed by France in 2003, now replaced by an EEZ, reserved to France also exclusive jurisdiction with respect to the establishment and use of artificial islands, installations and structures. Papanicolopulu, “The Mediterranean Sea”, in Rothwell et al. (eds.), The Oxford Handbook of the Law of the Sea, Oxford, 2015, p. 610 ff.
[13] Ministry of Foreign Affairs and International Cooperation, “Undersecretary Di Stefano visits Algiers: agreement on the delimitation of maritime areas and the sustainable management of sea resources”, 3 June 2020.
Italy's Diplomatic and Parliamentary Practice on International Law 