Somewhat unsurprisingly, the so-called “red prawn war”, the dispute that has pitted the Mazara del Vallo fishing industry and the Libyan authorities against each other for dozens of years, has generated intense parliamentary activity in 2021 as well.
The Minister of Foreign Affairs and International Cooperation, Mr. Luigi Di Maio, reported twice on the issue, both before the Chamber of Deputies and the Senate of the Republic, a number of parliamentary questions were submitted,[1] and a resolution was jointly approved by the Committees on Foreign and European Community Affairs (III) and on Agriculture (XIII) of the Chamber of Deputies.[2]
The parliamentary practice of 2021, however, is of the utmost interest because for the first time the Italian Government openly acknowledged the validity of Libyan claims to the red prawn fishing grounds. While strongly reiterating that the Libyan authorities may not use armed violence disproportionately against Italian fishermen, the Government admitted that the establishment of both a Fisheries Protection Zone (FPZ) and an Exclusive Economic Zone (EEZ) by Libya complies with international law.
Let us first examine the relevant facts before turning to the main legal issues emerging from the positions expressed by the Italian Government before Parliament.
On 6 May 2021, a group of nine Italian fishing vessels (including the Artemide, Aliseo and Nuovo Cosimo), which had departed from the Sicilian port of Mazara del Vallo, were fishing about 35 nautical miles off the Libyan coast, north of the town of Al Khums and 120 kilometers east of Tripoli.[3] A Libyan Coast Guard patrol boat opened fire with warning shots, striking the bridge and causing head injuries to the captain of the fishing boat Aliseo. On that occasion, the Navy’s frigate Libeccio, engaged in Operation Mare Sicuro, intervened to assist the Italian vessels and prevented their seizure by the Libyan authorities. Similarly, three days earlier, on 3 May 2021, the same vessel Aliseo, along with other fishing vessels (Michele Giacalone, Antonino Pellegrino, Giuseppe Schiavone, Nuovo Cosimo, Anna Madre and Artemide), had been object of a seizure attempt 26 nautical miles from the outer limit of the Libyan territorial waters. On that occasion, the seizure was averted only thanks to the intervention of the Navy’s frigate Alpino.
As widely reported in last year’s review,[4] on 1 September 2020, in the waters offshore Cyrenaica, always within the Libyan FPZ, the fishing vessel Anna Madre had already escaped a seizure attempt by Libyan forces then under the authority of General Khalifa Haftar.[5] The Libyan authorities had, instead, seized the vessels Antarctica and Medinea, keeping the 18 crew members in detention, without charge and for as many as 108 days.
On 19 May 2021, in response to the events of the previous days, Minister Di Maio took a clear stance with two briefings of identical content before the Senate of the Republic (328th Meeting, XVIII Legislature) and the Chamber of Deputies (511th Meeting, XVIII Legislature). After recalling that the area where the incidents took place had been defined, since 19 May 2019, as a “high risk” area for all Italian-flagged vessels and that the Government had advised against going there, the Minister stated:
The danger stems not only from the conflict situation that has characterized Libya for several years. In fact, the areas where the vessels in question go are within the fishing protection zone proclaimed by the Country in February 2005. The United Nations Convention on the Law of the Sea [UNCLOS], which reproduces customary international law on this point, recognizes the coastal State’s right to unilaterally declare an exclusive economic zone, which may extend up to 200 nautical miles from the territorial sea baseline, providing, however, that the outer limit, in the case of opposite coasts adjacent to those of other States, shall be defined by agreement, on the basis of international law, in order to reach an equitable solution. In practice, many States have exercised this power in a partial manner, through the establishment of zones of lesser extent or the enjoyment of a limited number of sovereign rights. These more specific zones are not expressly covered by the United Nations Convention on the Law of the Sea, but it is common ground that they conform to it. It is therefore per se legitimate for Libya to proclaim the fishing protection zone. Italy had expressed formal reservations about the Libyan proclamation, through the British and German Presidencies of the European Union, in 2006 and 2007; but our comments had focused essentially on the closure of the Gulf of Sirt and not on the legitimacy of the Fisheries Protection Zone per se.
The Minister then affirmed that the only solution to grant Italian fishermen the right to fish in the waters in question lays in the conclusion of agreements on fishing rights between private entities or in the beginning of a maritime delimitation process between the two States.
The legal position of the Italian Government was reiterated much more in detail one week later, before the Committee on Foreign and European Community Affairs (III) of the Chamber of Deputies (26 May 2021, XVIII Legislature), in a written answer to Question no. 5-06089. The Undersecretary of State for Foreign Affairs and International Cooperation, Mr. Benedetto Della Vedova, clarified first of all the general attitude of the Italian Government towards the law of the sea and admitted the legality of the Libyan FPZ. More precisely, according to the Undersecretary:
Italy has always been committed to upholding respect for international law. All the more so when the seas and oceans are called into question, which today constitute one of the most delicate frontiers of international relations. We support freedom of navigation as a pillar of our Country’s economic and commercial connections with the rest of the world. At the same time, we recognize the foundational value, for international security and stability at sea, of the United Nations Convention on the Law of the Sea, which reproduces customary international law.
In 2005, Libya declared its Fisheries Protection Zone extended up to 74 nautical miles from the baselines. The decision was made unilaterally, as required by international law and in analogy with what most States have done. The Italian Ecological Protection Zone itself was proclaimed unilaterally, and the same Bill on the Exclusive Economic Zone, approved by this House and now under consideration in the Senate, includes the possibility of unilateral proclamations, pending the conclusion of agreements with neighboring States.
The written answer then addressed the impact on the matter of the closure of the Gulf of Sirt, to which Italy had already objected:
It is true that the baselines from which the Libyan Fisheries Protection Zone is calculated include a portion that closed off the Gulf of Sirt in 1973, and against which there have been objections from many Countries. At the time, Italy made extensive reservations that we still maintain. That decision, however, does not in itself invalidate the mere proclamation of the Fisheries Protection Zone by Libya, and in fact the European Union itself, through the then British Presidency, requested in 2006 only the revision of its limits in a manner consistent with international law, without contesting its proclamation.
To these considerations we must add Libya’s proclamation in 2009, again unilaterally and in compliance with international law, of the Exclusive Economic Zone, which in principle extends Tripoli’s sovereignty rights over the natural, biological and non-biological resources of the sea, far beyond the limits of the current Fisheries Protection Zone, so as to include the entire Gulf of Sirt beyond its closure line.
Mr. Della Vedova then dwelled on the legality and the limits of police action carried out by the coastal State:
In the Fisheries Protection Zone, Libyan authorities are entitled to exercise police actions to ensure compliance with their national law and to prevent foreign vessels from engaging in fishing activities there that are not expressly authorized. This activity is also likely to be found in contravention of European legislation, in particular Regulation no. 1005/2008. Under this regulation, in 2012, Italy has already been the subject of a formal notice for the conduct of some Italian fishing vessels precisely in the Libyan Fishing Protection Zone. The Italian legislation itself, in particular Legislative Decree no. 4 of 2012, provides specific sanctions for anyone fishing ‘in waters under the sovereignty of other States’.
The fact that the Libyan patrol boat opened fire on the Aliseo, hitting its bridge and some superstructure and causing injuries, fortunately light ones, to the Commander is contrary to international law and is unacceptable. We made this clear to the Libyan authorities by stressing that acts of violence at sea against our fishing vessels cannot be tolerated. The intervention of the Navy Frigate Libeccio that prevented more serious consequences shows that Italy is ready to defend the safety of its citizens when it is threatened.
The answer then described the legal solutions which the Italian Government could pursue to allow fishing activities in the relevant maritime areas:
In this context, taking a posture of defiance to Libya with a formal contestation of its sovereignty over those waters would not only be unjustified in terms of international law, but also irresponsible, exposing our fishing boats and their crews to the risk of new confrontations with Libyan patrol boats and the recurrence of incidents with a potentially tragic outcome.
It is international legality, the cornerstone of cooperation between States especially on the great spaces of the sea, that must inspire the conduct of all parties. Therefore, we intend to engage in a cooperative dialogue with the Libyan authorities, including in the context of delimiting their respective maritime areas of exclusive interest. In January 2021, we proposed to the then Libyan Government of National Accord the start of bilateral negotiations on the issue. In this context, and while respecting the exclusive prerogatives and competences of the European Union in the field of the Common Fisheries Policy, the two Countries will be able to explore bilaterally, including through the conclusion of a provisional delimitation agreement, how to foster arrangements between Italian and Libyan private operators and facilitate the possible granting by the competent Libyan authorities of fishing licenses within the Country’s Fisheries Protection Zone. In the vein of initiatives already explored in the past, particularly by the Mazara del Vallo Fisheries and Blue Growth District, this private-private partnership approach may allow the creation of joint ventures in defined areas between Libyan and Italian operators, including through the creation of jointly-owned cooperative enterprises. The private-private agreement, which could be included in the framework of European initiatives for sustainable development of the blue economy at the regional level, would be an additional added value by incentivizing the joint development of the two Countries for the benefit of economic and social growth of coastal communities in Libya as well.
Until then, we will not put the lives of our fishermen at risk, and until we have reached solutions that are up to the task, we will continue to advise against entering those waters.
The possibility of interacting – for the first time since 2014 – with a unified Libyan Government that is representative of the entire Country is a positive development. However, realism will be needed because it is clear that this negotiation, in light of the Country’s very particular political, institutional and security conditions, will take a long time.
The legal options to allow Italian fishing vessels to operate in Libya’s maritime areas are described in greater detail in the 30 June joint resolution of the Foreign Affairs Committee and the Agriculture Committee mentioned above.[6]Such resolution, which the Government endorsed, committed the Government itself
to put in place any useful initiative, in bilateral and multilateral fora, to facilitate the opening of a diplomatic dialogue in order to reach a formal determination regarding the delimitation of maritime spaces in the Central Mediterranean Sea and the resolution of the diplomatic and commercial disagreements enunciated in the preamble, in full compliance with international law and the EU foreign and fisheries policy lines; […]
to work within the European Union for the definition of a partnership agreement in the fishing sector with Libya – on the model of those already stipulated with some Countries on the west coast of Africa – that would allow European fishermen to access, legally and safely, the Libyan fishing zone, defined in accordance with international law, and at the same time would encourage cooperation initiatives between European and Libyan fishermen that take into account, in a context of sustainability and respect for the environment, fishing traditions and the legitimate expectations of the Italian and European fishing sector;
to promote collaboration between Italian and Libyan operators in the specific fishing sector, within the framework of the relevant European legislation, in order to obtain fishing licenses or authorizations for vessels operated by Italian companies, in accordance with the law, taking into account in particular the fishing traditions of specific Italian entrepreneurial and geographical environments that for the longest time have exercised fishing activities in the areas over which Libya has declared its exclusive sovereignty rights; […]
to ensure the continuity of the presence of the Italian Navy in the Strait of Sicily with the task of fisheries surveillance;
to take steps to implement the Italy-Libya Agreement of 2008, with specific reference to Article 17 concerning bilateral cooperation in fisheries;
to work to ensure that the Libyan authorities ratify the UNCLOS Convention […].
An analysis of the 2021 parliamentary practice thus reveals that, for the first time, the Italian Government has presented in Parliament a clear and all-inclusive position on the illegality of the repeated encroachments by Italian fishing vessels into Libyan fishing grounds. Previous declarations by the Government had ambiguously qualified the Libyan FPZ as “self-proclaimed”, mainly focusing on the unacceptability of coercive action against Italian fishermen.[7]
In legal terms, the main tenets of this new Italian position, as expressed by Mr. Di Maio and Mr. Della Vedova, are: the recognition of the customary nature of the UNCLOS provisions on the establishment of an EEZ; the recognition of the legality of the unilateral establishment of sui generis maritime areas within the scope of an EEZ; the recognition of the right of States to carry out police action for the enforcement of their national laws in such maritime areas; a strong reaction to the use of armed violence against Italian fishermen coupled with the engagement to use the Italian navy to protect them.
In this respect, it is important to recall that Libya has signed but not ratified UNCLOS. The position expressed by Italy thus reaffirms its opinio juris on the (widely accepted) customary nature of the UNCLOS rules on the EEZ.[8] It must also be recalled that, regardless of the closure of the Gulf of Sirt, fishing activities by Italian vessels take place well below the median line, which would constitute an essential parameter for a future delimitation agreement between Libya and Italy.[9] Even in the absence of a delimitation agreement on the EEZ, therefore, the Italian Government does not have solid legal arguments to assert the legality of the activities of Italian fishing vessels taking place at a degree of proximity from the Libyan coast such as that described above. The contention that Italian fishermen may enjoy historic fishing rights in Libyan waters stands in contrast to the absence, in UNCLOS, of any provision permitting “the continued existence” of the historic rights of a given State within the EEZ of another State.[10] As correctly argued by the Italian authorities, the lawfulness of fishing activities by Italian vessels in Libyan maritime areas will ultimately depend on whether bilateral agreements or fishing licensing arrangements can be concluded with Tripoli. In this respect, the outer limit of the Libyan EEZ thus requires a determination to be made on the basis of agreements with relevant neighboring States. Similarly, the recently adopted Italian law authorizing the Government to establish an EEZ calls for defining the limits of this zone by agreement with neighboring Countries or Countries opposite the coastline.[11]
With regard to the separate question of the exercise of enforcement powers by the coastal State, a fundamental issue, which does not fully emerge in the parliamentary practice cited above, concerns the customary status of the relevant UNCLOS rules. Indeed, according to Article 73 of UNCLOS, coercive action in the EEZ is strictly limited. Paragraph 1 prescribes 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”. As has been noted by Ronzitti, however, ascertaining the customary status of these rules is quite difficult.[12] From this standpoint, the Italian policy of encouraging Libya’s ratification of UNCLOS thus seems entirely justified.
Finally, it is worth mentioning that the presence of the Italian navy in the Libyan EEZ by no means constitutes, in itself, a violation of international law. There are no rules in the applicable legal regime preventing foreign vessels, even military ones, from navigating in the EEZ. The lawfulness of the intervention carried out by the Italian Navy will therefore depend on the factual circumstances of the case and, more specifically, on whether the coercive means used by the Libyan Coast Guard to arrest the Italian vessels could be actually considered disproportionate.
Marco Pertile
A quotable version of this post was published in the Italian Yearbook of International Law: Pertile, “The Legality of the Libyan Fisheries Protection Zone and the Coastal State’s Enforcement Powers: A Change of Policy”, IYIL XXXI (2021), 2022, pp. 504-511; available here.
[1] See Question No. 5-06089, submitted to the Committee on Foreign and European Community Affairs (III) of the Chamber of Deputies on 25 May 2021; Question No. 5-05954, submitted to the Committee on Foreign and European Community Affairs (III) of the Chamber of Deputies on 7 May 2021; Question No. 4-05491, submitted to the Senate of the Republic on 19 May 2021.
[2] Resolution No. 8-00128, jointly approved by the Committees on Foreign and European Community Affairs (III) and on Agriculture (XIII) of the Chamber of Deputies (Meeting of 30 June 2021, XVIII Legislature).
[3] This description of the events is found ibid.
[4] Overall, the consequences of the red prawn war have been far-reaching. Over the past 25 years, more than 50 boats have been seized and two boats confiscated from Libya, while about 30 fishermen from Italy have been arrested and dozens injured. Cf. “Red prawn war fuels anti-EU feeling among Italian fishing crews”, The Guardian, 19 November 2019, available here.
[5] Pertile, “The Libyan Fisheries Protection Zone and the Powers of Enforcement of a Local De Facto Government during the Libyan Civil War”, IYIL, 2021, p. 510 ff.
[6] See supra note 2.
[7] See, Pertile, “The Libyan Fisheries Protection Zone”, cit. supra note 5.
[8] In this matter, UNCLOS reflects customary international law and recognizes States’ right to unilaterally declare an EEZ extendable up to 200 nautical miles from the territorial sea baseline. Cf. Andreone, “The Exclusive Economic Zone”, in Rothwell, Elferink, Scott and Stephens (eds.), The Oxford Handbook on the Law of the Sea, Oxford, 2015, p. 159 ff., p. 162. As explained by Mr. Della Vedova, in 2005, Libya forwarded to the UN Secretary-General Decision No. 104 of the General People’s Committee on the breadth of the territorial sea and its maritime zones (Law of the Sea Bulletin No. 59, 2005). The Country thus unilaterally established a FPZ, prohibiting fishing activities to anyone without a permit and reserving the right to grant any licenses to third-Country vessels. The Libyan FPZ extends up to 62 nautical miles from the outer limit of the territorial sea and for a depth of 74 nautical miles from the baselines, without crossing the median line between Italy and Libya (General People’s Committee Decision No. 37 of 24 February 2005). The geographical coordinates are specified in Decision No. 105 of 21 June 2005 and measured from the straight baseline closing the Gulf of Sirt. No delimitation agreement with Italy followed this proclamation. Subsequently, in its 27 May 2009 declaration and 31 May 2009 Decision No. 260, Libya proclaimed an EEZ, inclusive of the former FPZ, “up to the limits permitted by international law”. Cf. Ronzitti, “Pesca senza pace nel Mediterraneo centrale e orientale”, Affari internazionali, available here, who notes that in any case the Libyan EEZ “is below the median line with Italy”.
[9] Although Art. 74 – the UNCLOS rule on EEZ delimitation – does not explicitly refer to the median line, in judicial practice the principle of equidistance is still the benchmark for the first part of the three-stage test that is usually applied in the delimitation process. Cf. Evans, “Maritime Boundary Delimitation”, in Rothwell, Elferink, Scott and Stephens (eds.), cit. supra note 8, p. 254 ff., p. 268.
[10] Tanaka, The International Law of the Sea, Cambridge, 2019, pp. 160-161. As has been argued by Ronzitti, the historic rights of Italian fishermen should be recognized within the context of a future memorandum stipulated by the Italian Government on the basis of the 2008 Treaty of Friendship with Libya. Such historic rights may also play a role in a future EU-Libya agreement on fisheries. See Ronzitti, “Come risolvere la controversia sulla pesca tra Italia e Libia”, Affari internazionali, 3 September 2009.
[11] See Law No. 94 of 14 June 2021, Art. 3. On the new Italian legislation on the EEZ, see Scovazzi, “The Italian Exclusive Economic Zone”, QIL, Zoom-out 88, 2022, p. 39 ff.
[12] See Ronzitti, “La tormentata vicenda della pesca nelle acque libiche”, Affari internazionali, 11 November 2020.
Italy's Diplomatic and Parliamentary Practice on International Law 