Category Archives: Law of the Sea

The Response to the Houthis’ Attacks in the Red Sea: Bathing in Ambiguity

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In October 2023, the Yemen-based and Iran-backed Houthi movement started a series of attacks (continuing well into 2024) against several vessels navigating the Red Sea, with the declared intention to support the population of Gaza in the rekindled Israeli-Palestinian conflict. On 10 January 2024, the United Nations Security Council adopted Resolution 2722, taking note of “the right of Member States, in accordance with international law, to defend their vessels from attacks, including those that undermine navigational rights and freedoms”. This ambiguously-worded text does not provide for an autonomous legal basis for reaction and leaves open the question of the legality of the forcible measures subsequently taken by (mostly Western) States.

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Of Castaways and Pirates: Migrants’ Rights from Departure to Arrival

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The victory of the right-wing coalition at the general elections of September 2022 brought the topic of migration back to the center of the Italian political debate. In the first half of the year the Parliament had discussed migration issues with a theretofore unknown positive attitude: the shock caused by Russia’s aggression against Ukraine nourished the sympathy for those displaced by the war and led to the welcoming of tens of thousands of Ukrainian refugees and the financing of support initiatives. However, the steady rise in the number of migrants reaching the country’s shores, as compared to those arrived in the period immediately after the conclusion of the 2017 agreement between Italy and Libya, led the newly elected President of the Council of Ministers, Ms. Giorgia Meloni, and her center-right coalition to adopt a tighter approach.

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The Legality of the Libyan Fisheries Protection Zone and the Coastal State’s Enforcement Powers: A Change of Policy

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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.

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Maritime Delimitation in the Central Mediterranean Sea and Algeria’s Proclamation of an Exclusive Economic Zone

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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]

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The Libyan Fisheries Protection Zone and the Powers of Enforcement of a Local De Facto Government During the Libyan Civil War

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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.

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Maritime Delimitation in the Eastern and Central Mediterranean: The Position of Italy with Respect to Turkish Exploration Activities Offshore Cyprus and the Memorandum of Understanding Between Turkey and Libya

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In the eastern and central Mediterranean, the importance attached by regional actors to the existence of a defined legal framework for maritime delimitation has recently emerged with reference to two separate but interrelated cases: the exploitation of hydrocarbon resources offshore Cyprus and the stipulation of a “memorandum of understanding” between Turkey and the Libyan Government led by Mr Fayez al-Sarraj and recognized by the United Nations (UN). In both cases, a clear contrast between the position and interests of Turkey, on the one hand, and the claims of a number of other coastal States, on the other, emerged. As will be seen, the Italian Government took a strong stance against the actions of Turkey, in the first case, but it adopted, instead, a position of mild criticism in the second case.

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The Italian Government’s Stance on the Annexation of Crimea and the Sanctions against the Russian Federation

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On the Sanctions Adopted by the EU against the Russian Federation

On 5 June 2018, Italy’s newly appointed Presidente del Consiglio dei Ministri (President of the Council of Ministers), Mr Giuseppe Conte, made his first address to Parliament, seeking a confidence vote in the Senato della Repubblica (Senate of the Republic, 9th Meeting, XVIII Legislature). While outlining the foreign policy program of his Government, he also made reference to the sanctions adopted by the European Union after the annexation of Ukraine by the Russian Federation[1]. In this context, Mr Conte stated:

With regard to international scenarios, markets and security, firstly we intend to confirm our country’s convinced belonging to the North Atlantic Alliance, with the United States of America as a privileged, traditionally privileged, ally. But pay close attention! We will be advocates of an opening towards Russia. A Russia that has consolidated its international role in various geopolitical crises in recent years. We will push for a review of the sanctions system, starting from those [measures] that risk humiliating the Russian civil society.

It is noteworthy, however, that on the following day NATO Secretary General, Mr Jens Stoltenberg, emphasized the importance of political dialogue but also recalled the role of sanctions[2]. In similar terms, the US Ambassador to NATO, Mr Bailey Hutchinson, underlined the need to maintain sanctions and avoid any hesitation, highlighting that the lack of unity between allies would be a bad signal to Russia[3].

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Migration Policy and Management under the “Conte 1” Government

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The fight against “irregular” migration to Italy featured prominently in the election manifesto of the Lega (League – a right-wing political party) and was incorporated in the coalition agreement concluded between the two governing parties after the 4 March 2018 general election, namely the League and the Movimento 5 Stelle (Five Star Movement). Accordingly, on 5 June 2018, the President of the Council of Ministers, Mr Giuseppe Conte, outlined the approach on migration of the newly formed Italian Government during his first speech before the Senate of the Republic (9th Meeting, XVIII Legislature):

It is clear to everyone that the management of migratory flows as implemented to date has failed. Europe allowed – we must emphasize it – selfish positions by Member States, which ended up placing the burden, which should have been shared, on border States, first and foremost on Italy. That is why we will vigorously demand to go beyond the Dublin Regulation, so as to ensure actual compliance with the principle of equitable responsibility-sharing and implement automatic mechanisms for the mandatory relocation of asylum seekers. […]

We want asylum procedures to be well-established and swift, also with a view to more effectively ensuring that the rights [of asylum seekers] are guaranteed and that they do not live in uncertainty. […]

We must also re-organize the reception system and make it efficient with a view to ensuring the transparent use of public funds and preventing any infiltration by organized crime. Should there be no grounds for the stay [of migrants in Italy], we will take action to make repatriation procedures effective and, at the European level, to compel third States willing to conclude cooperation agreements with any EU Member States to ratify bilateral agreements for the management of migratory flows.

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Italy’s Initiatives in the Enrica Lexie Case Following the Order of ITLOS to Suspend National Court Proceedings Pending Arbitration

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In the course of 2016, the controversy of Italy with India, widely known as the Enrica Lexie case, was an important subject of discussion and debate in the Parliament. The events triggering the dispute date back to 15 February 2012, when two Indian fishermen were killed off the western coast of India, after a shooting incident involving Italian marines on-board the Italian-flagged oil tanker Enrica Lexie.

The subsequent arrest by Indian authorities of two Italian marines, Massimiliano Latorre and Salvatore Girone, sparked a controversy between the two countries; after unsuccessful attempts to settle the case through diplomatic means, on 26 June 2015 Italy decided to submit the dispute to international arbitration pursuant to Annex VII of the United Nations Convention on the Law of the Sea. Additionally, Italy sought provisional measures before the International Tribunal for the Law of the Sea, which ordered the suspension of all court proceedings against the two Italian marines, Massimiliano Latorre and Salvatore Girone, pending a decision on the issue of jurisdiction by the Arbitral Tribunal (The “Enrica Lexie” Incident (Italy v. India), Provisional Measures, ITLOS, Order of 24 August 2015). On 13 January 2016, the Indian Supreme Court was convened to discuss the situation of one of the two marines, Massimiliano Latorre, who had been allowed to repatriate to Italy for medical reasons.

The initiatives adopted by Italy in the case, including the position expressed before the Indian Supreme Court, were illustrated by members of the Government in particular in the two occasions detailed below:

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

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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.

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