TREATY PRACTICE

(edited by Marina Mancini)

VII. LAW OF THE SEA

Th e Ag r eement b etween Fr ance and Ital y on t h e Del i m i tat i on o f Maritime Fr ont i e r s

After years of negotiations, on 21 March 2015 at Caen, and finally reached an Agreement on the delimitation of the territorial seas and of the zones under their national jurisdiction. The agreement was signed by the Ministers of Foreign Affairs of the two countries, but thus far it has only been ratified by France.1 It was written in French and Italian, both languages being authentic. Before the Caen Agreement, there was in force only an accord on maritime delimitation, i.e. the Convention of 28 November 1986 on the Bonifacio Strait between and . The Convention was due to supersede the Accord of 18 January 1908, which became obsolete once the two States had extended their territorial waters.2 The existence of an additional agreement of 1892 delimiting the water of Mentone Bay between Italy and France is a matter of controversy. The agreement was only a procès-verbal and divides the sea according to a perpendicular line of three miles (the then extension of the territorial sea), stretching from signals located on land. France and Italy, having decided to delimit all maritime frontiers, began nego- tiations in 1972. However, these were interrupted in 1975, mainly because the two delegations disagreed on the way to implement the equidistance principle for the continental shelf delimitation.

1 As at March 2017. The French text of the Agreement is available at: . See also Service hydrographique et océanographique de la marine, “France: de nouvelles frontières mariti- mes”, available at: . The delimitation of the territorial waters, continental shelf and other maritime zones under the national jurisdiction of the two countries has been reproduced in a map annexed to the Agreement (Article 3). The Agreement has been commented upon by Ca f f i o , “The Maritime Frontier between Italy and France. A Paradigm for the Delimitation of Mediterranean Maritime Spaces”, Maritime and Security Law Journal, 2016, p. 90 ff.; and Lean z a , “L’Accordo italo-francese del 2015 di delimitazione delle frontiere marittime: quadro giuridico di riferimento”, CI, 2016, p. 11 ff. (the Italian text of the Agreement is at pp. 17-18). 2 Vi g nes , “La Convention franco-italienne du 28 novembre 1986 relative à la délimitation des frontières maritimes dans la région des Bouches de Bonifacio”, in de Gu tt ry and Ron z i tt i (eds.), I rapporti di vicinato tra Italia e Francia, Padova, 1994, p. 93 ff. 618 italian practice relating to international law

The negotiations were resumed in 2006 and concluded in 2012 after four rounds (Rome, 2006, Paris 2007, Elba Island 2007, Rome 2012), as is recalled in the Preamble of the 2015 Agreement. During this period the two States extend- ed their maritime jurisdiction: France transformed its ecological protection zone (EPZ) proclaimed in 2004 into an economic exclusive zone (EEZ) (2012); Italy delimited the Tuscan Archipelago with straight baselines (1977) and proclaimed an EPZ along the Italian coastline (2006), the implementation of which was subor- dinated to the enactment of a Presidential decree. For the Tyrrhenian coast such a decree was enacted in 2011. The 2015 Agreement was immediately ratified by France. However, in Italy ratification was prevented by the protest of fishermen who accused the Government of having negotiated a treaty contrary to their interests. The Agreement has involved the delimitation of all sea areas under the jurisdic- tion (both under sovereignty or object of sovereign rights) of France and Italy. The areas of delimitation are as follows: (i) territorial waters: the Strait of Bonifacio and the areas between Corsica and the opposite coast of Italy’s mainland, including the Tuscan Archipelago; the sea area stretching from the territorial border between France and Italy and intruding into the Bay of Mentone and beyond (lateral delimi- tation); (ii) continental shelf: the areas concerned are those between Corsica and the Tyrrhenian coast and between Corsica (Capo Corso) and the Gulf of Genoa; the delimitation takes into account the West coast of Corsica and the North of Sardinia; (iii) the delimitation of EEZ/EPZ concerns the same area of the continental shelf, bearing in mind that Italy only instituted an EPZ in 2006. It should be recalled that Italy concluded a treaty for the delimitation of the continental shelf with Spain in 1977. However France has stated that this agree- ment is not opposable to it. The preamble of the Agreement states that the delimitation is based on the United Nations Convention on the Law of the Sea (UNCLOS) to which both States are party. In particular, they have adopted the principles of equidistance for the delimitation of their territorial waters and that of equity for the delimitation of sea areas under their jurisdiction, i.e. continental shelf and EEZ/ZPE. Whether they have based the Agreement on UNCLOS or have simply been inspired by UNCLOS is a matter of interpretation of the results achieved. As to the territorial sea, the leading provision is Article 15 UNCLOS. It es- tablishes the principle of the median line. However, it may be derogated from by agreement by the opposite or adjacent States. Moreover, it may not be applied if historic titles or other special circumstances should be taken into consideration. As for the continental shelf/EEZ, Articles 83 and 74 UNCLOS refer to an agree- ment “on the basis of international law […] in order to achieve an equitable solu- tion”. Even in this case the agreement is the main instrument for the delimitation. The content of the agreement should allow for “an equitable solution”. The case law of the ICJ has hinted at the principles and procedure that allow for such a solu- tion to be reached. In this regard, it is worth mentioning the three-stage approach,