Extension of coastal state jurisdiction in the Mediterranean

Mare nostrum

The Mediterranean Sea¹ has been known by a number of alternative names throughout human history. During Roman times it was commonly referred to as the mare nostrum and from this it may be implied that it was to a certain extent also a mare clausum. Nowadays, and conversely, the Mediterranean coastline which extends for approximately 46,000 kilometres is shared by 21 states, including the UK.² It is noteworthy that states bordering the Mediterranean form part of three continents: Europe, Africa and Asia with different cultures, religions and levels of economic development. The – limited – Mediterranean is also an international waterway linking nowadays the Atlantic and the Indian Ocean; and both of them with the Black Sea, and is also due to the slow exchange of waters through the strait of Gibraltar at great risk of pollution. Another important characteristic of the Mediterranean is that it is composed of a number of sub-seas which are either indented inside the continent – e.g. the Adriatic – or situated between

a continent and a group of islands – e.g. the Tyrrhenian Sea. The various sub-seas show however different levels of autonomy and this consideration may be important when trying to answer which sub-sea, if any, qualifies as a juridical enclosed or semi-enclosed sea on the basis of Part IX of UNCLOS.³

Among other geographical characteristics of the mare nostrum we may emphasize the restricted space and the presence of some major islands – Sicily, the Balearic islands, Crete – two island states – Malta and Cyprus – and a great number of smaller islands – e.g. the Croatian islands, the Spanish islands in front of the Moroccan coasts and the Greek islands in the Aegean – and this together with some other factors complicates the delimitation of maritime zones and at least indirectly also the process of extension of coastal state jurisdiction in the Mediterranean.

From the standpoint of the new Law of the Sea there are at least three important implications of the size and configuration of the Mediterranean. The first is that there are no points in the mare nostrum in which the coasts of two states would be more that 400 nm apart.⁴ This in practical terms means that Mediterranean coastal states are not in a position to extend their jurisdiction up to the maximum extent permitted by international law and it also means that almost every extension of jurisdiction creates new neighbours and triggers the need for delimitation of actual or potential zones of sovereign rights and/or jurisdiction with adjacent and opposite states. The second characteristic is related with the first and is reflected in the fact that due to the geographic characteristics referred to, coupled with the number of bordering states, the extension of jurisdiction by one coastal state in the Mediterranean in most cases affects the interest of more than just one other neighbouring state.⁵ And third, as the continental shelf exists ipso facto and ab initio it would seem that there is no space for the ‘common heritage of mankind’, or the ‘Area’, according to Part XI of UNCLOS in the Mediterranean.⁶

What is also clear from today’s perspective is that the Mediterranean, as well as some of its sub-seas – e.g. the Adriatic – are on the basis of Part IX of UNCLOS classified as juridical enclosed or semi-enclosed seas⁷ and this brings with it an

enhanced requirement for its coastal states to cooperate in the implementation of their rights and duties under UNCLOS with particular emphasis on the areas of cooperation expressly referred to in Article 123. The question which may be asked is whether Art. 123 of UNCLOS provides also for an implied requirement for bordering states to endeavour to cooperate when it comes to the extension of coastal state jurisdiction in such seas – proclamation of new zones. The language of Article 123 and its travaux préparatoires seems to suggest a positive answer.⁸

The continental shelf and the Mediterranean

The particular situation of the Mediterranean among the group of enclosed or semi-enclosed seas is particular not only because of its size and the status of an important international waterway, but also because of its hydrological and geological characteristics which in many aspects differ from other enclosed or semi-enclosed seas. Most areas of the Mediterranean Sea are quite deep, in most cases exceeding 1,000 metres and this still represents a considerable obstacle when it comes to the exploitation of the natural resources of its continental shelf.⁹ It is interesting however that the seabed and subsoil of the Adriatic is represented by an indivisible – natural – continental shelf.

It is also important to emphasize that the new regime of the EEZ as embodied in Part V of UNCLOS has not absorbed the continental shelf and that the two concepts coexist.¹⁰ This can be derived inter alia from the 1985 Libya–Malta judgment where the ICJ took the position that ‘the continental shelf and the EEZ coexist as two separate institutions as the latter has not absorbed the former …¹¹ and from the more recent 2006 Arbitral Award in the dispute between Barbados and Trinidad and Tobago where it is stated that ‘the former does not displace the latter’.¹²

Among the many differences between the two concepts there is perhaps one which is crucial for a proper understanding of the legal relationship between the Mediterranean continental shelf and its superjacent waters. This difference can best be explained by quoting Professor Attard who in his brilliant book on the EEZ reiterated that ‘the rights over the continental shelf do not depend on occupation, effective or notional, or any other express proclamation as they exists ipso facto

and ab initio’.¹³ This means that each coastal state if geographical circumstances so permit has a continental shelf and the latter fact does not depend upon express proclamation, nor effective occupation.

In the context of the Mediterranean this means that the entire seabed and subsoil of the latter is formed by the continental shelf of bordering states and this independently of the legal status of the superjacent waters which may be that of high seas, fishery zone, EEZ, a derived zone – in maiore stat minus – or a ‘sui generis’ zone. The prevalent position in the Mediterranean is still that where the waters above the continental shelf have the status of high seas, despite the fact that we have recently witnessed remarkable efforts by some Mediterranean coastal states to extend their jurisdiction beyond the limits of the territorial sea. While comparing the two zones it is however necessary to emphasize also the close links between the EEZ and the continental shelf. This similarity is particularly felt in the case where a state proclaims its own EEZ as according to Article 56(3) of UNCLOS the right of the coastal states in the EEZ with respect to the sea-bed and subsoil shall be exercised in accordance with Part VI of UNCLOS. There is however no legal need for the limits of the two zones to coincide, although this has recently been a widespread practice.¹⁴

It is possible to claim that that numerous problems encountered by the Mediterranean states while trying to delimit their continental shelf had played a part in the decision of the majority of Mediterranean states not to extend their jurisdiction beyond the limits of its territorial sea. It has been calculated by Professor Leanza that for a complete delimitation of the Mediterranean continental shelf 30 delimitation agreements would be necessary, while up to this point only 10 or so such agreements have been concluded coupled with some provisional.¹⁵ What comes to our attention however is that more than half of the final shelf delimitation agreements were concluded by Italy with its maritime neighbours – the former Yugoslavia, Tunisia, Spain, Greece and Albania¹⁶ – and that a great majority of them, with the exception of the 1992 Agreement with Albania, were concluded in the period between 1968 and 1977 at a time when the concept of the

EEZ had not fully crystallized into a principle of customary international law.¹⁷ Additionally, France in 1984 delimited its territorial sea and continental shelf with Monaco¹⁸ where it was also agreed that the boundary line for the shelf would be applicable also in case of an eventual proclamation of an EEZ or similar zone of jurisdiction.¹⁹ The latter was the first delimitation agreement in the Mediterranean involving a single maritime boundary for all zones of jurisdiction, future and present, and the Principality of Monaco is the only state in the Mediterranean to have definitively resolved all its maritime delimitation issues with its neighbouring states. In the central Mediterranean, two – partial – delimitation agreements have been concluded on the basis of the 1982 and 1985 ICJ judgments between Tunisia and Libya²⁰ and Libya and Malta, while in 2002 a provisional delimitation agreement was agreed between Algeria and Tunisia.²¹ Finally, two recent delimitation agreements have been concluded between Egypt and Cyprus in 2003,²² and Cyprus and Lebanon in 2007²³ which however regulate the delimitation of their potential EEZs and not only of the shelf. The two agreements are interesting as they tried to delimit potential, rather than existing, EEZs. At the time of the conclusion of the delimitation agreements between Egypt and Cyprus in 2003, Cyprus did not dispose of an EEZ,²⁴ while the position of Egypt was not clear.²⁵ The same situation occurred in 2007 with Lebanon.

As an EEZ does not exist ipso facto and ab initio, it is worth asking what is the legal value of such delimitations of potential zones towards the international community. Account should be taken of Article 89 of UNCLOS which provides that ‘no State may validly purport to subject any part of the high seas to its sovereignty’ and it seems that this may be by analogy extended also to the exercise of sovereign rights and jurisdiction over that part of the sea beyond the limits of the territorial seas of a coastal state but within the 200 nm from the baseline, in the absence of an express proclamation of an EEZ or a similar zone.²⁶ It would seem possible to argue that such delimitation agreements may be treated eventually by third states as agreements delimiting the continental shelf containing furthermore an express consent of the involved states that once EEZs or similar zones of jurisdiction are established the agreed limits will form a single maritime boundary for all purposes.

A couple of words should be said also about the relatively small numbers of shelf delimitation agreements in the Mediterranean and on the existing conflicting claims over great portions of the Mediterranean continental shelf which have arisen as a result of this. It should be recalled that Article 83(3) of UNCLOS regulating the delimitation of the continental shelf provides that:

From a broad analysis it may be furthermore inferred that agreements delimiting only the continental shelf, therefore only the seabed and subsoil, form part of the past, and that Mediterranean states are more inclined towards stipulating agreements which delimit all their maritime areas, present and future, although this does not necessarily mean an agreement on a single maritime boundary.

Extension of coastal state jurisdiction in the Mediterranean: real sui generis zones or (quasi) EEZs?

It is interesting to note that up to the late 1990s the majority of Mediterranean states had refrained from proclaiming an EEZ or even a fishery zone along their Mediterranean coast. It was most likely felt by the bordering states that an act of extension of jurisdiction in such a restricted space as the Mediterranean would provoke tensions and possible political problems with neighbouring states.

A factor which may have played a role in determining such an attitude of self-restraint was also the inclination of some Mediterranean states to give priority to interests, such as free access to fisheries or mobility of commercial and military ships.

The attitude of some Mediterranean states in the past, particularly those of Spain and France, are particularly interesting. In 1976 the latter adopted a law²⁷ with which it established an economic zone off the French coast bordering the North Sea, the English Channel and the Atlantic from the French–Belgian border to the French–Spanish border, without however extending it to its Mediterranean coast. Turkey, on the other hand, established its EEZ only for its Black Sea Coast while a number of Adriatic states, such as Italy and the former Yugoslavia and Albania did not proclaim an EEZ – or an exclusive fishery zone – of their own. It would seem that there was a sort of ‘tacit agreement’ between Mediterranean states, not to establish zones of jurisdiction in the Mediterranean, as long as other states would refrain from doing the same. What was also clear is that from the standpoint of international law there were no legal restriction for the proclamation of EEZs or fishery zones or similar zones and it was also predictable that in the case of extension of jurisdiction by one state others would follow suit. The status quo was irrevocably terminated on 1 August 1997 when the Council of Ministers of Spain approved the Royal Decree No. 1315/1997,²⁸ with which a Spanish Fisheries Protection Zone was established in the Mediterranean, extending from Cabo the Gata to the French border.²⁹