ANNEX 2

Note on maritime jurisdiction in the Mediterranean Sea

The purpose of this note is to provide a brief overview of the legal status of Mediterranean waters and a global picture of Mediterranean states’ adhesion to major international conventions or agreements relating to the law of the sea and fisheries.

A1 MARITIME JURISDICTION

The Mediterranean is a semi-enclosed sea surrounded by 21 countries. It is characterized by a number of distinctive features with important implications for the conservation and management of fisheries. One of these features is the general restraint shown by coastal states to exercise their rights to extend national jurisdiction over waters in the Mediterranean. While most states have established territorial waters, few have claimed an economic exclusive zone or a fishing zone extending beyond these waters (see Table A.1 below). As a result, the high seas area in the Mediterranean lies much closer to the coasts than in most other seas and oceans on the planet. It is therefore similar to the situation that prevailed in the sixties and seventies prior to the devising of the new law of the sea enshrined in the 1982 United Nations Convention on the Law of the Sea (LOSC). The existence of a large area of high seas requires a high level of cooperation between coastal states to ensure the sustainable utilization of fisheries resources in the Mediterranean. After a brief review of the basic principles and rules relating to the establishment of maritime zones as embodied in the LOSC, this chapter examines the legal status of Mediterranean waters.

A1.1 Maritime zones

From a legal point of view, marine waters fall under different areas, each having its own legal regime, as codified by the LOSC. The LOSC, adopted on 10 December 1982 in Montego Bay, Jamaica, provides the general framework governing the establishment and delimitation of maritime zones. It stipulates that the sovereignty of any coastal State extends to an adjacent belt of sea, called the territorial sea, whose breadth can extend up to a limit not exceeding 12 nautical miles. Sovereignty conferred upon coastal states is not confined to the water column but also extends to the air space over the territorial sea as well as to its bed and subsoil. It must be exercised in accordance with the LOSC and other rules of international law (Articles 2 and 3). The LOSC sets out the rules and methods to be applied to determine the baselines from which the breadth of the territorial sea should be measured (normal baseline and straight baselines) and lays down the rules to be followed to delimit the territorial sea between states with opposite or adjacent coasts (Article 15).

The LOSC recognizes coastal states the right to claim an exclusive economic zone (EEZ), the extent of which must not exceed 200 nautical miles (Article 57). Unlike for the territorial sea, the coastal State sovereignty does not extend to the EEZ. In the latter, the coastal State enjoys sovereign rights "for the purpose of exploring and exploiting, conserving and managing the natural resources, whether living or non-living, of the waters superjacent to the sea-bed and of the sea-bed and its subsoil, ..." (Article 56).

Unlike the EEZ, the continental shelf exists ipso jure and does not depend on occupation, effective or national, or on any expressed proclamation by coastal states. According to Article 76 of the LOSC, the continental shelf comprises the sea-bed and subsoil of the submarine areas that extend beyond the territorial sea throughout the natural prolongation of the land territory to the outer edge of the continental margin or to a distance of 200 nautical miles from the baselines where the outer edge of the continental margin does not extend up to 200 nautical miles, or up to the line of delimitation. In the context of the Mediterranean basin where the continental shelf is generally narrow, the continental margin criterion, which presupposes a continental shelf extending beyond 200 nautical miles, is irrelevant. Under this definition, the whole Mediterranean seabed becomes an area to be eventually allocated to coastal states, on the basis of the maritime boundaries to be established under international law.

The LOSC reiterates the freedom of the high seas principle, indicating that the high seas are open to all states, whether coastal or landlocked. While traditionally the freedom of the high seas could be enjoyed without limitation, it should now be exercised under the conditions laid down by the LOSC and by other rules of international law. A definition of this concept is given under Article 87. It comprises, inter alia, the freedom of navigation and the freedom of fishing. Exercise of the latter is subject to the conditions laid down in Article 116. They provide that states have the right for their nationals to engage in fishing on the high seas subject to: (a) their treaty obligations; (b) the rights and duties as well as the interests of coastal states provided for, inter alia, in article 63, paragraph 2, and articles 64 - 67; and (c) the provisions of section 2 of Part VII of the LOSC on the high seas.

A1.2 Status of maritime zones in coastal states

Information relative to national maritime zones is summarized in both Tables 1 and 2 annexed to this document. Table 1 compiles information on the extent of states’ territorial seas, economic zones, fishing zones and continental shelves, and Table 2 specifies the legislation establishing these various maritime zones.

A1.2.1 Territorial seas

Most Mediterranean states have established a 12-mile territorial sea. A few countries still adopt narrower limits, namely Greece and Turkey in the Aegean Sea. Because of the complex political and geographical situation, the very possibility of extending the territorial sea beyond the 6-mile limit is still disputed by the two countries. In the case of the Aegean Sea, application of the median line rule provided under Article 15 of the LOSC is politically sensitive as too many islands are on either side of the median line. The Syrian Arab Republic claims a 35-mile territorial sea which does not fit with international law as reflected in the LOSC. It is not clear, however, whether the Syrian Arab Republic enforces rights beyond 12 miles. Bosnia and Herzegovina and Slovenia have not yet determined the extent of their territorial sea. Both newly independent states have a very narrow access to the Adriatic Sea. In addition, the geographical features of the coastline make it very difficult, if not impossible, for both states to establish any substantial territorial sea.

Treaties for the delimitation of the territorial sea have been concluded between France and Italy on 28 November 1986 with regard to the strait of Bonifacio between Corsica and Sardegna; Italy and Yugoslavia on 10 November 1975 with respect to the gulf of Trieste, and more recently between Croatia and Bosnia and Herzegovina on 30 July 1999.

A1.2.2 Exclusive economic zones

Mediterranean states have so far been reluctant to proclaim an EEZ or, at least to give effect to such a claim in the Mediterranean. Among the reasons behind the choice of delaying the establishment of EEZ may be the existence of difficult problems of delimitation still to be settled in this relatively narrow sea and the desire of most states to preserve freedom of navigation, naval mobility and access to fisheries. From a legal point of view, however, there is nothing to prevent Mediterranean states from establishing EEZ if they wish to do so. At least three Mediterranean states have taken steps towards the establishment of such a zone.

In 1981, Morocco proclaimed a 200-mile EEZ, which in principle applies without distinction to both Atlantic and Mediterranean waters off the Moroccan coasts. It is unclear whether Morocco enforces its EEZ legislation to Mediterranean waters. Morocco has not yet entered into negotiation with neighbouring countries to delimit the extent of its EEZ in the Mediterranean.

In ratifying the LOSC on 26 August 1983, Egypt declared that it "will exercise as from this day the rights attributed to it by the provisions of Parts V and VI of the United Nations Convention on the Law of the Sea in the exclusive economic zone situated beyond and adjacent to its territorial sea in the Mediterranean and the Red Sea" and that it "undertakes to establish the outer limits of its exclusive economic zone in accordance with the rules, criteria and modalities laid down in the Convention". As far as could be established, it appears that the Egyptian declaration has not been followed by implementing legislation.

The Maritime Code of Croatia, adopted on 27 January 1994, contains several provisions on the EEZ. However, application of these provisions is conditional to the decision by the Croatian Parliament to proclaim such a zone or a zone of different nature.

Spain and France have proclaimed a 200-mile EEZ off their coasts but have indicated that it is not applicable to Mediterranean waters.

A1.2.3 Fishing zones

In the Mediterranean, there are four countries, namely, Algeria, Malta, Spain and Tunisia that have claimed fishing zones extending beyond their territorial waters.

In 1994, Algeria claimed an exclusive fishing zone (zone de pêche réservée), beyond its territorial sea and adjacent to it, whose extent 32 nautical miles from the western maritime border and Ras Ténés and, 52 nautical miles from Ras Ténés to the eastern maritime border.

Malta has claimed a 25-mile exclusive fishing zone since 1978. However, because of the geographical features of the area, the northern boundary of the Maltese fishing zone falls short of 25 nautical miles.

In 1951, Tunisia claimed an exclusive fishing zone that is delimited for about half of its length by the 50-m isobath. Use of this criterion to delimit a maritime zone is unique in international practice. Because of the shallow waters in the region, the external limit of this fishing zone is a line the points of which are located, in certain cases, as far away as 75 nautical miles from the Tunisian coast and only 15 nautical miles from the Italian island of Lampedusa. The Tunisian fishing zone encompasses the rich bank called Il Mammellone ("the Big Breast"), which has traditionally been exploited by Italian fishermen and is considered as an area of the high seas by Italy.

More recently, Spain, by Royal Decree No. 1315/1997 of 1 August 1997 as modified, claimed a 37-mile wide fisheries protection zone measured from the outer limit of the territorial sea. The fisheries protection zone is delimited according to the line which is equidistant (median line) from the opposite coast of Algeria and Italy and the adjacent coast of France. No fisheries protection zone is established in the Alboran Sea, off the Spanish coast facing Morocco. Interestingly, it was argued, in the preamble of the Royal Decree, that extension of jurisdiction over fisheries resources beyond territorial waters was a necessary step to ensure adequate and effective protection of fisheries resources. In Spain’s view, maintenance of the status quo, which was already characterized by excessive exploitation of fisheries resources, was unacceptable as it would have rapidly led to the depletion of these resources.

Building on the Spanish approach, the European Union, in a 2002 document laying down a Community Action Plan for the conservation and sustainable exploitation of fisheries resources in the Mediterranean, advocated the declaration of fisheries protection zones, of up to 200 nautical miles, to improve fisheries management in the Mediterranean. It stressed the fact that establishment of fisheries protection zones would facilitate control and contribute significantly to fighting against illegal, unreported and unregulated (IUU) fishing. The document emphasized the need to build a consensus through wide consultation and involvement of all countries bordering the Mediterranean basin, if such undertaking is to be successful and effective. To achieve this, a common approach should first be agreed upon by Community Member States and, subsequently, by all the countries in the region. Recently, France indicated that it adhered to this approach and that the legislation to declare a 50-mile fisheries protection zone off its Mediterranean coast was in the process of being drafted.

While declaration of fisheries protection zones will have legal implications on jurisdiction over fisheries resources, it will not affect jurisdiction over inter alia mineral or fossil resources, navigation or any other rights in this area. Unlike sovereign rights conferred upon the coastal State in the EEZ, those enjoyed by it in a fishing zone are restricted to the exploration, exploitation, management and conservation of fisheries resources. The effect of establishing fisheries protection zones will be to reduce the area of high seas and thus to modify access rights to certain fisheries. Loss of access to fishing grounds that were previously part of the high seas could be overcome through the conclusion of bilateral fisheries access agreements. In areas where extension of national jurisdiction may have serious detrimental social and economic effect, mitigating measures may be worked out through, for instance, recognition of historical fishing rights for specified vessels. Should the approach be successful, extension of national jurisdiction over fisheries is likely to translate into most of the resources being under national jurisdiction, with possible impact on the mandate of the General Fisheries Commission for the Mediterranean.

A1.2.4 Continental shelves

In the Mediterranean there are several complex delimitation issues. For instance, the long-lasting dispute between Greece and Turkey on the delimitation of coastal zones in the Aegean Sea has not been solved yet. The delimitation between Spain and Morocco appears to be very complex owing to the existence of Spanish enclaves and small islands along the coast of Morocco. The negotiations between France and Italy for a complete maritime delimitation have still to overcome the geographical problems of the presence of islands and the concave/convex configuration of the coastlines. As in any other semi-enclosed seas, several issues of delimitation are further complicated by the fact that more than two states are involved. For the time being, Monaco is the only Mediterranean State to have settled all its maritime boundaries. Conversely, several countries in the region have not yet concluded any agreement at all.

Bilateral agreements on delimitation of the continental shelf are so far in force between the following states: Italy and Yugoslavia (Rome, 8 January 1968); Italy and Tunisia (Tunis, 20 August 1971); Italy and Spain (Madrid, 19 February 1974); Greece and Italy (Athens, 24 May 1977); France and Monaco (Paris, 16 February 1984); Libyan Arab Jamahiriya and Malta (Valletta, 10 November 1986); and Libyan Arab Jamahiriya and Tunisia (Benghazi, 8 August 1988). The two latter agreements implement the judgments rendered by the International Court of Justice on 3 June 1985 and 24 February 1982, respectively. Another agreement was signed on 18 December 1982 by Albania and Italy but has not yet entered into force.

A2. ADHESION TO MAJOR INTERNATIONAL CONVENTIONS AND AGREEMENTS ON THE LAW OF THE SEA AND FISHERIES

Table A.2 provides for the status of major conventions and agreements dealing with the law of the sea and fisheries in the states bordering the Mediterranean basin. They are the LOSC, the Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks (1995 UN Fish Stocks Agreement) and the Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas (1993 Compliance Agreement).

Of the 21 Mediterranean states, only 3, namely, Israel, the Syrian Arab Republic and Turkey, have neither signed nor ratified the LOSC. Libyan Arab Jamahiriya and Morocco have signed the LOSC but have not yet ratified it. However, both countries have reflected in their national legislation the principles and rules of international law laid down in the LOSC. Recently, Albania acceded to the LOSC. If the Syrian Arab Republic were to accede to the LOSC, it would have to drop its claim to a 35-mile territorial sea and to a 41-mile contiguous zone.

So far, only Cyprus, Malta and Monaco have adhered to the 1995 UN Fish Stocks Agreement. In addition to the European Union, seven states, namely, Egypt, France, Greece, Israel, Italy, Morocco and Spain, have signed the 1995 UN Fish Stocks Agreement but have not yet taken steps to ratify it. This may indicate the reluctance of Mediterranean states to be bound by Part VI of the Agreement on compliance and enforcement, which under certain conditions authorizes inspectors of a State Party to the Agreement to board and inspect fishing vessels flying the flag of another State Party to the Agreement.

In addition to the European Union, four states, namely, Cyprus, Egypt, Morocco and Syrian Arab Republic, have ratified the 1993 Compliance Agreement. It should be emphasized that this Agreement entered into force only recently on 24 April 2003. Since then, no Mediterranean states have ratified it.

Cyprus is the only Mediterranean states to be a party to the LOSC, the 1995 UN Fish Stocks Agreement and the 1993 Compliance Agreement. By contrast, Turkey has neither signed nor ratified any of these three agreements and convention. Israel and Libyan Arab Jamahiriya are signatory to only one convention or agreement, respectively, the 1995 UN Fish Stocks Agreement and the LOSC.

Table A.1. Claims to maritime jurisdiction by states bordering the Mediterranean Sea

n/a: No information available
del: Up to delimitation with neighbouring states

Table A.2. National legislation establishing maritime zones

Table A.3. Status of the LOSC, of the 1993 Compliance Agreement and of the 1995 UN Fish Stocks Agreement in states bordering the Mediterranean