9
agreement!
23
Several of the principal issues dealt with in this article were taken up
once again shortly after by the Author in another article in which he ponders, in
more general terms, the applicability of a typically ‘oceanic’ institute such as the
EEZ to the Mediterranean.
24
According to Conforti, provisions on delimitation
should dictate criteria, methods and rules. And this should also be the aim of an
international decision on the matter, rather than drawing lines of delimitation of
disputed spaces. Though we can agree with this position in general terms, we must
also note that legal practice continues to be applied in the very manner he criticized.
Furthermore, in the long-standing debate regarding the solutions reached by the ICJ
on maritime delimitation, there exists a common observation, and one that merits
attention, that if international courts were to limit their duties as hoped for by
Conforti, their rulings would probably leave the parties dissatisfied, perhaps obliging them to recur to an interpretative decision of the preceding ruling in order to
translate general criteria into an actual boundary. One must also point out that every
delimitation is a unique and distinctive case, depending on specific circumstances,
and thus it is difficult to envisage rules that can be automatically applied to all.
25
To this end, concerning the delimitation of marine spaces, and in light of the
specificity of the Mediterranean, he proposed, in a realistic manner, that the insistence on collaboration regarding enclosed and semi-enclosed seas as contained in
UNCLOS Articles 122 and 123 be interpreted as an effort to implement, at the very
least in a bilateral manner, forms of joint exploitation of economic resources. The
question of delimitation and the exact limits of the EEZ, in such a reduced space,
should defer to global agreements on the exploitation of resources for the benefit of
all. Here he concludes with a phrase that will recur often in his writings, and that we
also have made our own, for it condenses in a few words the very essence of the
issue of delimitation: “a boundary is important when it delimits communities, not
when it relates to the exploitation of resources”.
26
This idea also serves as the background to another issue of interest to Conforti,
both as a scholar and as an expert working for the Foreign Ministry during the bilateral negotiations with Tunisia: the question of fishing rights in the Strait of Sicily. In
an article dedicated to this topic, he specifically addresses the crucial issue of the
exclusive fisheries zone declared by Tunisia in the waters near the Pelagic islands.
27
He points out that according to developments in the law of the sea, this claim does
not appear to be illegal as long as the same rights are guaranteed to Italy. He therefore posits the theory of a delimitation agreement between the two coastal States,
based on geographic datum and on the rules enacted by the two coastal States
(regarding Italy the 1979 Ministerial Decree declaring the space a protected zone
23 Conforti (1986).
24 Conforti (1987).
25 With reference to this different formulation, see for example, precisely in comment to the observations contained in Conforti’s article mentioned in the previous note, Arangio Ruiz (1987). For
observations on this topic, in general terms, see Weil (1988).
26 Conforti (1987), p. 180.
27 Conforti (1993), also published in Italian: Conforti (1995).
The Contribution of Benedetto Conforti to the International Law of the Sea
agreement!
23
Several of the principal issues dealt with in this article were taken up
once again shortly after by the Author in another article in which he ponders, in
more general terms, the applicability of a typically ‘oceanic’ institute such as the
EEZ to the Mediterranean.
24
According to Conforti, provisions on delimitation
should dictate criteria, methods and rules. And this should also be the aim of an
international decision on the matter, rather than drawing lines of delimitation of
disputed spaces. Though we can agree with this position in general terms, we must
also note that legal practice continues to be applied in the very manner he criticized.
Furthermore, in the long-standing debate regarding the solutions reached by the ICJ
on maritime delimitation, there exists a common observation, and one that merits
attention, that if international courts were to limit their duties as hoped for by
Conforti, their rulings would probably leave the parties dissatisfied, perhaps obliging them to recur to an interpretative decision of the preceding ruling in order to
translate general criteria into an actual boundary. One must also point out that every
delimitation is a unique and distinctive case, depending on specific circumstances,
and thus it is difficult to envisage rules that can be automatically applied to all.
25
To this end, concerning the delimitation of marine spaces, and in light of the
specificity of the Mediterranean, he proposed, in a realistic manner, that the insistence on collaboration regarding enclosed and semi-enclosed seas as contained in
UNCLOS Articles 122 and 123 be interpreted as an effort to implement, at the very
least in a bilateral manner, forms of joint exploitation of economic resources. The
question of delimitation and the exact limits of the EEZ, in such a reduced space,
should defer to global agreements on the exploitation of resources for the benefit of
all. Here he concludes with a phrase that will recur often in his writings, and that we
also have made our own, for it condenses in a few words the very essence of the
issue of delimitation: “a boundary is important when it delimits communities, not
when it relates to the exploitation of resources”.
26
This idea also serves as the background to another issue of interest to Conforti,
both as a scholar and as an expert working for the Foreign Ministry during the bilateral negotiations with Tunisia: the question of fishing rights in the Strait of Sicily. In
an article dedicated to this topic, he specifically addresses the crucial issue of the
exclusive fisheries zone declared by Tunisia in the waters near the Pelagic islands.
27
He points out that according to developments in the law of the sea, this claim does
not appear to be illegal as long as the same rights are guaranteed to Italy. He therefore posits the theory of a delimitation agreement between the two coastal States,
based on geographic datum and on the rules enacted by the two coastal States
(regarding Italy the 1979 Ministerial Decree declaring the space a protected zone
23 Conforti (1986).
24 Conforti (1987).
25 With reference to this different formulation, see for example, precisely in comment to the observations contained in Conforti’s article mentioned in the previous note, Arangio Ruiz (1987). For
observations on this topic, in general terms, see Weil (1988).
26 Conforti (1987), p. 180.
27 Conforti (1993), also published in Italian: Conforti (1995).
The Contribution of Benedetto Conforti to the International Law of the Sea