Malta and Italy, and possibly also Libya, might be heading for legal contention regarding the oil exploration now being attempted in the sea between Malta and Sicily, according to Italian media reports.

On 27 December 2012, Italian Minister for Economic Development Corrado Passera, who had already resigned by then, signed a ministerial decree which created the ‘Zona Marina C – Settore Sud’, an area as big as two-thirds of Sicily. The problem is that this area claimed by the Italians includes areas which Malta says belong to her.

In December 2007, Malta signed a production-sharing agreement with Heritage Oil, an independent company based in London led by Tony Buckingham.

As Heritage itself has admitted, according to Peppe Croce, writing on Qualenergia.it last week, before entering the oil business, Mr Buckingham worked in Executive Outcome and Sandlines International, two private military companies that did business with the governments of Angola and Sierra Leone, in the case of the latter breaking a UN arms embargo, according to The Guardian. Heritage adds, however, that as from 2000, Mr Buckingham had lost contact with his colleagues in these ventures.

The areas allocated by Malta to Heritage Oil are No. 2 and No. 7, which now form part of the new Italian marine zone. In addition, also in Area 2 is Medina Bank 1, an oil well dug in 1980 by US company Texaco after being authorised by the Maltese government. Texaco did not find any oil but it caused an international issue between Malta and Libya that has not yet been closed.

At the beginning of December last year, then Prime Minister Lawrence Gonzi visited Tripoli and discussed the contested areas 2 and 7 with his Libyan counterpart, Ali Zeidan. As I had reported then, no agreement was reached because the Libyans were more interested in recovering Gaddafi’s funds reportedly still hidden in Malta.

Previously, in 2008, the Libyan government, still under Gaddafi, had sent a formal letter to Heritage Oil warning it against any activity in the contested areas. Now the Italians have come in with their new marine area which claims all area 2 and most of areas 1, 3 and 7.

There are many doubts, Mr Croce wrote, about the Passera ministerial decree, not only juridical doubts but also doubts about whether it was opportune for Italy to claim an area of the sea that Malta has been saying for five years belongs to it and which also Libya claims as its own, and about the opportunity of doing so when the talks between Italy and Malta had just began again after months of strong Italian opposition.

On 27 September 2012, talks had been held in Rome at technical level, described as “informal preliminary scoping exercise, without prejudice of sovereign rights”. In other words, this described the beginning of the diplomatic process which could later lead to a preliminary agreement on the sharing of that contested area of the sea. A second meeting was held in Malta on 10 December 2012.

On 27 December, exactly a week after the Italian government consented to the interconnector between Sicily and Malta, which will be of enormous advantage to Malta, Minister Passera signed the ministerial decree by means of which Italy extended its area of the sea.

Why then claim an area about which negotiations were already ongoing with another state? “It was decided to act in this manner in order to decide which are the common interests to explore further,” said the Director General for Mineral and Energy Resources in the Ministry for Economic Development, Franco Terlizzese. “In these negotiations we [Italy] have found ourselves in an unbalanced situation because Malta had unilaterally opened up areas in respect of which Italy claims sovereignty according to international law.”

Terlizzese denies that Italy has claimed areas that have been claimed by Libya. He admits, however, that this was a unilateral move by Italy but argues it was in response to a previous unilateral move on the part of Malta in December 2007. “It was Malta that unilaterally opened up many areas and created the risk of an international contention. Italy saw that Malta was about to see what lies under the ocean floor and without the enlargement of area C, Italy would have been unable to take part in the negotiations.”

According to international law, if there is an agreement between two states and one state breaks it, that state is guilty. But in this case, according to Terlizzese, there was no agreement at all: there are not even notes from the two technical meetings – the two sides were holding informal discussions.

Italy has already declared its stand: on 28 February 2013, that is after the two technical meetings and after the Passera declaration, the Italian Ministry for Economic Development published a supplement to the Official Bulletin of Resources and Hydrocarbons in which it said that the state has sovereign rights on the continental shelf and no one can try to explore and exploit its natural resources unless there is an expressed consent from the state itself.

In other words, the oil claimed by Malta and by Libya belongs to Italy, Terlizzese said, and Italy has no intention of giving it away to anyone.

However, Mr Croce said, it would seem that the specialised international media does not know about the position of Italy. On 30 May, the online news portal RigZone described in glowing terms Malta’s potential regarding oil, and the many expressions of interest from oil companies, without making any reference to the technical talks or to ‘Zona Marina C – Settore Sud’. It just reported what had been said by Heritage regarding the unexplored potential of the Maltese waters.

Heritage itself, in its Interim Management Statement of 16 May 2013, does not refer to any contention between Italy and Malta although, according to Terlizzese, oil companies interested in the area knew about the dispute.

But it is also true, Croce pointed out, that when he signed the ministerial decree, Passera should have been doing just ordinary administration work.

Former Italian prime minister Mario Monti had resigned on 6 December and thus his administration was supposed to be in a caretaker function. Enlarging the sea belonging to his country cannot be considered as a caretaker function, neither can issuing a decree knowing that it will cause international contention.

How all this will end, Terlizzese has no idea. The Italian government has changed, so has the Maltese government. “We will meet again and see,” he said.