The Tunisia-Libya continental shelf case

The Tunisia-Libya continental shelf case A missed opportunity

E.D. Brown It had been hoped that the Judgment of the International Court of Justice (ICJ) in the 1982 Tunisia-Libya Continental Shelf case1 would take its place as another important landmark in the development andclarification of the rules governing delimitation of the continental shelf between neighbouring states. The ICJ itself had of course already made a major contribution in 1969 in its Judgment in the North Sea Continental Shelf cases.2 That Judgment was given on the basis of international customary law, since one of the contending states, FR Germany, was not a party to the 1958 Geneva Convention on the Continental Shelf. A second valuable judicial consideration of this area of the law was provided by the Decisions of the Court of Arbitration given in 1977 and 1978 in the Continental Shelf dispute between France and the UK.3 Although, for the most part, the Decision in that case was based on the Geneva Convention to which both states were parties, the Court of Arbitration nonetheless had the opportunity to review a number of the more important dicta of the ICJ in the North Sea Continental Shelf Judgment. The dispute between Libya and Tunisia, neither of which is a party to the Geneva Convention, presented the ICJ with an opportunity to review its earlier findings on the governing rules of international customary law and, in so doing, to take into account developments during the 13-year intervening period. If ever there was a time when a judicial clarification of the law would Law of the sea; have been useful, this was surely it. The Third United Nations ConferKeywords: Court of Justice; ence on the Law of the Sea (UNCLOS International III) was in its final stage and had Continental shelf already incorporated in the Draft Convention on the Law of the Sea4 Article 83(l) which has survived in the subsequently adopted final text of the United Nations Convention on the Law of the Sea, 19825 (hereafter E.D. Brown is Professor of International This article reads as follows: Law at the University of Wales and the LOS Convention).

This article examines the Judgment of the International Court of Justice (ICJ) in the 1982 continental shelf case between Tunisia and Libya. The scope of thedisputeis outlined geographical area and the indicated. This is followed by a consideration of the law applicable to the dispute: whether it is general international law or lex specialis agreed to by the parties. The author then analvses the ICJ’s treatment ‘natural prolongation’ of the doctrine, its interpretation of principles’, the ‘equitable identification of the ‘relevant circumstances’ in this case and the ICJ’s ‘practical method’ for delimiting the shelf. The article concludes by arguing that the ICJ missed a golden opportunity to clarify a vague and imprecise area of international law.

Director of the Centre for Marine Law and Policy, University of Wales Institute of Science and Technology, Cardiff, UK. He can be contacted at the Law Department, UWIST, King Edward VII Avenue, Cardiff CFl 3NU, UK (Tel: 0222-31326/23813).

142

The delimitation of the continental shelf between States with opposite or adjacent coasts shall be effected by agreement on the basis of international law, as referred to in Article 38 of the Statute of the International Court of Justice, in order to achieve an equitable solution. The Conference’s acceptance of this masterpiece of vagueness, a creature of compromise proposed to enable the Conference to escape from a

0308-597X/83/030142-21$03.00

0 Butterworth l? Co (Publishers) Ltd

The Tunisia-Libya

continental

shelfcase

difficult negotiating impasse,6 means in effect that if in future the governing law is to have any precision or certainty, it will have to be provided by the ICJ or other international tribunals. Sadly, it has to be said that little or no contribution in this direction has been made by the ICJ in its Judgment in this case. Indeed, the view may well be taken that, so far as the clarification and development of the law are concerned, the Judgment is a distinct step backwards as compared with the earlier Decision of the Court of Arbitration. 7 This article first outlines the scope of the dispute and, with the help of Figure 1, indicates the geographical area concerned. This is followed by a consideration of the law applicable to the dispute: whether it is general international law or lex specialis agreed to by the parties. Third, the ICJ’s treatment of the ‘natural prolongation’ doctrine in this case is examined. The difficult concept of ‘equitable principles’, as understood by the ICJ, is then dealt with and this is followed by an analysis of the ‘relevant circumstances’ identified by the ICJ as pertinent to the application of equitable principles. The ‘practical method’ prescribed by the ICJ for the delimitation of the shelf is then examined. Finally, the significance of the ICJ Judgment is evaluated. I

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The Tunisia-Libya

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shelf case

The dispute The dispute between Libya and Tunisia was referred to the ICJ following a Special Agreement signed in Tunis on 10 June 1977. Article 1 requested the ICJ ‘to render its Judgment in the following matter’: What principles and rules of international law may be applied for the delimitation of the area of the continental shelf appertaining to the Socialist People’s Libyan Arab Jamahiriya and to the area of the continental shelf appertaining to the Republic of Tunisia, and the Court shall take its decision according to equitable principles, and the relevant circumstances which characterize the area, as well as the new accepted trends in the Third Conference on the Law of the Sea.

‘Continental Shelf (Tunisia/Libyan Arab Jamahiriya), Judgment, fCJ Reports 1982, p 18. (Hereafter cited as ‘Judgment’). Wii the exception of Judge Oda’s Dissenting Opinion, the report of the case is also available in International Legal Materials, Vol XXI, No 6,1982, p 225. Worth Sea Continental Shelf, Judgment, ICJ Reports 1969, p 3. 3Arbitration between the United Kingdom and France on the Delimitation of the Continental Shelf. Decisions of the Court of Arbitration dated 30 June 1977 and 14 March 1978. Mist No 15. Cmnd 7438. 1978. %aft Convention on the Law of the Sea, UN DocA/CONFkWL.78,28August 1981. Wnited Nations Convention on the Law of the Sea, 10 December 1982, UN Dot A/ CONF. 62/122, 7 October 1982. Reproduced, with corrections, in lntemational Legal Materials, Vol XXI, 1982, p 1261. 6For an account of the negotiations in UNCLOS Ill, down to the end of the First PartoftheTenthSessioninAorfl1981.see ‘Delimitation ’ of offshore E.D. Brown, areas’, Marine Policy, Vol 5, No 3, July 1981, DD 179-182. The comoromise text. prof.%d by the President of the Confer: ence, was incorporated in the Draft Convention on the final day of the Resumed Part of the Tenth Session, 28 August 1981, after a finding by the Conference collegium that it enjoyed ‘widespread and substantial support’. Such support seemed more to reflect exhaustion than real satisfaction with the text. See also note 20 below on the requirement of ‘widespread and substantial support’. Y%e further below, under ‘A missed opportunity’. sJudgment, p 23. See ICJ’s comment on p 37(22). 9Judgment, p 23. lo/bid. “Judgment, p 38(25). 12Judgment, p 35(20) and p 36(Map No 1). YSpecial Agreement between Libya and Malta for the submiiion to the lntemational Court of Justice of a Continental Shelf Dispute, 23 May 1976, international Legal Materials, Vol XXI, 1982, p 971. In 1981, the ICJ rejected a Maltese application for permission to intervene in the Tunisia-Libya case (ICJ Reports 7987, p 3).

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Also the Court is further requested to clarify the practical method for the application of these principles and rules in this specific situation, so as to enable the experts of the two countries to delimit these areas without any difficulties.8 Under

Article

2, it was agreed

that:

Following the delivery of the Judgment of the Court, the two parties shall meet to apply these principles and rules in order to determine the line of delimitation of the area of the continental shelf appertaining to each of the two countries, with a view to the conclusion of a treaty in this respect.9 Article

3 supplemented

Article

2 by providing

that:

In case the agreement mentioned in Article 2 is not reached within a period of three months, renewable by mutual agreement from the date of delivery of the Court’s Judgment, the two Parties shall together go back to the Court and request any explanations or clarifications which would facilitate the task of the two delegations to arrive at the line separating the two areas of the continental shelf, and the two Parties shall comply with the Judgment of the Court and with its explanations and clarifications. lo As the ICJ remarked in its Judgment, ‘the present case would seem to lie between the North Sea Continental Shelfcases of 1969, in which the Court was asked only to indicate what principles and rules of international law were applicable to the delimitation, and the France-British Arbitration on the Delimitation of the Continental Shelf of 1977, in which the court of arbitration was requested to decide what was the course of the boundary between the portions of the continental shelf appertaining to each of the Parties in the relevant area’. l1 The area in which the continental shelf delimitation has to be effected is shown in Figure 1. Very broadly, it is the area to the north of the coast on either side of Ras Ajdir, bounded to the west by the Tunisian coast. Also shown on the map is the delimitation of the continental shelf between Tunisia and Italy. Drawn following an Agreement of 20 August 1971,l* this line is basically a median line but incorporates departures from the equidistant line to take into account the Italian islands of Lampione, Lampedusa, Linosa and Pantelleria. Neither Libya nor Tunisia has made any delimitation agreement with Malta, although an agreement to submit the Libya-Malta dispute to the ICJ entered into force on 20 March 1982.‘3

The applicable law In evaluating development delimitation,

the contribution which the ICJ’s Judgment may make to the or clarification of the general law on continental shelf it is necessary to consider whether that Judgment is ren-

MARINE

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on the basis of general international law or on the basis of lex specialis agreed to by the parties. As has been seen, Article 1 of the Special Agreement required the ICJ ‘to take its decision according to’ three factors; (1) equitable principles, (2) the relevant circumstances which characterize the area, and (3) the new accepted trends in the Third Conference on the Law of the Sea. The ICJ took the view that the first two of these factors were ‘in complete harmony with the jurisprudence of the Court . . .‘.14 As was clear from its North Sea Continental Shelf Judgment, international law required delimitation to be effected ‘in accordance with equitable principles and taking account of all the relevant circumstances’. l5 As regards the third factor, the ‘new accepted trends’ in UNCLOS III, the position taken by the ICJ may be summarized as follows: dered

0

0

0

the ICJ would in any event,proprio mom, have had to take account of any provision of the UNCLOS III Draft Convention which it found to be binding upon all members of the international community because it embodied or crystallized a pre-existing or emergent rule of customary law;16 the parties did not intend to go so far as to impose additional rules on themselves as les specialis;” the ICJ referred to the Tunisian reply to a question put to the parties by a Member of the Court, whereby it was indicated that the ‘trends’, so far as they did not constitute general international law, were to be taken into account as ‘factors in the interpretation of the existing rules’.18

In a later passage,*9 the ICJ noted that the parties themselves, in requesting the ICJ to take account of these accepted trends, did not consider themselves as authorizing the ICJ to regard these trends as being necessarily principles and rules of general international law. The ICJ had therefore to ascertain how the parties themselves identified the trends which they regarded as having been accepted. It found that the parties both referred in this connection to the criteria which had been formulated by UNCLOS III in order to determine whether a proposed provision should be incorporated in the Informal Composite Negotiating Text and, later, the Draft Convention. 20 It would follow, of course, that any provision of the Draft Convention would fall within this category. However, it has to be noted that, to any extent to which the ICJ may have considered or applied any such provision which is not part of general international law, it would be subject to the ICJ’s proviso that: Wudgment, p 37(23). -Ibid. Wudgment. p 38(24). Tbid. la/bid. Wudgment, p 47(46). 2% accordance with a Conference decision recorded in Paragraphs IO and I I of Document AKONF. 62/62,30 April 1978 (Official Records, Vol X, 1979, p 6) no revi-

any consideration and conclusion of the Court in connection with the application of the ‘trends’ is confined exclusively to the legal relations of the parties in the

present case.*’

The

natural

prolongation

One of the so-called

sion of the CNT was to be made unless, for the delimitation’

infer &a, it had been presented to the Plenarv and found, from the widespread

and

SUCK

SWPOrt prevaili’

to

be

‘principles and rules of international law applicable of the continental shelf in this case was found by the

that:

in the area relevant for the delimitation

Plenary, to offer a substantially improved prospect of a consensus. %/udgment, p 38(24). ZZJudgmenf, p 92.

MARINE POLICY July 1983

ICJ

dare

constitutes a single continental

shelf as the

natural prolongation of the land territory of both Parties, so that in the present case, no criterion for delimitation of shelf areas can be derived from the principle of natural prolongation as such [emphasis added].**

The Tunisia-Libya

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Though arrived at behind an appropriately dignifying smokescreen, this conclusion may perhaps be taken as welcome confirmation that the ICJ has now recognized that there was no foundation for the dictum in its 1969 Judgment attributing fundamental importance to the concept of natural prolongation as a basis of continental shelf delimitation between neighbouring states. 23 Given the disproportion between the importance attached to the natural prolongation argument in the pleadings and its impact upon the Judgment, it may well be of practical interest to those called upon to advise on similar disputes to contemplate the ICI’s reasoning on this aspect of the case. The ICJ began by noting that the parties both regarded as a major criterion for continental shelf delimitation the ‘fundamental concept of the continental shelf as being the natural prolongation of the land domain’24 and that they shared the view that, as in the North Sea Conrinental Shelf cases, the delimitation in the present case had to be effected: by agreement in accordance with equitable principles, and taking account of all the relevant circumstances, in such a way as to leave as much as possible to each Party all those parts of the continental shelf that constitute a natural prolongation of its land territory into and under the sea, without encroachment on the natural prolongation of the land territory of the other.25 Reflecting this shared view, the pleadings very largely took the form of a barrage of scientific facts and legal arguments concerning the nature of the Pelagian Block as the natural prolongation of the land domain of the two parties. Never have so many words been written or spoken to such little effect. The ICJ’s response was to provide a less than convincing apologia for discarding the fundamental prolongation doctrine as being irrelevant to the particular circumstances of this case. After examining the attitudes of the parties in relation to natural prolongation, the ICJ proceeded to entangle the doctrine in a network of qualifications. First, it distinguished the geographical and other physical circumstances of the North Sea Continental SheZf cases from those of the present case.26 Second, the ICJ described its position as follows:

23For a critical analysis of the ICJ’s 1969 Judgment, characterizing the national prolongation rule as the most fundamental of all the rules of law relating to the continental shelf. see E.D. Brown. The Leaal Reaime of Hydrkspace, Stevens & S&s, L&don, 1971, pp 32-34 and 49-50. See also E.D. Brown, ‘The Analo-French Continental Shelf Case’, San biego Law Review, Vol 16. No 3. 1979. D 461. KID473-477. See to&, however, the ICJ’s’r&trictive gloss on its earlier dictum in Judgment, p 46(44) and Judge Jimenez de Arechaga’s view on ‘The real meaning of “natural prolongation” in the 1969 Judgment’, ICJ Reports 7982, p 18, p 116. Z4Judgment, p 43(36). 25Judgment, p 43(37). 26Judgmenf, p 46(43). Vbid. 2sJudgment, p 46(44).

The Court also attributed to that concept a certain role in the delimitation of shelf areas, in cases in which the geographical situation made it appropriate to do so. But while the idea of the natural prolongation of the land territory defined, in general terms, the physical object or location of the rights of the coastal State, it would not necessarily be sufficient, or even appropriate, in itself to determine the precise extent of the rights of one State in relation to those of a neigbbouring State.27 Third,

the ICJ pointed

out that in 1969 it:

did not regard an equitable delimitation and a determination of the limits of “natural prolongation” as synonymous, since in the operative clause of its Judgment, just quoted, it referred only to the delimitation being effected in such a way as to leave “as much as possible” to each party the shelf areas constituting its natural prolongation.28 The ICJ’s passage :

present

view is perhaps

best summed

up in the following

The satisfaction of equitable principles is, in the delimitation process, of cardinal importance, as the Court will show later in this Judgment, and identification of natural prolongation may, where the geographical circumstances are appropriate, have an important role to play in defining an equitable delimitation, in view of its significance as the justification of continental shelf rights in some cases; but the

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two considerations the natural added].29

- the satisfying of equitable principles and the identification of prolongation - are not to be placed on a plane of equality [emphasis

The ICJ next proceeded to identify the ‘new and accepted trends’ in UNCLOS III which might throw light on the relevance of the natural prolongation doctrine to the present dispute. In the course of examining the definition of the continental shelf in Article 76(l) of the Draft Convention, the ICJ noted that: The principle that the natural prolongation of the coastal State is a basis of its legal title to continental shelf rights does not in the present case, as explained above, necessarily provide criteria applicable to the delimitation of the areas appertaining to adjacent States. In so far as Article 76, paragraph 1, of the draft convention repeats this principle, it introduces no new element and does not therefore call for further consideration.30 Since paragraph 10 of this draft article clearly stated that the provisions of Article 76 were ‘without prejudice to the question of the delimitation of the continental shelf between States with opposite or adjacent coasts’, the ICJ’s conclusion is unsurprising: ‘The definition in Article 76, paragraph 1, therefore affords no criteria for delimitation in the present case’. 31 The ICJ next turned to Article 83( 1) of the Draft Convention, the text of which is quoted above.32 Noting that the new text excluded any indication of a specific criterion which could give guidance to the interested states in their effort to achieve an equitable solution, the ICJ concluded that this provision ‘does not affect the role of the concept of natural prolongation in this domain’.33 Thus ended the ICJ’s analysis of the concept of natural prolongation. In its own words, ‘Having thus set the concept of delimitation by identification of natural prolongation in what [it considered] to be its proper it could then proceed to an examination of the contentions perspective’,34 of the parties as to its application in this case. The ICJ’s examination of this aspect of the parties’ arguments falls into two parts, dealing with the geology of the area and its geomorphology and bathymetry respectively. So far as geology is concerned, it will suffice to state the ICJ’s conclusion: The conclusion which, in the Court’s view, has ineluctably to be drawn from this analysis is that, despite the confident assertions of the geologists on both sides that a given area is “an evident prolongation” or “the real prolongation” of the one or the other State, for legal purposes, it is not possible to define the areas of continental shelf appertaining to Tunisia and to Libya by reference solely or mainly to geological considerations. The function of this Court is to make use of geology only so far as required for the application of international law. It is of the view that what must be taken into account in the delimitation of shelf areas are the physical circumstances as they are today; that just as it is the geographical configuration of the present-day coasts, so also it is the present-day sea-bed, which must be considered. It is the outcome, not the evolution in the long-distant past, which is of importance.35

Wudgment, p 47(44). Wudgment, p 48(49). 31Judgment, p 49(49). 3*Followinq Ref 5 in the main text. Wudgmeh, p 49(59). 34Judgment, p 49(U). 35Judgment, pp X3-54(61 ).

MARINE POLICY July 1983

Nor was the geomorphological evidence found to be any more helpful in enabling the ICJ to identify the division between the natural prolongations of the two states. The ICJ’s new attitude to natural prolongation is particularly well reflected in the following passage which relates to Tunisia’s geomorphological natural prolongation argument: As for the features

relied on by Tunisia,

the Court,

while not accepting

that the

147

The Tunisia-Libya continental shelf case relative size and importance of these features can be reduced to such insubstantial proportions as counsel for Libya suggest, is unable to find that any of them involve such a marked disruption or discontinuance of the sea-bed as to constitute an indisputable indication of the limits of two separate continental shelves, or two separate natural prolongations. As was noted in argument, so substantial a feature as the Hurd Deep was not attributed such a significance in the France-British Arbitration of 1977 concerning the Delimitation of the Continental Shelf. The only feature of any substantial relevance is the Tripolitanian Furrow; but that submarine valley does not display any really marked relief until it has run considerably further to the east than the area relevant to the delimitation . . . Nor does any geographical evidence as to the direction of any “natural prolongation” assist in determining the boundaries thereof, however relevant it may be as a

circumstance

to be taken into account from the viewpoint of equity.36

The way was thus cleared for the ICJ’s total rejection this case of the natural prolongation doctrine:

of the relevance

in

The submarine area of the Pelagian Block which constitutes the natural prolongation of Libya substantially coincides with an area which constitutes the natural submarine extension of Tunisia. Which parts of the submarine area appertain to Libya and which to Tunisia can therefore not be determined by criteria provided by a determination of how far the natural prolongation of one of the Parties extends in relation to the natural prolongation of the other. In the present case, in which Libya and Tunisia both derive continental shelf title from a natural prolongation common to both territories, the ascertainment of the extent of the areas of shelf appertaining to each State must he governed by criteria of international law other than those taken from physical features.3’

While it is of course true that the ICJ rejected the natural prolongation doctrine only in relation to the physical circumstances of this case, it must be said that these circumstances are typical of those to be found off the coasts of adjacent neighbouring states. The ICJ’s attempt to distinguish between the ‘geographical and other physical circumstances’ of the North Sea Continental Shelf cases, in which the natural prolongation doctrine had been propounded, and the area of the Pelagian Block in the present case, in which the natural prolongation doctrine had been rejected, is unconvincing. The two cases are of course different but the nature of the difference hardly explains the applicability of the natural prolongation doctrine in the one case and not in the other.38

Equitable principles

Wudgment, p 57(66). 37Judgment, p X3(67). %ee, however, passages from Judgment and Judge Jimknez de Arbchaga’s Separate Opinion cited in Ref 23. Y/udgment, p 58(69). Wudgment, p 59(70). 41See further works cited in Ref 23.

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The ICJ noted that in their arguments the parties had dealt with the meaning and significance of equitable principles in close relationship with the principle of natural prolongation and had devoted less attention to the question of what the equitable principles to be taken into account were.39 Emphasizing the ‘primordial importance’ of equitable principles in the delimitation of the continental shelf, the ICJ accordingly felt obliged to ‘examine what such principles entail, divorced from the concept of natural prolongation . . .‘.40 As has been seen, Article 83(l) of the UN Convention stipulates as the objective of delimitation the attainment of ‘an equitable solution’. The origins of this formulation are of course traceable to the Court’s Judgment in the North Sea Continental Shelf cases41 Now that the ICJ has, if anything, placed even greater emphasis on the ‘primordial importance’ of equitable principles in this context, it is clearly of great importance for the resolution of future disputes that the scope and meaning of these prinMARINE POLICY July 1983

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ciples should be as clear as possible. There was therefore a heavy onus on the ICJ to make its views very clear on this aspect of its decision. Judged in this context, it cannot be said that the relevant passages of the decision are very helpful. The meaning of ‘equitable principles’, as understood by the ICJ, must be sought in its examination of the concept in paragraphs 70 and 71 of its Judgment. They embody a number of propositions: (1) The result of the application of equitable principles must be equitable. It is the result which is predominant; the principles are subordinate to the goal. The equitableness of a principle must be assessed in the light of its usefulness for the purpose of arriving at an equitable result. The principles to be indicated by the Court have to be selected according to their appropriateness for reaching an equitable result. The term ‘equitable principles’ cannot be interpreted in the abstract; it refers back to the principles and rules which may be appropriate in order to achieve an equitable result. (2) Equity as a legal concept is a direct emanation of the idea of justice. The legal concept of equity is a general principle directly applicable as law., The Court is bound to apply it. When applying positive international law, the Court may choose among several possible interpretations of the law the one which appears, in the light of the circumstances of the case, to be closest to the requirements of justice. (3) Application of equitable principles is to be distinguished from a decision ex aequo et bono. In deciding a case ex aequo et bono, the Court is ‘freed from the strict application of legal rules in order to bring about an appropriate settlement. The task of the Court in the present case is quite different: it is bound to apply equitable principles as part of international law, and to balance up the various considerations which it regards as relevant in order to produce an equitable result. While it is clear that no rigid rules exist as to the exact weight to be attached to each element in the case, this is very far from being an exercise of discretion or conciliation; nor is it an operation of distributive justice’.42

Wudgment,

p 60(71).

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What is the impartial observer to make of these propositions? The principles to be applied have to be chosen by reference to their appropriateness for achieving an equitable result. But what is an equitable result? Apparently, it is one arrived at by applying equity, a direct emanation of the idea of justice, as a directly applicable general principle of law. This offers little guidance as to the meaning of equity; nor is it of any further assistance to instruct the judge, when choosing among several possible interpretations of positive international law, to select the one which appears to be closest to the requirements of justice. The Court’s attempt to clarify the meaning of equitable principles by distinguishing them from the notion of a decision ex aequo et bono is no more successful. First of all, it hardly seems apt to say that, in giving a decision ex aequo et bono, the Court is ‘freed from the strict application of legal rules’ [emphasis added]. It would have been more accurate to say that the Court may depart from the law (whether strictly or equitably interpreted) in order to arrive at a fair result which application of the law would deny. More importantly, however, the ICJ is exceedingly vague in describing what is involved in applying equitable principles as part of international law. It said that the process is not an exercise of discretion or conciliation; nor is it an operation of distributive justice. What it Is, is less clear. The 149

The Tunisia-Libya

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shelf case

ICJ has ‘to balance up the various considerations which it regards as relevant in order to produce an equitable result’, but no rigid rules exist as to the exact weight to be attached to each element in the case. It would be difficult to draft a formula which gave greater discretion to a court and equally hard to identify the characteristics of this process which could be claimed to distinguish it from the process of giving a decision ex aequo et bono.

Relevant circumstances Starting from the equitable in any stances’,43 the ICJ taken into account

premise that ‘It is clear that what is reasonable and given case must depend on its particular circumwent on to identify the relevant circumstances to be in achieving an equitable delimitation in this case.

(1) Geographical

and geomorphological

The area relevant to the delimitation. circumstance as follows:

circumstances

The ICJ described

the first relevant

the fact that the area relevant to the delimitation in the present case is bounded by the Tunisian coast from Ras Ajdir to Ras Kaboudia and the Libyan coast from Ras Ajdir to Ras Tajoura and by the parallel of latitude passing through Ras Kaboudia and the meridian passing through Ras Tajoura, the rights of third States being reserved;@ The reasoning behind this finding is set out in Paragraphs 72-75 of the Judgment. In essence, the ICJ sought to identify as the area relevant to the decision those parts of the continental shelf which could be considered as lying either off the Tunisian or off the Libyan coast. However, the whole of the coast of each party was not to be taken into account for this purpose, but only those parts the submarine extension of which would result in an overlap with the submarine extension of the coast of the other party. On this basis the ICJ excluded from the relevant area the seabed areas off the Tunisian coast north of Ras Kaboudia and those off the Libyan coast east of Ras Tajoura. The general configuration of the coasts. The second relevant identified by the ICJ was: the general configuration change in direction Kaboudia.45

43Judgment, p 60(72). 44Judgment, p 93(B (1)). 45Judgment, p 93(B (2)). 46Judgmenr, p 62(76). 47Judgment, p 63(78). 4*See main text below, following Ref 101.

circumstance

of the coasts of the Parties, and in particular the marked

of the Tunisian

coastline

between

Ras Ajdir

and Ras

Both parties referred in their pleadings to a number of elements relevant to the factor identified by the ICJ in the North Sea Continental Shelf cases as ‘the general configuration of the coasts of the Parties, as well as the presence of any special or unusual features’.46 Apart from the relevance of islands (discussed below), the ICJ referred to only one legally significant aspect of the configuration of the coastline. According to the ICJ: ‘The change in direction [of the Tunisian coastline between Ras Ajdir and Ras Kaboudia] may be said to modify the situation of lateral adjacency of the two States, even though it clearly does not go so far as to place them in a position of legally opposite States’.aTTbe significance for the Judgment of this finding will be apparent later.48 Islands

as relevant

circumstances.

The third

relevant

MARINE

circumstance,

as

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perceived by the ICJ, was the existence and position of the Kerkennah Islands.49 Among the islands, islets and low-tide elevations referred to in the Tunisian submissions, the ICJ considered that only the island of Jerba and the Kerkennah Islands deserved consideration as possible relevant circumstances. In the event, however, it excluded Jerba because other considerations prevailed over the effect of its presence. However, the existence and position of the Kerkennah Islands and surrounding low tide elevations were considered to be material.50

Geomorphological configurations. As was indicated above,51 in holding that there were no geomorphological features of the Pelagian Block which could be regarded as amounting to an interruption of the continuity of the continental shelf or of the natural prolongation of one party with regard to that of the other, the ICJ reserved for later consideration the question of whether any such feature might nonetheless constitute ‘a relevant circumstance characterising the area’.52 The ICJ returned to the question in Paragraph 80 of its Judgment but came to the conclusion that the principal feature which could be taken into consideration as a relevant circumstance - the Tripolitanian Furrows3 - was not an element appropriate ‘for inclusion among the factors to be balanced up with a view to equitable delimitation’.54 (2)

T/udgment, p 93(B (3)). Wudgment. p 64(79). 51Main text above, at Ref 36. 52Judgment, p 58(68). 53Described in Judgment pp 41 (32) and 57(66). For Tunisian argument based on this feature, see Judgment, pp ~6-56 (6%

64) and, for the tWs

Judgment, p Wudgment, 55Judgment, Wbid. Vbid. 5%/udgment, Vbid.

57(66). p 64(90). p 42(33).

p 91(130).

The existence and interests of other states in the area

In considering the scope of the area relevant for the delimitation, the ICJ noted that ‘the presence of the territories of other States, including the Pelagian Islands, and Pantelleria, belonging to the Pelagian Block and abutting on the Pelagian Sea must not be lost sight of .55 Again, it was acknowledged that the northern and north-eastern parts of the Pelagian Block, where conflicting claims of the parties existed, were situated in a region where claims of other states regarding the same areas had been made or might be made in the future. 56 The ICJ recognized that it had ‘no jurisdiction to deal with such problems in the present case and must not prejudge their solution in the future’.57 For this reason it wasimpossible for the ICJ to determine how far the line of delimitation would extend north-eastwards. That would depend upon the delimitations ultimately agreed with third states.5s The rights of third states were in a sense ignored by the ICJ in assessing the proportionality betwen length of coast and area of continental shelf of the parties. For this purpose only, the ICJ worked on the hypothesis that the whole of the area relevant to the delimitation was being divided by the delimitation line between Tunisia and Libya. However, this approach was adopted simply to allow the ICJ to apply the proportionality criterion and was without prejudice to the rights of third states in parts of the area.s9

(3) Intersection of land frontier and coastline

The ICJ examined the history of the land boundary between the two rejection Of it. states and had no difficulty in identfying as a ‘relevant circumstance’ a Convention of 1910 which established the boundary line now fully accepted by both sides. The parties and the ICJ were in agreement in recognizing Ras Ajdir, the coastal terminus of this boundary, as a basic point of reference for the delimitation of the shelf. In the ICJ’s view, the relevance of Ras Ajdir was underlined by the fact that it was the starting

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point in past endeavours certain partial maritime consider.60

(4)

‘Alleged maritime

by the parties to establish by unilateral claims delimitations which the ICJ then proceeded to

limits’

The first of the ‘alleged maritime limits resulting from the conduct of the States concerned’ was the ZV (Zknith vertical) 45” line, north-east from Ras Ajdir, claimed by Tunisia as limiting the zone of its historic rights over sedentary and other fisheries from time immemorial. However, the ICJ regarded this as a unilateral claim and found no basis for rendering the line opposable to Libya, even as a mere inchoate maritime boundary. 61 The second line considered by the ICJ was found to be equally irrelevant for the purposes of the Judgment. This was the line running due north from Ras Ajdir based on Libya’s petroleum legislation. Like the Tunisian ZV line, this boundary was based on unilateral acts not opposable to the other party.62 The third line drawn from Ras Ajdir originated in a proposal made by Italy in 1914 for a delimitation line between Libyan and Tunisian spongebanks. The line was to be drawn perpendicular to the coast at the border point. Both parties recognized before the ICJ that a defacto compromise or provisional solution had been achieved by means of a buffer zone centred on this line, which was described as on ‘the approximate bearing north-north-east from Ras Ajdir’.63 Though the ICJ found that the evidence fell short of proving the existence of a recognized maritime boundary between the two parties it nevertheless held that, ‘in view of the absence of agreed and clearly specified maritime boundaries, the respect for the tacit modus vivendi, which was never formally contested by either side throughout a long period of time, could warrant its acceptance as a historical justification for the choice of the method for the delimitation of the continental shelf between the two States, to the extent that the historic rights claimed by Tunisia could not in any event be opposable to Libya east of the modus vivendi line’.64 The fourth line, a critically important line in the ICJ’s opinion, calls for consideration in much greater detail. It is described in Paragraph 96 of the Judgment as: a defucto line from Ras Ajdir at an angle of some 26” east of north, which was the result of the manner in which both Parties initially granted concessions for offshore exploration and exploitation of oil and gas. This line of adjoining concessions, which was tacitly respected for a number of years, and which approximately corresponds furthermore to the line perpendicular to the coast at the frontier point which had in the past been observed as a de facto maritime limit, does appear to the Court to constitute a circumstance of great relevance for the delimitation.

6oJudgment, pp 6%8f3(82-88). 61./udgment, pp 87-88(88-90). 6*Judgment, pp 88-89(91-92). 63Judgment, pp 88(88) and 70(93). -Judgment, pp 70-71(95). 65Judgment, pp So-Sl(ll3) and 83-88 (117-121).

152

The practice of the parties relating to this alleged defacto maritime limit is referred to in more detail in other parts of the JudgmenF and may be summarized as follows. Between 1955 and 1977 (the date of the Special Agreement submitting the dispute to the ICJ), the parties adopted petroleum licensing legislation and granted successive petroleum concessions under this legislation. The ICJ placed particular emphasis on the relationship between these concessions and the 26” line from Ras Ajdir. Thus, it referred to a Tunisian concession of 1966 bounded to the east by a ‘stepped line’, the MARINE POLICY July 1983

The Tunisia-Libya

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eastern angles of which ‘lay on a straight line at a bearing of approxiSimilarly, the ICJ cited the Libyan mately 26” to the meridian’.66 concession No 137 of 1968 and subsequent Libyan concessions, all of which were bounded to the west by the 26” line, described as a line which ‘followed the direction of the Tunisian concessions’.67 It was this practice which enabled the ICJ to say that: ‘The result was the appearance on the map of a defucro line dividing concession areas which were the subject of active claims, in the sense that exploration activities were authorised by one Party, without interference, or (until 1976) protests by the other’.68 The ICJ drew attention too to what it saw as the ‘further relevant circumstance’ that the 26” line was ‘neither arbitrary nor without precedent in the relations between the two States’.69 In this connection, it referred to the third line mentioned above, drawn perpendicular to the coast (at approximately 26”) and, rather scraping the barrel, to the fact that the International Law Commission’s Committee of Experts had, in 1953, examined perpendicular lines and the seaward continuation of the direction of the land frontier as methods of delimitation of the territorial sea!‘O It will be noted that the period of concessions practice relied upon to emphasize the importance of the 26” line is the ten-year period 1966 to 1976. It must be observed too that there were a number of material factors which detracted from the significance of this practice. First, as late as 1972, a Tunisian concession was granted simply by reference to an unspecified ‘maritime boundary between Tunisia and Libya’.‘l Second, Tunisia’s continental shelf claim (as distinct from the boundaries of concessions granted) extended as far as the ZV 45” line and in 1974 Tunisia adopted as the south-eastern boundary of its concessions ‘the in conformity with the principles of equidistance line . . . determined international law pending an agreement between Tunisia and Libya defining the limit of their respective jurisdictions over the continental shelf .‘* Third, Libya, on the one hand, emphasized that the defucto 26” line between the concessions was ‘at no time accepted by Libya as the legal line of delimitation’73 and, on the other, claimed sovereign rights as far west as the meridian of Ras Ajdir. 74 Finally, a concession granted by Libya in 1974 created an overlap of claims in an area some 50 miles from the coast, despite the fact that it followed the 26” line. Protests from each government at the activities of the other followed in 1976 and again following submission of the dispute to the ICJ. ‘5 (5) Historic rights claimed by Tunisia 66Judgment, p 83( 117). 67Judamenr. DD . . 63-641117). Vbidy 69Judgmenr, p 84( 119) ‘O/bid. On the role played by the Committee of Experts, see E.D. Brown, The Legal Regime of Hydrospace, op cir, Ref 23, pp 52-54. ‘lJudgmenr, p 35(21). Vbid. As regards the ZV 45” line, see extract from Tunisia’s written pleadings in Judgment, p 26 and the ICJ’s acknowledgment of this claim at p 84(117). 73Judgmenr, p 84(118). 74Judgmenr, p &I(1 17). 7sJudgmenr, p 37(21). 76Judgmenr, p 75( 102). “Judgment, pp 76-77(105). I

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The ICJ examined the possible relevance of Tunisia’s claim to historic rights in the area, but in the circumstances of the case held them to be irrelevant to the delimitation to be effected.‘” Thus, since the method of delimitation adopted by the ICJ left Tunisia in full possession of the area in which historic rights were claimed, there was no need for the ICJ to take account of them.” Again, as was noted above, the ICJ rejected Tunisia’s claim - based in part on a historic rights argument - to the ZV 45” line. Finally, the ICJ found it unnecessary to pass on the question of historic rights as justification for the straight baselines claimed by Tunisia. It held that, in this case, the calculation of the degree of proportionality which existed between the areas of the continental shelf appertaining to the parties and the length of their coastlines should be made on the basis of the area of the whole seabed (including internal waters and territorial sea) over which the parties enjoyed ‘sovereign

153

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rights for the purpose There was, therefore, claimed baselines. ‘8

of exploring and exploiting its natural resources’. no need to consider the validity of Tunisia’s

(6) Economic considerations The economic factors urged upon the ICJ as relevant circumstances fell into two categories. The first included the two considerations invoked by Tunisia, its relative poverty vis-&vis Libya in terms of natural resources such as agriculture and minerals, and the economic importance to the survival of the country of the fishing resources derived from its claimed historic rights. Fortunately, the ICJ ruled that: ‘They are virtually extraneous factors since they are variables which unpredictable national fortune or calamity . . . might at any time cause to tilt the scale one way or the other’.79 They could not, therefore, be taken into account. As regards the second category, ‘the presence or absence of oil or gas in the oil-wells in the continental shelf areas appertaining to either Party’,*0 the ICJ was ready to admit that: it may, depending on the facts, be an element to be taken into account in the process of weighing all relevant factors to achieve an equitable result.*l How exactly and quantity

one is to determine at the time of delimitation the presence of oil or gas in the area concerned is not indicated.

Practical method Having examined the applicable principles and rules of international and identified the relevant circumstances to be taken into account, ICJ next turned to the second part of its task, the clarification of practical method for the application of those principles and rules in specific case.

law the the this

The equidistance method Before considering the methods of delimitation discussed by the parties, the ICJ made some observations on ‘the equidistance method’. In effect, the ICJ simply reaffirmed the opinion it had expressed in its 1969 Judgment in the North Sea Continental Shelf cases.82 Its view, as expressed in Paragraphs 109 and 110 of the 1982 Judgment, may be summarized as follows: l 0 0 0

78Judgment, p 76( 104). 79Judgment, p 77( 107). 80Judgment, p 77( 106). 81Judament. DD 77-78(107). See- ICJ kk;oorts 1469, 53(101).

154

0

pp

46(83) and

0

The equidistance method of delimitation is not prescribed by a mandatory rule of customary law. This method has merits in cases in which its application leads to an equitable solution. Post-1969 practice shows that the equidistance method has been employed in a number of cases. However, it also shows that states may deviate from an equidistance line and have made use of other criteria for the delimitation, whenever they found this a better way to arrive at an agreement. ‘Treaty practice, as well as the history of Article 83 of the draft convention on the Law of the Sea, leads to the conclusion that equidistance may be applied if it leads to an equitable solution; if not, other methods should be employed’. Equidistance being neither a mandatory legal principle nor a method

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The Tunisia-Libya

0

%ee E.D. Brown, The Legal Regime of Hydrospace, op cit. Ref 23, Chapter 2, especially at pp 61-62, 70-71 and Appendix on ‘Equidistance - principle and method’. W-hat is from the date of the Truman Proclamation to that of the Judgment in the North Sea Continental Shelf c&es. 85For an analysis of ‘special circums&nces’, see E.D. Brown, The Legal Regime of Hydrospace, op cit. Ref 23, pp 62-71. 860p cit. Fief 3.

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having some privileged legal status in relation to other methods, a finding by the ICJ in favour of a delimitation by an equidistance line could only be based on considerations derived from an evaluation of all relevant circumstances. The ICJ emphasized the lack of any ‘privileged status’ attached to equidistance by stating that it was not required in this case ‘as a first step, to examine the effects of a delimitation by application of the equidistance method, and to reject that method in favour of some other only if it considers the results of an equidistance line to be inequitable’.

The ICJ’s attitude to the equidistance method, as reflected in these paragraphs of its 1982 Judgment, is open to precisely the same criticism as was levelled against its 1969 Judgment in the North Sea Continental Shelf cases. Reference must be made to another work for the full argumenta but, in outline, the case against the ICJ’s view is as follows. It is submitted that a survey of the record between 1945 and 196984 amply verifies that in the course of a development over nearly a quarter of a century, the rules expressed in Article 6(2) of the 1958 Geneva Convention on the Continental Shelf attained the status of international customary law. Two points have to be emphasized, however. First, in view of the fact that both the German pleadings in the North Sea Continental Shelf cases and the ICJ’s Judgment in that case concentrated on the question of whether the evidence sufficed to prove the existence of the equidistance rzde, it is necessary to emphasize that Article 6(2) contains three elements - agreement, equidistance and special circumstances. It is submitted that, by 1969, the latter two elements had been accepted in state practice as being the rules the application of which would ensure that, failing agreement between the parties, a delimitation would be carried out in accordance with the ‘equitable principles’ referred to in the Truman Proclamation. Second, the assertion is not that state practice since 1958 (or 1964, when the Convention entered into force) transformed the conventional rules into rules of international customary law, but rather that, as a result of a process of refinement and consolidation of which the conclusion of the Convention was a part, the fundamental but vague notions of agreement and equity expressed in the Truman Proclamation were transformed into at least relatively more precise rules. The difference between this conclusion and the ICJ’s 1969 Judgment is crucial, for it can be shown that the concept of special circumstances is much more limited in scope and less open to arbitrary concretization than the general principle of equity as interpreted by the Co~rt.~~ Indeed, it is this writer’s contention that this fundamentally erroneous finding by the ICJ was largely responsible for the difficulties which have bedevilled the law on continental shelf delimitation ever since. The difficulties have been particularly apparent in the Decision of the Court of Arbitration in the Anglo-French Continental Sheffcase,86 in the UNCLOS III proceedings and in the latest Judgment of the ICJ itself. By undermining the role of the equidistance principle in the three-point Geneva formula; by giving undue prominence to the vague notion of equitable principles at the expense of the more limited concept of special circumstances; and by stressing that there is no legal limit to the considerations which states may take into account to ensure the application of equitable principles, the ICJ succeeded only in depriving the law of a 155

The Tunisia-Libya

continentalshelf

case reasonable

quences 0

0

measure of precision and certainty. can be traced back to the ICJ’s findings:

Two important

conse-

The virtual assimilation of special circumstances to ‘factors creative of inequity’ by the Court of Arbitration in the Anglo-French Continental Sheif case$’ and that tribunal’s rejection of the argument that the onus of proof lay upon those alleging special circumstances to prove their existence.88 The extended debate over the rules on delimitation in UNCLOS III, the emergence in the Conference of the ‘equidistance’ and ‘equitable principles’ schools of thought and the eventual production of a totally useless compromise formula in Article 83(l) of the UN Law of the Sea Convention.s9

The tragedy is that the opportunity has now been missed to sweep away this web of vagueness and imprecision. The ICJ’s method Having put the equidistance method in its place and rejected the delimitation methods proposed by the parties, the ICJ then explained the method which in its view would lead to an equitable result. Because of ‘the primordial requirement of achieving an overall equitable result’, the ICJ found it necessary to divide the area to be delimited into two sectors. 9o The ‘relevant circumstances which characterize the area’ called for the area close to the coasts of the parties to be treated differently from the more seaward areas. So far as the area near the coast was concerned, the ICJ started by identifying a ‘circumstance . . . which . . . [it found] to be highly relevant to the determination of the method of delimitation . . .‘91 and by indicating how it served, ‘with the support of other circumstance which the Parties themselves [had] taken into account, to produce an equitable delimitation’.92 This ‘highly relevant’ circumstance was none other than the conduct of the parties in relation to the 26” line which, as was seen above, the ICJ had earlier described as ‘a de facto maritime limit’.93 The ICJ stressed that it was not making a finding of tacit agreement between the parties, nor was it holding that they were debarred by conduct from pressing claims inconsistent with such conduct on some such basis as estoppel. Rather, the aspect to be considered was what method of delimitation would ensure an equitable result. In this context, the ICJ was of the opinion that it was ‘evident that the Court must take into account what87/hid, p 77, paragraph 148, where the ever indicia are available of the line or lines which the Parties themselves Court of Arbitration concluded that ‘the may have considered equitable or acted upon as such - if only as an different ways in which the requirements of solution affecting part only of the area to be delimited’.94 “equitable principles” or the effects of interim “special circumstances” are put reflect The ICJ also identified as relevant criteria to be taken into account in differences of approach and terminology selecting a line of delimitation calculated to ensure an equitable solution rather than of substance’. For a full analy‘the factor of perpendicularity to the coast and the concept of prosis, see, E.D. Brown, ‘The Anglo-French Continental Shelf Case’, San Diego Law longation of the general direction of the land boundary’.95 In the ICJ’s Review, op cit. Ref 23, pp 484-522. view, any margin of disagreement in identifying the line satisfying these 881bid, pp 505-506. would centre round the 26” line. Y%e main text above at Ref 6 and see Ref criteria Accordingly, taking into account the highly relevant conduct of the %udgment, p 82( 114). parties and these complementary criteria, the ICJ came to the conclusion Wudgment, p 83(117). that the practical method to be applied in the more landward sector of the Wudgment, p 82( 113). ?See main text above, following Ref 64. area to be delimited was the construction of a line following the (approxiWudgment, p 84( 118). mately) 26” line previously established de facto by the conduct of the 95Judgment, p 85(120). parties.96 96Judgment, pp 85-86( 121). 156

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The next step was to determine the point on the seaward extension of this 26” line at which the primordial requirement of achieving an equitable result dictated that other relevant circumstances should be taken into consideration in establishing the practical method to be applied in the more seaward sector of the area to be delimited. The parties and the ICJ were at one in recognizing the radical change in the general direction of the Tunisian coastline marked by the Gulf of Gabes as being the most evident geographical feature to be taken into account if the delimitation was to be equitable.9’ Aware that there was great scope for argument among geographers on the question of the point at which the change in direction might properly be said to occur, and mindful too of its duty to indicate a method which would enable the experts to effect the delimitation ‘without any difficulties’,98 the ICJ somewhat arbitrarily decided that the point in question was the most westerly point on the shoreline of the Gulf of Gabes, provisionally identified as 34”10’30” north.99 The point at which the 26” line marking the continental shelf boundary in the landward sector was to terminate was then determined to be the point of its intersection with a parallel of latitude drawn eastwards from the said most westerly point of the Gulf of Gabes (see Figure 2). Finally, the ICJ turned to the construction of the delimitation line in the second, more seaward sector, extending beyond this terminus of the 26” line, and to an indication of ‘the justification and the factors determining its angulation’. loa In the context of this sector, the ICJ - almost reluctantly, it might seem -allowed the equidistance principle to play a minor role. It was noted that an equidistance line, whether drawn on the basis of baselines unilaterally declared by Tunisia or not, would run at a general angulation markedly more east of north than 26”. The ICJ found this to be ‘of material significance’.lol After reiterating that there was no mandatory rule of international customary law requiring delimitation to be on an equidistance basis, the ICJ went on to admit the relevance of the position of an equidistant line as a factor in this case. First, it acknowledged that ‘it should be recognised that it is the virtue - though it may also be the weakness - of the equidistance method to take full account of almost all variations in the relevant coastlines ‘. lo2 The ICJ then recalled its recognition, in its 1969 Judgment, ‘that there was much less difficulty entailed in a general application of the equidistance method in the case of coasts opposite to one another, when the equidistance line becomes a median line, than in the case of adjacent States ‘. lo3 It was thus able to conclude that: The major change in direction undergone by the coast of Tunisia seems to the Court to go some way, though not the whole way, towards transforming the relationship of Libya and Tunisia from that of adjacent States to that of opposite States, and thus to produce a situation in which the position of an equidistance line becomes a factor to be given more weight in the balancing of equitable considerations than would otherwise be the case.lM

97Judgment, p 88( 122). 9BJudgment, p 87(123). 99Judgment, p 87( 124). ‘Wbid. lolJudgment, p 66(126). Wbid. lo3/bid, citing ICJ Reports 1969, pp 36-37. *04Judgment, p 66(126).

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This did not mean, it will be noted, that the remainder of the boundary line was to be constructed on an equidistance basis. It seemed to be saying, rather, that in this context the position of the equidistance line was a factor pointing to the need for the boundary line in the seaward sector to veer in a more easterly direction than the 26” line. However, a method other than equidistance was to be used to construct the line and it was to be a line which, unlike the 26” line, would attribute sufficient 157

The Tunisia-Libya continental shelf case

weight to two relevant circumstances of the area identified by the ICJ: the general change in the direction of the Tunisian coast marked by the Gulf of Gabes and the existence and position of the Kerkennah Islands. lo5 The method adopted by the ICJ and illustrated in Figure 2, may be summarized as follows:

(1) Draw (2)

(3) ‘Wudgrnent, p 88( 127). ‘06Described in Judgment, p 89(129). For its role in Anglo-French case see op tit, Ref 87, pp 472 and 519420.

(4)

a line from the most westerly point of the Gulf of Gabes to Ras Kaboudia. The line at approximately 42” to the meridian expresses the general change in the direction of the Tunisian coast. Draw a line from the same starting point seaward of the Kerkennah Islands at approximately 62” to the meridian. This line takes account of the islands only, though the ICJ recognized the need to take account also of low-tide elevations seaward of the islands. See also (4) below. Acknowledge that excessive weight would be given to the islands if the continental shelf delimitation line was made to veer as far as to 62”, to run parallel to this second line, and therefore adopt a technique which will give only partial effect to the islands. The ICJ considered that the ‘half-effect technique’lo’j would enable it I

100

I 120

I

a

Sicily

’

TUNISIA

K

yYy < ..-. ...:. LIBYA

Figure 2. The ICJ’s method.

158

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continental shelf case

to take into account the position of the islands and the low-tide elevations around them. It accordingly prescribed that a line should be drawn as a bisector of the angle formed by the 42” and 62” lines previously drawn. The continental shelf delimitation line in this more northerly sector was then to be a line drawn parallel to this 52” bisector. lo7

107Judgmenr, p 89( 129). losJudgmenr, p 91(131). lOgDissenting Opinion, ICJ Reports 7982, p 289(180). llOSee main text above, following Ref 83. lllOp cir, Ref 109, p 270(181).

The ICJ ended by testing the delimitation so effected by reference to the proportionality rule and concluded that the result met ‘the requirements of the test of proportionality as an aspect of equity’. lo* It is difficult to disagree with Judge Oda’s view that the line drawn by the ICJ ‘does not exemplify any principle or rule of international law’. lo9 It is, moreover, a very different line from any which could have been drawn in application of the three-point rule referred to above. l*O Some indication of the considerable difference involved is provided by a comparison of Figure 2, illustrating the ICJ method, with Figure 3, illustrating Judge Oda’s application of what he called ‘the qualified equidistance method’. 111

I

.

I

i

I

I‘\\? Sicily

Cope

Bon

Pantcllcria 0

36”

. Lampionc. Rat

Ras

Kaboudia

Li nosa

-b MALTA

Lampedusa

A jdMas-at-Talqa

‘,:

TUNISIA

Figure 3. A qualified equidistance based

on

Judge

Oda’s

line

Dissenting

Opinion. Source: ICJ Reports 1982, p 157, pp 288274.

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.*

_..*

.* LIBYA

159

The Tunisia-Libya continental shelf case

A missed opportunity In an earlier study of the Anglo-French Continental Shelf case, the writer came to the conclusion that the Decision of the Court of Arbitration had, in general, toned down and put a welcome moderating gloss on many of the dicta of the ICJ in the North Sea Continental Shelf cases.“2 In particular, the Court of Arbitration had helped to dispose of the fallacious notion that the concept of natural prolongation was of major relevance to the delimitation of the continental shelf between neighbouring states. Again, the Court of Arbitration had performed a useful service by restrictively reinterpreting the ICJ’s dicta on the ‘proportionality factor’ and on there being no legal limit to the considerations that might be taken into account to ensure the application of equitable principles. It was regretted that the Court of Arbitration had seen fit to go a considerable way towards identifying ‘special circumstances’ in the meaning of Article 6 of the Geneva Convention with the ‘equitable factors’ identified by the ICJ in the North Sea Continental Shelf cases. Nor did it appear that the Court of Arbitration’s view of the status of the equidistance rule and of the burden of proof of special circumstances was well-founded. Nonetheless, overall, the decision marked a distinct step forward in the clarification and development of the rules of international law governing the delimitation of the continental shelf between neighbouring states. Viewed against this background and in the light of the need for authoritative guidance on the interpretation of Article 83(l) of the new LOS Convention, the Judgment in the Tunisia-Libya case is a considerable disappointment. As has been seen, the ICJ’s object in this case was to lay down the applicable principles and rules of international law and the method for their application to the delimitation in the case before it. In the paragraph of its Judgment immediately preceding the dispositif, the ICJ noted that, in reaching this objective, it had: recalled the historic evolution of the concept of continental shelf, from its inception in the Truman Proclamation of 28 September 1945, through the Geneva Convention of 1958, through the North Sea Continental Shelf caSes and subsequent jurisprudence, up to the draft convention of the Third Law of the Sea Conference, and its evolution in State practice, and the Court has endorsed and developed

112E.D. Brown,

‘The Anglo-French

Con-

tinental _..._ ._~ Shelf _ _ Case’. OD ~,~ cit. Ref 23. especially pp 528430. “Vudgment, p 92( 132). 1Vbid.

115/hid.

“6&e main text above at Fief 36. 160

those general principles and rules which have thus been established. I13

Reviewing the analysis of the Judgment presented above, it must be said that the overall impression is one of regression rather than development. It is, of course, true that ‘each continental shelf dispute should be considered and judged on its own merits, having regard to its peculiar circumstances’,114 and it may be granted that: ‘Therefore, no attempt should be made here to overconceptualize the application of the principles and rules relating to the continental shelf.l15 Nonetheless, at a time when there is a crying need for the refinement of these rules, it may well be thought that underconceptualization is the greater sin. There are, of course, some positive elements in the Judgment. The ICJ has to a large extent followed the Court of Arbitrationin the AngloFrench Continental Shelf case in playing down the relevance and role of the natural prolongation doctrine and in declining to attribute importante to such features as the Tripolitanian Furrow. 116Again, the ICJ is to be commended for having firmly ruled that such economic factors as the relative poverty of Tunisia in terms of such natural resources as agri-

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culture and minerals were ‘virtually extraneous factors’l17 and could not be taken into account. Unfortunately, such merits are more than outweighed by the Judgment’s many defects. The most fundamental criticism relates to the ICJ’s failure to clarify the meaning of equitable principles and to keep in mind the need to distinguish clearly between the application of equitable principles and the rendering of a Judgment ex aequo et bono. This weakness was not of course unconnected with the apparently obsessive desire to diminish the usefulness of the equidistance method as a vehicle for reaching an equitable solution. It would no doubt, have been unrealistic to expect the ICJ to depart from its earlier 1969 Judgment and recognize that the three-point formula embodied in Article 6 of the 1958 Geneva Convention still offered a well-tested formula for the attainment of an equitable solution. 118 However the ICJ’s continuing failure to consider that rule as a whole and its devaluation of the equidistance element in it are most regrettable. The ICJ’s failure to refine the meaning of equitable principles was quite fundamental to the approach adopted in the remainder of its Judgment. Although it was called upon to state the ‘principles and rules of international law applicable for the delimitation’, in fact it found only that ‘the delimitation is to be effected in accordance with equitable principles, and taking account of all relevant circumstances’. It was important, therefore, that its identification and evaluation of ‘relevant circumstances’ should be acceptable as being the application of legal rules and not open to criticism as being a quasi-legislative award ex aequo et bono. It is submitted that the Judgment fails this test. It is of course true that, whether one is identifying ‘special circumstances’ justifying a departure from a median-line delimitation, or ascertaining the ‘factors creative of inequity’ to be taken into account as ‘relevant circumstances’, the process entails a degree of subjectivity. There will thus frequently be room for disagreement on, for example, the question of whether a particular coastal configuration exhibits such a degree of abnormality and has such an inequitable effect as to qualify as such a circumstance or factor. However, the feeling of disquiet aroused by this decision is not simply the reflection of a difference of judgment over the significance of such features as ‘the marked change in the direction of the Tunisian coastline’ or the Kerkennah Islands. The principal cause for concern is much more fundamental. It is that the ICJ, having deprived itself of the bearings which a judicious application of the equidistance principle (the three-point rule) would have provided, appeared to be scouring the Pelagian Sea in search of relevant circumstances, apparently without the aid of any objective yardstick by which to measure the relevance of the circumstances concerned. Arbitrariness and unpredictability are everywhere to be seen. Was it necessary at all to identify ‘the area relevant to the delimitation’?ll9 If thought desirable (in order to apply the questionable proportionality doctrinelzO) was it possible, given the still indeterminate claims of other 11T&e main text above at Ref 79. states in the area?lzl In any event, was resort to ‘the arbitrary and *%ee main text above, following Ref 83. artificial use of parallels and meridians ‘122justifiable for this purpose? *%ee main text above at Ref 44. Again, by reference to what yardstick can it possibly be said that the ‘T%z?e further E.D. Brown, ‘The AngloFrench Continental Shelf Case’, op cit. Ref Tunisian coastline constitutes a special circumstance or a factor creative 23, pp 508410. of inequity? The powerful Dissenting Opinion delivered by Judge Gros ‘*Gee main text above, following Ref 44 impresses as being both more closely related to legal principle and more and following Ref 54. ‘22Judge Oda, op tit, Ref 109, p 273(188). in touch with common sense. As he says, ‘. . . the relevant Tunisian MARINE POLICY July 1983

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l*xDissenting Opinion, ICJ Reports 1972, p 149(12). 1z4/CJ Reports 1982, p 99. lz5See main text above, following Ref 60. lz60p cif, Ref 123, p 156(24). Tjee also Judge Gros’s charge that the W’s purported application of equity is in fact an error of law (op tit, Ref 123, p 153(19). 128Judgment, p 92(132).

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coastline is as simple as could be wished, short of being entirely straight, and . . . the few particular features along that coastline do not produce “extraordinary, unreasonable” results’. 123 Judge unnatural or Schwebel’s Separate Opinion, rejecting the ICJ’s finding that only half effect should be given to the Kerkennah Islands, reflects the same misgivings. The ICJ had failed to discharge ‘the burden of demonstrating why granting full effect to the Kerkennahs would result in giving them “excessive weight” ‘. lz4 Excessive subjectivity and the lack of any identifiable connection with legal principle (other than the vague notion of equitable principles as understood by the ICJ) are again evident in the evaluation of the various ‘alleged maritime limits resulting from the conduct’ of the parties. l*5 The fact that it was able to attach such fundamental importance to the conduct of the parties in relation to the 26” line, while failing to recognize the applicability of the equidistance principle, is little short of astonishing. This was, moreover, a crucial finding, since the ICJ’s ‘practical method’ was very much based upon it. It is scarcely surprising that Judge Gros was moved to say that; ‘In seeking equality when the two States are not on the same plane, proportionality in arbitrary calculations, and in ignoring the relevant geographical peculiarities and their effect on the delimitation, the Judgment has strayed into subjectivism’. 126 Decisions of the ICJ perform two functions. They effect a binding settlement of the dispute between the parties in a particular case and they provide a vehicle for the clarification and development of international law more generally. It is, of course, to be regretted that the decision in this case is open to serious criticism as a purported settlement of the dispute on the basis of international law.127 In the wider context, however, there is even greater cause for regret. The ICJ has, it is true, provided an acceptable solution of the dispute. It has enabled the parties to replace uncertainty and discord with certainty and harmony and this is certainly the primary function of binding, third-party settlement. However, that is a service which could equally well have been provided by a tribunal, or the ICJ itself,’ authorized by the parties to play a quasilegislative role and make an award ex aequo et bono. The ICJ has not done a service to the international community by blurring the line between the judicial function and that of non-judicial third-party settlement. The tragedy is that, in its concern to emphasize the ‘primordial importance’ of achieving an equitable solution of the dispute before it and in its anxiety not to ‘overconceptualize ‘,128 the ICJ has missed a golden opportunity to perform the essentially judicial functions of refining and providing a precise statement and clarification of rules which were already vague and general before 1982 but became very much more so with the adoption of Article 83 of the UN Convention on the Law of the Sea.

MARINE POLICY July 1983