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The Tunisia-Libya Continental Shelf Case: Geographic Justice or Judicial Compromise?

Published online by Cambridge University Press:  27 February 2017

Mark B. Feldman
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Extract

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.

Type
Research Article
Information
American Journal of International Law , Volume 77 , Issue 2 , April 1983 , pp. 219 - 238
Copyright
Copyright © American Society of International Law 1983

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References

1 Case Concerning the Continental Shelf (Tunisia/Libyan Arab Jamahiriya), 1982 ICJ Rep. 18, 50, para. 70 (Judgment of Feb. 24), reprinted in 21 ILM 225 (1982) [hereinafter cited as Continental Shelf].

2 North Sea Continental Shelf Cases (Federal Republic of Germany/Denmark; Federal Republic of Germany/Netherlands), 1969 ICJ Rep. 3 (Judgment of Feb. 20) [hereinafter cited as North Sea].

3 Continental Shelf, 1982 ICJ Rep. at 92, para. 133(A)(1).

4 Id. at 60, para. 71.

5 Id., Dissenting Opinion of Judge Gros [hereinafter cited as Gros Dissent] at 129, 153, para. 19; Dissenting Opinion of Judge Oda [hereinafter cited as Oda Dissent] at 157, 157, para. 1; Dissenting Opinion of Judge Evensen at 278, 296, para. 14.

6 Charney, J., A Preliminary Evaluation of the Judgment by the International Court of Justice in the Case Concerning the Continental Shelf (Tunisia / Libyan Arab Jamahiriya) (presented at the annual meeting of the American Society of International Law, Apr. 23, 1982)Google Scholar [hereinafter cited as Charney]; compare Stein, T., The Libyan-Tunisian Continental Shelf Case; The Impact of New Trends in the Law of the Sea on the Delimitation of Maritime Boundaries 5 (also presented at the 1982 ASIL annual meeting, Apr. 23, 1982)Google Scholar [hereinafter cited as Stein].

7 Continental Shelf, 1982 ICJ Rep. at 61, para. 73 (quoting North Sea, 1969 ICJ Rep. at 51, para. 96).

8 Special Agreement between the Republic of Tunisia and the Socialist People’s Libyan Arab Jamahiriya, signed June 10, 1977, quoted in Continental Shelf, 1982 ICJ Rep. at 21, para. 2. Neither state was party to the 1958 Geneva Convention on the Continental Shelf, 15 UST 471, TIAS No. 5578, 499 UNTS 311.

9 Continental Shelf, 1982 ICJ Rep. at 39, para. 27.

10 Ibid., para. 28.

11 Id. at 39–40, paras. 29–30.

12 Id. at 93–94, para. 133(C)(2).

13 Id. at 40, para. 30; Judge Gros was concerned that Libya did not recognize fully the authority of the Court and felt the Court did not go far enough to make clear that “apart from the drawing upon a map of the line already determined, nothing was negotiable in the Judgment.” Id., Gros Dissent at 146, para. 5.

14 Id. at 40, para. 30.

15 Memorial of the Socialist People’s Libyan Arab Jamahiriya, Continental Shelf (Tunisia / Libyan Arab Jamahiriya) 70, Submission 5 (Memorial of May 30, 1980) [hereinafter cited as Libyan Memorial], quoted in Continental Shelf, 1982 ICJ Rep. at 29, para. 15.

16 1 Counter-memorial of the Socialist People’s Libyan Arab Jamahiriya, Continental Shelf (Tunisia / Libyan Arab Jamahiriya) 218, Submission 7 (Counter-memorial of Feb. 2, 1981) [hereinafter cited as Libyan Counter-memorial], quoted in Continental Shelf, 1982 ICJ Rep. at 31, para. 15.

17 Libyan Memorial, supra note 15, at 48, 55, 62, and 65; Libyan Counter-memorial, supra note 16, at 198 and 199.

18 Libyan Memorial, supra note 15, pt. III, ch. II, at 53–66.

19 Reply of the Socialist People’s Libyan Arab Jamahiriya, Continental Shelf (Tunisia / Libyan Arab Jamahiriya) 21–22 (Reply of July 15, 1981) [hereinafter cited as Libyan Reply].

20 1 Memorial of Tunisia, Continental Shelf (Tunisia I Libyan Arab Jamahiriya) 210–11 (Memorial of May 30, 1980) [hereinafter cited as Tunisian Memorial].

21 See, e.g., Continental Shelf, 1982 ICJ Rep. at 73, para. 99.

22 Tunisian Memorial, supra note 20, at 115, 125–27.

23 Id. at 72.

24 Id. at 187.

25 Id. at 199–200, 205–08.

26 Continental Shelf, 1982 ICJ Rep. at 93–94, para. 133(C)(2).

27 Id. at 89, para. 129.

28 Id. at 94, para. 133(C)(3).

29 North Sea, 1969 ICJ Rep. at 53, para. 101(C)(1).

30 Continental Shelf, 1982 ICJ Rep. at 44, para. 39.

31 Ibid.

32 Id. at 47, para. 44.

33 Ibid. (quoting North Sea, 1969 ICJ Rep. at 32, para. 46).

34 Continental Shelf, 1982 ICJ Rep. at 46, para. 43.

35 Id. at 47, para. 44.

36 Id. at 58, para. 67.

37 Id. at 53–54, para. 61.

38 Id. at 57, para. 66. Tunisia argued that the Tripolitanian Furrow off the Libyan coast marked the seaward limit of Libya’s natural prolongation. The Court was not impressed with this argument because “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.” Ibid.

39 Id. at 58, para. 68.

40 Id. at 92, para. 133(A)(2).

41 North Sea, 1969 ICJ Rep. at 53, para. 101(C).

42 Continental Shelf, Separate Opinion of Judge Jiménez de Aréchaga, 1982 ICJ Rep. at 100, 110, para. 38 [hereinafter cited as Jiménez de Aréchaga Sep. Op.].

43 Id., Jiménez de Aréchaga Sep. Op. at 116, para. 58.

44 Id., Jiménez de Aréchaga Sep. Op. at 110, para. 39.

45 Id., Jiménez de Aréchaga Sep. Op. at 116, para. 58.

46 Id., Jiménez de Aréchaga Sep. Op. at 117, para. 59.

47 North Sea, 1969 ICJ Rep. at 31–32, para. 44.

48 Continental Shelf, 1982 ICJ Rep. at 62, para. 76. See also id. at 82–83, para. 115.

49 Judge Gros in his dissent argued that the Court should identify not only the goal—delimitation in accordance with equitable principles—but also the rules and means for reaching it. Among the rules and factors he mentions is “that of not encroaching upon any other State’s area of continental shelf.” Id., Gros Dissent at 148, para. 10.

50 Proclamation No. 2667, 3 C.F.R. §67 (1943–48), 13 Dep’t State Bull. 485 (1945).

51 North Sea, 1969 ICJ Rep. at 32–33, 47, 53, paras. 47, 86, 101(C).

52 The United Kingdom of Great Britain and Northern Ireland and the French Republic Delimiation of the Continental Shelf Decision of 30 June 1977, Cmnd. 7438 (1978), paras. 97 and 195, reprinted in 18 ILM 397 (1979) [hereinafter cited as Anglo-French].

53 Continental Shelf Convention, supra note 8. See North Sea, 1969 ICJ Rep. at 36, para. 55; Anglo-French, supra note 50, para. 70.

54 North Sea, 1969 ICJ Rep. at 53, para. 101(C)(1); Anglo-French, supra note 50, para. 195.

55 Continental Shelf, 1982 ICJ Rep. at 59, para. 70.

56 Id. at 92, para. 133(A)(1).

57 Id. at 59, para. 70.

58 Id. at 60, para. 71.

59 United Nations Convention on the Law of the Sea, Working Paper 1 of the Drafting Committee, June 7, 1982, No. 82–16124.

60 Continental Shelf, 1982 ICJ Rep. at 49, para. 50.

61 Id. at 37–38, 47–48, paras. 23–24, 46. As Stein points out, it is very difficult to determine the effect on customary law of an unratified treaty, which represents a consensus de lege ferenda. To determine the influence of treaty provisions not having that status on the interpretation of existing law is like “shadows on shadows.” Stein, supra note 6, at 2–3.

62 Continental Shelf, 1982 ICJ Rep. at 49, para. 50. In a brief aside, the Court stated that the exclusive economic zone is “part of modern international law,” but it did not find that development relevant to the case before it. Id. at 74, para. 100.

63 Charney, supra note 6, at 7; Stein, supra note 6, at 5.

64 Continental Shelf, 1982 ICJ Rep. at 60, para. 71; but see id., Gros Dissent at 153, para. 19; id., Oda Dissent at 157, para. 1.

65 Art. 38(2), Statute of the International Court of Justice.

66 Continental Shelf, 1982 ICJ Rep. at 60, para. 71.

67 North Sea, 1969 ICJ Rep. at 22, 29, paras. 19, 39.

68 Tunisian Memorial, supra note 20, at 196; see also Continental Shelf, 1982 ICJ Rep. at 77, para. 106.

69 Continental Shelf, 1982 ICJ Rep. at 77, para. 107.

70 Id. at 61 and 62–63, paras. 74 and 76. The Court concluded that the cutoff effect was not a “relevant circumstance” in this case.

71 Id. at 93, para. 133(B)(5).

72 Id. at 61, para. 73 (quoting North Sea, 1969 ICJ Rep. at 51, para. 96).

73 Continental Shelf, 1982 ICJ Rep. at 61, para. 74.

74 Ibid.

75 Ibid., para. 75.

76 Id. at 62, 91, paras. 75, 130; see also Map No. 1, id. at 22. It is also significant that these points were mentioned by the parties in the course of the pleadings and the oral proceedings. Libyan Memorial, supra note 15, at 59; Libyan Counter-memorial, supra note 16, at 145; Libyan Reply, supra note 19, at 55; Case Concerning the Continental Shelf (Tunisia I Libyan Arab Jamahiriya), Reply to Question Put to Tunisia by Judge Mosler 2 (Oct. 21, 1981). Further, these points may have been the furthest points from the international boundary controlling an equidistance line.

77 Continental Shelf, 1982 ICJ Rep. at 70 and 85, paras. 93 and 120.

78

Ras Ajdir is also the point of departure of the line perpendicular to the coast proposed by Italy in 1914, and of the line of 26° north-east which had been followed by the two Parties in the granting of concessions for the exploration and exploitation of mineral resources during the period 1964–1972.

Id. at 66, para. 86.

79 Id. at 75, para. 103.

80 Anglo-French, supra note 50, paras. 100–102, at para. 101. Judge Gros was of the view that the Court went further than the 1969 Judgment and used proportionality more as a method of delimitation than as a verifying factor. Continental Shelf, Gros Dissent, 1982 ICJ Rep. at 152, para. 17.

81 Continental Shelf, 1982 ICJ Rep. at 76, para. 104.

82 Id. at 91, para. 130.

83 Ibid., para. 131.

84 Judge Ago believed the facts established acquiescence by the French authorities. Id., Separate Opinion of Judge Ago at 95, 97, para. 4. Judge Gros disputed the relevance of “the unilateral claim of one State to surveillance of its sedentary fisheries.” Id., Gros Dissent at 154, para. 20.

85 Id. at 71, para. 95.

86 Id. at 83, para. 117.

87 Id. at 84, para. 118. As the Court noted, Libya brought the 26° line to the Court’s attention as a line that might have been acceptable in the context of an agreed delimitation. Ibid.

88 Id. at 84–85, para. 119.

89 Id. at 63, para. 78. Tunisia argued that its eastern coast follows a “general north-south direction,” Tunisian Memorial, supra note 20, at 195; Counter-memorial of Tunisia, Continental Shelf (Tunisia / Libyan Arab Jamahiriya) 47 (Counter-memorial of Dec. 1, 1980); and that its coastal front should be represented by a line drawn from Ras Ajdir to Al-Maebla, a low-tide elevation east of the Kerkennah Islands. Tunisian Memorial, supra note 20, at 207.

90 Continental Shelf, 1982 ICJ Rep. at 66–68, paras. 86–90, at 90.

91 Id. at 70–71, paras. 93–95.

92 Id. at 69, para. 92.

93 Id. at 73–74, para. 100.

94 Id. at 79, para. 109.

95 Ibid., para. 110.

96 Id., Gros Dissent at 148–49 and 153, paras. 11 and 18, at 18.

97 Id., Oda Dissent at 157, para. 1.

98 Id. at 78–79, para. 109.

99

[T]he median line of the continental shelf may be acceptable where two states face each other, because, as a general rule, it would undoubtedly divide the continental shelf on an equitable basis. But if the equidistant line for two adjacent states is to be reasonable, it must be drawn perpendicularly to the common coastline.

Oda, , Proposals for Revising the Convention on the Continental Shelf, 7 Colum. J. Transnat’l L. 1, 26 (1968)Google Scholar.

100 Continental Shelf, Oda Dissent, 1982 ICJ Rep. at 270, para. 181.

101 This point was conceded by Libya. Libyan Counter–memorial, supra note 16, at 200–03.

102 Continental Shelf, 1982 ICJ Rep. at 82, para. 115.

103 Id. at 87, para. 125.

104 Id. at 89, para. 128.

105 Id., Separate Opinion of Judge Schwebel at 99, 99.

106 Id., Gros Dissent at 150, para. 14.

107 Id., Oda Dissent at 271, para. 183(2).