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Published online by Cambridge University Press: 09 March 2016
1 [1985] I.C.J. Rep. 13, hereinafter referred to as Libya-Malta case.
2 [1969] I.C.J. Rep. 4.
3 [1982] I.C.J. Rep. 18.
4 [1984] I.C.J. Rep. 246.
5 Arbitration between the United Kingdom of Great Britain and Northern Ireland and the French Republic on the Delimitation of the Continental Shelf, Decisions of the Court of Arbitration dated June 30, 1977 and Mar. 14, 1978, H.M.S.O., 1978, Cmnd. 7438, reprinted in 18 Int’l Leg. Mat. 397 (1979).
6 Tribunal arbitral pour la delimitation de la frontière maritime-Guinea/Guinea-Bissau, sentence du 14 février 1985. The translation of the award is reprinted in 25 Int’l Leg. Mat. 251–307 (1986). This arbitration is commented upon by Troy, C. Karen, “The Making of Offshore Boundaries: Beyond the Gulf of Maine ■— Part II,” 12 Oil and Gas Law and Tax Review 314–24 (1984/85).Google Scholar
7 The Malta legislation is reprinted in Durante, Francesco and Rodino, Walter, Western Europe and the Development of the Law of the Sea (Dobbs Ferry, N.Y. : Oceana, 1979).Google Scholar
8 Done at Geneva, Apr. 29, 1958. Entered into force June 10, 1964, 499 UNTS 311.
9 Libya-Malta case, para. 24, p. 28.
10 The Special Agreement of 1976 and the exchange of letters are reprinted in 21 Int’l Leg. Mat. 971–75 (1982).
11 The Special Agreement of 1977 and the exchange of letters are reprinted in 18 Int’l Leg. Mat. 49–55 (1979).
12 Art. 62 is as follows :
(1) Should a State consider that it has an interest of a legal nature which may be affected by the decision in the case, it may submit a request to the Court to be permitted to intervene.
(2) It shall be for the Court to decide upon this request.
13 Application of the Government of Malta for Permission to Intervene in the Case Concerning the Continental Shelf (Tunisia/Libya), reprinted in 20 Int’l Leg. Mat. 329–32 (1981).
14 Case Concerning the Continental Shelf (Tunisia/Libya), Application by Malta for Permission to Intervene, [1981] I.C.J. Rep. 3.
15 Yearbook of the United Nations, 1980, Vol. 34 (Sales No. E 83 I.1, 1983), at 465.
16 For a summary of the Malta-Libya discussion during 1980 and 1981, see ibid., 465–67 and Yearbook of the United Nations, 1981, Vol. 35 (Sales No. E 84.1, 1985), at 358–60.
17 See Art. 1 of the Special Agreement between the Federal Republic of Germany and Denmark and between the Federal Republic of Germany and the Netherlands, North Sea Continental Shelf cases, supra note 2, at 6.
18 Libya-Tunisia case, supra note 3, para. 1, p. 21.
19 Libya-Malta case, para. 19, pp. 23–24.
20 Ibid.
21 See Art. 62, supra note 12.
22 Case Concerning the Continental Shelf (Libya/Malta), Application by Italy for Permission to Intervene, [1984] I.G.J. Rep. 4, para. 16, p. 12.
23 Ibid.
25 Libya-Malta case, para. 20, p. 25.
26 Ibid., para. 21, p. 25.
27 Ibid., para. 23, p. 28. During the hearings on Italy’s intervention, however, Malta had argued that Italy was estopped from making a shelf claim in certain areas since the claim had not been formulated prior to the Italian intervention: Application by Italy for Permission to Intervene, supra note 22, para. 25, p. 17.
28 Libya-Malta case, para. 22, p. 26.
29 See ibid., paras. 20–21, pp. 24–26.
30 Ibid., para. 23, p. 28.
24 Ibid., para. 30, p. 19.
31 Done at Montego Bay, Dec. 10, 1982. Not yet in force. U.N. Doc. A/Conf. 62/122, Oct. 7, 1982, reprinted in 21 Int’l Leg. Mat. 1261–1354 (1982). Art. 83(1) states:
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.
32 Libya-Malta case, para. 29, p. 31.
33 Ibid., paras. 37–38, pp. 34–35
34 North Sea Continental Shelf Cases, supra note 2, para. 95, p. 51.
35 Libya-Tunisia case, supra note 3, para. 44, p. 47.
36 Libya-Malta case, para. 58, p. 45.
37 Ibid., para. 59, p. 46.
38 Ibid., para. 44, p. 38.
39 Ibid., para. 31, p. 32.
40 Ibid., para. 42, p. 37.
41 Ibid., para. 50, p. 41.
42 Ibid., para. 51, p. 42.
43 Ibid., para. 58, p. 45.
44 Ibid., para. 54, pp. 42–43.
45 Art. 6(1) states :
Where the same continental shelf is adjacent to the territories of two or more States whose coasts are opposite each other, the boundary of the continental shelf appertaining to such States shall be determined by agreement between them. In the absence of agreement, and unless another boundary line is justified by special circumstances, the boundary is the median line, every point of which is equidistant from the nearest points of the baselines from which the breadth of the territorial sea of each State is measured.
Concerning the interpretation of this provision, see Brown, E.D., Sea-Bed Energy and Mineral Resources and the Law of the Sea: The Areas within National Jurisdiction (London: Graham and Trotman, 1984), at 1.6.15–20, 27–37.Google Scholar The interpretation given Art. 6 in the Anglo-French Arbitration led to the situation where equidistance and special circumstances were given the same weight with equidistance not being given primacy: Anglo-French Arbitration, supra note 5, para. 70.
47 Concerning the negotiating history of the delimitation provisions in the 1982 LOS Convention, see Jagota, S.P., Maritime Boundary 219–72 (Dordrecht: Kluwer Academic Publishing, 1985)Google Scholar, and Brown, supra note 45, at 1.10.2–22. The International Court in the Libya-Tunisia case, supra note 3, para. 50, p. 49, stated that “in the new text, any indication of a specific criterion which could give guidance to the interested states in their effort to reach an equitable solution has been excluded.”
These provisions have given rise to criticism as being “meaningless” and “empty”: see Brown, supra note 45, at 1.10.26–27, and Charney, Jonathan I., “Ocean Boundaries between Nations: A Theory for Progress,” 78 Am. J. Int’l L. 582, at 583 (1984).CrossRefGoogle Scholar Another commentator is of the view that the text “says nothing of significance” : Oxman, Bernard H., “The Third United Nations Conference on the Law of the Sea: The Tenth Session (1981),” 76 Am. J. Int’l L.I at 15 (1982).CrossRefGoogle Scholar
Another view is that “it should not have been expected nor perhaps even hoped, that what is essentially a matter of bilateral diplomacy should be governed strictly by global rules” : Johnston, Douglas M., “Maritime Boundary Delimitation and UNCLOS III,” in Johnston, D.M., Gold, E., and Tangsubkul, P. (eds.), International Symposium on the New Law of the Sea in Southeast Asia: Developmental Effects and Regional Approaches 40 (Halifax: Dalhousie Ocean Studies Programme, 1983).Google Scholar A U.S. delegation report referred to the negotiations on the boundary articles at UNCLOS III as confused and involved “since the underlying problems are essentially bilateral”: U.S. Delegation Report, Fifth Session, 1976 in Nordquist, M.H. and Park, Choonho (eds.), Reports of the United States Delegation to the Third United Nations Conference on the Law of the Sea 152 (Honolulu: Law of the Sea Institute, Occasional Paper No. 33, 1983).Google Scholar
47 Libya-Malta case, para. 28, pp. 30–31.
48 Libya-Tunisia case, supra note 3, para. 70, p. 59. Concerning this aspect of the case, see Herman, Lawrence L., “The Court Giveth and the Court Taketh Away: An Analysis of the Tunisia-Libya Continental Shelf Case,” 33 Int’l & Comp. L.Q. 825, at 845 (1984).CrossRefGoogle Scholar
49 This is evident from the Chamber’s comments regarding the testing of the line for its equitableness: Gulf of Maine case, supra note 4, paras. 337–38, pp. 342–43. Judge Gros, the dissenting judge in that case, commented: “[S]o far as doctrine is concerned, the present Judgment can be summed up in four words: the result is equitable”: Gulf of Maine case, para. 47, Ρ. 388. Judge Gros wrote a stinging protest of the majority judgment. See Clain, Levi E. , “Gulf of Maine: A Disappointing First in the Delimitation of a Single Maritime Boundary,” 25 Virginia J. Int’l L. 521, at 585–91.Google Scholar
50 Libya-Malta case, para. 45, p. 38 quoting from the Libya-Tunisia case, supra note 3, para. 70, p. 59. Charney has described the Court’s presentation of the guiding rule of law as “circular” : Charney, supra note 46, at 586.
51 Libya-Malta case, para. 45, pp. 38–39.
52 In the Gulf of Maine case the Chamber sought to apply equitable criteria and practical methods to delimit the maritime boundary, declining to use the equitable principles terminology: Gulf of Maine case, supra note 4, para. 112, pp. 299–300. The Guinea/Guinea-Bissau Arbitration also utilized the equitable criteria and practical methods terminology rather than equitable principles. It is suggested that the Chamber in the Gulf of Maine case was deliberately altering the language in the hope of getting away from the unhappy history of searching for the elusive meaning of equitable principles. See, however, Legault, L.H. and Hankey, Blair, “From Sea to Seabed : The Single Maritime Boundary in the Gulf of Maine Case,” 79 Am. J. Int’l L. 961, at 967 (1985)CrossRefGoogle Scholar, and Clain, supra note 49, at 569.
53 Presidential Proclamation No. 2667, reprinted in United Nations, Laws and Regulations on the Regime of the High Seas, Vol. I, at 38–40 (U.N. Legislative Series, ST/LEG/SER. B/1, 1951).
54 See the searches of Brown, supra note 45, at 1.6.9–10, and 1.8.10–12, and Charney, supra note 46, at 587–94.
55 Commentatore on the various boundary decisions have taken the view that the decisions often appear to be ex aequo et bono decisions. Charney, supra note 46, at 587, comments: “There is little doubt that today international ocean boundary law as articulated by the International Court of Justice is located on [a] continuum at a point very close to ex aequo et bono.”
56 Libya-Malta case, para. 45, pp. 38–39.
57 See, for example, Brown, supra note 45, at 1.10.26, and Christie, Donna R., “From the Shoals of Ras Kaboudia to the Shores of Tripoli: The Tunisia/ Libya Continental Shelf Boundary Delimitation,” 13 Georgia J. Int’l & Comp. L. I, at 22 (1983).Google Scholar
58 Libya-Malta case, para. 45, p. 39.
59 Libya-Tunisia case, supra note 3, para. 132, p. 92.
60 Libya-Malta case, para. 46, pp. 39–40.
61 See McDorman, Ted L., Saunders, Phillip M., and VanderZwaag, David L., “The Gulf of Maine Boundary: Dropping Anchor or Setting a Course?,” 9 Marine Policy 90, at 100–1 (1985)CrossRefGoogle Scholar, in particular the comments that geographic factors are not necessarily neutral and objective as described in the Gulf of Maine case.
62 Libya-Malta case, para. 33, p. 33.
63 Ibid., para. 34, p. 33.
64 Ibid., para. 39, p. 35.
65 Ibid., para. 40, p. 35.
66 Ibid., para. 40, p. 36.
67 See Brown, supra note 45, at 1.8.6.
68 Libya-Malta case, para. 41, pp. 36–37.
69 Ibid., para. 63, p. 47 and more emphatically at para. 77, p. 56. This is the same position as that taken by the Court in the Libya-Tunisia case, supra note 3, para. 110, p. 79.
70 Libya-Malta case, para. 61, pp. 46–47.
71 Ibid., para. 44, p. 38.
72 Ibid., para. 62, p. 47.
73 Ibid., para. 70, p. 51. This had previously been noted in the North Sea Continental Shelf Cases, supra note 2, para. 89, p. 49. This was also commented upon in the Anglo-French Arbitration, supra note 5, para. 95. The Arbitration Tribunal noted that the presence of the Scilly Isles on the coast of England enabled the United Kingdom, by use of equidistance, to claim approximately 4,000 square miles more than if the Scilly Isles did not exist: Ibid., para. 243. Concerning this aspect of these decisions, as well as the Gulf of Maine case, the Libya-Tunisia case, and the Guinea/Guinea-Bissau Arbitration, see Beazley, P.B., “Maritime Boundaries: A Geographical and Technical Perspective,” paper presented at the 19th Annual Conference of the Law of the Sea Institute, held in Cardiff, Wales, July 24–27, 1985.Google Scholar
74 Ibid., para. 62, p. 47.
75 The fact that the Court has found that, in the circumstances of the present case, the drawing of a median line constitutes an appropriate first step in the delimitation process, should not be understood as implying that an equidistance line will be an appropriate beginning in all cases, or even in all cases of delimitation between opposite States.
Ibid., para. 77, p. 56.
76 Charney, supra note 46, at 582–87 and 596–98. In this article Charney argues that what should be developed is a “factor analysis” approach that would allow for the development of more well-defined rules and the systematic assessment of the many criteria involved : see pp. 598–606.
77 See Brown, supra note 45, at 1.8.25–28. Brown applauds the Anglo-French Arbitration for narrowing the scope of relevant circumstances and decries the Libya-Tunisia case for doing the opposite. One interpretation of the Gulf of Maine case takes the view that “the Chamber proceeded to restrict rather than enlarge the range of subject matter from which relevant circumstances and equitable criteria may be identified”: Legault and Hankey, supra note 52, at 968.
78 Libya-Malta case, para. 48, p. 40.
79 Ibid., para. 50, p. 41.
80 Ibid., para. 49, pp. 40–41.
81 Ibid., paras. 52-53, p. 42.
82 Ibid., para. 79, p. 57.
83 Ibid., para. 78, p. 56.
84 Ibid., para. 51, p. 42.
85 Ibid., para. 73, p. 52.
86 Ibid., para. 64, p. 48.
87 Ibid., paras. 70–71, pp. 50–51.
88 Ibid., para. 69, p. 50.
89 Ibid., para. 58, p. 45.
90 Ibid., para. 68, p. 50.
91 Ibid., para. 66, p. 49.
92 Ibid., para. 57, p. 45.
93 Ibid., para. 56, p. 44.
94 See the survey done of this question in the previous decisions in Beazley, supra note 73.
95 Libya-Malta case, para. 68, p. 50.
96 Gulf of Maine case, supra note 4, para, a 18, pp. 334–35.
97 Libya-Malta case decision, para. 68, p. 50.
98 See, for example, Ibid., para. 66, p. 49.
99 Libya-Tunisia case, supra note 3, para. 13 r, p. 91.
100 Libya-Malta case, para. 74, p. 53.
101 Ibid., para. 75, p. 55.
102 Ibid., para. 62, p. 47.
103 Ibid., para. 70, pp. 50–51.
104 Ibid., para. 71, p. 51.
105 Decree of the President of the Republic No. 816 of Apr. 26, 1977, baselines for determining the territorial sea, reprinted in 3 Italian Yb. Int’l L. 570–71 (1977).
106 Libya-Malta case, para. 72, p. 51.
107 Ibid., para. 73, p. 52.
108 Ibid., para. 73, pp. 52–53.
109 See comments of McDorman et al., supra note 61, at 100.
110 Libya-Malta case, para. 62, p. 47.
111 Ibid., para. 61, pp. 46–47.
112 North Sea Continental Shelf Cases, supra note 2, para. 57, p. 36 as quoted in the Libya-Malta case, para. 62, p. 47.
113 The three-step approach was not utilized in the Guinea/Guinea-Bissau Arbitration. In it a line was drawn on the basis of equitable criteria and practical methods and then tested for equitableness. The first two steps may have been combined into a single step. See Troy, supra note 6, at 320–21.
114 Gulf of Maine case, supra note 4, para. 216, pp. 333–34.
115 Ibid., paras. 194–95,p.327.
116 McDorman et al., supra note 61, at 100.
117 Libya-Malta case, para. 33, p. 33.
118 Ibid., para. 50, p. 41.
119 Ibid., para. 48, p. 40. The Court did reject some factors relating solely to the shelf that previous shelf decisions had considered relevant: Ibid., para. 40, p. 36.
120 Gulf of Maine case, supra note 4, paras. 118–19, pp.301–2.
121 Libya-Malta case, para. 73, p. 52.
122 It is, therefore, in the Chamber’s view, evident that the respective scale of activities connected with fishing — or navigation, defence or, for that matter, petroleum exploration and exploitation — cannot be taken into account as a relevant circumstance or, if the term is preferred, as an equitable criterion to be applied in determining the delimitation line. What the Chamber would regard as a legitimate scruple lies rather in concern lest the overall result, even though achieved through the application of equitable criteria and the use of appropriate methods for giving them concrete effect, should unexpectedly be revealed as radically inequitable, that is to say, as likely to entail catastrophic repercussions for the livelihood and economic well-being of the population of the countries concerned, (emphasis added)
Gulf of Maine case, supra note 4, para. 237, p. 342. Concerning the resource division in the Gulf of Maine, see Clain, supra note 49, at 583 and concerning the impact of the decision generally McDorman et al., supra note 61, at 102–6.
123 Libya-Malta case, para. 75, p. 55.
124 See, for example, Brown, supra note 45, at 1.8.25–28.
125 This was most clearly the situation in the Gulf of Maine case, where the serious concern of both parties was the fishery, yet the Chamber almost completely ignored this in the decision. Note McDorman et al., supra note 61, at 101.
126 There is no necessity that a dispute settlement tribunal need be composed of lawyers or be constrained by legal considerations, but state practice has preferred the legal tribunal and legal determination. Conciliation is another possibility. It has been utilized by Iceland and Norway: see generally Churchill, R.R., “Maritime Delimitation in the Jan Mayen Area,” 9 Maine Policy 16–38 (1985)CrossRefGoogle Scholar; Gournais, Emmanuel, “The Delimitation of the Continental Shelf of Jan Mayen,” 21 Archiv des Volkerrechts 492–501 (1983)Google Scholar; and “Conciliation Commission on the Continental Shelf Area between Iceland and Jan Mayen: Report and Recommendations to the Governments of Iceland and Norway,” reprinted in 20 Int’l Leg. Mat. 797-842 (1981).
127 See Johnston, Douglas M. and Saunders, Phillip M., “Ocean Boundary Issues and Developments in Regional Perspective” in Johnston, D.M. and Saunders, P.M. (eds.), Maritime Boundary Delimitation in Selected Regioni (forthcoming).Google Scholar
128 “But, unless the Court also founds its judgements on principles that are separate from political and economic acceptability, the legitimacy of its decisions could be jeopardized”: Charney, supra note 46, at 595.
129 Done at Tunis, Aug. 20, 1971. Entered into force Dec. 6, 1978. Reprinted in United States Department of State, Office of the Geographer, Limits in the Seas (Washington), No. 89 (1980) and in Churchill, R., Nordquist, M., and Lay, S.H., New Directions in the Law of the Sea, Vol. 5, at 247–50 (Dobbs Ferry, N.Y.: Oceana, 1977).Google Scholar
130 Libya-Malta case, para. 17, p. 22.
131 Treaty between the Kingdom of the Netherlands and the Federal Republic of Germany concerning the Delimitation of the Continental Shelf under the North Sea, done at Copenhagen, Jan. 28, 1971. Entered into force Dec. 7, 1972. Agreement between the Federal Republic of Germany and the Kingdom of Denmark concerning the Delimitation of the Continental Shelf under the North Sea, done at Copenhagen, Jan. 28, 1971. Entered into force Dec. 7, 1972. Reprinted in 10 Int’l Leg. Mat. 600–12 ( 1971 ).
132 Goldie, L.F.E., “The North Sea Continental Shelf Cases: A Postscript,” 18 New York Law Forum 411–34 (1972).Google Scholar For a contrary view, see Auburn, F.M., “The North Sea Continental Shelf Boundary Settlement,” 16 Archiv des Volkerrechts 28–36 (1974).Google Scholar
133 Libya-Tunisia case, supra note 3, paras. 117–18, pp. 83–84. Concerning the de facto line, see Christie, supra note 57, at 28, where she states: “The main problem with choosing the boundary between the concessions as the delimitation line is that in the future, states will be discouraged from seeking peaceful compromise or modus vivendi pending resolution of a dispute because they may be held to those terms.” The de facto line was not utilized in the Gulf of Maine case, where the Chamber indicated that interim arrangements made for the purposes of facilitating relations would not normally bind the parties in the determination of the final boundary: Gulf of Maine case, supra note 4, para. 150, p. 310. In the Libya-Malta situation, neither party argued that there existed a de facto line: Libya-Malta case, para. 24, p. 28.
134 Application for Revision and Interpretation of the Judgement of Feb. 24, 1982 in the Case Concerning the Continental Shelf (Tunisia/Libyan Arab Jamahiriya), para. 31, p. 17.
135 Toronto Globe and Mail, Dec. 17, 1985, at 6.
