COUNTER-MEMORIAL OF THE
LIBYANARAB JAMAHIRIYA
CONTRE-MÉMOIRE
DE LAJAMAHIRIYAARABELIBYENNE VOLUME1
INTRODUCTION
1. This Counter-Mernorial is filedin accordance with Article 4 of the
Special Agreement signed by the Socialist People's Libyan Arab
Jainahiriya ("Libya") and the Republic of Tunisia ("Tunisia") on 10
June 1977 in Tunis (the "Special Agreement1") and the Order made by
the President of the Court in the present case on 3 June 1980 fixing 2
February 1981 as the time-limit for the filing of a Counter-Memorial by
Libya'. The English translation of the Special Agreement prepared by
Libya frorn the original Arabic tex1 is set out at pages 2 and 3 of the
Libyan Memorial filed on 30 May 1980 in the present proceedings (the
"Libyan Memorial").
2. The purpase of this Counter-Mernorial isto reply to the contentions
made in the Tunisian Memorial filed on 30 May 1980 in the present
proceedings (the "Tunisian Memoria13") and, as may be necessary, to
supplement the cons ide ration^of fact and law set forth in the Libyan
Memorial.
SECTION 1. General Assessrneno tf the Tunisian
Case as Now Presented
3. The Tunisian Mernorial is written in a most elegant style, and with
seductive subtlety. Yet, on evena superficial examination, the lack of real
substance and pertinence becomesapparent. The slanted account of "The
Genesis of the Dispute" in Part 1,Chapter 1 of the Tunisian Memorial is
largely based on the unjustified assumption that Tunisia's claims were
well-founded while those of Libya were not. Comments criticizing the
behavior of the Libyan authorities, such as those made by the authors of
the Tunisian Memorial in Chaptet 1,contribute nothing to the solution of
the problem of the delimitation of the areas of continental shelf which
appertain to each of the two Parties or to the fulfillment of the task
concerning delimitation jointly submitted by them to the Court! As
'Hy Ictrer daied 14 Fcb. 1979.thc Secrctary of Foreign Affairs of Libya transmitted a copy
of ihc Spccial Agreementin Arabie. togethcr with a translation in English certified as
accuraic, to ihr RegisiraCopics of that letter as weli as thc original Arabic trxt and
English translation of ihc Spccial Agrecmcnt were previously filcd withasAnnexuri
1-1 toihe Lihyun Mrnioriril.
'Thc tcrm "Libyo" rcfcr?;to thc Statc of Libya and its goverriment. whatever the forrn of
govcrnmcnt at ihc rclevant tirnc. and. as may appcar from the conitothe territory
uhich now bclongs io the Socialist Pcoplc's Libyün Arab Jamahiriya.
'Rcfcrcnccs in this Countcr-McmoriIOtheTunisianMt.niorial rcfer io theoficial English
~ranslaiionof that Mçmoriiil. cxccpt for rcfertoniaps and tigurcandquotations ûî
pasbngcsin Frcnch, which arc to the original Frcnch text Tunisian Mrniorial.
'Thih attitude is in rnarkcd conIOathai expresscdby thc Tunisian Prime Minisier in a
spccchto thc Tunisian presson 29 Dec. 1980whcre "cooperation" and the concept of joint
cxploiiation or mincrül rcxciurceswcre rÿised. A !hi,speechisaitached aAnnex 1,
Vul.II.148 CONTINENTALSHELF Pl
indicated in paragraphs 38 to 43 of its Memorial, the purpose of Libya in
its discussions withTunisia was to agree on provisions for jointexploita-
tion in the context of the development of close economic and political
cooperation between the two countries. It-was Tunisia which from 1968
onwards was trying to insist on delimitation on the basis of what was
repeatedly described in terms such as "international law and custom" and
the internationally recognized "geographical facts and ...conomic
interests'".
4. These wordsare quoted from paragraph 13of the English transla-
tion of the Tunisian position with respect tothe "problem with Libya over
the Continental Shelf ", as stated in a Memorandum circulated on or
about 18 May 1976 to diplomatic missions accredited to Tunisia (other
than the Libyan Missionin Tunis) and to various international organiza-
tions, including the Secretary-General of the United Nations2. The text
corresponds to that set out in Annex 34 to the Tunisian Memorial.
According to paragraph 1.25 of that Memorial, the Memorandum was
circulated on 3 May 1976under the title "Memorandurn onthe Delimita-
tionof the ContinentalShelf betweenTunisia and Libya". Whatever the
precisedate of circulation may have been, the Memorandum can only be
regarded as an official statement of the legal position of the Tunisian
Government at the time when it was issued. Put briefly, the Tunisian
position wasdelimitation on the basis of the 50 metre isobath and the
application of strict equidistance beyond that isobath. This position is
made clear by paragraph 13of the Memorandurn which reads as follows:
" 13. An examination of maps reveals that the general configura-
tion of the Tunisian and Libyan coastlines is simple and does not
createany dificulty in respect of the application of the standards
and rules of international law and custom. Thus the delirnitation
of the continental shelf betweenTunisia and Libya beyond the 50
metre isobath should be in conformity with an equidistance line
drawn in accordance with international law, taking into account
the geographical facts and the zones of economic interests, the
long-standing exercise of which stands proof of their reality and
importance3."
'This theme. which wasconstantly used by Tunisianspokesmen,ran likea thread through
the discussionsand was usedas a formulain supportof the Tunisianclaimto delimitationon
the basisofa strici equidistanceline. Exarnaybe foundin paras1.16and 1.21of the
TunisionMemorial and even inthe last paragraph of Art. 1 of the Tunisian Ministtrial
Decreeof 18Mar. 1976for whichthe Frenchtranslation is givAnnex 3 to thTunision
Memorial. There isno reference to any claimed territorial sea or fishingzone boundary.
'See Libyan Memorial, para41.
The text is given here for convenienceof referencc.anslationof this.Mernorandum.
"13. L'examendes cartes montreque la configurationgénéeescôtestunisiennes
et libyennes est simple et ne présenteaucune'difficultéquant à l'applicationdes
critèreset règlesdroit et des usagesinternaiionaux. En conséquencel,a délimita-
.mètres. doit être constpar la ligne d'équidisttracée, conformémenatu droithe des50
international, compte tenu des données géographiqueset des zones d'intérêts
économiquesdont la réalitéet l'importance sont attestéespar un longusage." Pl COUNTER-MEMORIALOF LIBYA 149
5. It isremarkable that without any explanation or excuseTunisia has
discarded the position bothof fact and of law taken in the Memorandum
of May 1976 (which was constantly relied uponby Tunisia as a basis for
allegations of illegalityon the part of Libya). The position of fact taken
by Tunisia wasthat "the general configuration ofthe Tunisian and Libyan
coastlines issimple'". As regards Tunisia, this positionhas been reversed
in the Tunisian Memorial which seeks to rely on the complexity of the
Tunisian coast2. Evenmore remarkable isthe abandonment byTunisia of
the equidistance method of delimitation which is apparently rejected in
Chapter VII,Section III of its Memorialand findsnoplaceinthe Tunisian
subrnissions, in spite of the prominence given to equidistance in
paragraphs 12 and 13 of the May 1976 Memorandum. Of course, the
Government of Tunisia is fully entitled to abandon a position previously
taken but, when this position has beentaken so constantly and has been
advertised 10 the world by diplornatic action as the legally well-founded
viewof the TunisianGovernrnent,it must throw somedoubt onthe validity
of the new case put forward for the first time in the Tunisian Memorial.
Nevertheless, it has the great advantage of simplifying the issues for the
purposesof the present proceedingsbecauseit is nowcommon groundthat
theTunisian coastline as cornpared with that of Libya iscomplexand that
the equidistance method of delimitation is not applicable in .this case.
This result accords with Subrnissions 6 to 10 in the Libyan Memorial
(corresponding with Submissions 13, 10, 133,9, and 14, respectively,in
this Counter-Mernorial). In particular,it coincides withSubmission 10
which, it may be respectfully recalled, invites the Court to adjudge and
declare:
"In the present case, given the particular geographical configura-
tion, the equidistance method would result in a delimitation of the
continental shelf whichwould beinequitable, inappropriate, and not
in conformity with international law."
6. In a forma1sense the Parties are also in agreement that the conti-
nental shelf of a State isthe natural prolongation of its land territory into
and under the sea and that any delimitation should leave as much as
possible toeach Party al1those parts of the continental shelf that consti-
tute such a natural prolongation4. However, thisapparent similarity in
the meaning attributed by each of the two Parties to the concept of the
See. e.g.. para. 13of the Memorandum of May1976.
'See, e.g., TunisianMemorial, para.3.14 andSubmiss1.4.(d).
'Submissions6 and8 inthe LibyanMernorialhavebeencombinedinSubmission13inthis
Counter-Mernorial.
'See Libya Mnernorial,SubrnissionsI and 2, whicharesubstantially idenoubmis-S
sionç1 and8 in this Counter-Mernorial,TunisianMernorial.Submissio1.1. Forthe
convenienceof the Court,Map 1 facip.2 portraysthe NorthAfricancoastalStates and
VI their political boundaries. Al1 rnaps(i.e.,1MthroughMap 18) appearingin this
Counter-Mernorial haveeen prepareby the Departmentof Cartographic Servisfthe
University of Marylanunderthe direction ofScB. Edmonds.Directorof Cartographic
Services at the University of Maryland BaltimoreCountFyo.radescroftheprepara-
tion of these rnapssAnnex 7. Vol. III.150 CONTINENTAL SHELF i41
continental shelf is formal rather than real. The development of the
Tunisian Memorial disclosesa concept ofthe continental shelf that is both
noveland fanciful. This is a point that will have to be examined at some
length in this Counter-Memorial. At this juncture, attention is simply
called to the introduction by Tunisia of a new concept of the continental
shelfas an area dividedinto "shelf" and "borderland". Any such division
is contrary to established State practice and to the existingjurisprudence
and other authoritative sourcesrelating to the continental-shelf. It seems
to be introduced into the Tunisian Memorial for the purpose of attempting
to providean excuse for notionallyshifting part of the coastline ofTunisia
eastward as far as Ras Ajdir for the purpose of the truly remarkable
geometric constructions whichare presented in Chapter IX. This superfi-
cial and abstract approach to the concept of the continental shelf and the
problem of its delimitation ignores to a large extent the true nature of the
continental shelf as the prolongation of the mass of the land territory of a
State: that isto Say,not onlythe surface with its contours, whatever they
may be but also, and even more important, the subsoil'. The continental
shelf, since it includes the subsoil, clearly comprises the rnass below the
surface, where one finds the naturai resources such as oil and gas which,
even according to the Tunisian Memorial itself, are the prime target of
Tunisia inthis case. Itis strange that the Court is asked tolmk rnainfyai
the surface of the sea-bed with a viewto determining rights of the Parties
whose greatest interest relates to the subsoil extending far below the
surface.
7. There isanother sense inwhich Tunisia misappliesthe concept of the
continental shelf asthe natural prolongation of the territory of a State. It
chooses to ignore alrnost entirely the fact that Tunisia and Libya are
adjacent States and that they possess a common land boundary2. Itis
possibleto guessat the reason whyTunisia has chosen to do this: Tunisia
wishes to ignore the significanceof the land boundary as determining the
land territory of the two States and to try to relate the continental shelf of
Tunisia to rights concerning sedentary fisheries:which traditionally have
nothing to do with the continental shelf as such. Tunisia would like the
Court to shut its eyesto the existenceof the land boundary as determining
the land territory whose prolongation must constitute the continental shelf
of Libya. It seemsto bethe aim of Tunisia to make thecontinental shelf a
prolongation of something quite different-namely some kind of fishery
zone.
8. NotonlydoestheTunisian Memarial virtually overlookthe fact that
Tunisia and Libya are adjacent States, but it also tends to ignore the
lTheterm"subsoil"is used hereina legsensetoinclude the mass below the surfatcoean
indefinitedepth.
The relative position of Libya and TuniassiaadjacentStates onMap2 facingthis
page. As pointed outn theLibya n emorial[paras. 70 and 72), Libyahas an areaof
approximately1,775.500sq.km.and Tunisiaan areaof approximately164,150sq. km. It
rnaybeobserved thattothe east, Libyaisoppositetothe islandofCreteand themainlandof
Greeceand isadjacent to Egyptt;o the West,Libyais oppositeMaltaand ltaly andis
ldjacentto Tunisia.i51 COUNTER-MEMORIAL OF L~BYA 151
northward-facing coast of Tunisia between Ras Ajdir and Gabes'. In
fact. it isobvious fromany properly drawn rnap that the distance frorn Ras
Ajdir to the turning point in the Gulf of Gabes (in its ordinary geographi-
cal sense as used in the Libyan Memorial) is almost exactly equal to the
distance from that point to Ras Kaboudia. What Tunisia would liketo do
is 10discount the presence and effect of the "northwardW-facingcoast of
Tunisia. which continues the coastline of Libya. and to emphasize the
"easlwardV-facing' coast of Tunisia in an atternpt to pain1 a picture-a
false picture-of its continental shelf extending eastward up the Mediter-
ranean towards the "lonian Abyssal Plain".
9. Thiscurious atternpt at the distortion ofgeography may be linked to
the attempt 10 exclude from the delimitation the area of sea-bed (and
subsoil) out to the 50 metre isobath. This contention will be examined
more fullyinChapter IIIof Part 1 belowbut in principle it isunacceptable
for the following reasons inler dia:
(i) The area so defined has never been an area of "sovereignty"
appertaining to Tunisia.
(ii) It iscontrary to State practice to delimit shelf boundaries by
reference to "historic rights" such as those asserted by Tunisia.
(iii) The claim is based on an assertion of "economic rights" which
are, in contemporary tirnes, comparatively unimportant.
10. Aswill be explained in detail in the evidence given below in this
Counter-Mernorial and in the technical Annexes of VolumeIII, the Tuni-
sian scientific case, based primarily on geomorphological contentions, is
superficial. inaccurate and often fanciful. Much of the Tunisian data
adduced to support the conclusion that west/east geomorphological and
geological trends exist extending eastward from Tunisia are inaccurate or
inadequate. The Tunisian scientific contentions are devoid of any valid
geologicfoundation. The continental shelf. as the natural prolongation of
the land territory, is not determined simply by geomorphological factors,
such as slight variations in the contours of the sea-bed or in the depth of
water. In determining' the nature of "the sea-bed and subsoil of the
submarine areas that extend beyond its [Le.,a coastal State's] territorial
sea" within the meaning of Article 76(1) of the DCIT3, fundamental
'Contrary to the assertion in para. 1.22oTunisiunMemorial, Ras Ajdir is the frontier
point between Libya and Tunisia on the Mediterranean Sea and not withinsian terri-
tory. In fact, tMediterraneanPilotrefers to the coast of Libya as starting from Ras Ajdir
in the West. Medirerranean Piloc 6th edition. Hydrographer of the Navy, Taunton.
England. 1976. VolV, p. 39. (A copy of this page is attachedAnnex 2, Vol. II.)
'It will be pointed out (see para. 209 belAnnexd 2. Vol. III) that this coast cannot be
properly described as "eastwardV-facing in any event.
Al1references in this Counter-Mernorial to the "DCIT'referDraft Conventiononthe
Law of the Sea(Informal Tex!). U.N.Doc. A/CONF. 62/WP. IO/Rev. 3, 22 Sep. 1980.
In para. 7of the Explanatory Memorandum by the President of the Conference (U.N. Doc.
A/CONF. 62/WP. IO/Rev. 3/Add. 1, 28 Aug. 1980), the title of YDraft Convention
(InTormalText)" was authorized, Fromwhich "KIT is derived. Paragrap7 reads:
"The Collegium also decided that having regard to the inappropriateness of refer-
ring to the revised text as a final negotiating text, çince there were same outstanding
(foornoreconrinuedon rhenexrpage) 152 CONTINENTALSHELF 161
geologicalfactors must be examined. Tunisian.arguments attempting to
identify the shelf area as the natural prolongation of Tunisia on grounds
that aie superficiallead inevitably to à scier&ficallyunsound application
of the principle of natural prolongation.
Il. Another fallacy in the arguments and submissionsas presented in
the Tunisian Memorial is that they relate to areas which are not included
in the area for delimitation as between Libyaand Tunisia in the present
proceedings. The areas conternplated in the Tunisian Memorial include:
(i) Areas already delimited between Tunisia and Italy'. Although
that delimitation is not binding on Libya, it must be taken as
- definitiveasagainst Tunisia. Accordingly,Tunisiaisnot entitled
to bring into account for the purposes of the delimitation in the
present case areas which have been effectively excludedby the
agreement with Italy.
(ii) Areas which clearly fa11to be delimited in the future between
Libyaand Malta and whichcannot conceivablybethe subject of
delimitation between Libyaand Tunisia2.
12. Another misleading inaccuracy in the Tunisian Memorial is the
geographical description and use made of the "Gulf of Gabes". As
explainedin the Libyan Memorial, in its true geographicalsensethe Gulf
of Gabes is entered betweenRas Yongaand the Island of Djerbas. There
is notrue bay entered by a line between the Kerkennah Islands and the
Island of Djerba, as can readily beseen froma map. Still lesscan waters
to the seaward of such a line be regarded as properly forming part of the
"Gulf of Gabes". The variation in the useof the expressionin the Tuni-
sian Mernorial is obviouslydesigned to givean impressionof the Gulf of
Gabes as extending far to the north and the east of its proper area. This
C/oornoieconrinuedfrom the precedingpage)
issuesthat neededfurther negatiations,it seernedmoreappropriateand advisabletogivcthe
revisedtext the title 'Draft Convention(Informal TThistext likeits predeccssorwill
be informal in characteItis a negotiating text and not a negotiated text.and does not
prejudice the positionof any delcgation."
Articlesof the DCIT referred to in this Counter-Mernorialare attAnnex 3.Vol.
II. Any referencesto the work of the conferenccin the Specialent. in the Libyon
Memorial,in this Counter-Mernorial,or in these proceedingsgenerally,should be without
prejudiccto any positionenor to betaken by Libya. It shouldbenoted that Art. 76(10)
ofthe DCITprovides: "The provisionsof thisarticleare withoutprejudice tothe questionof
delimitationofecontinentalshelf betweenadjacentoroppositeStates." BothPartieshave
expressedtheir reservations (as members of the Arab group in the Third United Nations
Conferencconthe Lawofthe Sea)to the formulationofArt. 76(1), other than to the words:
"The continentalshelfofa coastalState comprisesthe sea-bedand subsoilof the submarine
areas that extend beyond its territorial sea throughout the natural prolongationof its land
territor...".Libya also reserves al1rights to its position (whether individually oras a
memberofthe groupof 29co-sponsorsof NC.7/10) as to the formulationofArts. 76and 83
of the DCIT asabasis for further negotiationsor otherwise.
'See the Italo/Tunisian Agreementon the Delimitationof the Continental Shelf. (A copy
of this Agreements attached aAnnex 4,Vol.II.)
@ 'Thc shcafof lines proposedby Tunisia (TunisianMernorial,Fig.9.14)evensuggests
that Tunisia regards itself as an opposite state to Malta.
See Libyon Memorial,para. 78. hascreated an underlying confusion betweenthe Gulf of Gabes in its strict
sense and a fictional "region of the Gulf of Gabes", leaving the readcr
uncertain as to the extent of the area being discussed'. Along the same
line is the attempt to characterize the "region of the Gulf of Gabes" as an
economic or ecological unit. This is a conclusion which will not stand up
to critical analysis as willbe shown in paragraphs 242 through 262 below'.
13. Finally. what are described inthe Tunisian Memorial as "practi-
cal" methods are in fact highly imaginative. They depend on features
which are wholly or virtually non-existent and on geometric constructions
which are devoid of any foundation in Stale practice or of any intrinsic
value. A critique of these methods is set forth in Annex 8. Volume III.
14. Overall, in spite of its extensive pseudoscientitic detail and.its
attractive style, the Tunisian Memorial is an extremely fragile document
which Falls far short of substantiating the ambitious claims which it is
intended to support.
SECTION 2. IrrelevantAspects of the
Tunisian Memorial
15. It is no doubt because Tunisia is conscious of the weakness of the
claims presented in its Memorial that it has introduced many pages of
extraneous material. lnteresting as the information may be, much of it is
irrelevant in fact or in law to the question of the delimitation of the
continental shelf areasappertaining to each of the Parties. Much of the
information is also inaccurate or presented in a one-sided rnanner which
may give rise to false impressions. Therefore, it will be necessary to
comment in some detail on certain aspects of this extraneous material,
although strictly speaking ithas no bearing on the real issues involvedin
the present caseJ.
16. Arnong the subjects raised in the Tunisian Memorial, which faII
into this general category, are (inter olia) the following:
(i) Comparative Economics';
(ii) Flora and Fauna5;
(iv) Archaeology7;
'ThisclTor[of TunistoextcndtheGulf of Gabesîlir bcyondirspropcr gcographicablounds
isdiscussedin paras.81 ihrough90 below andin Annrs 1. Vol. 111sdcpictcdgraphi-
@ cnlly on Mnp 9 king p. 36.
'There is.howevcr.geographiculunity in thenrea.but it isnoi from Ras Kaboudiaio Ras
Ajdir. II is.rather. îrom theviciniiyof ihc lowno10GIhcviciniiyof RasTajura.jus1
cahtof TripoliIn this rcspcc.ecparas.242 ihrough262 betowand an ne.^1. Vol. Ill.
.A> IOthequestionof50-callcd"hihioricrighis".seepara.9 aboveandparas.92 through179
below.
'See T~tni.rir ei?iorial.paras.3.32 ihrough3.51.
'Ibid ..ras. 4.14ihrough4.31.
"Ibid ..ras.4.19 ihrough4.23.
Ihid .,ras.5.06 ihroughS.IO.154 CONTINENTAL SHELF [81
(v) The "lonian Abyssal Ptain" as a "Geological" Factori.
Cornpararive Economics
17. In paragraphs 3.32 to 3.51. the Tunisian Memorial gives a great
deal of data concerning economicand human geography and ends with the
remarkable comment that neither lawnor equity "should havethe effectof
wideningthe disparities created by nature". This comment. expressed as
it is as a negative proposition, showsthat Tunisia is well aware that the
observationsmade by it have no bearing on the question of natural prolon-
gation or delirnitation of the continental shelf. The observations can be
intended to serveno other purpose than to try to create an atmosphere of
sympathy for Tunisia which,although for centuries rich compared with
Libya, has nowbecome comparatively lesswealthy largely because of the
increase of petroleum production by Libya-production which inciden-
tally is for the greater part onshore and not offshore. In order to counter
any effect that this one-sided presentation may have created, an expert
assessrnent of the economic factors is submitted with this Counter-
Memorial'.
FIora and Fauna
18. In paragraphs 4.14ff., the Tunisian Mernorial makes considerable
play withthe richnessof the Roraand fauna of the "Gulf ofGabes region",
which in this context is even said to extend as far as Ras Ajdir3. It iso,f
course, obvious in this connection that there is no natural geographical
cut-off point at Ras Ajdir, as the Tunisian Memorial (especially the
rnaps) repeatedly seems to irnply. Moreover, it isdificult to see how the
richness of the flora and fauna can affect the question of delimitation of
thecontinental shelf. However,the material seems to be produced for the
purpose ofattempting to establish the ecologicalunity of the area in which
Tunisia claims historic rights. In fact, there is nosuch ecological unityas
is demonstrated inparagraphs 253 to 258 belowand more fully discussed
in Annex I, Volume Ill.
Climare
19. In the context of the alleged "ecological unityof the area", sorne
play is made with the climatic conditions in the "region of the Gulf of
Gabes". This again clearly has nothing to do with delimitation of the
continental shelf and, inany event,does not support the alleged ecological
unity of the area. Besides,if for example the rnap on Figure 4.01 of the
Tunisian Memorial were extended into Libya, it would be seen that the
average rainfall on the coastal plain follows the same pattern. If any-
thing, this pattern would show an ecological unit rom the vicinity of
Gabes, along the Jeffara Plain, following the direction of the Libyan
coastline to Ras Tajura, just east of Tripoli4.
'See Tunisian Mernorial. paras.5.33, 5.34 and9.09R.
'See Annex 13,Vol. III.
See Tunisian Memorial, paras.4.15 and 9.1
'Seeparas.258and 259below ;eealsoAnnex 1,VolIIIandthemaps thatfollothetextof
thatAnnex. COUNTER-MEMORIAL OF LIBYA 155
Archaeology
20. ln paragraphs 5.06ff t.e,Tunisian Memorial makes much play
with evidencethat certain archaeological sites along the coast, which were
abovethe surface of the sea, are noweither whollyorpartially submerged.
Using this as evidence, it is clairned that the continental shelf area in
question is virtually a submerged Tunisia. In fact, as is shown in
paragraphs 220 through 230 below, this evidence shows nothing of the
kind. It may be noted that al1the sites in question are very near to the
mainland coast or the islands' and prove nothing regarding the offshore
areas with which weare concerned. In any event, the fact that the sea has
in the past advanced and receded has nothing to do with the continuity of
the landmass into and under the sea.
The 'lonian Abyssal Plain" as a 'Geological:' Factor
21. The imaginative reach of the Tunisian Memorial, which is
remarkable in itsreliance on"archaeology", isevengreater when it tries to
identify a point in the "lonian Abyssal Plain" as the focal point for the
continental shelvesofTunisia and Libya. This attempt to extend Tunisian
claims far up the Mediterranean Sea, not only past Libya but past Italian
and Maltese territory as well, is as extravagant as it is unreal. As is
pointed out in paragraphs 445 through 453 below, this notion is wholly
alien to the concept of the continental shelf as the extension of theand-
massof the territory of a State, and it isbased onthe false premise that the
"lonian Abyssal Plain" isa trianglethat existsas a geologicalfact. There
are in fact two quite distinct deeps separated by the Medina Bank and
joined onlyby a narrow connection2. Each may be regarded as an "abys-
sal plain" but theyare by no means one and the same. Even if one could
conceive of the continental shelf of two States extending to a point, as
suggested in theTunisian Memorial, it would beinteresting to knowin the
present case to which "abyssal plain" it would be said to extend.
SECTION 3. General Statement of the Libyan Case
22. 1tis intended here to give only a very brief indication of the main
linesof the Libyan case. For a long time Tripolitania and now Libya has
faced continuing pressure eastward by Tunisia3. At the beginning of the
last century. the exercise of normal powers of government and control
from Tunis did not extend beyond Gabes. During the 19th Century,
Tunisian pretensions extended as far as El Bibanand, followingthe estab-
lishment of the French Protectorate, were pushed still further east from El
Biban to Ras Ajdir. Under strong pressure, the Ottomans finally had to
accept Ras Ajdir in the 1910 Convention as the point on the coast from
which the boundary ran inland in a generally north/south direction4.
More recently. this eastward extension has been paralleled by Tunisian
clairns with respect tosedentary fisheries. The earlier history of the land
@ 'See TutlisionMernorial, Fig. 5.02.
'See para452 bclow andthe reproductionof a mapfacing316below.
.'Therhas. ocourse.becn prcssurcby Tunisiasouthwardas well.
'See LibyanMernorialpara.22 andAnnex 1-3 to thMemorial. 156 CONTINENTAL SHELF [Io]
boundary is being repeated at sea, Tunisia havingambitions which reach
towards the so-called "Ionian Abyssal Plain" depjcted onseveral Figures
inthe Tunisian Memorial'. Nevertheless,there has never been an agree-
ment concerning the boundary seaward of Ras Ajdir and the maritime
boundary between Tunisia and Libya is an open question. This is the
position as regards both the territorial sea and the continental shelf.
23. Libya has throughout wished to maintain close and friendly rela-
tions with Tunisia and to avoid creating a controversial issue. This atti-
tude on the part of Libya isdemonstrated by the history of the petroleum
concessionsand exploitation, and isthe true keyto the proper understand-
ing of the diplomatic exchanges, which themselvesshow the earnest wish
of Libya to avoidanything in the nature of a "dispute" with Tunisia. In
pursuance of this policy,Libya made proposals forjoint exploitation and
tried to refrain from making protests except where there wasactual physi-
cal intrusion on the part of Tunisia. It was in this spirit and with this
purpose that Colonel Ghadaffi. Leader of the First of September Revolu-
tion, on 12 January 1974, signed with the President of the Republic of
Tunisia the Djerba Declaration of Unity declaring the merger of the two
Arab countries2. In the light of this historic Declaration, protests and
counter-protests were regarded by the Libyan authorities as superficial
and meaningless. Libya wantedbrotherhood and unity. The crisis that
followed was not of its making.
24. Since, contrary ta the original wish of Libya, there must now be
shelf delimitation, Libya bases its position onestablished principles and
rules of international law: that is to Say,delimitation must be in accord-
ance with equitable principles giving full effect to the basic principle of
natural prolongation and so as to ensure that the delimitation does not
involveencroachment by one State on areas of continental shelf whichare
the natural prolongation of the other.
25. In the present case, the great weight of evidence and the relevant
circurnstances-geological, geomorphological, physiographical and geo-
graphical-'demonstrate that the area of continental shelf to be delimited
isa prolongation northward of the North African landmass. The attempt
by Tunisia to divide the Pelagian Sea into different areas is a distortion of
nature. For the continental shelf area concerned isbasically undifferenti-
ated and formspart of the Pelagian Basin3,a distinct geologicand physio-
graphic~unit at the rim of the stable African platform, without marked
@ :Sec. e.gTunllian MernorialFig.9.02.
A copyof the DjerbaDeclarationof Unity is attacheAnnex 5. Vol. II.
.Inconnection,withtheuseof theterm "PelagianBasin"see fn. 1at p.90 below. See also,
Libyan Memorial,para.62,which describesthe PelagianBasinas follows:
"lis northern boundary rualsong the PantelleriaTrough. On the south, it is
boundedby theGafsa-Jeffara fault, whsa partof a riftvalleyrunningfrornthe
edgeof the Gulf of Sirt in Libyato the longitudeof Gafsa in Tunisia. Thus, the
JeffaraPlain. whichis the northerncoastal plainof Libyaand whichalsorunsinto
southeasternTunisia,isincludedwithinthePelagianBasin. Totheeast,the Pelagian
BasiniscutORbya north/southfaullzoneal theeasternedgeofthe MedinaBank,
knownas the Misratah-MaltaEscarpment. Tothe West.the PelagianBasintermi-
Ifoornoie conrinued rhe next page) [il] COUNTER-MEMORIAL OF LIBYA 157
features that would affect delimitation or that could be regarded as show-
ing the existence of more than one continental shelf or of a "borderland"
area. The Pelagian Basin, which includes part of eastern and southern
Tunisia, has an African affinity'. It is in fact the northward extension of
the African plate and hence of the African continent and landmass, a
different geologicregion frorn that part of Tunisia which isdominated by
the Atlas Mountains. This continuity between the North African land-
mass to the south and the Pelagian Basin to the north isfirmly established
by scientificdata, as surnmarized in paragraphs 201 through 203 and 244
below and as developed in greater detail in paragraphs 263 through 274
below and in the special s'udies appearing as Annexes11 and I2A and
12B, Volume III.
26. The practical method set forth by Libya remains faithful to the
northerly projection of the continental shelf from Ras Ajdir and produces
a result which, forthe reasons givenin paragraphs 493 through 531 below,
takes account of the relevant circumstances and is equitable.
-- -- . .. . -
Voornor coniinuedfrom the precedingpage)
nates at the very pronounced north/south fauli zone extending from Gabes in the
south ta Tunis in the north, thus encompassing as pari of the Pelagian Basin the
eastern part ofunisia. This western boundary is pariicularly significant since it
marks the division.ied above, between the stable AIrican platform and the Atlas
Mountain region, which is part of the mobile Alpineregion, a quite different region
geologically from the geological unit comprising the Pelagian Basin."
@ lSee Figure Ifacing p.10.which shows thal the Pelagian Basiii Iorms pari of the stable
North African landmass. PART I
THE HISTORICAL BACKGROUND
CHAPTERI
THE NATUREAND ORIGINSOFTHE DISPUTE
SECTION 1. The 1955 Libyan Petroleum Law and Regulation
No. 1 andMap No. 1
27. Exploration and attempts at exploitation of oil resources are of
rnuch inore recent originin Libya than in Tunisia. At the time whenthe
Petroleum Law No. 25 of 1955 came into force, itwas still unknown
whether the territory of Libya contained any oil. No exploration activi-
ties insearch of oil had been carried out before the independenceof Libya
in 1951. The Petroleurn Lawof 1955wasdesignedtoencourage extensive
exploration for petroleum in the shortest possibletime in areas overwhich
Libya claimed sovereignty or sovereign rights.
28. The Petroleurn LawNo. 25of 1955.read together with Petroleum
Regulation No. 1 of 1955 and Map No. 1'annexed to the Regulation,
made a clear and public claim to sovereign rights for the purpose of
exploration and exploitation for petroleum in the area defined by the
Regulation and the Map attached. As stated in paragraph 31 of the
Libyan Mernorial, both the Petroleum Law No. 25 of 1955and the Petro-
leum Regulation No. 1 with the official Map of Libya attached were
published in the officialGazette for 1955'.
29. Article 1of Law No. 25of 1955stated that al1petroleum in Libya
in its natural statein strata was the property of the Libyan State, and
prohibited any person from exploring or prospecting for, mining or pro-
ducing petroleum in any part of "Libya" unlessauthorized by a perrriitor
concession issuedunder Law No. 25 of 1955. Then, by Article 1 of the
Regulation, it was provided as follows:
"There shall be an official rnap of Libya for the purposes of the
Petroleum Law 1955 to a scale of 1:2,000,000 called Map NO. 1,
which is attached as the First Schedule hereto. On this map the
international frontiers, Petroleum Zones and the grid shall be
indicated."
Of course. "Map No. 1" is the Map No. 1 mentioned above, a reduced
copy of which is attached to the Libyan Memorial in Annex 1-9C. SO it
@ 'The data appearing on "Map 1'hîr been reproducedMap 3. A copyof "Map No.
1"isalsoincluded in the LibyonMemorialopposite p. 15and, as'indicatatthat. 3
''467 page, the western boundarthemaritime area isoutlined by a bold lineon that Map.
It should be noted that this western boisindicated on the maby aninterna-
tional boundarsigrunning north froRas Ajdir whereas the liofotherareasare
indicatesimplybya dottedline.
'Copies of the relevant articles of the Petroleum Law No. 25 of 1955and of Petroleum
Regulationo. 1of 1955in the original Arabic, togeahreduced copyof "Map No.
1".are attached Annex 1-9Aand 1-9C respectivelyto the LiMernorial.English
translations are contaiAnnexer 1-98 and 1-9Dto the LibyMemorial. iigl COUNTER-MEMORIAL OF LlBYA 159
was made absolutelyclear in 1955 that Libya was claiming a maritime
boundary continuingnorthward from Ras Ajdir inthe general directionof
the land boundary established by the 1910Convention. There can be no
doubt about the general directionof the maritime boundaryon Map No. 1.
It runs north parallel to the meridian 12"E. (This is in effect a con-
tinuation of the land boundary from the boundary marker No. 31 at Ras
Ajdir.)
30. It isnot conceivablethat this legislationwas unknownto Tunisia.
Not only wasit publishedin the Gazette, but information of this kindwas
available from other sources. For example, the organization Petrocon-
sultants S.A., with officesin Geneva, Switzerlandl, has for a long period
maintained an information service which makes this type of information
available to governments and oil cornpanies. Oiland gas information
regarding this specific legislationwas published in thOil and GusJour-
nol and thus was common knowledge amongthe oiIcornpanies workingin
the area, many of which had closerelations at the time with bath Libya
and Tunisia2. The Law wasalso referred to in a bookletpublishedby the
Petroleum Commission of Libya entitled "Petroleum Development in
Libya 1954 through mid 196lW,which waspresented tothe Third Arab
Petroleum Congressin 19613. YetTunisia hasmade noprotest or reserva-
tion at any time regarding either the Law or the Regulation.
SECTION2. History of theConcessions
31. The chronological developmentof the Tunisian grants of conces-
sions, starting from the "Gulf of Gabes area", showsan ever increasing
reach eastward. In fact, according to information received from
Petroconsultants; two grants in offshore areas were made by Tunisia in
1964 and two in 1965. These concessionsare shown on the Petrocon-
sultants' mapsfound in Annex 9,VolumeIII, givingthe Tunisian conces-
@ sion situation as of 31 December 1965'. In addition, Map 4 facing this
page has been prepared for thisCounter-Memorial so that the history of
Tunisian concessions may more easilybe followed. ConcessionNos. 1
and 4 to Petropar and Rimrock respectivelyare of no particular concern
for the purposesof the present case,althoughitisof someinterest that the
boundary between Concession Nos. 1 and 3 runs seaward from Ras
Kaboudia. The twoconcessionswhich cal1for specialattention are Nos. 2
and 3. Concession No. 2 was granted in 1964 to the French Société
Nationale des Pétroles d'Aquitaine andRégie Autonome des Pétroless;
'Referred to hereafter as "Petroconsultants".
'Copies of the relevant articles appearingin the 2016May 11955and 25 July
1955 issues of the Oil and Gos Journo1and specificallyreferring to the legislation. are
attached as Annex6, Vol.Il.
ln accordancewith A50,para. 2 of the Rulesof Court, a copyof thisbooklethas been
depositedwith the Registrar. Similar bookletswere presentedto the First and SecondArab
Petroleurn Congressesin 1958 and 1959.
'Theoriginofthe dashdot lineonthisand other Petroconsultants' mapsisnot known. Each
internationalundaries".ote stating, "thisNOTpan authority on the delineation of
Referred 10hereafter as "SNPA/RAPw. 160 CONTINENTAL SHELF il9]
Concession No. 3 was granted in 1965 to the "Husky" group formed by
Tunisian Husky and several other cornpanies. The point to be noted as
@) Map4showsisthat part ofthe eastern boundary of ConcessionNos. 2and
3 (1964-1965) ran in a direction due north of Ras Ajdir. Although the
boundaries in these concessions are no1given in the Tunisian Memorial,
the direction of this line isvery significant having particular regard to the
Libyan Petroleum Regulation in force since 1955.
32. InJuly 1966,the Husky group released its permit No. 3, as shown
in the Petroconsultants' map for 1966'. In 1967',the SNPA/RAP Con-
cession No. 2 was enlarged, as shown on the Petroconsultants' map for
19673. This Concession was extended eastward by the addition of a
triangular area adjoining the northward line mentioned above and shown
on the Petroconsultants' maps. It was thus that the stepped eastern
boundary of the Concession wasintroduced by Tunisia. This is the Con-
cession boundary that runs in a direction northward at an angle of 26"
from Ras Ajdir. This was the first step eastward by Tunisia into areas of
the continental shelf over which Libya had clearly asserted a claim to
sovereign rights. However, this move eastward is camouflaged in the
Tunisian Memorial by mentioning only the enlarged Concession of 1966
and not the 1964and 1965Concessions,part of the eastern limits of which
ran in a direction due north of Ras Ajdir. To illustrate this'point Libya
@ has prepared Figure 2, facing page 18, which consistsof an overlay show-
ing the 1964-1965Tunisian Concessions obscuredby the Tunisian presen-
@ tation in paragraph 1.O1 and Figure I .O]. It may be observedainpassing
that the grants of concession by Tunisia took no account of the alleged
"ZV 45"" line or of the 50 metre isobath.
33, There was no material change inthe boundaries of the concessions
granted by Tunisia before the end of 1970'. There was. however, a
substantial concession granted in 1971. According to the Petrocon-
suitants' rnap as of 31 December 19715 this grant, to "Murphy-CIGO",
followedthe coast as far east as Ras Ajdir, but the line from that point to
the eastern boundary of the Sofratep concession is not made clear.
34. In 1972,the situation changed dramatically, as appears from the
Petroconsultants' mapfor that year6. The Concessionsnumbered 8and 9
on that map were7granted respectively to CFP-AGIP-AMOCO and
SEPEG. The areas covered bytheseConcessionspushed their boundaries
far to the east in the direction of Malta and across the coastal front of
Libya. Thereafter, the basic situation remained thesame although there
were minor adjustrnents in 1975that do not seem to affect it rnaterially.
Annex 9Vol.III.
FromAnnex 1rothe Tunisian Memoriiappearsthattheaclualdate ofthegrantwas21
Oct. 1966,butapparently this inforwnasnorcommunicatedto Petroconsultantsuntil
1967.
.'Itis of intertonote here. however, that discussionthte maritime boundaries
betweenTunisiand Libyabeganin July 1968. See Libyan Memorial. para.37.
'Acopy O!this mapis attachedAnnex 4.Vol.III.
"~nnex 9Vol. III. 35. The most significant pointsin this history of the Tunisian conces-
sions are: the use of the due north line in 1964';the use of the 26" line
from 1966onwards; the lunge eastward in 1972;and the complete failure
to usethe alleged "ZV 45""boundary or the line of the 50 metre isobath.
36. The situation on the Libyan sideissomewhat sirnpler. Asstated in
paragraph 36 of the Libyan Memorial, on 30 April 1968, the Libyan
authorities granted Concession No. 137to Aquitaine and Exwarb2. The
@ area covered was shown on Map No. 3 facing page 18 of the Libyan
Memorial. The western boundary of that Concession followedthe direc-
tion of the Tunisian Concessions granted in 1967 to SNPA/RAP. No
further grants of concessions were made by Libya until 1974. On 28
September 1974, two grants of concession3 were made: NC 41 to the
National Oil Corporation4/AG1P and NC 53 ta N.O.C./Total. The
western boundary of both these Concessions followed the 26" line. The
@ areas of these Concessionsare shownon Map 5 facing this page. Follow-
ing the relinquishment of an area from the original Concession 137,a new
Concession NC 76 was granted on 17 February 1977 10N.O.C. Again,
the western boundary of this Concession wasthe 26" line.
37. It willbe seen that, notwithstanding a firm belief in the possession
1,467 of sovereign rights up to the line shown on Map No. 1 attached to tlie
Petroleum Regulation of 1955, Libya has exercised considerable self-
restraint in nevergoingwestofthe original 26"concessionlinein thegrant
of further concessions.
SECTION3. Historyof Oil Exploration andExploitation5
38. Interest inoil erploration in Tunisia is not new. Petroleum explo-
ration started there in 1894. Exploration activity was limited to geologi-
cal mapping in the northern part of the country although some shallow
wellsweredrilled in thearea of Medjerba in 19 19. The firstdeep test was
drilled in 1926. This well wasabandoned.as dry above the formation,
which was proved as gas-bearing 23 years later in the Cape Bon Field.
From 193 l onwards, sorne activity was conducted mainly by the French
'A point perhaps mademore significant by the complete faiTunisianMemorialto
mention il.See para. 31 above.
This wasthe first offshoreconcessiongranted by Libya ihat could haveany possiblebearing
on the presentcase. (See reproduction of the Officisl Map of ConcessionNo. 137,which is
aitüchcd as Anncx 7. Vol. ITo avoid misunderstanding, howevimay be noted that
bcfore 1962Libya granted six marine concessionscovering a to28.943sq.km., but
theseconcessionswere in a comparatively narrow strip bordering the GulIn Dec.rt.
1955,ConcessionNo.9 was granied by Libya 10 Mobil Oil Limited of Canada. This was
mainly onshore.but had an offshore areawhosenorthern boundary ran east from RasAjdir.
(Sec the reproduction of the map attached as 7,Vol.II.)
'The word "concession" is herc used to cover both concessionsin the strict senseand
Exploration and Production Sharing Agreements.P.S.A.").
' Hereinafter the National Oil Corporation is referred to as "N.O.C.".
'The facts set forth in paras. 38 and 39 below are based on a Peiroconsultants' Report
attachedasAnner 9, VolIII.Data with regard io Tunisia wastaken from Petroconsultants'
rcporls; howcver, original Libyan data was utilized concerning Libyan concessionsand
activities. 162 CONTINENTALSHELF Pl]
and Tunisian Governments which after World War II was expanded south
intothe Sahara. There was further extensionof geologicaland geophysi-
cal investigations between 1949and 1964in the southern chotts area and
the mostsol~thernpart of the Tunisian Sahara.
39. In 1964,seismicexploration began in the offshore "Gulf of Gabes
region". Between 1965and 1980,according to information provided by
Petroconsultants,71Tunisian offshorewellswere drilled. Comparatively
fewofthese have provedto be productive. Probably the most important is
the Ashtart Well No. 001 drilled by Aquitaine in 1971. Before then.
Tunisian offshore drilling was unproductive. According to the informa-
tion provided,there wereonlytwowellsdrilled in 1965,twoin 1967,twoin
1968,one in 1971 (the Ashtart Well), and three in 1972. Thereafter, the
number of offshore wells drilled increased considerably. In 1973 there
were five,in1974 - seven,in 1975 -five,in 1976 -eight, in 1977- ten, in
1978 - nine and in 1979 -ten. With the increase in the drilling activity,
Tunisia began to push eastward' and there have beenTunisian drillings in
areas to the east of t26" line, which Libya considers are clearly within
its continentalshelf. Some of these activities have compelled Libya to
register protests. This aspect of the matter will be dealt with further at
paragraphs 42 and 52 below. It is particularly interesting to observe the
Tunisian push eastward and southward in relation to the known oil trends
inthe area as portrayed on the Plate to Annex10,VolumeIII reproduced
facing page 20'.
40. As already mentioned at paragraph 27 above, Libyan exploration
forail began effectivelyafter the Petroleum LawNo. 25of 1955 cameinto
force, but oil strikescame onshore in mid-1959and early 1960. Develop-
ment wasso rapid that, in 1961, it was possibleto amend the Petroleum
Law of 1955 by Royal Decree so as to improve from the Libyan point of
view the terms on which concessions were granted, because it was no
longer necessary tooffer terrns that would encourage foreign investment
and exploration. An explanation of these changes is given on pages 7
through 16 of the booklet published by the Libyan Petroleum
Commission3.
41. The growth of oil production from onshore sources in Libya was
rapid and Libya soon took its place among the major oil exporting coun-
tries of the worid. Offshore, Libya has also been fortunate. Between
1968 and 1976, 15 wells were drilled in the area of Concession 137.
@ Several of these wells, which are portrayed on Map 6. are productive. It
will be noted that there have been no Tunisian protests against these
activities in Concession 137.
-
'This pushhas been southwtowardthe LibyanCoastas wellaseastward. Significantly,
Tunisia began expanding itcslaims tothe southandeast after theCompanyAquitaine had
@ dircovcredoil within Concession137grantedby Libya. SMapal7 iacing p. 26.
Referencernayalsobemade to the geological evidence and additional plates showing
@ hydrocarbonsysternsand trends attacAnaex 10, Vol.III.
attachedasAnnex8. Vol.11. 1961bookletpublishedbythe Libyan Petroleum Commission [221 COUNTER-MEMORIALOF LIBYA 163
42. It was not until 1976that Tunisia embarked on a courseof protests
relating to Libyan activities'. The protests made haverelated to activities
even whenthey wereconsiderablyon the eastern sideof the 26"lineand as
@ shownon the overlay toMap 6 even to the east (and south) of the line of
delimitation claimed by Tunisia in its May 1976 Memorandum'. As
atready indicated, Libya on the other hand tried to keep protests to the
minimum in view of its paramount interest in joint exploration and
exploitation and the status of negotiations between the two States. In
fact, the onlyntergovernmental protest by Libya3wasthe one made cin18
ApriI 1976 regarding the buoys placed by Tunisia east of the 26" line.
This isa matter to whichit willbenecessary ta revert belowinthe context
of the diplomatic history4,but it should be stressed that Libya did not
protest the nominal grants of concessions.
43. Before passingto a brief examination of the diplomatic history in
Section 4 below, it should be noted that the expression "26" line" is a
notional one used for convenience. It represents the direction of the
eastern boundary of a concession granted by Tunisia and the western
boundary ofa concessiongranted by Libya. It wasat notime accepted by
Libya as the legal line of delimitation of the areas of continental shelf
appertaining de jure to Libya5. Libyan sovereignrights up to the due
north line were declared by the 1955Petroleum Law and the 1955Petro-
leum Regulation issued thereunder and have never been abandoned by
Libya nor protestedbyTunisia. However,the 26' line and the other lines
mentioned in footnote 5 to this page do suggest the kinds of lines that, in
the context of negotiations, might have been put forward for discussion.
Infact, the 26" line wasbrought up by Libyainthis context at a time when
joint exploration was the objective of Libya.
SECTION 4. Relevanceof the DiplomaticHistory
44. Apart from the statement of the Tunisian case in its widelycircu-
lated Memorandum of May 197@,the diplomatic history has very little
bearing on the question of delimitation of the continental shelf at issuein
'To the contrary.during this period Libyan concessionairesregularlyuscdthe Tunisianport
of Sfax in connection with their petroleum activities. See copies of the correspondence
relating to the use of Sfax. attacAnnexs9, Vol.II.
zSee paras. 52 and 55 below.
'See. however,para. 55 below.
'See para. 52 below.
jIn fact, there have beenoverthe yearsa numberof linesthat havehad somerelevance. In
para. 113belowlinesof 2" 15'an8" are mentionedin relation to the 1904 Instruction of
Tunisia. The French Instructiom Nautiquehave noted the presence of two unlighted
beacons lying offshore.the purpofewhich hasnever been entirely clear, whether as
navigationalor as boundaryrkers, but which liealong linesof 8"11"drespectively
from Ras Ajdir.InsrructionsNautiques.Afriqu(CiitNord)-Levant. Vol.VI,1968,p.
20L.(A copy ofthispageisattachedAnnex 10,Vol.II.) Thesetwobeacons wereinserted
on the British Admiralty charts in Nov. 1914on the authority of a French navigational
notice. A lineof north/northeast (or approximately22" 30') isreferred toin the 1919and
1931Tripolitanian Instructions referred toin paras. 133 and 136 below.
5ee para. 4 above. 164 CONTINENTAL SHELF il31
, these proceedings. However,the extensive use made by the Tunisian
Memorial of the diplomatic exchanges and truly minor incidents during
the discussions (such as the failure of the Parties to draw up agreed
minutes or records ofmeetings) makes itunavoidablethat inthisCounter-
MemoriaIthe diplomatic historyshould be put into its proper perspective.
It might be imagined fromthe TunisianMemorial that Libya had adopted
a generallyspitefuland uncooperativeattitude towards Tunisiauring the
relevant period from1968tothe signingofthe Special Agreementin 1977.
Any such impression is completely false.
45. On the contrary, Libya was movedbya deepdesirefor cooperation
and unity. Libya entered into negotiations with Tunisia ona widerange
of subjects with that end inview. As a result, there emerged a large
number ofagreements and related documentsdealingwith variousaspects
of cooperation betweenthe two countries. There are24 such agreements
still in force,oint procès-verbaux and fivejoint ventures or enterprises.
The aim and objectofjoint explorationandexploitationofthe resourcesof
the continental shelf was noempty dream.
46. A list of these agreements,procés-verbaux and joint ventures is
given inAnnex II. Volume JI,but it may be worth mentioninghere, in
particular the following:Agreement on Economicand Cultural Coopera-
tion signed on 15 August 1970 which came into force on 5 September
1971; Agreement on Agricultural Cooperation signed on 5 September
1971 which came into force on 14 December 1972;two Agreements on
Fishing signedon 5 and 6 September 1971 which came into force on
signature; Commercial and Customs Agreement signed on 6 June 1973
which came into force on 1 February 1975;Agreement to Facilitate the
Transfer of Capital for Investment and its Protection signed on June
1973whichcame into forceon 1February 1975;Agreement onOrganiza-
tion of the Workof Tunisian Contracting Companies in Libya signed on6
June 1973 which came into force on 1 February 1975; Agreement on
Property Rights, Work and Professional Activitiesand Residence signed
on6June 1973whichcame intoforce on 1February 1975;and Agreement
providing forthe Grant of Loansby Libya to Tunisia signedon 2 Novem-
ber 1973 and which came into force on 18 July 1977.
47. Several of these Agreements were the fruit of the work of the
Supreme Comrnitteeon economicand politicalcooperation establishedin
accordancewiththejoint agreementsof the leadersof the twocountries in
December 1972. As indicated in paragraph 38 of the Libyan Memorial,
this SupremeCommittee was setup forthe task of followingup and giving
effectto the workofa nurnberof specializedtechnical committees. These
includeda Cornmitteeon the Continental Shelf which,in the spirit of the
decision to establish the Suprerne Committee on closer economic and
politicalcooperation, was intended to findan appropriate formula for the
achievementof al1phasesofjoint exploitationof.the maritime areas of the
twocountries. Sofar as Libya isconcerned,theseventures incooperation i241 COUNTER-MEMORIAL OF LIBYA 165
were undertaken with enthusiasm and in good faith, and expression was
given to this general policy by the Djerba Declaration of Unity of12
Jünuary 1974'.
48. It wasno fault of Libya that Tunisia, especially from 1974onward,
pursued a policy of unilateral extension of her maritime claims eastward
and seemed almost anxious to findor provoke "incidents". Tunisia seems
to have been determined to stretch itsgrasp into Libyan areas of continen-
tal shelf where the prospect ofinding oil at commercial depths and in
commercial quantitiesappeared to be better than in areas of the continen-
tal shelf appertainingro Tunisia" Even in dealing with Italy in the
context of the 1971 Agreement on the Delimitation of the Continental
Shelf, Tunisia seemed intent .on improving her position against Libya.
The line drawn on thernapin the region of Lampedusa Island, purporting
to be a delimitation betweenTunisia and Italy. was extended soas to reach
intoareas which. in the viewof Libya. belonged to it and which it seems
clear cannot appertain to ltalyr to Tunisia3.
49. Accusations and counter-accusations between the Parties cannot
help the Court to solvethe problems that have been brought before it by
the Special-Agreement. Unfortunately, the atmosphere of crisis which,
accurding to Chapter 1,Section II, of the Tunisian Memorial, was said .to
have arisen in 1976-1977 seerns tohave been carried by Tunisia into the
Memorial itself. The so-called crisis was certainly nthe creation of
Libya which.as the statements made on behalf of Libya show,wished to
act ina spirit of brotherhood and conciliation. Tunisia, on theother hand,
seeks to cast a shadow of blame over Libya. In paragraph 1.25 of its
Memorial, it expresses concern "over the rising tension betweenthewo
countries due to theattitude of the Libyan authorities" and, in paragraph
1.21,itaccuses the Libyan Governrnentof "expecting Tunisiatoagreeto a
line decided by it alone". Yet it isapparent that it was Tunisia and not
Libya that wasrelying on unilateral extension of its maritime claims both
as regards alleged fishery zonesand as regardsthe continental shelf. This
is no doubt why the Libyan Government returned the Tunisian Note
Verbale No. 980 of 15 March 1976'. The map attached to that note
purports to show"the positionof the Republic of Tunisia on the subject of
delimitation of the continental shelf between the two countries" and. on
.the basis of the line shownon that map, to accuse Libya of trespassing on
part of the continental shelf belongingtoisia. The line shownon that
map is arbitrary. and drawn unilaterally, running roughly at an angle of
45" from the point where the land boundary rneets the sea at Ras Ajdir.
@ This line is depicted on the map attached to Noie VerbaleNo. 980.
jSeepara.23abae.
See para.39 aboveand the Plate facing p.20 above.
Tunisiahasprovidnoexplanationorsuppofothe extensionof thatline southwardon
@ the"1977"Map(O.T.C. 1980) includedinTunisiaMernorialin Fig. 1.01oppositep.
9. See Fig. 3 facing this page .y overlay,shows the trueexofthe linof
@@ @ pmmi'I1.iion. This snmedistortionspprarralso in Figs 1.01 anci 1.04 in thr Tuniriun
SeeTunisiaMemorial,Annex 24 fora French translofNore VerbaleNo. 980.166 CONTINENTALSHELF [z51
Notice of this "delimitation of the Tunisian Continental Shelf' was given
by the Tunisian Minister of National Economy toGroupe Elf-Aquitaine in
a letter dated 27 April 1976'. The letter stated that this delimitation
would remain in force until the delimitation of the continental shelf inthe
region by agreement between the interested parties.
50. One may contrast with this the constant restraint of Libya in using
as a point of reference a linedrawn in the direction of about 26"from Ras
Ajdir which was first adopted by Tunisia in the 1966 concessiongrant to
the French CompanyAquitaine. However Tunisia may now attempt to
present the facts, itis quite clear that Tunisia from 1968 was well aware
that a concession followingthe direction of this line had been granted by
Libya tothe same company, Aquitaine. This was in spite of the fact that,
according to Libyan legislation, Libya regarded the maritime boundary as
running due north from Ras Ajdir. It istrue that there was never express
agreement on the 26" line, but, without any abandonment of legal posi-
tions on either side, there was for practical purposes a working arrange-
ment with Aquitaine by virtue of the concessionsgranted by Tunisia and
by Libya to that company. It is,to Saythe least, an exaggeration to claim,
as does the Tunisian Note VerbaleNo. 563 of 13 April 1976', that the
Tunisian Government had opposedsince 1968the concessiongranted by
Libya of Concession 137. Where are the protests by Tunisia? They are
not to be found in paragraph 1.O7of the Tunisian Memorial; nor everiin
the unilateral record of the discussions in July 1968 between representa-
tives of the Parties3which States that a foreign company had signed with
the two countries agreements having for their fieldof activity neighbour-
ing maritime regions. This was obviouslya reference to Tunisian Conces-
sion No. 17and the Libyan Concession 137. Indeed. the record seems to
show that the discussion was almost entirely related to the claim by
Tunisia toa fishery zoneextending as far as the 50 metre isobath and the
Libyan clairnto a due north line. There doesnct appear to have beenany
discussion of the line beyond the 50 metre isobath, and the 45" line
claimed by Tunisia forthe fishery zonewould affect onlya very small part
of the area of Concession 137. Itisfutile, in the light of this evidenceand
the facts as they are known. forTunisia to Say,as it does in footnote 1 to
paragraph 1.05,that the area of the Concessionhas neverbeen "oficially"
publicized by Libya and that the only information given10Tunisia by the
Libyan Government regarding the area towhich it relates iscontained in a
NOIPVerbaleof 30 March 1976. It isobviousthat Tunisia waswellaware
of the Concession granted to Aquitaine, as appears from the diplornatic
history presented by Tunisia itself and in particular the unilateral record
of the July 1968 meeting4.
' A copyof this letteris attacheAnnex 12. Vol. II.
'See TunisianMemorial. Annax 27 foraFrench translatioof Nore VerbaleNo. 563.
.'lbid.an ne.8.
' lbid.. .4nnexLibyadoes no1acceptthe accuracy ofthis recordorany of the unilateral
recordsproducedby Tunisia andexpresslyreservesitspositionintheirdeItish,owever,
affirmedthatinthe Libyanviewitwas theTunisianrepresentativeswhorefusetosign the
ProcPs-Verbalof the meetingin July 1968. [261 COUNTER-MEMORIAL OF LIBYA 167
51. As appears from the Libyan Note Verbaleof 30 March 1976',the
attitude of Libya wasconciliatory. Libya believedthat there wasin fact a
common understanding about the use of continental shelf areas on either
side of the 26" line, but above al1 wished to proceed in a cooperative
manner. Libya was not in fact relying on a line established unilaterally
and in an arbitrary manner, such as the line which Tunisia purported to
establish unilaterally as shownon the map attached to itste Verbaleof
15 March 1976'.
52. This attitude of Tunisia is not due to any accident or oversight but
is obviously a sustained and deliberate policy. Reliance on the Tunisian
unilateral lineof 15March 1976emerges again in the Tunisian Memorial.
IIisused as a basis for objection to the Libyan attitude in connection with
three buoys whichTunisia sought to place within the area of Concession
1373and four buoys which Libya for its part sought to place within the
same area4. In paragraph 1.23of the Tunisian Mernoriai, Tunisia excuses
the three buoys on the ground that they were "well to the Westof the line
@ shownon the map annexed to the Tunisian Note of 15March 1976". On
the other hand, it should be noted that theisian buoys werewellto the
east of the 26"lineand in an area where drilling in exercise of the Libyan
Concession had been goingon for some considerable time. The three
Tunisian buoys were in an area approximating the location 33O51' N;
12'03' E. Yet,as must have beenwellknownto Tunisia, a Libyan oil well
had been completed in theregion in 1971in a position33" 34' 57"N; 12"
06' 32" E. It may be rnentioned that, also in exercise of the Libyan
Concession,the drilling of a dry holewascompleted in 1975at 33" 51'41"
N; 12" 05'24" E, and an oil wellwas cornpletedin 1976at 33' 51' 41" N;
12"04' 24"E. These activities, which must have been known toTunisia,
were never the subject of protest. Indeed, the first attempt by Tunisia to
interfere with activities of Libya was when protested to the laying of the
four buoys on the Libyan side of the 26" line. Again, in this connection,
relianceis placed by Tunisia on the fact that the point where the four
buoyswere located was "to the Westof the line comrnunicated to Libya by
the Tunisian Note of 15 March 19765".
53. The incident of the Maersk Tracker is in a different category.
There wasof course neverany intention on the part of Libya totrespass in
areas falling within the Tunisian territorial sea. However, it is recalled
that there were and are differences between the Parties concerning the
delimitation of the territorial sea as between their two countries. The
intention was that the Maersk Tracker (a Danish supply ship equipped to
take soundings and not for drillingperations) should take soundings in
areas falling within Petroleum Zone No. 1 as established by,the Libyan
Petroleum Law and Regulation of 1955. The reaction of the Tunisian
'SeeTunisioMcmorial,Annex26 fora Frenchtranslation NoteeVerbalof30Mar.
1976.
'IbidAnnex 24 foa Frenchrranslaiionof Noie Verbalof15Mar. 1976.
@ :IbidAnnex 31 SeealsoMap 7 faringthispafoithe lmationof the Tunirianbuoys.
@: See Map 6facing 20 above.
SeeTunisionMemorial,para.1.24. 168 CONTINENTAL SHELF
Government wasunderstandable, but there does notseemto be any reason
why the vesse1should not take soundings in areas of the high seas, espe-
cially inareas whichwereregarded as beingpart ofthecontinental shelfof
Libya. Itwas perhaps unfortunate that the coordinates definingthe area
of operation of the Maersk Trackerwent slightly Westof the boundary of
Petroleum Zone No. 1 (1955), but there is no evidence that the ship
carried out any operations to the Westof the boundary of the Zone. and in
particular,inareas that could properlyberegarded as part of the Tunisian
territorial sea.
54. The activities of the Maersk Tracker,the reactions of the Libyan
Government in that context,and the incidentsof the buoysin areas which
forgood reason wereregarded by Libya as falling clearly within its conti-
nental shelfconstitute extremely thin justification forthe charge made in
paragraph 1.25of the Tunisian Memorial. It is there said: "Concerned
overthe rising tensionbetween'thetwo countriesdue lo theattitude of the
Libyanauthorities,the Tunisian Government-decidedto address itself for
the first time to international opinio..'". TOthat end (says paragraph
1.25) the Tunisian Government, on 3 May 1976,gave wideinternational
distribution to a "Memorandum on the Delimitation of the Continental
Shelf between Tunisiaand Libya", which placedits main'reliance on the
application of the equidistance method now rightly abandoned in the
Tunisian Memorial. It isdifficultto imagine any movemorecalculated to
increase tension than the Tunisian appeal to world opinion without any
consultation with the Government of Libya.
55. Frornparagraph 1.27of the Tunisian Mernorial, it appears that by
adopting a '%eryfirm attitude" the Tunisian Government hopedto intimi-
date the Libyan Government andtodeter itfromexploration and exploita-
tion ofits owncontinental shelf. Several pages of the Tunisian Memorial
are largely devoted tothe activities ofScarabeoIV which, in June 1976,
was to begin drilling and prospecting in an area identified by the coordi-
nates "33" 31'3" N; 12"24'4" E2". It wassubseqclentlyrnovedto an area
identiiied by the coordinates "34" 1'5",54 N; 12" 34' 13",34 E." The
latter location was described by Tunisia as "unquestionably" situated
@ withinthe Tunisian continental shelf a. In fact, as can beseenfrom Map 6
facing page 20above,the drilling activitiesat both locations (indicated on
Map 6asthe two northernmost sitescircled in red) werewellto theeast of
the 26"line and were closeto the line unilaterally presented by Tunisia in
its note of15 March 1976. The samedictatorial attitude is reflected in
paragraph 1.33 of the Tunisian Memorial where it is stated that the
location of operation of drilling of the Isis and Zohra Wells (drilled by
'ltalics added.
A photographof the twin platftotheScarabeoIVis shownfacingpage26. Thedaily
rentalforthis platform,onwhich some80personsworkat onetime,hasbeenestimated
atU.S. 554,000. In addition,two supplyshipsaadhclicoptcrserviccdthe platform at
considerablecost.hcserealities,considercdtogetherwiththe fact that it takesaplatform
suchas the Scarabeo IV ten days from thetirnedrilfingis haltedto the time when the
platformrnaybe mavcd,highlightthe obvious irnpracticyf Tunisia's demand thta
platform of thisze "leaveimmediattl( TunisianMemorialpara. 1.32).
'See TunisiaMemorial,para. 1.31. Total under Tunisian license) was "undeniably" within its continental
shelfas wasshownby their coordinates "12" 33'28"Eand 34"33'59"N"
in the case of Isis and "12" 35' 24"E and 34" 28' 52" N" in the case of
Zohra'. Happiiy, the French company, Total, acting under Tunisian
license, did stop work at those two sites in response to Libyan objections.
56. Followingthe dangerous activities of the Tunisian navy and the
threat of proceedings by the Tunisian authorities2, the Italian company
SAIPEM (the ownersand operators of ScarabeoII/) alsocloseddownits
operations but without authorization from the Libyan Government. It is
untrue, as stated in paragraph 1.34 of the Tunisian Mernoria1,'that
SAIPEM was being threatened with nationalization by Libya. It is true
that theassets of the cornpany's Libyansubsidiary had, on 19September
1976, been bought by the N.O.C. of Libya. But, these assets did not
include the drilling platforrn Scarabeo IV and there was no question
whatever of nationalizing the company. The N.O.C., however,was soon
able to engage the interest of the American company Reading & Bates
Drilling, and the J. W.Butes (a drilling ship) was able to resurnedrilling
operations in the area where ScarabeoIV had been operating. As stated
on behalf of the Libyan Government at the tirne,it isnotcorrect to Say(as
does paragraph 1.37of the Tunisian Memorial) that the J.W.Butes was
"escorted" by three Libyan navalvesselsincluding a submarine. In fact,
it was Tunisia which sent naval forces to the scene with the ostensible
purpose of preventing the J. W. Bates frorn performing the very precise
task of "spudding3"by circling the ship and causing wavesthat hampered
the operation4. For this reason, Libyadid send naval units tothe site as a
warning so that the operations could proceed. There could not properly
beany ground for objectionbyTunisiatothe presenceof Libyanvesselson
the high seas for the purpose of protecting a drilling unit belonging toa
foreign company performing services for the N.O.C.
57. It was in the context of the Tunisian demand to SAIPEM to stop
the drilling operations of Scarabeo IV that Major Jallude in a press
interview made the statement of 15 March 1977 attributed to him in
paragraph 1.35 of the Tunisian Memorial. Moreover, the staternent
made was factuaily correct. Whether, strictly speaking, intended as a '
delimitation or not, a concession was granted by Tunisia in 1966 to the
@ Tunisian onshore petroleum activities.he Isisand Zohra Wells. Map 7alro prtrays sll
'See the Procès-Verbalof 17 Feb. 1977 attached as Antathe TunirianMemorial.
Within thc pcriod beiween 17Feb. 1977 (the date of deaiTunisian warship of the
Procès-Verbal)and 27 Apr~l1977,the Tunisian navy made 14visits to the site al which the
Scarabeo IV was stationedThis prornpted the Italian authorities to send warships to
proiecttalian livesand properiy. Numerous ltalian warships werereported to havevisited
the site. Sec Annex 13. Vol. If.
:'"Spudding" rerers to the first boring of the hole in the drilling of a well. WILLIAMS.
Howard R.and MEYERS.Charles J.: Oiland Cas Terms. 4th edition. NewYork.Matthew
Bender,1976pp. 563 and 564. (Copies of these pages are attached as Annex 14, Vol.II.)
Thc Tunisian warship No. E7delivered awarning from the Tunisian Ministry of Defense10
the drilling sJ.W.Bares.and the Tunisian Ambassador in WashingD.C.threatened
ihc ownersor the ship that the Tunisian Government would use any measures under its
controlIocause the aperation ta ceaSeeAnnex 15. Vol. fi. 170 CONTINENTAL SHELF
French company, Aquitaine, the eastern boundary of which followed the
direction of the26" line from Ras Ajdir. In 1968, Libyagranted a cances-
sionto the same company with the 26"lineas its westernboundary'. There
could be no doubt that Tunisia was in fact well aware of this grant by
Libya', whichwas the occasion for the talks in July 1968when, as isshown
by the unilateral record of Tunisia, discussion was devoted to the question
of Tunisian fishery rights and the Libyan claini to a line running north-
ward from Ras Ajdir. There was no cornplaint at that meeting about the
western boundary of the Libyan concession. Nor was there any attempt
by Tunisia to interfere with Libyan operations east of the 26" line until
1974. Tunisian statements to the contrary do not carry conviction3.
58. On 2 June 1977, Colonel Ghadaffi made a statement, a French
translation of which has been set out in Annex 65 to the Tunisian Memo-
ria. Colonel Ghadaffi reiterated the position of Libya based on the
corresponding grants of concessions in 1966 by Tunisia and in 1968 by
Libya and stressed that the drilling by Scarabeo IV was 45 kilometres to
the east of the dividing line between the concessions, although Tunisian
propaganda had wrongly given the people of Tunisia the impression that
the drilling was in the "Gulf of Gabes". While stressing the unreasoha-
bleness of the line put forward by Tunisia, which wouid have extended the
Tunisian continental shelf to a pointnorth of AI-Khums5, the statement
was a mode1of patience and self-restraint and emphasized that the proper
solution lay inArab unity and the unification of the two States-a refiec-
tion of the still pending Djerba Declaration of Unity. Nevertheless. hav-
ing been in touch with President Bourguiba of Tunisia, Colonel Ghadaffi
was prepared to accept a settlement of the problem by appeal to
"arbitration".
59. Ifthere was any crisis, therefore, itwns precipitated by Tunisia
rather than by Libya. Asthe record shows, Libya has throughout adopted
a conciliatory attitude without yielding her legal rights to the "firrn atti-
tudee'and demands of Tunisia. Libya has been anxious and willing for
cooperation as between brother Arab States and in particular wished to
reach agreement on joint exploration and exploitation by the two States.
In this spirit of conciliation. Libya agreed with Tunisia to submit the
matter tojudicial settlement and now willingly accepts adjudication by
this honourable Court in accordance with the Special Agreement.
'Scc para. 36 above.
'Sce para50 above.
'In para. 1.39or the TunisMrtiiorioreference inmadeto a television broadcast on 29
May 1977by Mr. Atteiga (who had tüken part in the discussionswith Tunisian experts on
thc "Cantinenial Shelf Cornmittee") and thc map thar .wasshownon this broadcast. This
93 müp hasbcen reproduced as Annr.~16. Vol.11. As the map clearly shows,ihc limiis of the
O pctrolcum concessionsvere wi forth iherein: howeuerthe mrp, conIOthe srsertion
@ made in Fig. I O5 of the Tfrnixian Mentarial. does IOtthese lirnits as in any way
constituting a delimitation bounWhai is said aboveabout Major Jallude's siiitemeni
iipplies substaniially to Mr. Atteiga's siatement.
'A copy of an English translation of Colonel Ghadafi's staiemcnt is attachcd ai Annex 17.
Vol. II.
'Al-Khums is located 56 nautical miles easi of Tripoli and 140nautical miles east of Ras
Ajdir.
"Sec Tunisian M~niorial. para. 1.27. CHAPTERII
BOUNDARYHISTORY
SECTION1. HistoricalBackground
60. In Chapters 1and II of Part 1of the Libyan Memorial very brief
references were made to the territorial and political history of Libya and
Tunisia. Bycontrast, the Tunisian Memorial relies extensivelyon alleged
"historic rights'" and usage frorn"time irnmernoria12". Considerable play
isalso made with the alleged economicand ecologicalunity ofthe "Gulf of
Gabes region". Contentions such as these make it necessary to supple-
ment the information given in the Libyan Memorial. In this Chapter, an
attempt will be made to outline, as briefly as possible, the history of the
boundaries. Other aspects of these matters and a fuller account are set
forth in Annex6, Volume III.
61. 11 is obvious from any good relief map of the whole area that the
"Gulf ofGabes region", in the broad sensein which it appears to be usedin
the Tunisian Mernorial, is not in fact a "unit". There is a change in the
character of the terrain near the town of Gabes at the western endof the
Jeffara Plain and of the Jabal Nefusa which extend westward into Tunisia
frorna point just east of Tripoli3. This geographical divisioncorresponds
approximately to the political position in ancient times4. During the
Carthaginian period, the territory under the real power of Carthage did
not reach as far south even as Gabes. According to the best evidence
available. it did notxtend beyond the so-calledfossa regia (the "King's
Ditch"), which terminated just south of Sfax.
62. There is no evidence that the Carthaginians ever unified the entire
littoral from Ras Kaboudia to Tripolitania under a single political adrnin-
istration. The area from Gabes to the Cyrenaican border was briefly
under Carthaginian control but the Carthaginian claim was bitterly dis-
puted by King Masinissa who regarded the entire district of Emporia as
his ancestral heritage. Emporia was the whole region from south of the
fossa regia at Sfax, as far as the eastern Tripolitanian borders. The .
important point isthat even whenthe district of Emporia wasbrieflyunder
Carthaginian control it was still administered as a separate district from
Leptis Magna (Lebda) in Tripolitania, not from Carthage. When
annexed by Rome, the regio Tripolitanacontinued as a separate adrninis-
trative and tax district-separatethat is frorn the main provinceof Africa
whose boundaries followedthose of the earlier Carthaginian territory and
were defined by the fossa regia.
'See. e.g., Tunisian Memor.aras.4.07, 4.13, 4.36, 4.89, and4.94.
a '1b;d..para.4.13.
SeeFig.4 facingp.76. Infact.duringancient historythenaturaldividingoftheary
regioncorrespndedwiththeChottel-Djer-Chottel-Fediadjregion,theareacalled "Lake
Triton"bytheGreekhistorianerodoius(FifthCenturBC). SeeAnnex 6, Vol.III,p.36.
thereincontained.historical summarymaybe founAnnex 6. Vol.III,andthe citations
Ibid.p.36.172 CONT~NENTALSHELF Pl1
63. In the period ofthe Roman Empire this boundary wasextended by
a military road which ran from Gabes to Haidra, near Tebessa, but not
beyond Gabes. By the Third Century AD, the regio Tripolita wnas
formally defined by reference to the limes Tripolitanus, an inner escarp-
ment of the Djebel Daharand Jabal Nefusa as far as Leptis Magna, which
remained the administrative centre of the region'. The reforms of Diocle-
tian at the end of the Third Century finally detached Tripolitania as a
separate province, which,although it fellwithin the dioceseof Africa, was
nonetheless regarded as too distant to be ruled from Carthage and was
therefore given a governor (praeses) who, unusually, had independent
military powers. Despitethe name of "Tripolis", whichstrictly meant the
three cities of Leptis Magna, Sabratha and Oea, the province also
included the cities of Tacape (Gabes) and Gightis (Bou Grara). The
ecclesiastical region of Tripolitania in the Fifth Century likewise was
composedof the fivebishoprics of Leptis Magna, Sabratha, Oea, Tacape
and Girba (Djerba). When the rest of the African diocese wassubject to
Vandal rule in the Sixth Century, Tripolitania broke away on its own in
533 to rejoin the Byzantine Empire2.
64. The historical record of antiquity rnakes it quite clear that the
"natural" frontier on the "Gulf of Gabes" lay at the point where the
Mountains of Matmata cornedownto the caastal plain of the 'Aradh3;and
that the territorial unit in ancient history was not the whole "Gulf of
Gabes", as alleged by the Tunisian Memorial ("depuis le fond desâges").
On the contrary, the southern half of the "Gulf of Gabes" as far as the
region of the chotts was often regarded as a nomadic no-man's-landand
the coastal strip wasoften associated with the regio Tripolitnnnto the east
ratherthan with theold African province to the north. ,
65. In the early lslamic period there is evidence ihat the border ran
wellto the north of Gabes and that for short periodsTripolitania extended
north of Sfax4. Under Ottoman rule, which began in the 16th Century
and which extended to what is now the territory both of Tunisia and of
Libya, there were no boundaries separating areas of sovereignty. There
were only areas of administrative control. The Gabes area was a sort of
free zone. The inhabitants along the Coastlivedand movedtheir habita-
tion without reference to boundaries, and the areas of Gabes, Djerba and
El Biban were notclearly identifiable as Tunisian or Tripolitanian. The
local tribes in the south largely ignoredthe authority of the Beys. Many
of the people werenomadic and some of them looked to twomasters, one
centred.at Tunis and one centred at Tripoli.
See thereproductionofa mapfromthe Journalof RomanStudies. p.39 (1949). facingp.
30.
Vbid.. p. 37. Vol. Ilp.. 36 and 37.
'Ibid.II35. in whichreferenceis madIO a Venetianconsulartreatv dated9 June 1356
betweenibnAhmed IbnMckkiand BernaboGeraldo which statediGer olin.thatTripoli
".comprenaitexpressémento.utrelavilledeTripollesvillesdeGabèsetSfaxet les [lesde
Gerba et Kerkeni,c'est-à-direTripolitaineet ta PeSyrtc.ou pays des lotophages". 1321 COUNTER-MEMORIAL OF LIBYA 173
66. Earlie;, during Hafsid times (13th to 15th Centuries) Tunisia (or
"Ifriqiya") had been a sovereignentity. However.with the occupation of
Tunis by the Turks in 1574, this independent existence ceased, although
Hussainid Tunisia was granted wide autonomy by the Sublime Porte.
European powersoften dealt directly with both Tunis and Tri~oli. that is
with its oficials appointed by the Sublime Porte in these Regencies, but
the fornial links between the hereditary dynasties (the Qaramanlis in
Tripoli; the HussainidBeysinTunis) and the Ottoman Empire remained.
European powers did not usually consider Tunisia as a sovereign entity,
indepcndcnt of thc Ottoman Empire, until the late 19thCentury. France,
however,as sheoccupiedAlgeria, founditconvenientto question Ottoman
sovcrcigntyasa prelude to her occupancy of the Regency. Great Britain,
on the other hand, was most reluctant to accept the Frenchjustification of
her occupation of Tunisia in 1881as enshrined in the Treaty of Bardo that
the Bey was forced to sign. Great Britain continued to assert that the
ultirnate powerofsovereigndecision resided not with the Beyb~twith the
Sublime Porte. ironically, the Treaty of Bardo ( 1881) and the subse-
quent Convention of Al Marsa (1883) made Tunisia in10a genuinely
sovereign statésince the Ottoman claims upon it were irnplicitly rejected
unilaterally. However, itwasthereupon relievedof this sovereigntyby its
assinlilation into the French State under the guise of the "Protectorate"
theory. Thus, despite the legal fiction of being a Protectorate. in reality
after 1883 Tunisia could no longer claim any form of sovereignty, and
France acted in itsname.
SECTION2. History of LandBoundaries'
67. Against this backdrop the rnatter of land boundaries should be
considered. Of course, right up to the start of the 20th Century the very
concept of a formal land boundary was by and large a European notion.
The question was wherethe distinctions between areas ofjurisdiction lay:
where the effectivenessof one authority shaded into and was replaced by
that of another. Itshould be remembered that this did no1 involveques-
tions of sovereigntyince. during al1but the end of this period, sovereignty
rernained vested in the Sublime Porte.
68. Beginninginthe 17thCentury,the situation inthe Tunisian Jeffara
area followedthe fortunes of the twoadjacent regencies,the BeysofTunis
and the Pashas of Tripoli. Both sought the support of the tribes in the
region in order to extend their respective areas of jurisdiction. Hence
early attempts to describe any border between these regencies of the
Ottoman Empire were difficutt. In a note to the King of France in 1670,
the Consul of France in Tunis suggested that the border wasat the fortress
of "Gerba2". In Anthony Knecht's Guidebookto Tripoli, probably writ-
ten in 1767, the border was said to be at Gabes. A Spanish map in the
British Museum, dated 1775, placed the border between Gabes and
'To aidinlocatingthevariousplacesreferredtobelowinthis section,aspecialmaphasbeen
@ prepared andinçurporaiedinto thisCounter-Mer. ap8lhcingthispage.Authority
forthis histis founin Annex 6.Vol.III.
Obviouslya referenceto Djerba.174 CONTINENTAL SHELF i331
"Gerba". A "Mémoire surTunis", dated 1777, held by th'eMinistry of
Foreign Affairs in France. suggested the border was located at Djerba.
Ali Bey,in 1816, suggested again that the border point was Djerba.
69. The first effective rnapof Tunisia wasdrawn by Captain de Sainte-
Marie between 1842 and 1849. He was a cartographer sent by King
Louis-Philippe of France, but due to ill-health he was unable to rnap the
south in detail. Nevertheless, a year later Djerba was stated to mark the
border region inarticles onTunisia and Tripolitania published in a French
encyclopedia. Even as late as 1881,after the occupation of Tunisia had
begun, the confusion continued. A military itinerary of that year sug-
gested that the border was somewhere south of El Biban. 4 rnap accom-
panying a consular report from Tripoli claimed that the border was at El
Biban. A similar report at the end of 1881 from the military attachéin
Istanbul also claimed that the border wasat El Biban'. It was onlylate in
1882or even 1883 that an undated rnap (in the French Arrny archives)
showsthe border at Ras Ajdir and running down the El Mokta. With this
rnap started the French "maps campaign" which will be discussed in
paragraph 73 below.
70. The history of the Tunisian and French eastward thrust after the
French occupation and assimilation of Tunisia starting in 188 1 is briefly
recounted in paragraphs 25 through 29 of the Libyan Memorial. It is
necessary to add certain details to this surnmary. What this history
reveals is: first,the expansionistims of France to push the frontier to the
east through a policy of slow encroachment motivated in part (certainly
after 1888) by the French "hinterland" policy and her desire to capture
the caravan trade from Chat and Ghadames; second, the inability of a
weak Ottoman Empire in its final stage to do more than protest, which it
did right down to the finalsigning of the 1910Convention; and, third, the
difiiculties of Italy in intervening on the side of Tripolitania, stemming
from a lack both of military strength and of support from European
powers,and since it had other interests in Africa which it did not wish to
jeopardize, including connections with Tunisia, where a sizeable ltalian
community existed2.
71. Bythe end of June 1882, French forces had advanced by land to
Zarzis and rhence up to the Wadi Fessi. Then, based on an investigation
and report dated 11February 1883of Capitaine Rebillet, a French officer
on the spot, the border-was asserted to be at the El Mokta. This report
became a key document in the French thrust to the east. During the next
four years the French unilaterally patrolled the coastal region right up to
the claimed border, regularly piishing iladvance postscloserand closerto
'See also photographiccopies ofiwo Cermansmapsreproducedin tLibyan Memorial.
Annex 1-6 and thereproductionof a Frernapentitled "Cartedes Côtesde Barbarie"in
Annex 18.Vol.IIVariousborderclaimsduringthe 17thand 19thCenturies are deponted
Fig. 9Annex 6, Vol. [Il.
'The ltaliancommunitywasactiveeconomicallyinTunisiaat ihis iime. and ltaly did not
wish io jeopardize its position. [341 COUNTER-MEMORIALOF LIBYA 175 '
the El Mokta and manoeuvered to forcethe tribes and the Turkish author-
ities in Tripoli to accept that the border did indeed run along El Mokta.
These incursions were not without protest, the most serious being the
Linois incident.
72. At thestart of 1886,the French decided tocarry out hydrographic
workaround the area of Ras Ajdir. Concerned that this rnight disturb the
Ottoman authorities, the Quai d'Orsay asked the Ministèrede la Marine
to request the Sublime Porte to ensure that his local reptesentatives would
not interfere with the work. The Sublime Porte refused. When survey
work began, an Ottoman boat appeared and demanded that the buoys
positioned off Ras Ajdir by the crew of the Linois be removed. The
captain of the Linoisreferred back to Tunis, troops weresent from Tripoli
but in the end the Ottoman authorities backed down and the buoys
remained in place'. In the aftermath, the French refused to accept the
Ottoman protest and privately considered that the authorities at Tripoli
had been forced to concede the French claims that the land boundary
started at Ras Ajdir. The Linoisincident isa further example ofOttoman
weakness in the face of French tactics offait accompli.
73. The next phase in French manoeuvering involved what may be
called the "maps campaign". The story is related in its essence by Mar-
tel2. Briefly sumrnarized, it is as follows. The Quai d'Orsay in '1887
issued instructions to the French War Department to produce new maps,
showing the land boundary as France wanted il to be. An agreement
between France and Turkey fixingthe start of the boundary at Ras Ajdir
was allegedin the firstquarterly issue in 1887of the Bulletin de la Société
de Géographiede Paris. Subsequently, a German map with the same
boundary indication appeared3. This attempt to move the frontier de
facto came to the attention of the ltalian Government which interceded
with the Sublime Porte to ask France to disavow the statement of the
Société de Géographieand themaps based upon it4. The French Govern-
ment on receipt of contemporaneous enquiries from the British claimed
that a proposa1had been made to the Sublime Porte but no reply received.
The Sublime Porte denied having received any such proposal. Then, in
the face ofltalian objections, France completely confusedthe situation by
denying that any negotiations with the Sublime Porte werein progress and
blaming ltaly for inventing this story (in spite of clear evidence in the
French archives to the contrary).
'Accordingto Martel,alterthedepartuoftheLinois,thelocalpopulationpulleddownthe
land markerplaced there by the surveyteam. MARTELA . ndré:Les Confins Sahure
Tripolirainsde la Tunisie.Tome Premier.Paris, Ps niversitairesdeFrance,1965.pp.
372 and 373. (Copies ofthese pages are attacas Annex 19, Vol. II.)
*lbid.. p. 375ff(See Annex14, Vol. II.)
Ibid. p,377. (See Annex 19.Vot. II.)
'The Italian interventionis illustratedby a numberof documentspublishedamong the
DorurneniiDiplornaiici Italiani, 2dSeriesVol.XXI, 1870-1896, pp. 190and 191.242 and
243. 275. 282, 316, 325. 333, 351.372 and 378 through380. (Copiesof theçepages are
attachedas Annex 20, Vot.II.)176 CONTINENTAL SHELF 1351
74. Further incidents occurred leading to the desirability of a formal
delimitation of the border. In 1892France appointed Paul Cambon as its
arnbassador to the Ottoman Empire. He lost no tirne in persuading the
Porte of the need for adelimitation of the border. In November 1892,the
Waliof Tripoli himself proposed to the Beyof Tunis the appointment of a
mixed Commission forthis purpose after a series of French-inspired bor-
der incidents. This proposal led tothe Zuara Conference which openedin
Match 1893.
75. At the Zuara Conference, Tripoli (represented entirely by Otto-
man nationals al1 from the Ottoman arrny) claimed a border running
south from El Biban. Tunisia claimed the El Mokta line. By mid-May
the conference had corne toan end with noresult. In the ensuing months,
the French Army moved its garrisons forward almost to the de facto
frontier. In the ensuing years. whileacting~cautiouslyto avoid incidents
and to gain the implicit acceptance of thefait nccompli by the Ottoman
authorities, French attention rnoved south to the Saharan trade routes.
76. Of course, final resolutionof the frontier problem cameabout as a
result ofthe 1910Convention after the Sublime Porte reluctantly agreed
to negotiate, thus implicitly recognizing the Treaty of Bardo. Obviously,
the history leading up to this Convention, at which the rnatter was settled,
is recounted here not at al1 to raise any issue as to the land boundary
between Libyaand Tunisia which is and remains defined by the Conven-
tion itself. It is to put intoocus the parallel attempted Tunisian/French
thrust to the east starting at the turn of the century in the maritime areas
off the Libyan and Tunisian coasts. This policy ofexpansion has contin-
ued down to the present time and to the present dispute'.
SECTION3. Growthof the Tunisian Fisheries Claim
77. In the light of the territorial history, it is difficult to see how the
claim 10 fisheries rights in the sense of the exercise of sovereign rights
could be regarded as having beenexercisedbyTunisia from tirne immemo-
rial in the whole of the region now regarded by Tunisia as coming under
the title "Gulf of Gabes". In any event the alleged rights over the
fisheries, the claim to which seems to have emerged in comparatively .
recent times, were initially in the nature of private proprietary rights
arising from the practice of fixed fisheries by the inhabitants of the
Kerkennah Islands, Kneiss, Zarzis, Djerba and so on2.
78. The assertion that these private proprietary rights were subject to
the principleof "public dornain" onlycame withthe creation of the French
Protectorate. It was much resisted by the local inhabitants who by tradi-
tion had enjoyed their fisheries in their own right3.
79. It was the spongeand octopus fisheriesin which foreignfishermen
were interested; but it was onlyin the 19th Century that the Bey of Tunis
'SeeAnnex 6,Vol.III, paras188and 189.
'As willbeseeninparas. 104through 10belowthe expansioofTunisian claimsbabeen
notonly to the nature of the rights but to the area.
Tor a more detailed discussion Annex 6. Vol.III. P61 COUNTER-MEMORIALOF LlBYA 177
asserted a right to control and licensesuch fisheriesas a meansof increas-
ing his revenues. This claim, however, was limitedto an area which did
not extend to placeswhere the depth of water was in excessof 50 metres'.
80. Tunisian sovereignty wasconfined to territorial waters. Tradi-
tionally the liniit of Tunisian territorial waters was three miles along the
entire coast including the Gulf of Gabes (in its proper sense). The
attempt to extend the outer lirnit of Tunisian territorial waters to the 50
metre isobath by the'short-lived Law of 1962 was opposedby Italy and
other maritime powers. Consequently, the Law was repealed. It was
replaced by the 1963 Law fixingthe limit of Tunisian territorial waters at
six milesfromthe low-watermark along the coast. In 1973,the limitwas
extended to 12 miles and for the first tirne the new and controversial
baselines purporting to close the "Gulf of Gabes" were introduced2,thus
again seeking to extend the outer limit of the territorial sea. The 1973
Decree has not been accepted by Libya3.
SECTION4. The TunisianExpansion oftheGulfof Gabes
81. There is probably no aspect of the Tunisian Memorial that illus-
trates better the expansionist attitude and the magical touch of that
Memorial than the use of the expression "Gulf of Gabes". The magical
touch is seenin the variation in the useof the term "Gulf of Gabes". The
meaningattributed to it isby nomeansconstant throughout the Memorial
and it isoften usedwithout any clear definition orindicationofits intended
meaning in the particular context. The ultimate objective seernsto be to
produce a picture of the "Gulf of Gabes region" whichis a kind of mirror
image of the "Gulf of Gabes" and whichextendsdownthe Mediterranean
Sea as far as or evenbeyondthe capital of Libya, Tripoli, which liesabout
120 kilornetres from Ras Ajdir and alrnost double that distance from the
town of Gabes4.
82. As to the strict geographical rneaningof the Gulf of Gabes, there
isno real room for doubt. It is the Gulf whoseentrance liesbetween Ras
Yonga onthe mainland ofTunisia near the lslet of Kneissand the Islandof
Djerba. As pointed out in paragraph 78 of the Libyan Memorial, this is
the meaningassigned tothe term by both the Mediterranean Pilot and the
French Instructions Nautiques. These are, as stated there, the natural
enirance points iothe Gulf of Gabes'.
'Quiteio the contrary.as Despoishas noted. localTunisianfisherrnenlacked themodern
equipmenttofishforspongeatdepths greaterthanIOto m. DESPOIS J,eanLa Tunisie
Orienrale:Sahel ei BosseSleppeParis,Sociét"LesBelles Lettres",1940, p.539(A
copyof this pageis attachedAnnex 21, Vol. II.)
'These baselines represent adramaticchange frornbath the 1904 Instructionand the
opinion ofSir Travers Twissieduponby Tunisia( Tunisian Memorial, Annex77and .
81) which indicated thtlosinglines for bays shouldno1exceed 10 miles. See also the
discussionof thenisianLaw of2 Aug. 1973 in paras. 119 and126 (iv) belowrettoing
the Tunisianattemptto close the "Gulfof Gabes".
5ee Libyan Memoriolpara. 141 andAnnex 1-27.
@ 'See Map 9 racingthis page.
"Thisauthoritative defininf the term nowhere acknowledgeintheTunisionMeme
Nol,althoughit is consistentwith the description of the situatioonf Tunisiinnd Libya
Ifminoie coniinuedonthenexr page) 178 CONTINENTAL SHELF I371
83. In paragraph 3.14 subparagraph id), the Tunisian Mernorial
begins to move away from the more accurate description of the Gulf of
Gabes reflected in paragraphs 3.01 through 3.11 and refers to a "vast
concavity" whichcurves landward over a breadth of 90 kilometres. It is
there said that the Gulf is bounded by the archipelago of the Kerkennah
Islands and on the south by the Island of Djerba.
84. In paragraph 3.17, there isa description of the "region of the Gulf
of Gabes" to whichit issaid many studies have beendevoted. This is çaid
to lie between Ras Kaboudia and the Libyan frontier. This description is
repeated elsewhere in the Tunisian Memorial, for example in paragraph
4.01. But, as the Memorial proceeds, it appears to be designed to leave
the impressionthat the Gulf of Gabes even in times irnmemorialextended
from Ras Kaboudia to Ras Ajdirl. Of course, this cannot have been the
case because before French pressure eastward and the conclusion of the
1910 Convention, the boundary between Tunisia and Libya was never at
Ras Ajdir and there is no particular geographical feature there to mark it
as one of the extreme points of the Gulf of Gabes, even if Ras Kaboudia
itself could be so regarded.
85. Indeed, this picture of the extent of the Gulf of Gabes isin conflict
with the description in paragraphs 4.15 and 4.16 of the Tunisian Memo-
rial, eventhough they start by a reference toRas Kaboudia and the Libyan
frontier. It is thereaid that four groups of islandsand shoalsenclosethe
waters of the Gulf of Gabes "like a sort of rampart which thus separates
them from the high seas". The islands, islets and shoals referred to
comprise the archipelago of the Kerkennah Islands, the Kneiss Islets, the
Island of Djerba and the shoals of El Biban. Apart from the Kerkennah
Islands, which lie offshore betweenSfax and Ras Kaboudia, the Kneiss
Islets, the Island of Djerba and the shoalsof El Biban al1lie closeinshore.
The KneissIslets in particular liecloseupto the shore in the region of Ras
Yonga. Sothis verydescription conflictswiththe treatment of the Gulf of
Gabes as comprising either the whole area whose extremities lie at Ras
Kaboudia and Ras Ajdir or even an area enclosed by an imaginary line
between the Kerkennah Islands and the Island of Djerba.
VI 86. The figuresand maps produced in the Tunisian Memorial showthe
sarne fluctuation and attempted expansion in the use of the expression
"Gulf of Gabes2". Instances are too numerous to mention. For present
purposesit issufficientto refer to the followingexamples. In Figure 5.0g3
"Golfe deGabès" iswritten with the ietters "GO" starting at the entrance
to the Gulf and the word "GABES" ending near the 100 metre isobath.
uoo~noteconlinued/rom the preceding page)
relation with each ofheirn paras.3.09 tafthe TunisianMernoria!.Para.3.09,for
example,callsattentiontothe fact thatat aconsiderabledistance westhefrontier
pointatRas Ajdirthere isa ptonouncedangleinthe direction of thecoasts oftwoe
countries;theapex oftheanglebeing"inthehollowof the GulfofGabes, totheweslof Ras
Ajdir".
'See, e.g., TunisianMemorial, para.4.33.
The attempted expansiois depictedon Ma9.
See TunisiunMemorial. para.5.27. In Figure 5.10',the words beginin the same place but the word "Gabès"
lieseast of the frontier point at Ras Ajdir. Bycontrast, the words"Golfe
de Gabès" are written broadly speaking in a triangle formed by the
Kerkennah Islands,the Islets of Kneissand the lsland of Djerba on Figure
5.12';and on Figure 5.13 the words are written approximately in the
same area. On Figure 5.20 4, the words start in the Gulf proper and
continue eastward between the Kerkennah Islands and the lsland of
Djerba.
@ 87. Evenmore remarkable are Maps Nos. 1 and 2 in VolumeIII of the
Tunisian Memorial. Map No. I places the wordsin an arc starting near
theentrance to the Gulf of Gabes and ending near the150 rnetre isobath
northof a point more than half way betweenRas Ajdir and Tripoli. On
Map No. 2 the words "Golfe de Gabès" start approximately in the same
place and end north of Ras Ajdir approximately half way between the 50
and the 100 metre isobath.
88. Inthe contextofthe alleged unity of the "ecosystem"of the Gulf of
Gabes, it is suggested that "the continental shelf of the Gulf of Gabes"
extends at least as far east as longitude 13"E. Apart from the fact that it
is not clear what is meant by "the continental shelf ofGulf ofGabes",
this is a rernarkable assertion which wouldernto extend the area of the
Gulf of Gabes, or at least itsa-bed and subsoil, as far east as Trip5.i
The use of the expression "Golfe de Gabès" in this sense is without
justification.
89. Perhaps the most remarkable stretch or expansionin the use of the
expression "Golfede Gabès"için the reference tothe Gulf of Gabesas "a
vast depression" whichis said 10reach as far as the 250 to 300 metre
isobathLthat istosay, approximately due north ofTripoli-although not
@ even Map No. 1 in VolumeIII stretches the lettering "Golfe de Gabès"
quite as far as that.
90. Bythis progression,the Tunisian Memorial tries almostliterally to
turn the Gulf of Gabes (already givenan enlarged meaning) insideout so
as tocreatethe impressionthat it covera largepart of the Pelagian Basin.
This, ofcourse, isa vital flaw inthe TuniçianMernorialbecausethe grossly
expanded conceptof the Gulf of Gabes is used as a basis for the artificial
legal constructions proposed in the latter part of theisian Mernorial.
The effort is truly ingenious butoes not bear examination. lt leads to
extraordinary statements, such as that made in paragraph 8.20 of the
Tunisian Memorial, where it is said: "[Wlhereas the Tunisian shelf
descendsas a whole slowlytowards the east over verylong distances, that
of Libya, on the contrary, sinksite rapidly towardsthe greater depths in
a general southwest-northeast direction". This statement whoHyignores
notonlythe northward thrust ofthe African plate but eventhe bathymetry
'See TunisiaMemorialp,ara5..36.
Ibid .ara5..41.
lbid., par..45.
Vbid.. ChapV,6"SupplementaryNote No4".
Ibid ..ras5..2and 8.23.1x0 CONTINENTAL SHELF 1391
in the area with which the Court is concerned. If, for example, one looks
seaward from a point such as Marsa Sabratha'l, a fishingport which is a
little over halfway in the direction of Tripoli from Ras Ajdir, one seesthat
the areas lying between the 50 and 100 metre isobaths and between the
100 and 200 metre isobaths stretch northward without change until one
reaches the 50 metre isobath somewhere on a level with the Kerkennah
Islands and the 100metre isobath somewhere on the same parallel. The
expansionofthe Gulf of Gabesjnto thisarea isa myth whichis apparently
used as a device for trying to push the Coastof eastern and southeastern
Tunisia notionally eastward so as to provide a basis for the geometric
constructions that would clearly deprive Libya of a large, even a major,
portion of its continental sheif in the area for delimitation in the present
case.
SECTION 5. Growthof the Tunisian Continental Shelf Clairns
91. Against the background of the observations on the ever-increasing
expansionism of Tunisia, note is here made of the steady growth in the
continental shelf claims of Tunisia against Libya. For conveniencethese
are given more or less in tabular form:
(i) Tunisia made no protest against the 1955Petroleum Law and
Regulation of Libya which fixed an international boundary
running in a northerly direction from Ras Ajdir '.
(ii) Tunisia granted a petroleum concession in 1964 which
included an eastern boundary running in.a direction due north
of Ras Ajdir 3.
(iii) In late 1966 or early 1967, Tunisia granted a concession to
SNPA/RAP with an eastern boundary which was stepped but
ran in a direction of 26" from Ras Ajdir ',
(iv) In July 1968,'inthe negotiations with Libya. Tunisia sought a
line in a direction ZV-45" from Ras Ajdir as far as the 50
rnetre isobath
(v) In 1972, Tunisian leaders appeared to welcome proposais for
joint exploration and exploitation of the resourcesof the conti-
nental shelf 6.
(vi) Nevertheless, starting the same year (1972), Tunisia granted
petroleum concessions east of the '"26"line 7".
(vii) In 1973, Tunisia rejectedthe proposal forjoint exploration and
exploitation and promulgated new controversial baselines '.
'Itmaybe notedthat MarsaSabratha was formerlyknown as MarsaZuaga. .
YSee para.30 aboveand TunisianMernorial,para. 1.19.
9ee para.31 above.
'Seepara.32 above.
,'See TunirianMemorial. ~nnex 8.
"ee Libyan Memorial. para.38 and TunisionMenioriol. para. I.I2
See para.34 above.
5ee Libyan Mernorial.para.39; TunisianM~morial.para. 1.14and para.80 above. [ml COUNTER-MEMORIAL OF LIBYA 181
(viii) On 26 February 1976, Tunisia issued an informal warning
regarding three buoys placedby Tunisia east of the 26" line'.
(ix) By the Note VerbaleNo. 980of 15 March 1376, Tunisia
claimed a continental shelf up to a line shown on a map2
0
which ran generally in a northeasterly direction from Ras
Ajdir and extended almost as far as longitude 14" E. By a
letter, this line was notified to Groupe Elf-Aquitaine as the
"delimitation of the Tunisian Continental Shelf 3".
(x) By its widely circulated memorandum dated 3 May 1976,
Tunisia claimed a 43" 2I 'line from Ras Ajdir to the 50 metre
isobath and thereafter an equidistance line measured from
(inferentially)the 1973Tunisian baselines '.
(xi) In the same period, Tunisia objected to Libyan activities east
of the26"line, emplacement of four buoys, scopeof operation
of the Maersk Trarker and drilling by Scarabeo IVand theJ.
.W. Baies ASnoted in paragraph 55above,someofTunisia's
protests related to Libyan activities in areas well to the east
and south ofthe lineofdelimitation claimed inTunisia'sMem-
arandum of May 19766.
(xii) In 1980. the Tunisian Memorial submitted tothe International
Court of Justice various "methods" of delimitation each of
which would produce a line further east and south than any
equidistance line7.
'See TunisiunMeniorialpara.1.23.
*Ibid para.1.16.
'See para. 49 above.
'See Tunision Mernoriapara.1.25and LibyanMernorialpara.41.
"ee TunisiunMemorial,para. 1.24, 1.22, 1.31 and 1.3alsoparas. 52 throu58
above.
%ee TunisianMernorial, para 1.25.
'Ibid..Chapte1X and SubmissionII. CHAPTERIII
TUNISIA'SALLEGEDHISTORICRIGHTS
92. The importance attached by Tunisia to its concept of "historic
rights" is manifest. In the terms of Tunisian Submission 1.2:
"La délimitation ne doit, en aucun point, empiéter sur la zone
à l'intérieurde laquelle la Tunisie possèdedes droits historiques
bien établis et qui est définielatéralement du côtélibyen par la
ligne ZV -45" et vers le large, par l'isobathe 50 mètres ...".
The contrast with the dispositifof the Court's Judgment in the NorthSea
Continental SheVCases is striking. For whereas the Court enjoined that
the delimitation of the natural prolongation of each Party should avoid
encroachment upon thenatural prolongation of the other, in the Tunisian
Submission it is encroachment upon the area of historie rights which is to
be avoided. In short, in the Tunisian view,the Tunisian "historic rights"
must prevail over the Libyan "natural prolongation".
93. In fact, Chapter IVof the Tunisian Memorial, which isdevoted in
its entirety to the "historic rights" of .Tunisia, concludes with two
propositions'.
94. First that historic titles delimit a maritime zone of which the
whole has been recognized at al1 tirnes as belonging to Tunisia; and,
second, that the delirnitation of the continental shelf cannot bring into
question the attachment.of this zone to Tunisia.
95. It willbe evident that the Tunisian argument rests uponallegations
of both fact and law. These need to be examined separately. In the two
sections that follow,we shall examine first the question of what, in fact,
were the fishing practices upon which Tunisia reliesand then turn to the
crucial question-which isone of law-of whether, if at all, such practices
can dictate the line of delimitation between areas of continental shelf
appertaining to Tunisia and areas of continental shelf appertaining to
Libya.
SECTION1. The AllegedFactual Basis for TunisianClaims
96. Libya wouldnot wish to deny the interest of Tunisia in the coastal
fisheries,or the dependence of alirnited section of the coastal population
upon these fisheries: the relationship between coastal populations and
fisheriesisacommonenough phenomenon,by nomeans unique toTunisia.
lt is nevertheless necessary to examine with some care precisely which
fisheries are in question and the actual extent of those fisheries. For
although Tunisia stresses the "unity" of the zone in whichthese so-called
"historic rights" existed2,itill be seen that, in fact, the fisheries con-
cerned are very different and operate at different depths and in different
areas.
'SeeTunisian Memorialparas. 4.10and4.103.
9bid..paras.4.1through4.18 and 8.0through8.05. 1421 COUNTER-MEMORIALOF LIBYA 183
97. .The Tunisian Mernorial itselfdistinguishes two types of sedentary
fisheries': fisheries depending on installations fixed on the sea-bed and
fisheriesof "sedentary" species.
Fisheries dependingon installations Jixed on the sea-bed
(a)
98. These fisheries, undoubtedly of ancient origin and consisting of
traps to catch mobile species, are in fact-and for obvious rea-
sons-confined to areas very closeto the shores of the Kerkennah Islands,
-
Zarzis and Djerba. The point is illustrated quite drarnatically by the
@@ Tunisian maps. Figures 4.04 and 4.05. The extreme distance from the
shore has been variouslyestimated at 1Oto 12miles2. The essential points
are, however,that thesefisheries neverextended to the 50 rnetreisobath
and evenless IO the wholeshelfnrea nowclaimed by Tunisiaand, being
concernedwith a mobile species, do not involvea shelfresource3. They
are. in short, irrelevant to the claim now made by Tunisia'.
(b) Fisheriesof "sedentary" species
99. Paragraphs 4.69 through 4.104 of the Tunisian Memorial are
characterized by an obscurity in the definition of the limits of these par-
ticular fisheries. The fisheries mentioned in this category appear to be
two: sponges and octopus (the langoustes and coral fisheries are in the
north and nat this area). The octopus, equally, are no1a sedentary
species and are irrelevant. ASto the sponges, although Gidel is cited as
saying that thespongebanks extend"environ 15millesdes côtes"and that
"[e]lles ne sont pas à cette distance recouvertes de plus de 30 mètres
d'eaus", the Tunisian Memorial proceeds not by way of explaining the
actual limits of these fisheries, but rather by a description of the way in
which the Tunisian surveillance was extended over these fisheries, in the
colonial and past-colonial periods. In other words, although the actual
limitsofthese fisheriesare not stated, the Court isinvitedto assume that in
fact the limits extended to the 50 metre isobath, the limits of the surveil-
lance zones, or even beyond" Such an assumption would be wholly
incorrect.
'See TunisionMemorial, para. 4.47.
Ibid. A principal source cited by Tunisia (Despois) points out that fixed fisheriesdid not
exceed a depth o1.5to 2 m. DESPOISo , p.rit., p. 534. (See Annex 21. Vol.11.)
See Tunisian Memorial. para. 4.47.
'Itmay be noted in passingthat Tunisia (Fig. 4.04) doesanytfixedfisherieseast of a
line betweenthe Tunisian Coastnear Ras andithe Ras Zira buoy (longitude 11'25' E)
and that Tunisia does not give evidence of Tunisian fixed fisheries east of a due north line
from Ras Ajdir (longitude 11-33, E) insidc the Libyan territorial waters.
See Tunisian Memorial, fn. 2 at p. 107.
'Ibid .,ra. 4.71. The suggestion isthst the Tunisian fisheriesextenm.,and that
the 1904 Instructionram the Director of Public Works, and the later decree of 1951,
actually restricted the Tunisian surveillance to the 50 m. isThe only evidence
adducedinsupport of the 100 m. lirnAnnex 80,aletter o4July 1902from the French
Resident-General.Yet the Resident-General refers onlythe zone of surveillance as
extending incertain placestom. Asto theactual fishingpractices. hesaysexplic"...,
la pêchedes épongesne donne guère de résultats pratiques dans des fonds supérieursà 50
(footnote continued onthe nepage)184 CONTINENTALSHELFCOUNTER-MEMORIALOF LIBYA 185186 CONTINENTAL SHELF I43J
100. In actual fact, the fixed fisheries were practised indcplhs up to 3
to 4 metres; fishing on foot by "netcasting" (à l'épervier) was in even
shallower waters. The traditional practice of Tunisian sponge-fishing was
lirnited todepths of IO to 12metres', rarely more; only by the use of diving
equipment, a difficult and cornparatively modern technique. is it possible
to sponge-fish up to depths of 20 to 50 metres. The Fishingpracticed in
depths of more than 50 mettes-up to 100 metres-is in fact not fishing of
sedentary species'. The position emerges rather clearly from the Map
dated 1896 and entitled "Carte des Fonds Spongifères de la Régence"
which is reproduced from Servonnet and Lafitte facing page 42. This
shows the majority of the sponge-banks lying well within the 50 metre
isobath, and only poor quality (and in fact widely-dispersed) sponges to
the east of that line. As the Map shows, the sponge-banks are not CO-
extensive with the 50 metre isobath3. A fishing-bank is a precise term4
and it will have identifiable lirnits. The area in question has a nurnber of
such banks, some inside and some outside the 50 metre isobath. That
isobath is noi coincident with the banks, but is a limit to the zones of
surveillance adopted by Tunisia unilaterally for its own administrative
convenience. As can be seen from the Map itself the northeast line
starting from Ras Ajdir is not a boundary line but a limit of a "zone de
surveillance". This isemphasized bythe fact that this Map contains three
other similar lines: one starting at the Cape Bon, the second one at Sfax
and a third one starting from Djerba.
101. The "zone de surveillance" which is the "zone d'action de 1'Etat
tunisienen matiere de pêches5"wasnot a zone reserved to nationals but
~oornore confinuadfrom ihe preceding page)
mètres ...".In fact,as noted by Despois (see fn.1 p. 36 above). sponge fishingwas not
practiced by Tunisians in depths greater tha10to 12 m.
'See fn. 1at p. 36 above
DESPOISo , pri!.pp. 538 through 540. (Copies of these pages are attachcdAnnex 21,
Vol. 11.) See atso PAPANDREOUA . lexandre: Lo situation ,juridique des pêcheries
rédenlairesen haute mer. Extractfrom RevueHellenique de Droir Inremotional.Athens,
1958,p. 63 whosedepth figures Varyslightly: he would placethe sponge-fishingby trident
up to 20 m., and by diving equipment up to 50m.. but no more. (A copy of this page is
attached asAnnex 22. Vol. II.)These figuresare taken from the Report or François to the
International Law Commission. See Libyan Memorial, Annex 1-26.
In ract. in the same book, Servonnet and Lafitte includeanother map (a reproduction of
whichalso facesp. 42) showing theactuallimiiof Tunisian fishingon these banks in 1888,to
be wellwithin eventhe 20 m. isobath. SERVONNETJ,ean and LAFITTE,Fernand: Le Gowe
de Gobesen 1888. Paris, Challarnel et cie., 1888. Thproposed a limit of 20m. to the
territorial watersTunisia,a propmal whichTunisia didnot follow. The followjnglegend
appeared on this map: "Frontièrede mer non fixéeofficiellement maistacitement acceptEe
en Octobre 1896 [?] par le Pacha de Tripoli". As already noted. at ihat time the boundary
was not fixedat Ras Ajdir. Furthermore, no evidenceof tacit acceptancegiveneitherby
theauthors of the proposaor by Tunisia which,in any event. did not rely oit.
' For an authoritative and scientificdefinitionof bank and fishing-bankMare-Gronde
Enciclopedia Illustratap.97,publishedby the IstituioCeografico de Agostini,Novara. (A
copy ofthis pageisattached asAnnex 23,Vol.II.) It isworthwhileto nate that a bank isnot
a permanent or perpetual feature.t maydisappear dependinguponvarious factors. Banks
which have existed in the past may well not exist today.
'Sec Tunisian Memorial. Annex 77.Sec. 29.[441 COUNTER-MEMORIAL OF LIBYA 187
was a zone in which Tunisian authorities controlled fishing rnethods and
equipment used in order to preserve the various species and the banks.
The object was not at al1the surveillance of maritime areas. This zone in
fact was divided into four zones. This can be secn frorn Article 62 of the
1904 Instructions which reads in part:
"Cette partie de mer est diviséeen 4 zones délimitéescomme suit:
...In troisième: ...Par une ligne partant de Houmt-Souk et se
dirigeant verS.le Nord-Est jusqu'à la rencontre des fonds de 50
mètres. la quatrième: par la ligne partant de Houmt Souk et se
dirigeant vers le Nord-Est jusqu'à la rencontre des fonds de 50
mètres; ..Par une ligne partant de ras Ashdir et sedirigeant vers le
Nord-Est jusqu'à la rencontre des fonds de 50 mCtresl."
102. Itcannot besupposed that thelirnitsofthesezones~reall bounda-
ries. And with respect to the Decree of 15April 1906'Tunisia even omits
entirely Articles 2 and 3 ("Divisions du littoral en quartiers maritimes")
from the text set forth in that Annex. Tunisia's selection of the one
limit-that is to Say the line running northeast from Ras Ajdir-as a
boundary is patently arbitrary and self-serving; itis designed to support
Tunisia's unilateral decision that such a limit has now become the bound-
ary for continental shclf purposes.
103. The inescapable conclusion is, thcreforc. that the first Tunisian
proposition-namely that Tunisian historic titles existcd throughout the
whole of the maritime zone claimed by Tunisia-is invalid. The truth is
that the sedentary species, on which the claim to historic rights depends,
were never fished throughout the maritime zone now claimed by Tunisia.
(c) The nnrureofthe "historic rights"
104. The absence frorn the Tunisian Mernorial of any analysis of the
legal character of the claimed historic rights. arising out of the sedentary
fisheries, is designed to serve a purpose. The purpose is to allow a subtle
progression of concepts, without subjecting that progression to the rigour
of legal analysis. In effect. wehavea progression frornconceptsof posses-
sion of the sedentary species3. to concepts ofjurisdiction and control over
the species4,to concepts of ownership over the sea-bed inhabited by the
species".to concepts of ownership of the waters abovethe sea-bed on which
'Sec Tuni.~ian Meniorialan ne.77.
'Ibid..Annu.r79.
.'IbiJ.para. 4.4("droitde propriétésurleurspécheries")and paras.4.57 ihrough 4.61.
'Ihid.. paras. 4.5through 4.56 and 4.63 ihrough 4.66 ("La sourni.ibionde principe des
anciens iiires de propriaux nouvellesrèglesde la domanialité publique").
Ihid..para. 4.11 ("le fond de la merestsusceptibled'appropriation") and para. 4.12
(I'Etüt acquiert desdroits souverainssur le fonlamer").188 CONTINENTAL SHELF i451
the species are found', and finally to a concept of sovereignty over the
entire maritime area2. The progression is not, of course, presented as
such: for that would expose the fallacies which lie behind it.
105. Historically, the rights over sedentary species were essentially
proprietary rights belongingto individuals, and Vattel so treated the pearl
fisheriesof Bahrein and Ceylon3. The transition from individual to State
rights was easilymade, but they remained property rights. Indeed, it was
onthis basis that Sir Travers Twiss, Law Officerto the,Crown, advised the
British Government not to opposethe assertion of rights over spongesand
coral by the Bey of Tunis in 1871 ;
"...there is no objection on principle tothe Beyof Tunis asserting an
exclusiveright to the fructu osf the banks off the Coast of Tunis, to
which Sponges and Polypi attach themselves, although the banks in
question are at a greater distance than three miles from the Coast-
line, provided the Bey can show a prescriptive elijoyment of such
fructus. Vattel, lib. i,c. 23, S.287,admitsthat nations rnayacquire a
right of property in such fructus founded on long continued and
exclusiveenjoyment, and there are on record many instances of the
enjoyment of such right of property'."
106. The progression fromownershipof the fructus to ownership'ofthe
sea-bed itself came later, and met with considerable opposition, for it
posited the notion of occupationof the sea-bed5and.this some found to be
prejudicial to the overriding principle of the freedom of the seas6. Never-
iheless, there seemed tobegeneral agreement that, whether or not owner-
ship of the sea-bed was possible, the phenornenon of sedentary fisheries
and rights thereto had nothing to do with the more general claim to
exclusive fisheries,or with sovereigntyover the sea-bed, or with the status
of the superjacent waters: these remained high seas,not open toappropria-
tion by a State. As late as 1953,in its Draft Articles on the Continental
Shelf, the International Law Commission adopted the following text:
'See TunisianMernorial.para. 4.02 ("l'appartenance àla Tunisiedeaux");paras.4.46
through 4.89 ("la souverainetétunisienne sur le GolfeGabés"); and para. 4.48 ("la
souverainetétunisiennesur les pêcheriessédentaires").
Jbid,para. 4.11("extensionsde souverainetéétatique" ;)para.4.83 ("lesdroitsde
exercésidettrèslonguedate").isie"); para.4.88("desactesconstants desouveraineté
See VATTELE ,mmerichde: Droit des Gens.Liv.1.London,1958,Chap. 23. Sec. 287. (A
copy of this Secisattached as Annex 24. Vol.Il.)
See MCNAIRS ,ir Arnold D.: International Law Opinions.Vol1956,p. 259. (A copy
of this page isattached as Annex25,Vol.II.) ltaly tookexactlythe sameine1911in a
dispute with France. describing the rights as "les droits de proprilaRégencede
Tunis...". (See Annex 6.Val.III,p. 53.)
5ee HURST.Sir Cecil J.B.: "Whose is the bed of the sea?"(The Brirish Yearbookof
InternarionalLaw. 1923-1924.pp34through 43.) (ln accordancewith Art. 50, para. 2of
the Ruleof Court, a copyof this article hasbeen deposited withthe Registrar,) See also
VALLAT. Sir FrancisA: "The Continental Shelf." (The British Yearbookof International
Law. 1946,p. 334.) (A copyof this page is attached as Annex 26. Vol.II.)
desAflairesEtrangères,1953.de Droit InternationalPublic. Vol.1.France,Ministère
p.446. (A copyofthis pageisattached asAnnex27,Vol.II.) "La réglementationdes pêcheriessédentairesdans les régionsde la
haute mer contiguë à sa mer territoriale peut êtreentreprise par un
Etat lorsque lesressortissants de cet Etat entretiennent et exploitent
ces pêcheries depuis longtemps ...Toutefois,cette réglementationne
portera pas atteinte au régime généradle ces régionsen tant que
haute mer'."
The Commission's pointwas patently correct. Powersof control or sur-
veillance,assumed by the coastal State for the protection of fisheries,did
not imply sovereignty.
107. It is therefore clear that the Tunisianclaim to sovereigntycannot
rest on mere evidenceof historic rights to sedentary fisheries. Such a
claim would require quite separate proof that Tunisian sovereignty had
been asserted, and recognized,either in the form of a clairn tothe mari-
time areas as interna1waters (or "historic waters"assimilated to internal
waters) or territorial waters.
108. Taking, first, the evidence which mightarise from the exclusive-
nessof the fisheries-for fisheries withinthe sovereignareas of internal or
territorial waters are normally, if not necessarily,exclusive-the facts are
that these fisheries have never been exclusive. The Tunisian Memorial
itself disclosessomething of the extent to which concessionsto foreigners
weremade2. A more realisticpicture emergesfrom the workof De Fages
and Ponzevera3. Although the figuresgiven related to the Tunisian on-
shore fisheriesas a wholebetween 1891and 1893,and notjust to the Gulf
of Gabes, they are indicativeof the extent of foreign fishing. The figures
of the annual value of the catch in French Francs are: Free-
*nges Sedentary Swimming
Italians .................556,000 214,000 800,000 630,000
Greeks ...................... 580,000 - -
French ...................... 7 - 1,000,000
Tunisians ................. 5,000 165,000 250,000 -
109. The concept behindthe Tunisian control wasneverthat of exclu-
sivity. On the contrary, the Règlementsur la Pêche des Epongeset des
Poulpes of 1892and 1897 begins, in its first Article, with the statement
that "La pêchedes épongeset poulpes est libre sur toute l'étenduedes
bancs tunisiens...'". The policywas to encourage foreign fishingbut, by
taxes, to derive a revenue from their activities. The Decree of 17 July
'U.N. Doc.A/CN. 4/60, p. 49. (A copy of this pageis attachedas Annex 28. Vol. II.)
PAPANDREOU op. fitp. 104 points out thatany relaiionship besedentiry fisheries
andclairnsto"historit'watcisfortuitous,resultingfrornthe simple fact thastuchfisheries
areoftenfoundinbaysorgulfswhich the coastl tateclairashistoricwaters. (A copyof
this pageis attached Annex 22, Vol.II.)Butthe validity of the clamustbe sought
elsewherethan in the fact of the existenceof such fisheries.
See Tunisian Memorial,paras.4.72and 4.73.
aDE FAGES.E. and PONZEVERAC , .: Les PècheMaritimes de la Tunisie.TunisEds.
Bouslerna,1908, p. 170. (A copy of this pageis attacheAnnex 29, Vol. II.)
'Ibid p.,134. (A copyof this pageis attachedas Annex 29. Vol.II.)190 CONTINENTALSHELF i471
1906' regarding sponge fishing reiterated the principle of freedom of
fishingbutin realityit envisageda systemofpermits. Foreign fishingwas
permitted and encouraged subject to a permit being obtained upon pay-
ment, and the sponges being landedonly at a prescribed Tunisian port.
However,this unilateral regulation depended uponan assertionof "Tuni-
sian banks", notof Tunisia's reserved fishing zonesT , unisian territorial
waters or sovereign rights2.
110. A second category of relevant evidencewould be Tunisia'sown
practice. If,as Tunisia alleges,the whole.ofthe maritime area subject to
these historic, sedentary fisheries was under Tunisian sovereignty, then
one wouldexpect tofindthat Tunisian legislation reflectedsuch an asser-
tion of sovereignty, and not merely a limited jurisdiction and control
suflicientto protect its rights in the sedentary fisheries. As will be seen,
the Tunisianpracticewas toassert a quite limitedjurisdiction and control.
111. The Decree of 28 August 1897 concerning the control of sea
fishing3was confined to the territorial sea, then 3 miles. The 1904
Instruction of the Navigation and Sea FisheriesDepartment distinguished
clearly the territorial watersand the sponge-banks4and with regard to the
latter claimed,not sovereignty,but rightsof "l'exploitationet la policedes
bancs d'épongessitues sur le littoral, mêmeen dehors de la mer terrrito-
riale".,The lirnitof this "zone de surveillance" to the east was "une ligne
partant de ras Ashdir et sedirigeant vers leNord-Estjusqu'hla rencontre
desfondsde 50métres5".The useof RasAjdirin 1904isstriking,for itwas
natuntiltheConventionof 1910that theboundary was recugnizedaslying
at Ras Ajdir.
112. The notion of a line from Ras Ajdir "vers le Nord-Est" is of
further interest, for in 1951, as we shall see, this became "en direction du
'See Tunisian Mernorial, Annex87. Il.
1t isnoted that the*Tunisian Mernorial relies heavily on the Fisheries Casé (Unired
Kingdomv. NohayJ, I.C.J. Reports 1951. in formulating its "historic rights"argument
(paras.4.07,4.13,4.36,4.89,4.94).The Fi~heriesCase.however,isclearly notrelevantto
this case. Thai case concerned Norwegian baselines and exclusivityof fisheries within
territorial waters. TheCourt therewasaskedtoarticulatethe principlesofinternationallaw
applicableto the delimitation offisheries zones.an issuequite different frorn that of conti-
nental shelf delimitation. In contrast tothe facts in the Fisheries Case. Tunisia hasnever
claimedexclusive fisheriesthe 50 m. zone,Nor can it beasserted that Tunisia'sdaims
have been acquiesced in by Libya, in contrast to the evidence before the Court in the
FisheriesCase of British acquiescencein the Norwegian basclines. In addition, Tunisia
atternpts to showthat she has acquired historic title to the entire disputedarto-waters
whichtheconceptofhistorictitlesimply doesnotapply. Thus themélangeofreferencesand
quotaiions fromthis casein thenisian Mernorialmust be regarded as out of context and,
inapplicableto this case.
See Tunisian Memorial. Annex 76.
'Ibid., Annex 77,Arts 28 and 29. This distinctiondoesnot emerge frornthe discussionof
this Instruction in the Tunisian Mernorial (para. 4.7The same failure to make this
distinction betweena territorial sca and fishery surveillance zoneis seen in the Report by
Françoisto the InternationaLaw Commission. See Libyan Memorial. Annex 1-26.
Ibid.. Sec. 62. 1481 COUNTER-MEMORIALOF LlBYA 191
Nord-Est ZV-45°"'. In the 1904 Instruction, Section 62 was addressed
exclusively ta the four named Tunisian vessels charged with surveillance
over thc fishcries: it was a purely internal, administrative instruction.
Moreover, ilspurpose was to instruct the fishery patrol vesselson theouter
lirnitsof "zones de surveillance", defining.as it were, the point at which the
patrol vessels were to keep foreign vessels out and inside which to police
thc activitics of fishingvesselsinorder to protect the speciesand the banks.
It cxcludcd vcsselscoming from the open sea,and thus had no significance
as a lin, landward of that point, and certainly not as a putative boundary
berwecn Tunisia and Tripolitania.
113. Inconsideringwhat degree of deviation towards the northeast was
intcndcd by the 1904 lnstruction in using the words "vers le Nord-Est", it
seemsclcar that it did not purport toeslablish an angle of 45" (as opposed
to the 1951 Decree). Article 25)of the Instruction stated that:
"Du temps du fermage. la portion dc mer soumise à l'adjudication
étaitliniitéepar l'usage d'un côtépar le rivage, de l'autre par une
ligne partant du ras Kapudia, contournant au largeles bancs des
Kerkennah et de là se dirigeant en ligne droite vers la frontière
tripolitaine."
Thc Tunisian Memorinl acknowledges repeatedly that the Instruction did
not apply beyond this line (the finalpoint of which was not Ras Ajdir") but
on the contrary limited its application for prnctical reasons and tempora-
rily to the zone within the 50 metre isobath,'. The comparison of the
situation of Ras Ajdir (longitude 11 "33'E) and the location of the bank
which is considered by Tunisia as the easternmost limit of the Kerkennah
banks. Ras el Mzebla"1ongitudc 1 1"38'14"E).leads to the conclusion
that this straight line linking Ras Ajdir and Ras el Mzebla has a northeast-
ern deviation of 2"15' only. The result isrnuch the same even if the
comparison is.made from Ras Ajdir to Buoy No. 3 which is the eastern-
niost navigntional marker in the vicinity of the Kekennah Islands5. A
straight line linking Ras Ajdir to Buoy No. 3 has a northeast direction of
approximately 8". Therefore, it may be said that when the Director of
Public Works mentioned the northeastern direction, he must either have
.been referring to the small angulation of 2"15'or to an angulation of
approximately 8"representing the directions between Ras Ajdir and Buoy
No. 3 and not a line ZV-4506,
'The45" lineiscertainlyno1identicalwitha line"versle Nord-Est"has nodefiniiive
content.Indeed.the 1904Instruction seferrtothis"lineas"touicfictive". Formore
dctaileddiscussionof the 45" bearjng,see !15below.
'See Libyan Mernorial, para.120.
'SeeTunision Mrmorial,paras.4.80 and8.03.
"uoy No. 3 is locatedai 34"54'3OU11"50r15"E;anda straight ljoiningitwithRas
Ajdir intersectswithone thebuoysrnentionedat fn5at p.22 above.
@ These tocaiionsare prtrayed on Mrip IO facingthis page.192 CONTINENTAL SHELF PI
114. By the decree of 26 July 19511,Tunisia established a "reserved
zone" of fishing exclusive to Tunisian or French vessels: the zone was
defined thus:
"Article 3
..La zone de pêche réservé comprend:
a) de la frontière algéro-tunisienneau Ras-Kapoudia et autour
des îles adjacentes, la partie de la mer comprise entre la laisse de
basse mer et une ligne parallèle tracée à 3 milles au large, à
l'exceptiondu golfede Tunis, qui àl'intérieurde la ligne Cap Farina,
île Plane, île Zembra, Cap Bon est entièrement compris dans ladite
zone;
b) du Ras Kapoudia àla frontièrede Tripolitaine, la partie de la
mer limitéepar une ligne qui, partant du point d'aboutissement de la
ligne des 3 milles décriteci-dessus, rejoint sur le parallèle du Ras-
Kapoudia l'isobathe de 50 mètres et suit cette isobathe jusqu'à son
point de rencontre avec une ligne partant du Ras-Ajdir en direction
du Nord-EstZV-45O."
It will be noted that the zone does not purport to be part of
115.
territorial waters. Itwill also be noted that the eastern limit of the zone
was changed from "vers le Nord-Est" in the 1904 Instruction, to "en
direction du Nord-Est ZV-45"". This angle of 45' which appeared only
in 1951 has been in effect rejected by Libya's Petroleum Regulation of
1955. It obviouslycannot be resurrected now. The transition frorn"vers
le Nord-Est" to "en direction du Nord-Est ZV-45""'would seem to have
been made for the purposeof locating more accurately the precise pointon
the 50 metre isobath at which the zone of surveillance ended. The 1951
Decreedoes not purport to be establishing alateral boundary with 1-ibya,
nor would it be expected that one of twoadjacent States would attempt to
achieve a maritime boundary by afait accompli in a unilateral legislative
act with respect CO fishing.
116. That Tunisia clairneda contiguous fishingzonequite distinct from
the territorial sea over which it had sovereignty was made abundantly
clear by the Tunisian Law No. 63-49 of 30 December 1963 (perhaps for
this very reason a law not cited very prominently by the Tunisian Memo-
rial). Article 1 of the 1963 Law provided as follows3:
"Article 3 (nouveau)
Est dénomméemer territoriale tunisienne: de la fron~ière.tuniso-
algérienne Lilafrontièretuniso-libyenne et autour desîles adjacentes.,
See Tunisiun M~morial, Annex 84.
'ThcinitialsZVappeartomean"ZénithVertical".a rneasuremenotf thetrue,geographical
north. likelybe usedbymarinersas a meansofgettingtheirtrue locationbya sun-sight.
Thereason for tselectiono45O appearstoberhaion this bearingthevesse1abovethe 50
m. isobath wouldbeattheshortestdistancefrom RasAjdircompared to aytherpointon
thatparticularisobath. Inanyevenitisclearlydirectedtowardsinîormingvessels on the
highseasofthepointbeyond which they may nfoisthandnot to provalaieralboundary
betweenthe twocoastalStates.
See LibyonMernorial. Anncx 1-16. [501 COUNTER-MBMORIAL OF LlBYA 193
la partie de la mer comprise entre la laissede basse mer et une ligne
parallèletracée àsix millesau large, à l'exceptiondu Golfe de Tunis
qui, àI'intérieurde la ligneCap-Farina, Ile Plane, IleZembra et Cap-
Bon est entièrement compris dans ladite mer.
Une zone contiguë à la mer territoriale tunisienne telle qu'elle est
définie ci-dessus est reservée d,ans laquelle seuls des naviresbattant
pavillon tunisien pourront êtreautoriçés à pratiquer la pêche.
Cette zone est définie:
a) de la frontièretuniso-algérienne àRas-Kapoudia par la partie de
la mer compriseentre la ligne des six milleset celledes [douze] milles
marins mesurks à partir de la laisse de basse mer;
b) de Ras-Kapoudia à la frontièretuniso-libyienne:par la partie de
la mer limitée parune lignequi, partant du point d'aboutissementde
la ligne des douze milles marin$ mentionnésau paragraphe a) ci-
dessus, rejoint sur le parallèle de Ras-Kapoudia, l'isobathe de cin-
quante mètreset suit cet isobathejusqu'à son point de rencontre avec
une ligne partant de Ras Aghadir en direction du Nord-Est ZV =
45 O."
117. The clear distinction in this 1963 Law between Tunisia's 6-mile
territorial sea and the contiguous fishery zone, an area of the high seas
claimed out to the 50 metre isobath, is put beyond any possibledoubt by
the fact that the 1963Lawabrogated notonlyArticle 3of the 1951Decree
but also the Law of 16October 1962. The 1962Law is not mentionedin
the Tunisian Memorial: but its text is given in the Libyan Memorial,
Annex 1-15. This Law was, infact,an attempt to clairnthe wholearea out
to the 50 metre isobath as territorial waters'. It met with immediate
protest from Italy2 and the attempt was therefore abandoned, with the
repeal of the controversial claim by the 1963 Law. There could scarcely
be ctearer confirmation of the fact that, under the 1963 Law, Tunisia's
sovereignty- its territorial limits-was confined to a six-mile territorial
sea.
'It is worthwhileto note that the extent of the territorial sca as stated in the 1962 Law is
totallyinoppositiontothe positiontakcn bythe Tunisiandclegationat thc conferencesonthe
law ofthe sea in 1958and 1960:"le gouvernementTunisienconsidèrequ'ildoitêtrepermisà
chaqueEtat riverade fixerla largeurde sa mer territorialedansla limited'unmaximumde
douzemiIl&"cited byATALLAHY , assine:La Tunisieerle DrodelaMer. Mimoire de
DEA sous la direction du Professeur René-JeanDupuy. Universitéde Nice. Institut du
Droitde la Paixet du Développement, 1p,. 28.{A copy ofthis pageisattachAnnex
-30,Vol.Il.)
The 1963 Italo/Tunisian FishingAgrcemcnt (sec TunisionMemorial.Annex5) in fact
prescrvcd ltalian Fishingrights in the arca out tm.tisobath. It was thescfishing
rightswhichltaly consideredto bejeopardizedbythe Tunisianclaimtothearcaas territorial
sea,givcnthe normalruleofexclusivityof acoastalState'sfishingrightsinthe territorialsca.
See"Le Relazioni tra ItdieTunisia", whichgivesan account of thItalianprotest
against th1962Lawand indicates thatother States also protested agaTunisian
clairnto sovereignty out tom.(RelazioniInternazionali.VoI,25May 1963,pp. 639
and 640. (A copy of this Article is attacasAnnex 31, VolII.) 194 CONTINENTALSHELF i5l1
118. Apart from its repealofthe 1962Law, the 1963Lawisof interest
on twocounts. It makesclear that, unlike the Gulf of Tunis (an accepted
and recognized "historic bay"). the Gulf of Gabes was not included within
territorial waters: thatfact alone casts doubt on any Tunisian claim that
the Gulf of Gabes has always been "historic waters". It also establishes
that the area now claimed by Tunisia as subject to her sovereignty wasin
J963 nothing more Ihan a contiguous fishing zone, on the high seas.
119. The new Law of 2 August 1973-the current legislation-is
portrayed in the Tunisian Mernorial as simply a repetition of Article 3 of
the 1951 Decree,as rnodifiedbythe 1963Law'. That isscarcelyaccurate,
for it wasthe 1973Lawwhich,Jor fhejrst rime,purported.to embrace the
"Gulf of Gabes" within Tunisia'sinternal waters as a result of the contro-
versial straight baselines adopted in the 1973 Law, and decreed a 1?-mile
territorial sea from those baselines". The novel treatment of the Gulf of
Gabes is particularly striking, for whereas the Gulfs of Tunis and Gabes
had previously been treated separately, it was only in 1973 that Tunisia
assimilated the two, claiming that the "Gulf of Gabes" was internal
waters, on "historic" grounds. Libya does not accept the validity of the
1973 baselines, and Tunisiadoes not rely upon them in its Memorial for
the purpose of drawing a shelf-baundary. To that extent, the 1973 base-
lines are not in issue in the present case. If, however,it isto be suggested
that the 1973Law in any way givessupport to the argument that Tunisia
has sovereignrights out to the 50 metre isobath, then Libya must reject
that suggestion as being contrary to the whole history of Tunisia's claims
in this regard.
120. in reality,il is evident that the legal regime of the maritime
jurisdiction of coastal Tunisiadoes not reflect any unity or stability. As
prescribed by the various texts-the Decree of 1951,the Lawof 1962,the
Lawof 1963,the Lawof 1973,and the Decreeof 19733-one perceivesthe
successivevariations in the size of the territorialsea', of the methods of
establishing the baselines, and of the designation of the reserved and
contiguous fisheryzone. These successivevariations in the legistationand
regulations clearly contradict the idea of historic rights established since
tirne irnmemorial and widely recognized since ancient times. An objec-
tive analysis leads one to conclude that the contradictory and recent
affirmations of territorial sovereignty arequite different from the earlier
assertions of the existence of a zone of regulation and surveillance for the
protection of certain fisheryinterests, whether Tunisian or foreign. The
"historic" regime onlyconcerned extremely shallow waters and the so-
called "historic rights" never consisted of a monopolyof exploitation for
Tunisia's benefit. On the contrary, so far as the sedentary species like
'See TirnisianMemorialpara.4.82.
Incontrast.boththe 1904 Instrucandthe opinionoSirTraversTwiss,reliedupoby
the authorsof thTunisian Memorial,indicated thatgulf could only be regardedas
internai waters iifts entrancedid notexceed ten miles in breadth.
Vt shouldbenoted that the196Law waç not annexetathe TunisianMernoriaand the
1973 Decreewas not even mentioned.
@ 'SeeMap II.Pz] COUNTER-MEMORIALOF LIBYA 195
sponges are concerned, these rights were a legislative, reglernentary and
jurisdictional power designed to ensure the surveillance of fishing. These
rights did not include the exclusion of foreign fishermen. Such exclusion
does not appear until 1951. A poficythat has been in existence less than
30 years cannot be considered as having an immemorial nature. Until
1973, the various maritime areas considered as the territorial foundation
of the historic rights were not territorial waters but zones of high seas'.
2 Thc other aspect OFTunisian practice which constitutes relevant
evidence, apart from the legislative activity we have just considered, is, of
course, the surveillance and control by Tunisian vessels. The description
of such surveillance and control5s entirely consistent with a contiguous
fishery zone: it has no evidentiary weight as a claim of sovereignty. The
forms of control-fishcry regulations3.fiscal regulations applicable to the
fisheries', and arrest of foreign fishing vessels5-are al1consistent with a
fisheryzone rather than a claim to interna1or territorial waters. Wehave,
for example, nothing ta show that Tunisia regulated innocent passagcQr
navigation. or exercised customs or sanitary control in the sea. which isthe
kind of control one would expect in territorial sea.
122. Even the description of the degree and area of control is mislead-
ing. The Tunisian Memorial refers tothearrest and trial of 69 vessels"en
majorité italiens, mais aussi grecs et tripolitains'". Map / facing this
page has been compiled by taking the coordinates given in the Tunisian
Annex 89 and plotting them on a standard chart. It can be seen that the
record of control, even over fishing, in no way supports the present exag-
gerated clqirn to sovereignty far beyond the 50 metre isobath.
123. Annex 89 in fact mentions only one Tripolitanian vessel' - the I
Tre Amici, but nocoordinates are given". However, based onthe descrip-
tion "16 millesdans le 90de la bouéede Ras Zira". it ispossibleto identiîy
the location of the vessel: For the buoy must be the light buoy off Ras
Zirai" and allowing for the pôssibilities that the location rnight have been
given either by reference to true north or to magnetic north, one has an
approximate position of 33" 27' 30" N; 11 O 39' E. This would also
Itmay be noted in passing that the grants of petrolsum concessions by Tunisia took no
accouni or thc iillegeZV -45O linc or or ihe 5ni. isobath (sec para. 32 zibovc).
'Sec Tlinision Menioriol. paras4.83 through 4.88.
:Ihid.. para. 4.84.
'Ihid.. paras. 4.85 through 4.87.
'Ibid.. paras. 4.86. 3
"The curious deîinition of "innocent passage" in the 1976 bilaieraliishingagreemcni
bctween tialy and Tunisia is discussed in f2ai p. 60 belou.
Scc Tunirian M~*tiiorial.para. 4.86.
Ihid..Atiner 89. Entry No. 65.
' In conlrast. püra. 4.95 of the TunisianMrniorial rcfcrs to niany Tripolitanvessels.
Ncincihcles~. deapite ihe fact that the Tiini.rian Mr~iioriol indithat ihis vesscl w;is
"Tripolitaine".iis owner was apparenily Iialian.Furihcrmore. no indicationisgivcn in
Ani1e.t 89a, io ihe babis for this vessel's alleged seizure.
'"Mediterrunean Pilot: 9th cdition. Hydrogrnpher of the Navy. Taunton, England. 1974.
Vol. 1.pp. 174and 175. In accordance with Art. 50. para. 2 of the Rules of Court.a copy of
ihis volume was previously dcposited wiih the Regisrrar. For cbnvenience of rcfcrencc
copies of ihe foregoing pages are attached as Annr.r 2. Vol. II. 196 CONTINENTAL SHELF I53l
coincide with the water depth given in the Tunisian Annex (35 mètres).
Thus, this one Tripolitanian-registered vessel, owned by an Italian, was
seized 16 miles north/northeast of the frontier at Ras Ajdir, outside
Libyan territorial waters and on the high seas. No notification of this
arrest was evercommunicated by the owner tothe Libyan authorities. and
accordingly no action was taken by them. Moreover, it is significant, as
@ Mup12clearly shows,that no vesselwas seizedby Tunisia in the Libyan
territorial waters within the area between the due north line from Ras
Ajdir and the alleged 45"bearingl.
124.' The third category of evidencein support of the Tunisian claim is
the alleged acquiescenceofother States: thissadduced under the sub-title
"La toléranceinternationale de la souveraineté iunisiennesur le Golfe de
Gabès2". As that sub-title suggests, the evidence,chas it is, isrelated to
the Gulf of Gabes and does not support the daims to sovereignty over a
very much larger area nowmade by Tunisia. Even withinthe limits of thé
Gulf of Gabes, however, the evidence is unpersuasive.
125. Evidenceonthe general recognition ofTunisian proprietary rights
and ancillary rights to protection andcontra1 over the sedentary species
asserted is not in issue. For the fact that such rights existed is not
disputed. What isdisputed isthe geographicalextent of those rights and
the natureof those rights. Specifically,the relevant evidencemust relate
to the questions whether such rights ever extended to the whole area now
claimed by Tunisia, or even the whole of the area up to the 50 metre
isobath, and whether they were rights ofsovereignty over the area.
126. Reviewingthe evidence sofar adduced by Tunisia, paragraph by
paragraph, it willbe seenthatthe texts cited byTunisia are not ofthe same
legal order: some are purely internal, administrative instructions, some
are acts of legislation and three are treaties. Theious texts, discussed
below in the somewhat loose order in which they are set forth in the
Tunisian Memorial, cal1for the following observations.
(i) Instruction by ihe Director of Public Worksof 31 December
19043.
As indicated above, Article 29 of this internal, administrative
Instruction is limited to an assertion of a fishery zone, not a
claim of sovereignty;the 50 metre limit was advocated to sim-
plify surveillance4.
(ii) Decreeof 26 Juiy 1951.
@ 'Map 12 indicaiesthat mostvesse1arrestswere made in the vicinityofthe Kerkennah
ofGabes.where thetproductivefishingbaexist;andno arrests madeintheGulf
See Tunisian Memorial, paras.4.89 ihrough4.104.
Ibid.,para.4.93.
'See in.at p.42 above. As indicated above, this, too, had nothing to do with
sovereigntybut was expressly stated to be a "reserved" fishing
zone.
(iii) TheLawof 30 December 1963'
This, too, stated the zone out to 50 metres to be a contiguous
fishing zone, expresslydistinguished from territorial waters.
(iv) TheLaw of 2 August 19732.
This, for the first tirne, clairned to enclosedthe Gulf ofGabes,
and much besides, withinnewstraight baselines2. This was the
first attempt so to do, and this certainly raised the issue of
sovereignty. The text of the lawof2August 1973isinreality a
text ofcircumstance. It was adoptedduring the spring of 1973
after severalmonths of workin the beginningof the year by the
Mixed Tunisian-Libyan Commission. Its goal, as clearly
shown in its Article 4, was to assert the Tunisian sovereignty
inherent in the idea of a territorial sea. This, in turn, would
promote the Tunisian shelf claims then in contention. Not
surprisingly, the Law was the subject of express protest by
Libya in 1973 and 197g3, and the Tunisian staternent that no
protest was received is incorrect.
(v) The "Convention" of 23 March 187P.
This "Convention5" was an agreement concerning debts.
Although certain revenues related to the Bey's proprietary
rights insedentary.fisheries("fermagedes poulpeset éponges",
"droit sur la pêchedu corail", "ferme du poisson"), the "Con-
vention" says nothing about sovereignty or the geographical
limits of these rights: it is, therefore, irrelevant to the present
argument. The suggestion in the Tunisian Memoria16that the
"Convention" demonstrates an indirect consecration of "les
droits territoriaux de la puissance côtière"is,therefore, wholly
unsupported. One may note, in passing, that of the total
bcen totally omitted from the Tunisian Memorial. See Libyan Memorial, para. 50 andhas
Annex 1-15.
See TunisianMemorial. Annex 86. Thestraight baselinepurporting 10closethe "Gulfof
Gabes" (without legaljustification) doesnot coincidewiththe 50m.isobath,muchofwhich
liesutside. Moreover aconsiderablepart of the area within the 50 m. isobath liesoutside
the alleged territorial waters of Tunisia.
aSee Libyan Memorial, para141.
'See TunisianMemorial. para. 4.97.
This is no1an international conventionin the properofethe term. as alleindthe
TunisianMernoriul. Itisan arrangement concluded and signed by the members an
ExecutiveCornmitteederivingits powersfrom a Decreeof 5 July 1869. SeCLERCQ,
JulesandDE CLERCQA , lexandre:Recueildes Traitésde la Fronce. Ministèredes Affaires
Etrangères.Vol.15,Paris, 1888,Supp.,p. 540. (A cofythis page is attached as Annex
32. Vol.II.)
See TunisionMemorial, para. 4.98. 198 CONTINENTAL SHELF 1551
incorneenvisagedby this arrangement (6,505,000 francs), the
"fermage des poulpes et éponges" was 55,000francs, i.e., less
than one per cent.
(vi) The Treaty of FraternityandNeighborly Relationsof 6 Janu-
ary 1957and the Establishment Conventionof14 lune 1961'.
Neither treaty has anything to do with the delimitation of
frontiers,whether land or maritime, and the Tunisian argu-
ment that they irnplyrecognition byLibyaof the 45" maritime
frontier is patently false.
(vii) The 1910 TurkishlTunisianConvention'.
This concerned only the land frontier and, as such, is not in
issuein the present case,so the Tunisian suggestion that Libya
seeks to evade obligations assumed by the Ottoman Empire,
contrary to the rules of international law onState succession,is
a gratuitous irrelevance.
in light of the above, it must be said that the Tunisian assertion of
international recognition of its sovereignty over the area now claimed is
without foundation.
(d) Thefactual evidencefor Libyan (Tripolitanian)jshing rights in
the area
127. Theimpressionconveyedby the Tunisian Memorialis that Tunisia,
and onlyTunisia,hasrights inthespongefisheriesinthearea. Itisimportant
to realize that,inthe days when the sponge fisherieswere more significant
economically than today, the sponge-bankswerefishedright along thecoast2.
These fisheries werenever exclusivelyTunisian. Indeed, at least prior to
1887,the frontier lay at El Biban so that the fishermenalong the coast as
far as El Biban were Tripolitanian, not Tunisian.
128. The existence of the Libyan sponge fisheriescan easily be demon-
. strated. Shortly after Libyan independence, in 1952 to be exact. the
F.A.O. submitted a Report to the Government of Libya3under the
Expanded Technical Assistance Program. That Report was intended to
explore the fishingpotential of the Libyan offshoreareas generally, but it
dealt specifically with the sponge Fisheriesand illustrated the extent of
those fisheries'. It willbeseen that the sponge fisheriesextended along the
whole length of the Libyan coast. but were of particularly high quality
between Ras Ajdir and Tripoli. Indeed. imrnediately north of Ras Ajdir
'See TunisianMerriorialpara.4.99.
'PlinyrecordsspongefishingintheGreaterSyrtis. PLINY:arural Hisrory.Bk.XXXI,
para. 131.Cambridge.Massachusetts.HarvardUniversityPress.1942. (A copy of this
pageisattachedasAnnex 33.VolII.) However,itwasonlyafter1887.asaresuitof French
expertise,thatthe spongeherieswere developed becameeconomicallysignificant. See
Annex 6, Vol. IIp.51.
SERBETIS ,. D.:Report ro the GovernnieofLibya on the FisheriesLibya. F.A.O.
ReportNo. 18. Rome, 1952. (In accordancewithArt.50.para.2of theRulesof Court,a
copy of this Reporthas been deposited the Registrar.)
@ 'Map 13 portraysinformationrelativeto sponges set forthin the rnapaccornpanyingthei
F.A.O.Report,citedin the precedingfwtnote. Pb] COUNTER-MEMORIAL OF LIBYA 199
and extending eastward lay a particularly valuable sponge-bank, origi-
nally called the Bank of Farwah' and later the "Greco Bank". This
appears to have been fished exclusively by Libyans since 1961'. In 1951
Italian, Greek and Libyan vessels were involved in the fishery3. In the
year 1950, immediately preceding the Report, the annual value of sponge
exports frorn Tripolitania and Cyrenaica combined was 357,700 Libyan
pounds'. and there existed no evidence of a decline in production.
129. The existence of these sponge fisherieshad created the need for an
effectivejurisdiction and control parallel, in many ways, to that exercised
by Tunisia to the west. It was the fact that Libyan fisheries existed in the
area. and had given rise to this parallel jurisdiction-exercised succes-
sivelyby 'Tripolitania, Italy and Libya-that accounted for the lack of any
international recognition of Tunisian rights in the same area.
130. From the time of the ltalian occupation of Libya in 191 1, certain
general legislative acts defined the limits ofjurisdiction in Libyan waters.
Incidental to the ltalian invasion of Tripolitania, in 191 1. the Italian
Government declared a blockade of the Tripolitanian coast, bounded in
the west by Ras Ajdir and in the east by Mersa Matruh. The clear
indication was thal the limit of the blockade seawards lay along the
' Farwah isa peninsula of the Libyan coast approximaicl7 nautical mileseast of Ras Ajdir.
' "Jusqu'en 1961. une vingtaine de gangaviers avaient des autorisations pour aller pêcher
dans les eaux libyennes sur le banco greco. très riche en éponge. Cc banc, à cheval sur les
deux pays. permet encore des cucitleties intéressantes pour les bateaux. moins nombreux
ayant ou nondesautorisations." SA~X. Eiienne:Eiudedespossibiliféd sedéveloppamendtu
serreurdes pêches en Tunirifi Tunisie. Secrétariat d'Etat au Plan et aux Finances. Jan.
1965.p. 26, 1.1.3.4Sre also. the Memorandum by Blake and Anderson, published in Annex
3, Vol. III. to ihis Counter-Mernorial.
.'The figures given for1951 are: diver-operating vesscls, Greek (56). Libyan (4); Fernez-
operatingvessels, Grcek(1 1); Cangava vessels,Libyan (6).Iialian(22); other boats. Greek
(8). Libyan (8). Tunisian (1 ). SERBETIS.~~c.i!..p. 24. (Acopy ofthis page isattached as
Anne.r 34. Vol. II.)
There was more extcnsivc fishingby foreign vessels than by Libyan vessels.as the figures for
the immediately preccding years indicate:
Totat Linded by loci1
-nr hoduciion (kg) bmtr (kg)
1947 ..........................................................38.665.........20.195.......
1948 .........................................................75.036..........29.994
1949 .................................... ....................98,887 8,439
1950 ........................................................120.628.........25.000...........
1951 ........................................................1.00.723.........34.954.........
Sources:Abstrac~1963 Tripoli, 3Ministry of National Economy,in1974.op.165. (ASracopy ofl
this page is attached aAnnex 35. Vol. If.)
By 1973, the Libyan fishing population was approximately 900, of whom nearly 400 were
foreigners established there.(See SOCREAH: S~udyfor a General Masrer Plan for the
Developrneno r fthe FishingPortsin rhe LibyanArab Republic. Park 1,Grenoble, 1973,p.
Libyan fishing population is in excess o1.000. 36. Val.II.) Thecurrent estimate of the
'SERBETI Sp. ci!.p. 36. (See fn.3 at p.55 above).200 CONTINENTALSfIELF
meridian of longitude, that is to Saydue north'. The Italian Royal Decree
of 4 February 1913, No. 85' adopted a 12-mile customs zone, and was
made to apply to Libyan waters.
131. A similar 12-milezonewasused for purposesof neutrality legisla-
tion in the Royal Decree of 6 June 1940, No. 5953, and again included
Libyan waters under the heading ofwaters of Northern Africa. However,
there existed no specific legislation regarding the extent of territorial
waters off the Libyan Coastand in particular there was no legislative act
defining the lateral maritime boundary between Libya and Tunisia.
132. lt was in relation to the regulation of fishing that legislative
activity was most conspicuous. A Royal Decree of 27 March 1913,No.
312" promulgated a reserved or exclusive fishing zoneoff ihe coasts of
Tripolitania and Cyrenaica. Sponge and coral fishing was subject to
particular rules. For sponge fishing beyond the territorial sea a special
license was required and, indeed, fishingthroughout the sponge-banks of
Tripolitania and Cyrenaica was subject to licensingcontrol, with licenses
to foreigners requiring ministerial authorizations5. The extent of this
licensing control was defined simply by reference to the actual extent of
the sponge-banks. The only specificreference to a limit was to the 20
metre isobath, the limit within which dredge or diving-suit fishing was
prohibited6.
133. The fact that the sponge-banks lay off both the Tunisian and the
Libyah coastsobviouslyrequired someformofdelimitation ofjurisdiction,
and this seemsto have beenattempted by the Instructions for the Surveil-
lance of Maritime Fishing in the waters of Tripolitania and Cyrenaica,
issued by the Governor of Libya on 16 April 1919. The Instruction
provided that:
'See the Italian Declaration of 29 Sep.11inRivisra di Diritro Internaziona1912.p.
557. This Declaration referred to the littoral situated between Lon11Ou32'and 27"
54' East of Greenwich. The eastern limit of the blockadwas modified by the Italian
Declaration of 19Oct. 1911 followingprotest by Great Britain. No modification of the
Italian Declaràtion was either asked for by France or unilaterally decided by ltaly as to the
western lirnits of the blockade. (A coofthis page is attached Annex 37, Vol. II.)
Royal Decreeof4 Feb. 193.No. 85. (A copyof this Decreeisattached aAnnex 38. Vol.
II.) This Decreewas confirmed in its application to Libya by the subsequent Decree of 18
Mar. 1915. No. 402. (A copy of this Decree is attached Annex 39. Vol. II.)
-'Royal Decree-of6 June 1940, No. 595. (A copy of this Decree is attacheAnnex 40.
Vol. Il.)
Royal Decreeof 27 Mar. 1913, Na. 312. (A copyof this Decreeis attachedAnnex 41,
Vol.Il.) This Decree wasslightlyamended bythe Royal Decreeof 22 Nov. 1925,No. 2273,
but the essential features of the licensing system remained unchanged.copy of this
Decree i5atlached asAnnex 42. Vol. Il.)
"oyal Decreeof 27 Mar. 1913.No. 312. Arts. 17.4. 19and 20. These provisionstherefore
applied outside the customary limits of territorial waters.Annex 41. Vol II.)
Ibid.. Art. 25.Accordingly, in the case of bath Libya and Tunisia. this was not an assertion
of jurisdiction over maritime areas. f581 COUNTER-MEMORIAL OF LIBYA 201
"As far as the sea border between Tripolitania and Tunisia, is
concerned, it was agreed to adopt as a line of delimitation the line
perpendicular to the coast at the border point, which is,in this case,
the approximate bearing North-North-East from Ras Adgir'."
1.34. The adoption of a line "normal"-that is to Say perpendicu-
lar-to the coast at Ras Ajdir was doubtless influenced by the fact that
someyears earlier, in 1913,the Port Authorities of theZuara District2had
enforced the Decree of27March 1913and had exercisedjurisdiction up to
this same "normal" line. In that instance3, three Greek fishing boats,
equipped with licenses to fish from the Tunisian authorities, had been
arrested by the ltalian torpedo-boat "Orfeo"whilst sponge-fishingsome
1 1.7 miles offshore at a point 33" 19'North latitude and 9" 22' East of
. Parisa. The Zuara Court found that the sponge-banks extended more
than 25 miles offshoreat that point, and the vesselswere therefore within
thejurisdictional limitsof the 1913decree. As to whether thejurisdiction
was Libyan or Tunisian, the Court found that the vessels were on the
Tripolitanian side of the "normal" lineand, notwithstanding the Tunisian
license, were therefore guilty of violations of the 1913 Decree5.
135. There seemslittle doubt that this assertion ofjurisdiction explains
the origin of the ltalian Governor's Instructions of 16 April 1919. It
seerns clear that the French had not so far made any reference to any
northeast boundary lineon the sea. Italy was in fact asserting a jurisdic-
tion incompatible with any such line. It is,therefore, also clear that there
was no agreed, lateral boundary but only, so far as Italy wasconcerned, a
provisional demarcation of the two jurisdictions, pending an agreement.
The purely provisionalnature of the "normal" line wasemphasized by the
fact that Section 4 of the 1919 instructions provided that, unless the
position of a foreign .vesse1suspected of illegal fishing could be proved
irrefutably, if found withina zone parallel to the provisionalboundary and
bounded by a linestarting at Ras Makabez" the vesselsshould be expelled
rather than seized. This measure was obviously designedto decrease the
risk of friction over seizures of vessels,pending an agreed delimitation of
the lateral boundary.
'Art. 3. (A copy of these Instructions isatiacheAnnex 43, Vol. II.)
Zuara isa Libyantownlocated 1 nautical miles fromRas Ajdir 57dnautical milesWest
of Tripoli. The headquarters of the maritime district Westof Tripoli is located there.
jSee Ann~x 44. Vol. II for unofficial translation of the appropriate part of the Court's
sentence.
'To convert the Meridian of Paris to the Meridian of Greenwich one2"20' 14'.
"Itshoutd be noted that the Zuara Court declared the fishermen guilty not of violating
Libyan territorial waters or of Ashinginside the 20 m. isobath but of trespassing on the
sponge-bank itself, since every bank was regarded as subject to Libyan jurisdiction.
This paralleled the Tunisian practice west of Ras Ajdir.
'Ras Makabez is located7nautical miles east of Ras Ajdir and 78 nauticat miles Westof
Tripoli. CONTINENTALSHELF
136. Such an agreement did not materialize, and on 25 June 193 1the
Governor issued new Instructions', embodying (so far as the lateral
boundary isconcerned) the same features of a provisionalboundary and a
"bufler" zone to avoid unnecessary friction withFrance. The text read:
"{Tl he sea border line between Tripolitania and Tunisia is estab-
lished by an approximate north-north east bearing from Ras Adgir,
but inorder to avoidany possibledisputes, it has been agreed that the
demarcation line originate with thesame bearing from Ras Makabez
inorder toestablishan area of approximately 8 miles in frono tf the
Ras Adgir-Ras Makabez coastline, in which foreign Hag boats thatdo
not have a permit from the ltalian maritime authorities must not be
sequestered but asked to move on, unless the location inwhich they
werespotted fishingillegally,can be established without any doubt to
fall within the boundary."
The exact import of the phrase "it isagreed" is not clear. Certainiy there
was no formal agreement on delimitation, but it may refer to some inter-
governmental agency agreement between the Italian Governorate of Trip-
oli and the central Government in Rome or tacit modus vivendi reached
between the ltalian and French authorities on the spot., In any event,
what isquite clear is that there was noreference to. or acceptance of, any
maritime boundary running northeast.
137. As indicated above, itwas inthe Tunisian Decree of 26 July 195 1
that the reference toa 45" line firstappeared. The Tunisian 1904Instruc-
tion had defined the terminal point on the 50 rnetre isobath of the surveil-
lance zone bymeans of a bearing from Ras Ajdir "vers leNord-Est"". In
1951 this became "en direction Nord-Est ZY-4.5"". In the light of the
ltalian practice, summarized above, it issurprising to find inthe Tunisian
Memoria13the assertion that the 45" line was by 1904 internationally
established as the Tunisian/Libyan maritime frantier and that it had
received the acquiescence of neighboring States, and especially of Italy.
Italy, it isid, expressly confirmed its acceptance of such a boundary in
the Italo/Tunisian Fishing Agreement of 1 February 1963'.
138. The short answer to this contention isthat ltaly had certainly not
recognized or accepted any lateral maritime boundary with Tuni-
sia-whether northeast or at 45'-prior to Libyan independence on 24
December 1951. And ltalian conduct after that date is entirely irrele-
vant, for Italy was no longer in a position tocommit the independent State
of Libya. However, even ifsubsequent Italian conduct is looked upon
simply as part of an alleged international acquiescence, the statements
made in the TunisianMernorial remain highly misleading and requirea
short excursus into ltalian practice. For it was ltaly which protested
against the Tunisian Lawof 1962,attempting to define the waters within
the 50 metre isobath as territorial waters, and it was Italy'stest which
'A copyof these Instructionsisattachedas Annex 45II.ol.
68 See Map 10 facinp.48 above.
O 'See fn. atp.50oabove.ara.107.brought about the repeal of that Law in 1963. The 1963 Italo/Tunisian
FishingAgreement wasa consequenceof Italy'soppositionto the Tunisian
attempt to monopolize the offshore fisheries, and although it brought
about the repeal of the 1962 Tunisian Law, it did provide for Italy's
recognition of the zonelimited by the 50metre isobath and the 45" line as
a reserved fishingzone. Why Italy's recognition of this line was sought
must remain a matter forconjecture. What iscertain isthatthe "recogni-
tion" wasof nopracticat significance, for such a lineconcerned ltaly not at
all. Not one of the four areas in which Italian nationals were granted the
right to fishunder the 1963Agreement came intocontact at any point with
the 45" line.
139. The 1963 Agreement was replaced by a new fisheries treaty in
1971 and this in lurn was replaced by a treaty of 1976'. This, too,
contains a reference to the 45" line and in this Treaty the line did have
practical effect, for itdefined the exclusive fishery zoneof Tunisia, which
ltaly recognized, and within which Italian fishingvesselswere granted a
right of "innocent passage2". None of the treaties continues in force.
The 1963 and 1971Treaties were terminated, only to be replaced3. But
the t976 Treaty expired in 1979, and is unlikely to be replaced by any
further bilateral treaty since the European Economic Community has
asserted campetence in fishery matters. The contemporary attitude of
Italy, insofar as this may be regarded as indicative ofinternational recog-
nition of the Tunisian claims, is itlustrated by two Decrees of 74 and 25
September, 1979'. Both are concerned with the prohibition of fishing in
zones of the high seas. in which a manifest need for conservation of fish
stocksappears. And. in the second decree of 25Septeniber 1979,the text
in translation provides as follows:
"The Minisrer of the Merchant Navy
Considering the necessity to ensure the deJenseoJ the biological
resources existing incertainzones of the highsea inorder roguaran-
tee the jshingness of waters in which operate rhe Italian fishing-
bouts;
'With respect to the 1971 and 1976 treaties. one should notAnnexer 6 and 7 of the
treaties. These extracts omit the important provision regarding duraiion which brings into
question Tunisia's assertionsthat these treaties constitute iniernational recognition of the 50
m. isobath 45" line claims.
Arliclc XIIof the 197Treaty speaksof"le passage inoffensif, c'est-à-dire sans.".che..
The concept of innocent passage is properly confined to territorial waters and its use in this
area is perhaps the legacy of Tunisia's attempt in 1962,cbycItaly. to categorize the
area asterritorial waters.
Vtaly's retenrion ofishingrights became steadily more costly under these agreements.
Under the 1963 Treaty Italy pa151 million lire per year; under the 1971 Treaty I billion
lire per year; and under the 1976 Treat2.5billion lire peryear, with other collateral
obligations in addition.
Topipiesofihcse Decrees are attached aAnnex 46. Vol II. 204 CONTINENTAL SHELF [61j
Considering his own decree dated September 24, 1979, which
deferred tofurther legislacionthe dejnition ofthe sea-zoneswhereit
is prohibited to Italian ships and nationals to carry on fishing
activifies;
Considering rhal the part of the sea delimited by a line which,
srartingfrom thepolnl /ofl arrivuf of the fineoJthe twelvemiles of
the Tunisian territorial waters connects, on the parallel of Ras
Kapoudia, with the 50 m. isobath and follows that isobath to ifs
meeting-pointwith the linedepartingfrom Ras Agadir to the North-
East-ZV=45", is traditionally recognized as a zone of fishing
restocking;
Decrees:
It 'isprohibited to Italian nationals and rofishing-bouts flying the
Italian flag io carry onfishing aciivities in the zone of the sea as
dejined in the premises."
140. Thus, whilst as a matter of contemporary practice Italy restrains
' its nationals and vessels from fishingin the Tunisian reserved zone, ltaly
regards the zone beyond the 12-milelimit as an aren of high seas. Noth-
ing could be further from a recognition of the zone as part of the Tunisian
national waters, which is what the Tunisian Memorial implies Italy has
recognized.
141. Whatever the Italian reaction to Tunisian claims, it can be stated
categorically that Libya hasnever recognized those claimsand specifically
has neveraccepted the idea ofa lateral boundary withTunisia on a bearing
of 45" from Ras Ajdir': for Libya, the maritime boundary has been
regarded as running north from Ras Ajdirz. In pursuance of this view,
Libya has arrested Tunisian fishingvesselstrespassing into Libyan waters.
However, Tunisia herself would seem to have avoided any overt claim,
based uponactivity byTunisian vessels,in the area east ofa due north line.
For example, Tunisia has pursued oceanographic research, the results of
which were published in 19713. These disclose that none of the research
vessels wasauthorized to operate in the area between the due north line
Seeinterolio the 1913Royal Decreereferredto in para. 132.the 1919Instructionsreferred
to in para. 133and the Zuara judgment referred toin para.above.
See alsLaw No. 12of 1959and the twoDecisionsenactedthereunder1960and 1961 by
the Libyanazir ofCommunication concerningspongefishing. (Copiesof Lawsand the
Decrees are attached Annex47. Vol. II). Asdepicted in Map 14 facing p. 60, these
regulationscreated a fishing zonethe westernlimitsof whichran nfromRasd Ajdir.
Although a Tunisiandetegatiounder thesupervision ofthe Tunisian MinisofForeign
Affairs wainTripoli at the time in connection with negotiations coacnumber of
bilateral agreements, noisian pratest was made tLaw No. 12 of 1959 or the two
Decrees.
Bulielinde I'lnsiiturNaiionalScientifiqueet Techniqued'Océanographieer du Pèche.
Salammbô, 1971,Vol.2, No. 1, pp. 41 through 47, attached as Annex48, Vol.II. lb21 COUNTER-MEMORIALOF LlBYA 205
@ and the claimed 45" line'. This isverified by Map 13 facing this page on
which are plotted the location of the trawls from the tables given at pages
41 through 47 of the official report.
142. Libya hasalsoasserted in tight of "considerations of international
air navigation and national territorial integrity" that the airspace to the
east of a line north of Ras Ajdir up to 36" 30'N is the "firm, inalienable
and inviolable" airspace of Libya2.
143. Infact, the area to the east of the due north line is an area over
which Libya exercises a particular surveillance. For it is one of four
offshore areas defined as a security area, an area in which Libyan naval
vessels and aircraftconductmilitary exe~cises~.During the period ofsuch
exercises. al1vessels are excluded from these areas.
(e) Thecontemporary realiry, and econoniicsignificance, of rhe
asserted "historic rights4"
144. The Tunisian Memorial portrays the sedentary fisheries as vital
both forthe population around the Gulf of Gabes and for the economy of
Tunisia as a whole5.Indeed, it would be only on such a view of their
importance that the great emphasis placed on historic rights in the Tuni-
sian Memorial would seernjustifiable.
145. In truth, however, the reality of the situation is very diferent.
The coastal areas around the "Gulf of Gabes region" are not uniformty
arid, forcing the population to look to the sea for their sustenance. They
are areas which have longbeen and remain today of considerable agricul-
tural significance, producing olives,dates6,vegetables and fruit, and also
supporting livestock (mainly goats and sheep)'. Olives are perhaps the
most important agricultural product, and the extent of production isindi-
cated by the following table:
'The sameorganization whichcarried out the oceanographic research for Tunisia undertook
similar research for Libya. At no time was a so-calledline of45" from Ras Ajdir suggested
as a delimitation or other boundary line in the cours; of this research.
'Libyan Working Paper on Agenda Item6for the Forthcoming AFI Regional Air Novigo-
cionMeeting in ~anzÙnifrom 20 Nov. throlrgh 1Der..1979,p. 2. attached Anne.r49.
Vol. II. Tunisian efforts to interject the 45" line from Ras Ajdir were hrmly rejected by
Libya.
Libyan Navigation. 9 July 1974. Poriolano del Mediierraneo.Vol. III. 65.
'The materialinparas. 144thrÔugh 150is based on a memorandum prepared by Dr. Allan,
Senior Lecturer in G.eography. School of Oriental and African Studies. University of
London, and is included aAnnex 1.Vol.111.
3ee Tunisiah Memorial, para. 4.32.
In 1938southern Tunisia produced32 percent. of the country's olivetrees. Exportsofolive
oilfromTunisiawere valuedat around 8milliondinars in the y1968 through 1972. The
valueof datexports in the years 1972and 19was approximately2.4 milliondinars. See
Annex 1. Vol. III.
In the 1930sTunisiaexported çheep to Libya, some 65,000 of them in 1938Annex 1.
Vol. IIIp.4. CONTlNENTAL SHELF
Southern Tunisial
Sfax Gafsa
1971 1972 1973 1971 1972 1973
- - - ---
Olives alone .......... 244.3 219.0 236.5 41.5 41.5 44.0
Olivesinassociation
with other crops 68.6 143.5 115.5 77.8 78.0 75.5
--- ---
312.9 362.5 352.0 119.3 119.5 119.5
146. The dominance of agriculture over sponge-fishing, or indeed
fishinggenerally, is reflected in the occupations of the inhabitants of the
region. The fishingcommunity for the region as a whole (including Sfax
and the Kerkennah Islands) isestirnated to be around 1.6per cent. of the
population at the present time, and only a fraction of this would be
involved in the sponge-fisheries. Yet,whilstone c!n assert the dominance
of agriculture over fisheries as long-established, it is the newer sectors of
industry and tourism which havemade the contemporary significance of
the sponge-fisheries so slight3.
147. Tunisian industry isby no means confinedto the extractive indus-
tries concerned with phosphates and petroleum: wine. cement. tiles.
ceramics, automobile manufacturing, wool, Cotton, shoes-al1 these are
examples of the progressive diversificationof the Tunisian economy.
'SEKLANIM . ahmoud: Economi~et PopulationduSud Tunisien. Paris. Editionsdu Centre
National de laRecherche ScÎentiFique,1976.p. 7(A copy ofthis page isütlached asAnnex
50. Vol. II.)
' ha: hectares.
A gencral picture of the relative importance of the various sectors of the cannbey
gained from the following table:
Estimales of the value of production for some
important economic sectors for the South
(million dinars)
-fax Cabes Gafsa Medenine The South Tunisir
Aericulture (19721 .......... 11.0 5.0 7.0 4.0 27.0 154.0
Fishing(1969) ................1.4 0.1 - 0.3 1.8 3.7
Source: SEKLANI op. rit.. pp. 79. 123. 137. 140. (Copies of these pages are attached as
Anne.r 50. Vcbl.II.)
In rendingthe above table it must be remembered ihat thc figurc for fishing includes ail
figures for the value (thousands ofdinars) of production in 1975:ore fishery (4.771);lowing
trawling(2.806): lighr fishing (1,470): lagoon fishing (686): tuna fish (453); shell-6sh
(837); sponges(170): coral (99).Source: Tunisian Secretarial of State for Information:
Tunisia'sFishingProductionand ValueAdded 1971-1975.Tunisia, 1978. p. 156.(A copy of
this page is attached as Anne5/.Vol. II.) PA COUNTER-MEMORIAL OF LIBYA 207
148. So far as tourism is concerned'. it-must be said that, in dealing
with the region of the Gulf of Gabes and Djerba, for the Tunisian Merno-
rial to omit al1mention of this highly important sector of the economy isto
give a seriously distorted picture. By 1973some 19,900 Tunisians were
ernployed in the tourist industry, and in the following three years this
figure rose by 68 per cent. to some 33,500 persans'. It is likely that those
employed in sponge-fishing did not exceed 1,000.
149. In economic terms, receipts from tourism rose from 3.7 million
dinars in 1963 to 1 15.2 million dinars in 19753.Toset this in perspective,
the value of the production of the sponge fisheries in 1975 was 18 1,000
dinars"or 0.15 per cent. of the value of the receipts from tourism.
150. WC thus have a'highly misleading picture presented in the Tuni-
sian Memorial. The whole edifice of argument. designed to demonstrate
the antiquity and the reality of the Tunisian interest and suggesting an
overwhelming dependence of the coastal population on these fisheries,
pnrticularly along the southern Coast of the Gulf of Gabes, is totally
divorced frorn the realities of the presentsituation. The sponge-fisheries
are really a legacy from the past, of almost trivial relevance to the econ-
omyof the country orthe well-being of ils population, and they concern a
' Note in this conneciion ihat Libya hascooperated with Tunisia in promoting the growth of
ils tuurism and itfishinginduslry (see paras. 45 and 46 above). For example. the Libyan
Invcsiment Corporation and the Libyan Arab Foreign Bank participate to the extent of 45
pcr cent. in the Turqueness Company. owner of the Dar Djerba Hotel.
'Tunisian Secretariat of State for Information. op. cil.. p. 99.(A copy of this page is
attüchcd as Annex 51, Vol. II.)
"The growth in tourism cnn be seen in the table below.
Some data on Tunisian tourism
Receipts TDmn
1963 3.7 1964, 5.4 1965 9.2 1966 13.6
1967 16.4 1968 22.2 1969 26.1 1970*
1971 53.8 1972 67.4 1973 72.1 1974 79.1
1975 115.2
' na1available.
Source: AnnuaireS~afistique de la Tunisie 1974-1975.Tunis,ServiceTunisiendes Statisti-
ques. 1975, p.250. (A copy of this pageisattached asAnnex 52.Vol.II.) Seealso
Annex 1, Vol. III.
'The production and valueof the sponge-fisheriesfluctuates from year to year ascan be seen
from the followingtable:
S~ne-value
--n- TD'ûûû
1969 ..........................................74 246
1970 ..........................................32. 82
1971 ..........................................56.......205
1972 ..........................................62......240.
1973 .........................................64......248......
1974 ........................................ 43 167
1975 ............................................... 181
1976 ..........................................70......271..
Sources: 1968-1973 Mirtirtiredu Plan. Tunis, 1975;1972-1976 Minisière du Plan. Tunis,
1976, Annex VIII. (A copy of this page is attached as Annex 53. Vol. II.)208 CONTINENTAL SHELF 1651
very small number of people. lt is quite extraordinary that, in a contem-
porary dispute over the delimitation of the continental shelf in which the
concernof both parties ispatently with the mineral resources ofthe shelf ',
the Court should be invited to base its decisionon interestsso trivial as the
Tunisian interests in sponge-fisheries.
SECTION2. "Historie FishingRights" and the Delimitationof Mari-
time Boundaries
151. Traditionally, the existence of "historie" rights, of established
fishingpractices insea areas outside the territorial sea, might be found to
liewith either coastal or non-coastal States. In the case of coastal States,
the rights would be based upon evidenceof long-established possessionof
theJructus (these rights justifying a degree of legislativeand administra-
tive control); in the case of the non-coastal States, the rights would be
based upon established fishing practices. In order to reconcile the two
potentially competing sets of rights, the coastal State would proceed by
way of licensing,or concession, oragreement. It was exactly in this way
that Tunisia reconciled its own rights to the offshore sedentary fisheries
and the rights of French, ltalian and Greek fishermen.
152. No question of boundary delimitation was involved, for the very
obvious reason that, being essentially a high seas fishery, there were no
boundaries. There were, necessarily, limits to be established for the areas
within which the rights of property, and of surveillance and control,
existed. Yet thesecould never be regarded as baundaries in the accepted
senseof limits to sovereignry. The difference wasessentially one between
areas of sovereignry.reflecting a true boundary as the lirnit of territorial
clairns. and areas of surveillance and ronirol for limited and specific
purposes. That the change to a concept of sovereignty is a very recent
change is, indeed, acknowledged by Tunisia in its Memorial:
"Alors qu'autrefois, même des droits exclusifscomme ceux portant
sur les pêcheriessédentaires pouvaient êtreexercésdans des eaux
appartenant à la haute mer et non susceptibles, pour cette raison,
d'êtresoumises à des droits souverain^...^".
153. This situation changed with the establishment of the doctrine of
the continental shelf,thatisto say inthe period after 1945,the date of the
Truman Proclamation3,and probably evenafter 1950. Initially, it seemed
that the continental shelfdoctrinemight best be regarded asa special form
of maritime jurisdiction, ratherthan an assertion of sovereignty: and this
was reflected in the terms of the 1945Truman Proclamation. However,
with the adoption of the 1958 Convention and the rapid growth of State
practice in concluding shelfboundary agreements, it became clear that the
doctrine was based upona concept of sovereignrights, albeit limited to the
purposesofexploringand exploitingshelf resources. This, however, wasa
'See para. 6 above.
'SeeTunisian Memorial,para. 7.15.
aPresidential Proclamation No. 2CodeofFederaR legularion Vo.l.,1943-1948,p.
67. (A copyof thipageis attached aAnnex 54, Vol. II.) very recent developmentl,and it has nothing in common with the kind of
historic rights on which Tunisia relies. .Not only is it impossibleto postu-
late Tunisian historic rights affecting the continental shelf boundary prior
to the establishment of the legal regime of the continental shelf but,
equally, it cannot be said that any*acquiescence2by Libya in Tunisian
fisheryclaims could affect Libya's positionregarding the shelf boundary.
For, prior to the establishment of the shelf regime, there could be no
assertion of sovereignty in which Libya might be said to acquiesce. It
might also besaid that it isdifficultto establish "acquiescence" in relation
to a shelf boundary. For the rights of the State exist de jure and are not
dependent on occupation or proclamation. Hence, such rights cannot be
effectedby "acquiescence" in the same wayas territorial rights depending
upon physical occupation.
154. There certainly remained a question of how far the boundaries to
be established under the new shelf regime should be influenced by such
historic, traditional fishing rights. In the paragraphs that follow, the
evidence of how this question was answered in the di,scussionsin the
International Law Commissian, in the 1958 Conference, and in subse-
quent State practice, will be sumrnarized.
155. It cannot be said that, in elaborating the drltft Articles on the
continental shetf, the International Law Commission gavedetailed study
to the effect of traditional fishing practices on shelf boundaries. In his
Second Report, Professor François, as Special Rapporteur, suggested that
in relation to delimitation of the territorial sea the median line might be
varied where there werespecial reasons "telles que des intérêtd se naviga-
tion ou de pêche3". However, as his Third Report made clear, such
variation was to be embodied in an agreement, and by implication could
not be adopted unilaterally4. He was, in fact, referring to opposite rather
than adjacent States and draft Article 17on adjacent States made no
corresponding reference to fishing interests. It was, however,clear that
the Commission felt that analogous rules should be applied to the conti-
nental shelf
Asquith regardedthe shelf regirneas not having beenestablishedin 1939. (Copiesof these
pages are attached as Annex 55. Vol. II.)The early records of the InternationLaw
Commissionshowthe reluctance of the Commission to regardit as an established regimein
1951.
Libya. of course,deniesthat there was any such acquiescirTunisianclaims tosover-
eign rights. See paras. 127through 143abovefor a descriptionof Libya'sownpractice and
claims tofisheriesin the area.
U.N.Doc.A/CN.4/61. Yearbookofthe InternationalLawCommission1953,Vol.II,p.77,
obviouslyreflectingthedeascontainedinthe Reportof the Cornmitteeof Experts,ibid., pp.
77 through 79. (Copies of thcsc pages are attachas Annex 56. Vol.II.)
'U.N. Doc.AlCN.4177, Yearbook of the InternarionalLawCommission1954.Vol.II, p. 6:
"Exccptionnellement.lesintérêtse navigationau de pêchepourrontjustifier un atracé
de la frontière, a fierd'u~ commun accord entre les parties inréressées." (Italics
added.)(A copy ofthis page is attached as Annex 57. Val.II.)
'lbid.. p. 6. (See Annex 57. Vol.II.)210 CONTINENTALSHELF w71
156. François' subsequent Reports' dealt with sedentary fisheries, but
made no reference to their effect on boundaries, and in the Final Draft
Articles the express reference to fisheriesappeared in neither the articles
on delimitation of the territorial sea nor the articles on delimitation of the
continental shelf. The reason was that the Commission preferred to use
the broader formula of "special circumstances", developed in connection
with draft Article 72 on the continental shelf '. lndeed, in its Commen-
tary on the Final Draft Articles, the Commission'sdescription of "special
circumstances" was confinedto "exceptional configuration of the Coast,as
weil'asthe presence of islandsor of navigable channels"". There was no
mention of fishing interests.
157. The lack of express reference to fisheries continued during the
discussions on shelf delimitation in the Fourth Cornmittee of the 1958
United Nations Conference on the Law of the Sea. During the entire
discussion only one delegate (Kennedy (United Kingdom)) mentioned
fishery rights as a possible "special circumstance" which might justify
departure from the equidistance principle4.
158. This review ofthe legislative historyof the delimitation provision
in the 1958 Convention on the Continental Shelf suggests the following
conclusions. The possibility of fishing rights operating as a "special cir-
cumstance" wasrecognized, but the paucity ofdiscussionsuggeststhat the
problem was not regarded as a serious one, and the International Law
Commission regarded it as one which should be resolved by agreement.
159. lnsofar as the 1958 Convention is not the applicable law in the
present dispute, the legislative historyof Article6of that Convention rnay
be said to be irrelevant. There is, however. authority to suggest that the
notion of "special circumstances" plays a role in Article 6 which issirnilar
tothat of equity under'customary international law5. It may behelpful to
consider how fat, in State practice, established fishing rights over
sedentary fisheries have influencedcontinental shelf delimitations. For
such State practice will illustrate the application of equitable principles,
whether under Article 6 of the 1958 Convention or under customary
international law.
y U.N. Doc.A/~~.4/97, fi'enrbookof theInrernationalLaw Commission 1956.Vol.1.pp.7
and 8. (Copies of these pages areattachedas Annex 58. Vol.II.)
* U.N. Doc.A/CN. 4/Sir. A/1954/Vol.l, Yearbookof the InternafionalLaw Commission
1954.Vol.1,p. 103. (A copy of this page isattachedas Annex 59. Vol. II.) See also. the
resultantformulainArts.12and72intheFinalDraft Articles,U.N. . /3159, Yearbook
olihe InternationalLawCommission 1956.Vol.II,pp.257,258and300. (Copiesofthese
pages areattachedas Annex60, Vol.II.)
U.N. Doc.A/3159, Yearbook.ofthe InternaiionalLaw Commission 1956, Vol.II,p. 300.
(See Annex 60, Vol.II.)
' U.N.Doc. A/CONF.13/42, Yearbook of theInrernationalLaw Commission 1958.p. 93.
(A copyof this pageis attachedas Annex 61, Vol. Il.)
SeeAngleFrench Arbitrarion(Cmnd. 7438). pp.47and 48, paras.65 and70.I681 COUNTER-MEMORIAL OF LIBYA 211
(a) Therelevanceof "historicrights" to the delimiiarionof maritime
boundaries as refIec~edin the practice of States
160. The location of sorne of the most famous sedentary fisheries
happily coincides with maritime areasin which shelfdelimitation agree-
ments exist. Hence, by reference to these agreements, it should be possi-
ble to test the Tunisian hypothesis that in rnatters of shelf delimitation
historic rightsto these fisheriesshould prevail,and should excludethearea
of these fisheries from the delimitation exercise. It is proposed to take
these areas in turn'.
(i) The Ceylon Pearl and Chank Fisheries
161. These chank bedsand pearl grounds liein the Gulf of Manaar and
Palk Bay,the latter being regarded by Great Britain as an area of historic
waters2. By an Agreement of 26-28 June, 1974, lndia and Sri Lanka
agreed on a boundary in Palk Bay, delimiting the continental shelf and
subsoilof the Bay3. The preamble recites that the parties have "examined
the entire question frorn al1angles and taken into account the hislorical
and other evidence and legal aspects thereof'. The Agreement resolved
the dispute over Kachativu Island, by allocating it to Sri Lanka and
placing it on the Sri Lankan side of the boundary; and by.preserving a
right of accessto it for Indian fishermen. There is, however, no mention of
the sedentary fisheriesand no suggestion that they affected the boundary
in any way. The boundary is in fact a modified equidistance boundary.
162. Likewise in the Agreement of 23 March 1976', establishing a
maritime boundary in the Gulf of Manaar, there is no mention of the
sedentary fisheries, and the boundary is a modified equidistance line.
(i) The Australian (Queensland) Pearl Fisheries
163. These sedentary fisheries lie off the north Coastof Queensland5.
The sea-bed boundary agreements in the area are the following:
Although ihc examples of State practice cited below may ditTerin many respects from the
present case. it inintercsting to note that these examples involvedsituations where sedentary
fishingwasof greai importance and yet this factor was not accorded significancein arriving
at a delimitation of the continental shelf.
Annokumara Pillai v. Molhupayal. 27 lndian Law Reports, Madras Series, 190p. 558.
(A copy ofthispage isattached aAnnex 62. Vol.II.)For cvidencethat H.M.C. regarded
the àrca of chank and pearl jurisdiction. including a right to control foreign fishermen, as
cxtendingio 25mi.,see Parl. DebafeH.C. 5th Ser., Vol. 163.cols. 1417-1418. (Copiesof
these pages are attacheas Annex 63. Vol.II.)
.Limirs inthe Seos. Washington. D.C., Officeof the Ceographer. United States Depart-
ment of State, No. 66, 12 Dcc. 1975. (In accordance with Art. 50. para. 2 of the Rules of
Court, a copy of this document has been deposited with the Registrar.)
'Limirs in rhe SeasNo. 77.16 Feb. 1978. (ln accordance with Art. 50, para. 2 of the
Rules of Court. a copy of this document has been deposited with the Registrar.)
Thcse fishcriesalso lieoffthe western coasts, but since there are nodelimitation agreements
in thatarea,thcy are irrelevant to this demonstratiSee COLDIE, L.F.E .Australia's
ContinentalShelr' (International anCumparoiive Law Quarferly.Vol. 3, 1954,pp.536
and 537) fora map showing the extent of the pearl fisheriesjurisdic(Copiesof these
pages arcaltachcd as Annex 64. Vol. II.)212 CONTINENTAL sHELF 1691
(a) Indonesia/AustraliaAgreementof 18May 19711
(the Arafura Sea): this uses equidistance but, in the West,takes
account of existingAustralian hydrocarbon concessionsand the geo-
morphology of the ocean fioor2.
(b) Indonesia/AustraliaAgreementof 9October1972
(Arafura and Timor Seas): thisdelimitation was basedonequitable
principles relating to the geomorphologyof the seafioorand, in part,
on the existing Australian petroleum concessions4.
(c) Australia/Papua New Guinea Agreement of18 December
19785(Torres Straits)
164. Whereas the first two agreements make no mention of sedentary
fisheries,and ignore them for boundary purposes,the recent 1978 Agree-
ment between Australia and Papua New Guinea is of,extrerneinterest.
Article 1, the "Definitions" Article, makes clear that sedentary fisheries
are involved,for it givesa definition identicalto that used in Article 2(4)
of the 1958 Geneva Conventionon the Continental Shelf. Moreover,
Article lO(3) ofthe Agreement established a "Protected Zone" withinthe
Torres Strait which has as its principal purpose "to acknowledge and
protect the traditional way of life and livelihoodof the traditional inhabi-
tants, including their traditional fishing ...". There is no daubt that this
traditional fishing includes the traditional, sedentary fisheries, for the
"Definitions"Article definestraditional fishingasthe taking "of the living
natural resourcesof the sea [and] seabed Under the guidance of a
Joint Advisory Council, the Parties agree to permit the continuation of
such traditional fishing, subject to catch quotas when the full allowable
catch istaken. Under Article 22ofthe Agreement, thesequotas envisage
specificallythat the inhabitants of the oneparty can fishin the area under
the jurisdiction of the other Party. In the result, therefore, the Parties
have establisheda shelfboundarydifferent from,and without reference to,
the quite separate boundaries of this Protected Zone7. In short, the
traditional, sedentary fisheries have not influencedthe shelf boundary in
any way. The problemscreated by these fisheries havebeen resolvedin a
quite different manner, by special zones,catch quotas, and a supervisory
body.
'Limits in the Seas, No. 87.20 Aug. 1979.(In accordance with Ar. 0, para. 2of the
Rules ofCourt,a copyof this documenthasbeendepositedwith the Registrar.)
'fbid.,p. 7. (A copofthis page isattachedas Anne65. Vol.II.).
Limiis in thSeas, No.87, 20Aug. 1979.
'Ibid., p. 9. (See Annex 65, VII.)
VnrernarionolLegal Moierials, Vol.18, 1979,pp. 291 through331(ln accordancewith
Art.50, para.2 of thc RulofCourt,a copy of this document hseendeposited with the
Registrar.)
'SeeAnnexes6 and7to this Agreementp, p.324through327,containingtherelevantMaps.
(Copiesof these pages arc attachedas Annex 66. Vol.II.)1701 CouNTER-MEMoRrAL OF LIBYA 213
(iii) The Panamanian Pearl Fisheries
165. These lieinPanama Bay,around the "Archipelago de lasPerlas".
The Agreement of 20 November 1976'establishing a maritime boundary
betweenPanama and Colombia adopts a modifiedequidistance linewhich
bears no relation to these sedentary fisheries.
(iv) The Persian Guy Pearl Fisheries
166. The western shores of the Persian Gulf are the location of one of
the best-known pearl fisheries in the world. The Gulf, however, has
proved to be rich in mineral resources and, as a common, uniform shelf,
has been the subject of a number of delimitation agreements. These will
be examined belowtoseewhether the delimitations wereinfluencedin any
way by the existence of these traditional, sedentary fisheries2.
(a) BahreinlSaudiArabia Agreementof22 Februaryl95a3
This Agreement uses a modifiedequidistance line, ignoringcer-
tainsmaltislands,and establishing the Fasht bu Saafa Hexagon
as an area owned jointly by the Parties. There is nomention of
sedentary fisheries.
(b) Abu Dhnbi/Qatar Agreement of 20 March 1969 '
This Agreement broadly usesequidistance,but has special fea-
tures showingthat account was taken of the location of an oil-
well (al-Bunduq), of the need to ignore the island of Dayyinah
except to the extent of givingit a 3-mile territorial sea, and of
the establishment of joint ownership of the al-Bunduq field.
There is no reference to sedentary fisheries.
(c) Iran/OmanAgreement of 25 July 1974
167. This is a modified equidistance boundary through the Straits of
Hormuz. There is no mention of sedentary fisheries.
Spongefisheries in theGulf of Mexico6
(v)
168. The existenceof these fisherieshas resulted in measures takenby
the Government of the United States to control fishingof these sponges.
outside the limitsof territorial waters, by United States citizens7. Despite
'Limits in theSeasNo. 79,3 Nov. 1978. (In accordancewith Art. 50, para. 2 of the
Rules of Court. a copyof this document was previouslydeposited withthe Registrar.)
The 1949 Shelf Proclamations, issued by ihe Trucial States in almost identical terms.
exprcsslyprescrvcdnot onlythecharacter of the superjacent watersas highseas,but alsothe
traditional frcedom ofarl fishing bythe peoplesof the Gulf.American Journal of
Iniernaiional LawVol.43, Supp., 1949, pp. 185 and 186. (Copies of these pages are
attachcd aAnnex 67, Vol.II.)
aLimiisintheSeas,No. 12.10Mar. 1970. (In accordancewithArt. 50,para. 2ofthe Rules
of Court, a copy of thisdocument hasbeen depositedwith the Registrar.)
'Limiisin theSeasNo. 18,29May 1970. (In accordancewithArt. 50.para. 2of the Rules
of Court, a copyof this document hasbeen depositedwith the Registrar.)
LimiisintheSeos, No. 67, Jan.1976. (In accordancewith Art. 50,para. 2of the Rulcs
'Thisisan exampfcofthe fact that the geographicalnameofa gulfhasnolegalsignificance.
'See, e.g., Act of Congressof 20 June 1Siatutesat hrge ofihe UnitedSiaies,Vol.
XXXIV, pp. 313and 314;Act of Congressof 15Aug. 191Statutesat Lurgeofthe United
(fiinoie coniinueon the nexfpage) -.
CONTINENTAL SHELF
the existence of these sedentary fisheries, the United StatesIMexican
Treaty on Maritime Boundaries of 4 May 1978'establishes a maritime
boundary described as "practical and equitable" without reference to
thex sedentary fisheries.
169. The conclusion whichemerges from this brief analysis of actuaI
delimitation agreements is clear. There is noevidence whatever to indi-
cate that, in practice, States regard sedentary fisheries asa factor which
should influence delimitation agreements with regard to the continental
shelf.
(b) Thereievance'of"historierights"in the conrextof the contem-
porory applicationof equitableprinciples andthe newaccepted
trends in the Third Confereno cethe Law of the Sea
170. Having seen that, in the actual practice of States, delimitation
agreements have made no reference to sedentary fisheries and, so far as
can be ascertained, have never been influenced by them, it rernains to be
seenwhether this remains true under contemporary lawand in the light of
the new accepted trends in the Third United Nations Conference on the
Law of the Sea.
171. It must first be said that the new concept of the Exclusive Eco-
nomic Zone isirrelevant to the issue. This is because. as Article 68 of the
DCIT makes clear, sedentary species are a shelf resource and are not
governed at al1by Part V of the DCIT on the Exclusive EconomicZone.
172. Confining ourselves to Part VI of the DCIT on ;he continental
shelf it rnay be said that this part reflects certain new accepted trends
which depart from the established customary law in varying degrees.
This is true of Article 82 (payments and contributions with respect to the
exploitation of theshelf beyond 200miles) and arguably true of Article 76
definingthe shelf. Yetneither provisionhas anything to do with delimita-
tion of the-shelf between adjacent States: this is said expressly with
regard to Aiticle 76 in paragraph 10 of that Article, and it ispatently true
of Article 82.
173. Confining ourselvesto the provisions which rnay affect delirnita-
tion then, on the Tunisian hypothesis,Article 77 (which defines "natural
resources") may be relevant. This is identical with Article 2 of the 1958
Convention on the Continental Shelf and in conformity with custornary
law, in treating sedentary species as a shelf resource.
(footnote coniinufrom the precedinpage)
Srarrs,Vol.XXXVIII,pp.692 and693. (Copiesof thesepagesareattachedas Annex 68.
Val.II.) See alsothe construction of the1914 AcThe Abby Dadgr, 223U.S. 166. 175
through 177(1912), andgenerallyI-i~c~wo~~~.GreenHaywd (cd.): Digesrof lnterna-
iionalLaw. Vol.t !.Washington.D.C..UnitedStatesGovernmeniPrintingOffice. 1941.
Chaps.VI through V11.andin particularpp.672 thraugh675. (Copiesof thesepages are
attachedas Annex 69, Vol.II.) See alsopara.132above,referringto similarpracticeson
the partof Libyaand Tunisia.
'Inrernaiional Legal MatcriaVol. 17, 1978. pp. 1073 ihrough 1075. (Copiesof ihese
pages areattachedas Annex 70. Vol. II.) [72] COUNTER-MEMORIALOF LlBYA 215
174. The most obviously relevant provision is, of course, Article 83
itself, forit isthis Article of the DCITwhich deals with delimitation of the
shelf between adjacent States. While the text of this Article may well be
regarded as controversial withinthe context of the Third United Nations
Conference on the Law of the Sea negotiations, those features of the text
which appear novel in comparison to ,Article 6 of the 1958 Convention'
appear far less novel in comparison to the evolution of customary law, as
reflected in State practice, in the Court's Judgment in the North Sea
ContinentalShelfCase.~,and in the Award of the Court of Arbitration in
the Anglo-French Arbirrafion. In fact the evolutionc .uostomary law
coincides withthe dominant features of Article 83 in three major respects,
a11of which are directly relevant to the issue al hand.
175. Flrsr, not only is equidistance perceived as simply a method of
delimitation, to be used "where appropriate", rather than to be applied as
a rulc of law. but it isin no sense a legally binding method2. Fromthis it
followsthat the "exception" of "special circurnstances" (assuming those
to include sedentary fisheries) loses its significance. Its particular force
lay in rnodifying the equidistance principle, but if that principle is not
obligatory, then the significance of the "exception" is diminished.
176. Second. the factors to be taken into account in achieving an
equitable delimitation include al1 relevant factors3, not just those which
might fall within the narrower concept of t'specialcircumstaoces". This
being so, the argument that one single factor, such as the existence of
scdentary fisheries,can predominate to the extent of foreclosing the issue
of delimitation-to usethe Tunisian terms, to "define an area as to which
the operation of delimitation cannot prejudice its appurtenance to Tuni-
sis'"- isquite untenable. lt is, rnoreover.as weshall see,quite incompat-
ible with the'basic concept of the shelf as a legal doctrine.
177. Third, the primary aim in a delimitation in accordance with
equitable principles js to accord to each State its own natural prolonga-
tion! There is no disagreement between the Parties on this principle6..
The shelf area that soconstitutes the "natural prolongation" of a State is
'Thesignificant textual changes are perhaps three: the hrst is the introduction into Art. 83
of the concept of "equiiable principles", the second is the demotion of the equidistance
principle toacthod to be used only "whereappropriate", and the third isthe replacement of
"special circurnstances" by the broader phrase "al1circurnstances previnthe area".
Althouph significant texlually. in the light ofthe application of Art. 6 in the Anglo-French
Arbiiraiion (Cmnd. 7438), it can be argued that the difierences beiween Art. 6. ofe rules
customary international law, and Art. 83 of the BCIT are minimal.
Authority for this proposition derives from the North Sca ContinentalShelJCases, I.C.J.
Reporrs.1969. pp. 41.46 and 53, paras. 69. 85 and 101; the Angl~Frenrh Arbitraiion
(Cmnd. 7438), pp. 59 and 112. paras. 97 and 239; and Art. 83 itself.
I.C.J.Reports 1969.pp 47.50 and 53, para85(b), 93 and101;Anglo-FrenchArbirrarion
(Cmnd. 7438), p.112, para. 239; Art. 83. "al1 circumstances prevailing in the area".
'See TunisianMemorial. para. 4.103.
"I.C.J.Reports 1969,p.53.para. 101;Anglo-FrenchArbitralion (Cmnd. 7438). pp. 5152
and 60, paras. 77, 79 anIOD; Arts. 76'and 83 of the DCIT.
'See TunisianMemorial.Ch. VII,and Submission 1.1LibyanMemorial, Part II,Ch. 1and
Submissions 1 and 2: and Submissions I and 8 of this Counter-Mernorial.216 CONTINENTAL SHELF ml
that area whichas a phy3icnlfact is the extensionof the State's territory
under the sea, and over which the State's rightsexist "ipsf oacto and ab
inirio, by virtue of its sovereignty over.the land1". This is the concept
which liesat the very heart of the shelf doctrine. Yet it is irnmediately
apparent that the Tunisian argument on sedentary fisheriesis incompati-
ble with it.
178. Forthe locationofanarea ofsedentaryfisheries,and eventhe fact .
that oneState rather thari another may, in the past, haveasserted control
over such.fisherieshas absolutely nothing to do with the physical attach-
ment of the sea-bed to the adjacent landmass. Whether the "historic
rights" are thase of a coastal, or a non-coastai,State, such rights cannot .
affectinanywaythe factsofphysicalattachment orthe ipsojure rights of
the State arising frorn those facts. The Tunisian argument in effect
attempts to use a rninor factor, of possible relevancein modifying an
equidistance boundary or inchoosingan appropriate rnethodof delimita-
tion,.as a principle of so overriding an effect that it wouldchallenge the
ips oure title of Libya, the basic conceptof the continental shelfdoctrine,
and, indeed, exclude a large area of shelf from the whole exercise of
delimitation. It is,as one might say,an atternpt to havethe "tail wag the
dog". The Tunisian argument takes a point which,legally,is of marginal ..
significanceand attemptsto use it to overthrowthe veryfoundationsof the
shelf regime.
179. It is noaccident that, in State practice, no support can be found
for the Tunisian argument. States havea clear grasp of the essentialsof
the shelf regime. It would notoccur to them to overturn itby elevating
sedentary fisheriesintoan overridingprinciple. Theyare, moreover,real-
istic enoughto know that, in contemporary times, the resources at issue
are not the sedentary fisheriesand it wouldbe patently absurd to delimit
areas rich in minera1resourcesby referenceto the existencein the past, or
even in the present, of sedentary fisheries of marginal concern. The
practice of the coastal States in the Persian Gulfand elsewhereiseloquent
testimony to the rationality of their practice and assessmentof the reality
of their interests in resources, and the irrationality of the Tunisian argu-
ment based on "historic rights".
'I.C.JReports1969. p. 22. para. 19. PARTII
THE SCIENTIFIC BACKGROUND
180.As mentionedin paragraph 6 above,thereappears to becommon
cause with Tunisia that the controlling principle indelimiting the conti-
nental shelf isa State's entitlement to the natural prolongationof its land
territory into and under the sea. Asstated in paragraph 89of the Libyan
Mernorial:
'This PartIIhas beenprepared withthe assistanceof Prof.Omar S. Hammuda. Prof. Amin
A. Missallati,and Dr. Mohammed Alawarof Libyaand a numberof independentexpertsin
the fieldsof geology,geographyand history wiaspecificknowlcdgeof North Africa. A
listof theseexpertsis containcdinthe LiAnnexes, Vol.III, and isset forth in attenuatcd
form herc:
Dr. J.A. Atlan
Senior Lecturerin Geography
Schoolof Oriental and AfricanStudies
Universityof London
Dr. Gerald Blake
Senior Lecturer in Geography
University ofDurham. England
Dr. Ewan Anderson
Lecturer ineography
Universityof Durham, England
E.G.H .ofTé
Schoolof Orien~aland African Studies
Universityof London
Dr. K. S. McLachlan
Senior Lecturer in Geography
Chairman. Middle East Studies
Schcal of Oriental and African Studies
Universityof London
ScottB. Edmonds
DirectorofCartographic Services
Universityof Maryland BaltimoreCounty
Dr. Frank H. Fabricius
Professorof Geology
Directorof the Marine Geologicaland SedirncntologicalDivisionat the
lnstitute of Geolagyand Mineralogy. Technical Universi.'unich, Gcrmany
Member, Editorial Board, International BathymetricChart of the Mediterranean Sea
Dr.J. M. Anketell
Lecturer in Geology
Universityof Manchester.Engiand
Toassis1in understandingthc followingtechnical matcrial,a tableof the geoiogictimcscalc
isset forlhai par88belowand definitions ofsorneofthe principalscientifictcrmsusedare
p.221 set fortat para. 189below. Fig,S facing p. 81portraysin graphicformthe relative
durationof major subdivisionsof geologic time.218 CONT~NENTALSHELF [go]
"The principle of natural prolongation must necessarily be applied,
not in theabstract, but in relation to the geographical, geological and
other relevant circumstances of the particular area."
Similarly, inthe Tunisian Memorial, geographical, geomorphological and
geological factors' were alleged in attempting to establish the areas of
continental shelf that constituted the natural proiongation of Tunisia and
of Libya. Hence, here as well, there appears to be comrnon cause with
Tunisia as to the importance of these scientific factors in delimiting the
area of continental shelf in question.
181. Despite the apparent existence of substantial agreement between
Libya and Tunisia regarding the importance of these scientific factors in
effecting a delimitation, there are fundamental differences as to the rele-
vance and rneaning of scientific data. To take just one example for
purposes of illustration here, much is made of the thesis that Tunisia has
"lost" extensive areas to the marine advances of the Quaternary Periodz.
Quite apart from the anachronism of relating the political entity of mod-
ern Tunisia to events inthe 12th Century-let alone to those of 16,000 (or
even 100,000) years ago-and the awesome implications of applying that
principle to other areas of the globe3,Tunisia's selection and presentation
of itsscientific material isvulnerable, especially since an objective analysis
of that claim4demonstrates that "Tunisia" has, if anything, gairted terri-
tory as a result of the latest fluctuations of the Quaternary Period5. A
rather substantial nurnber of other factual and scientific assertions in the
Tunisian Memorial are erroneous or at best misleading. They are
examined in detail at the appropriate juncture in the paragraphs that
follow.
182. There is anessential difference between the nature and content of
the scientific contentions set forth in the Tunisian Memorial and the
scientific case presented by Libya in its Mernorial. The Tunisian Memo-
rial stresses fluctuating and continuously changing factors, e.g., the mod-
ern morphology of the coasts and the offshorebathyrnetry, and draws upon
the record of the Quaternary and earlier periods to support or amplify the
conclusions purportedly resulting frorn these factors. In sharp contrast,
the Libyan Memorial is chiefly concerned with more permanent physical
features-the stratigraphica16 and structural evidence derived frorn sec-
tions and boreholes-and relegates present submarinc topography to a
subordinate position.
'li must be noted,however, thatthe Tunisiancontentionsare basedlargelyon purported
geomorphological factorasnd hardlyrely on geologicalevidenceai all.
See Fig.5 facingp. 82, andpara. 188 below.
'Accordingto Wyllie, the shelf eliesat depihsof between20 and $$Om. and itwidth
rangesfromOto 1500km. WYLLIE, PelerJ.: The Dynamir Earth. New York.JohnWiley,
1971. p. Il and I2.(Copies of thesepagesare attachedas an ne.^71. Vol. 11.)
;The evidenceadducedtorefutetheTunisianmarinetransgressionthesisdiscussein paras.
220 through230 belowshouldnot. however.be regarded as an endorsementof the thesis
iiself.
"Sec para. 183 below. [si] COUNTER-MEMORIAL OF L~BYA 219
183. In the following discussion of scientific factors, a chronological
structure has been adopted, with the present-day geography and offshore
physiography as starting points, so that the Tunisian assertions may be
evaluated before passing tothe more fundamental scientific evidence sup-
porting the Libyan case. The scientific validity of this approach is
unquestionable. In dividing up the discussion, it should be observed that
the fields of study that contribute to an understanding of this area of
science are taught and pursued separately solely for convenience. Geol-
ogy embraces physical geology, structural geology and historical geol-
ogy. Each of these can be further subdivided if the need arises: thus,
historical geology breaks down into paleogeography (which deals with
successive changes of surface relief during geologic time) and stra-
tigraphy (which is concerned with the succession of rocks and fossils
during geologicaltime). Physical geologyinvolvesthe study of processes
ofchange at the global scale;physiography' isconcerned with the analysis
of processes acting locally. Al1of them enter the interpretation of geo-
morphology (the study of land forms), and this in turn is an important
component of geography (which seeks to describe aHaspects, inanimate
and living, of the earth's surface2), A static view of the landscape that
ignoresitsgenesisand persistent patterns isincomplete, inexactand there-
fore likely to mislead.
184. The topography observed by the eye or recorded on maps and
charts includes features that are, in human terms, ephemeral, as in the
case of a series of coastal dunes or subtidal sand bars. The degree to
which these features are likelyto change during a specified periodcan only
be gauged by an understanding of the mechanisms responsible for the
change. Maps and charts will always incorparate a rneasure of interpre-
tation, especially when techniques such as aerial photography or depth-
sounding provide part or al1 of the requisite data. To illustrate, the
distinction between a submarine sand dune and the surface of a folded
rock horizon is more dependably made if the local environment is known.
Field observation and mapping cal1for interpolation between data points
and extrapolation beyond them, especially in the offshore zone where the
acquisition of additional readings is difficult and expensive, and both
procedures are facilitated by a knowledgeof the processes which shaped
and continue to affect this area. Finally, a distinction may need to be
drawn between the observedtopography and the bedrock beneath. In the
absence of adequate geophysical data, or a dense network of boreholes,an
informed and reliable reconstruction of the buried landforms is needed to
fully understand the events that caused and led to their burial.
185. Recent developments in geology have made possiblethe interpre-
tation of phenomena that previouslyappeared inexplicable or unrelated to
the physical and gcological structure of the continental shelf. The
approach to the nature of global structure, dating from the late 1960s,
term inthis Counter-Mernorial.onof physiographyinpara.189belowregarding useof this
As notedabove(fn. 1at p.79). morecomplete definitsfthe principalscientificterms
usedin the Counter-Mernoriare set forthin para. 189below.220 CONTINENTAL SHELF [821
knownasplate tectonicsembodiesthe divisionofthe earth's surfaceinto a
small.numberof relatively rigidblocks,interaction of which isresponsible
for mountain-building, faulting, earthquakes and the remaining subject
matter of physicalgeology. Asa consequenceof the advances in the field
of plate tectonics, adoption of a long-term viewof landscape evolution is
essential. Tointerpret topography solelyin terms of physiographic agen-
cies,suchaserosionand deposition,isnolonger admissible;it followsthat,
in effectuating a delimitation,the physicaland geologicalstructure of the
continentalshelfmust betaken into account to the extent that such factors
are known or readily ascertainable'. Tunisia's reliance on topographic
maps and bathymetric charts for objective evidencein this case is there-
fore clearly insufficient.
186. The movement of large blocks of the ocean floor indicates
dynamic crustal processeson a scalethat was lessobvious fromstudies of
the more accessible continental crust. Observation of crustal rocks
exposedat the earth's surface, coupted with seismicdata onthe deepcrust
and upper mantle, has convincinglydemonstrated that the earth's crust
and attendant geotogicfeatures are formed and shaped by plate motions.
Becausecontinental rocks are significantlylighter than both the moving
oceanic crust and the underlying mantle, continents rernain "fioating" at
the earth's surface whilethe adjacent heavieroceanic crust descendsinto
the mantle. The structure of continental rocks is therefore far more
complex than that of the ocean floor. The rocks of the ocean floor are
created al1of a uniform composition,and are rnovedand destroyed rela-
tivelyquickly,and thus are both generally youngerand lesscomplexthan
continental rocks. These geologic conditions are present today in the
crus1 of the earth. Advances in geology have given us an ability to
understand their evolution and meaning. Claims based essentially on
more superficiaIdata such as topographic and bathymetric charts ignore
these basic geologicfactors.
187. It is a fortunate corollary of the youth~ofplate tectonics that its
language remainsstraightforwardand itsconclusions easy tocomprehend.
What is more, although there may be disagreement over the detailed
historyofthe area under discussion, itsmain strands are notindispute. ,In
essence, manyof the ambiguities resulting from the partitioning of terri-
tory on the basis of pure topography are eliminated by an integrated
geological perspective.
'It shoube notedthat tscientificstudyof platetectonicnotfullydevelopedathe
timeof the CourtJudgmeniin the North Sea ContinenralShelf Cases. I.C.J. Reports
1969. ûuatwnary
1 l
I
1
, 1
1 I Holocene
I 1
l I
l
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I I '.
l l
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I
I
RelativeOurationof MajorSubdivisionsof Geologic time. 1
10,000 y
SOURCE: ThePhanerozolc TirneScale,QuarîerlyJournal,GeologicelSocietyof London.
Jas, lm.
Figure5 222 CONTINENTALSHELF I831
188. As noted infootnote 1at page79 above,a tableof geologictime-
P.221 scale is set forthbelow'and is illustratedin Figur5.
1.5-2.0 million
CENOZOIC Quaternary years ago
Neogene Pliacene c.7
Miocene
Tertiary
Paleogene Oligocene 37-38
Eocene 53-54
Paleocene
MESOZOIC
Cretaceous
136
Jurassic
190-195
Triassic
225
PALEOZOIC
Permian
280
Carboniferous
345
Devonian
395
Silurian
430-440
Ordovician
c.500
Cambrian
570
-- ---
'The datacontainedin this tarcderivedin part frornthe 1964 (120 softheue
QuarrerlyJournapp. 260 through262. publishedby the GeologicalSociety of Landon.
(Copiesoftherelevantpagesareattachedas Annex 72.II.).. 1841 COUNTER-MEMORIAL OF LIBYA 223
189. Definitionsof the principal scientificterms most frequently used
in this Counter-Mernorial are set forth below:
Geology : Modern geologyhas for its aim the deciphering of the
whole evolution of the earth and its inhabitants
from the time of the earliest records that can be
recognized in the rocks right down to the present
day'.
Geography: The discipline which.describes the earth's changing
surface-its physical features, climates, products,
peoples, etc., and their distribution. For its data it
has drawn extensively from the results of special-
ized sciences,such as geology,meteorology,astron-
omy, anthropology and biology ?.
Geomorphology: The study of the physical features of the earth, or the
arrangement and form of the earth's crust, and of
the relationship between these physical features
and the geological structures beneath3.
Physiography: The study of the physical features of the earth, their
causes, and their relation to one another. It is
sometimes held to be synonymous with the more
modern term "geomorphology", and sometirnes,
rather loosely, with "physical geography '". As
used in this Counter-Mernorial, "physiography"
will be used to convey a dynamic approach to the
study of the earth's surface and the changes it un-
dergoes through the agency of the geological
processes, in contrast to the more static approach
conveyed by the terrn "geomorphology".
Oceanography: The study of the seas and oceans5.
'HOLMES A.rthurPrincipleofPhysico1Geography. London,Nelson,1965.pp.9and 10.
(Copiesof these pagesareattached as Annex 73,Vol. 11.)
'MOORE.WitfredG.: A DiciionaryofGeography. HarmondsworthE,ngland,Penguin
Books, 1954, p72. (A copyof ihis pagisattachedas Annex 74. Vol.II.)
Ibid., pp72 and 73, (Copiesofthese pagesareatiachedasAnnex 74. Vol.II.)
'Ibid.p. 131.(A copyofthis pageisattached asAnnex 74, Vol.II.)
WOLMES,op. cif., p. 9. (See Annex 73,Vol. II.) CHAPTERI
THE IMPORTANCE ANDEVOLUTION OF SCIENTIFIC
FACTORS IN DELIMITING THE CONTINENTALSHELF
190. The Court's principal decisionconcerning the law governing the
delimitation of the continental shelf is its Judgment of 20 February 1969
in the North Sea Continental ShevCasesl. In that case, the Court held
that thejuridical basisin international lawofa State'sentitiement to areas
of continental shelf off its Coast rests on the physical fact of natural
prolongation of ils land territory into and under the sea:
"The [legal] institution of the continental shelf has arisen out of
the recognitionof a physical fact ..[and is]..by definition,an area
physically extending the territory of most coastal States into a
speciesof platform ...2"
"[Tl hesubmarine areas ..may be deernedto be actually part ofthe
territory over whichthe coastal State already has dominion,-in
the sense that, although covered withwater, they are a prolonga-
tion orcontinuation of that territory, an extensionof it under the
sea3."
191. In view ofthe North Seo ContinentalShelf Cases,it is apparent
that the concept of the continental shelf as the natural prolongation of a
State's land territory must necessarilybe applied, not in the abstract, but
in relation to the geologicaland other physical factors of the particular
area4. Once the natural prolongationof a State is deterrnined, delimita-
tion becomesa simple matter of complying with the dictates of nature.
Thus, the questionsof geologyand other significant physicalfactors have
'I.C.J Reports1969.
Ibid ..51.para. 95.
Vbid.,p.31,para. 43. In this respect,the Court affirmedthe importanceattributed bythe
Truman Proclamation togeologicalfactors in arriving at an equitable delimitationof areas
ofcontinentalshelf. Althoughthe TunisionMernorialappears to concedethat the Truman
Proclamationistheoriginofrndern principlesoflawgoverningdclimitationofthe continen-
tal shelf,t ignores the paramount empbsis placed bythat proclamation on mineral, as
opposedto living, resourcesdealtwithby PresidentTruman in aquiteseparate proclamation.
The emphasison mineral resourcesunderscoresthe relevanceof the geologicalstructure of
the shelfin effectinga delimitation,a factordownplayedbyTunisia inits so-calledscientific
case. In this connectionsee paras. 182and 183above.
'The conceptof the continental shelfas the natural prolongationof a State's land territory
wasadopted in its entiretythe Third United Nations Conferenceon the Lawof the Sea.
In deîiningthe continental shelf,76(1) of thDCIT siates:
"The continentalshelfof a caastal State comprisesthe sea-bedand subsoilof the
submarine areas that ekiend beyond its territorial sea throughout the natural
prolongationofts land territary tothe outeredgeof the continental margin,or to
a distanceof 200 nautical milesfromthe baselines fromwhichthe breadth of the
territorial seaismeasuredwherethe outeredgeofthe continental margindoesnot
extend up to that distance."
Thus, Art. 761)explicitlyunderscoresthejuridical significanceof the conceptof "natu-
ral prolongation"as wellas the geologicaland other physicalfactors inherent inapplication
of this doctrine toa delimitation of the continentai shAnnex(3.eVol. II.) [861 COUNTER-MEMORIALOF LIBYA 225
decisiveimportance because, as explicitly noted by the Court, inconsider-
ing delimitation ofthe continental shelf,there can nevet beany question of
completely "refashioning nature'".
192. The significance ofgeologyinthe evolutionof the legal institution
of the continental shelf isshown by the Court's discussionof the genesisof
this juridical concept:
"The continental shelf ...as attracted the attention first of geog-.
raphers and hydrographers and then ofjurists. The importance
of the geological aspect is ernphasized by the care which, at the
beginningof its investigation, the International LawCommission
took to acquire exact information as to its characteristics, as can
be seen in particular from the definitionsto be found on page 131
of Volume 1of the Yearbook of rhe InternationalLawCommis-
sion for 1956. The appurtenance of the shelf to the countries in
front of whose coastlines it lies, is therefore a fact, and it can be
useful to consider the geology of that shelf in order to find out
whether the direction taken by certain configurational features
should influence delimitation because, in certain localities, they
point-up the whole notion of.the appurtenance of the continental
shelf to the State whose territory it does in fact prolong2."
193. Indeed, the Court expresslystated that geological factors must be
taken into account in the course of negotiating a delimitation. The perti-
nent paragraph of the 1969 Judgment States that the factors to be taken
into account are to include-
"so far as known or readily ascertainable, the physical and geo-
logical structure, and naturai resources, of the continental shelf
areas involved3".
194. As in the North Sen Continental Shelf Cases, the Court of
Arbitration in the Anglo-FrenchArbitration ernphasized the importance
of geological criteria in determining the sea boundary between States by
stating:
"The Court sharesthe view repeatedly expressed by both Parties
that the continental shelf throughout the arbitration area is
characterised by its essential geological continuity4."
'I.C.J. Repori1969.p. 49,para. 91.
Ibid., p. 54. pa101(D)(2) [disposilin.
'Anglo-FrenchArbitration(Cmnd .438),p.63. para.107.226 CONTINENTALSHELF [871
195. An examination of the relevant Articles pertaining to thejuridical
regirne of the continental shelf prepared by the Third United Nations
Conference on the Law of the Sea confirms recognition of the decisive
importance of geologicaland physical factors in effecting a delimitation of
the continental shelf. Significantly, the DCIT acknowledges advances in
the field of geology in explicitly rejecting the former definition of the
continental shelf in terms of bathymetry adopted by the 1958 Geneva
Convention on the Continental Shelf, and substituting a definition predi-
cated on the natural prolongation of a state's landmass "to the outer edge
of the continental margin, or to a distance of 200 nautical miles'".
196. In light of the Judgment of the Norlh Sea Conrinenial Shelf
Cases, the new geological evidence that has come to light in recent years
and the newaccepted trends reflected inthe DCIT, the Parties must (and
can) now take into account the forces that have brought the continents
and seas into their present positions and that continue to modify their
configuration". Itwould be ironic indeed if geological evidence were not
accorded a paramount role in determining the principles and rules to be
npplied for the delimitation of the areas of continental shelf appertaining
to each State in this case, since the interest of the Parties in these proceed-
ings stems in large part from the presence of valuable natural resources
under the subsoil of the shelf. Moreover, the exploration and exploitation
of these resources is dependent upon a thorough knowledge and under-
standing of the geological evolution of the area. Surely, in applying the
fundamental legal principle of natural prolongation in this case, geologic
factors, including the geological evolution of the area, must be accorded a
role of comrncnsurate importance.
Sec p:ir;i. 408 belon ;imort dc(;iilcd ;inülyoîrhçf1C'tT:~rcjcciion of baihymctry asa
priiii;ir> dclini!iclcincniiiîihc continental hhclî.
'At ihc iiriic ihc Truinan Proclamaiiwas propoundcd in 1945. the contintniashclr wüs
gcncr;illy vicwcas acxtcnxion ofthc Iiind which hiid locally bccn plancd down by the wüves
and cliçwhïrc buili up by dcpohition: a variani of ihis inicrprctawas that pcriodsof
Iiircrcd .icn lcvcl rchuliinp I'roni land glaciaiiun wcrc rcsponsiblc Torrnuch or the erosionand
~cdiriicrii;iiioIIisiibvious thni thc'ic vicws musi bc rçasscsscd in ligor subscquent
dcvcliipniçni~ in ihc ficld uî plnic iccionics. CHAPTER II
THELIBYAN SCIENTlFlCCASE
THESCIENTIFICCONTENTIONS OF TUNISIA
SECTION 1. Summary
197. The scientific factors discussed by Libya and Tunisia in their
respective Mernorials are as foHows:
(i) The Libyan Mernorial emphasized the general east/west direc-
tion of theNorth African coastlineand pointedout that the North African
continental shelfprojects.northward from thiscoastline'. It characterized
the turning northward of the Tunisian coastline as an exarnple of an
"incidental special feature'". The Tunisian Memorial concentrated on
the Tunisian CoastbetweenGabesand Cape Bonalmost to the exclusionof
the coastline between the frontier at Ras Ajdir and Gabes (which runs in
the same general direction as an almost equal length of coastline on the
Libyan side of the frontier and faces generally north). And the Tunisian
Memorial virtually ignored itsshores on the Tyrrhenian Sea, where twoof
its principal portsnd centers ofcommerce,Tunis and Bizerte, are located.
It further emphasized the complexity of its coast2 in contrast to that of
Libya3and described Tunisia as disadvantaged by virtue of these features
and the close proximity of the Italian islands of Pantelleria, Linosa and
Lampedusa4. The presence of Malta opposite the Libyan shores was
ignored.
(ii) The Libyan Memoria15stressed that the area under considera-
tion is part of the Pelagian Basin6,a distinct geologic and physiographic
unit at the rim of the stable North African platform to the south and
geologically distinct and different from the Atlas Mountain region of
Tunisia westofthe north/south fault linerunning from Gabes to Tunis. It
analyzed theSirt Basinrift system extending from the Libyan landmass to
the southeast intothe Pelagian Basinto the northwest, noting that this isa
basic African trend and the predominant trend in the Pelagian Basinand
that the geornorphologicaland bathymetric characteristics of the Gabes -
Sabratha Basin are the result of the same forces that formed this rift
system7. In contrast, Tunisia divided the offshore area into a Tunisian
continental shelf and other arbitrary and imaginary divisions. It
described an allegedTripolitaniantrough, a "Gulf of Gabes" extending on
-someof its maps as far east as Tripoli, and various uplifts ("môles"),
'See Libyan Memorialpara.114.
SeeTunisianMemorial, para. 3.14.
' Ibid .,ra. 3.15.
' Ibid.,par3.16.
3ee Libyan Memorial.paras.61.62, and113.
Seefn. I at p. 9below.
'See Libyan Memorial.paras66, 67.113. 228 CONTINENTAL SHELF [gg]
terraces, cliffs ("falaises") and crests ("rides")These purported fea-
tures are accorded prime importancein (and indeed intwo instancesform
the basisfor) Tunisia'sproposais for "practical methods"of delimitation'.
(iii) Finally,the Libyan Memorial assertedthat the area of concern
is the natural prolongation northward of the North African landmass,
whereas Tunisia attempted to establish a prolongation eastward (and
southward) on the basis of morphoIogica1correiations between landand
sea and, to a lesser extent, a number of geologicaltrends.
198. It has already been noted how suprising it is to see such funda-
mentaldifferences betweenthe Libyan andTunisian Memorialsregarding
the nature ofthe scientificdata and their bearingonthiscasein lightofthe
Parties'mutual concurrence regardingthe importance of scientificfactors
inthe interpretation of the guiding principleof natural prolongation. The
remainder of this Chapter will be devoted to a detailed examination of
these differences. But firsta summary of the main lines of the Libyan
scientificcase is presented.
199. In the Counter-Memorial of Libya, thescientificcase put forward
in its Memorial is restated and amplifiedby the addition of more detailed
data. It will berecalled that the conclusjonsregarding geology,geomor-
phology, bathymetry and lithology contained in the Libyan MemorialZ
were supported by a scientificreport contained in Annex II, a technical
study prepared by Professors Hammuda and Missallati of Libya. This
study and these conclusions havesubsequentlybeen submitted for review
by independent experts in the pertinent fieldsof sciencea. This Part Il,
which deals with the scientific background, and the supporting Annexes
foundinVolumeIII4havebeen prepared byor with the assistance of these
experts, al1of whomhave a background in this area of the Mediterranean
and, in some cases, extensive knowledgeof Libya and Tunisia. A ~ignifi-
cant result of this technical reviewof the scientific portionof the Libyan
Memorial hasbeen to confirmthe main linesof the scientificcaseset forth
in the Libyan Memorial,and indeed,to reinforcethis case withadditional
data.
200. The fundamental scientificcase of Libya, as stated in the follow-
ing sections ofthis Chapter and supportingAnnexes,may besummarized
as follows:
@@ @ 'SeeTunisinnMernorioparas5.26through5.34. 5.75;Map1and2, Vol.IIFigs5.07
0 ;EEyan ,marial, paras.60thmg, 68,a, 111.mg, 113.
Seefn.1atp. 79above.
'Scethe ListoAnnexes.VolIII. Pal COUNTER-MEMORIAL OF LIBYA 229
( 1) There isone basically undifferentiatedcontinental shelfarea hereat
issue,whichformspart ofthe Pelagian Basin',itselfa geologicand physio-
graphic unit2; (2) thus, this area of continental shelf is not marked or
dividedbyany significantfeatures that wouldhavean effectona delimita-
tion in this case; (3) the contentions of Tunisia in its Mernorial that the
shetf is rnarked by many important features and that it is in fact a conti-
nental shelf divided into a "plateau Tunisien", an "avant-pays" and a
number of other divisions or features are unsupportable; (4) the area
encompassed by the Pelagian Basin is on the north rim of the African
plate, has an African affinityand is infact the continuation tothe north of
the African plate3and hence of the African continent and landmass; (5)
the buikofTunisia,excludingtheSaheland Jeffara regionswhichare part
of the PeIagian Basin, is of non-African affinity beingdominated by the
Atlas Mountains, a wholly different geologic region4.
201. The continuity betweenthe North African landmass to the south
and the Pelagian Basinto the north,and in particular the continental shelf
area of concern here,is demonstrated bythe historyof the developmentof
this area geologicallyand, as a result, geographically. The ancient shore-
lines, during different geologic times; are discussed inAnnexes II and
123. Volume 111and in paragraph 272below. Figure 3 ofAnnex II and
Figure 3 of Annex 128 show the diflerent shorelinesduring these times.
The latter Figure has been reproduced as Figure 8 and appears facing
page92. It can be seenthat the shorelineduring the periodsdepicted on
Figure 8 extended to the south of the present zoneof chotts in Tunisia.
MostofTunisianorth ofthat linewaspart of the submerged African plate.
At a later time, the Atlas ~ountainâwere formed on top of the African
plate and the present configurationof the Tunisian and Libyan shoreline
with its embayments of the Gabes-Sabratha Basin and the Gulf of Sirt
came into being.
'The term "Pelagian Basisemployedhereasit was intLibyanMemorial to meanan
area of shallowdepressioncornprisingboth sea and land. It is not used inthe sense of a
sedimentarybasin. Thus, the PelagianBasinincludes not onlythe PelagianSca but alsothe
and physiographicanit.c relationship betweenthe Pelagian Basinand the African platelogic
@ is further shownFig.6,whichportrays the seismiczone extcndingacrossthis arca into
Algeriaat the northernrim ofthe African plate. TheshadFigr.(idcntifiedasthe
lonian-Valcntineblock) encompassesthe Pelagian Basin. This is an aseismic region and
evidencesthe unityofthe regiongeologicallyand its affinityto thestableAfricanplate. The
northern rimof the African plateis dramatically shownby the shaded6rwhich Fig.
followthe generallyeast/west directionthat characterizesthe prexnt North Africancoast-
line. Other evidenceof this is discussed elsewherein this Part II.
'The boundariesofthe PelagianBasinareset fortLibyonMernorial.para. 62,quoted
@ fnfn. 3 at p. IOebove. See Fig.7.
Thetermp!a~eisderivefromtheplare tertonics theory (seepara. 185above). Underthis
theorythe solidpart of the earth isdividedintoa numberof"plates" the interactionofwhich
isresponsiblefor such geologic eventsas mountain -.building. faulting and earthquakes.
'SeeLibycm Memorial. para63.64 and 113. 230 CONTINENTAL SHELF [911
202. This continuity between the North African landrnass and the
Pelagian Basinto the north is further confirmed by data of rock types' and
about the dominant tectonic trend?,
203. More,over. modern geography indicates that the Jeffara Plain,
which parallels the coast and extends from east of Tripoli intoTunisia to a
point southwest of Djerba, is in fact a unit and has been a unit throughout
@ history. Physically. ils geographic unity can be seen frorn Map 16 facing
page 92, which portrays the mountains of the Jabal Nefusa with the
crescent-shaped Jefîara Plain to the north running from Al Khpms in .
Libya approximately to Medenine in Tunisia. This unity has existed not
only in a physical sense but economically, ecologically. and ethnically.
Viewed as a whole, the scientific data underscore the fact that this shore,
facinggenerally north frorn Ras Tajura in Libya to Gabes in Tunisia. isthe
critical shore to consider in effecting a delimitation, starting from the
present land boundary at Ras Ajdir (a point approximately in the centre
of this shoreline). It is the natural prolongation of this shoreline which
must be determined in arriving at a delimitation of the area of shelf at
issue here. Scientific evidence clearly establishes its natural prolongation
to be to the north.
SECTION2. Coastal Ceagraphy
204. The Tunisian thesis boils down to the claim that, whereas the
(eastern) coast of Tunisia is sinuous. confronted by foreign islands, and
restrictedbythe concavity ofthe Gulf of Gabes. Libya faces the Mediter-
ranean along a fine, open seaboard ("Une très belle façade maritime,
largement déployée...'"). In an atternpt to focus attention on the coast of
eastern Tunisia and itsalleged inferiority to the Libyan shore, the Tunisian
Memorial sets the scene by stating that the Ionian flank of Tunisia
accounts for 1,150 of the ~1,300kilometres making up that country's
coastline. Itdescribes the lonian coast as "[]]a façade maritime la plus
importante"', implying more than relative length. and then proceeds to
stress its general north/south alignment5.
205. However. Tunisia enjoys, in the words of Despois and Raynal,
"une double exposition maritime6". To omit from consideration a coast
once dominated by Carthage and now boasting the port of Bizerte, which
occupies "a cornmanding strategic position in the narrowest part of the
Mediterranean'", might appear to result from inadvertence or neglect. To
disregard Tunis, the country's capital and its major commercial port as
'See para.272 belowand Annex IZA,Vol. III.
'See paras263 through274 below,and Annex 12A. Vol. 111.
SeeTunisian Memorinl. para. 3.16.
'Ibid.para.3.12.
'Ibid.. para.3.13.
'DESPOISJ , ean andRAYNALR . ené:Géographie del'Afriquedu Nord-Ouesr. Paris.
Payot,1967.p. 211. (A copyaf this page is attache.4nnex 75. Vol. 11.)
'Tunisia. (GeographicaHandbook Series.) London.Naval IntelligeDivision.1945,p.
236 ("Tunisia1945"). (A copy of this page is attachAnnex 76, Vol. II.) COUNTER-MEMORIAL OF LIBYA 231
well,suggestsa distorted description. Byanalogy, one couldjust as well
bernoan the iack of natural harbors on Egypt's RedSea coast while
forgetting to mention Alexandria and Port Said'.
206. To evaluate the Tunisian claims regarding its geographic inferi-
ority a brief description of the coastal orientation east and west of the
fr0ntier.i~ set forth below2, The delineation and description of coasts
might appear a simple matter but, as Shepard3points out, tidal and other
factors can produce extensiveshifts in the shoreline, and in any case it is
impractical to classify the shoreline and the coast.(i.e., "the broad zone
directly landward fromtheshore") separately. Aithough the tidal range in
much of the Mediterranean Sea is a mere 30 centimetres, it exceedstwo-
and-two tenths metres at spring tides near Gabes'and seiches (oscillating
waves) may raise the sea levelby 0.6-0.9 rnetres in undisturbed weather
throughout the area. Thus, even excluding storm-induced effects, low
lying coasts are prone to marked shifts in their position and shape.
207. East of Ras Ajdir, the coast runs east-southeastjwest-northwest
for about 47 nautical miles5to Sabratha and then gradually turns a little
north of east for a distance of about 38 nautical miles until it reaches
Tripoli. FromTripoli the coast runs almost due east forabout 11nautical
miles to Ras Tajura. It then runs east-southeast/west-northwest toward
the Gulf of Sirt through Ras Hallab (21 nautical miles) toAl Khunis
(about 23 nautical miles) and Ras Zaroug (another 50 nautical miles).
208. Westward from pillar 3J on the boundary at Ras Ajdir, the
coastlinecontinuesin a east-southeast/west-northwestdirection for about
35 nautical miles to a point just Westof the Bahiret El Biban. At that
point the coast turns northward for about 15.5 nautical miles to Ras
Marmour. At Ras Marmour the general directionofthe coast resumesits
east-southeast/west-nor cturse,wthichifcontinuedina straight line
would extend as far as the town of Gabes. It is significant that the
distances from the frontier eastto Ras Tajura in Libya and Westto Gabes
in Tunisia are roughly egual,and the orientation of the coastlines is in
approximately the same direction, that is east-southeast/west-northweçt.
Similarly, from the frontier at Ras Ajdir to Gabes is approximately the
same distance as a straight line from Gabes to Ras Kaboudia. The
general direction of the coast, however,isbroken by the Island of Djerba,
whose effect is to continue the northward diversionof the coastline by a
'Of course,itisnot inte10imply thatthiscciastlineonthe'Tyrrneaispertinentto
delimitationof the continentalshelf between Libyaand Tunisia. But ir is pertinentto
considerationof theTunisianargumenttithas beendisadvantag. nargumentessen-
tially irrelevantto the presentcase in any event.
'A morecompletediscussionof thecoastsissetforthinAnriex2, Vol. containsthe
studyofthesecoastsbyDr.GeraldH. BlakeandDr. EwanW.Andersonofthe Universofy
Durham,England,referredta in para.209 below.
S~~EPARD F.rancisP.: Submadne Geology. 2d edition. New York.Harpe& Row,
1963, p. 152. (A copyof this pageis attachAnnex 77. Vol.II.)
'PERESJ .ean Marie: The Mediterranean benthos.(In BARN, ârold: ûceanography
and MarineBiology. Vol.5. London,All&nUnwin. 1965,p.497.) (A copyofihis page
is attached Annex 78, Vol.II.)
'One Nautical Mile= 1851 metres.232 CONTINENTAL SHELF 1931
further 12.5nautical milesfrom Ras Marmour to Ras Turgueness, before
it turnsWestand then south to form the southeast coast of the Gulf of
Gabes. The coastlineof the Gulf itseIfsweeps roundina gentle curve ina
northwesterly direction and then to the north and the northeast, after Ras
Yonga running generally northeast for a distance of about 62 nautical
miles as far as Ras Kaboudia (35" 14' N, 11" 10' E). This point is
actually sixminuteseast of theeasternextremity of the Islandof Djerba at
Ras Turgueness (33' 49' N, 11" 04' E)'.
209. Two salient facts emerge from an examination of this coastline.
First, no singlecompass bearing can describe the Tunisian coast; second,
in arriving at thegeneraI direction of the coastlines, the Island of Djerba
invites omission since it is clearly an exceptional feature and its inclusion
would introduce irrelevant complications. Similarly, the Kerkennah
Islands should be excluded since they occupylittle more than 180square
kilometres. In view ofthe importance of a proper understanding of the
geographical aspectsof the coastlines and coastal zonesof eastern Tunisia
and western Libya, a special study has been appended to this Counter-
Memorial in Annex 2, Volume III, prepared by Dr. Gerald H. Blake,
Senior Lecturer in Geography, and Dr. Ewan W. Anderson, Lecturer in
Geography,of the Universityof Durham, England, specialistsinthis area.
This study describesindetail the twocoasts and concludesthat the Libyan
coast is virtually monodirectional-north facing and almost exclusively
orientated between north-northwest and north-northeast-while Tunisia
exhibits a "very widespread of orientation with a distinct bias towards
north of east". As stated in the Blake-Anderson Report describing the
length of the coast from Cape Bon to Ras Ajdir:
"This length of coast cornprising approximately 70 per cent. of
theentire Tunisian coastline, consistsof fivemain elements: the
Cape Bon peninsula, the Gulf of Hammamet, the Sahelian fore-
land, the Gulf of Gabes and the lagoonal coast of Bahiret el
Biban. The whole area lies to the east of the Saharan plate
boundary and has therefore been subjected to Alpine rnovements
superimposed uponthe basic African trends. The major trends
- as indicated by the Cape Bonpeninsulaare therefore from south-
westto northeast andsouth-southwestto north-northeast, varying
locally and being modifiedtowards the south. The shape of the
Gulfs of Hammamet and Gabes reinforces this general pattern.
Coastlines parallel with the trend such as the north shore of the
Gulf of Gabes tend to face southeast whilethose across the trend
such as the socthern coastline of the same Gulf are orientated
towards the northeast2."
'Theforegojngcoastaldescription beseenvisuallyonanumberof the maps incluind
this Counter-MernorialainparticulonMap2facingp.4above. Forthcconvenienceof
theCourt,a specialVo1V (Map Annexes) has been prepared whicchontainsmofythe
maps and figures appearingin this Counter-Mernorial Annexesof Vol.III.
Annex 2, Vol.III, p. 9. COUNTER-MEMORIALOF LIBYA 233
"These directions of course reflect the grain of the country as
already mentioned. The main mountain trends throughout Tuni-
sia are to the northeast and east-northeast. Furthermore al1the
erosior,coastlines cutting across the grain are orientated in those
directions. The depositioncoastlinesparalleling the trend tend to
face towards the southeast. In the case of Libya the erosional
coasts are al1north facing, while the areas ofdeposition are also
orientated to the north or north-northeast'."
210. Reverting to Tunisia's allegations that it has been disadvantaged
in comparison to Libya because of its coastline', it is apparent that any
comparison betweentwo such coasts appears to have little meaning unless
al1of the possibleadvantages or drawbacks at issue are examined and.not
just a carefully selected few. It could, for example. be suggested that
Tunisia's relative closenessto Italy and France is in fact an advantage.
Again, a complex shoreline is not necessarily a hostile one, although it
must be noted that the Tunisian Memorial exaggerates this complexityas
well as the asserted lack of complexity of the Libyat coast3. In this
respect, the Libyan coast can be compared with the Adriatic coast of ltaly
or parts of the ALgeriancaaçt, whichare certainly not without complexity.
The Tunisian coasts are not exceptional if compared with the coasts of
Yugoslavia.Greece, Turkey or the Tyrrhenian .Coast of Italy.
211. The only natural harbour in Tripolitania is Tripoli4;and it is
largely artificial. The lack of sites sheltered frorn northerly and easterly
winds, brought out by the topography of the sites occupied by the ancient
port of Oea (Tripoli), Sabratha, Leptis Magna and Gnphara limen5,
together withthe prevalenceofdunes and salt marshes along the shoreand
the barrenness of the Libyan interior, remain an obstacle to harbour
development. Compare the coast ofeastern Tunisia. InLa Tunisie elses
Richesses, Ferdinand-Lop remarked: "La Tunisie se trouve favorisée
quant au nombre desports de commerce"'. Of these, Sfax (Safaquis), by
virtue of its "anchorage completely sheltered"", is now Tunisia's leading
port in terms of tonnage; at La Skhirra (As Sukhayrah), which has
acquired fresh prominencethrough the construction ofan oil pipelinefrom
Algeria, the water is deep enough for tankers to berth f~rloading; and if
'Annex 2 , Vol. Il1,p. 15.
'See fn. 1 ai p. 92, in whichthe dubious relevancyof this argumentis noted.
'See para.5 abovein whichitis notedthat Tunisia attimes.dependingan the context,
describedils shoreliinquitedifferentterms.
'A Hondbook of Libya. London, Naval Intelligence Divisin,20,p.101. ("Handbook
of Libya".) (A copyof this pageisattachedasAnnex 79, Vol.II.)
ARTO OC CIRN eIn.ato: II PoRomano di Le~lisMa-.a. (Bull. CentraStudiStorrna
Arch.,Vol.13,1958,Supp.,pp.9and 10.) (CopiesofthesepagesareattachedasAnnex80.
Val.II.)
FERDINAND-LOSP a,muel: laTunisieel ses Richesses. Paris,P.Rog&rcie.. 1921,p.
99. (A copyof this page is attachedaAnnex 81, Vol.II.)
'Mediterranean Pilot: 9th edition. Taunto, ngland.Hydrographerofthe Navy, 1974,
Vol.1("Mediterranean Pilot1974"),p. 360.(A copyofthis pageisattachedasAnnex 2.
Vol.II.)234 CONTINENTALSHELF 1951
Sousse (Susah) has stagnated ("Un port en sommeil"), it is largely
because ofcornpetitionfrom Sfax and the decline inphosphate production
from the Gafsa area'.
212. But, as has been remarked, a resource is nothing more than
human appraisal. The alleged lack of shoals off Tripoli can appear
favourable when the shoals are equated with obstacles to shipping2;the
islands and shoals off Tunisia may be a hazard to the novice, but they
support fixed fisheries3and provide shelter for local craft'. Inthe same
way,the imposing reliefof the Kerkennah Islands4can melt into an almost
fiat topography5according to the case one is trying to prove.
213. Perhaps more disturbing is the'imprecise way inwhich the term
"Gulf of Gabes" isused in the Tunisian Memorial. The precise definition
of the Gulf of Gabes set forth in paragraph 78of the Libyan Memorial is
derived from the British and French nautical sources6. These sources
uniformly describe the Gulf of Gabes as lying between Ras Yonga and
Borji Djilidi on the northwest coast of Djerba. The rnanner in which
Tunisia has distorted and expanded the geographic meaning of the Gulf of
Gabes has been set forth in considerable detail in paragraphs 81 through
90 above and in Annex 1,VolumeIII. The inaccuracy of other parts of
the Tunisian Mernorial in attempting to construct a "Gulf of Gabes"
extending from Ras Kaboudia to Ras Ajdir or beyond asa geographic unit
in light of economic, ecologicaland ethnological aspects is dealt with in
paragraphs 242 through 262 below and in Annex 1, Volume III, in the
study by Dr. J.A. Allan, Senior Lecturer in Geography of th;: School of
Oriental and African Studies of the University of London.
214. In summary, therefore, we must conclude that the geographical
descriptions in the Tunisian Memorial regarding the Libyan and Tunisian
coastlinesomit relevant factors and that the interpretation of other data is
flawedand misleading. The fact of the adjacent coasts facing northward
is largely ignored. This coastline is of prime importance since the land
boundary at Ras Ajdir is situated here. Moreover, the length of coast
Westfrom Ras Ajdir along the Tunisian coast as far as Gabes, where the
Tunisian coast starts its turn to the north and the northeast, and east along
the Libyan coast for an almost equal length of coast follows the same
general direction. A second omissionis the concealment of the relative
importance of the Tyrrhenian Sea to Tunisia7. A third omission is the
DESPOIS andRAYNAL.op. cil.p. 227. (A copyof this pageisattachedAnnex 75.Vol.
Il.)
'Sec Tunisian Memorial.para.3.31.
:'Ihid.. para.3.22.
'Ihid.. para.5.39.
%editerranean Pilor10thedition. Taunton.England.Hydrographer of the Navy. 1978.
Vol. 1. p. 169(A copyof thispageisattachedasAnnex 2, Vol,Il.); TunisiMemorial,
para. 3.19.
"ce also pp. 11-12oftheBlake-Anderson Repor tnnex 2,Vol.III.
But secfn. ai p. 92abave. COUNTER-MEMORIALOF LIBYA 235
failure to make any mention of Malta. Finalty, the entire comparison of
coasts in terms of direction and advantages and disadvantages is distorted
and largely incorrect.
215. With respect to physicalgeography, Tunisia'spleal that it has not
been favouredin comparison to Libya and that these claimed disparities
should not beexacerbated by any decision in this case is an emotional
appeal devoidof merit. In fact, the coastal geography of the two States
establishes something quite different and, unlike the question of relative
advantages and disadvantages, distinctly relevant. It reflectsthe,geologi-
cal evolution of the Mediterranean Sea. In its configuration, one can
chart the developmental stages through which this area went, frorn the
time ail of Tunisia riorth of the area of chotts was submerged to the
formation of thz Atlas Mountains and the resulting anomalous coast of
eastern Tunisia, and the formation of the embayments of the Gabes-
Sabratha Basin and the Gulf of Sirt between the promontories of Cape
Bon and Cyrenaica.
SECTION 3. Coastal Evolution
216. This Section and the one that followsrelating to offshorephysio-
graphy are necessarily focusedonthe significanterrors, misinterpretations
and omissionsin the contentions made by Tunisia as to coastal evolution
and offshore geornorphology. The essentially critical commentary in
these two Sections should notobscure the positive pointscontained in the
Libyan Memorial and arnplified in this Counter-Mernorial., For an
understanding of coastal evolution depends on a grasp of the underlying
geological forcesand trends and how they evolved. The changes in sea
level should only beviewed in this light and, in any event, the data
advanced by Tunisia with regard to such changes are erroneous.
217. Much is made in the Tunisian ~ernoiial of the intirnate links
between the Tunisian coast and the sea2. The case rests both on the
present situation3and on the effectsof the late Quaternary (or Flandrian)
marine advance', whichoccurred approximately 16,000to 5,000 years
ago. The former claim loses rnuchof its force by virtue of the admission
that it isalsoapplicable to Libya5;indeed,evena glanceat the bathymetric
mapQhows that it isanly in theSirt Basinthat the isobathsare parallel to
the coast. At al1events,the Tunisian Memorial restricts the offshore zone
that is intimately linked withTripolitania to a narrow belt bordering the
"Tripolitanian Furrow'". In paragraph 234 below it will be shown how
claims contingent on sucha fictional feature must be regarded as invalid.
Here wewillconsider the coastal evidence allegedto support the Tunisian
argument.
'See TunisianMemorial. para.3.51.
'Ibid.para.5.36.
'Ibid.para. 5.38..
'lbid.para.5.57.
Ibid., Fig. 5.06.
Ibid., para. 5.58.236 CONTINENTAL SHELF P7]
218. The Tunisian Mernorial asserts that the interpenetration of land
and seaisepitornizedbythe presenceoflagoons,sebkhas and "arms ofthe
sea", traces of recent submergence, andthe prolongation of the mainland
as an offshore platforml. Lagoons, sebkhas and arms of the sea are
indeed presenton the Tunisiancoast; but soare they on the Libyan littoral.
To quote the Handbook of Libya:
"In western Tripoli between the Tunisian frontier and Bu Ajila ...
the ground [behind the coastal dunes] isbut little above sea-level,
and includes a series of salt swamps or lagoons (sebkha) ..?".
Other writers left no doubt about the marine affinitiesof these sebkhas:
separated from the sea bynarrow tonguesof sedimentand aligned paraHel
to the coast, they are linkedto lagoonsat high tide or to the opensea, and
contain abundant marine fauna3.
219. The Tunisian Memorial goes on to equate the depressions
(chotts) of the Lower Steppe, many of which are of tectonic origin, with
the submarine bahire1 of the so-called "Tunisian Shelf' oflshore, and
dismissesany analogousfeatures in Libya on the grounds that, unlike the
Tunisian depressions,whichare interna1(or lirnnic), the Libyan onesare
coastal (or parali~)~. There are several defects in this thesis. First
Despois(the main authority cited by the Tunisian Memorial) and Raynal
point out.*bahiraisa term appliedto the lchkeul lagoonon the north coast
as well as to any depressionon the Tunisian Steppes which can be distin-
guished from the sebkhas in being cultivable. In short. iternhraces both
paralic (Le., freshwater) and brackish-water lakes and basins5. Second,
granted the importance of subsidence in initially producing the larger
Tunisian chotrs, detailed study suggests that. during the Quaternary,
climatic instability was the decisive factor in determining their modern
character6and that recent tectonic activity has beenof importance only in
the Kairouan area. Third. the line of depressions that includes Chotts
Djerid and Rharsa as well as the depressions on the Lower Steppe is
viewedby Burollet?as an extension of the south Aurèstrough, that is to
say as Algerian or westerly in its afinity. Someof the submarine depres-
sions off the Tunisian coast may well be tectonic in origin but, as the
See TuriisianMemoriol, paras.5.38and 5.39.
Handbook ofLibya.op. rit.. p. 12.copy ofthispageisattachedasAnnex 79.Vol.II.)
' CREMA C,amillo.PARNA ,. F.and FRANCH Iescrizionefisica e geologicadella
regione.(In Ln Tripolitunia SettentrionoVol 1.Rome, 1913,p. 38.)(A copy of this
page isattached asAnnex 82.Vol. II.)
' See Tunisian Memoriol. paras.5.40 through5.42.
' DESPOIS andRAYNALo , p. rit., p.25(A copyof this paisaitachedasAnnex 75.Vol.
II.)
' COQUER , ogerandJAUZEIN. A.: TheCeomorphology and QuarernaryGeology of Tuni-
sia. (InGuidebook rorheCeoiogy and Hisrory of Tunisio. Tripoli. PetroExploration
Societyof Libya.1967. p. 246.)(A copy of thipageis attached as Annex 83, Vol. II.)
l BUROLLEP Ti,erre Félix:Contributàoiëtude srrarigraphiquede-la Tunisie Ceniraie.
Tunis,Ann. MinesetGéol.,1956,p. 283.(Acopyof thepage isattachedas Annex84,
Vol. II.) Tunisian Memorial makes clear, this is because they lie on rift axes
running northwest/southeast. As later sections will dernonstrate', this
trend is characteristic of theirt Basin of Libya. Fourth,the Tunisian
Memorial claims that most charts do not show any closed submarine
depressions to the south of what it calls the Zira Ridge, that is in the
submarine areas adjoining the Libyan coast. However, the SOGREAH
(1977) chart2 shows several such depressions offthe Libyan coast.
220. The recent subrnergence of-the offshore zone is~advancedas a
further argument for its Tunisian identity3. In paragraph 181above the
absurdity of thisclaim in the abstract has already been considered. Its
basis in fact is equally wanting. Underwater archaeology does not at
present offer clear evidence that there has been a consistent "one-way"
and uniform change insea levelssinceantiquity. Flemming4,an authority
citedin the Tunisian Memoria15,concluded, on the basis of the evidence
from 179Greek, Roman and Phoenician cities in the western Mediterra-
nean. that within the margin oferror of20.5 metres inherent in the data no
definite evidence of eustatic (global sea-level) change could be detected
and that any vertical displacement could be attributed to local earth
movements. Of the 18cities he examined in eastern Tunisia and Tripoli-
tania. seven yieldeddefinite conclusions. They are listed below,with "U"
de~ignating~anundisplaced site and "Sv a submerged site. Six of the sites
were entirely undisturbed and one showedsubmergence of a bare 20 to 40
centimetres.
Alipota (Mahdia) U
Leptis Magna U
Leptis Minor U
Ruspina (Monastir) S
Sabratha U
Thaene (Thyna) U
Thapsus (Ras Dimas) U
221. It is distressing to find that the Tunisian Memorial goes beyond
ignoring Flemming's conclusions, In paragraph 5.10, for example, sub-
rnergence at Thapsus and Leptis Minor is claimed, but the reference to
Flemming (complete with page number) would not lead one to suspect
that he had found "no relative change of sea-level" at either site.
222. The Cambridge Expedition to Sabratha in 1966 observed some
submergence at that site but could notdecide whether it wasdue to"local
tectonic change, subsidence or a rise in sea-level". At Suliectum
See para. 240 below.
'This chartisdiscussedby Prof.FabriciusinhismemorandumfouAnnex II. Vol.111.
4s A baihymetriccharibasedon SOGREAHchartwas includedas PlattoAnnex IIofthe
O LibyanMernorial.
aSee TunisiunMemorial.para.5.06.
' FLEMMING N.C.: ArchaeologicaIevidencefor eusraficchoJgsen-leveland earth
movementsin the WesternMediterranean duringlas!2000yeors. SpécialpaperNo.
109. GeologicalSocietyof America. 1969.Plate 1. (A copyof this plate is attachedas
Annex 85, Vol. II.)
'See TunisianMemorial,para.5.10, fn.12.238 CONTINENTALSHELF i991
(Salakta), however,the subrnergence mentionedin the Tunisian Memo-
rial1was ascribed to "local land sinkage2". The evidence produced by
Foucher forsubsidenceat Hadrumetum (So~sse)~isdubious,asthe Punic
port cannot beidentified;and inanycase Foucher believedthe relative rise
in sea-level amounted to no more than one mette'.
223. The sole Tunisian site for which the alleged subrnergence seems
wellattested isCarthage-albeit foronemetre, rather than the one-and-a-
quarter to one-and-a-half rnetres alleged, and here we are dealing with a
siteoutsidethe area under discussionand withina zonewhoseinstability is
shown by its recent earthquake activity5 and which is adjacent to the
subsiding Medjerdah delta6. Only the submergenceof part of the ruins of
Circina is correctly ascribed to local subsidence7.
224. In short, thedata do notsupport the conclusionofa general rise in
sea-levelsof approximately one rnillirnetre per year, which the Tunisian
Memorial puts forward on the basis of the underwater ruins at Borg el
Hsar offthe Kerkennah Islands8. Not only isthe figureitself a considera-
ble exaggeration of the evidence fromother points along the Coast,but no
consideration has been given to the possibility of purely local effect.
Admittedly, the sectionthat introducesthe historical evidence forsubmer-
gence9refers both to rises in sea-leveland to subsidenceof the shore, but
later paragraphs fail to separate the two mechanisrns, or indeedto develop
the questionofcoastal erosion briefly raisedina footnotelO.Whatever the
authors' intention, the result is to confuse the reader into believing that
everycase of subrnergencerepresents a general rise in the levelof the sea.
Take, for example, the fact that a columbarium at Cercina now lies
offshore. Though the site is readily explained by erosion af the local
clay-Despois describes it in terms of "la falaise argileuse que la mer
attaque mollement1'"-the observation is followed'inthe Tunisian Memo-
rial by the claim: "Thus in only seventy years the sea seems to have
advanced a long way at the expense of the land...'2".
LSee TunisianMemorial..para.5.10.
YORKER ,.: CambridgeexpedirionioSabratha. Typescript,1966,p. 14. (A copyofthis
pageis attachedas Annex 86. Vol.II.)
See TunisianMernorial,para.5.10.
'FOUCHER Louis:Hadrumetum. Paris, Presses Universitairedse France,196482,(A
copy of this pageis attachedas Annex 87. Vol.II.)
'Tunisia1945,op.cir..pp.17and24. (Acopyofthispage isattachedasAnnex76.Vol.II.)
'COQUE andJAUZEINo.p. cil.. p. 232. (A copyof this pageis attachedas A83,Vol.
Il.)
'BUROLLE P irre Félix: ouvementsquaternaireset récentsaux Iles Kerkennah Tunisie
orientale.ComptesRendus,Académie des SciencesP ,aris. 1978, p. 1135 ("QUROLLET
1978").(A copy of ihis page is attachedas Annex 88, Vol.II.)
See TunisianMemorial, para.5.09.
lbid.. para.5.06.
IIbid., para.5.10. fn..1i
"DESPOISJ,ean:Les iles Kerkennah et leurbancs. (Etudegéographique ,evue Tuni-
sienne,937,p. 43.) (A copyof this pageis attachedas Annex 89. Vol. II.)
ISee TunisianMernorial,para.5.09. [lm] COUNTER-MEMORIAL OF LIBYA 239
225. Evenif weconcede that there has neverthelessbeen some general
risein the sea-levelsincethe Third Century BC, it isfar frornclear that this
has had any great efiect on the sizeor agrarian prosperity of the islands or
coastal Settlements of the "Gulf of Gabes", as is alleged by the Tunisian
Memorial. The islands of Kerkennah and Djerba are given as examples
to support the theory. However, the ancient sources provide no such
evidence. Herodotus', for instance, says that in the Fifth Century BC the
island of Kyraunis (Kerkennah) was 200 Greek stades long and very
narrow. Since a Greek stade was 182rnetres, the island according to this
(very general) description was 36.4 kilornetres long, whichcompares to
the present distance of approximately 36 kilometres frorn Sidi Youssefto
Rmadia on each end of the island. For Djerba in Roman tirnes the
dimensions givenby the learned Plinyin the First Century are 25times 22
Roman miles2, which the Tunisian Mernorial incorrectly states to be far
. greater than the present day dimensions of approxirnately 35 kilometres
times 32 kilometres. If a Roman mile is 1.478 kilometres, then, the
dimeniions provided by Pliny work out as 36.95 kilometres times 32.51
kilometres, which is alrnost precisely what it is today. Pliny also states
that the Island of Djerba wasone and a half miles fromthe mainland (Le.,
2.217 kilometres, not 300 metres, as stated in paragraph 5.13 of the
Tunisian Memorial), whichalmost exactly corresponds to the width of the
Straits of Adjirn today. The other figuresquoted by the Tunisian Merno-
rial, which are drawn from the Greek mariner's manual attributed
(wrongly) to Scylax, have long been considered corrupt and worthless3.
No great reliance can be placed on any of these figures from antiquity,
sincenumerals in ancient texts werepeculiarly pronetoerrors intranscrip-
tion. To the contrary, the available evidence, such as it is, suggests that
actual change in the shape of the terrain has been remarkably small.
226. Nor do the ancient texts corroborate the view that the wealth of
the islands was once far greater than it is today. Herodotus rnakes no
statement about Kerkennah's prosperity but rnerely states that it was
covered with olivetrees and vines-both of which still grow on the island
today'. In 46 BC Julius Caesar sent his agent tothe islands tocallect corn,
but this does not mean that local crops were necessarily prolific, onlythat
grain wasstored on the islands in tirne of civilwar or fortransshipment to
trading vessels. Although the islands had a port of sorne importance
which servedas an entrepot for long-distance trade ships, thetown itself is
described by the Sicilian historian Diodorus as a modest city with most
serviceable harbours5. There is therefore no reason to believe that
'HERODOTUB S.ookIV,para. 195.Cambridge,Massachusetts,HarvardUniversityPress,
1943. (A copyof this pageis attachas Annex 90,Vol.II.)
PLINYo ;pNt.,Book V, para.41. (A copyof this pageisattacasAnnex 33, Vol.II.)
$Seethecommentbythe only editorofthe text,Miiller,inGeographiCraeciMinores. Vol.
1, no. 110, 1855-1856, p. 87-"Ceterum tocum turbatumesse liquet" ("the passage is
obviouslyconfused"). (A copyof this pagisattachedasAnnex 91, Vol.Il.)
' HERODOTUo Sp,cilpara.195(seeAnnex 90.Vol.II); DESPOISndRAYNALo,p. cit.p.
228. (A copyof this page is attacheAnnex 75. Vol. II.)
DIODORU SFSICILY. Vol.V, p. 129. Cambridge,MassachusettHarvard University
Press,942. (A copyof this pageis attachedaAnnex 92. Vol. II.)240 CONTINENTAL SHELF [lol]
Kerkennah was an agriculturally rich region in antiquity. By contrast,
the Island of Djerba and the adjacent mainland, as noted earlier, had a
reputation for fertility in the ancient world which continues today.
227. Insum, (i) there isnohistoricalevidenceofonceprosperouscities
crumbling into the sea or disappearing beneath the wavesof the "Gulf of
Gabes"; (ii) nor isit possibleto generalizeabout changes in the coastline,
despitesomeevidencethat there has beena slightrisein the sea-levelsince
theThird Century BC ofperhaps onernetre;and (iii) it ishardly necessary
to point out that there is an inconsistencyin the argument which asserts
that prosperous agrarian sites have disappeared into the sea, and at the
sametimethat fishinghad always beenan essentialpart ofthe exisknce of
these communities because of the poverty of the land. The ecological
potential of the land, says Vita-Finzi,describingthe similar coastal region
of Tripolitania, is virtualiy unchanged. What has changed has been the
practice of the population1. Inthis connection, as observed above, an
account of Djerba'scurrent economicstatusthat fails to mention tourism
hardly qualifies as accurate.
228. Those sectionsof the Tunisian Memorial which discusslate Qua-
ternary (i.e., Prehistoric) evidence for shifts in the coastline display a
comparable lack ofaccuracy. For example,it isclaimedthat, inthe early
Quaternary, the whole of the "Gulf of Gabes" lay above water and wit-
nessedthe accumulation of depositsof a continental typeincluding a hard
lirnestone crust. This calcareous "carapace" occurs on the Kerkennah
Islands and onDjerba;onthe latter it issucceededbysandstonesofmarine
origin which indicate that the island bad becomeseparated from the
mainland inStone Age times2. No evidenceiscited for the presence ofthe
calcareous carapace beIowthe sea, apart from an unspecified locationoff
the Kerkennah Islands wherean accesschannel for the ferry to Sfax was
beingexcavated2,and nosourceisgivenfor the geologicalnarrative. This
is understandable, as the carapace could haveformed during any one of
the many periodsof lowsea-levelthat characterized the Mediterranean
during the last 2 million years,and could inany case represent a marine or
wind deposit which was affected by percolating rainwater long after its
initial formation;consequently the clay need notbe ofcontinental origin,
and there is evidenceto suggest it is a shallow-water marine deposita.
229. The Quaternary geology of the islands is in fact much more
cornplexthan suggested by the Tunisian Memorial. On the Kerkennah
Islands, forexample,the Lower Pleistocenecrust isoverlainby traces of a
marine advance dating frOm60,000 years ago, with some indications of
one60,000yearsearlier,and the resultingdepositsare overlainbya yellow
siltysand capped bya secondcrust4. On Djerba, there are again traces of
'VITA-FINZI.Claudio: The Mediterranean Valleys: Geological Changer in Hisrorical
Times. London,Cambridge University Press, 1969p,. 114. (A copy of this page is
attachedas Annex 93, Vol. Il.)
'See TunisionMemorial, para.5.17.
' Carte Géologique ProvisoirSeh.eet 23, Gabès,c. 1933.
' BUROLLE1T 978.op.cil.p. 1134(A copy of this pageis attachedas Annex 88, Vol.II.) two beaches coveredby redsiltsiand fossildunes2. In both locationsthere
isevidenceof ai least twomajor phases of crustal deformation, so that the
height of sea-Ievelindicatois is a poor guide to their former position: on
Djerba, the younger (Tyrrhenian) beach, which elsewhere in Tunisia lies
at about 10 rnetres, has been upliftedby upto 35metres3. ,Inother words,
the initial "individualisation" of the islànds was followedby at least one
period of "reunification".
230. The (Flandrian) marine advance that followedthe last glaciation
and that raised the sea frorn a level some 100 metres below the present
level to its current position between 16,000 and 5,000 years ago'
undoubtedly flooded the inshore regions of the Mediterranean and in so
doing created islands and banks. Some writers believe that the rise
brought sea levelabovemodern datum and that there has sincebeen a fall.
Fabricius et ai.'have obtained radiocarbon dates of approximately 5,000
years for beach deposits 5 to 7 metres high formerly ascribed to the
Tyrrhenian episodeof 60,000 years ago, the implication beingthat inthis
region, at least, the latest change in sea-level has led temergence6 , ith
the further implication that instead oflosingterritory to the sea Tunisia at
present has in fact gained territory from thesea. It is not knownwhether
confirmation ofthe radiocarbon dates will be accepted by the authors of
the Tunisian Memorial as grounds for renouncing the areas thereby
expased. Extendingthe argument to the late Miacene (26 to 7 million
years ago) would thereupon lead to the abandonment of two-thirds of the
country7.
SECTION 4. OfTshore Physiography
231. As with al1 topographic maps, the delineation of contours on
bathymetric charts isa matter of interpolation between the available data
points,a limitation that can be minimized but not evaded by the use of
cornputers rather than skilled draftsmen. Moreover, the quality of the
depth observations islikelyto Varyfrorn place to place. Inshoreareas will
PERTHUISOT, J.-P.Le "Lambeau de'~1ei"el la Structure NéoiectoniquedeI'ile de Jerba'
(Tunisie).Paris,ComptesRendusdel'AcadémiedesSciences.1977,p. 1091.(A copyof
this pageisattached asnex 94. Vol. II.)
'CASTANY G..:Le Tyrrhéniende la Tunisie. Paris,Dunod,1962. p.264. (A copyof this
pageisattachedas Annex 95. Vol. II.)
'PERTHUISOT,op. cil.p. 1091. (See Annex 94, Vol. Il.)
'FLINT,RichardFoster:Glacial and Quaternary Geology. New York.Wiley, 1p.326.
@ (A copyof thispageisattachedasAnne96.Vol. II.)Fig9 facingthis pagecomparethe
presentsealevelwithhal 16,000yearsago. It revealsthat theseabotiomalongthe lineA-
B wasnot dry land during this period.
'FABRICIUS,Frank H., BERDAU, Dietrich an~~UNNIC~, Karl Otto: Early Holocene
O~ids in Modern Littoral Sunds. Reworkedfrom a Cons!al Terruce. Soufhern Tunisia.
(Science. Vol. 69. 19p.757.) (A copyof thispageattachedasAnnex 97, Vol. 11.)
"ELLAICHE. C.andBLANPIED, C.: Evolutionsédimenrairequaternaire deluplare-forme
pélagienne.(InBUROLLE Pie.rreFélieral.La Mer PélagienneGéologieMéditerra-
néenne,Vol.VI,no. 1.Paris,Editionsdel'universitde Provence,1979,p.307 ("BU-
ROLLET 197Y7) (.)wpy of thiipage isattachedasAnnex 98,Vol. II.)
The absurditofthis generallineof argument in anyevent hapreviously noted. See
para.181above. 242 CONTINENTAL SHELF [1031
tend to boàst the highest density of soundings, and the needs of shipping
coupled with easy access willensure that they are accurate; but it is here
that erosionand deposition are most likelyto render theharts obsolete in
the spaceofa fewyears. Offshore areas are lessproneto rapid, significant
change but they are expensiveto surveyand the results may be marred by
poor position-fixing.
232. All these issues are illustrated by the coverage available for the
PelagianSea. Asthe Mernorandum of Professor Fabricius makes clear'
there are discrepancies between the contours shownby different charts of
the same area. As a result, it would be unwise to glean more than an
approximate picture of the sub-bottom morphology from the published
rnaterial. The need for caution is heightened where a stepped effect has
been produced by the shading of successive contour intervals, and espe-
cially where colour is ernployed toemphasize a particular depth zone, as
@ morphological units may be created on an arbitrary basis. Figure IO
shows how two charts of the same area difier not only with respect to
particular isobaths but also as regards the identification of depth assem-
blages, and it willbeobservedthat the more recent and larger-scale of the
charts does not invariably present the more complex pattern. Thus the
Medina Bank is present on both charts whereas the Melita Bank-which.
as it happens, is not recognized by the Mediterranean Pilot
1974-appears as a single entity only on the upper chart.
233. The sea-bed of the continental shelfarea is inaccurately described
by Tunisia in its attempt to make a case for the eastward extension of
Tunisian sovereigntyover the continental shelf.As revealed by the reliei
model and block diagrams prepared.by Libya2,described in Annexes 5A
and SB,VolumeIII, the continental shelfarea ismuch likea gently rolling
plain with no marked features of importance. There are nocliffsmarking
ancient shorelines orines of ridges. This,fact underscores the point that
we are dealing here with asingle shelf, a physiographic unit. part of the
Pelagian Basin. A photograph of the relief rnodel appears facing page
104. A reproduction of a block diagram viewing the area from the
east/southeast and with a vertical exaggeration of ten tirnes appears as
@ Figure II facing page 104. The coastlines and certain other data have
been indicated thereon. Additional reproductions of this blockdiagram
appear in Volume IVwith novertical exaggeration, a vertical exaggeration
of 10 tirnes, and a vertical exaggeration of 25 tirneAs the block dia-
grams show, even with a vertical exaggerationof 25 times. no marked
features of any significancecan befound.
theMarineGeologicalndSedimentologicalDivisionattheInstituteof Geologyand Miner-
alogy. Technicat Universitynich, FederalRepublicof Germany;Memberof the
EditorialBoard,InternationalBathymetricChartof the MediteSea.ean
'Thesewerepreparedfromthebestavailabledata(includingtheprincipalbathymetric data
citedbyTunisia). Thepreparationof this reliefmodelandtheblockdiagrams wasunder
the guidanceof ProfessorFabriciusAnnexes5A and 58,Vol III. 11041 COUNTER-MEMORIAL OF LlBYA 243
234. The bathyrnetric units identified in the Tunisian Memorial as
within the Pelagian Basin are al1open to challenge whichever chart one
uses'. These alleged units are discussedseparately belowin the following
paragraphs:
(i) Tunisian Plateau (Plateau Tunisien). This name as a separate
. unit hasgained currency largely through publicationof the recent mono-
graph of Blanpiedet al*. The name, and indeed the entire effort to divide
up a relatively featureless area of continental sheIf,are entirely arbitrary
and without scientific basis. The term "Plateau Tunisien" itseIf is obvi-
a@ oustypolitically biased. On Tunisian Maps 1and 2, this unit (as wellas a
number of other arbitrarily selected andnarned "units" which in fact do
not exist) has been added to the original map. The fact that this regionof
continental shelf lacks features of sufficient prominence to warrant its
subdivisionis seen frorn objective sources such as Ryan er Todemon-
@@ strate the point, Figures 12and 13facing page 106have beenprepared by
superimposing the Norwegian Trough and the Hurd Deeponthe Pelagian
Basin (showing also the coaçtlinesto whichthese features are related). It
will be recalled that the Trough, a significant feature. was ignored by the
United Kingdomand Norway in their North Sea delimitation. Sirnilarly,
the Hurd Deep wasnot consideredas a factor affecting delimitation bythe
Court of Arbitration in thenglo-FrenchArbilration. Such illustrations
make a mockeryof the effort in the Tunisian Mernorial tu find features of
significance that would favor theTunisian theories of delimitation.
(ii) 'GulJof Cabes". The Libyan Mernorial properly delineated this
oceanographic unit'. The extent to which it has been extended and dis-
torted in the Tunisian Mernorial has been mentioned in several parts of
this Counter-MemoriaI5. It might be added here that "gulf" is a terrn
conventionally appliedto a feature bounded along rnuch of its periphery
by land,as, for example, the Gulf of Mexico6.
(iii) The Tripolitanian Furrow (Sillon ~ri~olitain). Figure 5.09 of
@ the Tunisian Memorial shows this so-called unit bordering the Libyan
Coastbetween the "Golfe de Gabès" in the Westand the "Golfe deSyrte"
in the east. Here, again, this unit is arbitrarily conceived.t is even
@ refuted by Tunisian Figure 5.24 which shows this area of the Pelagian
Basinas the Sirt Basin continental rise. Moreover, as can be seen clearly
@@ 'tnthisconnection,Tunisian M~morioparas.5.26 ihro5.34,Fig.5.09and MapsI
@ '~~NP~ED. Ci el aCadreOkographiqueet C&O~O~~~YA. . orphologie. b'urolie!
1979,p.19.) (A c..yof thpage iattachedasAnnex 99Vol. II.).
"YAN, W.B.F.and OLAUÇSON.E.: Mediterranean SenIn ~airbiid~e,RhodWhit-
more (ed.)Encyclopedia of Geomorphology. New YoReinhold.1968p.491.)(A
copyof this page is attacAnnex 100,Vol. Il.)
'SeeLibyan Memorialpara. 78.
.'Sec paras.81 through90 above.
"ATES. Robert Land JACKSONJ .ulia A.:Glossary of Ceology2d edition. Falls
Church.Virginia.Americai Ceological Institute, 1980(A copyofthis page is
attachedaAnnex 101.Vol. II.) 244 CONTINENTALSHELF ~051
on Map 2inVolume Illof the Tunisian Mernorial,the west-facingconcav-
ity in the isobaths by which the Sillon is identified extends into the pur-
ported "Gulf ofGabes". Hence if a "furrow" isto berecognized, it would
embrace both of the units named by the Tunisian Memorial; or, to put it
another way, the "Sillon Tripolitain" (which is at least rnorphologically
and physiographically an extension of the Gulf of Sirt) could be said to
extend as far as Gabes. The use of "Gabes-Sabratha Basin" by the
Libyan Memorial to describe this area is thus more appropriate. One
could justifiably dismiss the interruption in a northeastward declivity
represented by this featureas tootrivial to warrant naming. Marchant et
al. include the zone within a "rise'" and cornparison withanother "sil-
lon"-the "Sillon Sicilo-Tunisien"of the Tunisian Memoria12,which cor-
responds to the Pantelleria Trough of the Libyan Memorial, a
physiographic feature of real importance-endorses their verdict. These
differences can be seen drarnatically on the relief mode1and block dia-
' grams prepared by Libya3. And just as no basis exists forseparating this
trough or zoneof depressionsfrom the "Gulf of Gabes", so alsoisthere no
justification foralleging that this so-calledripolitanian Furrow" consti-
tutes a natural limit to the area of continental shelf which Tunisia has
rnisleadingly called the "Plateau Tunisien".
This
(iv) The Gulf of Sirt Basin (Cuverre du Golfe de Syrte).
feature is defined by Tunisia as a "gouttière" running south-
west/northeast. The structure of the area is too cornplex for a physio-
graphie termto encornpass it evenat a singl stage in geological history.
Inany case the landward and inshore parts of it are defined onthe Westby
the Hun Graben (i.e., a fault-bounded depression) and it is itself charac-
terized by nurnerous faults that trend northwest/southeast (as discussed
in considerabledetail in Annex Il of the Libyan Memorial) that can be
traced continuouslyalmost as far as Sousse. This is a further illustration
@ of howa rnapsuch as Figure 5.0 9an completelydistort the physiographic
and geologicrealities. It is noteworthy that the Tunisian Memorial cites
no sources for this figure.
(v) TheMelita-MedinaPlateau ( Plareaude Melita elde Medina).
@ Wehave already seen in Figure10 facing page 102that the Melita Banks
are nota self-evident feature. At least Carter etal.' failed to recognize
@) such a feature and it does not appear on Figure 5.24 of the Tunisian
Memorial derived from that study. Aside from the question of whether
such a unit in fact exists on this featureless rolling subrnerged plain, the
'MARCHANT,Francis,L.:IonianSen. (In CARTER,TerenceG.etal.: A New Barhymetric
Charr and Physiographyof the MediterraneanSInSTANLEY D,. J(ed.): ThMedi-
ferraneanSea:A Narural SedimenrationLaboratoStroudsburg.Pennsylvania,Dowden,
Hutchinson& Ross.Inc.,1972,pp. 14throu16.) (Copiesof thesepages are attachedas
Annex 102.Vol. 11.)
'SeeTunisianMemorial,Fig.5.09.
andSB,aVol. III.oveandthe phatographandFiII facingp. 104See alsAnnexes5A
'CARTER ..G.et alop.cilpp.1-23. (Copiesof thesepages'areattacheAnnex 102.
Vol. II.) Tunisian Memorial overlooksa relatively apparent depression between the
so-called "Plateau de Mélitaet de Médina" andthat portion of thePela-
gian Basin which the Tunisian Memorial arbitrarily carved out and named
the "Plateau Tunisien". This depression,running roughly north/south, in
fact exceeds a depth o370 metres making it considerably more significant
than the depression along the Gabes-Sabratha Basin.
(vi) "lonianAbyssal Plain". This isan erroneousdescription. There
is nosuch abyssal plain but rather two abyssal plains, the Messina Abyssal
Plain and the Sirt Abyssal Plain with the Medinaankinbetween'. This
error of fact should beborne in mind in considering the morphological case
put forward by Tunisia in paragraph 9.09 in which an alleged "lonian
Abyssal Plain" playssuch a commanding role2.
(vii) "Zira and Zuara Ridges" (Rides de Zira etde Zuara). Frorn
the available data, Libya is at a loss to know the basis for the claim that
@@ these ridges exist. Inexarnining Figures 5.25and 5.26the so-called "Zira
Ridge" appears to coincide with slight kinks on the 50 metre isobath and
@@ on both the 50 and 100 metre contours in Tunisian Map 2. Figure 5.22
makes them appear more prominent but nosource isgivenfor its bathyme-
try; if valid, the isobaths show that the "ridges" slope a mere orie to two
degrees in any event. Even more serious isTunisia's failure to specify the
@ source of these data. The bathymetry on Figure 5.22 is at odds with the
data available to Libya based on theSOGREAH bathymetric studies and
other sources3. Accordingly, Tunisia should be required to furnish the
@ data on which Figure 5.22 was based. The absence of a corresponding
shape on the rnap of sponge distribution4lends support to the view that the
ridges arefictional entities; the "Zuara Ridge" does not show up at al1on
@ Tunisian Map 2. ln view ofthe crucial role these so-called "ridges" play
in the Tunisian case5.any factual support for their existence should be
disclosed.
235. Tunisia also claims that the "morphostructural alignment" of
eastern and southern Tunisia parallels alignments offshore: an alleged
east/west zone of'depressions and chotts extending seaward through the
"Gulf of Gabes"; further north, the seaward prolongation of the Tebe-sa
High Steppe -Low Steppe elevated belt extending eastward to the "Pla-
teau Tunisien" and the "Melita-Medina Banks6". The argument clearly
owesa good dealto the much-reproduced tectonic sketch-map of Burollet7,
P.316 'Seethereproductionof a mapshowingthesefeaturesfacip.-18below.See also
para,21above.
'Sec para341below.
'The relief mode1preparedfor Libya (see para. 233 abwas)based entirelyon
baihymetric data relied onnisia in iis Memorial. similarly does not reveal these
@ "rjdges.'. The saltwallsdepictedon Figs. AnnexIIof thLibqonMetnorialart
unrelaieIOany such "ridges". Indeed,these salt walls are sub-surface features.
@ 'SeeTunisianMenrorioFig. 5.26.-
"ee. e.gTunisianMemorialpara.5.75.
Vbid.paras.5.5through 5.58.
BUROLI.ET,ierrFélix: GenerolCeologyof Tuni(InGuidebookIOthC~ologyand
History oTunisia. Tripoli. Petroleum ExplSociety of Libya. 1967, p.(A8.)
copy of this pageis attas Anne103,Vol. II.) 246 CONTINENTAL SHELF 1lo7]
not least through his use of hollow crosses to denote the Kerkennah
"Uplift", and the "Pelagian Bloc". The resemblance ends there. The
structural axesdentifiedby Burolletfor the Pelagian Blockdo not extend
westbeyondthe "north/south axis" (whichextends roughlyfrom Tunisto
Gabes) or, to be more precise, beyondthe eastern limits of the "peri-
Atlasic basins" east of the north/south axis. By what can only be
@ describedascunninguseofshading, Figure5.15ofthe Tunisian Memorial
extends the line of Burollet's Kerkennah Axis via the Kasserine Island
right across Tunisia into Algeria. The axis of subsidence indicatedy
Burollet' in the southern Pelagian Sea is likewiseextended by means of
@ shading in Figure 5.14 into the belt of chotts in southern Tunisia and
Algeria, whereasBurollet confinesit to the offshore zoneand relates the
chotl depressions(as mentioned earlier) to the peri-Atlasic depressions.
This distortion of Burollet's work, whihasthe effectof eliminating the
importance of the narth/south axis, is most interesting since it parallels
the almost total absence of any reference to thisaxis in the Tunisian
Memorial, a point referred to in paragraph 271 below. One can readily
see why this-inconvenient geologicfact should be overlooked: ittotaliy
negates the Tunisian case for a west/east "transversal".
236. It isworth adding that the eastern limit of the "Kerkennah Axis"
as depicted on Burollet's1967structural sketch-map ha$no basis in fact,
and that the very concept of a Kerkennah "Uplift" can be disputed, as
Professor Fabricius has noted in his memorandum setforth in Annex Il,
VolumeIII. Burollethimselfmakesnomentionofsuch a regionalfeature
inhislatest accountofthe archipelago2,and clearlyshowsthat, apart from
two very minor anticlines, its Quaternary history is dominated by north-
west/southeast and northeast/southwest faults. Further east the seafloor
is characterized by structures trending northwest/southeast3. As shown
inthe LibyanMemorial,theselineamentsare of Libyanaffinityrunning as
they dofromthe Sirt Basininto the Gabes -Sabratha Basinand up to the
edge of the Pelagian Basin in Tunisia.
237. The use of submerged shorelines to define the extent of the
Tunisian territory "lost" to the marine advances is equally invalid. The
two key clairns are: (i) that a line of submarine "cliffs" ("falaises")
producedbywave erosionat a timeoflowered sea levelinQuaternary time
borders the "Plateau Tunisien4";and (ii) that shoreline deposits, someof
which have beendated by the radiocarbon method, indicate a submerged
shorelinedating from 25,000 yearsago at a depth of 50 to70 metres and
another one less than 100,000yearsold at a depth of 100to 200 metres5.
With regard to the so-called "cliffs" so dramatically depicted in Figure
5.07, by teeth-likemarks emphasizing their supposedsharp decline,it can
'BUROLLET o,.cilp. 58. (See Anne103,VolII.)
*BUROLLE1T 978,op. cii,,1133through1135. (Copiesof thesepagesareattachedas
Annex 88. Vol.II.)
copyofthispageisattachedas Annex 104, Vol.II.)ue, inBUROLL979,p.53. (A
@ 'See TunisianMemorialpara.5.18. Fig. 5.07.
@@ Ibid.paru5.18, Figs. 5and5.08. [Io81 COUNTER-MEMORIALOF LIBYA 247
only be stated that this is an utter distortioffactl. There are no such
@ "cliffs" or "falaises" as drawn on Figure 5.07and described in paragraph
5.18. In the first place, as already discussed above2,there is no basis for
the allegation of retreat of the sea beyond the 140 metre isobath. The
lowestlevelattained by the last marine regression was 130orat most-140
metres3. Only subsidencecould explain features at greater depths. Sec-
ondly, any features in this area would be predominantly tectonic linea-
ments, not erosional steps or "cliffs". Even in non-tectonic areas any
physiographic features would have an inclination of less than 2 degrees,
whichwould not in any wayjustify the kind of claims made by Tunisia in
@ paragraph 5.18 and on Figure 5.07'.
238. It can onlybe concludedthat these "cliffs" are fancifulcreations.
No data are cited in support and none are known to Libya. If data
support theâe clairns, then it is evident that they rnust be presented by
Tunisia to the Court. In view ofthe importance of scientificdata in this
case,and the imperative need that accurate and complete data besubmit-
ted to the Court by the Parties, Libya has had prepared the relief model
and block diagrams referred to earlier5showing the physiography of the
sea bottorn and bordering landareas throughout the Pelagian Basinbased
on the best available data knownto Libya. Anexplanation of the data on
which they are based and the rnanner of their preparation appear in
Annexes SA and 5B, VolumeIII. The relief mode1and block diagrams
depict the PelagianBasin as a gently rolling plainwithout any prominent
features. It shouldbenoted thatthe reliefmodelwas based largelyon the
bathymetric data relied on by Tunisiain its Memoria16.These sarnechar-
acteristics appear from the block diagrams, some of which are given a
vertical exaggeration of 10timesand 25times but which wereprepared on
the basis of bathymetric data different from those used to prepare the
relief mode17. The use of vertical exaggeration on some of the block
diagrams illustrates the difference betweenfeatures at theborders of the
Pelagian Basin and the physiographic unity of the Basin itself. Both the
relief mode1and the blockdiagrarns have been deposited withthe Court.
239. The Tunisian Memorialsclaims that Burollet et al. (1979) have
demonstrated (i) the presence of a littoral belt (un cordon de faciès
côtiers)at a depth of 50 to 70 metres, which "proves" that a mere 25,000
years ago the coastline lay closeto the 50 to70 metre isobaths, and (ii)
sands and gravelsconfined to (localisés 8) the eastern margin of the
"Plateau Tunisien" around the 100to 200 metre isobaths, which indicate
'One is remindedof the film"Jaws",the Frenchtitle of whichis "LesDentsde la Mer".
'See paras.219 through230 above.
'FLINT op.cil., p. 321. copy of this page isattachAnnex96, Vol.II.)
'See in thisconnectionthedmap includedas Fig. 11in themernoranof Professor
84 FSee para.231 abave.l.III whichhas been reprodfacingthis pageaFig. 14.
@ 5ee Map 1.Vol.111of thTunisionMemoriot.
'Seethetechnicalexplanationregardingthepreparationof theblockdiAnnexs58,
Vol. III.
See TunisianMernoriapara.518. 248 CONTINE~~AL SHELF [1091
that an ancient shorelinecorrespondingtothe last major regressionof the
Würm period (the fourth glacial stage of the Pleistocene epoch) lay
nearby less than 100,000years ago. The claims are untenable, and the
citations from Burollet (1978) are quotedeither out of context or without
due regard to the cautious and tentative manner in which they were
advanced.
240. The one well-attested submarine feature is a series of fault-
bounded depressions(grabens) which are aligned predominantly north-
west/southeastl. The failure of the Tunisian Memorial to draw attention
to this dominant tectonic lineament despite the prominence it receivesin
many studiesof the areays astonishing,especiallyasit wouldhave helped
to explainthe pattern of Plio-Pleistocenesedimentthickness illustrated by
@ Winnock and Beaa,and shown by Tunisia in its Figure 5.20. It will be
recaliedthat this feature wasemphasizedin the Libyan Memorial and its
AnnexII. which showsthat the Sirt Basin'tectonictrends extend from the
Basinnorthward across the Pelagian Basin into Tunisia as far as the area
of the north/south axis. The interrelationship between this dominant
African tectonic trend and the physiography of the Pelagian Basin was
@ graphically portrayed by Figure 13, Annex II of the Libyan Memorial
wherean overlayof the bathymetry was placedona geologicmap showing
the tectonic trends in the area. The faults, some of which continued
moving during and after deposition of the overlying sedirnents,can be
traced back at least as far as the late Miocene4. Though locally inter-
rupted by compressive phases,tectonic extension has remained the rule
until the present day5.
241. The same northwest/southeast fault lineaments that are found
extending acrossthe Pelagian Basininto coastal Tunisia are found unam;
biguouslyin the Sirt zone,the Hun Graben and the southern slopes ofthe
@ Jabal Nefusa in Libya6. These various trends are,shown on Figure 15
facing page 110,and the study set forth in Annex 12A.VolumeIII will
consider the-circumstances that led to the establishment of this pattern.
. For the present itis sufficientto observethat, viewedin conjunctionwith
'BELLAICHE and BLANPIEDo, pcit.,p.53(A copyof this pageis attachcdasAnnex104,
Vol.II.)
ZARUDZKI, E.F.K.: TheStrnit of dicily - a GeophysicalSiudy. (Revuede Géograp~iie
Physiqueet de Géologie Dynamique,ol. XIV, 1972,p. 20.)A copy of this pageis
attacheds Annex 105Vol.Il.); LORTJ..: Geophysicsof the MediterraneanSea Basinr.
(In TheOceanBasins andMargins: The Eastern Mediterranean.Vol4A. New York,
Plenum. 1977p. 175.) (A copy of this pageis attachedas Annex 106, Vol. II.)
'WINNOCK E,.andBEA,F.Structuredela MerPélagienne.(In BUROLLE1T979,op.ci!..
p.36,)(A.copoy f thipage is attachas Annex 107,Vol.II.)
'See para.188 above.
'BELLAICHE and BLANPIEDo, pcil.,p.57. (A copyofthispageisattachedasAnnex104,
Vol.II.)
GOUDARZI. G.H.: CeoiogyandMinern[Resourcesof Libya - a Reconnaissance.United
StateGeological SurveyPaper660, 19p.51. (A copyof thispageisattachedasAnnex
108,Vol.II.) IO] COUNTER-MEMORIALOF LIBYA 249
other structural evidence,it helps to identify the PeIagian Basinas unam-
biguously "African" and thus distinct from the Alpine beltof Tunisiaand
the rest of the Maghreb1.
SECTION5. Continuity between theLibyanandTunisian JeffaraPlain
andthe Areaof Continental Sbelfto the North (Geo-
graphicandSocio-Economic Factors)
242. It has been mentionedabovePthat thearea of continental shelfto
be delimited is part of the Pelagian Basin, which includes not onlythe
entire continental shelf area in question but also the land areas knownas
the Jeffara Plain in Libya and Tunisiaand the Sahel inTunisia. A closer
look willbe taken here at the Jeffara Plain in the light of allegations made
in theTunisian Memorial that the "Gulf of Gabes", as greatly exagger-
ated in extent in the Tunisian Mernoriala,is a unit in a geographic sense,
having in mindvarious socio-economicand ecologicalfactors in addition
to purely physical geography.
243. Figure 16revealsthe topographyofTunisia and the relevant part
@ of Libya. It is observedthat except for the relatively narrow area of the
Sahel and the southern and southeastern portion of Tunisia, most of the
country is of a quite different topographical cbaracter. It consistsof the
area of the Atlas Mountains and the foothills leading to them, the Atlas
running in a southwest/northeast direction. Ashas been discussedabove
in considering the geological characteristics of this region4,the western
edgeof the Pelagian Basinruns along the north/south axisfrom Gabes to
Tunis. The Atlas Mountains are folded ontop of the underlying African
plate and this area of Tunisia is an entirely distinct geologicregion from
the Pelagian Basin. However,the Sahel and the Jeffara Plain are part of
the Basin, and hence are on the rim of the African plate. The Jeffara
Plain isbounded on the south by the Jabal Nefusa, a line of hillsrunning
across Libyaand into Tunisia in a crescent open to the north. Thus, the
African continent extends north ,into the Pelagian Sea, from the Jabal
Nefusa range across the Jeffara Plain which extends from just east of
Tripoli at Al Khums to the vicinity of Medenine to the southeast of
Djerba. The zone ofdepressions running west from Gabes to Algeria
acrossthe Tunisian and Algerian chotts marks an ancient shorelineof the
African continent5.
244. Asdiscussedearlier6,the Pelagian Basinisa geologicand physio-
graphic unit which has existed in essentially its present form over a long
period ofyears except forfluctuations in the sea ievelresulting at times in
much of it beingdry land and at other times inundated acrossthe Jeffara
'BUROLLET PicrrFélixand BYRAMJEE.R.S.: Réflexionssur la TectoniqueGlobale.
(ExemplesAfricainsetMéditerranéens(NoiesMen.Comp.,Vol.1974,p.96.) (Acopy
of the page is attached as Annex109,II.).
'Sce para. 200 abovc.
$Set para. 8liT.above.
'See para. 197 above.
'Sec Annex128. Vol.III.Theabove featurcareportrayed an artist's renditionof the
major onshorc physiographic provinces ddboveappearing as Fi17facingp.112.
SCCpara. 201 above.250 CONTINENTAL SHELF [lllj
Plain to the foothills of the Jabal Nefusa. The whole of the Pelagian
Basin between the Cape BG~promontory, where Tunisia appears to thrust
northeastward towards Sicily-and indeed the Atlas Mountain trend con-
tinues in that direction across Sicily into Italy to join the Apennines,
establishing the continuity of this part of Tunisia with Europe to the
north-and the promontory of Cyrenaica is a zone of vertical subsidence
of the North African bbck or plate. This has resulted in the large
embayments of the Pelagian Sea and the Sirt Basin. In effect,this entire
area of continental shelf constitutes a regional embayment from the mar-
ginof North Africa in former times, which wasfurther to the north than at
present, extending even ioto soiithern Sicily. Much of the shelf is tilted
toward the east and, depending upon where one isalong the Libyan shore,
to the north and the northeast. This tilting is the result of the rapid
sinking of the Ionian Basin that began some fivemillion years ago when
the Sirt Basin broke off along the present Misratah - Malta Escarpment.
Of course, the effect of this tilting can be seen in the bathymetry, causing
the shelf toappear to slopefrom Westto east, but this isonly an incidental
feature that is unrelated tothe real continuity between the African conti-
nent tothe south and its outer edge at the north rim of the Pelagian Basin.
245. As noted above, it is argued by Tunisia that the "Gulf of Gabes"
(allegedly from Ras Kaboudia to El Biban), has always been regarded in
antiquity, as today, as a physical unityl. But historically speaking, it isnot
correct that the coastal strip from Ras Kaboudia to El Biban formed a
single economicor political region. This has been shownabove in some
detail in paragraphs 61 to 64 abuve and is documented by the historical
memorandum set forth in Annex 6, Volume III.
246. The historical record of antiquity makes it quite clear that the
natural territorial unit in ancient history was not the whole area of the
"Gulf of Gabes" as alleged in the Tunisian Memorial, "depuis ie fond des
âges". On the contrary, as noted in paragraph 64 above, the southern
half of the "Gulf of Gabes" as far as the region of the chotts was often
regarded as a nomadic no-man's-land and the coastal strip was often
associated with the regio Tripolitania to the east rather than the old
province to the north.
247. A second argument in the Tunisian Memorial relates to what is
alleged to have beenthe historical importance of fishinginthe economyof
theregionof the "Gulf of Gabes". It isclaimed that Tunisia was forcedto
compensate for its poor.terrain by maintaining a close. profitable and
symbiotic relationship with the sea2. The historical importance of fishing
for the region, it is alleged, can be authenticated in various sources3and
stands instriking contrast to the adjacent sector of the Libyan coast4. The
inaçcuracy of this claim is fully discussed in the historical memorandum
set forth inAnnex 6.Volume III. It is pointed out there that in ancient
'SeeTunisian Memorial.paras4.16 through4.31.
*Ibid.. par4.01.
Ibid.para. 3.47.3.Il121 COUNTER-MEMORIALOF LIBYA 251
times the region of the "Gulf of Gabes" (called Emporia') depended
primarily upon its extremely fertileland. Parts of the regionof the "Gulf
of Gabes" wereextremely prosperous agriculturally. In contrast, refer-
ences by ancient authors to fishing in the "Gulf of Gabes" are hardly
enoughto support the Tunisianclaim that fishing representedan essential
part of the livelihoodof the inhabitants frorn "time immemorial". Cer-
tainly there is no justification forthe assertion that al1the settlernents
along the "Gulf of Gabes"-erroneously described as Phoenician
"comptoirs"-either practiced fishing ordependedupon it for their main
source of wealth'.
248. Turning to the ethnographic background of the region of north-
WestTripolitania and southern Tunisia,it is notedthat noreferenceto this
subject is made in the Tunisian Memorial. Detailed documentation of
this background is providedby the historical study set forth in Annex6,
Volume III. The salient points of this ethnographic story are set forth
below.
249. Interweavingof tribes across northwestTripolitania and southern
Tunisia wasconsiderableand of great antiquity. This situation wentback
to pre-Arab times, beforethe Seventh Century, when the Berbers3inhab-
ited the area'.
250. The coming of the Arabs to North Africa had the effect of
introducing further elements of complexity tothe ethnographic situation.
The Jeffara Plain becamea region dominated by the periodic migrations
of the transhumant and nomadicArabs. Overthe coastal areas of Zuara,
Djerba, Zarzis, and Gabes the nomadic overlords exercisedan effective
and burdensome control, ensuring that the major benefits from the pro-
duce of the areas went to them. The tribes of the Jabai, needing accessto
the fertile land on the edge of the Jeffara Plain, found themselvesin a
similar position of servitude. It was only in the 15th Century that the
mountain tribes were able to redress the balance, when, as a result of the
exhaustion of the plains nomads in their incessant wars, the mountain
tribes wereable to re-enter the plains. In the resultant battles the coastal
tribes were forced northwesttowards Gabes and the Sahel, and east into
the Tripolitanian Jefiara bythe mountaintribes comingfrom the southern
Jabal.
251. From the 17th Century onward the situation in the Tunisian
Jeffara followedthe fortunesof the twoadjacent regencies. Boththe Beys
'The very term"Emporia";meaning"tradingposts"in Greek, evidencesthe fact that the
hinterlandintheformof preciousStones(e.g., carbuncles),animals,andanima!skins,etc.,
though,doubtless,fishwas included.
!See TunisianMemorial,para.4.33"laprospéritéeces'Emporia' venait dleamer". The
referenceto Stéphane GsellHistoire ancienne del'Afrique dunor1913-1928(Paris,
Hachette etcie.,928-19291,whichiçcited to support thisstatementis manifestlyfaulty;
nowhere doesGsellgivejustificationforsucha view. Annex 6. Vol.III,pp.36 and37.
Itis believed that BerberswereoriginallyanArabtribe corning from eegionof the
ArabianGulf.
'See Annex 6. Vol.III, p.29.252 CONTINENTALSHELF il131
of Tunis and the Pashas of Tripoli sought the support of the tribes in the
region to extend their respective areas of power. From 1598 to 1638,the
Tunisian Beyswereengaged in a continuous seriesof wars to imposetheii
authority southward as far as Djerba. Added to these complexities came
a further one. The traditional rivairies between mountain and plains
tribes (by this time intermarriage had made the population largely homo-
geneous) had allied to the forma1rivalries of Tripoli and Tunis to create a
form of alliance pattern known as the soff. The soflalliance divided the
JeiTara and Jabal tribes into two groups, known as the Bashia and Mas-
sinia. The division referred ostensibly ta the struggle between Ali and
Hussain Pasha for the control of the Regency of Tunis in the 1750s. In
reality, of course,thisjustification wassoonforgotten and this sofbecarne
simply a traditional alliance pattern which bore no relationship to wider
political events, but codified traditional patterns of warfare. The sofl
extended right across the Jeffara into Tripolitania, providing a sense of
cohesion'.
252. The circumstancesrelating to the border between the regenciesof
Tripolitania and Tunis in more recent times are discussedin paragraphs 67
through 76above,where the facts are brought out that the border between
these twa jurisdictions lay at various times at Gabes, at Djerba and at.El
Biban. Indeed, the tribes of western Tripolitania and sautheastern Tuni-
sia were verysirnilar-in organization, life style, social and political inter-
action and aspirations to escape the exigenciesof central control. In this
respect, they diflered considerably from tribes to the north of Gabes,
further pointing up the fact that there has never existed an inherent unity
between the northern and southern parts of this area which the Tunisian
Memorial has exaggeratedly termed the "Gulf of Gabes".
253. Other factors bear out the conclusions arrived at in considering
the physical geography of the region as well as its history and ethnology.
For example, hydrogeologf, which is pertinent to an understanding of the
total scientific setting, is of interest here. Hydrogeology provides an
essential link between the prevailing physicalparameters and the ecologi-
cal response. It islargelyconcerned with the occurrence, flowand quality
of ground waters and the management and conservation of this fundamen-
ta1 natural resource3.
254. In paragraph 4.18 of the Tunisian Memorial it is asserted that
"the unity [of the area] ..between Ras Kaboudia and the Libyan fron-
tier..constitutes an indivisible whole fromthe ecological pointof view ...".
With respect tothe Coastand hinterland there is no hydrogeological basis
for thisstatement or forthe viewthatthe whole regionfrom Ras Kaboudia
to Ras Ajdir is a single entity having a fundamental unity of character.
One can identify two, and possiblythree, hydrogeological provinces within
'See Annex 6. Vol. III,p. 32.
cal conditionsandthevariables governintghe movementandqualityof underground water
withinany system.
'This partionof Sec5 is basedan the study preparedby Dr. AllAnnex 1, Vol.III. III41 COUNTER-MEMORIAL OF LIBYA 253
this region: (i) eastern Tunisia; (ii) the Jeffara Plain; (iii) the interven-
ing area situated Westand southwest of Gabes. (These provinces are
indicated on Figure 9 to Annex 1. Volume III.)
255. Eastern Tunisia extending from Cape Bon to the southwest of
Sfax is part of the Tunisian Atlas region, represented by the predomi-
nantly compressional deformation of folding and related faulting having
northeast/southwest and north/south structural trends. The resultant
complex system has a number of separate basins with strong structural
control and limited contributory area to springs and wells, so that sus-
tained yieldsof any magnitude are Iacking. The Jeiïara Plain, extending
inland from the coast from about Medenine inTunisia to beyondTripoli in
Libyal constitutes an unbroken entity, the essential hydrogeological fea-
tures of which are similar, if not identical. The Plain ischaracterized by
simple flexuring and faulting of the sedimentary cover on the Sahara
platform. The Jefïara hydrogeological provinceisabruptly terminated in
the Westby the marked structural control of the generally north/south
oriented Dahar ridge which functions as both a water divide and intake
area for the majorinland basin ofAlgeria. In the area Westand southwest
of Gabes, a prevalence of faultsallows the issue of springs and hydraulic
continuity frorn great depths towards the surface. This condition is
explained principally by groups of wells,which along the coast and inland
from Gabes have provided significant water supplies for irrigation use.
The water quality is good by western Jelïara standards, though saline
intrusion from the sea isalways a risk at the more coastal locations.
256. From the foregoing it can be concluded that the presence of
hydrogeological provinces of essentially different character refutes the
contention that theTunisian coast from Gabes ta Ras Kaboudia and the
Tunisian coast fromGabes to Ras Ajdir along the Pelagian Sea constitute
a single natural entity.However, the Jeffara Plain which lies behind the
northward-facing coasts of both Libya and Tunisia can be viewedas a
natural entity from the standpoint of hydrogeology. Thus, here too, there
is seen the unity of the Jefiara Plain in both Libya and Tunisia and the
disunity of theregion of Tunisia to the north of Gabes.
257. A detailed examination of the Jeffara Plain and the "Gulf of
Gabes" frorn the standpoint of ecologyand economicsis contained in the
study of Dr. Allan contained innnex 1,VolumeIII. Again, the assertion
to be tested is whether, from ancoiogicaland economicsstandpoint, this
region is properlyto be viewedas a unity, as alleged by Tunisia. In his
study Dr. Allan analyses a number of factors relating to onshore natural
resources inorder to test the validity of the Tunisian claim of unity foi the
entire region between Ras Kaboudia and Ras Ajdir. These factors
include:clirnate, soil, vegetation, livestock rearing, and agriculturHe
also examines offshorenatural resources. The Allan study then takes a
look at industry in the area, tourism and governrnent investment and
planning. Y
@ 'Set Map 16facingp. 9nbove.254 CONTINENTALSHELF il151
258. With respect to climate, it is apparent that just south of Sfax
below the 200 millimetre mean annual isohyera very different zone of
climatebegins. Tothe north of Sfax reliabledryland farming ofgrainand
olives is possible; to the south, al1 agriculture (except that based on
groundwater) becomes increasinglymore hazardous. Even within the
coastal strip south of Sfax separate natural climatic zones are evident.
Similarly,thisarea isnot a uniform environmentin terms ofsoi1quality or
with respectto its potential for agriculture or rangelandutilization'. Veg-
etation varies according to climate and soils and hence varies withinthe
area as a function of these factors further negating any inference of a
unified area.
259. With regard to livestock,although the regionnorth of Sfax due to
greater rainfall isbetter endowedtosustain higherstockinglevels,thearea
to the south depends more heavily economicallyon livestockP. Agricul-
ture alsopointsup the lackof uniformityin the area. Around Sfax a wide
range ofcrops isgrownand it isthe main area in Tunisiaforthe olive. To
the south, particularly away from the Coast, dates are grown. In the
Medenine area the major agricultural activity is vine raising2. Figures
includedin theAllan studyillustratethe foiegoingand pointup thelack of
uniformityof the entire regionbetween Ras Kaboudia and Ras Ajdir and
the relative uniformity along the Jeffara Plain.
260. With regard to offshore natural resources, the fish resource,
though important to the national economy ofTunisia, is by no rneans a
major element in it3. Even inthe south its place is declining compared
with other economicsectors such as industry and tourism. It is also not
the case that fishing providesa livelihoodfor a significant portion ofthe
peopleliving onthe southern marginsof the "regionofthe Gulf ofGabes",
resulting inthat regionbeing,as stated in the Tunisian Memorial, "one of
the mostdenselypopulated regionsof the Mediterranean'". The region is
not heavilypopulated, and the population whichdoes livein the southern
governorate is only supported to a limited extent by fishing. Just as was
noted above with regard to agriculture that Sfax is the most productive
governorate in this region of Tunisia, so also a much higher proportion of
the fish caught throughout this regionis fishedfrom Sfax than from the
southern ports. Comparative figuresmeasuringfishingagainst other sec-
tors of the economy and in terms of the percentage of the population
engaged in fishingare shown at pages 7 through 10of the Allan Studf,
which shows conclusivelythe relatively low importance of fishing in the
Tunisian economy,in marked contrast to the claims made of the impor-
tance of fishing in the Tunisian Memorial.
261. Inthe discussionof socio-economicfactorsin the TunisianMemo-
rial there is a serious omission- tourism. As we have seen, Tunisia
- -
'Sce Annex 1, Vol.III...2 thro-gh5.
Thissubjectistreatedindetailin theAltanStudy,Annex1,Vol. III.pfromwhichthis
paragraphisextractcd.
' SceTunisianMernorial.para. 4.24.
SecAnnex 1, Vol.111.[Il61 COUNTER-MEMORIAL OFLIBYA 255
rests its case firrnlyon the notion that the fish resource of the "Gulf of
Gabes" isthe most significantcontribution tothe livelihoodof the popula-
tion residing on the shores of the Gulf and especiallyalong its southern
shores. It has been shown how this isjustnotso. The fishingmarket has
neverbeena verylarge proportionalemployer,and itsshare inthe employ-
ment market has declined substantially in the paçt twodecades. Incon-
trast, the tourist industry centred around the region of the "Gulf of
Gabes", especiallyon Djerba, has grown morerapidly than in any other
center in Tunisia during the 1970s. Figures and charts showing the
growth and significanceof tourism in the Tunisian economyare found in
the AllanStudyl. Tourism hasforover20years beendynamic,expanding
and has becomea major feature of Tunisia'seconomicwell-being. Mean-
while the fishing industry has expanded relativelylittle and makes no
equivalent contribution to the Tunisian economy whether measuredin
terms ofvalueadded orofemploymentcreation. The prospects for fishing
arethat it will growslowly,willemployprogressivelyfewerpeople andwill
nevercontribute significantlyto exports. Tourisrn, onthe other hand,can
consolidate its position by concentrating on the better value added per-
formance derived from mediumand high cost tourism, and thereby con-
tinue to make a major contribution.
262. In conclusion,therefore, it is evident that the claim in the Tuni-
sian Mernoria1that the entire region from Ras Kaboudia to Ras Ajdir is
somehowa unity, ecologically, economicallyand otherwise,is not so. On
the contrary, one can establish a continuity between the Jeffara Plain in
both Libya and Tunisia that has its roots in the distant past.
SECTION 6. Continuity between the Continental
Shelf andthe NorthAfricanLandmassto
the South(Ceo1ogicFactors)
263. As has been noted elsewhereP,the Tunisian Memorial contains
relativelylittle stratigraphic or physiographic discussionand puts forward
rather superficial,and as willalso be seen,inadequate geologicaldata and
interpretations in s'upportof its claim that the "eastward-facing" Coastof
Tunisia fronting on the Pelagian Sea,is naturally prolonged eastward far
ont0 the continental shelf. Such geologicalmaterial as Tunisia does put
forward isdiscussedinconsiderablygreater detail in the studyof Dr. J.M.
Anketell, Lecturer in Geology, Universityof Manchester, England, set
forth as Annex 12A. VolumeIII.
264. The Libyan case has deeperand more extensive geologicalrootç.
They establishthe continuity betweenthe North African landmassto the
south and the continental shelf to the north. The geological background
that constitutes the underpinning forthese conclusionsis set forth in the
'SecAnnex 1,Vol.IIIpp. 10through 12.
'Secpara. 182above. 256 CONTINENTAL SIIELF
memorandumof ProfessorFabricius referred to in earlier paragraphs and
set forth aAnnex Il. VolumeIII and in the two studiesof Dr. Anketell'.
The key points will be summarized briefly below.
265. The essential elements of the Libyan case were set forth in the
Libyan MemorialZand in its Annex II. The continental shelf area to be
delimited forms part of the Pelagian Basin3. The Pelagian Sea and the
Sirt Basin region of the Southern Ionian Sea are relatively shallowseas,
the shape of which has-remained more or iess unchanged apart from
coastaI advances and retreats during the 200 million years that have
elapsed since Triassic time4. The Pelagian Basin,the extent of which is
@ shown inFigure 7 facing page 90, is located onthe African Plate. The
various movementsof the African Plate in former geologic times,and the
developmentof fold systems such as that of the Atlas Mountains, and of
fauit zonessuchas thoseof the Jeffara, the Sirt Basinand the north/south
axis in Tunisia, are summarized by Professor Fabricius and by Dr.
Anketel15.
266. Although the African plate can be describedas stable in contra-
distinctionto the mobileAtlas-Alpine belt,there have developedin north-
ern Africa a number of zones whichare either higher or lower than their
neighbours. Itdepends on the regionalsituation whetherfrom thecoastal
area seawardone type of zone comesfirst or the other. In the caseof the
coastal portion of the Jeffara Plain in Libya and Tunisia, that coast is
immediately followed by a zone of depressions (the Gabes-Sabratha
Basin)-which is more accentuated in the east. Beyond this zone of
depressions seawardthere is a higher zone whichincludes the Sahel, the
Kerkennah Islands,and the Medina Bank. Of course, these features are
very much more complicated by fectonic forces, but the general scheme
remains. These mnes may run parallel tothe northward-facing Libyan -
Tunisiancoastand the Jeffara Plain and the fault system behindthe coast,
but quitetothe contrary ofshowing any prolongationof the Tunisiancoast
to the east,these zonesclearly establish the continuity between the Pela-
gian Basin (including the continental shelfbelowthe Pelagian Sea to the
north) and the African Plate and landrnass to the south. This is, of
course, the essenceof the meaning of "natural prolongation6".
267. This physiographicpattern has fundamental geologicorigins. It
stems frorn the various fold and fault trends that have arisen frorn the
Tethyian origin of the Mediterranean and the various movements and
interactions of the African and European plates during geologicaltirnes.
'Annexes 12A and 128. VaIII.
'See LibyanMernorialparas.60 through68.
aIbidp..ra.62. Foranexpianatiooftheuseof theterm"PelagianBasin",sfn.1atp.
90 aboveand fn. 2 at p. 10 above.
'See para. 188above.
Annex 1I andAnnexes 12A and 12B. Vol. III.
The foregoing issummarizedfromthe memorandum prepared Dr. Fabriciusfoundin
Annex II. Vol. III. The investigationby Anketell andGhallali (1977) establishedthe
existenceof aeriesof blockmovernents with faulptlanesrunningmainlyeast/west, i.e.,
@ more orles5parallelto the Libyancoast. See Fig. 18 facingp. 116.11181 COUNTER-MEMORIALOF LIBYA 257
Thus, for example, the northeast/southwest Atlas Mountains trend, the
north/south axis, and the northeast/southwest Sirt Basin trend empha-
sized in the Libyan Memorial andits Annex II, are al1features superim-
posed on the African plate that have contributed to the resulting
physiographic patterns. In addition, there are Iessimportant trends fur-
ther complicatingthe picture. Such trends have beendetected by careful
analysisoffaciea snd isopachdata, and the interpretation oflineamentson
satellite imagery, on aerial photographs and in the field. They represent
the interaction between the African continent andthe seas and lands that
impinged upon'it from the north during geological times. They may
complicate but they do not obscure the essential continuity between the
Pelagian Basin and the landmass to the south. Together, these features
support the propositionthat the continental sheIf area in question is the
natural prolongation northward of the generally northward-facing North
African coastfromGabesto Ras Ajdironthe Tunisiancoastand from Ras
Ajdir eastward on the Libyan coast to the edge of the Pelagian Basin.
268. The "scientific"claims of Tunisia are summarized in paragraphs
5.80 through 5.85 of its Memorial. These claims are primarily morpho-
logical in content, but Tunisia tries to support them with geologicalevi-
dence. The Tunisian Memorial attempts to establish a "morphological
continuity" between Tunisia's landterritory and the adjacent sea bottom
tothe east out to the250 to300 metre isobaths,and beyond. A "veritable
land-seainterpenetration" isalleged withan essentially west-to-eastorien-
tation. It is said thata rea1continuity between eastern and southern
Tunisia and the underwater areas adjacent can be established. Two
westleast rnorphological zonesare emphasized: in the centre, a series of
elevated areas or "môles" forminga high zonesaid to run westleast from
Algeria out to the "Plateau de Melita et de Medina'"; tothe south a zone
of depressions,again said to run westleast from the chottis n Algeria by
way of the Gulf of Gabes to the "Tripolitanian Furrow". FinalIy, sedi-
mentologicaland structural data are said to establish that the "Tunisian
Shelf' and the "Gulf of Gabes" are homogeneous units and that the
eastward prolongationof Tunisia under the sea, far frombeingan accident
of nature, hasa fundamental basis evidencedby the west/east geological
alignment in Tunisia and the homogeneity of çtratigraphic facies in a
westleast direction. The whole approach of the Tunisian Memorial is,
therefore, one which advances the existence and the importance of
westleast trends and the "ease" with which theycan betraced offshorefar
into the Pelagian Basin, thus, it is said, affirmingthe claim of a natural
prolongation of the Tunisian coast toward the east: In addition, it is
stated that this trend is not only recognizableat the present time but has
also played an important role in the geological developmentof the region
ever since "remote times".
269. These"scientific"claimsfora westleast trend are invalid. Thisis
soin part becauseof the inadequacyof the data adduced insupport and in
part becauseof fauity interpretations of thedata. An examination of the
'Seepara. 234above. 258 CONTINENTAL SHELF
data alleged to support the Tunisian claims is set forth in the study of Dr.
Anketelll and summarized in the next paragraph. It should be noted that
theTunisian contentions are not based essentially on geologyat al1but are
geomorphological and paleogeographica12. The alleged highs and lows
running west/easf since ancienr geologic rimes sirnply do not exisr. The
only paleogeographic high at the end of the Cretaceous3 is situated near
the Kerkennah Islands and it trends northwest/southeast tojoin the Lam-
pedusa high. It is not a westfeast trend. Moreover, there is a linear
depression trending north-nortbeast/south-sou betweesnt the
Kerkennah high and the Tunisian coast which completely refutes any
allegation of awest/east prolongation from the Tunisian landmass out to
the Kerkennah Islands and bcyond to the east. Finally, at the end of the
Cretaceous there is no zone of paleogeographic lows trending West to east
from the chotts in Algeria, across Tunisia and into the "Gulf of Gabes" as
claimed in the Tunisian Memorial4. The only major low at that geologic
time trends west-northwest/east-southeast paraHel to the Libyan-Tuni-
sian northward-facing coast and is situated inthe Gabes-Sabratha Basin.
270. The data put forward in the Tunisian Memorial, and in particular
thefacies maps and stratigraphic sections, are examined by Dr. Anketell
in his study setforth as Annex ].?A, Volume III. A brief explanation of
the different types of geologic maps mentioned below isset forth in foot-
note 5 on this page5. Certain very basic criticisms are made of these
Tunisian maps in the Anketeli study. Briefly summarized, the contouring
of the isopach maps is often inconsistent or not noted. This makes them
difficult even for an expert to read and often misleading. In addition, the
data on these maps are largely dependent on boreholes, the location of
which isnot indicated with anything likea sufficientdegree ofaccuracy for
verification of the data. Certain other dificullies with the data, and in
@ particular Figure 5.21 in the Tunisian Memorial, are noted by Dr. Anke-
tell. With regard to the facies maps in the Tunisian Memoria16,it is
demonstrated in the Anketell study that the facies patterns are more
sophisticated than proposed by Tunisia and that selective data have been
used. ' In particular, the use of these data to show a west/east trend is
faulty and ignores the influence of the north/south axis which, as noted
above, though a major trend inTunisia, isal1but obscured inthe Tunisian
Mernorial, an omission that is impossible to justify. The real meaning of
See Annex 1ZA.Vol. III,pp. 1-8.
'"Paleogeography"is the study and descriptionof the physicalgeographyof the geologic
past. such as the hiçtoriçalreconstructionof an areaof the Earth'ssurface at a particular
Limein thegcologic past.TES andJACKSON. up. cif.. p.450. (Annex /01, VoIl.)
fSee para. 188above.
@ ISee Tunisian MernoriaFigs. 5.14, 5.15 and 5.18.
'A 'Ifariernap"shows ihe variationor distributionof differentrocktypes withina desig-
naied stratigraphicsection. It does not indicate thickness.igraphicsectiisa
sequenceof rockunitsfoundin a givenregioneitherat the surfaceorbelowit. An "isopach
map" showsihe thicknessoTabedor formation throughoutageographicarea-a "thickness
map". BATES andJACKSON op.rit.pp.221.258.330 an615. (Copiesof thesepages are
attached as Ann~x101.Vol. II.)
"Sec TunisianMemorial. Vol. III.Maps 8 and 9. thefacieds ata willbe discussedin paragraph 272below. With regard to
the isopach maps, the Anketell study severely criticizes the pertinent
scientific discussion intheunisian Memorial both as to the conclusions
drawn from it and as to the failure to include data necessary for valid
interpretation.
271. The surprising thing is that the Tunisian Memorial fails to give
any importance to the real trends with geologic significance. The
north/south axis is mentioned butit would neverbe suspectedthat it was
this geologicfeature to whichBurolletattributed somuch importance, the
very Burolletwhosework isdrawn on so heavilyby Tunisia in its Memo-
1 Of course, this north/south axiscompletelydestroys the interpreta-
tion of thefacieasnd isopach data on which the alleged west/east trend
relies. Equally astonishing is the absence of any mention of the west-
northwest/east-southeastSirt Basintrend. Yetthis trend isfundamental.
Extending paralleltothe coast from theSirt Basinto Gabes, it establishes
a continuity with this African coastline since Triassic times (over 200
millionyears). This içthe dominant trend in the areas, running right up
to the north/south axis whereit swingstothe north followingthe original
edge of the African Plate.
272. Faciem saps have beenprepareciby Dr. Anketell to showthe real
significanceof this data2. Similarly, mapsshowingthe ancient shorelines
on the North African coast have been prepared3. Instead of establishing
some type of westleast trend, thefacied sata portrayed showsomething
quite different. These maps cover successive periodsof geologic time
startingabout 100millionyears agountil about 15million years ago. It is
interesting to show the correlation between these faciem saps and the
ancient African coastlineduring the samegeneral periods. Thiscoastline,
itwill be noted, ran more or less east/west and cut across present-day
Tunisia south of the east/west depression marked by the chotts E.very-
thing north of that line was submerged. Of course,the Atlas Mountains
had not yet been forrned. The facies maps clearly show that the rock
types, represented on Figures 5 and 6 of Annex12A, Volume III as
eastlwest bands of different colors, change from shallow water types to
deeper water types northward from the ancient coastline. This evidence
exists on the subsurface of the earth today and shows the northward
continuation of the African continent from the ancient coastwhen every-
thing to the north of this line in Tunisia was submerged and there was no
coast running from Gabes to Cape Bon at all, just a northward-facing
coast parallel tothat of Libya, some part of which wasalso then sub-
merged. Far from showing somesort ofwest/east trend, as allegedin the
Tunisian Memorial, thesefacied sata are clear geologic evidenceof the
natural prolongationnorthward of both Libya and Tunisia. More recent
tectonic events such as the formation of the Atlas Mountains and the
@ 'See Fig19facingihis page.
"eee Figs.13 and 4ofAnnex2128.Vol. III.260 CONTINENTAL SHELF [121]
sinkingof the lonian Basin,withthe resultingtilting of the Pelagian Basin
and related physiographicresponsesreflected in the bathymetry, cannot
alter this fundamental condition.
273. The latter part of Dr. Anketell'sstudy set forth in Annex 12A,
Volume III, is particularly enlightening. Regarding the asserted
west/east geologicaltrend advanced in the Tunisian Memorial, Dr. Anke-8
tell reportsonlya veryminoreast/west geologicaltrend inTunisiaand this
"only with respectto those areas in the imrnediate vicinity of the north-
south axis of uplift in Tunisia". He adds:
"The trend is, in fact, the local expressionof a regional North
African trend whicheast of the axishas an east/southeast alignment
and Westof the axis has a west/southwest alignment. These align-
mentscan be related tothe trends ofthe margin oftheNorth African
plate'."
274. The final conclusions of Dr. Anketell are of particular
importance:
'As far as the Libyun-Tunisian coastlinefrom the Guifof Sirt
to Gabesis concerned,ihere is a consistent conformiîy between the
presenr easr/sourheast io westlnorthwest coastnl trend and geologi-
calfentures developedsinceearly Triassic rimes. Theprojection of
aneastlwest trendfrom 'Tunisiu'farout onto the PelagianBasinhas
no firm basis in geologicalJacr. To project a west/northwest to
east/sourheast trend parallel io the existing coastline of the Jefara
Plain most certainly has z."
'See Annex I2A.Vol.Ill, pp19and 20.
'Ibid.p.20.262 CONTINENTALSHELF il231
Plain and running in the same general directionof Westto east (the exact
directions are set forth in paiagraphs 207 and 208 above) is the north-
ward-facing coastlineof Libya and Tunisiafrom Ras Tajura onthe east to
Gabes on the West. From the Jabal Nefusa north across the Jeffara Plain
and ont0 the continental shelf of the Pelagian Basin, we see the natural
prolongation northward of the African continent onthe edge of the Afri-
can plate. This fact is dramatized by the fact that the ancient African
shoreline ran alongthe Jeffara Plain andjust south ofthe presentTunisian
and AIgerian chotts as revealed on Figure 3 to Annex 12B, VolumeIII
(reproduced as Figur e, facing page92). Tunisia north of this Iinewas
submerged. Subsequent tectonic events resulted in creation of the Atlas
Mountains and caused the Pelagian Basin to sink and tilt to the east in
reaction to the rapid droppingof the Ionian Basin,leaving the outjutting
promontories of Cape Bon in Tunisia and Cyrenaica in Libya which
envelopethe recessedembaymentsofthe Pelagian Basinthat are the Gulf
of Sirt and the areas of the Gulf of Gabes and the Gabes-Sabratha Basin.
But these events cannot obscure the underlying continuity between the
Jabal Nefusa and Jeffara Plain and the sunkencontinental shelf regionof
the Pelagian Basintothe north. The Tunisiancoast from Gabes up along
the Sahel to Ras Kaboudia and on north to Cape Bon is an incidental
result ofthese tectonic events,prior to whichthis regionwas a submerged
part of the African plate along its northern rim.
280. The foregoingChapters in this scientific portionof the Counter-
Memorial also criticize the geomorphological and geological claims of
Tunisia'that seek tomake a case for the natural prolongationeastward of
thisnorth-jutting coastofTunisia. The Tunisiancaseadvanced issuperfi-
cialand fanciful. It isnot basedonscientificfact. Someofthe geologicat
data have beendistorted. The details backingup theseconclusionsare set
forth in the technical studies referred to earlier and contained in Volume
III.
281. It has beennoted howTunisiaattempts to divideup artificiallythe
continental shelf area in question. It suggests there is a "Plateau Tuni-
sien" asifalmost to prejudgethe questionat issue. It has had drawn on to
maps various other features such as the "Sillon Tripolitain" (another
attempt at prejudging), the "Plateau de Melita et de Medina", the "rides
deZira etde Zuara", the "falaises" (completewithteeth) and the "Ionian
Abyssal Plain", and attempts to give these alleged features significancein
arriving at a delimitation of the continental shelf. The previousSections
have shownthat these features either do not exist at al1or are greatly
exaggerated. In fact, the continental shelf area in question is a feature-
lessgentlyrolling plain. The reliefmode1and blockdiagrams prepared by
Libya on the basis of the best available data including the bathymetric
data cited by Tunisia in its Memorial clearly showthis. No invaiideffort
to carveup the areacan alter these basic physiographic realitieswhichare
bolstered by the fact that, geologically,the Pelagian Basin is a unit that
has remained in its present form since ancient geologictimes.
See TunirianMemorial,Chap.V.[1241 COUNTER-MEMORIALOF L~BYA 263
282. In previous Sections and in the Anketell study' the various data
adduced in the Tunisian Memorial to show aland-sea interpenetration and
a westjeast "morphostructural alignment" have been severely criticized.
In particular, the data shown in the facies and isopach maps have been
considered in some detail in order to show inaccuracies, gaps, distortions
and rnisinterpretations. The scientific invalidity of so much of this mate-
rial isdisturbing. However. without dwelling.on ihis aspecl ofthe clairns
put forward by Tunisia, the exarnple of the facies data willsuffice. Maps
8 and 9 in Volume III of the Tunisian Mernorial set forth accurate facies
data. However, they support a conclusion quite diffèrent from that
advanced in the Tunisian Memorial. These facies data, correlated with
the ancient African shoreline, clearly establish the continuity between the
African landmass to the south and the Pelagian Basin to the north as well
as to the subsurface African plate underlying the present Atlas -Maghreb
region ofTunisia. The case isclearly made for the natural prolongation of
Africa northward from the generally east/west coastline of tibya and
Tunisia. They in no way support an alleged eastward prolongation of
Tunisia.
283. Among the more glaring omissions noted inearlier sections is the
failure of theTunisian Mernorial to place the actual trends that exist in the
Pelagian Basin inproper focus and instead to emphasize trends that either
are not trends at al1(such as zones of depression or of elevation) or are
minor ai besi. Thus. the Tunisian Mernorial tries to make a case for a
westjeast trend, almost entirely ignoring the critical north/south axis in
Tunisia and the very well-known Sirt Basin tectonic trend running west-
northwest/east-southeastacroçs the Pelagian Basin parallel to the coast-
line,bath as it istoday and as it trended throughout ancient geologictimes.
284. Finally, it must be emphasized that the Tunisian "scientific" case,
based as it is essentiaily on geomorphology with a scattering of geological
data alleged to be in support, issuperficial, quite apart from the omissions,
inaccuracies and distortions referred to above. The Libyan case is based
on fundamentals and on data and interpretations reflecting the latest
scientific geological thinking and findings. The continuity between the
continental shelf area in question and the African landmass to the south is
irrefutable. The natural prolongation necessarily must be northward
from theadjacent coasts of Libya and Tunisia that face to the north just as
the ancient coastline did.
'Annex 12A. Vol.11t. pp. 1-8. PARTIII
THE PRINCIPLESAND RULES
- OF INTERNATIONAL LAW
INTRODUCTION
285. In interpreting the provisionsof the Special Agreement, the ques-
tion arises asto what content shou1dbe givento the expression "principles
and rules of international law" inArticle 1. These terms have diflerent
content. "Principles" are more general and basic; "rules" more detailed
and specific. The principlesto beappliedin hiscaseare enunciatedinthe
North Sen Confinenla1 Sheif Cases and in the AngluFrenchArbitration.
In the former, the Court stated:
"More fundamental than the notion ofproximity appears to be the
principle ..of the natural prolongation.or continuation ofthe land
territory or domain, or land sovereignty of the coastal State, into
and under the high seas, via the bed of its territorial sea which is
under the full sovereigntyof that State. There are various waysof
formulating this principle, but the underlying idea, namely of an
extensionof something atready possessed,is the same, and it is this
idea of extension which is, in the Court's opinion, determinant'."
In the latter the Court of Arbitration said:
"...the principle that a coastal State has inherent rights in the
continental shelf which constitutes the natural prolongation of its
land territory [is] 'the most fundamental of al1 the rules of law
relating to the continental shelf'...2".
Thus, the rules to be applied, necessarily subordinate to the basic princi-
ples, must be perceivedas having a single aim-a common direction: to
giveefect to the overriding principlesenunciated by this Court and by the
Court of Arbitration.
'I.C.Reports 1969.p.31. para.43.
*Angl~French Arbitrotio(Cmnd. 7438), p51,para77, citiI.C.J.Reporrs1969.p. 22,
para 14. CHAPTER1
NATURAL PROLONGATION
SECTION1. TheMeaning of theConcept of NaturaI ~roloagation
286. The Memorialsof the two Parties disclosecompleteagreement in
one respect: the controlling principle tbe applied inthis case is thaof
"natural prolongation". The propositionthat each Party isentitled to the
area of shelf which constitute~the natural prolongation of its land terri-
tory, into andunder the sea, is to be found in the very firstsubmissionof
both Parties.
287. Despitethis apparent agreement onthis mostfundamental princi-
ple, it is neverthelessapparent from the two Memorialsthat the Parties do
not agree over the true effect of that principle, or its application to the
particular situation before the Court. To resohe the disagreements, it is
necessary to refer back to the Court's Judgment of 20 February 1969 in
the North Sea ContinentalShelf Cases,and the subsequent endorsement
of that Judgment in the 1977Award of the Court of Arbitration in the
AngleFrenchArbitrafionand inthe Third United Nations Conferenceon
the Law of the Sea. In this way it may be possible to discern the true
relevanceof natural prolongationto problemsofdelimitation,and thereby
test the validity of the positionsadopted by the Partiintheir pleadings.
288. The essence of the principle of natural prolongation is already
described in Part II, Chapter 1of the Libyan Memorial, and it is not
proposed to repeat what is adequately stated there. Indeed, the Libyan
description of the principle does not differ markedly from that in the
TunisianMernorial',savefor the concludingparagraphs of that part ofthe
Tunisian Mernoriai2. It is inthe modeof application of the principlethat
the Parties differ.
289. In the context of shelf delimitation, it is also necessaryto distin-
guish two differentaspects of this problem: the first is that of the outer
limits of the shelf, and the second is that of boundaries between States
adjoining the sarne shelf.
A. The OuterLimits of theShelf
290. If theseare conceivedas the lirnitsto the area of nationaljurisdic-
tion, beyondwhichliesthe international area, then, clearly,State practice
and the text of Article76 of theDCIT have already adopted the Court's
concept of the shelf as the natural prolongation ofthe State's land terri-
tory. The contemporary,and accepted,viewof the shelf is based upon its
geologicalunity throughout the continental rnargin. The point is impor-
tantbecause,as weshallsee3,inthe TunisianMernorialthere içanattempt
'See TunisiaMemorial, paras. 6.30 through 6.46.
'Ibid.,paras. 6.47through6.49 where.erroneously,thisconceptisgivcna primarilygeornor-
pSecparas. 313 through 317 below.266 CONTINENTALSHELF il311
to distinguish between the shelf and the so-called "borderland'," with
resulting dimerencesin methods of delimitation. There is also an attempt
to make alleged "historic rights", and the geomorphalogicalfeatures of the
shelf, predominate', an attempt quite contrary tothe essentially geological
nature of the continental rnargin.
291. Reverting to the Truman Proclamation of 28 September 19453, as
the "starting point of the positive law on the subject" (to use the Court's
own phra~e)~,it isevident that, frorn the outset, the shelf was a predomi-
nantly geological concept. The Truman'Proclamation (as quoted in the
Tunisian Memoriai, paragraph 6.04) said "the continental shelf may be
regarded as an extension of the land-mass of the coastal nation and thus
naturally appurtenant to it ...". This statement has to be read with the
further assertion (also quoted in paragraph 6.04), namely that,
"[Tlhe Governrnent of the United States regards the natural
resources of the subsoil and sea bed of the continental shelf
beneath the high seas but contiguous to the coasts of the United
States as appertaining tothe United States, subject to itsjurisdic-
tion and control".
Although both statements, as quoted in the Tunisian Memorial, use the
word "contiguous", this word is used in a descriptive sense rather than as
the basis of the rightsof the coastal State over the continental shelf. The
"reason" or basis ofclaim isgiven inthe first quotation: to paraphrase the
relevant passage, since the continental shelf may be regarded "as an
extension of the landmass of the coastal nation", it is reasonable and just
forthe contiguous nation to exercisejurisdiction overthe natural resources
of the continental shelf.
292. The Court's Judgment in the North Sea Continental ShelfCases
reinforced this view of the shelf, stressing the physical, and essentially
geological, unity of the shelf and the adjoining landmass.
"What confers the ipsojure title which international lawattributes
to the coastal State in respect of itscontinental shelf, isthe fact that
the submarine areas concerned may be deemed to be actually part
of the territory over which the coastal State already has domin-
ion,-in the sense that, although covered with water, they are a
prolongation or continuation of that territory, an extension of it
under the sea5."
293. It is of course truethat the concept of natural prolongation must
also have a geographical connotation, for the shelf is a prolongation of a
particular landmass which has its ownconfiguration. However, the rele-
vance of the geographiçal configuration of the adjacent landmass is seen
'See Tunisian Memorialparas.5.75 through5.79.
Ibid.Chaps.IV and V and paras.8.17 through8.19.
'PresidentialProclamationNo. 2667, ocil.(SeeAnnex 54. Val. Il.)
'I.C.J. Reporl1969,pp. 32 and 33. para.47.
Ibid.. p. 31, para.43.[1321 COUNTER-MEMORIAL OF LIBYA 267
more in the context of boundaries between neighbouring States, as we
shall see in the next section, than in determining the outer lirnits of the
shelf.
294. Confining Our attention to the outer lirnits, it is also clear that
undet Article 76 of the DCIT a coastal State's entitlement to areas of
continental shelf exists without regard to bathyrnetry. Bathymetry under
these new trends becomes relevant in setting ouler lirnits under circum-
stances not even remotely applicable to this case. Indeed, the principal
change between the 1958Convention and the DCIT istheabandonment of
bathymetry as a determinant criterion in delimiting the continental shelf.
B. Boundaries between States Adjoiningthe Same Shelf
295. As noted in paragraph 85of the Libyan Mernorial, the guiding
principfe in determining a State'r entitlernent to areas of continental shelf
ofi its coast tests on the physicai fact of a natural prolongation of iland
territory into and under the sea. The Court's Judgment in the North Sea
Continental Shelf Cases, together with the Court of Arbitration's Award
in theAnglo-FrenchArbitration and a substantial body of State practice,
permit the formulation of a series of propositions concerning natural
prolongation and boundaries, which might serve as consideranda underly-
ing the Submissions, in whole or in part.
(il Natural prolongation serves to identify whichareas are part
of the same shelf.
296. The proposition is self-evident in the sense that, viewing natural
prolongation as synonymous with the continental margin, the geological
evidence which shows that an area ispart of the same continental margin
equallydemonstrates that it is the same shelf. As will be seenl, the point
has relevance to the Tunisian attempt to create a picture of two separate
areas: the shelf and the "borderland".
(ii) The natural prolongation .ofone State will be separated
from the narural prolongation of another, on geological
grounds. only where there exists afundamental disconlinu-
ity in the area so as to create, in effecr.two shelves.
297. It will be recalled that in ils 1969 Judgment in the North Sea
Continental Shelf Cases, the Court adverted to the feature in the North
Sea called the Norwegian Trough, suggesting that the shelf areas to the
Westof that feature could not be said to be the natural prolongation of the
Norwegian coast "in any physical sense2". The possibility of a geological
or geomorphologicat feature separating the natural prolongation of one
State from the natural prolongation of another was also raised in the
pleadings filed by the United Kingdom in the Anglo-French Arbitration.
'See paras3 13through317 below.
'I.C.JReports 1969. p32, para. 45.268 CONTINENTAL SHELF 11331
The feature in question there was the Hurd Deep' and its related fault
zone. The Court of Arbitration rejectedthe United Kingdom'sargument,
saying:
"The geologicalfaults which constitute the Hurd Deep and the so-
called Hurd Deep Fault Zone, even if they be consideredas distinct
features in the geomorphologyof the shelf,are still discontinuitiesin
the seabedand subsoil whichdo not disrupt the essential unity of the
continental shelf...2".
The Court of Arbitration's insistenceon allowingonly fundamental "dis-
continuities" to mark the division betweentwo natural prolongations is
fully in accord with State practice. To take perhaps the best known
example, the Indonesian/Australian Agreement of 12 February 1973
establisheda boundary in the Timor Sea3whichtookinto account the Aru
and Timor Trenches4 as the natural limits to the Australian Shelf. That
example discloseshow significant the "discontinuity" must be. It is in
contrast to thatexample,and inthe contextof thissecond proposition,that
we shall in due course examine the Tunisian method of delimitation fol-
lowingthe "ligne des crêtes".
(iii) "[I]t canbe useful to considerthe geologyof [the] sheIfin
order rofind out whether the direction taken by certain
configurational features should influence delimitation
becaüse, incertainlocalities,theypoint-up thewholenotion
of the appurtenanceof the continentalsheif ta the Srare
whose territory ir does infact prolong."
298. Thisthird propositionis taken verbatim fromparagraph 95 of the
Court's Judgment in the Norlh Sea ContinenralShelf Cases. What is
important is the Court's stresson the geology of lheshe~ for the relevant
configurational features derive from that. Thus, features of a purely
topographical significance-such as bathymetry or the "ligne des crêtes"
onwhichTunisiarelies-will beseento beirrelevantby thiscriterion. So,
too,will features which liefar outsidethe shelf-such as an abyssal plain.
(iv) The natural pïolongurions of adjacent States cunnot be
determined in isolation from the question of the natural
prolongationsof third States. be they opposite or adjacent.
299. As the Court said in the North Sea ContinentalSheif Cases:
Thesetwofeatureshavebeensuperimposecainthe PelagianBasininFigs.and 13facing
p.106 to point upthe artificialityof Tunefforto create features thatwouldaffect
delimitation.
' Angl~French Arbirration (Cmnd7438),p. 63, para. 107.
a Lirnits theSeas, NO.87, 20 Aug. 1979p.9. (See Annex65.Vol.Il.)
'The Timor Trenchis a decpandvery pronounceddivision betweenthe two shclvcs.s
greatestdepthis 3,30m. At the 2,500m.isobathamoreaverage dcpth,it is220mi.long
and L4mi.wide. At 2,000 m. it is 350 mi. long and 23 mi.widc.[1341 COUNTER-MEMORIAL OF LIBYA 269
"If there isa third State on one of the coasts concerned, the area of
mutual natural prolongation with that of the same or anolher
opposite State will be a separate and distinct one, to be treated in
the same way'".
The point made by the Court was further reflected in the dispositifwhere
the Court required the parties to take account of other delimitations.
actual or prospective, with third States in the same region. In similar
terrns, the Court of Arbitration was concerned in its Award in the Angio-
French Arbitration to consider the possible impact of the clairns of the
Irish Republic2. As will be seen, the Tunisian "methods" suggested in its
Memorial ignore this important element, for they involve clairn-lines
which can only be regarded as a transgression into areas of shelf to be
delimited between Libya and Malta or Libya and Italy.
(v) Thedelimitation of the she~should leave as muchas possible to
each Party al1thoseparts of theconlinenta1shelfthat consrirutea
natural prolongation of ilsland territory without encroachment
on the natural prolongation of the orher.
300. This proposition is taken almost verbatim from the Court's dis-
posirvin the North Sea ConrinentalShelfCases. The important part of
the proposition is the injunction against "encroachment". This is highly
relevant to the Tunisian methods, for al1 of them involve encroachrnent
into areas of shelf that are the natural prolongation of Libya. .
301. The fact that the equidistance method willfrequently produce this
"encroachment" led the Court to distinguish it from the true principle of
natural prolongation. As the Court said:
"As regards equidistance, it clearly cannot be identified with the
notion of natural prolongation or extension, since, as has already
been stated (paragraph X), the use of the equidistance method
would frequently cause areas which are the natural prolongation or
extension of the territory of one State to be attributed to another,
when the configuration of the latter's coast rnakes the equidistance
line swing out laterally across the former's coastal front, cutting it
off from areas situated directly before that front3."
The Court developed further the notion that the shelf areas which attach
to a State are those which lie in front of its coast, saying "[t] he appurte-
nance of the shelf to the countries in front of whose coasttines it lies, is
therefore a faet...'". This results not simply from proximity, for theCourt
rejected any test of absolute proximity, but from the observable, physical
facts. Hence. absent fundamental "discontinuities", a boundary that
swings across a State's front, which is so angled as to cut across the area
lying in front of that State's coast, is an irnperrnissible.encroachment.
'I.C.J.Reporis1969, p.36,para. 57.
Anglc+FrenchArhilration (Cmnd. 7438). p. I 1, para. 236.
'I.C.J. Reporis 1969pp.31 and 32,para.44.
Ihid., p51, para95.270 CONTINENTALSHELF il351
302. It is at this juncture that the importance of the geographical
circumstances becomes evident. For,particularly insofar as the equidis-
tance method is used to determine boundaries between States, it is the
geographical form of a coastlinewhichwillinfluencethe direction of such
a boundary.
(vi) The natural prolongationof a State isthe prolongation of its
landmass and notjwt of its coasl.
303. The shelf isthe prolongationof the continental landmassand not
merelya reflectionofa coastline. The wholepurposeof the Court'suseof
the conceptof a "coastal front1"wasto eliminatethe distortionscausedby
coastal peculiarilies or irregularities-be these concave or convex coasts,
promontoriesor offshoreislands,-and thereby gain a true measure of the
landmass which is prolonged under the sea. The Court of Arbitration
took exactly the same view2,regarding the English and French coasts in
the English Channel as broadly equal. It thus ignored the substantial
concavity of the Golfe de Gascogne, in the Channel sector, and in the
Atlantic sector sought to remedy the distortion which the Scilly Islands
wouldhave producedbythe equidistancemethod. Inthe presentcase, the
Court faces a sirnilar situation, in which Tunisia seeksto use natural
prolongation by reference to its coasts rather than by reference to its
landmass.
(vii) Thelandmass of a State.whichhas its naturalprolongation
under the sea is limited in extenr by the existing political
boundaries, and the prolongation musi therefore rejiect
those boundaries.
304. Itisnot merelythe factsof nature which haveto beaccepted, but
also the facts of political history.Neither this Court nor the Court of
Arbitration was disposedto postulate land boundaries other than those
which actually existed: forexample,in the NorrhSea Confinenla/ Shev
Cases, the assumption that the shelf boundary should proceed fromthe
land boundary (or, more accurately, the outer limit of the territorial sea)
was never questioned. In the AngleFrench Arbitralion, the Court of
Arbitration emphasizedthat " the principleof natural prolongation isnot
of a prolongation under the sea of a continent or geographical land mass
but of the land territoryofa particular State3". Similarly in the present
case,the exerciseofdelimitation must start from the premisethat the land
boundary liesat Ras Ajdir. The natural prolongation proceeds fromthat
point, on that Coast.
(viii) In delimiting the respective notural prolongations of adja-
cent States, the Court is not concerned 10ensure an equito-
ble allocation of resources, or with wider arguments of
"economicequity ".
'I.C.JReporrs 1969, p. 52, para.98.
Ibidc..86, para174;see also p. 92. pa191.8. and 110,paras.181,182and 234.il361 COUNTER-MEMORIALOF LIBYA 271
305.The Court in its Judgment in the North Sea ContinentalShelf
Cases emphasizedthat the coastal State's rights to itsownnatural prolon-
gation existed "ipsofacto and ab iniliol". It continued by emphasizing
that "the processof delimitation is essentiallyone of drawing a boundary
line betweenareas which already appertain to one or other of the States
affected2". The Court was concerned to apply a legal institution-the
shelf doctrine-which "has arisen out of the recognition of a physical
fact3". Consequently,the Court felt boundto reject the arguments of the
Federal Republic of Germany based upon a claim to an "equitable
share'". Such a claim, whether based uponthe argument that the State
hasa particular coastal frontage,or needsthe resources,oriseconomically
disadvantaged as compared with another State, is entirely inadmissiblein
matters ofshelfdelimitation5. Indeed, al1"economic" argumentsmust be
inadmissible, for theyare quite incompatiblewith the fundamental notion
of a State's inherent right tothe physical,natural prolongationof its own
landmass. This proposition istherefore dispositiveof the "ecoaomic" or
"social" arguments made in Chapters III and IV of the Tunisian
Memorial.
(ix) Referenceis also made asappropriate IO therelevantcircum-
stances of geogruphy,so as to indicate which methods of
delimitation will produce an equitableresult.
306. This Court has made reference to the "general configuration of
the coasts of the Partiesw-a geographicalphenornenon-as a relevant
factor6. Similarly, the Court of Arbitration made repeated reference to
the "geographical and other features" which,in that Court'sview,estab-
lished the legal framework for its decision7.
307. This Court'sconcern with geographical configuration seems,how-
ever,to be directly related to its implicationsfor the methodsof delimita-
tion to be used. .As the Court çaid in the North Sea ContinentalShelf
Cases:
"[Iln viewof the particular geographical situation of the Parties'
coastlines ...the methods chosenby them for the purpose of fixing
'I.C.J. Reports 1969, p. 22, para. 19;p. 29, para.39.
Ibid., p. 22, para.20.
SIbid..p. 51, para.95.
'Ibid.p.22,para.20;p. 31,para.44. Andseethe AwardintheAnglo-FrenchArbitration
and equitable share" whollyat variance with the fundamental principle that the shelf
appertains to thecoastalState asthe natural prolongation of its land territory.
In this Counter-Mernorial Libya has befeonrcedto discussthese issues becauseof the
emphasisplacedonsuchrnattersinthe TunisianMemorialandbecauseofthe erroneous and
rnisleading staternrelatingto such issues.
'I.C.J. Reports 1969. 54.para. 10(0) (1) [disposir~fl.
'Anglo-FrenchArbitralion (Crnnd.7438), p. 109,para.232. CONTINENTAL SHELF
the delimitation of their respective areas may happen in certain
localities to lead 10 an overlapping of the areas appertaining to
them'".
308. Similarly, in the Anglo-French Arbitration, it was as a conse-
quence of its findingsthat the shelf area wasa continuous, uniform shelf 2,
without determinative geologicalcharacteristics- that the Court ofArbi-
tration turned to geography. And the Court of Arbitration's concern with
geography was, again, in the context of its influenceon the propriety of a
particular method of delimitation. The Court was essentially concerned
with the impact of the particular geographical features upon the propriety
ofthe useof the equidistance method. The Court referred expresslyto the
"effects of particular geographical features or configurations upon the
course of an equidistance-line ùoundary3". Thatthe Court of Arbitration
saw geography as being relevant tothe choice of methods is abundantly
clear from its statement that-
"the appropriateness of the equidistance or any other method for
the purpose of effectingan equitable delimitation in any givencase
isalways a function or reflectionof the geographical and other
arelevant circumstances of the particular case4".
It is perfectly explicable that, in both the North Sea Continental Shelf
Casesand the Anglo-FrenchArbitration, when either one or both parties
were arguing by reference to the equidistancc method, the Court should
give very careful consideration to geographical configuration. For, when
using the equidistance method, it is the configuration of the cosst which
willcontrol the line, unlesscorrective action is taken to rernedydistortions
produced by some exceptional configuration.
309. In the present case, however, neither Party seeks to rely on the
equidistance method. Although geographical circumstances remain rele-
vant, their significance is therefore perhaps somewhat reduced. This is
particularly so in view ofthe preponderance of geological evidencein this
case clearly esteblishing a northward general line of direction of the
prolongation of the African continental landmass,and in view of the
congruence with these geological factors of the geographical features and
legallyrelevant circurnstances;as more fullydiscussedin Part IV,Chapter
II1of this Counter-Mernorial, below. Nor could geographical circum-
stances alone, in any event, displace the principle of natural prolongation
clearly established by physical geological evidence, forthat wouid be to
allow coastal configuration to prevailover the inherent rights of coastal
States deriving frornthe physical facts of the natural prolongation of their
landmass.
I.C.J.Reporls1969, p.52, para. 99.
*Angl~French Arbitration (Crnnd. 7438), p. 92, para. 191; pp. 109 and 110, para. 232.
Ibid., p. 60. pa100. See also, p. 114,pa243, referring tothe geographythe Scilly
Isles, deRectingthe equidistance lineon a more ~outhwesterl~course.
Ibid.,p.112.para. 239; see also 116.para. 248. 310. lt would becontrary to principleto allowmere coastalconfigura-
tion to determine the line of delimitation. The true role of geography
would be to indicate the broad relationship of the two landmassesof the
Parties and to suggest which methodof delimitation would produce the
least encroachrnent. For, notwithstanding a.continuity of the shelf, the
fact of encroachment would still be apparent in a situation where a pro-
posedboundary crosseddirectly in front of the coast of a state. As shall
be seen, therefore, in a particular area the relevant circumstance of geog- '.,
raphy may influencethe direction of the main trend of prolongation. In
paragraphs 493 through 505 below this point is dealt with more specifi-
cally in the context of the present case. 1
SECTION 2. Tunisia's Application of the Concept of Natural
Prolongation
311. ~lthou~h Tunisia's subrnissionsare ostensibly foundedon the
concept ofnatural pr-ongation, an analysis of the use and applicationof ,
this fundamental principleby Tunisia in its Mernorial revealsa repeated
distortionofthat principle. The distortion isnot without itspurpose,forit
servesto lend somecolor of legality to a seriesof propositions,ultimately
refiected in the "practical methods" suggested by Tunisia and in the
Tunisian submissions,which in fact run counter to the very concept of
natural prolongation. It is necessary to dernonstrate this distortion, and
for thispurpose it willbe convenientto deal with the Tunisian arguments
under four beads: the definitionof the shelf, the limits of the shelf, the
coasts abutting on the shelf, and the direction of the shelf.
A. TheDefinition ofthe Shelf
312. As indicated in the previous Section1, the concept of natural
prolongation enables the shelf to be identified and defined. It extends
throughout the continental margin. In contemporary practice, States
treat the shelf as a singleentity, a unifiedarea extending to the limits of
the continental margin. Delimitation agreements between States com-
monly coverareas of shelf up to depths of 4,000 metres2.
'See para. 296 above.
For example,Anglo-FrenchArbirration(Cmnd. 7438I,OO mO.;lndia/Indonesia Agree-
ment of 8 Aug. 1974, 1,646m. (Limiis intheSeas, No. 62, 25Aug. 1975); FrancelSpain
Agreement of 29 Jan. 1974, 3,229 m. (Limits in ~heSeas. No. 83, 12 Fcb. 1979);
JapanIKorea Agreement of30 Jan. 1974;1,829m. (Limits in the Seas,No. 75, 2 Sep.
1977); Canada/Greenland Agreementof 1Dec. 1973,1,560m. (Limits in theSeas, No.
72, 4Aug. 1976);Guinca-Bissau/SenegaIAgreemeof 25 May 1960,4.415m. (Limitin
rheSeas, No.68. 1Mar. 1976);Colombia/Costa Rica Agreementof 17Mar. 1977,3,493
1975,3.621m.n(Limitsin tSeas,No. 69,l Apr. 1976);Brazil/Uruguay Agreementof 21
July 1972,6,65m. (Limitsin iheSeaNo. 73,30 Sep. 1976); India/ MaldivesAgreement
of 28Dcc. 1976, 5,000 m. (Limizs in theSeas,No. 78, 24 July 1978); IndialSri Lanka
Agreement of23 Mar. 1976,3,QOOm. (Limiis in the Seas,No. 77, 16 Feb. 1978). In
accordancewithArt. 50, para. 2of the ofCourt, copiesof thissucof Limirsin the
Seas have beendepositedwith the Registrar.274 CONTINENTAL SHELF il391
313. It is against this background that one must assess the extraordi-
nary divisionwhich Tunisiamakes between the "shelf' and the "border-
land" ("avant-pays"). There is, in fact, no scientific basis forsuch a
distinction;and in any event it is abundantly clear that the jurisprudence
(in particular the Award of theCourt of Arbitration in the Anglo-French
Arbitration), the practice of States, and the new accepted trends in the
Third United Nations Conferenceonthe Lawof the Sea combineto reject
such a distinction. The concept of "natural prolongation" treats an iden-
tifiable shelf as a unity, and does not permit so arbitrary a division as
Tunisia proposes betweenthe "she1f'-up to 300 metres- and the "bor-
derland"-from 300 to 1,000 rnetres.
314. The distinction made byTunisiais not without its purpose,for on
the basis of this arbitrary distinction Tunisiaseeksto Varythe legal rules
governing delimitation. In fact, three zones were distinguishedin the
Tunisian Mernorial. The first is the zone up to the 50 metre isobath, a
zone withinwhichthe aiieged "historic rights" prevailto the exclusionof
al1other legal rules or relevant factors; indeed, this zoneis suggested by
Tunisia as a zone excluded from the exerciseof delimitation altogether'.
The absence of any foundation for this submission has already been
demonstrated in Chapter II of Part 1of this Counter-Mernorial.
315. The secondarea of "shelf', up to the 300 metre isobath, isonein
which Tunisiawould exciude al1relevant circurnstances save those geo-
morphological facts which, in Tunisian Submission 1.3,suggest that the
Tunisian"natural prolongation" extendsas far south as the ridgesof Zira
and Zuaraz. This followsfrom the Tunisian Memorial's elaboration of
the application of the law in its Chapter VIII. The Court will note that
the sectionon"relevant circumstances" (SectionIII-"Les Circonstances
Pertinentes") isdeemed to apply onlyto the "borderlands". Thus, Tuni-
sia wauld havethe Court consider the three relevant circumstances listed
-coastal configurations,the positionof the frontier on the Coast,and the
effectsof other delimitations-only in relation to delimitation beyondthe
300 metre isobath.
316. Thedivisionisunacceptable inprinciple,and quitecontrary to the
concept of natural prolongation. Its purpose is to exclude the relevant
circumstances from the area out to the 300 metre isobath precisely -
because those circumstances do not support the Tunisian clairns. The
Tunisian Submissionis not in accord with Article 1of the Special Agree-
ment, which plainly indicates that the Court must take account of "the
relevantcircumstanceswhichcharacterise the area" (the area here clearly ,
embracing the entire area of concern).
317. The division is equally incompatible with the recent trends
demonstrated in the Third United Nations Conferenceon the Law of the
'SeeTunisianMemoriul. para.4.103and Submission1.2.
Itappearsthat Tunisiaisnotcontentwititthrusttotheeast notedinparas.39 and90
above. Through thedeviceof these "ridges"it attemptsto thrust southwawell.
See TunisiaMemoriol, gra. 8.28. il401 . COUNTER-MEMORIAL OF LISYA 275
Sea. The criterion of depth or bathyrnetry has ceased to have any rele-
vance to the definition of the shelf within 200 miles from the baseline, and
al1thearea ofconcern in this case is within that distance'. Thus, to rnake
this extraordinary divisioninto a 50metre zone, a further zone between 50
and 300 metres, and a third zone of 300 to 1,000 metres (the "border-
land"), as Tunisia does, is to repudiate one of the most fundamentalof al1
the recent trends.
B. The Limitsof the Shelf
31 8. Tunisia seeks to demonstrate that, by the application of the con-
cept of natural prolongation, the lirnits to the Tunisian shelf-to the
Tunisian "natural prolongation"- can be determined.
319. To the east those limits are said to lie along the line of "falaises
sous-marines", a line of underwater cliffs which are said to represent the
original Coast of Tunisia2. This line is graphically, and dramaticafly,
@ illustrated by Figure 5.07 in the Tunisian Memorial. To the south, the
Tunisian shelf-the limit of its natural prolongation-is said to lie along
the "rides" of Zira and Zuaraa. As has been demonstrated in paragraphs
234and 237 above, the existence of these "rides" and "falaises" cannot be
established on the basis ofanydata put forward in the Tunisian Memorial
or known to Libya. Yet quite apart from the factual misrepresentation
inherent in this argument, the argument is also bad in law.
320. TheCourt willappreciate that the argument contains an inconsis-
tency. The "rides" are represented as a possible shelf boundary, but the
"falaises" are not. No reason isgiven forthis.inconsistency, but one may
presurne that the alleged "falaises" were found by Tunisia not Farenough
to the east toprovide the boundary Tunisia seeks. Tunisia had no hesita-
tion in asserting claims beyond these "falaises", beyond its shelf, in the
area of the so-called "borderland".
321. However, in law neither feature can provide a boundary, or a
natural limit to the prolongation of either Tunisia or Libya, for asemon-
strated in the previous Section', the features would have to represent a
fundamental discontinuity in the shelf before providing such a limit. In
short, the Tunisian argument is not only bad on the facts; it contains a
serious misunderstanding of the type of feature required in law to mark
the division between the natural prolongations of two States.
322. The aspect of limits with which natural prolongation might well
assist is indetermining where the shelf area. appropriate for delimitation
between Tunisia and Libya, stops; and where shelf areas appropriate for
delimitation between Malta and Libya (or Italy and Libya) begin. AS
indicated in the previous Section5, the concept of natural prolongation
'See also para. 294 above.
'See TunisianMentoriolpara.5.18.
'Seedpara. 297 above.
'See para. 299 above.276 CONTINENTAL SHELF LI411
cannot be invoked by one State-or even by both Parties to a litiga-
tion-without taking account of the actual or piospective delimitations
with third States,delimitations whichwillnecessarilytake account of the
natural prolongations of those third States.
323. It is therefore somewhat surprising that, in the Tunisian Memo-
rial, the existing delimitation between Italy and Tunisia receivesscant
mention,and Libya'sfuture delimitation with Malta isvirtually ignoredl.
What is said2,in a rather general way,isthat Tunisia isoppositetoStates
whose coasts are not far distant from its own. This, or rather the effects
resulting fromactual or potential delimitations,is regarded as a "relevant
circumstance". The implication is that, by reason of the proximity of
these other States (presumably the Italian islands of Pantelleria, Lim-
pione,Linosaand Lampedusa and the State of Malta), Tunisia is"disad-
vantaged" and therefore 'requires a generousshare of the shelf in its
delimitation with Libya3.
324. Any such implication is based on fallaciaus reasoning, forthe
physical facts are what they are and it is nopart of the Court's task to re-
fashion geography4.And certainly, it is not possibleto create a natural
prolongation for Tunisia where noneexists. If oneexaminesthe boundary
between the Tunisian and Italian shelves deriving from the 1971
Italo/Tunisian Delimitation Agreements, itis apparent that the extension
of this boundary towards the southeast excludes the possibility of any
relationship befween Tunisia and Malta as opposite Siares6. In other
words,it blocksoff,or"amputates", anydirect linebetween anypart of the
Tunisiancoast which mightbenearer to Malta than isthe Libyan coastto
the south. It alsomeansthat, giventhe Italo/Tunisian Agreement, Libya
and Malta are opposite States and Tunisia and Malta are not: this
statement istrue whether onelooksat the "natural prolongation" as being
geographicallythe shelfarea infront of thecoast, or asdefinedon geologi-
cal grounds. (The sameeffectisachievedby the Tunisian"sheaf oflines"
illustrated in the Diagram appearing on page 192below,which would if
accepted totally isolate the Libyan coast fromany potential delimitation
with clearly oppositeStates suchas Malta and Italy; Tunisia hastherefore
not only failed to take into account "the relevant circumstances which
characterise the area": it has madeproposalswhichflyin the faceof those
circumstances.)
325. Thus, al1the kindsoflineswhich result fromthe variousTunisian
"methods", and whichswingacross the Libyan coast, between Malta and
lSave forthe ratherextraordinarysuggestion thatthe "abyssalplain"methodwouldwork
equallywell forotherStates, like Malta; TunisianMernorial,para.9.09..
See TunisinnMernorial,Submission!.4.(e).
'See paras,204 through212 above.
'See I.C.J. Reports 196pp.49 and 50, para.91.
'See para.48 above.
Thisisbarneout bythefact that theonlynegotiaiionsconcerning delimis ithMalta
these two States to refer,the matter to this CMoreovert,he Tunisian Mernorial
overlooksthe obvious fact that isan oppositeSiate to Italy (the PelagianIslands).il421 COUNTER-MEMORIAL OF LIBYA 277
Libya, are a transgression into,and a true amputation of, areas of shelf
which are not only part of Libya's natural prolongation, but are also
outside the areas subject to the present Tunisian/Libyan delimitation.
They are areas which may ultimately fall for considerationin the context
of delimitationsbetween oramong Libya and another State or States, but
they are quite outside the areas which may be legitimately regarded as
appropriate'for delimitation between Tunisiaand Libya.
326. The issue is really one of "encroachment". As indicated in the
previousSection, it is fundamental to the application of the principle of
natural prolongation that delimitation should avoid allowing the one
Party's shelf to encroach upon the natural prolongationof another'. The
defect with al1the Tunisian methods isthat they involvepreciselysuch an
encroachment.
327. It must also be added, for the sake of completeness, that the
particular geometrical exercisescontained in Chapter IX of the Tunisian
Memorial,and identifiedas methods (a) and (b) in the TunisianSubmis-
sion11.2,al1contain the samebasic fallacyof transgressingintoshelfareas
which cannot conceivablybe relevant to a delimitation between Tunisia
and Libya. The rnatter is dealt with in detail in Annex 8, VolumeIII, to
this Counter-Mernorial. lt need onlybe said, here, that the fallacyagain
stems from Tunisia's disregard of the limits imposedby the particular
natural prolongations of Tunisia and Libya with which the Court is con-
cerned inthis case. Thesenatural prolongationsare not the prolongations
of the entire Tunisian or Libyan coasts, but only of those parts of their
coasts thatabut on the shelfarea in question. This is a point amplifiedin
the section which follows.
C. The Coasts Abuttingonthe Shetf
328. For the sake of clarity, it will be convenient to distinguish the
various issues to which these coasts, or rather their treatment in the
Tunisian Memorial, give rise.
The idenrijicarionofthe relevanl coasts
329. It is perhaps a trite observation to Saythat, in any delimitation
between adjacentor oppositeStates, it is rarely the case that the wholeof
the coasts of the States concerned is in issue. To take a very obvious
illustration, the Court in its Judgment inthe NorrhSea-ContinentalShelf
Cases was at no time concerned with the east- or north-facing coasts of
Denmark. The first (the east) did not face into the North Sea at all, and
the second (the north) was relevant onlySto the existing delimitation
between Denmark and Norway. In somesituatioris,the identificationof
the relevantcoastspresents more difficulty. Inthe Anglo-FrenchArbirra-
lion the Court of Arbitration had.to deal with a French argument that, in
relation to the Atlantic area, the United Kingdom had no Coastat all.
Whilst the Court had little difficultyin rejecting soextremean argument2,
*AngleFrenchArbi~iiraii(Crnnd7438), p. 110,para.234.278 CONTINENTAL SHELF [1431
it did raise the important question of which, in fact, were the relevant
coasts, Le.,the coasts from which the natural prolongations of the two
States projected. The Court found that, in fact, the two States had
comparable "frontages" and stated the foliowing:
"The Court considers that the method of delimitation which it
adopts for the Atlantic region must be onethat has relation to the
coasts of the Parties actually abutting on the continental shelf of
that region. Essentialiy, these are the coasts of Finistère and
Ushant on the French side and the ccrastsof Cwnwall and the
Scilly Isles on the United Kingdom side'."
Thus, the Court of Arbitration was not concerned with the long French
coast of Brittany, Loire, Vendéeand Gironde facing westward into the
Atlantic, or the Englishcoasts of North Devonor Wales: it identifiedthe
relevant coasts as a comparatively short "frontage".
330. A similar situation prevails in the present case. However, the
Tunisian contentions are demonstrably unsound. Forthe relevant Tuni-
sian coast is identified as extending to Cape BonZ, and the relevant
Libyan coastas far east as the Gulf of Sirta. In relation to the Tunisian
coast this has the eRect of bringing in the length of coast north of Ras
Kaboudia which has already been allocated its share of shelf under its
1971 Agreement with Italy. Mat Tunisiaseeks to do, in e$ea, is to
countits coast northof Ras Kaboudia twice over. Tunisia nowseeks to
use the same length of coast to acquire a greater share of shelf against
Libya than its morelimited,and relevant,coast would inequity secure for
it.
331. By a parity of reasoning, the Libyan coast as far as the Gulf of
Sirt must be irrelevant to the present delimitation, for east of Tripoli the
Libyan coast is squarely oppositeto Malta4. From this it followsthat the
areas of natural prolongation off the Libyan coast east of Tripoli have
nothing to do with the present delimitation between Tunisiaand Libya5.
Put inother terms, the Tunisianselectionofthe relevantcoastsisdesigned
to support the encroachment of the Tunisian claims into the Libyan shelf
and, moreover,a Libyan shelf whichin due coursewill have to be recog-
nized as such under a Libyan/Maltese delimitation6.
'SeeAnglo-FrenchArbitration (Cmnd. 743p.116,para. 248. It wasbecausethescwerc
the relevant coasts.and not thc coastsalongthe entire lengthof the Channel, that the Court
feltound to rcject the French methcd of a median line between"lignes dc Lissage", for
these were basedon the Channel coasts.
'See TunisiaMernorial,para8.29 and Figs. 9.10 and 9.13.
aibid .,ra. 8.29 and Figs. 9.10and 9.13. .
'Saveforthe lineof delimitation to the east and south of Lampedusa which may wellturn
Libya.cdrawn in an arca of shelf whichproperlyFallsfor delimitation bctwccnMatta and
'It isapparent frommap that the Tunisiancoast fromGataRas Ajdir cannot,onany
basis,beconsidcrasoppositcto Malta. With regard to the Tunisiancoast bctwan GatKs
and Ras Kaboudia. sec para. 336 bclow.
'Secparas. 358 and 482 through 484 below.[144] COUNTER-MEMORIALOF LIBYA
The colifguration of the coasts
332. As indicated above', the Tunisian Memorial regards "relevant
circumstances" (which include the general configuration of the coasts) as
relevant only to the "borderland", not to what they term the Tunisian shelf
praper.
333. The features ofthe Tunisian coast stressed inthe Tunisian Memo-
rial2are the following:
-the concavities of the Gulfs of Gabes and Hammamet;
-the convexity of the Sahel between the Gulfs;
-the north/south orientation of the Tunisian coast; and
the consequential west/east direction of the Tunisian natural
prolongation.
The features of the Libyan coast that are stressed are the following:
-its simplicity;
-that it has a broad front stretching to the Gulf of Sirt and facing the
central basin of the Ionian Sea;
-the northwest/southeast orientation of the Libyan coast; and
-the consequential northeast/southwest direction of the Libyan natu-
ral prolongation.
334. As indicated in the previous Section, the natural prolongation isof
the landmass, not the coasts,so that the accidents of convexities or concav-
ities are really of no significance4. The question is therefore one of the
extent of the respective landmasses and the relation of the adjoining shelf
to those landmasses. For reasons already explained, the Court is nol
concerned with the Tunisian coast up into the Gulf of Hammamet, nor
with the Libyan coast out to the Gulf of Sirt.
335. Confining ourselves to the coasts that are relevant, certain obser-
vations must be made regarding the Tunisian description of the Tunisian
coast. For a more detailed geographical description of the Libyan and
Tunisian coasts see Annex 2, Volume III. To depict the Tunisian coast as
having a north/south orientation is inexact. In a delimitation between
adjacent States one must start from the land boundary. That boundary iç
at Ras Ajdir and therethe Tunisian coast, like the Libyan coast. runs west-
northwest/east-southeast. It fo'ollowst,herefore, that at this point the
Tunisian shelf lies to rhe north, and not to the east.
336. ln fact, Tunisia has quite an extensive coast running westward
from Ras Ajdir. Thus, any delimitation must take account of this coast5,
'See para. 315above.
'See Tunisian Memorial, paras. 3.12 through 3.14.
'See para. 303 above.
'They rnight assumesignificanceif the equidistancemethod were tobeused (see para.387
below), but since neither Party advocaresequidistancethis aspectof coastal configuration
can be dismissed.
'Tunisia, too, rnakesthis point bycomplainingof the effectsof "amputationTunisian
Memorial, Fig.9.06). But this "amputation" arisesdirectly from Tunisia's insistencethat
irs coast runsorth/south. With two lengths of coast abutting on the sarneshelf area.
Tunisia cannot seriously cornplainthat the one causesan "amputation" of the other. The result wouldthen be'that the Tunisiancoast, from Ras Ajdir toGabes,
has its natural prolongation to the norih, which any delimitation must
respect. Obviously,insofa; as there is a further length of Tunisian coast
running between Gabes and Ras Kaboudia this coast must abut on the
same area. It isvisually likea square (the shelf area) with twosides (the
two lengths of,Tunisian coast) at right angles. The twqsides abut on the
same area, and whether this area is regarded as a prolongation ofthe one
side or the other, it is clear that there is no justification for claiming a
largerarea on the basis that one side isbeing "amputated". The overlap
of prolongationson a right-angled coast is inevitable,and, as weshali see',
Tunisia seeks somesort of "compensation" by, as it were, trying to count
its Ras Ajdir-to-Gabes coastline twice overand by attaching to it areas of
shelf that in fact liein front of the Libyan coast. The problem is quite
artificial, and entirely of Tunisia's own making. It disappears once the
shelf area is regarded as lying ro ~henorth of that particular length of
coast and it isconceded that the coast at right angles (between Gabes and
Ras Kaboudia) is simply a coast abutting on the same area2.
337. In the present case the shelf area is more properly regarded as a
prolongation to the north of the Tunisian coast between Ras Ajdir arid
Gabes for at least two persuasive reasons. The first is that, geologically,
the shelf is a northerly projection of the North African landmass. And
the secondisthat the delimitation must start from Ras Ajdir, which lieson
the coast facing-north. The idea of a delimitation based upon the coast
between Gabes and Ras Kaboudia might have sorne justification if the
land boundary were at Gabes or Ras Yonga:but it is, in fact, at Ras Ajdir.
338. .Asto the Tunisian description of the Libyan coast, it treats as a
coastal front the entire coast as far as the Gulf of Sirt. That coastal
frontage cannot possiblybe relevant toa delimitation between Tunisiaand
Libya. As indicated belowa,beyond a point Westof Tripoli the coast can
be relevant only to a future delimitation with Malta. (This length of
Libyan coast followsapproximately the samedirection as the length ofthe
Tunisian coast between Ras Ajdir.and Gabes: west-northwest/east-south-
. east, and not northwest/southeast as alleged by Tunisia.)
The Direction of the Shelf as the ~atural Prolongation of the
D.
Landmass
339. The Tunisian argument necessarilyhingeson the submissionthat
there are, in fact,wo shelves,physicallydistinguishable fram each other.
The Tunisian issaid to be an easterly prolongationextending in the east to
the line of "falaises", roughly along the 300 rnetre isobalh, and in the
'See paras.460 and 461 below.
beingattached to (a prolongation of) onofsthe bay orthother,the area remainsthe
same.
>Sec paras.483 and 484 belaw.[1&1 COUNTER-MEMORIALOF LIBYA 281
south to the "rides" of Zira and Zuara. The Liby'anshelf is therefore
somewhat ungenerously confinedto the area south of these "rides", with a
northeasterly direction to the proIongation.
340. The factual inaccuracies of the Tunisian contentions, simplyas a
question of the scientific evidence, have been exposed in Part II of this
Counter-Memorial. This Chapter demonstrates how the Tunisian con-
tentions distort the concept of natural prolongation as a matter of law.
341. Taking first the argument that the direction of the sheif can be
determined by a Iine from the land boundary to the centre of the abyssal
plain1- not only is this scientifically incorrect but as a matter of law it is
unacceptable2. It purports to resolve the question of the relationship
between a landmass and the adjoining shelf-the "natural prolongation"
of the shelf-by reference to a feature which liescompletely outside the
shelf, some600 kilometres'east of Ras Kaboudia and lyingbetweenSiciIy
and Greece.
342. Then there is the quite separate argument based on bathymetry'.
In essence,it isthe argument that what was originallyTunisian land (the
Pelagian Blockor Plateau) has ken gradually submerged, and that as the
sea advanced at different times, so the Tunisian shoreline altered and at
each stage formed a "terrace": these "terraces" are now shown by the
bathymetry. In contrast, it is alleged that the Libyan shoreline has
changed little; that Libya has lost little territory to the sea;and that this is
shown by the proximity of the 200 metre isobath to the Libyan Coast.
343. As has been demonstrated in paragraphs 217 through 21 9 above,
the argument is inconsistent with the scientific evidence,and the changes
in the Libyan coastIine have been as dramatic as in the Tunisian. The
other obvious flaw in'the argument is that it al1depends on the premise
that the Pelagian Basin was originally part of the land territory to the
West. In fact the Pelagian Basin is more accurately identified with the
land to the souths, so it is scientifically morq accurate to regard it as
subrnerged Libya rather than subrnerged Tunisia.
344. However, all this speculation on the geological evolution of the
Pelagian Basin, and its effect on bathymetry, is rather beside the point,
because inlaw, the'bathymetry isof minimal relevance. As a fundamen-
tally geological concept,the superficialor topographical characteristics of
the shelf-of which bathymetry is the most obvious-are not true indica-
tors of prolongation6. They are not capable of indicating appurtenance.
This can perhaps best be demonstrated by reversing the illustration. Can
it be supposed that in applying the concept of natural prolongation, a
Court,would ever look to the surface topography of the landlto the
It isbelievednot. Bythe same
location and shapes of hills,valleys, etc.?
'See Tunisian Memorial. ChapterIX andSubmission11.1. .
ySee paras..444through453 below.
'324 nautical miles. '
'Sce Tunirian Memorial.paras.5.16 through5.25.
"Sec paras.265 and 266abovt.
'See para.298 above. 282 CONTINENTALSHELF [lq7]
token,the purelysurface topographyofthe sea-bedisequally incapableof
revealingthe identity,or lackofidentity, betweenthe shelfand the adjoin-
ing landrnass.
345. Itmust therefore be stated, by wayof conclusionto this Section,
that even aside from the scientific inaccuracies on which the Tunisian
arguments rest, the Tunisian arguments cannot be reconciled withthe
legal concept of natural prolongation, the concept which both Parties
regard as basic to this case.
SECTION3. Libya'sApplicationof theConceptof NaturalProlongation
346. The fundarnental importance of geologyin determining whether
the area of continental shelf in questiois the natural prolongationof the
landrnassofLibyaorofTunisiaorofboth, and the effectofthe application
of the principle of natural prolongation upon delimitation of this shelf .
between each State, were recognizedby Libya in its Memorial. In fact,
Libya had a special geologicalstudy undertaken which it appended as
Annex II to its Memorial. In the available time since preparation of its
Mernorial, Libya has had additional studies made of the geologicaland
other related scientific factors,calling on highly.qualified independent
experts1. Asa result, Libya'streatment of geologyhas been expanded in
this Counter-Mernorial. These additional scientific investigations were
occasionedby a need not onlyto evaluate the scientificcontentions con-
tained in the Tunisian Memorial but also to reassessthe Libyan case in
light of the Tunisian contentions and to confirm and fortify the initial
conclusions.setforth in the Libyan Memorial.
347. In the sectionswhich follow,the Libyan view of the concept of
natural prolongation, andofits application tothe facts ofthe present case,
are setout. Forthe purposeofassistingthe Court to notethe cornparisons
between the Libyan and Tunisian views, these sections follow the same
headings and sequence as those in the previousSection.
A. The Definitionof the Shelf
348. In contrast to the Tunisian attempt to dividethe shelf into differ-
ent zones,and to depict various features said to affect delimitation, Libya
demonstrates that the shelf is a single, physiographic unit withoutany
significantfeatures that wouldremotely affect delirnitation. Indeed, this
shelf is identifiable as the natural prolongation of the North African
landmass to the south.
349. The Libyan Memorial at paragraphs 61 and 113 points out that
the continental shelfareato bedelimited is part of the Pelagian Basin,the
limitsofwhichare definedin paragraph 62'. This Basin,includingneces-
sarily the continental shelf area in question, is physiographically and
'Seefn. 1ap.79above,foralistingoftheseexperts. Thememorandaresultingfromthese
@ ZSeefn. 3 at p. 10 whichrcpcatçthis definition. Seea7sfacingp. 90. I1481 COUNTER-MEMORIALOF LIBYA 283
geologicallya basicallyundifferentiated unit, and has been for millionsof
years'. There is no legalor scientific basishatsoever,on geographical,
geological,physiographicor geomorphologicalgrounds for dividing itup.
350. This conclusion has been confirrned by the additional scientific
data set forth in and annexed to this Counter-Mernorial. The geologic
origins and development of the Pelagian Basin are dealt with in
paragraphs 266ff. above and Annex II, VolumeIII. In brief, it is now
knownthat this area is part of the northern rim of the African platewhich
has over several hundreds of millions of years remained essentially
unchanged. Of course, during this period, asidc from the rising and
falling sea, there have been major geologic eventsthat have affected the
geologicunitof the Pelagian Basinasa whoIe. The Atlas Mountains were
formed asa resultof interaction betweenthe Europcanand African plates.
This and other tectonic events have led tothe anomalousconfigurationof
the Sahel promontory and the north-jtitting of eastern Tunisia. With the
formation of the Atlas Mountains, a totally different geologicregion of
European plateoriginwas superimposedonthe African platewhichtoday
lies belowthe Atlas formation. Most of Tunisia north of the area of the
chotts and Westof the Sahel falls within this region. Another event of
significance that occurred at roughly the same geologic time was the
sinkingof the Ionian Basin,which causeda tilting of the Pelagian Basin
and itsbreaking offalong the present Malta- Misratah Escarprnent. As a
result, the portion of the Pelagian Basin between Cape Bon and the
Cyrenaica promontories becamesubmerged,recesscdembayments, tilting
slightly toward the IonianSea.
351. Physiographically,the entire area of continental shelfhere is like
a gently rollilig plain. As discussed in paragraph 238 above, a relief
mode1and blockdiagrarnswereprepared for Libyafromthe bestavailable
bathymetric data in order to reveal the physiographyof the sea bottom.
They campletely refute the Tunisian attempt to divideup the continental
shelf intodifïerent zones characterized by alleged significantfeatures2.
352. The effort of Tunisia to exclude from consideration a portion of
this area of continental shelf on alleged historical grounds has already
beendealt with in Part1,Chapter Ii above. There is neither a legal nora
factual basis for considering the area as starting from the 50 rnetre
isobath.
353. As reflected in Submission 12 of the Libyan Mernorial (corre-
sponding to Submission 11 of this Counter-Mernorial), Libya considers
theentire sea-bed area as part of the shelf, extendirigfrom the low-water
mark seaward. For the entire area is part of the same"natural prolonga-
tion" and, as shown in paragraph 153 of the Libyan Mernorial, whilst
there isa difference betweenthe coastal State's rights to its territorial sea
'Seepara.244above.
@ 'See the photographof the relief mode1 facing p.10See also Fig.IO king
p.102.284 CONTINENTALSHELF il491
and its continental shelf for jurisdictional purposes, it is irnperativethat,
for purposes of determining whether a particular method of delimitation
achievesan equitable result, the wholearea must be taken into account.
B. The Limitsof the Shelf
354. Libya has definedthe limits ofthe continentalshelf in accordance
with the principlesof law laid down in the dispositif of the Purt's 1969
Judgment.
355. The Court there indicated that parties must take account of
actual or potential delimitations with third States so as to avoid any
attempt to delimitareas of shelfwhichmight beappropriate for delimita-
tion between oneof the parties and a third State rather than between the
two parties exclusively. It may be recalled that the Court of Arbitration
inthe AngleFrench Arbitration expressedthe sameconcernin relation to
a delimitation between the United Kingdom and France which might
trespass intoareas of shelf moreappropriate for delimitation betweenthe
United Kingdom and the Republic of Ireland'.
356. The point at issue is to prevent the Parties in their delimitation
from encroachingupon areas of shelf whichare of legalconcern to a third
State.
357. In the view of Libya, there are clear limits to the shelf area
involved inthe delimitation nowbeforetheCourt. In'the north,the1971
Italo/Tunisian ,Agreement has already delimited between those two
States, the shelf area lying between the Tunisian Coast north of Ras
Kaboudia and the Italian islands of Pantellaria, Limpione, Linosa and
Lampedusa. (This point has been fully dealt with in paragraph 324
above,and it should be noted that ltaly has entered into no delimitation
agreement with either Malta or Libya.)
358. Bythe same token, Libya regards the positionof Malta, and the
potential Libyan/Maltese delimitation (as to which a special agreement
has already been entered into) as imposing a limit to the shelf area to be
delimited (in this casi'tthe east). An equally significantfact is that the
Italian islands of Limpione, Lampedusa and Linosa lie due north of the
Libyan shorelineeast of Ras Ajdir.
359. The rationale for these Iimits to the area now before the Court
and a more precisedefinitionof thoselimitsare givenlater inthisCounter-
Mernorial,in paragraphs 474through 490below. 'As willbe pointedout
there, these limits constitute an essential step in arriving at a method of
delimitation consistentwith legal principles. The difference betweenthe
Libyan and Tunisian positionson this particular issueisfundamental,and
the differencestems entirely from their differentviewson the limitsin law
ta their natural prolongations.
C. The Coasts Abutting on the Shelf
360. There is a necessary relationship between the question of the
limits of the area of shelf subject to delimitation and the question of
'Anglo-FrenArbitration (Cmnd. 7438), p. 111, para.236.ri501 COUNTER-MEMORIALOF LIBYA 285
identifyingthe particular coasts whichabut onthat area. As indicated in
the previousSection, it was this relationship which Tunisia ignoredin its
Mernorial.
361. The fundamental error in Tunisia's selectionof the entire coast-
line fromCape Bontothe GulfofSirt as the relevantcoasts'(among other
things) has invalidated from the outset the whole of the geometrical
"methods" used byTunisia to support its proposed lineof delimitation'.
362. Part IV, Chapter III below, therefore, will explore with some
care a method ofdelimitationconsistent withthe legalprinciples,applying
the correct applicationof the principle of natural prolongation discussed
above.
'Sec paras. 33and 334 abovc.
cxercisesandAnnexr8,Vol.III.owCora detailedanalysofthetwo Tunisiangeometrical THE ROLE OF EQUITABLE PRINCIPLES,RELEVANT
CIRCUMSTANCES AND THE NEW ACCEPTEDTRENDS
IN THE THIRDCONFERENCE ON THE LAWOF THE SEA
SECïION 1. TheRole ofEquitablePrinciples
363. Article 1 of the Special Agreement asks the Court to render
judgment in this proceedinginccordance with equitable principles, the
relevant circumstanceswhichcharacterize the area and the newaccepted
trends inthe Third UnitedNations Conferenceon the Lawof the Sea. In
this section, Libyawillset forth the equitable principles embodied within
the legal regimeof the continental shelf which,in its view,are applicable
to this case.
364. The modern positivelawconcerningdelirnitationof the continen-
tal shelf has its origin in the Truman Proclamation1.ndeed,in the
contextofthe evolutionofcontinental shelfjurisdictionasa legaldoctrine,
the Truman Proclamation has "in the opinion of [this] Court a special
status2",and is "regarded as the starting point of the positive lawon the
subject [ofdelimitation3".
365. In this respect, the primaryconcept contained in the Truman
Proclamation and the continuing vitality of that principle have been
described, by this Court, follows:
"[Tlhe chief doctrine it enunciated, namely that of the coastal
State as having an original, natutal, and exclusive (in short a
vested) right to the continental shelf offits shores,cameto prevail
overal1others, beingnowreflectedin Article 2of the 1958Geneva
Conventionon the ContinentalSheIP."
366. Significantly,the Truman Proclamation declared that in cases in
which the continental shelf in question extended to the shores of another
State or was shared with an adjacent State, the boundary should be
determined by the States concerned "in accordance with equitable
principles".
367. This Court's principal decisionwith respectto the 1awgoverning
delimitatiod thecontinental shelf,irsJudgrneintheNorfk Sea Confi-
nentalShey Cases,reconfirmed the role of equitable principles as an
essential elementindetermining thepropriety under international lawof a
State's entitlement to the continental shelf appertaining to its territory.
In this context, the Court indicated theal nature and content of the
equitable principlesapplicableto continental shelfdelimitation as follows:
"[DJelirnitation must be the object of agreement between the
States concerned, and..such agreement must be arrived at in
accordance with equitable principles. On a foundation of very
'See f3.atp65above.
I.C.R.ports 196p.32,para47.
Ibid...32 an33, para. 47.
'Ibid..33,para.7.il521 COUNTER-MEMORIAL OF LIBYA 287
general precepts of justice and good faith, actual rules of Iaw are
here involvedwhich governthe delimitation ofadjacent continental
shelves-that is to Say,rules binding upon States for al1delimita-
tiens;-in short, it is not a question of applying equity simplyas a
rnatter of abstract justice, but ofapplyinga rule of lawwhich itself
requires the application of equitable principles, in accordance with
the ideas which have always underlain the developmentof the legal
régimeof the continental shelf in this field...'".
368. Thus, in endorsing the prirnacy of equitable principles the Court
stressed the distinction between le"al doctrines that incor~orateor reflect
considerations of "equity", i.e.,justice or fairness, and determinations ex
aequo et bono, implying decisions based on practical considerations and
expediency,disregarding, if necessary, existinglaw and recognized rights.
The Court specificallyheld that there was no question of any decision ex
aequo et bono, since Article 38, paragraph 2 of the Court's Statute pro-
vides that a case may be decided on the basis of ex aequo et bonoonly if
the parties so agree. Similarly, in the Anglo-FrenchArbitrarion, the
Court of Arbitration, which was empowered by the parties to deIimit
certain continental sheffboundaries between France and the United King-
dom "in accordance with the rules of international law applicable in the
matter as between [the PartiesI2", held that its function was not to decide
ex aequo et bono.
369. The Court in the North Sea ConrinentalShelf Casesalsoadopted
the same basic perspectiveas the Truman Proclamation withrespect to the
relevance of geological factors in arriving at a delimitation in compliance
with equitable principles, placing paramount ernphasis on the physical
relationship between the land and the adjacent continental shelf 3.
"[Tl he Court entertains no doubt [that] ..the rnost fundamental
of al1the rules of law relating to the continental shelf, enshrined in
Article 2 of the 1958 Geneva Convention, though quite indepen-
dent of it,-[is] ...that the rights of the coastal State in respect of
the area of continental shelf that constitutes a natural prolongation
of its land territory into and under the sea exist ipsofacto and ab
initio,by virtue of its sovereigntyoverthe land, and asan extension
of it in an exercise of sovereign rights for the purpose of exploring
the seabed and exploiting its natural resources. In short, there is
here an inherent right4."
'I.C.J.Reports 1969, pp.46 and47,para.85.
YAnglo-French Arbirration(Cmnd. 7438), p. 22, para. 1.
'The focusof the TrumanProclamationon the mineralresources(as apposedto living
resources)ofthecontinentalshelf underscoreserelevanceof thegeologicalaspectsof the
shelf in arrivingat a delimitationor determinationof the vested rightofal statein
ofTshoreareas in accordancwith equitableprinciples. See in this connection para.196
above.
'I.CJ. Reports 1969. p. 22, par19.288 CONTINENTAL SHELF [153]
370. Thus, because the land is the legal source of the power whicha
State rnay exercise over territorial extensions seaward,the mat funda-
mental of al1the rules of law governingthe continental shelf, which must
be applied in accordance with equitable principles, rests on the physical
fact of the natural prolongation of a State's land territory into and under
the sea.
"What confers the ipsojure title which international lawattrib-
utes tothe coastal State inrespect ofitscontinental shelf,isthe fact
that the submarine areas concerned may bedeemed to be actually
part of the territory over which the coastal State already has
dominion,-in the sense that, although covered with water, they
are a prolongation or continuation of that territory, an extensionof
it under the sea. From this it would followthat whenever a given
subrnarine area does not constitute a natural4r the most natu-
ral-extension of the land territory of a coastal State, eventhough
that area may be closer to it than it is to the territory of any other
State, it cannot be regarded as appertaining to that State;+r at
least it cannot be soregarded in the face of a competingclaim by a
State of whoseland territory the submarine area concerned isto be
regarded as a natural extension, even ifit is less close to it'."
371. In viewof the above-quoted language, it followsthat a delimita-
tion which is consistent with the physical facts of natural prolongation
cannot possibly be inequitable, because there can be no contradiction
between the fundamental rule of natural prolongation and principles of
equity.
372. In sum, in the North Sea Continenral Shelf Cases the Court
enunciated the following basic rules and principles to be applied in a
delirnitation of a continental shelf between adjacent States:
"[Dlelimitation is to be effected by agreement in accordance
with equitable principles, and taking account of al1 the relevant
circumstances, insuch a wayasto leaveas rnuchas possibleto each
Party al1 those parts of the continental shelf that constitute a
natural prolongation of its land territory into and under the sea,
without encroachrnent on the natural prolongation of the land
territory of the other...PW.
373. In view of the foregoing, the Libyan Mernorial and the present
Counter-Memorial have both been drafted onthe premisesset forth bythe
Court in the NorthSea Continental ShelfCases that in the delimitation of
a continental shelf between adjoining States "it is precisely a rule of law
that calls for the application of equitable principles3"and that "delimita-
tion isto beeffectedby agreement in accordance with equitable principles,
and taking account of al1the relevant circumstances4". They have also
'I.C.J.Reports 1969.p.31, para43.
'lbid., p. 53, pa101(C) (1) [disposifif].
'Ibid., p. 5para 101(C)(I) Idispositijj. Il54] COUNTER-MEMORIAL OF LIBYA 289
been drafted in heedof the observationof the Court of Arbitration in the
AngleFrench Arbitration that there exists "a general norm that, failing
agreement, the boundary between Statesabutting onthe sarnecontinental
shelf is to be determined on equitable principles'".
374. Thisviewfound expressioninthe Libyan MemorialinSubmission
3 (positively) that:
"3. A delimitation which giveseffecttothe principleof natural
prolongation isone which respectsthe inherent ipso jure rights of
each State, and the assertion of such rights is therefore in accord-
ance with equitable principles2."
and in Submission 9 (negatively) that:
"9. A principleor method of delimitation whichdisregards the
ipsojure title ofa coastalState to the continental shelfconstituting
the natural proiongation of its land territory is, ipsoacto, illegal
and necessarily inequitab1e2."
It was also concluded in Submission 7 that:
"7. Whether the application of a particular method of delimi-
tation is in accordance with equitable principles is to be tested by
its result2."
375. It is on the basis of these established equitable principles, which
have been consistently keptin mind, that the Libyan Counter-Memorial
sets forth in Part IV, Chapter III belowthe practical methodforachieving
an equitable delimitation in the relevant circumstances of this case.
376. In marked contrast isthe failure of the Tunisian Memorial to
apply equitable principles to the determination of the delimitation lines
actually claimed by Tunisia in Submission II, and Chapters VI11 and IX
- proposals which not onlyfail to apply the terms of the Special Agree-
ment, but alsoare inconsistent withnumerous other passagesin the Tuni-
sian Memorial'.
377. While one may agree with the passage quoted with approvalby
Tunisia4from Judge Charles De Visscher,that the true functionof equity
asa part ofthe applicablelaw istoadaptthe lawto particular situations in
the interests of a justice more or less individualized,the Tunisian Memo-
rial confuses theissue in attempting to answer its own question, "What
then is an equitable result, and what are equitable principles5?"
378. The TunisianMemorialcorrectlyconcludesthat twofundamental
equitable principlesin the context of a continental shelf delimitation are:
(i) that each State is entitled to its own natural prolongation without
encroachment on the natural prolongation of a neighbouring State; and
(ii) that respectforthe geographical realities of natural prolongationdoes
'Submissions3Aand9rhavebcenconsolidatedintoSubmission9 in this Countcr-Mernorial
and Submission7 has bccome Submission10.
aSee Tunisian Memorial, para2.15and2.19 and, in particular.Chap.VII. Sec. 1.
Ibid., para.7.13.
51bid..paras7.07ff.290 CONTINENTAL SHELF il551
not require that compensationfor the advantages or disadvantages inher-
ent inthe physicalgeographical situationbemadeinan attempt to achieve
equity'.
379. However,the Tunisian Memorial goes astray in posing what it
pretends to regard as a dilemma: how can the proposition that equity
requires a "just result", whichthe Tunisians interpret as "equal treat-
ment", be reconciled withthe factual 'andnatural inequalities of natural
prolongation on which legaltitle is based2?
380. The dilemmaposedbythe TunisianMemorialisfalsebecauseit is
not "treatrnent" by any Court which causes the inequalities of nature
which prolongunder the sea the land territories of someStates more than
others; nor, the Courts agree, is it the function of equity to redress these
natural inequalities. "Treatment" in accordance with equitable princi-
ples refers tothe application of a particular method of delimitation and
consideration of the consequences-equitable or inequitable-arising
from application of that particular method in the factual circurnstances.
A "just result", therefore, is not intended to redress natural inequalities,
but to ensure that, giventhe fact of natural inequalities (which remain),
the applicationofa particular rnethodofdelimitation doesnot exaggerate
the consequences of a natural geographicalfeature. Moreover,the "just
result" cornes not necessarily fromexactly "equal treatment", but from
"equitable treatrnent".
381. The conclusions whichthe Tunisian Memorial seeks to derive
from this false dilernma are far from clear3,but appear to consist of an
attempt to Varythe application of the two principles which ithas called
"principes directeurs" because of the clearly erroneous claimof Tunisia
that in the current case the Court is confronted with "two" continental
shelvesrather than one as in the Norih Sea ContinenralShelf Casesand
the AngleFrench Arbitration.
382. However,when the actual relevant circumstances which charac-
terize the area are considered in light of equitable principles,the method
of delimitation appropriate to this proceeding is clear. Therefore the
applicable relevant circiimstances must now be considered.
SECTION2. The RelevantCircumstances
383. Pursuant toArticle 1 ofthe Special Agreementthe Court isasked
to take itsdecision,interdia, upon the basisof the relevant circumstances
which characterise the area, This request is entirely consistentwith the
request that the Court consider equitable principles, since, as demon-
strated above, the applicable equitable principles require a consideration
of the relevant circumstances which characterise the area. Indeed, the
equitableprinciples towhicb the SpecialAgreement referts ak,en together
'See Tuni~ionMernoriolparas. 7.0througb 7.09.
Ibid., pa7.10.
Vbid.,paras.7.Iff.i1561 COUNTER-MEMORIAL OF LIBYA 291
with the factual elernents relating to the area in question, are determina-
tive of the relevant circumstances. Here those circumstances are prirnar-
ily two-fold:
(i) the geologicalstructure of the shelf and its relation to the adjoin-
ing landmass; and
the geographic configuration of the coasts.
(ii)
384. The importance of these prirnary physical factors as relevant
circumstances with respect to the delimitation of the continental shelf has
been forcefully emphasized by the Court. In connection with the geologi-
cal aspect of natural prolongation the Court has stated:
"The importance of the geological aspect is ernphasized by the
care which, at the beginning of its investigation, the International
Law Commission took to acquire exact information as to itschar-
acteristic...The appurtenance ofthe shelf to the countries in front
of whose coastlines it lies, istherefore a fact,and it can be useful to
consider the geology of that slielf in order to find out whether the
direction taken bycertain configurational features should influence
delimitation because, in certain localities, they point-up the whole
notion of the appurtenance of the continental shelf to the State
whose territory it does in fact prolong'."
385. Similarly,the Court has stressed the importance of geographical
factors. With respect to the doctrine of the continental shelf:
"[Tl he Principle is applied that the land dominates the sea; it is
consequently necessary to examine closely the geographical config-
uration of the coastlines of the countries whose continental shelves
are to be delimited. This is one of the reasons why the Court does
not consider that markedly pronounced configurations can be
ignored; for,since the land is the legal source of the power whicha
State may exercise over territorial extensions to seaward, it rnust
first be clearly established what features do in fact constitute such
extensions2.''
386. Although Tunisia has attempted to raise a variety of factorsother
than geology and geography which it appears to suggest would fall within
the category of relevant circumstances, such factors are in reality irrele-
vant. Those faclors, which include .comparative econornics, flora and
fauna,climate, archaeology and the abyssal plain as a geological consider-
ation, have al1been disposed of in other chapters of this Counter-Memo-
rial3. The ensuing paragraphs of this section will demonstrate the
importance of the geologic and geographic circumstances in reaching an
equitable delimitation.
387. Guidance as to the precise nature of the factors which are perti-
nent to a determination of the geological and geographical "relevant
circumstances" in a particular case may be found in both the Norrh Sea
ContinentalShelfCases and the Anglo-FrenchArbitrution. In the North
'I.C.J.Reporis 1969p. 51, para. 95.
*Seeparas. 15 through 21 above.292 CONTINENTAL SHELF il571
Sen ContinentalShelfCases the Court held that account should be taken
of the general configuration of the parties' coasts, "as wellas the presence
of any special or unusual features'". Earlier portions of that judgment
make clear that the Court had in mind the relevance of concave and
convex or otherwise irregularly shaped coastlines (which rnay have
marked effectson a delimitation by means ofthe "equidistance" rnethod).
388. The nature of scientific relevant circumstances is also illustrated
by the AngleFrench Arbitration. In that case the Court noted that the
Channel Islands archipelago and the sea-bed and subsoil of the Golfe
Breton Normand formed a portion of the sarne landrnass as Norrnandy
and Brittany and that there was essential geological continuity as to the
rest ofthe Channel. This wassodespitethe fact that, a Fewnautical miles
to the north and northwest of the Guernsey and Alderney groups of
islands, the geomorphologyof the Channel was marked bya distinct fault,
known as the Hurd Deep, which the Court of Arbitration described as
"...that fault or series of faults [which] extends in a south-westerly direc-
tion for a distance of some 80 nautical miles ...and a depth of over 100
metres2". Significantly, the Arbitration Court found that the presenceof
the Hurd Deep should not affect the delimitation. The specificgeomor-
phological feature which it was considering, i.e., the Hurd Deep-Hurd
Deep Fault Zone. was not-
"a geographical feature capable of exercising a material infiu-
ence on the determination of the boundary either in the Atlantic
region or in the English Channel. The Court shares the view
repeatedly expressed by both Parties that the continental shelf
throughout the arbitration area is characterised by its essential
geological continuity. The geological faults which constitute the
Hurd Deep and the so-called Hurd Deep Fault Zone, even if they
be considered as distinct features in the geornorphology of the
shelf,are stilldiscontinuities in the seabed and subsoil whichdo not
disruPt the essential unity of the continental shelf either in the
Channel or the Atlantic region. Indeed, in cornparison with the
deep Norwegian Trough in the North Sea, they can only be
regarded as minor faults in the geological structure of the shelf;
and yet the United Kingdom agreed that the trough should not
constitute an obstacle to the extension of Norway's continental
shelf boundary beyond that major fault zone3."
389. Thus, notwithstanding the exteni of the Hurd Deep, it was found
to be immaterial. It is significant for present purposes that even incorn-
parison withthe Hurd Deep Fault Zone analysed by the Court of Arbitra-
tion, the purported series of crests and ridges upon which Tunisia so
heavily reliesto establish the existenceoftwocontinental shelvesas wellas
itsclaim to the area of continental shelf between the 50 and 300 metre
'I.C.JReporrs1969. p. 54, paraIO1(D)( 1) [dispositif].
AngleFrench Arbirrarion(Cmnd. 7438),p.24.para.9.
Ibid.pp.62 and 63,para. 107. il581 COUNTER-MEMORIAL OF LIBYA 293
isobathscan only beregarded (even if they.were to exist) as minor faults
in the geologicalstructure of the shelf which shouldnot exert any mean-
ingful influence onthe determination of the delimitation'.
390. It is not the purpose of this sectionof Libya'sCounter-Memorial
to continue cataloguing the numerous additional scientificfallaciesof the
Tunisian Memorial. These have already been considered at iength in
Chapter II of Part II, above. Rather, the relevant geologicaland geo-
graphical circumstanceswhichactuallycharacterize the continental shelf .
in question will now be considered.
A. The Physical andGeologica ltructureof theShelf
391. As demonstrated at paragraphs 263ff. above, the geologicalevi-
dence demonstrates the existenceof a singlecontinental shelfabutting on
both Libya and Tunisia devoid of any significant features that could
conceivably affect delimitation. That shelf forms a portion of the Pela-
gian Basin which is itself a geologic and physiographic unit forming a
componentof the stableNorth African plate. Indeed,the Pelagian Basin
is a northward continuation ofthe North African plate and therefore of
the North African landmass itself.
392. The continuity between-the North African landmass and the
Pelagian Basinis supported by the history of the geologic developmentof
the area2,by facies data3,and by the principal tectonic trend of the Sirt
Basin rift system.
393. Thus, a reviewof the predominant geologicalfactors leadsto the
conclusion that from a geological perspectivethe continental shelf in
question is a northward prolongation of the North African landmass.
Since equitable principles require that a delimitation leave to each State
that area of continental shelfwhichis its natural prolongation', geological
factorsalone require that the delimitation between Libya and Tunisia
proceed in a northerly direction seaward from Ras Ajdir. Any other
rnethod of delimitation would necessarily infringe upon Libya'snatural
prolongation, since'all of the continental shelf abutting upon Libya's
coastsisa northwafd pprhngation ofthe North African landmass. . Obvi-
ously,any delimitation proceedingin an easterly direction from the land
boundary would cut acroçs the natural northward prolongation of Libya
into and under the sea.
394. The practical method for effecting a delimitation which would
accord with Libya's geologican latural prolongationisconsidered indetail
in Chapter III of Part IV below. . .
@ lSet Fig 13 facingp. 106above.
'Sec paras263through274 above.
'I.C.J. Reports 1969, p. 22, para. 19. 294 CONTINENTAL SHELF [159]
B. The Geographic Configuration o he Coasts
395. Asdemonstrated inparagraphs 207through 209above,and inthe
accompanying Annex 2 to VolumeIII prepared by Drs. Blakeand Ander-
son concerningthe coasts of Tunisiaand Libya, the Libyan coastis virtu-
ally mono-directionalfacing northward. Onthe other hand the Tunisian
coast exhibits a wide range of orientations.
396. However,viewingNorth Africa as a whole, the most prominent
geographicconfiguration ofthe land area from which the North African
continental shelf projectsis the general east/west direction of the North
African coastline. The northward turn of the Tunisian coastline isan
anomalous variance to this general east/west trend which, as noted in
paragraph 114of the Libyan Memorial, is a classicexample of "an inci-
dental specialfeature from whichan unjustl)îabledifference oftreatment
could result'".
397. TIJUSg,eographically,the continental shelisnecessarilya north-
ward prolongationof the northward-facing coastsof Libya and ofTunisia,
sinceit lies, unquestionably,due north of those coasts. This is a result of
the configuration and nature of the coast from Gabes to Ras Ajdir and
further east which essentially followsthest/west directionof the overall
North African Coast. In fact, it is oot until approximately Ras Yonga, on
the Tunisiancoast, that the continental shelfappertaining to Tunisia could
possibly be regarded as projecting from the Tunisian coast in a non-
northerly direction,sincea projection froma coast running generallyinan
east/wwt direction must necessarily be northerly and any continental
shelf inuring to Tunisiasouth of the latitude of Ras Yonga is clearly a
prolongation of the Tunisian coast from Ras Ajdir to Gabes. Thus, at
least until Ras Yonga,geography as well as geologyrequires a northerly
delimitation. This isespeciallysosincethis Court has heldthat the actual
geography in question maynot be overlooked nor reshaped, but must be
taken as it exists2.
398. Significantly,the practical method of delimitation considered at
paragraphs 491 through 505belowisnotonlycompatiblewiththe geology
of the area, but is also consistent with the geography.Thus, when the
primary relevant circumstances are taken into account, they lead to but
one conclusion: that the method of delimitation suggested at those
paragraphs conforms entirely with equitable principles.
SECTION 3.New Accepted Trends in theThirdConference onthe Law of
the Sea
399. The Special.Agreementbetween the Parties specificallyrequests
the Court, in rendering itsjudgment, to consider the newâccepted trends
in the Third United Nations Conference on the Law of the Sea. That
@ I.C.J.Reporrs 1969, p. 50,91(italiadscd). Map 17facingp. 158illustratesthe
anomalousnature of this portion of the coast.an
'Ibid.p. 50para.91.conferencehasas itsgoalthe developmentof a legalframeworkwhichwill
be relevantto the economic,scientificand social conditions ofthe late 20th
Century.
400. The genesisof these newtrends was the United Nations General
Assemblyvotein January, 1971to hold the Third Lawof theSea Confer-
ence. The First Sessionof that Conferencewas heldin New Yorkin 1973
and concernedonlyorganizational matters. Thereafter, a SecondSession
was held in Caracas, Venezuelain 1974and a Third Session in Geneva,
Switzerland in 1975. The 1975Geneva Session resuIted in an Informa1
Single Negotiating Text. A Fourth Sessionin New Yorkin the spring of
1976 resulted in a Revised Single Negotiating Text. Subsequently, in
1977,an Informa1Composite Negotiating Text was produced. That text
has undergone three revisions,the latest of which is the present DCIT
whichisa result of the Ninth Sessionof the Conference,which was heldin
Geneva between28 July and 29 August 1980'.
401. Part VI of the DCIT considers the question of the continental
shelf. The definitionof the continental shelf adopted by the DCIT is of
suficient significance to require repetition in full. Thus, Article 76
provides:
"1. The continental shelfof a coastal State comprisesthe sea-
bed and subsoil of the submarine areas that extend beyond its
territorial sea throughout the natural prolongation of its land
territory to the outer edge of the continental margin, or to a
distance of 200 nautical miles fromthe baselines from whichthe
breadth of the territorial sea is measured wherethe outer edge of
the continental margin does not extend up to that distance.
2. The continental shelf of a coastal State shall not extend
beyond the limits provided forin paragraphs 4 to 6.
3. The continental margincomprisesthe submergedprolonga-
tion of the land massof the coastal State, and consistsof the sea-
bed and subsoilof the shelf, the slope and the rise. It does not
includethe deep ocean Boorwith its oceanic ridgesor the subsoil
thereof.
4. (a) For the purposes of this Convention,the coastal State
shall esta%lishthe outer edgeof the continental margin wherever
the margin extends beyond 200 nautical milesfrom the baselines
from whicb the breadth of the territorial sea is measured, by
either:
(i) A line delineated in accordance with paragraph 7 by
referenceto the outermost fixedpointsat each of which
the thicknessof sedimentary rocks isat least 1per cent
of the shortest distance from such point to the foot of
the continental slope;or
(ii)'Aline delineated in accordance with paragraph 7 by
reference to fixed points not more than 60 nautical
miles from the foot of the continental slope.
'Seefn.3 atp. 5 above.296 CONTINENTAL SHELF [1611
- (b) In the absenceof evidence tothe contrary, the foot of the
continental slope shnll be determined as the point of maximum
change in the gradient at its base.
5. The fixedpoints comprisingthe line of the outer limits of
the continental shelf on the sea-bed, drawn in accordance with
paragraph 4(a) (i) and (ii), either shall not exceed350 nautical
milesfrom the baselines from whichthe breadth of the territorial '
sea is measured or shall not exceed 100 nautical miles from the
2,500metre isobath, which is a lineconnectingthe depth of 2,500
metres.
6. Notwithstanding the provisionsof paragraph 5, on sub-
marine ridges, the outer limit of the continental shelf shall not
exceed 350 nautical miles from the baselines from which the
breadth of the territorial sea is measured. This paragraph does
not apply to submarine elevationsthat are natural componentsof
the continental margin,suchas itsplateaux, rises,caps,banksand
spurs.
7. The coastal State shall delineatethe seaward boundaryof
its continental shelf wherethat shelfextendsbeyand200 nautical
milesfrom the baselines from whichthe breadth of the territorial
sea is measured by straight linesnot exceeding60 nautical miles
inlength, connectingfixedpoints,such pointsto be definedby co-
ordinates of latitude and longitude.
8. Information on the limits of the continental shelfbeyond
the 200 nautical mile exclusiveeconomic zoneshall be submitted
by the coastal State to the Commission on the Limits of the
Continental Shelfset up under annex II on the basis of equitable ,
geographical representation. The Commission shallmake rec-
ommendations to coastal States on matters related to the
establishment of the outer limits of their continental shelf. The
limits of the shelf established by a coastal State on the basis of
these recommendations shall be final and binding.
9. The coastal State shall deposit withthe Secretary-Gen-
eral of the United Nations charts and relevant information,
including geodeticdata, permanently describingthe outer limits
of its continental shelf. The Secretary-General shall give due
publicity thereto.
10. The provisionsof this article are without prejudiceto the
question ofdelimitation ofthe continental shelf betweenadjacent
or opposite States."
402. By contrast, the 1958 Geneva Continental Shelf Convention
defined, inrelevant part, the term "continental shelf"as referring "to the
seabedand subsoilofthe submarine areas adjacent to the Coastbut outside
the area of the territorial sea, to a depth of 200 metres or, beyond that
limit, to wherethe depth of the superjacent watersadmits of the exploita-
tionof the natural resources ofthe said areas". .Thus,although the DCIT
largely follows Article 1 of the 1958 Continental Shelf Convention in 11621 COUNTER-MEMORIAL OF LIBYA 297
providingthat "the continental shelf ofa coastal State comprisesthe sea-
'bedand subsoilof the submarine areas that extend beyond its territorial
sea", the text of Article 76 rejects bathymetry as a primary definitional
element.
403. In short, the DCIT adopts the concept of natural prolongation
enunciated by this Court in the North Sea ContinentalSheVCases. In
paragraph 19 of that Judgment the Court referred to:
"[Tl he mostfundamental of al1the rules of lawrelating to the
continental shelf,enshrined in Article 2of the 1958Geneva Con-
vention,though quite independent of it,-namely that the rights
of the coastal State in respect of the area ofcontinental shelfthat
constitutes a natural prolongation of its land territory into and
under the sea exists ipso facto and ab inifio,by virtue of its
sovereigntyover the Iand, and as an extensionof it inan exercise
of sovereignrights for the purpose of exploring the seabed and
exploitingits natural resources. In short, there is here an inher-
ent right'."
404. It may therefore be said that Article 76 of the DCIT, by defining
the continental shelfn terms ofthe natural prolongationof land territory,
isnot enunciating a newtrend in the lawof the sea but is rather codifying
the principleofnatural prolongation described inthe NorthSea Continen-
tal Shelf Cases.
405. Notwithstanding thisessential continuity of the definitionof the
continental shelf fromthe 1958Conventionthrough the NorthSea Conti-
nentalSheifCases and intothe DCIT, the DCITdoes injecta significantly
new definitional element. The DCIT text providesthat the continental
shelf shall extend to the outer edge of the continental margin or to a
distance of 200 nautical miles fromthe baselinesfrom whichthe breadth
of the territorial sea is measured, whicheverdistance is greater e.
406. This concept of the extensionof the continental shelf from the
baselines ofthe territorial sea to a distance of 200 nautical miles repre-
sents a radical departurefrom the definition of the continentalshelf as
contained in Article 1of the 1958Convention, which reflectedthe state of
the Iawexisting at the time of the decisionin the 1969North Seo Conti-
nentalSheif Cases.
407. Article 1of the 1958Conventiondefinedthe continental shelf as
follows:
"For the purpose of these articles, the term 'continentalshelf' is
used as referring (a) to the seabed and subsoil of the submarine
areas adjacent to the coast but outside the area of the territorial
sea, to a depth of200 metres or, beyond that lirnit, to where the
'I.C.J. Report1969, p22, para.19.
'DCIT,Art. 76(1). It maybc notcdhowever,that thisprovisiononly applies tointerna-
tionallyrecognizedbaselinesincontrasit~ the contraversialbaselinespromulgatedbyTuni-
sia in 1973, the validityof whichLibyawoulddcny. CONTINENTAL sHELF il631
depth of the superjacent waters admits of the exploitation of the
natural resourcesof the said areas; (b) to the seabed and subsoilof
sirnilar submarine areas adjacent to the coasts of islands."
408. Significantly, the DCIT rejects the 1958 Convention's definition
of the continental shelf in terrns of bathymetry'. Therefore, sincethe new .
trends of the Law of the Sea Conference are specifically required to be
consideredby the Court under the Special Agreement, the DCITalso does
away with a primary portion of Tunisia's argument. Tunisia specifically
contends at paragraph 8.18of its Memorial thatthe offshoredepths of the
continental shelfmay be used todemonstrate the existenceof what Tunisia
refers to as the "Tunisian shelf". In making this argument, Tunisia relies
upon what it describesas a gentle descent towards the east of the continen-
tal shelf with contours which reflect the contours present in Tunisia's
landmass. However,inviewofthe DCIT's rejection of bathymetry as the
determinant elernentofthe continental shelf, and its relegation of bathym-
etry to a subordinate role in the definition, to be applied only in circum-
stances not present in this case, this bathymetrical argument seemsclearly
out ofstep with the newtrends reflectedin the.DCIT. Bathymetry simply
cannot be regarded as a factor of any importance in determining whether
the continental shelf in question isthe natural prolongation eastward from
theGabes to Ras Kaboudia coastline or northward from the Tunisian and
Libyan coastlines adjacent to Ras Ajdir.
'Indeed,the workingpapers and cornmitteetexts contained in the Oficial Records of the
Third United Nations Conferencon the Law ofthe Seo reject bathymetry as the primary
elementof the definitionofthe continentalshelf. See. e.g..Text presentedby the Chairrnan
of the Second Committee, United Nations, Oficial Records of the Third
United Nations Conference on the hw of the Sea. Fourth Session, U.N. Doc.
A/CONF.62/WP.g/Rev. l/Part 11 (1976), Art. 64; Text presentedby the Chairman
of the Second Committee, United Nations, Oficiu Rlecords of the Titird United
Nations Conterence on the Law of the Sea, Third Session, U.N. Doc.
A/CONF.62/WP.8/Part Il (1975), Art. 62; Working paperof the Second Cornrnittee:
main trends, UnitedNations,Ofici01Records of the Third UniredNations Conferenceon
the Lawof theSen, SecondSession,U.N. Dm. A/CONF.62/L. 8/Rev. 1/App. 1 (1974).
prov. 68; Japan: revised draft article on the continental shelf. United Nations,l
Records of the Third United Nations Conference onthe Law of the Sea. Second Session,
U.N. Doc. A/CONF.62/C.2/L.31/Rev. 1 (1974). In addition, many negotiating-group
texts and informal proposalsand suggestionsnot reproducedin the Oficial Records reflect
the same change. See. e.g., CompromiseSuggestions by the Chairman of Negotiaiing
Group6, U.N. Doc.A/CONF.62/L.37 (1979), Art. 76,reprinted inStiftung Wissenschaft
und Politik, Forschungsinstitutfur Internationale Politik undSicherheit,enteder
Drirren Serechrs-konferenz der VereinigrenNationen - Genfer Session 1979. at401.
(Many of the documentscited in this sectionof the Counter-Memorialare reprinted in this
collection,whichwillbe hereinafter cited as SWP - GenterSessionU.S.S.R.:Informal
Proposal. U.N. Doc. NG.6/8 (1979), reprinted in SWP-Cenfer Session 1979. at 640;
Informal Suggestion by Ireland, U.N. Doc. NG.611 (1978), reprinted in SR'P-Genfer
Session 1978.at 827;InformalSuggestionbythe Arab Croup, U.N. Doc.NG.6/2 (1978),
reprinted inSWP-GenferSession 1978.at 829; Informa1Suggestionby the U.S.S.R., U.N.
Doc. C.L/Informal Meeting114 (3978). reprinted in SWP-Genter Session 1978, at 946.
Copiesof relevant pagesare attachcd as Anne110,Vol.II. As noted at para. 317 above.
bathymetry, under the DCIT, is relevant onlyin dettrmining outer limitsof the continental
shelf under circumstanceswhich are clearly not applicable to this case.il641 COUNTER-MEMORIALOF LIBYA 299
409. Of equal importance with the eclipseof bathymetry is the signifi-
cant divergence between the DCIT and the Geneva Convention with
respect to the rules for determining the delimitation of the .continental
shelf betweenStates with opposite or adjacent coasts. The Geneva Con-
vention provided in Article 6 as follows:
"1. Where the same continental shelf isadjacent to the territo-
ries of twoor more States whosecoastsare oppositeeach 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 isjustified by special
circumstances, the boundary is the median line, every point of
which is equidistant from the nearest pointsof the baselines from
which the breadth of the territorial sea of each State is measured.
2. Where the same continental shelf is adjacent to the territo-
ries of two adjacent States, the boundary of the continental shelf
shall be determined by agreement between them. In the absence
of agreement, and unless another boundary line is justified by,
special circurnstances, the boundary shall be deterrnined by appli-
cation of the principleofequidistance fromthe nearest pointsof the
baselines fromwhich the breadth ofthe territorial sea ofeach State
is measured.
3. In delirniting the boundaries of the continental shelf, any
lines which are drawn in accordance with the principles setout in
paragraphs 1and 2 of this article should bedefined with reference
to charts and geographical features as they exist at a particular
date, and reference should be made to fixedpermanent identifiable
points on the land."
410. By contrast, Article 83 of the DClT provides:
"1. The delimitation of the continental shelf between States
with opposite or adjacent coasts shall be effected by agreement in
conformity with international law. Such an agreement shall be in
accordance with equitable principles, employing the median or
equidistance line, where appropriate, and taking account of atl
circumstances prevailing in the area concerned.
2. Ifnoagreement can be reached withina reasonable periodof
time, the States concerned shall resort to the procedures provided
forin Part XV.
3. Pending agreement as provided for in paragraph 1, the
States concerned, in a spirit of understanding and CO-operation,
shallmake every effort to enter into provisional arrangements of a
practical nature and,during this transitional period, not tojeopard-
ize or hamper the reaching of the fina1agreement. Such arrange-
ments shall be without prejudice to the final delimitation.
Where there is an agreement in force between the States
4.
concerned, questions relating to the delimitation of the continental
shelf shallbe determined inaccordance with the provisionsof that
agreement ."300 CONTINEKTALSHELF
411. This cornparisonof Article 83 of the DCIT to Article 6 of the
Geneva Conventiondemonstrates both a continuity, to the extent that
both articles cal1for a delimitation by agreement betweenthe parties and
point out the importance of relevant or special circumstances to that
delimitation, and a new trend, to the extent that the DCIT abandons the
conceptof equidistanceas a rule and providesthat an agreement between
the parties shall be in accordance with equitable principles'.
412. The portionofArticle 83concerned withequitableprinciplesisno
doubt based uponparagraph 101(C) (1.)ofthe dispositifin the North Sea
ContinentalShelJ Cases, which States:
"[D]elimitation is to be effected by agreement in accordance
with equitable principles, and taking account of al1the relevant
circumstances,in sucha wayasto leaveas muchaspossible toeach
Party al1 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...'".
413. Therefore, in view of the foregoing, it is clear that by entering
into a Special Agreement that requests the Court to render a judgment
based in part upon "the new accepted trends in the Third Conferenceon
the Law of the Sea", the Parties were mutually requesting the Court to
decide in accordance with the followingpropositions:
(1) that equidistance is not an accepted residualrule, failing agree-
ment between the Parties on a delimitation, but is applicable
only where agreed to by the Parties as equitable3;
(2) that the natural prolongation rule is the cardinal equitable rule
of delimitation;
(3) that bathymetry isnot a factor of any importanceindetermining
the extent of the Parties' natural prolongation; and
(4) that equitable principles must be controlling.
'Article 83 appcars to have been among the more dificult to negotiate because of the
problemspresentedinobtaininga consensus betweenthe States supportingthe equidistance
lincand the adv-tesofequitablcprinciples. Secthe followingdofumcnts (not reproductd
inthe OficialRecords):Reportofthe Chairman onthe workofNegotiating Group 7U.N.
Doc.NG.7/39 (1979), reprintcd in SWP-GenferSession 1979.at 681; Statement by the
Chairman made at the 28th meetingof NC.7'prepared for the last stries of negotiationsof
the Group, U.N. Doc.NG.7/26 (19791, reprinted in SWP-Genfer Session1979. at 645.
The informalproposaisof severalStates gaveequal weightta the considcrationsof equidis-
tance and equitablc principlcs;sec, cg., Mexico:Informal ProU.N.lDm. NG.7/29
(1979), reprinted in SWP-GenjerSession 1979,at 665; lvoryCoast: Informai Proposal,
U.N.Doc. NG.7/35 (1979) (withdrawnby U.N. Doc.NG.7/35/corr. 1(1979)), rcprinted
inSWP-Genfer Session1979.at 674 and 675. (Copies orrelevant pages are attachcd as
Annex III, Vol. II.The language fihally agrttd upon. howevcr,docs providc that the
agreementbctwccn the parties is to bc effcctcd in accordancc with equitablc principles,
taking an quidistance line inro consideration only whcrc appropriatc.
' I.C.J.Reports 1969.p. 53, para. lOI(C)([dispositijl.
'As has been noted at para. 309 above. both Parties have rcjcctcd the application of
cquidistance in this case.LI661 COUNTER-MEMORIAL OF LIBYA 301
414. Insum, a consideration of the trends in the Third Conference on
the Law of the Sea confirrns that the equitable principles considered at
paragraphs 363 through 382 above, and the relevant circumstances con-
sidered at paragraphs 383 through 398 above, including the cardinal
principle of natural prolongation, are elements which the Court is
requested by the Parties to consider in reaching itsjudgmentAs dernon-
strated in the ensuing sections of this Counter-Mernorial. each of those
considerations supports Libya's view of both the principles and rules of
international law and the practical method of delimitation which are
applicable in this case. PARTIV
THE PRACTICALMETHODFORTHE
APPLICATION OFTHE PRINCIPLES
AND RULES
CHAPTER1
THE SPECIAL AGREEMENT
SECTION1. The Terms of theSpecialAgreement
416. Articles 1through 3 of the Special Agreement specifythe ambit
within whichthe Court is requested to render judgment in these proceed-
ings. The.English translation of those Articles reads as follows:
"ARTICLE 1
The Court is requested to render its judgment in the following
rnatter:
What principlesandrules of international law may be applied
for the delimitation of the area of the continental shelfapper-
taining to the Socialist People'sLibyan Arab Jamahiriya and
to the area of the continental shelf appertaining to the Repub-
licofTunisia,and the Court shalltake itsdecisionaccordingto
equitable principles, and the relevant circumstances which
characterisethe area, as wasthe newaccepted trends in the
Third Conference on the Law of theea.
Also, the Court is further requested to clarify the practical method
for the application of these principlesand rules in this specificsitua-
tion,soas to enable the experts of the twocountries to delimit these
areas without any ditliculties.
ARTICLE 2
FoIIowingthe deliveryof the judgment of the Court, the two Parties
shallmeet to apply these principles and rules in order to determine
the lineof delimitationof thearea of the continental shelfn-
ing to each othetwo countries, with a view to the concluofan
treaty in this respect.
ARTICLE 3
In casethe agreement mentionedin Article 2 isnot reached withina
period of three months, renewable by mutual agreement from the
date of delivery of the Court's judgment, thewo Parties shall
together go back to the Court and request any explanationsor
clarifications whichwould facilitate the task of the two delegations
to arrive at the lineseparating the two of the continental shelf,
and the two Parties shall comply withthejudgment of theCourt and
with its explanations and clarifications."11721 CounER-MEMoRIAL OF LIBYA 303
417. Article 1 of the Special Agreement asks the Court to issue a
decision articulating the principles and rules of international law which
apply to the delimitation by the Parties of the areas of continental shelf
appertaining to the two States', To facilitate the task of delimitation
reserved by the Parties to themselves,this Article aIso requests the Court
to clarify the practical method forapplication of those principles and rules
by the experts of both Parties.
418. Followingdelivery of the judgment of the Court, Article 2 pro-
videsthat the Parties shall meet toapply the principlesand rules embodied
in that judgment "to determine the line of delimitation of the area of the
continental shelf appertaining to each of the two countries". It is impor-
tant to note that this isan obligation of the Parties, to beperformed by the
experts mentioned in Article 1, paragraph 2 of the Special Agreement.
419. Article 3 recognizesthat agreement on a lineof delimitation (or
"conclusion of a treaty in this respect") may notbe achieved within the
tirne periods specifiedin the Special Agreement. Accordingly, Article 3
providesfor further recourse to theCourt for any explanations or clarifica-
tions which would enable the "two delegations" to arrive at the line
separating the two areas of the continental shelf. Thus, Article 3 protects
the eflectivenessof thejudgment of the Court within the frameworkof the
Special Agreement.
SECTION2. The Structure and Limits of the Special Agreement
420. By its terms. the Special Agreement draws a clear distinction
between (i) principles and rules of international law; (ii) application of
those principles and rules by the Parties "in this specificsituation" by a
practical method indicated by theCourt; and (iii) the delimitation of the
areas of continental shelf appertaining to the two States through determi-
nation of a lineof delimitation. This is apparent in the second paragraph
of Article 1, in Article 2, and in Article 3. There is no inconsistency.
(i) the Court is to
Indeed, there is a consistent and uniform design:
indicate the principles and rules of international law and the practical
method fortheir application; (ii) the experts appointed by the Parties are
"to determine the line of delimitation of the area of the continental shelf
appertaining to each of the twocountries" by applying these principlesand
rules by the practical method ciarified by the Court; and (iii) the delega-
tions of the Parties are toconclude "a treaty in this respect". Le.,to arrive
"at the line separating the two areas of the continental shelf ".
421. Viewedas a whole,therefore, the SpecialAgreement requests the
Court todetermine the applicable principlesand rulesof international law;
to clarify the practical method by which the Parties will apply those
principles and rules; and to provide additional explanations and ciarifica-
'Article 1Statesthat the judgment shall reflectequitableprinciplesand the relevantcircum-
stanceswhichcharacterize-thearea, as wellas the newacceptedtrends in the Third Confer-
enceon the Lawofthe Sea. 00th Parties agree.however,that the Special Agreementdoes
not confer poweron the Cototdecidethiscaseex aequo erbono. See LibyanMernorial,
para. 6 and TunisianMernorial.par2.24.304 CONTINENTAL SHELF il731
tions if the Parties are unable to determine the lineof delimitation subse-
quent to delivery of the judgment of the Court. In view particularly of
Article 3 of the Special Agreement, it is apparent that "application" by
the Parties and their experts of the principles and rules set forth in the
judgment cannot be restricted to a mere mechanical plotting of coordi-
nates, or to a mere mechanical drawing of lines from point to point or on
an azimuth'. These conclusionsare supported by the ordinary and natu-
ral meaning2of the language of Articles I through 3.
422. At this point it becomes important to consider a fundamental
preliminary question. This is presented by the fact that the Special
Agreement.was signed and ratified by both Parties in full knowledgethat
there was no existing delimitation agreement between them of their terri-
torial sea boundary3. The importance of this point cannot be overstressed
,
since it conclusively confirms the Libyan interpretation of the Special
Agreement and conclusively cantradicts the Tunisian interpretation.
423. It isappropriate to point out that the Tunisian Memorial concedes
that the role of the Court does not extend to the delimitation of the
territorial sea4. ln this respect, there appears to be common cause
between the Parties, since Libya agrees that it isobvious that the Special
Agreement only rzlates to continental shelf delimitation and does not
extend to the territorial sea boundary. This issupported and confirmed by
the language of Article 76, paragraph 1 of the DCIT (incorporated by
reference into the consideranda before the Court by Article I of the
Special Agreement), which provides as follows:
'As stated in para. 7ofthe Libyan Memorial: "The expresspurposeof the requestmadeto
the Court inthat paragraph isto obtainsufficientclarificationofthe practicaimcthodforthe
applicationof theseprinciples andrules to enablethe expeofthe twocountriesto delimit
the areas without any difficulties."
It isapparent that in interpreting the Special Agreement effect shoube given to the
principles laid downin Art. 31 of the ViennaConventionon the Law of Treaties. Art. 31
states"A treaty shall be interpretegood faith in accordancewith the ordinary meaning
to be giventa the terms of the tre...".U.N. Doc.AlCONF.39127 (1969), opened for
signature 23 May 1969, Oficial Records ofthe UniredNnriom Conferenceon the Low of
Treaties (Documents) 287,reprintedinInternationalLego1Materials. Vol.8, 1969.pp. 691
and 692 (entered into force7 Jan. 1980). (Copiesof thesc pagesare attached as Annex
112, Vol.II.) The United Nations Conferenceon the LawofTreaties adoptedthe Conven-
tion on 22 May 1969. Tunisia accededto the Conventionon 23 June 1971.
'As stated in the Libyan Memorial, "Libya has made no unilateral delimitation of the
territorial sea boundaryas such with TunisiaLibyan Memorial, para. 48. Nor has there
been any agreement between the Parties as to the location and direction of that boundary.
As further stated in theibyan Memorial: "Neither the 1973 Tunisian Law nor Decree
purportsto determine the territorial sea boundarybetween Libyaand Tunisia. Indecd,the
maritime limits between Libyaand Tunisia havenever been agreed." Ibid., para. 57.
'See TunisianMemorial, para. 9.01,stating that the delimitationis"...the areas of the
continentalshelfappertainingrespectivelyto eachofthe two Parties.that isto Say,the areas
of the sea-bedwhichare subject tothe legalrégimeof the continentalshelf, whichexcludes.
obviously,those subject to the legal régimeof the territorial sea". COUNTER-MEMORIAL OF LIBYA
"The continental shelf of a coastal State comprises the
sea-bed and subsoil of the submarine areas that extend
beyondits territorial sea throughout the natural prolon-
gation of its land territory to the outer edge ofthe conti-
nental margin, orto a distanceof200 nautical milesfrom
the baselines from whichthe breadth of the territorial
sea is measured wherethe outer edge of the continental
margin does not extend up to that distance1".
A continental shelfdelirnitation,therefore, must commenceatthe pointof
intersection wherethe territorial sea boundary between two States meets
the outer lirnit of their respectiveterritorial seas.
424. The Tunisian position as'to construction of a shelf bopndary
implies almost ineluctably that a future territarial sea haundary must
followthe same line of direction as the shelf boundary followsfrom the
frontier point on the coast. While the Tunisian Memorial is unequivocal
in asserting that although the delimitation by the Parties "excludes,obvi-
ously,those subject tothe legal régimeof the territorial sea2",it neverthe-
less specifiesthat:
"The line inquestion must, therefore, bedrawn fromthe
outer limit ofthe territorial sea ofthe twocountries,even
if it has to be constructed as from the frontier point on
the coast2."
This latter contention could lead to a serious probIem. If a line is con-
structed "as fromthe frontier pointonthe coast" (as Tunisiasubmits) it is
inescapablethat at some point that line will necessarily cross orintersect
the outer limit of the territorial sea of one or another Party (measured
from the mean low-water mark or from a baselineacceptable in interna-
tional law). Consequently, Tunisia'sclaims as to a starting-point for a
lineof shelf delirnitation,as set forth in its Memorial,willineffectrequire
selection of a termination point for an irnaginary line of territorial sea
delimitation and thus forecloseany meaningful negotiationor discussion
relating to territorial sea delimitation between the Parties.
425. Ajthough the Libyan Memorial indicated Libya's viewson the
questionof where the appropriate territorial sea boundary might be when,
if and as delimited between Libyaand Tunisia3,its positionwascarefully
'Althoughthe continentalshelf as legallydefined beginsat the outer limit of the territorial
sea, this docsnot alter the fact that, physically, the continental shelf beginswhere the land
ends and thewater beginsand that the area up to the mean low-watcrmarkshouldbctakcn
intoaccount incalculatingtheareasof continentalshelf which,according toa givendelimita-
tion,ppertain toa State. (See para. 430belandSubmission12inthe Libyan Memorial
and also Submission Il in this Counter-Mernorial.below.)
Tunisian Memorial.para.9.01
"However,as far as Libyaisaware,thcre ha5ncvetbcenan explicitagreementondelimita-
tion of the territorial seabetwccn Libya (or Tripolitania) and Tunisia,although il is clear
that the territorial sea boundary could well start from pillar 31 at Ras Ajdir." Libyan
Mernorial,para.47. The LibyanMemorialfurther Statesthat "in the lightof the boundary
directionestablishedbythe 1910Convention.rnaybeassumedthat the maritime boundary
between LibyaandTunisiawouldcontinueseawardfromRasAjdir ina northerlydirection."
Ibid., para. 57. 306 CONTINENTAL SHELF il751
formulated to avoidany implication that the Court would be expectedto
make a rulingto the sameeffect (or evena ruling whichwouldbringabout
that effectdefacto, if not dejure). In sharp contrast, under the interpre-
tation sought by the Tunisian Memorial, Tunisia will for al1 practicai
purposesforeclosefuture considerationofthe locationofthe territorial sea
boundary.
426. Toillustrate: the invalidcontentionadvancedinparagraph 9.02of
the Tunisian Mernorial-that "the delimitation line' to be determined
should not, in any event, pass to the westof the ZV-45" line as far as the
50-metre isobathW~stablishes by necessary implication: (i) that
although there has been nodelimitation of territorial sea as such, never-
theless the line for shelfdelimitation (being constructed "as from the
frontierpoint on the coast") shouldcommenceat a point lying nofurther
Westthan at the intersection ofa 45" azimuth from Ras Ajdir with the
outer lirnit of.the Libyan territorial sea; (ii) that any [future] line for
territorial seadelimitation wouldlogicallybe expectedtoterminateatthat
same point; and (iii) that the territorial sea delimitation linewould also
logicallybe expected to connect the point of commencement (Ras Ajdir)
and the pointofintersection bya lineofshortest distance or astraight line.
It is difficult(if not utterly impossible) to draw any other inference from
Tunisia's contentionconcerning the commencement point for a line of
continental shelf delimitation.
427. This problem is compounded (not simplified) by Tunisia'sSub-
missions2. Whereas Libya (in its Memorial, its Submissions,and in this
Counter-Mernorial) does not request the Court to indicate the precise
starting point fora lineofdelimitation,Tunisiaseems to beunaware of the
necessary implication ofits ownsubmissions. It is therefore not possible
to accept the Tunisian submissionsas to the line(s) of shelf delimitation
without, at the same time, accepting the point at which those lines are to
commence, prejudging foral1practical purposesthe locationof the territo-
rial sea boundary.
428. A related point isofcoursethat this confirmsthe Libyan interpre-
tation of the Special Agreement that it is only forthe Parties (and their
experts) to specifyor construct the lineof delimitationin accordance with
the principles and rules of international law stated by the Court and by
using the practical method clarified by the Court for the application of
those principlesand rules in this specificsituation. Since it is not known
wheretostart the line,there may besubstantivedifficultiesinaiminga line
whichbeginsin onespot rather than another. For example, wouldeither
of the first two Tunisïan lines, the "line of crests" line suggested by
'Presumably-thwords"delimitation lirefertoashelf,andnota territorialsea,"delirni-
tation line",butthe choiceof suchan undifferentiated enpyTunisiais felicitously
ambiguous.
TunisianSubrnissionII.1apparentlyrequests"aline which woultppreciablydepart
[rom..lines"comrnencingal the frontier, illas they areas doingpreciselythatby
@@ Figs.9.01 and9.0ofthe TunisiaMernorialidem as triTunisianSubmissionsII.2(a) and
1, 194, 19II.Z(b), which are notonly illustratedby Figsand.9.13 but are also specifically
expressedin termsof rcquestinglinesdrawn"at the Tuniso-Libyanfrontier". [1761 COUNTER-MEMORIALOF LIBYA 307
paragraphs 9.06 through 9.08 of the Tunisian Memorial and the "abyssal
plain" line suggestedin paragraphs 9.09 through 9.11 thereof, remain
substantively the same if the territorial sea boundary were agreed or
established at an appropriate point twelvemilesdue north of Ras Ajdir?
It issubmitted that this is not the case, and indeedthe Tunisian Memorial
and the Tunisian submissions'in constructing the lines either from the
land boundary point of termination or ."as from" that point, confuse the
issue hopelessly.
429. Since the lack of agreement as to a territorial sea boundary
rendersthe precisionofan exact linea fruitlessendeavour,the terms ofthe
Special Agreementshouldtherefore not be readas implyingthat al1of the
elements"right up to the ultimate point beforethe purely technical work"
are within the purviewof the judgment to be entered in this proceeding,
becausethere can be nomorecertainty for the determination of a starting
"point" for a line at the edge of the territorial sea than there is for the
determination of the outermost point, a matter expressly conceded by
Tunisia2.
430. Consistent with this conclusion,therefore, Libyan Submission5
(Submission 6 in this Counter-Mernorial) indicates that the method of
delimitation should reflectthe direction of "aprolongation tothe north of
the continental landmass ..northward of the terminal point of the land
boundary". Thisdoesnot indicatewherethe starting point for anydelimi-
tation should occur, either at the end of the land boundary orat a point
"northward" frorn that land boundary at the edge of the territorial sea.
Libyan Memorial Submission 12 (Subrnission 11 in this Counter-Memo-
rial) doesnot respondto this pointeither: it merelyindicates that in order
to evaluate the equity of any delimitation "the wholeof the sea-bed and
subsoilbeyondthe low-watermark along the Coastof each Party is to be
taken into account"; this is for purposes of computation, and not for
delimitation as such.
SEflION 3. TheTunisianlnterpretationof the Special Agreement
431. Inaddition to the error discussedaboveinSection2relating to the
incongruity of a specific "line of delimitation" in the context of an
unresolvedterritorial sea boundary, it becomes increasinglyapparent that
the interpretation of the Special Agreement espoused by Tunisia in its
Memorial does not reflect the ordinary or natural meaning of its termsa.
'See TunisianMemorial,paras. 9.01through 9.37and the subrnissions,-in particular para.
211.,para9.11.para. 9.25,paras.9.30and 9.33and TunisianSubmiss11.and 11.2at p.
'lbid.,.para. 9.35.
Inthis context.secthe 1922ArbitrationAwardbetween~alombiaand Venezuelai,nwhich
iss-s similar to thosc here wcre considered in connection withthe interpreantion of
arbitration agreement. (In MCNAIR,Arnold N. and LAUTERPACHT Si,r Hersch (eds.):
AnnualDigest ofPublicInrernaiionlilLawCases1919-1922. London,Longmans,Green
& Co.. 1929,CaseNo. 262,pp. 371and 372.) (Copiesofthesepagesareattached asAnnex
113,Vol.II.)308 CONTINENTAL SHELF [1771
Part 1, Chapter IIof the Tunisian Memorial asserts quite an artificial
interpretation of the terms of the Special Agreement and misinterprets its
provisions in a manner which supports arguments made in Chapter IX
that the Court is asked to do everything but draw a line and that the
judgment should in effectdirect the Parties toadhereto oneof severallines
propose. by Tunisia.
432. Moreover, Tunisia's Submission11.1states that the delimitation
contemplated in Article 1 "should lead to the drawing of a line which
would not appreciably depart from" the two lines suggested in that Sub-
mission,and its Submission 11.2states that" [t] he delimitation linecould
either: (a) be constituted by a line" or "(b) be determined according to
[an] angle of aperture". These lines (as shownbelow) are either falla-
cious,or ill-founded,or both, and represent an exaggerated and arbitrary
extensionof Tunisianpretensionstothe east and south, encroachingclose
upon the Libyan shore.
433. Another misinterpretationof the Special Agreementby Tunisiais
its contentionthat Article 1contains two distinct questionswhich require
independent resolutionby the Court1. The "second question" proposition
rests on a misreading of Article 1of the Special Agreement which is both
iilogical and inconsistent with fundamental canons of treaty inter-
pretation, coupled with an incorrect inference drawn from North Seo
Continental ShewCases: Tunisia asserts that the Court rnust engage in a
more detailed analysis of the relevant circumstances characterizing the
area than occurred in the North Sea Confinenlal Shelf Case?, that the
Parties have invitedtheCourt "to go beyonda conservativeconceptof the
international law of the sea'" and that, in view of the so-called second
"practical method question"contained in the secondparagraph of Article
1, the Court should, in effect, construct the line of delimitation'.
434. Indeed theTunisianproposalsfor linesofdelimitation are not and
cannot be indications of "the practical method for the application of ...
[the] principles and rules in this specific situation". A line does not
constitute a "method". The line of delimitation isthe result of the appli-
cation of a method. Thus to suggest lineslacking an adequate logicalor
legal foundation is not to suggest"practical methods" to the Court.
435. Tosummarize: the ordinary and natural meaning of the terms of
the Special Agreement, read as a whole,does not indicate that al1of the
matters "right up to the ultimate point before the purely technical work'"
are to be within the ambit of the judgment to be rendered in this case.
(This is also confirmedby the analysis in Section 2 aboverelating to the
question of the territorialsea.) Such an onerous task cannot now be
'SeeTunisianMemorial, paras.2.03, 2.and2.24.
'Ibid., par2.20and 2.21.
'Ibid., paras.2through#2.24,
'Ibid.. par2.27. visited upon the Court by ignoring the natural and ordinary meaning of
the terms of the Special Agreement in the context of the whole text; by
misinterpreting the Special Agreement as containing "two questions" in
order to place a strained and unrestricted meaning on the second para-
graph of Article 1 of the Agreement;or byinsertinginthe Frenchtransla-
tion the words"avec précision", which donot appear inthe originalArabic
text'.
'In addition to isolating the second paragraph of 1rfrom the other Arts. of the Special
Agreement, Tunisia has imported into its French translation of that paragraph of the Arabic
text (andthence inio the Court's translation into English of the French transaaterm)
which the original Arabic textdoes not contain: "avec précision",or "precisely".The
irnported terrn isemployed to modify the request that the Court "specify" (Tunisia) or
"clarify" (Libya) "the practical way" (Tunisia) or "the practicalhod" (Libya) for the
application of the principles and rules in this çpecificsituation.ing of this term is
not reflected ine Special Agreementinitsoriginal Arabic version. SeeLibyoMernorial,
para. 7. (It shoutd also benoted that the United Nations translation of the original Arabic
text of the Special Agreement does not contain this term.) CHAPTERII
THETUNISIAN"METHODS"AND THEIR
INAPPROPRIATENESS
INTRODUCTION
436. Thejurisprudence on maritime delimitation,howeverlimited,and
the practice of States support the viewthat there is noobligatory method,
and not necessarilyany singlemethod, to be applied by the Parties. The
essentialrequirement is that the resultofthe method usedmust beequita-
ble; this proposition wasmbodied in Submission7 to the Libyan Memo-
rial (Submission 10 to this Counter-Memorial) . There are, however,
certain additional requirements which might seem too self-evident to
require stating,but which, for reasons whichwillbecomeapparent, Libya
does feel it necessary to state.
437. The first is that any proposed methodmust be founded on a view
of the facts which has some objective or scientific justification: facts
cannot be "inventedmto support a propsed method. The second is that
the method should have someinherent logicor rationale which is consis-
tent with both the law and the facts. It is in light of these requirements
that, in the sectionsthat follow,each of the methodsproposedby Tunisia
will be examined in turn.
THETUNISIAN"METHODS'"
SECTION1. Equidistance
438. Although Tunisia'swidelypublicized 1976Memorandum and its
position in negotiations were based uponequidistance, the Tunisian
Mernorial disclosesthat this isnot, now,a positionmaintained byTunisia.
Apparently, Tunisiainits Memorialhas lately cornetothe conclusionthat
even application of the equidistance method does not produce a line of
delimitation as far inclined to the south and towards the Libyan Coastas
Tunisiawouldlike itto be. In any event,and givenalsothat the method is
not one required by law, equidistancecan be set aside for the present as
inapplicableinthese proceedingsbycommon accord between theParties2.
@ ' Sy Map 18 facingp. 180which graphically portrays the Tunisianclaimr as set forth in
their Mernoranduniofy 1976 and in the Tunisian Mernorial.
In this connectionSubmissio8,10and II in the Libyan Mcmorial arc repeated in
reorderedforrn (and in the case of the first two, ina consolidatedform) as Submissions13,
14. and 15 to this Counter-Mernorial, at pp. 218 and 219 below; it is not considered
appropriatc to abandon these Submissionseven if it is common cause (orappears to be
commoncause) betweenthe Parties astagethat the quidistance method is inapplica-
ble.ecausethoseSubmissionsstill reflectthe positionof Libya,and becauseit isnot known
ioLibyawhetherTunisiawillmaintain the rejectionofquidistance apparentndcontainic
its Memorial. [lgo] COUNTER-MEMORIAL OFLlBYA 311
SECTION 2. The"Lineof Crests"
439. Asdemonstrated in paragraph 297 above,there is some basis in
the jurisprudence of this Court and of the Court of Arbitration in the
AngleFrenchArbitrationand in State practice for allowinga fundamen-
ta1discontinuityinthe shelf to delimit the respective shelvesof two adja-
cent or opposite States.
440. The TunisianMernorial',basingitselfonthisCourt'sJudgment in
theNorth Sea Continental Sheif Cases whichemphasizesthe relevance of
the knownphysical structure, geologyand natural resources of the shelf,
advances the propositionthat the configuration of the respective Libyan
and Tunisian coasts is reflected in the bathymetrf.This, as shownear-
liera,is not correct.From this invalid premise the Tunisian Memorial
then proceeds to rnake the assertion that the limitof the two natural
prolongationsmaterialize inthe formofthe "line ofcrestsW-the so-called
"ride de Zira" out to the 200 metre isobath and the "ride de Zuara"
beyond, to the 300 metre isobath. We are told that these "rides" (or
ridges) are tectonic in origin and are in places barelythe surface of
the waters4and that they correspond withthe upper part of a saliferous
uplift zone, separating the Ashtart and Tripolitanian basins6.
441. This assertion poses a real problem for Libya in formulating its
reaction to it: the problem is thatese "rides"cannotbefound.
@ 442. It will be noted that the Tunisian Figure 9.01, which showsthe
two "rides", has noacknowledgedsourceor authentication. The foatnote
onpage 199ofthe Tunisian Memorial refers to an article byWinnockand
Bea. However,that article contains nomention whateverofthese "rides"
and the Figure referred to (Figure 12) is not, in fact, a figureto demon-
strate isobaths (bathymetry) but is ratber to demonstrate isopachs (the
depth of sedimentary deposits).
443. Libya hasendeavoured tornake itown independent research into
the locationand nature of the features describedasthe "rides" ofZira and
Zuara, usingexpertsofinternationally recognized cornpetencein the field.
On the basisof this research, it wouldseemthat the so-called"Zira ridge"
can be related to kinksinthe 50metre and 100metre isobaths,but evenas
a kinkinthe isobaths such a feature isquite trivial (if it existsatOnll).
@ the basisofTunisia'sownmap6,the inclinationor slopeofthe "Zira ridge"
couId only be between 1 and 2 per cent.: an almost imperceptibleslope.
The "Zuara ridge" does not appear to have any identification with
@) bathyrnetry, even on Tunisian Carte No. 2, and is notkatured or named
there. Libya is placing before the Court (as Exhibits to this Counter-
Memorial) a relief mode1and blockdiagrams showingthe contoursof the
sea-bed and these will demonstrate beyond any doubt that these features
'Set Tunisian Memorial.para.9.05.
'Seedparas217and 234ff. above.
'Sec Tunision Memoriapara5.29.
Ibid.. pan. 9.01.
'Ibid., CarNo. 2.312 CONTINENTAL SHELF [1811
.
are the product of a fertile imagination but are not in any sense a "funda-
mental discontinuity" in the shelf. Therefore, the Tunisian Memorial not
only refashionsgeography (as in the case of the ingenious, though unreal,
geometric models discussed below) but re-designs submarine surfaces as
well,inventing ridges and creating valleys where nature-in the opinion of
Tunisia-has negligently omitted to complete its handiwork'.
SECTION 3. The "Abyssal Plain" Line
444. Chapter IX of the Tunisian Memorial develops a second "practi-
cal method" of determining a shelf boundary; this becornesthe subject of
Tunisian Submission II.1.
445. In essence, the suggestion is that the continental margins con-
verge in the direction of the central abyssal plain,thus anording a line of
direction which is a valid factor to be taken intoaccount in delimiting the
shelf. The juridical basis for this method is said to lie in the Court's
Judgment in the North Sea Continental Shev Cases, identifying "the
physical and geologicalstructure, and natural resources, of the continental
shelf areas involved" as a relevant factor.
446. 11must be obvious that the Court could have had nosuch applica-
tion of the factor of "the physical and geological structure" in mind. This
is for the reason that the North Sea contains no abyssal plain. Indeed,
there are rnany areas of the world where such a method could have no
possible application. either because of the complete absence of an abyssal
plain (Persian Gulf, South China Seas, the Baltic. large areas of the
Pacificofithe coasts of the United States, Central and Southern America)
or because the abyssal plain is too remote from the coasts to have any
practicat relevance 10shelf delimitation. In this respect, one finds abyssal
plains at distances of between 500 and 1,000 miles from certain coasts,
distances sogreat that the abyssal plain would be part of the deep sea-bed,
and could have no bearing upon the shelfor itsdelimitation. For exarnple,
the Sri Lanka Abyssal Plain lies 500 miles south of Sri Lanka; the Sohrn
Abyssal Plain lies 1,000 miles east of the .Gulf of Maine; the Argentine
Abyssal Plain lies 700 miles east .of Argentina and Uruguay; and the
Alaska and Tufts Abyssal Plains lie between 600 and 800 miles from the
coasts of Alaska and British Columbia.
447. Thus, as a "method" of general application, it isapparent that use
of abyssal plains would subject shelf boundaries to the influence of remote
factors which lie far outside the shelf. Many of these abyssal plains,
rnoreover, stretch for hundreds of miles, running parallel to the continen-
tal margin. This istrue of the plains that lie in the Atlantic, to the east of
the North American continental margin and to the west of the European
continental margin. Such plains do not provide anycentre towards which
features of the submarine landscape has alsoentered intoan even larger distortion: the
insertion of a "borderland" between Iwo artificially contrived "natural prolongations",
alleged to constitute two separate shelves. See also para. 452 below, for the non-existent
+lonian Abyssal Plain". COUNTER-MEMORIALOF LIBYA 313
ALGE RIA
<
P
, MAURITANIA
-0'
Figur20314 CONTINENTAL SHELF
Mer134,942444ion
Scolaccura15' N.
t
Figure 21FI821 COUNTER-MEMORIAL OF LIBYA 315
it might even colourably be argued that the shelf slopes. They are simply
too extensive to support the thesis or the "method" now proposed by
Tunisia.
448. Moreover the assumption that-even where an abyssal plain does
lie in reasonable proximity to a shelf-there is a. normal relationship
between the shelf, the direction ofthe shelf, and the location of the abyssal
plain is scientifically untenable. The tectonic evolution of shelves and
abyssal plains does not support the viewthat the latter indicate the "direc-
tion" of the former. The tectonic evolution has been far more haphazard.
Most abyssal plains are elongated in shape and lie parallel to the continen-
tal coasts and beyond the continental margins. As they grow. the conti-
nental margins tend to transgress or overlap the abyssal plains. And the
plains generally lie above the oceanic crust and are not related to the
geological structures on the continent, so they would only fortuitously be
related to any boundary between shelves, and even more fortuitously to
boundaries on the same shelf. For example, off the Atlantic seaboard of
the United States there is a series of abyssal plains which, to the north of
Maine, run east/west (the Sohm Abyssal Plain) but off Florida run
north/south (the Hatteras Abyssal Plain). The same istrue offthe West
African Coast. Off Sierra Leone and Ghana the abyssal plain runs
north/south. There is, therefore, no predictable pattern,' no established
relationship, between slope and plain which would allow the adoption of
the "rnethod" advocated by Tunisia.
449. It willalso be apparent to thecourt that Tunisia has not been able
to cite a singleexample of the use of this method in State practice, nor a
single reference to suggest that, in the wholehistory of the evolution of the
shelf doctrine, such a "method" was ever contemplated.
450. It can be shown that, in certain situations, such a "method" would
produce absurd results which the adjacent States would never have toler-
ated. For example, Figure 20 shows the actual location of the maritime
boundary between Senegal and Guinea Bissau1. The approxirnate posi-
tions of the two nearest abyssal plains are also rnarked. It isobvious that
the Tunisian rnethod would have produced boundaries radically different
frorn those agreed by the States concerned and demonstrably "inequita-
ble". Figure 21 shows the same process in relation to the Indian/Sri
Lankan maritime boundary2in the Gulf of Manaar. Again, it isclear that
the method advocated by Tunisia would have produced a boundary quite
unacceptable to the parties.
451. Itmight well be that, in another case, the Tunisian "method"
would produce a result not rnarkedly different from the boundary actually
agreed. Yet this would be fortuitous and not of itself proof of the validity
of the method. The FranceLSpain Agreement of 5 April 197Y estab-
lished a line in the Bayof Biscaywhich, in its firstsector,isan equidistance
line. but ,inits second sector swings south, closer to the Spanish shore. It
'Limirs in rhSeas,No. 85.23 Mar. 1979.
Limirsin rheSeos.No. 77. 16 Feb. 1978.
'Limirs in fhe Seas. No. 812 Feb. 1979. TURKEY
Location map for the eastern Mediterranean showfng the geographical names used in
this paper.might be possibleto rationalize such a shift indirectionbyreferencetothe
directionof the Biscay AbyssalPlain. Yetthat wouldbepure rationaliza-
tion, for it isknownthat the reason forthe deviation had nothingwhatever
todo withthe locationof the abyssalplain'. It was dictatedby the ratio of
the coastlinesof the twoStates, measuredas linesofgeneral direction,and
the shelf areas. France had the longercoast and the broader shelf off its
coast.
452. The application of the "rnethod" suggested by Tunisia to the
specificcase of the "Ionian Abyssal Plain" raisesa number of difficulties.
There is, in fact, no "Ionian AbyssalPlain". The Ionian Basin actually
contains two abyssal plains-the Messina Abyssal Plainand the Sirt
Abyssai Plain. These are separated by a gap whichincludes the Medina
Bank, and neither plain has any relationshipwith the Pelagian Basin2. A
further dificulty arises from the fact that the "Ionian Abyssal Plain"is
suggested by Tunisia to be capable of showing the orientation of the
continental margin of each of the littoral States, namely Tunisia, Italy,
Malta, Greece and Libya3. The implication, therefore, is that
delimitations on the same "method" would be equitable as between al1
those States. However, application of that same "method" to three of
these States has not been attempted by Tunisia, and no doubt for good
reason. The fact isthat, whenthe "rnethod" is applied,it providesresults
which appear primo furie reasonable only in so far as the resulting lines
happen to coincidebroadly withgeographical equidistancelines. In sorne
casesthere isnosuchcoincidenceand the linesproducedwouldbelikelyto
prove totally unacceptable to the States concerned. In other cases, the
"method" is inapplicablesimplybecause, in the particular area, the deci-
siononwhichStates are to beregarded as adjacent is highly controversial.
It is, in fact, a "method" whichallows Tunisia to trespass into areas of
shelf whichare only of concern to Libya and Malta, for it postulates a
Tunisianboundary projecting towardsthe "Ionian Abyssal Plain",into an
area which is far to the east of any area of shelfwhichmight remotely be
considered to appertain to Tunisia.
453. The conclusion tobereachedisinescapable. Tunisiahas madean
extreme and implausibleclaim, and, to support that claim, has conjured
up a "method" whichhas neither legal nor scientificjustification. It isan
attemptto providea rational basis fora highlyirrational lineand, as such,
it fails.
SECTION4. The Geornetric "Methods"
454. The adoptionofgeometricaltechniquesforthe determination of a
continental shelf boundary has a certain novelty, especially in the forrn
which these techniques take in the two geometrical "methods" suggested
in the Tunisian Memorial. It does not appear that such "methods" have
any precedent in State practice. No doubt the reason is that geometry is
'Limirsin the SeasNo. 83, 12 Feb. 1979,D12throuph 14.
See para.21 above.See alsothereproductionof apublishedmap facingthispage
which shows the two abyssalplains;&ter N.H. Kenyon and R.H. Beidersonin:
StruciuraHistory orheMediterranean Bmins, 1976,p. 238.
'See TunisianMemoriul, para. 9.09.318 CONTINENTALSHELF il841
neutral; it does not reflect the natural prolongation of the landmass. Any
geometric method should therefore be applied only if consistent with the
natural circurnstances and the legal principles governingthe regime of the
continental shelf. Nature does not followgeometry.
455. Nor does cartography followgeometry. Indeed, a cartographic
representation of a geornetrical construct which does not take into consid-
eration the fact that there is always an element of distortion presented by
any cartographic representation contains a built-in fallacy: the geometri-
cal exercise may be convincingon the two-dirnensional page,but becomes
increasingly lesssoon the three-dimensional surface ofthe earth. If (as is
the case with the twoTunisian "rnethods" discussed below) the geometri-
cal exercisesare unconvincingand fallacious fromthe start, it makesthem
even more unconvincingto note that noneof the figuresin the geornetrical
section of the Tunisian Mernorial indicates a cartographic projection or
even whether it is necessary or appropriate to consider the question of
distortion. Although scale variations in the area concerned rnay only be
apparently minor at those latitudes, even a minor variation may be highly
significant in terms of exploration for and exploitation of oil and gas
resources: "[t] he natural resources of the subsoil of the sea in those parts
which consist of continental shelf [which] are the very object of9thelegal
régime establishedsubsequent to the Truman Proclamation'." It may
well be the case, therefore, that one of the details which should faIlto be
cansidered by the experts of the Parties in order to "delimit these areas
without any difficulties" would be to reach an informed agreement or
understanding concerning the cartographic projection to be employed to
express the representation of the line of delimitation'.
*I.C.J. Reports 1969. p. 51, para. 97.
The questionof cartography arosein dramatic form in the Anglc-FrenchArbirrationand
causedtheCourt to reconveneand promulgatea seconddecisionon 14March 1978.(Anglc-
to cartographydid notarisein theorth Sea ContinenralSheUCases, wherethe Court waslated
not requested to specifypractical methodsfor delimitation and wherethe Parties, in any
event.agreeduponthe delimitationsubsequentto theJudgment in that case, it was otherwise
in theAnglo-FrenchArbitraiion; followingthe initiai Decisionof the Court in 1977, the
United Kingdom raised two questions. one of which related to techniquesused for the
"drawing of the boundary in the South-WesternApproaches"that did notconsider "scale
distortionsinherentincharts drawnonthe Mercator Projcction". (Ibid.. p. 135:it shouldbe
notedthat the secondquestion raisedbythe Unitedingdomdealt with the enclavesaround
the Channel Islands.) Brieflystated. the United Kingdom maintained that the problem
resultedfrom constructina segmentof the boundarylinebasedon linesofconstant bearing
(rhumb linesor loxodromes)that failedtocornpensateforthe curvatureof the earth. (Ibid..
p. 143,para. 14.) TheCourt, byfourvotestoone, decidedthat the segmentof the boundary
line inquestion wasnot "insuch contradiction with the findingsof the Cou. .as to be
incompatible withthe methodof delimitationprescribedin those findings". (Ibid., pp. 194
and 195,para. 114(5)a.) Nevertheless, italsopointedout that State practice indicatedthe
use of TransverseMercator and Mercator projectionsas wellas geodesictechniques inthe
delimitationof maritime boundaries(lbid p.191.para. 105.) However.as Annex 7, Vol.
III demonstrates, anycartographicprojectionusedforportrayingthe earth's surfacedistorts,
to some degree, directions, distances,and shapes. No projectionmaintainsaccuracyas
to al1 of these properties. For these reasons, therefore, it is quite clear that the
Ifootnoie coniinuedon thenextpage) 456. Returning then to the novelTunisian geometric exercises:evenif
novelty is not beregarded as a bar to such "methods", it would surely be
expectedthat a geometricalmethod would ernbody the logicaIconsistency
which isthe particular merit of the science of mathematics.
457. In Annex 8, Volume IIIof this Counter-Memorial the Court will
find a detailed commentary on the two Tunisian geometrical "methods".
For ease of reading, thatAnnex reproduces the various Figures frorn the
Tunisian Memorial'and, after each Figure, appends a short commentary.
The purpose of this commentary is to examine both the logic of the
sequence of diagrammatic illustration and its application to the specific
shelf area in dispute between the Parties. What follows,therefore, is a
brief, and rather general,statement ofibya'sreactiontothe twoTunisian
geometrical "methods", whichought to be read in conjunction with the
detailed commentary in Annex8, VolumeIII.
( 1) TheFirsi Geometric"Mefhod"-The "Anti-Ampuiation" Line
458. The first "method" really depends upon the use of a bisector
("bissectrice") of the angle formed by twocoasts. There is, however,an
immediate, arbitrary-orat leastsubjective4lement: that is,the selec-
1, 194 tion of the twocoastal lengths. As Figure 9.10 of the Tunisian Memorial
shows, Tunisia has adopted two coasts. That for Tunisia stretches from
Ras Mustapha, near Cape Bon, in the north, down to a point inland of
Gabes, and thence eastward to a point on the 50 metre isobath off Ras
Ajdir. That for Libya continues fromthat same point, eastward as far as
Ras Zarrouk., In neither case can thesecoastsbe regarded asa reasonable
basis forany hypothesis. The Tunisian line is not a true indication of the
general direction of theTunisian coast, and it includes a long stretchof
coast (north of Ras Kaboudia) whichmust already have beentaken fully
into account for purposesof the existingdelimitation between Tunisiaand
ltaly2. The Libyan linemore nearly reflects the true coast, but extends
beyond the section of coast abutting on the area for delimitation in the
presentcase. Asshown above3,at Ieast east of Tripoli and probably even
further West,areas of shelf there abutting the Libyan coast are relevant
only to a future potential delimitation between Libyaand Malta.
459. Ultimately, of course, the geometrical exercises haveto be con-
cerned with areas, for the Tunisian Memorial rightly recognizesthat the
object must be to secure an equjtable delimitation of an area of shelf.
However, such an area is defined not only by reference to the coasts.
There has to bean outer limitto the area, at sea. This leadsto the second,
arbitrary eiement, For in the early figures4the outer limit is simply a
straight line joining the extreme points of the two coasts. In the later
(fmrnorecontinued{rom theprecedipage)
questionof cartographicprojectiwowas,asignificantoneforthe Court of Arbitration
andthe Partiesinthose proceedinsalso relevantto this case.
,191-196 'See Tuni~ianMemorial, Figs.9.03 through9.13.
'See para.33above.
" para. 331above.
1,191 'SeeTunisianMernorial,Fig. 9.04. 320 CONTINENTAL SHELF Iig61
figuresi, the outer limit becomes lines parallel to these straight lines of
"coastal fronts". In neither case can the seleclionof so arbitrary an outer
limit to the shelf area be justified. Moreover, if, for the sake of consis-
tency, parallelograms are used to define the area for delimitation, and
1, 194 Tunisian Figure 9.10 iscornpleted byadding the parallelograms, the result
is startling. The areas subject to delimitation (and by reference to which
the delimitation line proposed by Tunisia is deemed equitable) then
appear to include large parts of the Italian shelf and even part of the
mainland of Sicily2.
460. However,the basic flaw inthis method isnot, in fact, the arbitrar-
iness of the definition of the coasts or of the area subject to delimitation.
It is the rationale for the transfer of the angle of the "bissectrice" from
Gabes to Ras Ajdir. As shownearlier3,with a right-angled or any acute-
angled coast it is inescapable that the two coasts imrnediately on either
side of the angle must abut on the same area of shelf. To Saythat a line
bisecting the angle "amputates" the sheIf attaching to one coast or the
other is to ignore this fact. There is no inequity in this, for it is not the
function of equity to refashion nature or to "remedy" a supposedinequity
which does not in fact exist.
461. The "remedy" which Tunisia proposes is somewhat extraordi-
nary. It consists of transferring the angle of the "bissectrice" to the
frontier and projecting the maritime boundary at that sarne angle. The'
essential aim of this exercise is to escape from the supposed "amputation"
1, 192-194 by giving to the one length of coast (SF in Figures 9.06 through 9.09) an
area of shelf which lies in front of the adjoining coast (FB in those
Figures). In real terms, it seeks to compensate the Tunisian coast from
Gabes to Ras Ajdir by allocating to it areas ofshelf that lieimrnediatelyin
front of the adjoining Libyan coast. Of course, Tunisia purports to pre-
servethe "equiiy" ofthe exercise byangling over,eastward, the shelf area
attaching to the Libyan coast. This only perpetuates the problem, how-
ever, for each stretch of coast achieves its "equitable share" only by
attaching to itself the shelf area that liesin front of the coast imrnediately
to the east. The fallacy of the whole systemiseasilyexposedbyassuming
that, at some point, a third State, C, exists'. Such a State would imrnedi-
ately opposethe shelfof its neighbor "leaning over" in front of itscoast: it
would bethe most blatant "encroachment".
462. It will also be apparent that, in transferring the angle of the
"bissectrice" to the frontier point, Tunisia has also notionallytransferred
its whole northerly projecting coast. It is as if the Tunisian coast ran
north from Ras Ajdir. This becornes quite clear upon examination of
1,193 Figure 9.07. In the Commentary, the geometrical exercise has been
cornpleted to make it consistent with the premise of the paralielograms.
1. 192'See TunisianMemorial, Fig.9.05.
'See,by contrast,thlogicatreatment accordedtothisprobleminSec. 1oTChap.IoCthis
Part IV, at para482 through 490 below.
1, 192'See TunisianMernorial,Commentary onFig. 9.05. il871 COUNTER-MEMORIAL OF LIBYA 321
The dotted line from F (Ras Ajdir) has been continued to a newly-
inserted point Xi soas to complete the parallelograms on which the equity
ofthe allocation of areas depends. For, byreferenceto the earlier illustra-
i,192 tion in Figure 9.05, it is the purposeof the parallelograms to maintain the
1. 193 ratio of areas to coastal lengths. Yet, in Figure 9.07, oncethe parallelo-
grams have been completed, it becomes immediately apparent that the
Figure treats the Tunisian coast as ifit turned northward at Ras Ajdir. In
other words, the wholearea ASFX, the area to the Westof this "notional"
Tunisian coast, is ignored for purposesof cornparison. In real terms, it is
as ifthe entire area west of a line running north of Ras Ajdir were to be
allocated to Tunisia and not counted at al1 for purposes of comparison
between the shelf areas accruing to Tunisia and those accruing to Libya.
(2) The Second Geometric "Method'-The "AngularAper-
~lrre"Line
463. As explained in the Tunisian Memorial', this "method" purports
to identify the coastal fronts, to measure the angle of the opening of the
twocoasts at the frontier point,and then todivide that angle in the ratio of
the lengths ofthe two coastal fronts. The line dividing the angle is then
ofïered as an appropriate line of delimitation.
464. As with the previous "rnethod", much depends upon the initial
1,196 identification of the twocoastal fronts. In the first section (Figure 9.12)
the Tunisian coastal front is El Mzebla (an unacceptable base-point, to
the east of the Kerkennah Islands and coveredat al1tirnes by between 1.6
and 2 metres of water) and Ras Ajdir. This is a sornewhat ambitioiis
"coastal front", since it lies far to the east of even the controversial 1973
Tunisian baselines, is totally detached from the Tunisian coast and, like
the first method, notionallytreats the Tunisian coast as ifit ran north from
Ras Ajdir. The "method" is thus condemned at the outset by the sheer
unreality of the coastal front proposed for Tunisia.
465. Weare then told that a line dividing the angleof aperture of the
twocoastal fronts in the ratio of the lengthsof the twocoasts wouldbeona
bearing of 60°2. We are not told what the actual coastal lengths are, but
only that the Tunisian coast ismeasuted by reîerence to the Tunisian 1973
straight baselines3.
466. Apparently, however, a line at 60" is not sufficiently inclined
towards the east and south to be consistent withTunisian ambitions. For
a second section is then added, for reasons which are not made apparent4.
A new angle of aperture is constructed, not at Ras Ajdir, but at the
terminal point of the delimitation line for the first section. It is immedi-
ately apparent that this second angle of aperture-which appears to be
approxirnately 143"- bears no resemblance whatever tothe actual angle
of the two coasts. This angle is then divided, presumably in the ratio of
'See TunisianMemorial. paras.9.28through9.34.
'Ibid.para. 9.33.
As indicateinthe LibyanMemorial. para.56. Libyadoesnot admit the validityof these
baselines.
'See TunisianMemorial, para.9.33.322 CONTINENTALSHELF [lssl
the coastal lengths of Ras Ajdir to Ras Mustapha (for Tunisia) and Ras
Ajdir to Ras Zarrouk (for Libya). As indicated above, these cannot be
the coasts abutting on the area subject to the present delimitation: they
are unrealistic as coastal fronts in issue here. The delimitation lineo-
duced by the division of this angle inclines even more sharply eastward
than the line for the first section,and even projects beyond the "triangle"
which is the basis of the first section.
467. The overall impressionleft by both geornetrical exercises isthree-
fold.' Firsf,as "methods" of delimitation they are not onlydevoidof legal
justificationbut are alsoactually inconsistent withthe fundamental princi-
ple of natural prolongation. Second, even as abstract geometrical exer-
cises they contain inherent contradictions and inconsistencies. Third,
they are "contrived" inthe sensethat they are an atternpt to rationalize, on
apparently scientificgrounds, preconceived lines of delimitation far more
advanced to the east and south and closer to the Libyan shore than any
former Tunisian pretensions. CHAPTERII1
THE PRACTICAL'METHOD RESPECTINCTHE PRINCIPLE OF
NATURALPROLONGATION
INTRODUCTION
468. A general formulation of the apiropriate method for application
of the principles andrules for the delimitation of areas ofshelf in this case
was givenin Part III, Chapter 1of the Libyan Memorial and, specifically,
in paragraph 178 where it was stated:
"It therefore follows that the Parties must respect the physical
facts and adopt a boundary which projects in a northerly direction
from the terminal point of the land boundary at Ras Ajdir. In so
doing, they will produce an equitable result because it is a result
which respects the inherent title, the ipsojure rights, of each
State."
469. This conclusion was based uponthe following finding:
"Ail the evidence-geological, geornorphological and geographi-
cal-points inescapably to the conclusion that the shelf ofï the
North African coast concerned is a projection to the north of the
land territory'."
470. And, as stated in Submission 5 in the Libyan Memorial:
"ln the present case the continental shelf off the coast of North
Africa is a prolongation to the north of the continental landmass,
and therefore the appropriate method of delimitation of the areas
of continental shelf appertaining to each Party in this specific
situationisto reflect the direction of this prolongation northward of
the terminal point of the land boundary2."
471. The Prefatory Note3to the Libyan Memorial explained that the
Memorial in part intended to stress"those preponderant considerations of
fact and law which, in the view of Libya, lead to and justify its Sub-
missions", and that Libya reserved "the right to supplement these consid-
erationsand its Submissions in the light of the Tunisian pleadings and the
further development of the issues between the Parties".
472. In view of the emphasis placed by the Tunisian Memorial upon
the actual suggestion of precise lines for the delimitation4,apparently
based upon a misreading of the so-called "second question" put to the
Court bythe secondparagraph ofArticle 1ofthe Special Agreement5,it is
therefore appropriate for Libya to indicate the degree of detail that might
be appropriate for the formulation of the "practical method" for applica-
tion of the principles andrules of international law. This Chapter con-
tains the formulation of what Libya holds to be the practical method by
'See Libyan Mernorial,para. 178.
'Submission6 to this Counter-Mernorial.
"ee Libyan Memorial,para.10.
'See Tunisian Mernorial, paras.9.01 through9.37.
See paras.433 through435 above.324 CONTINENTAL SHELF
which the principle of natural prolongation can be applied in this case1
(even though such a formulation does not contain a precise line of
delimitation).
473. For the convenienceof the Court this practical method, elabo-
ratedand developedin Sections2 and 3immediatelybelow,and expressed
in moregeneral terms in Submission7 to this Counter-Mernorial, may be
stated as follows:
Thepractical methodfor the applicationof iheprinciples and rules
of international law in this specificsituation isfor the Parties and
their experts to agree upon a delimitalion of the continental shev
which
i. continues northwardfrorn the maritime boundary ut the
outer Iimit of the territorial sea in a direction rejecting
the natural prolongation tu the north of the landmasses
concerned
ii. respectsthe westernmaritime boundary established by the
1955 Petroleum Law and Regulation and Map No. 1
thereunder
iii.rejects at the approximnte parallel of Ras Yonga the
signiJcant change in general direction of the Tunisian
coast which might reasoltablyberequired to be taken into
account in order to achieve a delimitation in accordance
with equiiable principles, andth us
iv. respectsthe relevantcircumstanceswhichcharacterizethe
area within the .contextof the Special Agreement, without
affecting the rights of States noi Parties to these
proceedings.
SECTION 1. TheAreawithinWhichtheDelimitationMustBeEffected
474. It is significant that Article1 of the Special Agreement refers
twice to the concept of "areas" of continental shelf appertaining to the
'ThisChapter isnot a mere rebuttal ofthc Tunisian"methods" advinChap. IX of the
Tunisian Memorial, since those "methods" represcnt four different and not necessarily
consistentorcongruent approaches,based upondifferentpremisesand assumptions.aSuch
rebuttal has beenaccomplishinPartIV,Chap. Il abovc(paras436 through 467) and in
Annex 8 to Vol. III of this Counter-Mernorial. Nevertheless. in light of the tendency
displayedbythepleadingsin theTwisian Mernoria(cg.,Chap.lx),ilisnow particularly
appropriate to Formulate,in accordance with Art. 49 of the Rulesof Court, a more precise
indicationof what had more generallybeendescribedin theanMemorial and Submis-
sion 5 therein (Submission 6 to this Counter-Mernorial) as "the appropriate method of
delimitatioof the arcas of continental shelf appertaining to cach Party in this spccific
situation".[1911 COUNTER-MEMORIALOF LIBYA 325
Parties inthe contextof thejudgment requestedofthe Cour?. Incontrast,
Articles 2 and 3 refer to the "line" of delimitation in connection with the
task of the Parties and their experts.
475. There could havebeen nogreat divergence of opinionas to the
extent of the area subject to delimitation in the Norrh Sea Continental
Shelf Cases becausethe area in question was explicitly circumscribedand
limited3byvarious bilateral delimitation agreements between two of the
Parties and other States, and indeed in terms of the very presentation of
the case to the Court. This is best illustrated by reference to Map 3
attached to the Court's opinion, whichclearly sets out the area in which
the delimitation at issue inthose proceedings was to take effect':
476. It is equally noteworthy that the Court of Arbitration in the
Anglo-FrenchArbitration alsooperated withina relativelyrestricted area.
Although certainly broaderthan the narrowsegmentofNorth Sea consid-
ered by this Court in 1969,the areas of continental shelfunder considera-
tion in the Anglo-French Arbirration were (in contrast to these
proceedings) limitedto the English Channel, the Western Approaches,
and areas ofthe Atlantic Ocean tothe westextendingoutto a preciselimit
(the 1,000metre isobath).
'I.C.JReports1949,al p. 15. 326 CONTINENTALSHELF il92]
477. Viewedfromthe perspectiveof the North Sea ContinentalShelf
Cases and the Anglo-FrenchArbitration, it thus appears appropriate for
the Court to consider the extent of the area of continental shelf within
whichthe Partiesand their expertswilleffectuate a delimitation pursuant
to the judgment in this case.
478. Set forth in the following pagesis an anaiysis of the principles
and rules which, in Libya's view, should be applied in determining the
extent ofthe area of shelf in question. These include two fundamental
propositions,set forth a( 1)and (2).
(1) The Exlreme Claims of a Party Are Not Necessarily Determina-
tive of the ContinentalShelf to BeDelimired
479. Extreme territorial claims that are exaggerated, artificial and
primafacie inequitableshould notdefinethe outsjdeboundaries orparam-
because the area and coastal fronts concerned would be inequitably process,
enlarged.
480. Inthisconnection,it mustbe emphasizedthat the extremepreten-
shores but lyingoalmost immediately offshore the Libyan coastline areits
arbitrary, and must bedisregarded indeterminingthe outsidelimitsofthe
area subject to delimitation (or in any other context). These extreme
claims, presentedinparagraphs 9.06 through 9.08,9.09 throug9.11,9.22
through 9.26and 9.27 through 9.35of the TunisianMemorial, asoutlined
@ in Figure9.14 of that Memorialand reproducedbelow,revealtheir ambi-
tious implausibilityin the context of an equitable delimitationof the shelf
area at issue in this case:
I LEGENDE Iil931 COUNTER-MEMORIAL OF LIBYA 327
481. Identification of an area of concern by application of the princi-
ples set forth in this Chapter, instead of the extreme claims advanced by
Tunisia and illustratedirnmediately above, willenable the Court to assess
the degree to which claims advanced by each Party are consistent with an
equitable delimitation.
(2) The Court Should Not ContemplateiheDivision of anArea Which
Would in No Event Fail toBe Delimited betweenihe Parties
482. Al1areas of shelf which either appertain to a third State, or are
divisible between either Tunisia or Libya and a third State, should be
excluded from the purviewof a delimitation to beeffectedbythe Parties in
this case. It therefore followsthat oneeiement ofthe practical methodfor
the application of the principles and rules of international law in this
specificsituation rnust be to avoidaffecting the rightsStates not Parties
to these proceedings.
483. The first step is to note that Lampedusa is the most significant of
the three relevant ltalian islands, and is indicative of the northernmost
point of a theoretical boundary for the area of concern to Libya and
Tunisia in these proceedings. It isonlylogical, then, to connect that point
with the pointon the edgeof the Libyan territorial sea directly to itssouth,
to arrive at a theoretical "outer limit" for the area ofconcern. the east
of that line there can be no credible pretension of Tunisia to areas of
continental shelf. This theoreticai "outer limit" forthe area of conceris
shown on the Diagram below:
MScale 1:8,060,000n328 CONTINENTALSHELF [1941
484. The intersection of the line from the Island of Lampedusa with
the Libyan territorial sea to itsuth occurs some32 nautical milesto the
Westof Tripoli at the intersection withthe 12O36' east meridian1. It thus
appears to be reasonable fromany point ofview,as no conceivablyappro-
priate or equitable claimby Tunisiacouldor shouldcut acrossthe Libyan
coastline directly in front of Tripoli.
485. It must always be recalled, however, that closing the area of
concern to the east by the line indicated in the Diagram on the preceding
page does not in any sense imply that Tunisia possessesputative shelf
rights inal1areas to the Westof that line. Indeed, any dejure appurte-
nance of shelf within the area of concern must as a matter of law be
governedby the recognitionof the natural prolongation northward. The
practical method espousedbyLibyaanddescribed in Sections 2 and 3
belowis intended to permit the delineation of this direction of the natural
prolongation;Section 3 describes the practical method whichcan be uti-
lized by the experts to establish an appropriate angle of divergence or
deviationofthe lineofdelimitation inorder to take accountofthe relevant
circumstances of geography, and indicates the reasonable eastward and
westward,limits of the area within which such an angle of divergence
would appear to lie.
486. As to the northern portion of that area: the northward prolonga-
tionsofbothTunisia and Libyanaturally extendthroughout those areas of
the Pelagian Sea lying between the Lampedusan Island group and the
Tunisian shore and, since they both continue in a generally northward
direction, it is unnecessary to "close" the area aline of latitude. Both
'Tunisia and Libya may share in those areas of shelf '.
487. In the result, therefore, the area of concern can be viewed as
shown in the Diagram on the followingpage.
'Thc potcntial.interestof Italyrelativetothe Islandof PantcllctiaandSicily may of course
ultimatelyhaveancfcct onthenorthernmostlimittoarcasofcontinental shelf appurtenant
to eithcror boofTunisiaor Libya but,to the cxtcnt thatsuch arcasare substantially
equallydividedbaprojtcteddelimitation line runninigna generallynorthwarddirection,
thercsnoneedtoipecify anorthernlimitforthe areaofconcern-at lcastforthepurposcof
evatuating thecquitablencssor proportof a proposeddelimitationas betwcenLibya
and Tunisia. COUNTER-MEMORIALOF LIBYA
Mercator Projection
Scale 1:8,060.000
488. It is illuminatingto contrastTunisia'spretensionsin the areaof
concern by superimposinguponit the "sheafof lines"contendedfor by
Tunisiainits Memorial1.ThisisillustratedontheDiagramappearing on
page 196.
@ 'SecTunisionMernoriFig9.14. CONTINENTAL SHELF - [1961
Mercator Projeclion
Scale1:6,06b.O00
489. As indicated in the Diagram irnmediatelyabove, not onlydoesthe
Tunisian "sheaf oflines"completely evadethe potentially marginal area of
diverging linesofdirection north of Ras Yonga.illustrated in the Diagram
appearing on page 202 below, but actually "amputates"-in the correct
sense of that word-the area of concern illustrated above: Le.,the area of
the most extseme lirnits of claim which could be reasonably asserted by
Tunisia in these proceedings. This is inequitable and disproportionate
upon its face '. This Diagram indicates that Tunisia isprepared to con-
cede to Libya only a miniscule fraction of the area of concern.
490. In conclusion, therefore, the concept of the area of concern has
beendiscussedinthis Section 1for twopurposes. First:the discussion has
been intended to place beforethe Court a clear and accurate picture of the
relevant extent of the areas of continental shelf actually involvedin these
proceedings, within the meaning and context of the "area" and "areas"
repeatedly ernphasized in Articles 1, 2. and 3 of the Special Agreement.
'As discussedinSec.4 below. thiconclusionissupportedby an analysisof the conceptof
"proportionality"as applied the relevantcircumstancesofthis case.Second: it is alsoadvanced in order to lay the groundwork for verifying, by
reference to the concept of "proportionality" discussed in Section 4 below,
the appropriateness of the practical method proposed by Libya, as sup-
ported by the sther confirmatory considerations discussed in Section 5
below. At the same time, it demonstrates in bold relief the utter impropri-
ety and disproportionality of the so-called "sheaf of lines" proposed by
Tunisia as its "practical method(s)" of delimitation.
SECTION2. Determinationof the Natural Prolongation
491. As indicated in paragraphs 275 through 284 above, the scientific
evidence supports the proposition contained in Submission 5in the Libyan
Mernorial (reproduced as Submission 6 in this Counter-Mernorial) that
the continental shelf is a projection to the north of the North African
landrnass lying to the south. As was demonstrated in Annex II to the
Libyan Mernorial and confirrned in this Counter-Mernorial, and in
Annexes 11, f2A and 128. VolumeII\, thescientificbasis forihis conclu-
sion is solid and definitive and rests in part upon the following factors:
i. The relevant continental shelf area is the extension to the north
of the North African landrnass to the south'.
ii. This area of continental shelf ispart of the Pelagian Basin, itself
a part of the African plate. This entire Basin a'reais a geologi-
cal and physiographic unit. Contrary to the allegations in the
Tunisian Mernorial, there are no geologic or physiographic fea-
tures of sufficient importance to influence a delimitation of the
relevant continental shelf area'.
...
III. The Pelagian Basin has a distinct affinity to the African land-
mass and is a different region frorn the Atlas Mountain region of
Tunisia. This affinity is shown by the fact that the main geo-
logic and physiographic features of the Pelagian Sea area are
related to Africa. Exampies are the Sirt Basinrift system which
runs across the Pelagian Sea; the zones of depression and eleva-
tion running parallel to the north-facing Libyan and Tunisian
coasts; and the ancient coastline which followed the general
North African east/west coastal direction and cut across pre-
sent-day Tunisia south of the present line of chotts, at a time
before the Atlas Mountains had been forrned and before the
northward-thrusting Coast of Tunisia existed3.
iv. Facies data also confir-rn the northward prolongation of the
North African landmass frorn the northward-facing coasts of
Libya and Tunisia an ta the continental shelf, as well as the basic
affinity of this shelf to the North African landmass to the south'.
'See para. 284 above.
'See paras.233 and234 above.
'See paras.240. 241,271 and 272 abovi,
'See para.267 above.332 CONTINENTAL SHBLF il9g]
v. The geography and topography of the Jabal Nefusa and the
Jeffara Plain ofTripolitania and ofsoutheastern Tunisiaconfirm
the fact that the continental shelfarea tothe north isthe natural
. extension of the North African landrnass to the south1.
492. Thus, the geologicaland geographical factorssummarized above
dictate a northerly direction for the delimitation. The experts appointed
by the Parties willthus be obligedto construct a lineof delimitation from
the outer limit of the territorial sea whichis consistent withthe northerly
direction of the natural prolongation and the other relevant criteria dis-
cussed above.
SECTION3. .Refiectionof RelevantGeograpbicalCircumstances
493. In cases such as the present, where the scientific factors of a
geologicaland geographical nature indicate the direction which the natu-
ral prolongation or extension of the landmass must take, it would not
normally be necessaryto examine other geographical features except to
avoida patently unfair or grosslyinequitable result! However,Article 1
of the Special Agreement requests the Court not merely to "take its
decision according to equitable principles", but also according to "the
relevant circumstances which characterise the area".. The Parties have
therefore agreed that al1the relevant circumstances should betaken into
account if necessary to achieve an equitable result.
494. In this case, geography supports and confirms geology, which
indicates that the natural prolongation of the landmasses into and under
the sea is tothe northa. Becausethe land boundary at Ras Ajdir lieson a
stretch of coastline which runs west-northwest/east-southeastt,he geo-
graphic projection of the continentaI shelf from that coast necessarily
presupposesa northward prolongation of al1north-facing coasts (Libyan
and Tunisian). At least up to the latitude of Ras Yonga4,therefore,
virtuallyal1the relevantcontinental shelf which couldappertain toTunisia
in geographic terms is the result of its necessarily northward projection
Westof the land boundary at Ras Ajdir. This results from the configura-
tion and nature of the Tunisian coastline from Ras Ajdir to Gabes, which
essentiallyfollowsthe generally east/west extensionof the overall North
African coastline5.
495. It is usefulto recall the report of the Cornmitteeof Hydrographic
Experts which was submitted to the International Law Commission in
Sec para.243 abovc.
Insituationssuchas thoseinvolvedintheAngleFrench Arbitrafion. whcre the geological
cvidcnce wasnconclusivcor sufficientlyambiguousso abeset aside as a dctcrminant
thecontextof constructionof a medianor cquidistanceline responsiveto the gcogsaphical
configurations ofthe relevantcoasts.
a SeeAnnex2,Vol.IIIprcparedbyDrs.~lakcand Anderson concernintghecoaçts ofTunisia
and LibyafromCape Bonto Ras Zarroug.
'See paras.498 through501 below.
%Thenorthwardturnof the Tunisiancoastlineat Gabesisan anomalous varianto this
predominantcastjwcst trendwhich.as noted in para. 114of the Libyan Mernorial,is a
classicexampleof "anincidentalspecialfcaturt". I.C.J. Reports 1969, p. 50. para.91. 1953. As this Court has noted', that report stressed that there were at
least thtee othet methods of delimitation, in addition to the equidistance
method. which fell to be considered. In the words of the Court:
"Equidistance was ii fact only one of four methods suggested to
[the Cornmittee of Hydrographie Experts] . . . the other three
being the continuation in the seaward direction of the land frontier
between the two adjacent States concerned; the drawing of a per-
pendicular to the coast at the point of its intersection with this land
frontier;and the drawing of a line perpendicular to the line of the
'general direction' of the coast'."
496. As noted in the Libyan Memorial, the drawing of linesof delirni-
tation which refiect the projection of the territorial land boundaries of a
State into and under the sea is clearly accepted in State practice and
justifiedinthe particular circumstances of this case3.The appropriateness
in these specificcircumstances of selectingthe northward extension of the
land boundary from its terminal point at Ras Ajdir is made clear by the
geographic configuration of the coasts concerned, and by the fact that at
Ras Ajdir the land boundary runs north and is roughly perpendicular to
the coasts at the point of its intersection as well as generally perpendicular
to a more extensive length of coastal front. Moreover, this accords with
the position publicly asserted by Libya as to its entitlement to grant
concessions in an area of shelf running due north from Ras Ajdir (by the
publication of Petroleum Law No. 25 of 1955,Petroleum Regulation No.
1,467 1and Map No. 1 annexed thereto, as more fully discussed in paragraphs
27 to 30 above).
497. It tberefore follows that in its first part the practical method for
the application of the principles and rules of international law in this
specificsituation istocontinuethe reflection of the direction of the natural
northward prolongation from the outer limit of the territorial sea, and to
plot a line of delimitation which reflects that general line of direction and
is not otherwise inconsistent with it. There is no other way in which an
appropriate maritime boundary could be constructed in the specific cir-
curnstances of this case; if it was drawn without reference to the general
direction of the land boundary it would depart at a sharp and unjustified
'I.C.J. Reporrs 1969. p. 34, paras.50 an1.5
Ibid.. 34. para.51. Itis inlerestingto note that the Court continuedtospecify (in para.
SI) that:
"Furthermore the rnatterwas not even put to the expertsdirectly as a question of
continental shelfdelimitation, but in the context of thedelimitation of tht latergl
boundary between adjacent territorial wanoraccount king takcnof the possibil-
ity that the situation respecting territoriamsight'bedifferent."
This bccornesparticularty relevantin the discussion containedin paras.422 through 431
above.
Sce LibyanMemorial, paras. 116 through120. 334 CONTINENTAL SHELF i2o01
angle to the land boundary and wouid cul across the face of either coast
concerned: across the Island of Djerba, in Tunisia in the West,or across
the face of the Libyan shoreline, in front of Tripoli, in the east'.
498. However, toachieve an equitable result over the entire course of
the delimitation a relevant geographical circurnstance which characterizes
the area should also be considered by the experts of the Parties. This
circumstance isthe promontory of the Sahel, whichbrjngs about a marked
change in direction of the Tunisian coast toward the northeast at approxi-
mately the Kneiss Islets or Ras Yonga.
499. As the Diagram below shows, Ras Yonga 1sthe true natural
entrance point of the Gulf of Gabes, and is so identified in navigational
handbooks2. It is at this point that the Gulf ends and the direction of the
coast changes to the northeast. In addition, it is in this vicinity that the
region of Tunisia known as the Sahel begins: as discussed in detail in
Annex 1, VolumeIII, the Sahel region differs in many climatic and ecolog-
ical aspects from the "Gulf of Gabes region" or the region of the Jeffara
Plain.
MercatorProjection
Scate 1:8,080,000
The Courtneedonly refer taFig. 9.14tothe TunirianMetkorial, reproduceatp. 192
@ above, to observthe obvious inappropriateneof such suggested lines of delimitation
(leavingasidetheirnproprieof the"rnethods"whichareadvancedto supportthem inthe
Tunisian Memorial).
'Sce Libyun Memorial,Annexes 1-18 and1-19, See also para82 above. [2011 COUNTER-MEMORIAL OF LIBYA 335
500. Returning to the practical method for the construction (by the
experts of the Parties) ofa'line which takes this relevant circumstance of
geography into consideration, it is apparent that a line drawn from Ras
Yonga to Ras Kaboudia gives the general direction of that part of the
Tunisian landmass. That linewillshowtheangle of the convexity. If this
coastal configuration were the only relevant circumstance in this case, it
could be taken into account by reflecting the same angle of divergence in
the direction of the delimitation, andthus givingto the lineofdelimitation
the sarne approximate change in direction as that which occurs in the
Tunisian coast. This theoretical divergence from the initial direction of
the delimitation is illustrated in the Diagram below:
Mercator Projection
Scale 1:8.060.000
501. North of the latitude of Ras Yonga, therefore, such an initial
angle of divergence to the northeast would fully take into account the
relevant circumstance of geography which characterizes the area, refiect-
ing the veering of the Tunisian coast at those latitudes and the specific
geographical circumstances of the Ras Kaboudia promontory'. Yetsuch a
solution would not be appropriate because what must ultimately be
'Iftheoriginal lineofdirectiontobecontinuednorihwardfrom RasAjdir indefinitely,
itwouidpasscloseby the KerkennahIslandsand woutdineRectcut directlyin front of the
Tunisiancoastline,in much thesamewas (althoughwith considerably moustification
@ than) the "sheafof lines"proposedby Tunisia (portrayed in Fig. 9.t4 of the Tunision
Mernorialreprduced at p. 192).336 CONTINENTAL SHELF l2O21
reflectedis not simplya particular circumstance of geography,bual1the
relevant circumstances. Thus a balancing is required in order to achieve
an equitable result: a balancing betweenthe northward line of direction
refiectingnatural prolongation, onthe one hand, and the original line or
angle of veering or divergence to the northeast, on the other hand.
502.The balancing of relevantcircumstancesresulting fromthe consid-
eration of these elementswillbe accomplished withinthe context and the
limitations of the two divergentgeneral linesof direction as described in
the precedingparagraph. This isto be accomplishedby the experts ofthe
Parties as the secondpart of the practical method applyingthe principles
and rules of international law in the area of concern. The cartographic
representation of the area tobe delimited north of the latitudeof Ras
Yonga byapplication of this practical method asshown bythe Diagram
below:
Mercator Projection
Scale 1:6,080.000
503. The northerly lineof directionis indicatedonthe Diagram above
as"Line An,for illustrativepurposesonly,and representsneither aspecific
meridian nor an exact line of direction; these are to be determined by the
experts ofthe Parties consonant with the principlesand rules of interna-
tional lawindicated by the Court in these proceedings. Similarly, "Line
Z" ialso nota preciseproposed lineofdelimitation,butisratherintended
to illustrate the original northeasterly anglof veering or divergence12031 COUPSTER-MEMORIA LF LIBYA 337
reflecting the change in direction of the Tunisian coast north of the lati-
tude of Ras Yonga, which Libya perceives wiHhave to be taken into
account by the experts in order to arrive at a delimitation in accordance
with equitable principles. Indeed, "Line A" and "Line Z" cannot'by
definitionbeproposedlinesof delimitation sincethey are merelythe outer
limits of an upper area which contains the likelyshelf boundary north of
Ras Yonga:the actual line of delimitation is neither knownnor specified,
but it shouldliesomewherewithinthe shaded area closedby"Line A" and
*Line Zn in the Diagram on the preceding page.
504. In conclusion, therefore, it becomesclear that, as shown in the
Diagram on page 202,anarea ofshelf liesbetween thenortherly "Line A"
reflectingthenatural prolongationof the North African landmass,on the
one hand, and the northeasterly "Line 2" refiecting the paraIlel to the
change indirection ofthe Tunisian coast, onthe other. This represents a
marginal area ofdivergence whereseveral difiering considerations rnust
be balanced in'orderto achieve an equitable result. The divisionof this
marginal area in agreed or equal proportions betweenthe Parties would
approach a delimitationwhich takes accountof the relevantcircumstances
and which bringsabout an equitable result.
505. It therefore followsthat initssecondpart the practical methodfor
the application of the principles and rules of international law in this
specificsituation is to determine whether a significantchange in the gen-
eral direction of the Tunisian cbast might reasonably be required to be
taken into accountinorder to achievea delimitationreflectingthe relevant
circumstances in accordance with equitable principles.
SECTION 4. Proportionality
506, It is nownecessary to determine whether the practical metnod
described above would be in accordance with the principles and rulesof
international law and would.in fact bring about an equitable resu1t. It
would be appropriate first to recall the words of the Court in paragraph
10 1(D) (3) of the North Seu Continental Shelf Cases (dispositfl tothe
effectthat, in the course of negotiations concerningan ultimate delimita-
tion, the factors to be taken into account are to include:
"the element of a reasonable degree of proportionality, which a
delimitation carried out in accordance with equitable principles
ought to bring about between the extent of the continental shelf
areas appertaining to the coastal State and the length of its coast
measured in the general direction ofthe coastline, account being338 CONTINENTAL SHELF 12041
taken for this purpose of the effects,actualor prospective,of any
other continental shelf delimitations between adjacent States in
the same region'."
507. As shown above in the Diagram appearing at page 196, the
contrast betweenthe logicallydelineated area of concernand the extreme
Tunisian claimsis startling. On the assumptionthat the Court considers
the concept of "proportionality" as applicable in the broader context of
actual or prospective effects ofany other continental shelf delimitations
betweenStates in the same region,whether adjacent or opposite5,clearly
any delimitation along the Tunisian "lines" suggested by Chapter 1X of
the TunisianMernarial wouldnot merely havea disproportionate result: it
would have a grossly disproportionate result. Indeed, as is so readily
apparent pictorially from the Diagram appearing on page 196,the results
of any such delimitation would be inequitable and inappropriate even if
Malta or Italy did not exist.
508. In theNorth Sea ContinentalShelf Casesthe conceptof"propor-
tionality" was raisedbythe Federal RepublicofGermany inan attempt to
ascribe to itself"a just and equitable share", that is: a proportionately
greater area of shelf than the very restricted area to whichapplication of
the equidistance method, drawn in the context of the particular circum-
stances of the convexity of the coasts concerned, would have led. The
Court rejected this concept of "proportionality" because it was "quite
foreign to, and inconsistent with,the basic concept of continental shelf
entitlementS". The paradigm in the North Sea Continental Shev Cases
featured the instancewhereoneState (the Federal RepublicofGermany)
suffered frorn a coastline which wasseverely concave. Such concavity,
when joined with the method of equidjstance,resulted in the dramatic
double "amputation" shownby the dotted linesD-Eand E-Bin Map 3set
forth at page 15of the North Sea ContinentalShelfCases Judgment and
reproduced at page 191 above4.
509. Yet, onthe other hand, theCourt could notdisregard proportion-
ality, since it could not besaid that a delimitation effectedin accordance
with equitable principles could bea delimitation which did not possessat
least "a reasonabledegree of proportionality". This was, however,quite
clearlyrecognized bythe Court in itsdispositgas having reference onlyto
the portionof the continental shelf concernedwhichconstituted an "area
'I.C.J. Reports1969, p. 54.
'It would distort thc reasoningof the Courtno1 to extend the applicability of para.
101(D)(3) of the 1969dispositiJto situationsasthe prcscntone where Tunisia and
LibyaareadjacenrStates.butwherc Tunisiaandltaly (and MaltaandLibya) areopposiie
States. It mustaiso be recalledthat Tunisiahas alreadytakeninto account(althoughin
Libya's contention inequitabldcorrcctlyso) anoppositeState'sdelimitationbyenter-
ing into t1971 Delimitation Agreement wihtaly.
V.C.J. Reports1969, p. 22, para.20.
'Ibid.. p. 15;seealsoExamples1andIIonp. ibidand para.8ofthe Judgment, atp. 17.
In the presentcase, however, Tunisia "ampu"erselfandcannotbe heard toadvance
"proportionalitin the mannerin whichthe FederalRepublicof Gerrnanydid so in the
NorthSea ContinentalShelj Cases. COUNTER-MEMORIAL OFLlBYA 339
of overlap". Proportionality was to be taken intoaccount under 101(D),
"in the course of the negotiations" in respect of the agreement to be
reached by the Parties in relation to the shelf areas relating to paragraph
1O1(C) (2), and no1to the areas contemplated by paragraph 101(C) ( 1).
The "101 (C) (1) areas" were of a different nature from the "101 (C) (2)
areas": they were those as to which a delimitation was to be agreed
recognizing the natural prolongation of land territory of each Party con-
cerned without encroachment on the natural prolongation of the land
territory of the other Party1. The 101(C) (2) areas were "areas that
overlap" which "the delimitation [left]. . .to the Parties. . .".
510. In Libya'sview,the concept of proportionality isapplicable solely
to areas where the application of the principle of natural prolongation
leads to conflicting results, or where (as in the present case) the question
put ta the Court requires it to give eflect to relevant circumstances which
mighi create a "marginal area" of divergence (as indicaled in paragraphs
504 and 505 above". Proportionality has no place in connection with de
jure appurtenance. Indeed, to impose proportionality as a restraint upon
a delirnitation of areas of shelf that dejureand ab initioappertain to State
A, in favor of State B, because of the proportion borne by its smaller
(theoretical) area of shelf to the length of its longer (theoretical) coast-
lines, would be contradictory to the fundamental legal concept that the
continental shelf is the natural prolongation-in that example-f the
landmass of State A into and under the sea.
51 1. This conclusion is confirmed by the decision of 30 June 1977 in
the Anglo-French Arbitration. At paragraph 101, the Court of Arbitra-
tion stated:
"ln short, it is disproportion rather than any general principle of
proportianality which is the relevant criterion or factor. The equi-
table delimitation of the continental shelf is not, as this Court has
already emphasized in paragraph 78,a question of apportioning -
sharingout - the continental shelf amongst the States abutting
upon it. Nor is it a question of sirnply assigning to them areas of
the shelf in proportion to the length of their coastlines; for to do
this would be to substitute for the detimitation of boundaries a
distributive apportionment of shares. Furthermore, the funda-
mental principle that the continental shelf appertains to a coastal
State as being the natural prolongation of its territory places defi-
nite limits on recourse to the factor of proportionality3."
512. There are "definite limits on recourse to the factor of proportion-
ality" in this case as wellsince, in accordance with Libyan Submission 5to
the Memorial (and Subrnission 6 to this Counter-Mernorial):
'This inierpretationis reinforcedby a close readingof the disposirifand particularlyby
examiningthe words."inthe course of the negotiations".inthe firstseofparagraph
101(D). How can ihere be "negotiations"concerningde jure appurtenantareasof shelf?
Although iisanalytically differentfrom"areasthat overlap",itmaybepossibletoconceive
of thisareaofdivergence-for thesepurposesat least-as equivalentto theareasreferredto
in para. 11(C) (2) of thNorrh Sea ConlinenralShelfCases dispositif.
'Angl~French Arbirrarion(Cmnd. 7438), pp. 60 and61,para. 101.340 CONTINENTALSHELF [2061
"In the present case the continental shelf off the Coast of North
Africa is a prolongation to the north of the continental landrnass,
and therefore the appropriate method of delimitation of the areas
of continental shelf appertaining to each Party in this specific
situation isto reflectthe direction ofthis prolongation northward of
the terminal point of the land boundary."
Since the practical method suggested for delimitation by the Parties and
their experts includes the actual recognition of this natural prolongation
to the north of the continental landmass, "proportionality" as such
-whether used in the sense of the Norlh Sea Continental Shelf,Cases
dispositif, or in terms of the ~nglo-FrénchArbitraiion-has a lirnited
role. In fact, the test of "proportionality" as enunciated in paragraph
101(D)(3) of the dispositij in the North Seo ContinentalSheif Cases is
only applicable to the "areas that overlap" (the "101(C) (2) areas") in
that case or-by analogy to the differing circumstances in the present
case-to the marginal area of divergence described in Section 3 above
(and in particular, in paragraphs 504and 505). if this isthe case, then it
followsthat the shaded area of divergence north of Ras Yonga, between
"Line A" and "Line 2" in the Diagram at page 202 above, is to be
delimited bythe Parties in a manner which takes into account the propor-
tion borne by the proposed respective areas of shelf within the area of
divergence tothe lcngths of relevant coastal fronts. It isthis area towhich
the concept of proportionality enunciated in paragraph 101(D)(3) of the:
North Sea Continental Shelf Cases Judgment is applicable.
513.This view is reinforced by the language and reasoning in the
Anglo-FrenchArbitrotion. Moreover, the Court of Arbitration in fact
refined the concept of "proportionality" into a test of the equity of any
result reached in the courseof delirnitation. Paragraph 101of the Award
in the Anglo-FrenchArbitration continues (from the language immedi-
ately quoted in paragraph 511 above'relating to the "definite limits on
recourse to the factor of proportionality") as follows:
"As was emphasized in the North Sea Continental Shelf cases
(I.C.J.Reports 1969,paragraph 9l), there can neverbe a question
ofcompletely refashioning nature, such as by rendering the situa-
tion ofa State with an extensivecoastline similar to that of a State
with a restricted coastline; it is rather a question of remedying the
disproportionality and inequitable effects produced by particular
geographical configurations or features in situations where other-
wisethe appurtenance of roughlycomparableattributions ofconti-
nental shetf'to each State would be indicated by the geographical
facts, Proportionality therefore is to be used as a criterion or
factor relevant inevaluating the equities of certain geographical
situations, not as a general principte providing an independent
source of rights toareas of continental shelf '."
'Ang/eFrenrh Arbiirarion (Cmn7438)p..61, para. 101. COUNTER-MEMORIAL OF LIBYA 341
In the context of the present proceedings,therefore, the concept of propor-
tionality should be applied in the following rnanner:
514. First, proportionality should clearlybeapplied by the Parties and
their experts asa "criterion or factor relevant in evaluatingthe equitiesof'
the relevant circumstances of geography in this case. It therefore applies
specificallyto the area of "divergence" described in Section 3 above (in
particular in paragraphs 504 and 505) and illustrated in the Diagram at
page 202. Yet it should be made clear that this element is one to be
applied by the Parties (as the Parties in the North Sen ContinentalShelf
Cases were advised to take it ilito account in the course of their negotia-
tions), and not one as to which the Court should be expected to make a
specificdetermination. .
515. Second, its application should be limited to that area of diver-
gence. consistentwith the established legalconclusionthat proportionality
doesnot relate, and cannot relate, to the total partition ofthe wholearea of
shelf concerned. In the words of the Court of Arbitration:
"The abatement of these disproportionate elTects ..does not entail
any nice calculations of proportionality in regard to the total areas
of continental shelf accruing to the Parties...This isbecnue ..the
element of 'proportionality'inthedelimitation of thecontinental shelj
does not relate to the total partition of the area of shelf among the
coastal States concerned,its rôle being rather that of a criterion to
assess the distorting effects of particular geographcal featuresand
the extent of the resulting inequity'".
516. It is difficult to stress sufficientlythe importance of the words
italicizedabove. To apply "proportionality" in a mechanical way to the
entire area of shelf lyingoffshore Libyaand Tunisia wouldbe inconsistent
with and directly contradictory to the reasoning of the Court of Arbitra-
tion in the Anglo-FrenchArbitration. "Proportionality" isnot a test to be
applied in a mechanical or rigid manner. It confers no title to areas of
shelf: it onlycan serveto confirmthe equitableness of a proposeddelirnita-
tion. It does riotapply to al1or evento most of the area of sheif whichcan
reasonably be subject to delimitation in these proceedings (the "area of
concern"), sincemost ofthat area isto bedetermined as belongingdejure
to one or the other Party by respecting the juridical principle of natural
prolongation. Butit can servea useful function in determining the broad
equity of J divisionof an area such as the area of divergence indicated in
Section 3 above: the area illustrated in the Diagram at page 202 should
be agreed for divisionbetween the Parties keeping in mind the element of
517. It goeswithout saying, moreover, that by any test or analysis the
Tunisian "sheaf of lines", which truly and unequivocally"amputates" the
area ofconcern (as shownin the Diagram at page 196above) wouldbring
about a grossly disproportionate result. It should thus be rejected in its
entirety by the Parties and their experts as incapable of achieving an
Anglo-FrenchArbitrarion(Cmnd.7438), p. 117,para250.(Italicsadded.)342 CONTINENTAL SHELF ' [208]
equitable delimitation which satisfiesevena minimum test of proportion-
ality. It follows,without more, that the "methods" which have produced
that sheaf of lines must also be rejected in their entirety.
518. It is nowappropriate to verifythe general propriety orappropri-
atenessof the practical method as described above,and the equitableness
of the result producedby its application, in relation to the more concrete
relevant circumstances (or "factors") which the Court enunciated in
paragraphs 95 through 98 of its Judgment in the North Sea Conrinental
ShelfCases and repeated insubstancein paragraphs 101(D) ( 1), (2) and
(3) of its disposiriJ1".
SECTION5. Verification of the GeneraP l roprietyofSucha Method and
theEquitableness of theResultProducedbyits Application
519. The practical method suggestedby Libya will result in a line of
delimitation that proceedsnorthward from the edge of the territorial sea
north ofRas Ajdir until the approximatelatitude of Ras Yongaand which
wouldthenveerina northeastward direction. Althoughit isnotappropri-
ate, giventhe terms of the Special Agreement,for the Parties to specify at
this stage where a precise line of delimitation should lie north of Ras
Yonga,in light of the discussionin Section 4 above, it wouldappear that
the line wouldbe found withinthe shaded area enclosedby "Line A" and
"Line Zn in the Diagram appearing at page 202 above2. Taking the
application of the practical method as a whole,therefore, itremains to be
seenwhether itsapplicationwouldbe inaccordwithother relevant factors
and would produce an equitable result. To this end, the method will be
examinedin its entirety andoverthe wholeof the length of any hypotheti-
cal Iineof delimitation which it might produce.
520. The Court in 1969 indicated in its dispositif that the Parties
should take three factors into account in their delimitation. The first
factor was "the general configurationofthe coastsof the Parties, aswellas
the presence of any special or unusual featuresa". This factor has been
taken intoaccount bythe divergence describedindetail inSection3above.
521. Taking into account the second of thefactors mentioned inthe
dispositif, ii.e., "the physical and geological structure, and natural
Ïl~.~. Report1969.p. 54.
SCCpara. 503 above.
'I.C.J.Reports 1969p. 54, para. 101(D)(I); rcfercnce shbe madeto the various
Continenrl hel/Cases, and repeatcdinsubstanceinthe threcspecificfactorsin paragraphs
101(D)(1). (2). and (3) of the Court'sdispo(Ibid., pp. 51 through 54.) COUNTER-MEMORIALOF LlBYA 343
resources, of the continental shelf areas involvedl",the practical method
proposed would leave the two sedimentary basinsPon the Tunisian side.
Moreover,the productive Tunisian Ashtart petroleum fieid wouldbe left
onthe Tunisianside,wellclear ofany linewhichthe Parties mightagreeto
inconforrnitywith either the northerly direction or northeasterlydirection
to the delimitation.
522. As to the Court'sthirdfactor, to the effectthat "account [should
bel ..taken ...of the effects,actual or prospective,of any other continen-
tal shelf delimitations between adjacent States in the same regiona", it
may be stated that the practical method proposed would also respect
existingdelimitations in the sensethat the Parties wouldhave to consider
whether the line of delimitation would cease at the point at which it met
the 1971Italo/Tunisian delimitation line, and wouldaffect noother fore-
seeable delimitations (e.g., between Libya and Malta and/or Italy').
523. The practical method suggested by Libya is also justified by
several other considerations that are relevant to a delimitation of the
continental shelf in this case.
524. First, such a method would conform to the first cancrete and
uncontested indicationof sovereigntyby oneof the Parties, i.e., the lirnits
of the Libyan Petroleum ZoneNo. 1of 195Y. This was definedas being
bounded by a line "to the border of Tunisia, thence in a general northerly
direction along the international boundary3".
525. Second, this northerly projection is in accord with the related
historyof the maritime jurisdiction exercisedby the Parties inthis generai
area, includingspecificallythe locationofvesse1arrests and-to the extent
relevant(if at a1l)-the fishingpractices of both States as wellas of third
'I.C.J.Reports 1969,p.54,para. 101(D)(2), and scealsointhe opinion: "Anothcr factor
to betaken into fonsideration in the delimitation of areas of continental shelf as betwan
adjacent States istheunityofanydcposits. The natural rcsourcesofthesubsoiloseain
those parts whichconsist of continental shclf are the veryobject of the Iegalrégimeestab-
lishcd subscquent to the Truman ProffamationIbid.,p. 51. para. 7.
'See TunisianMemariol.MapNo. 6.portraying the Sillonsédimentaire du Golfde Ga&
and Sillonssédimentairesde la Tunisiedu Nord.
aThe Court'sthird factor, as cxprcsscdin para. 101(D) (3) of the 1969dispositif (ibid.. p.
54). also cmbraccd the criterion of proportionality: this is examincd in Section 4 above.
'To the extent that the 1971Italo/Tunisian delimitationfixeda lineofdelimitation lyingto
the east of this pointof intersection, itwouldrneanthat this vires.Le.a dclirnita-
tion in areas of Libyan shelf to whichLibya was not aParty. This 1971agreement is res
inter alios acra and not binding on Libya. Moreover,the practice of States in rcvising
delimitation agreementsto take accouofan authoritativc dctcrminationof the lawiswell
establishcd. After the 1969 Judgrncnt and in ordcr to adjust to the 1971 Agreerncnts
between Germany. The Nethetlands and Denmark consequential onthat Judgment, the
United Kingdomhad to adjust its 1965Agreementswith The Netherlands and Dcnmarkto
accommodatethe new 1971boundaries (sec Limitsin theSeas, No. 10Revised). There is
no reason why the 197f ItalojTunisian delimitation cannot simibcrmodified.
"ee Libyan Mernorial,para. 34 and Annex 1-9Dand para. 29 abovc.344 CONTINENTALSHELF [2101
partyStates'. Althoughnotlegallyrelevanttoquestionsofshelfdelimita-
tion,itshouldbenotedthat the areaswithinwhichthe actual,established
fishingrightsofTunisia havebeenexercisedwould be ontheTunisianside
of any lineconsistentwith these twosegmentsof generaidirection.
526. Third, Tunisiaisnot "deprived"ofits shelfin the relevantarea.
The methodpropsed givesfullweightto the Tunisiancoast wést of Ras
Ajdir, for it toowouldhaveits projectionto the north. The matter can
bestbe illustrated diagrammatically,asfollows. If it issupposedthereis
a continentallandmasswiththe shelfto the north anda straightcoastline
runningeastlwest, then the directionof the shelf boundary isclear: it
wouldrun due north, as in the Diagrambelow:
However, if,as in the presencase,the coastof "State A" turns through
neariy 90°,then (sincetheshelfisaprojectionofthecontinentallandmass
rather than of the coast) the boundarywouldlogicallystill remain the
same. Thereason forthis is that, despitethe changeof directionof the
coast of one of the Parties. theessentialrelationshipbetweenthe North
African landmass andthe shelf area, as its prolongationto the north,
remains the same. InelTect, the State (Tunisia) whosecoastline has
changeddirectionhasthe sameprolongationtothenorth, butit iselevated
abovethe sea rather than submerged. The following Diagramwillillus-
trate the position:
'Ste gcnerally Part 1,Chap.IIIahvc. 12111 COUNTER-MEMORIAL OF LlBYA 345
527. Fourth, this northerly projection would result in a delimitation
which doesnot placethe oil fieldsdrilled under concessionsgranted byone
Party in the shelf area of the other'. As mentioned in paragraph 521
above,the proposedpractical method wouldleavethe important Tunisian
producing oil field (Ashtart) on'the Tunisian side of the delimitation.
528. Ffth, as again mentioned inparagraph 521,the proposedpracti-
cal method would (consistent with the "unity of deposits" injunction in
paragraph 97 of the North Sea Coniinental Shelf Cases) leave the two
sedimentary basins on the Tunisian side2.
529. Sixth, asmorefullydiscussed inparagraph 497above,a northerly
projectionfrom the edgeof the territorial sea islogicaland consistent with
the last directional trend of the land boundary.
530. Sevenrh, a northerly projection respectsthe national security of
each State to theextent that this issueis raised by the particular circum-
stances of the area. For example, it is important to note that definite
issuesof national security are presented by any line other than a north-
ward line fromRas Ajdir. Tocut acrossthe faceofthe LibyanCoast,as is
so blatantly done by the Tunisian lines produced by the four Tunisian
@ "methods" illustrated in Figure 9.14 of the Tunisian Mernorial',is incon-
sistent withnational sovereigntyand the fundamental principlethat sover-
eignStates must beable to controlvital elementsof their ownsecurityand
military interests without encroachment or potential interference by
others. The "sheaf of lines" there depicted cuts across the Libyan conti-
nental shelfduenorth ofTripoliat a distance ofapproximately39nautical
milesfrom the outer limits of the territorial sea, or 51nautical milesfrom
the Tripoli waterfront. Itis notable in this context that Tunis does not
abut on this area of shelf, although Tripolidoes; and that no major
Tunisiancity issituated similarlyto the cityofTripolion the PelagianSea
littoral.
53 1. In conclusion, therefore: the factors enumerated above, when
considered inlight of the relevant circumstances which characterise the
area, confirm the appropriateness of the practical method proposedby
Libya, its conformity with the principles and rules governing the institu-
tion of the continental shelf, and its consonance withequitable principles
as wellas the newaccepted trends in the Third Conferenceon the Law of
the Sea.
@ 0 ::;aras. 39througb41above;anrc rlroMaps6and7facingpp.2and 26rcspcctivcly
'Seefn.2tapara.521, on 209 abovc.
Rtproducedon p. 187abovc. SUBMISSIONS
and lntroducrory Note
Zntroductory Note
Libya confirms and maintains the Submissions made in its Memorial
and, in the light of the Tunisian Memorial, adds a number of Subrnissions.
Since it has been found convenientto rearrange and consolidate some of
the original Submissions and to reproduce al1 Submissions in a logical
.sequence, in the interest of clarity and simplicity and for the convenience
of the Court, therefollows a brief narrative description of the changes
made in the order of the Submissions as given in the Libyan Memorial.
No changes of substance have been made in thase Submissions.
Counter-Memorial Submissions 2, 3,4, 7 and 12 are new.
The twelve Submissions in the Memorial have been reordered as fol-
lows: Memorial Submissions 3 and 9 have been consolidated into
Counter-Memorial Subrnission 9, and Memorial Submissions 6 and 8
have been combinedinto Counter-Memorial Submission 13. Of the other
eight Submissions in the Memorial: Submission 1 remains Submission 1;
Submission4 has become5;Subrnission5has become6;Submission2 has
become 8; Subrnission 7 has become 10; Submission 12 has becorne 11;
Subrnission 10 has become 14; and Submission I Ihas become 15. COUNTER-MEMORIALOF LIBYA 347
SUBMISSIONS
In view ofthe facts set forth in Part 1 of the Libyan Memorial, the
statement of the law contained in Part II, and the arguments applying the
law to the facts as stated in Part III of the Libyan Memorial; and
In'viewof the observations concerning the facts as stated in the Tuni-
sian Memorial and staternent of law as therein contained, and the addi-
tional facts and the statement of law contained in this Counter-Memorial;
Consideringthat the Special Agreement between the Parties requests
the Court to render itsjudgment as to what principles and rules of interna-
tional law may be applied for the delimitation of the area of the continen-
tal shelf appertaining ta the Socialist People's Libyan Arab Jamahiriya
and to the area of the continental shelf appertaining to the Republic of
Tunisia, and requests the Court to take itsdecision according to equitable
principles, and the relevantcircurnstances which characterise the area,as
wellasthe newaccepted trends inthe Third Conference on the Law of the
Sea;
May ilplease the Court, rejecting ail contrary claims and Submissions
set forth in the Tunisian Memorial,
To adjudge and declare as follows:
1. The.concept of the continental shelf asthe natural prolongation
of the land territory into and under the sea is fundamental to the
juridical concept of the continental shelf, and a Stateis entitled ipso
factoand ab inilio to the continental shelf which is the natural
prolongation of its land territory into and under the sea.
2. The natural prolongation of the land territory of a State into
and under the sea which establishes its ipsojure title to the appurte-
nant continental shelf is determined by the whole physical structure
of the landmass as indicaled primarily by geology.
3. Subrnarine ridges on the sea-bed, even if and where ascer-
tained, which do not disrupt the essential unity of the continental
shelf provide no scientific basis for a legal principle of delimitation.
4. The "fishing rights" claimed by Tunisia as "historic rights",
even if and where ascertained, are in any event irrelevant to shelf
delirnitation in the present case.
5. The direction of natural prolongation is determined by the
general geological and geographical relationship of the continental
shelf to the continental landrnass, and not by the incidental or acci-
dental direction of any particular part of the coast.
6. In the present case the continental shelf offthe coast of North
Africa isa prolongation to the north of thecontinental landmass, and
therefore the appropriate method of delimitation of the areas of348 CONTINENTAL SHELF I2181
continental shelf appertaining to each Party in this specificsituation
isto reflectthe direction of this prolongationnorthward of the termi-
nal point of the land boundary.
7. The practical method for the application of the principles and
rules of international law in this specific situation is thertoore
continue the reflection of the direction of the naturaI northward
prolongation frorntheouter limit of the territorial sea, at least as far
as the parallel where there occurs a significantchange in the general
directionof theunisiancoast whichmight reasonablybe requiredto
betaken into account inorder to achievea delimitationrespectingthe
relevantcircumstances in accordance withequitable principles, with-
out affecting the rights of States not Parties toe proceedings.
PartyAal1thoseparts of the continentalshelfthat constitute its natural
prolongation.
9. A delimitation which gives effect to the principle of natural
prolongation is one whichres cts the inherent ipsojurerights of
each State, and the assertiOnsuch rights is therefore in accordance
with equitable principles. A principle or method of delimitation
whichdisregards the ipsojure title of a coastal State tothe continen-
tal shelf constituting the natural prolongationof its land territory is,
ipsofacto, illegal and necessarilyinequitable.
10. Whether the application oa particular method of delimita-
tion is in accordance with equitable principles isto be tested by its
results.
11. For the urpose of achieving an equitable delimitation, the
wholeof the sea-ledand subsoilbeyondthe low-watermark alongthe
coast of each Party is to be taken into account.
12. While the concept of proportionality is not applicable to the
eologicalandjuridical appurtenance of continental shelf which con-
fers ipsojure entitlement on a State. it may properly be usedai s
criterion to evaluate the effect of geographical features on a delimi-
tation in marginal areas.
13. Application of the equidistance method is not obligatory on
law. The equidistance method ois in itself neither a "rule" nor anal
"princip'e" and is not necessarily "equitable"since its application in
. particular circumstances may lead to inequitable results.
14. In the present case,giventhe articular geographicaiconfigu-
ration, the e uidistance methWOU Pd result in a delimitation of the
continentasaelf which wouldbe inequitable, inappropriate,and not
in conformity with internationalw. COUNTER-MEMORIAL OF LIBYA 349
15. ThebaselinespromulgatedbyTunisiain 1973arenotopposa-
ble to Libyafor the purposesof the delimitationand the resultsof
giving effect to them would in any event be inappropriateand
inequitable.
Counter-Memorial of the Libyan Arab Jamahiriya